              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                             COURT OF APPEALS



ATTICUS PARSIFAL MOAK                                                UNPUBLISHED
                                                                     January 23, 2020
                 Plaintiff-Appellant,

v                                                                    No. 346375
                                                                     Washtenaw Circuit Court
STEPHEN B. BROWNELL, KIMBERLY M.                                     LC No. 18-000320-NO
BROWNELL, and MARCELLA WATSON

                 Defendants-Appellees.


Before: BOONSTRA, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order granting summary disposition in favor of
defendants Stephen and Kimberly Brownell1 and Marcella Watson. We affirm.

                     I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Beginning in May 2010, plaintiff entered into consecutive yearly residential leases for an
apartment in Ann Arbor, Michigan. Defendant Stephen Brownell was the lessor. The lease
agreement contained the following relevant provisions:

         Paragraph 6. QUIET ENJOYMENT. Lessor covenants that on paying the rent
         and performing the covenants herein contained, Lessee shall peacefully and
         quietly have, hold, and enjoy the demised premises for the agreed term.

         Paragraph 18. UTILITIES. Lessee shall be responsible for arranging for and
         paying all utility services required on the premises, except that heat, electric,
         water, cable tv shall be provided by lessor.




1
    Because they share a surname, we will refer to Stephen and Kimberly by their first names.



                                                 -1-
        In 2018, plaintiff filed a complaint against defendants, claiming that all three defendants
had breached the lease agreement2 by destroying the quiet and peaceful enjoyment of the leased
premises (Count I), by failing to provide “habitable heat and habitable water utilities” as required
by the lease (Count II), and by failing to provide cable television as required by the lease (Count
III). Plaintiff also asserted a claim for intentional infliction of emotional distress (IIED) against
all defendants (Count IV). According to the complaint, plaintiff is disabled and prone to
debilitating migraine headaches as the result of a “closed-head injury” in or around 2009.

        Plaintiff’s complaint set forth numerous allegations that defendants had conspired to
subject plaintiff to “noise attacks” that were designed to, and did, trigger migraine headaches in
plaintiff. The complaint alleged four such “noise attacks” in 2017, alleging that defendants
caused neighborhood children to yell loudly and play musical instruments in a manner intended
to aggravate plaintiff’s condition. Plaintiff also alleged that defendants had engaged in a pattern
of disrupting the heating and water temperature control in his apartment, causing the heat “to
soar into extremely high temperatures, in excess of 97 degrees” and the water temperature to be
“scaldingly hot,” between 150 degrees and 160 degrees. Defendants denied these allegations.

        After filing his complaint, plaintiff served an initial set of interrogatories. Defendants
timely responded. However, defendants objected and refused to answer certain interrogatories
that asked for the names and addresses of any children involved in the alleged noise attacks, on
the grounds that “the request for names of children is neither relevant nor reasonably calculated
to lead to admissible evidence.” Plaintiff filed a motion to compel defendants to answer, arguing
that defendants’ objections were without merit because the children were fact-witnesses to the
events alleged in plaintiff’s complaint. Shortly thereafter, plaintiff filed a motion for leave to file
an amended complaint, stating that plaintiff had “recently discovered additional facts” supporting
a claim for civil assault and battery and seeking to add that additional claim. At oral argument,
plaintiff’s counsel argued that he had recently discovered a fact witness, an 11-year-old child
who allegedly could corroborate plaintiff’s allegations that Kimberly had orchestrated children to
perform “noise attacks” on plaintiff. Defendants’ counsel argued that the identities of the
children were irrelevant, that they were designed only to harass defendants, and that plaintiff had
waited too long to seek leave to amend. The trial court denied the motion for leave to file an
amended complaint after concluding that there was no justification for plaintiff having waited
nearly six months to seek the amendment. The trial court took under advisement plaintiff’s
motion to compel discovery pending defendants’ upcoming motion for summary disposition.

        Shortly thereafter, defendants filed a motion for summary disposition under
MCR 2.116(C)(8) and MCR 2.116(C)(10). Defendants argued that any breach of contract claims
against Kimberly or Watson must be dismissed because neither was a party to the lease
agreement. Defendants also argued that there was “no allegation (or evidence) that Stephen did
anything to violate” the covenant of quiet enjoyment in the lease but, rather, “[a]ll of plaintiff’s
allegations of a breach of quiet enjoyment are against persons who are not parties to the lease.”



2
 Kimberly is Stephen’s daughter, and she and Watson lived in a neighboring apartment; they
were not parties to the lease agreement.


