Ramaj v. Marra

EVDUZA RAMAJ, Plaintiff-Appellant, v. TODD MARRA and MAUREEN MARRA, Defendants-Appellees.

EVDUZA RAMAJ, Plaintiff-Appellee, v. TODD MARRA and MAUREEN MARRA, Defendants-Appellants.

Nos. 355988, 356040

Court of Appeals of Michigan

August 11, 2022

UNPUBLISHED

Macomb Circuit Court LC No. 2019-004399-NZ

Before: Swartzle, P.J., and Cameron and Patel, JJ.

PER CURIAM

This dispute involves crumbling bricks on the exterior of a house in Macomb County. Todd and Maureen Marra built the house in 2006, and by 2013, Todd noticed that some of the bricks were crumbling (or "spalling"). Defendants cut out and replaced several hundred bricks over the years. In 2018 defendants sold the house to Evduza and Kasem Ramaj "as is" and without any inspection. Before the sale, Todd discussed the brick issue with Kasem, telling him that bricks had been replaced and extra bricks were on the property if needed for future repairs. In 2019, the Ramajes noticed more brick spalling.

Evduza sued defendants, alleging that they fraudulently and negligently misrepresented the brick problem. Defendants moved for summary disposition and sought sanctions. The trial court granted summary disposition to defendants, but denied their motion for sanctions. Both sides appealed, and for the reasons stated below, we affirm in all respects.

I. BACKGROUND

For those parties and witnesses who share surnames, we use first names in this opinion. The evidence developed during the lawsuit and relevant to this appeal shows the following:

Todd and Maureen built the house in 2006. Arlington Masonry Supply provided over 38,000 bricks to defendants for construction of the house. The brickwork is largely if not wholly cosmetic steel beams and columns constitute the structural frame of the house. In 2013, Todd contacted Arlington Masonry about spalling bricks. Jeff Walker from Arlington Masonry and Amos Leatherman from the brick manufacturer, Brampton Brick Limited, came to the house in September 2013.

The two spoke with Todd and surveyed the exterior of the house with respect to the brickwork. According to his deposition testimony, Todd was told by them that "water was getting underneath the brick." Todd further described the colloquy, "With our climate, it was expanding and contracting, and the brick faces were popping off; that I would need to replace the brick. I asked them if they would warranty it and they said, no, they can't warranty it. It was [a] climate issue with water freezing, expanding and contracting." When asked about this conversation during his deposition, Walker testified that he did not recall it.

Based on information collected during this visit, Brad Cobbledick, vice president of Brampton Brick, wrote a report in September 2013 diagnosing the problem and outlining recommendations. In the report, Cobbledick explained that the brick-spalling problem was caused by "improper detailing practices common in residential construction." In essence, Michigan has a cold-weather climate, and exterior brickwork that is exposed to moisture will naturally experience "freeze-thaw damage." According to Cobbledick, this risk can be prevented by "[p]roper design and detailing." To correct the problem, he "recommended that stone or pre-cast sills be installed with proper moisture controls." "[U]nless these measures [were] met," Cobbledick explained, "the brick [would] continue to spall" and "[r]eplacement of the affected brick and proper masonry design and construction practices [would] be [the] only alternative for repair."

Whether Todd received this report prior to being sued was explored during discovery. The report is addressed to Arlington Masonry with copies to Leatherman and two other Brampton Brick employees. There is nothing on the face of the report to suggest that it was sent directly to Todd, or otherwise intended to be forwarded or copied to him. During his deposition, Todd testified that he did not receive the report, and he did not speak to anyone from Arlington Masonry or Brampton Brick about any diagnosis or recommendation from the report. There is nothing in the record on appeal to suggest that Maureen received a copy of the report or had any involvement with issues involving the brickwork.

It does not appear that anyone from Brampton Brick was deposed. Evduza did, however, submit an affidavit from Cobbledick. With respect to whom the 2013 report was sent, Cobbledick stated, "My 9/26/13 report was transmitted to [Arlington Masonry], which is the direct customer of [Brampton Brick]. The expectation was that [Arlington Masonry] would in turn communicate the information in the report to the homeowner which was [Arlington Masonry]'s customer." Thus, there is no evidence that Brampton Brick sent the 2013 report directly to Todd.

