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CONTRACTS 8: Plaintiff claims under the Michigan Consumer Protection Act that towing compacity was misrepresented.

In 2011, plaintiffs, began their search for a vehicle that could tow the used fifth-wheel trailer they had recently purchased. Plaintiffs visited four dealerships gathering information. Ultimately, they settled on a TRUCK, and plaintiffs were present at defendant dealership when they special-ordered the TRUCK on April 24, 2012.

On June 12, 2012, plaintiffs signed the Purchase Agreement and purchased the new 2012 TRUCK from defendant. The TRUCK did not come with a kingpin hitch to accommodate the fifth-wheel trailer, so plaintiffs had the hitch installed by a third-party vendor.

When they towed the fifth-wheel trailer with the TRUCK, plaintiffs noticed a vibration during acceleration. Plaintiffs reported the vibration to defendant, and defendant performed two separate warranty repairs on the TRUCK in an attempt to solve the vibration problem. Eventually, when plaintiffs brought the TRUCK into defendant dealership with the fifthwheel trailer attached, defendant’s mechanic informed him that the TRUCK was overloaded. A test drive confirmed the issue.

Plaintiffs then took the TRUCK and the fifth-wheel trailer to CAT Scales for the purpose of determining the amount of weight bearing on the rear axle. The weight on the rear axle with the fifth-wheel trailer attached was 5,760 pounds. After learning the weights, plaintiffs took the TRUCK and the fifth-wheel trailer to a different Ford dealership. There, a technician explained that the Gross Axle Weight Rating (GAWR), the upper weight limit the rear axle could withstand without being overloaded, was listed on the manufacturer sticker inside the truck door as 4,050 pounds. Therefore, the rear axle of the TRUCK when towing the fifth wheel was bearing 1,710 pounds more than the GAWR and was clearly overloaded.

Plaintiff commenced action against defendant seeking damages since the TRUCK cannot safely tow the fifth-wheel trailer.  Plaintiff alleged fraud and innocent misrepresentation.

Michigan law recognizes several common-law doctrines, all loosely gathered under the heading of fraud, that may entitle a party to a legal or equitable remedy if a contract is obtained as a result of fraud or misrepresentation.

To establish fraudulent misrepresentation, the plaintiff must show: (1) [t]hat defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.

Innocent misrepresentation is also recognized if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective.

In this case, plaintiff’s claims of fraudulent misrepresentation and innocent misrepresentation required proof of a false representation. Plaintiffs alleged that the seller’s acts or omissions regarding verbal representations about the TRUCK’s towing capacity and specifically its ability to tow their family’s fifth-wheel trailer induced them to enter into the Purchase Agreement.

The Purchase Agreement, executed by plaintiffs, includes a paragraph entitled “Buyer’s Representations,” which states: I have read the material printed on the back and I understand that the front and back of this order comprises the entire agreement affecting this purchase/lease and no other agreement or understanding of any nature concerning same has been made or entered into, or will be recognized.

The record shows that plaintiff executed the Purchase Agreement, and therefore she was aware that the sales contract itself comprised the entire agreement between the parties, and further that it provided no warranties about the towing capacity of the TRUCK.

Thus, any testimony by plaintiff or her husband regarding statements made before plaintiff executed the Purchase Agreement did not amount to proof of a false representation.

Plaintiffs also made claims under the Michigan Consumer Protection Act (MCPA).

The record evidence shows that defendant did not communicate anything other than the specific towing information included in the Towing Selector Sheet to plaintiffs. Plaintiffs admitted that they relied only on what the documents said when determining the towing capacity of the TRUCK. Plaintiff did not present evidence that the information contained in the Towing Selector Sheet was false, deceptive, or misleading. Instead, the record reveals that plaintiffs admitted that they did not understand the information contained on the face of the Towing Selector Sheet pertaining directly to calculating the GAWR when towing a fifth-wheel trailer.

It appears from the record testimony that any confusion about the towing capacity of the TRUCK was not caused by defendant, but rather by plaintiff’s failure to understand the information contained in the Towing Selector Sheet. The trial court properly granted summary disposition in favor of defendant on this issue.

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FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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