                                                 -2-
Defendants argued that plaintiff had offered no evidence that Stephen had refused to correct any
problems with the heat, that plaintiff was unable to use the apartment, or that plaintiff had
suffered any damages. Defendants noted that when plaintiff called the police to report the
allegedly “scalding hot water,” the responding police officer found nothing wrong, as shown by
his police report, and that no other tenants complained despite the fact that the entire building
only had a single water heater. Defendants also argued that plaintiff had never requested that
cable TV be provided, despite having lived in the apartment for over six years, and that plaintiff
had in fact declined an offer by Kimberly to provide cable TV, stating that he did not even own a
television.

        Regarding plaintiff’s claim of IIED, defendant argued that there was no allegation that
Stephen was present during or participated in any alleged “noise attacks.” Further, defendants
argued that “taken at face value, [p]laintiff does not establish that children practicing musical
instruments, or playing outside in the fall, or water that is too hot, or an uncomfortably warm
apartment or lack of cable TV is extreme and outrageous” conduct under Michigan law. After
hearing argument, the trial court agreed and granted summary disposition in favor of defendants
“[f]or the reasons stated by defendants.”

       This appeal followed.

                            II. MOTION FOR LEAVE TO AMEND

        Plaintiff argues that the trial court erred by denying his motion for leave to amend his
complaint to add a claim for civil assault and battery. We disagree. We review for an abuse of
discretion a trial court’s decision on a motion to amend. Decker v Rochowiak, 287 Mich App
666, 681-682; 791 NW2d 507 (2010).

                 Under MCR 2.118(A)(2), “a party may amend a pleading only by leave of
       the court . . . . Leave shall be freely given when justice so requires.” Trial courts
       have discretion to grant or deny motions for leave to amend, but leave “should
       ordinarily be denied only for particularized reasons such as undue delay, bad faith
       or dilatory motive, repeated failures to cure by amendments previously allowed,
       or futility.” In re Kostin Estate, 278 Mich App [47, 51; 748 NW2d 583 (2008)].
       In regard to undue delay, “[d]elay, alone, does not warrant denial of a motion to
       amend. However, a court may deny a motion to amend if the delay was in bad
       faith or if the opposing party suffered actual prejudice as a result.” Weymers v
       Khera, 454 Mich 639, 659; 563 NW2d 647 (1997) (citation omitted). Prejudice
       “exists if the amendment would prevent the opposing party from receiving a fair
       trial, if for example, the opposing party would not be able to properly contest the
       matter raised in the amendment because important witnesses have died or
       necessary evidence has been destroyed or lost.” Id. at 659. [Decker, 287 Mich
       App at 681-682.]

        In this case, the trial court denied plaintiff’s proposed amendment after concluding that
plaintiff had not demonstrated why he had delayed six months in seeking to amend his complaint
to add a count for civil assault and battery. We agree. Plaintiff’s counsel argued that he had
only recently found a fact witness who allegedly would testify that Kimberly had orchestrated a

                                               -3-
noise attack. However, plaintiff did not, and does not on appeal, explain why he was unable to
add a claim for civil assault and battery until he located this witness. Plaintiff’s original
complaint already alleged that Kimberly had orchestrated children into performing “noise
attacks” on plaintiff; plaintiff’s addition of a new claim was based on a new legal theory of
liability, not new facts. While our Supreme Court has held that “[d]elay, alone, does not warrant
denial of a motion to amend,” see Weymers, 454 Mich at 659, undue delay that results in
prejudice to the opposing party warrants denial of a motion to amend, especially when a new
claim or theory of recovery “on the basis of the same set of facts” as the original complaint is
added without reasonable notice that the moving party would rely on the new claim or theory at
trial. Id. at 659-660. We conclude that the trial court did not abuse its discretion by denying
plaintiff’s motion to amend his complaint. Decker, 287 Mich App at 681-682; further, we note
that the record shows no support for plaintiff’s argument that the trial court had imposed a
bright-line rule concerning amendments after six months. Rather, the trial court merely noted the
length of the delay as a factor in making its ruling.

                        III. MOTION FOR SUMMARY DISPOSITION

        Plaintiff also argues that the trial court erred by granting summary disposition in favor of
defendants. We disagree.3 This Court reviews de novo a trial court’s ruling on a summary
disposition motion. Zaher v Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013).

       A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim.
       Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
       genuine issue regarding any material fact and the moving party is entitled to
       judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10),
       this Court considers the pleadings, admissions, affidavits, and other relevant
       documentary evidence of record in the light most favorable to the nonmoving
       party to determine whether any genuine issue of material fact exists to warrant a
       trial. A genuine issue of material fact exists when the record, giving the benefit of
       reasonable doubt to the opposing party, leaves open an issue upon which
       reasonable minds might differ. [Zaher, 300 Mich App at 139-140 (quotation
       marks and citations omitted).]

