If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JAMES S. RAHAIM and NICOLE WILSKI,

Plaintiffs-Appellants,

UNPUBLISHED

August 29, 2019

v

LEET DENTON and PATSY DENTON,

Defendants/Third-Party PlaintiffsAppellees,

and

No. 342221

Macomb Circuit Court

LC No. 2017-001935-CK

FORMAN JOHNSTON REALTY, INC., doing 

business as BOLTON JOHNSTON ASSOCIATES 

OF GROSSE POINTE,

Defendants-Appellees,

and

BELINE OBEID, LLC, doing business as BELINE 

OBEID REALTY, and BELINE OBEID,

Third-Party Defendants.

Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

PER CURIAM.

This case arises from the sale of real property, in which plaintiffs allege that the sellers, 

defendants Leet Denton and Patsy Denton, wrongfully removed certain fixtures from the 

premises. Defendant Forman Johnston Realty, Inc. (“Forman Johnston”) was the real estate 

agent for the Dentons. Plaintiffs appeal as of right the trial court’s order granting summary 

disposition in favor of defendants. We affirm.
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I. BACKGROUND

In May 2016, the Dentons listed for sale their real property (“the property”). The

Dentons employed co-defendant Forman Johnston as their listing agent. In October 2016, the 

Dentons began conducting negotiations with plaintiffs for the sale of the property. During this 

time, plaintiffs visited the property on three separate occasions: October 22, 2016; January 8, 

2017; and January 26, 2017.

On March 21, 2017, the parties executed an agreement (“the Purchase Agreement”), 

which was prepared by plaintiffs’ real estate agent Beline Obeid, LLC, in which plaintiffs would 

purchase the property from the Dentons for $3.5 million. Paragraph 2 of the Purchase 

Agreement covered the scope of the agreement, setting forth what was being conveyed in the 

sale. It states, in pertinent part:

SUBJECT TO ZONING ORDINANCES, BUILDING AND USE 

RESTRICTIONS, IF ANY, AND EASEMENTS OF RECORD, together with all 

improvements and appurtenances, now in and or on the property and including the 

security system; all attached carpeting; all attached lighting fixtures; . . . all 

window treatments and electrical fixtures as shown. . . .

And under the “GENERAL CONDITIONS” heading, the PA provides the following:

B) It is understood that this property is being purchased in its present 

condition, “AS IS” and that it will be in substantially the same condition at time 

of closing as when this offer was made except as may be required by paragraph 

13. This agreement supersedes any and all understandings and agreements and 

constitutes the entire agreement between the parties hereto and the broker or his 

representative and no oral representations or statements shall be considered a part 

hereof. Purchaser and Seller acknowledge that no representations, promises, 

guarantees, or warranties of any kind, including, but not limited to, 

representations as to the condition of the land and structures, were made by the 

Broker, any cooperating Broker, or the Purchaser’s representatives or any sales 

persons or persons associated with these Brokers.

C) Seller and Purchaser hereby release Broker and any cooperating Broker(s) 

in this transaction, their respective agents, employees, attorneys, and 

representatives with respect to all claims arising out of the performance of this 

Contract For The Sale of Real Estate and any addenda or counteroffers, all claims 

arising by virtue of any purported representations to Seller or Buyer as to the 

condition of the property, and all claims arising from the existence of any special 

assessments which have been, or may in the future be levied against the land and 

structures which are the subject of their Contract For The Sale of Real Estate.

* * *

P) This offer is contingent upon the Purchaser signifying in writing by 

03/24/2017 . . . that the Purchaser is satisfied with the results of the inspection of 
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said property . . . . Purchaser acknowledges that he is purchasing the property in 

“AS IS” condition and that he is satisfied with the property. . . .

Plaintiffs conducted an inspection of the property on March 23, 2017, and requested a 

reduction of the sales price to $3,460,000 for seawall updates required on the property. The 

Dentons agreed to the price reduction. On April 28, 2017, the parties executed a Land Contract 

which stated that the sale includes “all tenements, hereditaments, improvements, and 

appurtenances, now on or affecting the Premises.”

Plaintiffs took possession of the property on or about May 1, 2017. Shortly thereafter, 

plaintiffs contacted the Dentons and asked for certain fixtures to be returned. The Dentons 

refused, stating that the fixtures were not part of the sale.

