                          STATE OF MICHIGAN

                           COURT OF APPEALS



THEODORE L. HARPHAM, II and CHERI                                   UNPUBLISHED
LEPPEK-HARPHAM,                                                     October 13, 2015

               Plaintiffs-Appellees,

v                                                                   No. 321970
                                                                    Arenac Circuit Court
BIG MOOSE HOME INSPECTIONS, INC. and                                LC No. 14-012529-CZ
GARY ROBINSON,

               Defendants-Appellants.


Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

        Defendants appeal by leave granted1 the trial court’s order denying summary disposition
to defendants on plaintiffs’ breach of contract claim.2 We reverse and remand to the trial court
for the entry of an order granting summary disposition to defendants on plaintiffs’ breach of
contract claim.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       According to defendants, defendant Big Moose Home Inspections, Inc. (“Big Moose”)
entered into a written contract with plaintiffs on March 12, 2010 for the inspection of a home
located in Au Gres, Michigan. By contrast, plaintiffs contend that they entered into an oral


1
  Harpham v Big Moose Home Inspections, Inc, unpublished order of the Court of Appeals,
entered October 2, 2014 (Docket No. 321970).
2
  The trial court’s order does not expressly reflect a ruling on defendant’s motion for summary
disposition with respect to plaintiffs’ breach of contract claim. However, it is apparent from the
summary disposition hearing transcript that the trial court effectively denied that motion in that
respect. The order also dismissed, by stipulation, plaintiffs’ claims of negligence, gross
negligence, and violation of the Michigan Consumer Protection Act (“MCPA”), MCL 445.901 et
seq. (albeit while misidentifying the latter claim) pursuant to MCR 2.116(C)(8) (failure to state a
claim). Plaintiffs’ have not cross-appealed the trial court’s dismissal of those claims.


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contract with Big Moose on March 15, 2010 for the home-inspection services. Defendant Gary
Robinson, acting as an agent of Big Moose, inspected and prepared a report regarding the Au
Gres home on March 15, 2010. According to plaintiffs, they purchased the home, in reliance on
Robinson’s report, on May 25, 2010 for $345,000. Plaintiffs alleged that nearly three years later,
when they began moving into the home, they became aware of “cracks in the interior drywall
and unleveled floors in various areas.” According to plaintiffs, “significant structural defects
that existed at the time of the inspection . . . made the home unsafe for habitation.” Had they
known about these defects, plaintiffs maintain, they would have never purchased the home.

       On February 20, 2014, plaintiffs filed suit against defendants. Defendants moved for
summary disposition pursuant to MCR 2.116(C)(7) and (C)(8), arguing in part that plaintiffs’
claims were barred by paragraph 10 of the parties’ written agreement. Paragraph 10 states as
follows:

               Client understands and agrees that any claim for failure to accurately
       report the visually discernible conditions at the subject property, shall be made in
       writing and reported to the inspector within ten business days of discovery. Client
       further agrees that, with exception of emergency conditions, Client or Client’s
       agents, employees or independent contractors will make NO alterations,
       modifications or repairs to the claimed discrepancy prior to a re-inspection by the
       Inspector. Client understands and agrees that any failure to notify the Inspector as
       stated above shall constitute a waiver of any and all claims for said failure to
       accurately report the condition in question. Furthermore, any legal action must
       be brought within one (1) years [sic] from the date of the inspection or will be
       deemed waived and forever barred. [Emphasis added.]

Defendants argued that, under the Michigan Uniform Electronic Transactions Act (UETA),
MCL 450.831 et seq., plaintiff Theodore Harpham electronically signed the written agreement
and therefore plaintiffs’ claims were barred by the limitations provision of the agreement.

                                 II. STANDARD OF REVIEW

        This Court reviews de novo a trial court’s decision on a motion for summary disposition,
Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 241-242; 859 NW2d 238 (2014),
questions regarding whether a claim is barred by a limitation period and regarding the legal
effect of a contract clause, Collins v Comerica Bank, 468 Mich 628, 631; 664 NW2d 713 (2003),
and issues involving the interpretation of statutory language, LaFontaine Saline, Inc v Chrysler
Group, LLC, 496 Mich 26, 34; 852 NW2d 78 (2014).

                                        III. ANALYSIS

        The trial court erred in failing to grant defendants summary disposition on plaintiffs’
breach of contract claim pursuant to MCR 2.116(C)(7). MCR 2.116(C)(7) provides in relevant
part that summary disposition may be granted if a claim is barred by an applicable limitations
period. Timko v Oakwood Custom Coating Inc, 244 Mich App 234, 238; 625 NW2d 101 (2001).



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       A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions,
       admissions, or other documentary evidence. If such material is submitted, it must
       be considered. MCR 2.116(G)(5). Moreover, the substance or content of the
       supporting proofs must be admissible in evidence. . . . Unlike a motion under
       subsection (C)(10), a movant under MCR 2.116(C)(7) is not required to file
       supportive material, and the opposing party need not reply with supportive
       material. The contents of the complaint are accepted as true unless contradicted
       by documentation submitted by the movant. [Maiden v Rozwood, 461 Mich 109,
       119; 597 NW2d 817, 823 (1999).]