We review de novo the interpretation of contract language. See Allstate Ins Co v McCarn (After
Remand), 471 Mich 283, 288; 683 NW2d 656 (2004).

                            A. BREACH OF CONTRACT CLAIMS




3
 The trial court did not specify in its order whether its grant of summary disposition was under
MCR 2.116(C)(8) (failure to state a claim for which relief may be granted) or (C)(10) (no
genuine issue of material fact). However, at the motion hearing, it stated that it found that “no
genuine issue of fact” existed regarding plaintiff’s claims; we therefore presume the trial court
granted summary disposition under MCR 2.116(C)(10).


                                                -4-
        The trial court correctly dismissed Counts I-III against Kimberly and Watson because
neither was a party to the residential lease agreement allegedly breached and plaintiff neither
pled nor proved that they were acting as agents of Stephen. MCR 2.116(C)(8), (10), see also
Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008).

        The trial court also properly dismissed Counts I-III against Stephen. These counts
alleged that Stephen, as lessor, had (1) breached Paragraph 6, the lease’s covenant of quiet
enjoyment; (2) breached Paragraph 18, the covenant in the lease providing that the lessor would
provide “habitable heat and habitable water utilities;” and (3) breached Paragraph 18 by failing
to provide cable TV under the lease. A party asserting a breach of contract must establish by a
preponderance of the evidence that (1) there was a contract (2) which the other party breached
(3) thereby resulting in damages to the party claiming breach. Miller-Davis Co v Ahrens Const,
Inc, 495 Mich 161, 178; 848 NW2d 95 (2014).

        Leaseholders have a right to beneficial enjoyment of the leased property “for the purpose
for which the premises are rented, at least to the extent disclosed to the lessor at the making of
the lease.” Grinnell Bros v Asiuliewicz, 241 Mich 186, 188; 216 NW 388 (1927). A breach of
the covenant of quiet enjoyment occurs when a landlord “obstructs, interferes with, or takes
away from the tenant in a substantial degree the beneficial use of the leasehold.” Slatterly v
Madiol, 257 Mich App 242, 258; 668 NW2d 154 (2003). Here, plaintiff never demonstrated that
Stephen substantially interfered with his household interest. Plaintiff alleged that he had been
scalded by the water in his apartment on one occasion; however, the responding police officer
found nothing wrong with the water temperature. Further, plaintiff never even pleaded that
Stephen had caused the water temperature to be set to an unreasonable temperature, or had failed
to remedy the issue when asked—the complaint alleges that Kimberly caused or chose to allow
the water temperature to remain scalding, and alleges that Kimberly refused to remedy this
condition. And although plaintiff asserted in the factual allegations of his complaint that
“defendants” as a group had at some point caused the temperature in his apartment to rise to
uncomfortable levels, plaintiff never pleaded or demonstrated that this substantially interfered
with his household interest; further, on appeal, plaintiff focuses primarily on the water
temperature issue and makes no specific reference to the heat issue. We conclude that the trial
court did not err by dismissing Count I of the complaint against Stephen on the ground that
plaintiff had not demonstrated that Stephen had breached the lease’s covenant of quiet
enjoyment. Zaher, 300 Mich App at 139-140.

        Regarding Counts II and III, the language of Paragraph 18 makes it clear that it obligates
the lessor to pay for the provision of certain utilities; plaintiff’s complaints about the temperature
of the heating and water do not constitute a breach of this particular provision. Allstate Ins Co,
471 Mich at 288. Moreover, plaintiff never alleged or showed any damages regarding the failure
to provide cable television, or provided evidence to counter defendant’s assertion that he had
declined cable TV when offered it. We conclude that the trial court did not err by dismissing
these counts against Stephen. Zaher, 300 Mich App at 139-140.

                                          B. IIED CLAIM

       Plaintiff also argues that the trial court erred by dismissing his IIED claim against all
defendants. We disagree. In granting summary disposition to defendants, the trial court stated:

                                                 -5-
               Viewing the allegations and evidence in the light most favorable to the
       plaintiff, the Court finds no genuine issue of fact that the defendant’s conduct,
       even in light of the plaintiff’s expressed vulnerabilities rises to the—rises to the
       level of extreme and outrageous conduct. Plaintiff admits to a preexisting
       disability and preexisting special vulnerability to suffer “debilitating severe
       migraine and cluster headaches” related to exposure to “loud auditory shocks,
       disruptions, bright lights, certain foods, fumes and extreme temperatures.”

