R. MICHAEL HORD, FOR PUBLICATION
August 10, 1999
Plaintiff-Appellee, 9:10 a.m.
v No.200481
Washtenaw Circuit
Court
ENVIRONMENTAL RESEARCH, LC No.95-005102-CK
Defendant-Appellant. ON REMAND
Before: Hoekstra, P.J., and Gribbs and Murphy, JJ.
GRIBBS, J.
This matter has been remanded to us for reconsideration in
light of M & D, Inc. v McConkey, 231 Mich App 22, 25; 585 NW2d 33
(1998) where a panel of this Court considered the issue of silent
fraud. We again affirm.
In the case before us, plaintiff alleged both fraudulent
misrepresentation and silent fraud. As we noted in our previous
opinion, 228 Mich App 638, 641 n1; 579 NW2d 133 (1998),
“fraudulent misrepresentation” denotes a standard fraud claim
based on an affirmative statement, while “silent fraud” involves
a failure to disclose information where there is a duty to do so.
We specifically held that, in this case, plaintiff presented
sufficient evidence of an affirmative misrepresentation to
support the jury verdict on plaintiff’s claim of fraudulent
misrepresentation. Id. Because we concluded that the trial
court properly denied defendant’s motion for a directed verdict
on this basis, the question of silent fraud was never raised or
relied upon in the majority opinion. We remain convinced that
the trial court properly found evidence of fraudulent
misrepresentation in this case, and this Court’s decision in M &
D, Inc., supra, does not change that previous finding.
Having nonetheless reviewed this matter in light of our
Supreme Court’s remand, we find that the evidence here also
supported plaintiff’s silent fraud theory. As this Court stated
in M & D Inc., supra at 29, quoting and adopting Judge Young’s
opinion in the previous M & D Inc v McConkey decision, defendant
“also has a duty to disclose ‘subsequently acquired information
which he recognized as rendering untrue, or misleading previous
representations where, when made, were true or believed to be
true.’” 231 Mich App 29 (1997). (Emphasis omitted.)
We remain convinced that the jury in this case could fairly
infer that defendant showed plaintiff the 1991 operating summary
with the intention that plaintiff would rely on the information
it contained. 228 Mich App 642-643. Therefore, in addition to
finding that the evidence here supports a claim of simple fraud,
we also find that defendant had a duty in this case to disclose
the subsequently acquired information of defendant’s financial
position in 1992, which clearly rendered untrue any implications
from the 1991 figures.
Affirmed.
/s/ Roman S. Gribbs
/s/ William B. Murphy
STATE OF MICHIGAN
COURT OF APPEALS
R. MICHAEL HORD, FOR PUBLICATION
August 10, 1999
Plaintiff-Appellee,
v No.200481
Washtenaw Circuit
Court
ENVIRONMENTAL RESEARCH INSTITUTE LC No.95-005102 CK
OF MICHIGAN d/b/a ERIM,
Defendant-Appellant. ON REMAND
Before: Hoekstra, P.J., and Gribbs and Murphy, JJ.
HOEKSTRA, P.J. (dissenting).
Consistent with the remand order, I have reconsidered my
opinion in light of M & D Inc v McConkey, 231 Mich App 22; 585
NW2d 33 (1998). In my judgment, McConkey supports the
conclusions I reached in my original dissent, and, consequently,
I remain convinced that the trial court’s judgment should be
reversed. Therefore, I respectfully dissent.
Here, plaintiff does not claim that defendant’s 1991
operating summary contained false or misleading information
regarding the company’s financial status as of 1991. Thus,
standing alone, the summary provides no support for plaintiff’s
claims, because it accurately presents the 1991 figures.
Plaintiff inferred from the 1991 financial figures that the
company’s situation remained unchanged through 1992. This
inference, when coupled with a failure by defendant to disclose
more current information, provides the basis for plaintiff’s
allegation of fraud. Id. at 29. However, I understand McConkey
to hold that plaintiff’s inference is unwarranted, therefore it
cannot serve as the basis for his fraud claim. There is no
evidence that defendant intended the 1991 operating summary to
demonstrate the company’s financial condition at the time it
hired plaintiff. To the contrary, the document is clearly a
report from fiscal year 1991, and any other inferences plaintiff
may have made lack a discernible or objective basis. In
addition, I see no basis for the conclusion that defendant had a
right to rely on the 1991 summary as an accurate picture of the
company’s performance in fiscal year 1992, without some
additional inquiry or affirmative representation by defendant.
Both of these conclusions, that the 1991 figures were intended to
represent financial performance in 1992 and that defendant had a
duty to provide additional financial information, are essential
to the majority’s finding of fraud. Unfortunately, no evidence,
beyond pure speculation, supports such conclusions. Accordingly,
I find plaintiff’s fraud claim to be unsupported by any evidence.
In addition to there being no basis for plaintiff’s
assumptions about the company’s performance in 1992, plaintiff
never requested more recent financial information during the
hiring process. Given that the report he received was clearly
labeled as financial figures for fiscal year 1991, I can find no
duty to provide additional information on the company’s
performance during fiscal year 1992. While 1992 figures were
available, they had yet to be compiled into a report like the one
defendant gave plaintiff. Therefore, plaintiff received the most
current report of its type available. Absent a request from
plaintiff for more current information, defendant had no duty
whatsoever to provide it. The holding in McConkey teaches us
that the failure to do something that one is not required to do
is not fraud. Id. at 32.
The most disconcerting aspect of the majority’s opinion is
that it expects that defendant will anticipate plaintiff’s
inference and then requires defendant to take appropriate
remedial action. Because defendant failed to anticipate how
plaintiff would interpret its 1991 operating summary, the
majority finds that defendant has committed fraud. This result
is most troubling. To elevate an inference made by another
party’s interpretation of a document that, on its face, is clear
and unambiguous, puts every supplier of information in jeopardy
for the unforeseen misinterpretation of that information. In a
case like this one, where the data was clearly labeled as
pertaining to the company’s 1991 fiscal year, plaintiff should
not be permitted to argue that he thought the figures also
represented the company’s performance in 1992. Plaintiff had a
simple, straightforward avenue to discover defendant’s current
financial condition. He simply had to ask. Now he expects the
courts to bail him out because his assumption about defendant’s
financial condition were incorrect. I find it noteworthy that
McConkey holds that fraud requires some evidence of a false
representation and that knowledge, coupled with failure to
disclose, does not give rise to fraud unless the party is duty-
bound to disclose and intentionally suppresses the information,
thereby creating a false impression. McConkey, supra at 25.
There is no evidence of a such a duty in this case, nor do I find
evidence that defendant intentionally suppressed relevant
information.
/s/ Joel P. Hoekstra
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