        Our Supreme Court has held that parties to a contract may agree to a shortened
limitations period for suits arising from the breach of that contract. See Rory v Continental Ins
Co, 473 Mich 457, 470; 703 NW2d 23 (2005). However, in this case plaintiffs argue that the
agreement with Big Moose was an oral one that contained no limitations period, and that they
never agreed to the terms contained in the written inspection agreement. We disagree that
plaintiffs have carried their burden of proof to avoid summary disposition on this issue.

        “A valid contract requires mutual asset on all essential terms.” Eerdmans v Maki, 226
Mich App 360, 364; 573 NW2d 329 (1997). Mutual assent may be evidenced by an electronic
signature if the parties agree to conduct a transaction by electronic means. MCL 450.835(2);
MCL 450.837. An electronic signature is “an electronic sound, symbol, or process attached to or
logically associated with a record and executed or adopted by a person with the intent to sign a
record.” MCL 450.832(h).

                 (1) An electronic record or electronic signature is attributable to a person
       if it is the act of the person. The act of the person may be shown in any manner,
       including a showing of the efficacy of any security procedure applied to
       determine the person to which the electronic record or electronic signature was
       attributable.

              (2) The effect of an electronic record or electronic signature attributed to a
       person under subsection (1) is determined from the context and surrounding
       circumstances at the time of its creation, execution, or adoption, including any
       agreements of the parties, and otherwise as provided by law. [MCL 450.839.]

        Defendants supported their motion for summary disposition with an affidavit of Russell
Buchanan, the president of HomeGauge, the company that provides Big Moose with its home
inspection services software. In that affidavit, Buchanan explained how the software’s electronic
signature function operates. He described the process as follows:

              a. The HomeGauge user sends an email to a potential client;

               b. The email contains a link to HomeGauge’s website, to a home
       inspections services company’s potential client;

               c. When the potential client receives the email and clicks on the link, it
       takes the potential client to HomeGauge’s website;


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              d. Once the potential client gets to the HomeGauge website, he or she is
       provided an electronic copy of the home inspection services contract;

              e. The potential client is asked to click a button indicating that he or she
       has read the home inspections contract and agrees to be bound to its terms of the
       agreement;

              f. Clicking this button creates an e-signature on the home inspection
       services contract.

Buchanan averred that with respect to the contracted inspection of plaintiffs’ property, “all of the
above-stated steps . . . were accomplished in their usual and customary fashion.” Buchanan’s
affidavit further states that he reviewed the history of all transactions between plaintiffs and Big
Moose and determined that (1) an inspection agreement was uploaded to HomeGauge’s website
on March 12, 2010, (2) that an email was generated and sent to plaintiff Theodore Harpham that
same day containing a link to the inspection agreement, (3) that Theodore Harpham clicked the
link twice later that day, (4) that Theodore Harpham e-signed the agreement according to the
procedures described above, and (5) that HomeGauge software generated and stored a record of
that signature. Further, a document submitted with the affidavit by defendant indicates that
notifications were sent and the inspection agreement was agreed to by the HomeGauge user
profile “TedHarpham921,” which was associated with plaintiff Cheri Leppek-Harpham’s e-mail
address, on March 12, 2010.3

        Buchanan’s affidavit and supporting documentation constitute sufficient evidence to
support defendants’ motion for summary disposition with respect to the breach of contract claim.
Quinto, 451 Mich at 362. The process outlined by Buchanan meets the definition of an
electronic signature under the UETA. Clicking the button imposed on the inspection agreement
evidences the intent to sign the contract. MCL 450.832(h).

        In response to this evidence, plaintiffs only provided their own affidavits, in which they
denied having ever “read or been provided” with, “agreed, orally or in writing” to, or signed the
inspection agreement or having ever otherwise agreed to limit Big Moose’s liability in any way.
However, mere conclusory statements regarding the authenticity of a signature are insufficient to
avoid summary disposition; instead, a party must produce evidence supporting such a contention.
See Aetna Cas & Sur Co v Ralph Wilson Plastics Co, 202 Mich App 540, 548; 509 NW2d 520
(1993). Under the facts of this case, plaintiffs have failed to provide any admissible evidence to
sufficiently counter defendant’s evidence that they electronically signed the agreement.

       The plain language of that agreement unequivocally prevents plaintiffs from bringing
claims that arise more than one year after the agreement was executed, March 12, 2010.



3
 The written contract reflects the following language directly beneath the blank “Signature of
Client” line: “One signature binds all.” Plaintiffs do not argue that a signature by one plaintiff
would not bind both.


                                                -4-
Therefore, their breach of contract claim, which was filed on February 20, 2014, is barred by the
one-year contractual limitations period.

        Reversed and remanded for the entry of an order granting summary disposition to
defendants pursuant to MCR 2.116(C)(7) on plaintiffs’ breach of contract claim. We do not
retain jurisdiction.



                                                           /s/ Mark T. Boonstra
                                                           /s/ Henry William Saad
                                                           /s/ Joel P. Hoekstra




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