On May 23, 2017, plaintiffs filed a three-count complaint. In the first count, plaintiffs 

alleged that the Dentons breached ¶ 2 of the Purchase Agreement, by removing expensive 

fixtures from the property without plaintiffs’ knowledge or consent. In the second count, 

plaintiffs alleged wrongful conversion of the fixtures by the Dentons. In the third count, 

plaintiffs alleged fraud by the Dentons and Forman Johnston. Plaintiffs alleged that defendants 

committed fraud by (1) failing to notify plaintiffs that the fixtures were going to be removed 

from the property and (2) by making “false representations of material facts,” which purportedly

led plaintiffs to believe that the fixtures were part of the agreement and would remain with the 

premises.

The Dentons and Forman Johnston moved for summary disposition of plaintiffs’ claims. 

The court granted the motions, finding that there was no genuine issue of material fact that the 

fixtures had been removed well before the Purchase Agreement was executed, thereby defeating 

plaintiffs’ claims of breach of contract and conversion. The trial court also ruled that no genuine 

issue of material fact existed as to plaintiffs’ fraud claims.

II. STANDARD OF REVIEW

Issues concerning the proper interpretation of contracts, which are questions of law, are 

reviewed de novo. Archambo v Lawyers Title Ins Corp, 466 Mich 402, 408; 646 NW2d 170 

(2002). A trial court’s decision on a motion for summary disposition also is reviewed de novo. 

Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002).

“A motion under MCR 2.116(C)(10)[1] tests the factual sufficiency of the complaint. In 

evaluating a motion for summary disposition brought under this subsection, a trial court 

considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the 

parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” 

 1 Although defendants moved for summary disposition under both MCR 2.116(C)(8) and 

(C)(10), because the parties and the trial court relied on materials outside the pleadings, the 

motions are properly considered as being decided under MCR 2.116(C)(10). Butler v RamcoGershenson, Inc, 214 Mich App 521, 524; 542 NW2d 912 (1995).
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Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The motion is properly granted 

if there is no genuine issue regarding any material fact and the moving party is entitled to 

judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 

(1999).

II. ANALYSIS

Plaintiffs argue that the trial court erred when it granted summary disposition in favor of 

defendants on the claims of breach of contract, conversion, and fraud. We disagree.

A. BREACH OF CONTRACT

Plaintiffs aver that a genuine issue of material fact exists as to whether the Dentons 

breached ¶ 2 of the Purchase Agreement by removing fixtures from the property, which therefore 

would necessitate a denial of the Dentons’ motion for summary disposition. Plaintiffs assert that 

there is a factual dispute as to when the fixtures were removed from the property.

When claiming a breach of contract, plaintiffs must establish “(1) that there was a 

contract, (2) that the other party breached the contract, and (3) that the party asserting breach of 

contract suffered damages as a result of the breach.” Miller-Davis Co v Ahrens Const, Inc, 296 

Mich App 56, 71; 817 NW2d 609 (2012). Here, there is no dispute that a written contract 

existed between plaintiffs and defendants. Paragraph 2 of the Purchase Agreement provides:

SUBJECT TO ZONING ORDINANCES, BUILDING AND USE 

RESTRICTIONS, IF ANY, AND EASEMENTS OF RECORD, together with all 

improvements and appurtenances, now in and or on the property and including 

the security system; all attached carpeting; all attached lighting fixtures; . . . all 

window treatments and electrical fixtures as shown. . . . [Emphasis added.]

The important word in this paragraph is “now.” The Purchase Agreement was executed 

on March 21, 2017. Thus, by the plain terms of the contract, only those fixtures on the property 

as of that date were included in the sale of the home. Here, the evidence is uncontradicted that 

the fixtures in question were removed no later than February 10, 2017, roughly 40 days before 

plaintiffs executed the Purchase Agreement. In support of their motion for summary disposition, 

the Dentons submitted invoices from contractors, which showed that the fixtures had been 

removed on August 9, 2016, January 27, 2017, and February 10, 2017. In contesting the 

Dentons’ motion for summary disposition, plaintiffs presented no specific evidence to suggest 

that any of the fixtures were on the property at the time the Purchase Agreement was executed. 

Instead, plaintiffs’ affidavits merely provide that plaintiffs observed “all or some” of the fixtures 

when they visited the property on October 6, 2016, January 8, 2017, and January 26, 2017. 

Importantly, these dates are all before the date plaintiffs and the Dentons executed the Purchase 

Agreement. Consequently, plaintiffs have not established that a genuine issue of material fact 

exists as to whether the Dentons breached the Purchase Agreement, and the trial court properly 

granted the Dentons’ motion for summary disposition on this count.

