Breach of warranty of title; MCL 565.151; McCausey v Oliver; Breach of contract; Bank of Am v First Am Title Ins Co; Fraud; The economic-loss doctrine; Sullivan Indus, Inc v Double Seal Glass Co, Inc; The Seller Disclosure Act; Bergen v Baker; Reformation; Johnson Family Ltd P’ship v White Pines Wireless; Mutual mistake; Attorney fees under the warranty deed; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Fagerberg v LeBlanc; Discovery sanctions; MCR 2.302; MCR 2.401

The court held that the trial court properly granted summary disposition on the warranty-of-title claim but erred by awarding attorney fees on all claims and by denying summary disposition to third-party-defendant-Goodman on the breach-of-contract claim. The case arose from a long-running boundary dispute. In 2016, Goodman and her now-deceased husband sold property to defendants, the Sywaks, by warranty deed. After the sale, the Sywaks’ neighbor, plaintiff-Wehner, sued over a strip of land between driveways. Goodman executed an affidavit acknowledging acquiescence to Wehner’s use. The Sywaks and Wehner later entered a consent judgment establishing a new boundary and permanently enjoining trespass. The Sywaks then pursued a variety of claims against Goodman. The trial court granted summary disposition for the Sywaks, later entering judgment against Goodman for $100,000 in attorney fees. On appeal, the court first agreed that summary disposition for the Sywaks was proper on the warranty-of-title claim. Because Wehner’s claims and Goodman’s affidavit led to the Sywaks being “legally dispossessed of a portion of the property that was conveyed to them,” there was “an eviction and a breach of the covenant of warranty.” But the panel reversed as to breach of contract, concluding that attorney fees were not available under the clause requiring Goodman to vacate the entirety of the property. She did not fail to vacate, and attorney fees were not “warranted under the above contract provision.” As to fraud, the court rejected Goodman’s reliance on the economic-loss doctrine, noting it applies to “transactions in goods” under the UCC, not land. It further held that the Seller Disclosure Act imposed “a separate and distinct duty” apart from the contract, and Goodman’s disclosure statement, later contradicted by her affidavit, supported the fraud claim. The panel also upheld dismissal of Goodman’s reformation counterclaim, finding no mutual mistake. “[T]he Sywaks believed that they were receiving the full 1.08 acres. Goodman did not share that belief.” Turning to evidentiary issues, the court held that the trial court did not abuse its discretion in admitting late-disclosed attorney-fee documentation and testimony. Goodman had long notice the Sywaks were pursuing fees, and exclusion would have been tantamount to striking damages. Finally, the court vacated the $100,000 attorney-fee award, holding the trial court erred by awarding fees for all claims instead of limiting them to those directly tied to breach of warranty, and by failing to follow the Smith/Pirgu framework. On remand, the trial court must recalculate the award under the proper legal standard. The panel also rejected reliance on Fagerberg, since those damages were not of the type recognized there. Affirmed in part, reversed in part, vacated in part, and remanded.