486 N.W.2d 60
Docket No. 129110.Michigan Court of Appeals.
Decided January 27, 1992; approved for publication April 22, 1992, at 9:05 A.M.
Rock Borgelt, P.C. (by Robert C. Hall,) for the plaintiff.
Goldschmid Kozma, P.C. (by Robert M. Goldschmid,) for Richard J. Secula and Lawrence Latka.
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Before: HOOD, P.J., and SAWYER and FITZGERALD, JJ.
PER CURIAM.
Richard J. Secula and Lawrence Latka appeal as of right an order granting their motion for summary disposition and denying their motion for sanctions. Defendants argue that, because plaintiff’s misrepresentation claim was devoid of any legal merit, sanctions are appropriate pursuant to MCR 2.114(F), 2.625(A)(2), and MCL 600.2591(3)(a); MSA 27A.2591(3)(a). We disagree and affirm.
Contrary to defendants’ interpretation, plaintiff’s misrepresentation claim was based upon a document that provided for assumption of the defendants’ land contract and was included with the closing documents of the real estate transaction between plaintiff and defendants. Defendants’ agents, Mitchell Breest and Russell Raftary, assured plaintiff that defendants approved of the assumption in spite of the cash mortgage provision contained within the original offer and acceptance. Defendants received the closing package before closing and gave no indication to either plaintiff or the brokers that they did not approve of the assumption and would not attend the closing.
Plaintiff originally filed claims of breach of contract and misrepresentation. However, following discovery, plaintiff’s counsel agreed that the breach of contract claim was precluded because of the statute of frauds and agreed to dismiss the claim. Although defendants filed motions for summary disposition of both claims, the only real issue before the trial court was the misrepresentation claim.
Defendants assert that the trial court erred in denying their motion for costs and attorney fees and that they are entitled to costs and attorney
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fees pursuant to MCR 2.114(F) and 2.625(A)(2) because plaintiff’s claim was devoid of any legal basis and therefore frivolous. A trial court’s finding that a plaintiff’s claim is not frivolous is governed by the clearly erroneous standard. DeWald v Isola, 180 Mich. App. 129, 134; 446 N.W.2d 620 (1989).
In this case, although plaintiff’s claim failed, sufficient facts were pleaded and sufficient evidence was presented to allow us to conclude that plaintiff could reasonably have believed that he had legal authority upon which to base a claim of fraudulent misrepresentation based upon the land contract assumption provision contained within the closing documents. Se State-William Partnership v Gale, 169 Mich. App. 170, 178; 425 N.W.2d 756 (1988). Consequently, the trial court did not err in refusing to impose sanctions.
Affirmed.
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