Plaintiffs also relied on an e-mail written by defendant Leet Denton, in which he 

provided dates for when the removal of the fixtures took place, which differed from the dates set 
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forth in the invoices the Dentons attached to their motion for summary disposition. But these 

discrepancies do not create a factual question sufficient to defeat the Dentons’ motion. “A 

genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to 

the opposing party, leaves open an issue upon which reasonable minds might differ.” West v 

Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003); see also Grettenberger 

Pharmacy, Inc v Blue Cross-Blue Shield of Mich, 98 Mich App 1, 14; 296 NW2d 589 (1980) 

(“The mere existence of issues of fact is no bar to entry of summary judgment if, upon resolving 

all such issues in favor of [the nonmoving party], the [moving party] would still be entitled to 

judgment as a matter of law.”).

In the pertinent e-mail, Leet Denton stated:

The 3 chandeliers and the 4 sconces in the foyer were removed by Lighthouse 

Electric Company July 29-Agust [sic] 1[,] 2016, the sink in the powder room was 

removed Jan. 27, 2017, by Hoyle plumbing and the 4 sconces in the master bath 

were removed by Lighthouse Electric company Feb. 17, 2017.

Some of the information in the e-mail does contradict the information contained in the invoices 

the Dentons submitted. While the differences between what was stated in the e-mail and what 

was provided for in the invoices do create questions of fact, they are not issues of material fact. 

In other words, none of the evidence stands for the proposition that the fixtures were in the home 

at the time the Purchase Agreement was executed. Accordingly, when viewing the evidence in 

the light most favorable to plaintiffs, reasonable minds could not conclude that the fixtures were 

present as of the time of the Purchase Agreement’s execution, which is fatal to plaintiffs’ breach 

of contract claim.

B. CONVERSION

Plaintiffs argue that summary disposition was not warranted on their claim for 

conversion. Pursuant to MCL §600.2919a, statutory conversion consists of “another person’s 

converting property to the other person’s own use.” It “requires a showing that the defendant 

employed the converted property for some purpose personal to the defendant’s interests, even if 

that purpose is not the object’s ordinarily intended purpose.” Aroma Wines & Equip, Inc v 

Columbian Distribution Servs, Inc, 497 Mich 337, 340; 871 NW2d 136 (2015).

Here, plaintiffs rely on their claimed contractual right to the fixtures to substantiate their 

conversion claim; however, we have already determined that there was no contractual breach by 

the Dentons. Again, the Purchase Agreement only transferred interests of fixtures that were on 

the property as of March 21, 2017. There was no evidence to show that the fixtures were present 

on that date. Thus, the fixtures were not included in the sale of the property; the Dentons 

remained the rightful owners of the fixtures, which bars plaintiffs’ conversion claim.

C. FRAUD

Unlike plaintiffs’ other claims, plaintiffs’ claim of fraud is against the Dentons and 

Forman Johnston. The claim, although titled simply “fraud,” implicates both fraudulent 

misrepresentation and silent fraud.
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1. FRAUDULENT MISREPRESENTATION

“To prove a claim of fraudulent misrepresentation, or common-law fraud, a plaintiff must 

establish that: (1) the defendant made a material representation; (2) the representation was false; 

(3) when the representation was made, the defendant knew that it was false, or made it 

recklessly, without knowledge of its truth, and as a positive assertion; (4) the defendant made it 

with the intention that the plaintiff should act upon it; (5) the plaintiff acted in reliance upon the 

representation; and (6) the plaintiff thereby suffered injury.” Roberts v Saffell, 280 Mich App 

397, 403; 760 NW2d 715 (2008).

Here, the trial court determined that there was “no genuine issue of material fact that any 

type of fraud was perpetuated.” We agree. Regarding any claims of fraudulent 

misrepresentation, plaintiffs provided no evidence to show that the Dentons or Forman Johnston

made any affirmative misrepresentations.

With respect to defendant Forman Johnston, plaintiffs alleged that Forman Johnston 

committed fraud by including pictures of the fixtures in its advertising of the property for sale. 

This claim fails for three reasons. First, plaintiffs agreed to release the brokers involved in the 

transaction from liability. The Purchase Agreement specifically provided that 

Seller and Purchaser hereby release Broker and any cooperating Broker(s) in this 

transaction, their respective agents, employees, attorneys, and representatives with 

respect to all claims arising out of the performance of this Contract For The Sale 

of Real Estate and any addenda or counteroffers, all claims arising by virtue of 

any purported representations to Seller or Buyer as to the condition of the 

property, and all claims arising from the existence of any special assessments 

which have been, or may in the future be levied against the land and structures 

which are the subject of their Contract For The Sale of Real Estate.