During his deposition, Arlington Masonry's Walker testified when this topic was raised, "I do not know if a report truly does exist . . . ." He went on to explain, however, that the generation of a report "is the norm." According to Walker, "When Mr. Leatherman is here, he does have to talk to his -- his bosses. The bosses will take this information and be -- and provide an explanation to the homeowner." Walker was then asked, "In those situations, setting aside this particular Marra house but in other situations, has it been your experience that the manufacturer does write a report which presumably is provided to the homeowner?" (Emphasis added.) Walker answered, "That is correct. They do provide a report that they provide to the homeowner." (Emphasis added.) Thus, at this point in his deposition, Walker asserted that it was the practice of the manufacturer to provide the report to the homeowner. When asked whether, with respect to this house, he had ever seen the report, forwarded the report to Todd, or otherwise talked with Todd about the contents of the report, Walker answered in each instance, "I do not recall." When pressed about whether he would have offered an explanation about what caused the brick problem, he stated, "I would have left that to the brick manufacturer."

Later during the deposition, the topic of the report was revisited. At this juncture, Walker provided a different explanation about "what should have happened with the report concerning that inspection." (Emphasis added.) He had noted earlier that, in fact, these types of reports never came to him and he never possessed them, though he subsequently indicated that he had "seen" reports like this one. He then offered that, in the "normal course," a report like this would have been received and processed by Arlington Masonry's accounting department. The report would then have gone to a manager, and that manager would contact the homeowner "and relay the message that they have the inspection report." He answered in the affirmative when asked immediately thereafter whether the manager would "communicate with [the] homeowner about" the report. But when asked whether he had occasion to "ever deal" with Todd after the September 2013 visit, Walker replied again, "I do not recall." He suggested that there might have been another manager assigned to Todd's case, though Walker admitted that he was the Arlington Masonry representative who went to Todd's house that September.

Returning to the timeline, shortly after the site visit by Walker and Leatherman in 2013, Todd spoke with Salvador Giovia, a brick mason who was doing some work next door. Although Todd's focus was on bricks that were spalling in the back of the house, Giovia noticed additional spalling bricks in the front. Giovia testified that, in his opinion, the problem was due in part to the relatively low quality of the brick. Although more drastic means could be taken to deal with the problem (e.g., changing the whole structure), Giovia testified that one solution would be to "[c]ut out and replace the brick." He did, in fact, do this in 2013, cutting out and replacing approximately 150-160 bricks for a total charge of $2,500.00. Todd had Giovia come back in 2016, and the brick mason cut out and replaced over 200 different spalling bricks and sprayed water repellant on bricks in the front. The total cost of the repairs was $3,150.00. After the second job, unused bricks were left in a pile on the side of the house in case spalling bricks needed to be replaced in the future.

Defendants put the house on the market in 2018. Evduza, a relator and mortgage broker, and Kasem, a property manager, were interested in purchasing the house. During their last viewing, Kasem noticed that some of the bricks in the back were shaded differently than others, and he asked Todd about it. The conversation took place in the area of the walkout basement, though there is some disagreement about whether they were just inside or outside the walkout doors. Defendants' real estate agent and Evduza were in the same area. Kasem testified that the discussion lasted for "20 to 30 minutes," though it is unclear whether the entire discussion was about bricks.

In any event, when asked during his deposition whether Todd told him that bricks needed to be periodically replaced "due to the climate and the freezing and thawing and the water getting into the brick facing and popping them off," Kasem responded, "He explained something similar to that, yes." Kasem further explained that Todd told him about a pile of bricks near the side of the house in case more bricks needed to be replaced in the future. While Todd recalled that the two spoke only briefly about the bricks, the record makes clear that there is no material dispute about the substance of the discussion. When asked during his deposition whether he was satisfied at the time with this explanation, Kasem answered, "Absolutely I was satisfied."

Evduza made a cash offer on...