              Assuming that defendants knew of plaintiff’s “special vulnerability” and
       with malicious and vicious intent caused or provoked elementary age children to
       engage in acts of extremely loud screaming or playing instruments for the purpose
       of annoying or disturbing plaintiff and assuming that numerous children of
       elementary school age did engage in intentional acts of screaming in the laundry
       room, playing instruments in the yard and other described acts as—such as
       peering into plaintiff’s windows and making faces, the Court finds that reasonable
       minds would agree that those acts do not rise to the level of extreme outrageous
       conduct.

         “Michigan courts have recognized that the common-law tort of intentional infliction of
emotional distress vindicates a person's right to be free from serious, intentional and unprivileged
invasions of mental and emotional tranquility.” Cotton v Banks, 310 Mich App 104, 129; 872
NW2d 1 (2015). “To establish a prima facie claim of intentional infliction of emotional distress,
the plaintiff must present evidence of (1) the defendant’s extreme and outrageous conduct, (2)
the defendant’s intent or recklessness, (3) causation, and (4) the severe emotional distress of the
plaintiff.” Lucas v Awaad, 299 Mich App 345, 359; 830 NW2d 141 (2013) (quotation marks and
citation omitted). “Liability for the intentional infliction of emotional distress has been found
only where the conduct complained of has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.” Id. (quotation marks and citation omitted).
“Accordingly, liability does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id. (quotation marks, citation, and alteration omitted). “The
test to determine whether a person’s conduct was extreme and outrageous is whether recitation of
the facts of the case to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, ‘Outrageous!’ ” Lewis v LeGrow, 258 Mich App 175,
196; 670 NW2d 675 (2003) (quotation marks and citation omitted).

        We agree with the trial court that, viewed in the light most favorable to plaintiff, the
allegations that defendants allowed or encouraged children to make noise or play musical
instruments, even with the hope (or at least, without concern) that this would trigger plaintiff’s
migraine condition, fail as a matter of law to reach the level of extreme or reckless conduct
required to support an IIED claim. Although plaintiff argues at length that defendants were
aware of his sensitivity, evidence of defendants’ knowledge would primarily go to defendants’
intent or recklessness, not to the outrageousness of the conduct itself. Although some
jurisdictions have held that “[c]onduct which might otherwise be considered merely rude or




                                                -6-
abusive may be deemed outrageous when the defendant knows that the plaintiff is particularly
susceptible to emotional distress,” see, e.g., Roth v Wiese, 271 Neb 750, 762; 716 NW2d 419
(Nebraska 2006),4 Michigan has not applied such a rule. Moreover, even if plaintiff’s particular
susceptibility is considered, plaintiff’s allegations that, in an apartment setting, he was subjected
to the loud noises of children playing or yelling in public areas, simply do not rise to the level of
IIED, even assuming that the children were acting as agents of defendants. Cases from other
jurisdictions concerning the use of noise to inflict emotional distress support our conclusion.
See, e.g., Larijani v Georgetown Univ, 791 A2d 41, 43-45 (D.C. Ct App, 2002) (holding that a
question of fact existed regarding the outrageousness of the defendants’ conduct when the
plaintiff alleged that they had caused noisemakers to be placed in plaintiff’s workspace that
created a “loud, piercing, and unbearable” noise “every minute of every day” for nine months).

        We also disagree with plaintiff’s argument that the grant of summary disposition was
premature. For the purposes of deciding defendant’s motion, the trial court had assumed that
plaintiff’s allegations that defendants maliciously caused these “noise attacks,” and that the
attacks were “extremely loud,” were true. We therefore conclude that further discovery would
not have stood “ a fair chance of uncovering factual support” for plaintiff’s position. See Marilyn
Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769
NW2d 2334 (2009).5

       Affirmed.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Jonathan Tukel
                                                              /s/ Anica Letica




4
 The law of other jurisdiction is, of course, not binding on this Court, but may be considered as
persuasive. See People v Jamieson, 436 Mich 61, 86–87; 461 NW2d 884 (1990).
5
  For the same reason, we also conclude that the trial court did not err by effectively denying
plaintiff’s motion to compel defendants to answer his interrogatories. Even if defendant’s
answers had revealed children willing to testify to defendants’ role in these “noise attacks,” it
would not have affected the trial court’s ruling on defendants’ summary disposition motion. The
trial court did not err by sparing defendants, and the children, undue burden or expense. See
Arabo v Mich Gaming Control Bd, 310 Mich App 370, 398; 872 NW2d 223 (2015).


                                                -7-