Second, in the Purchase Agreement, plaintiffs assented to there having been no representations 

made outside the Purchase Agreement:

Purchaser and Seller acknowledge that no representations, promises, guarantees, 

or warranties of any kind, including, but not limited to, representations as to the 

condition of the land and structures, were made by the Broker, any cooperating 

Broker, or the Purchaser’s representatives or any sales persons or persons 

associated with these Brokers.

Thus, this merger clause defeats plaintiffs’ claim that any representations outside the contract 

were made. Third, assuming without deciding that such pictures could constitute an affirmative 

representation that the fixtures were to be included in the sale of the property, the listing in which 

those pictures were contained included a statement that a “few exclusions” applied to the listing. 

Thus, the listing, while leaving the extent of the “exclusions” open-ended, is insufficient on its 

face to support a claim of fraudulent misrepresentation.
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And with respect to any fraudulent misrepresentation claims against the Dentons, 

plaintiffs provided no evidence that the Dentons had made any affirmative misrepresentations at 

all, let alone any representations that plaintiffs relied upon.

2. SILENT FRAUD

Plaintiffs’ remaining fraud claims against defendants implicate the doctrine of “silent 

fraud.”

Silent fraud or fraudulent concealment has also long been recognized in 

Michigan. A fraud arising from the suppression of the truth is as prejudicial as 

that which springs from the assertion of a falsehood, and courts have not hesitated 

to sustain recoveries where the truth has been suppressed with the intent to 

defraud. But for the suppression of information to constitute silent fraud there 

must exist a legal or equitable duty of disclosure. Further, establishing silent 

fraud requires more than proving that the seller was aware of and failed to 

disclose a hidden defect. Instead, to prove a claim of silent fraud, a plaintiff must 

show some type of representation by words or actions that was false or misleading 

and was intended to deceive. [Id. at 403-404 (quotation marks and citations 

omitted).]

The essence of plaintiffs’ claim against the Dentons is that they failed to disclose during 

negotiations for the sale of property that they intended to remove the fixtures. However, 

plaintiffs provided no evidence or authority that a legal duty existed on behalf of the Dentons to 

make any such disclosures. See Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 

(2003) (“An appellant may not merely announce his position and leave it to this Court to 

discover and rationalize the basis for his claims.”). Regardless, we have not found any caselaw 

which would support such a conclusion. Thus, with no duty to disclose, plaintiffs’ silent fraud 

claim necessarily fails. See Roberts, 280 Mich App at 404; M&D, Inc v WB McConkey, 231 

Mich App 22, 31; 585 NW2d 33 (1998) (stating that silent fraud is only actionable if it occurred 

when there was a duty to disclose). Furthermore, there is no evidence that plaintiffs had asked 

the defendants any questions that arguably might have imposed on defendants an obligation to 

disclose. Such questions pertaining to the fixtures seemingly would have imposed an equitable 

duty on the Dentons to disclose that the fixtures were not included with the sale. See M&D, Inc, 

231 Mich App at 33 (stating that an equitable duty to disclose can arise when buyers of real 

estate “express particularized concern or directly inquire of the seller”). But with no evidence of 

any such question, no equitable duty existed. And with no legal or equitable duty to disclose, 

summary disposition was proper on plaintiffs’ claim of silent fraud.

With respect to defendant Forman Johnston, plaintiffs alleged that once Forman Johnston 

had actual knowledge of the Dentons’ intention to remove the fixtures from the property, it 

nevertheless failed to disclose this information to plaintiffs. Again, plaintiffs failed to provide 

sufficient evidence or authority that a legal duty existed on behalf of Forman Johnston to make 

any such disclosure. Indeed, “Michigan jurisprudence had never imposed on sellers’ agents a 

duty per se of disclosure to buyers . . . .” Alfieri v Bertorelli, 295 Mich App 189, 194; 813 

NW2d 772 (2012). Although “a duty of disclosure may be imposed on a seller’s agent to 

disclose newly acquired information that is recognized by the agent as rendering a prior 
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affirmative statement untrue or misleading,” id., there is no evidence to show that any “prior 

affirmative statement” had ever been made regarding the fixtures. Thus, with no duty to 

disclose, plaintiffs’ silent fraud claim against Forman Johnston necessarily fails, and Forman 

Johnston’s motion for summary disposition appropriately was granted.

Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.

/s/ Kirsten Frank Kelly 

/s/ Jonathan Tukel 

/s/ James Robert Redford