                          STATE OF MICHIGAN

                            COURT OF APPEALS



ANTHONY CLIFFORD GATES,                                              UNPUBLISHED
                                                                     January 15, 2015
               Plaintiff-Appellant,

v                                                                    No. 317939
                                                                     Calhoun Circuit Court
MICHAEL BRUBAKER and BRUBAKER &                                      LC No. 2013-001043-NZ
COMPANY,

               Defendants-Appellees.


Before: TALBOT, C.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

        In this suit for negligence and fraud, plaintiff Anthony Clifford Gates appeals by right the
trial court’s order dismissing his claims against defendants Michael Brubaker and Brubaker &
Company. Because we conclude there were no errors warranting relief, we affirm.

       According to Gates, he rented a house from Brubaker along with DonnaKay Owusu-
Agyei in 2003. A copy of the lease shows that Owusu-Agyei was the sole lessee. Gates,
however, alleged that he negotiated the lease and that Brubaker gave him a set of keys to the
house. In 2007, a jury convicted Gates of home invasion and related offenses involving the
home.

        In October 2009, the lawyer representing Gates in his post-conviction proceedings wrote
to Brubaker and requested a copy of the lease for the home at issue. Brubaker wrote back and
stated that Gates “was never on . . . the lease.” Gates also wrote to Brubaker requesting a copy
of the lease, but Brubaker did not provide him with a copy. Gates then sued Brubaker for,
among other things, negligence and fraud. According to Gates, Brubaker’s refusal to provide the
lease “deprived [him] of a fair opportunity to properly present his issues to the appellate courts.”

       Brubaker moved for summary disposition under MCR 2.116(C)(5), (C)(8), and (C)(10)
and the trial court granted the motion.

        Gates first argues the trial court erred when it granted Brubaker’s motion for summary
disposition without explaining its rationale. This Court reviews de novo a trial court’s decision
on a motion for summary disposition. Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429,
443; 761 NW2d 846 (2008). The trial court, after stating that it had “reviewed the matter at


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some length,” granted Brubaker’s motion “for the reasons set forth in [his] brief and argument.”
This was sufficient explanation of the court’s reasoning and allows for meaningful review.

        Gates also argues that his claim for negligence was not barred by the applicable statute of
limitations. This Court reviews de novo whether a claim is barred by the applicable statute of
limitations. Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637
(1997). Although Brubaker argued that Gates’ claims were time-barred, he did not specifically
move for summary disposition under MCR 2.116(C)(7). Nevertheless, when the record permits
meaningful review, this Court will consider whether the trial court properly dismissed a claim,
even if it did so under the wrong subsection. Stewart v Isbell, 155 Mich App 65, 74; 399 NW2d
440 (1986). “In general, the period of limitations runs from the time the claim accrues.” Adams
v Adams, 276 Mich App 704, 719; 742 NW2d 399 (2007). A claim accrues when the alleged
wrong is committed. Boyle v Gen Motors Corp, 468 Mich 226, 231; 661 NW2d 557 (2003).

        Gates, citing DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 54;
631 NW2d 59 (2001), maintains that he had six years to sue. That case involved a suit brought
under the builders’ trust fund act, MCL 570.151 et seq., which is “a penal statute that does not
expressly provide a civil cause of action.” Id. at 48. However, the Court observed, “our
Supreme Court has long recognized a civil cause of action for violation of provisions of the act.”
Id. The Court then determined “that a civil cause of action arising from a statutory violation is
subject to the six-year limitation period found in [MCL 600.5813], if the statute itself does not
provide a limitation period.” Id. at 56. Because his negligence claim is apparently premised on a
statutory violation, Gates reasons that the six-year limitation period likewise applies.

        Gates, however, has provided no authority that there exists a civil claim for a violation of
MCL 750.483a(5)(a). In general, criminal statutes that prescribe penalties for violations do not
create private causes of action. Lowell R Fisher, DO v WA Foote Mem Hosp, 261 Mich App
727, 730; 683 NW2d 248 (2004). Moreover, Gates did not in fact plead under MCL
750.483a(5)(a), but instead pleaded a claim for negligence arising from the violation of the
statute. Thus, the proper period of limitations is the three-year period provided under MCL
600.5805(10).

       In the present case, Gates alleged that Brubaker wrongfully refused to provide the lease
to him after he requested it during his post-conviction proceedings, which occurred no later than
November 2009. Assuming that Brubaker’s refusal could constitute negligence, Gates had to sue
him within three years of that date. Lemmerman v Fealk, 449 Mich 56, 63-64; 534 NW2d 695
(1995); MCL 600.5805(10). Gates, however, did not sue until April 2013. Therefore, his
negligence claim was untimely.

       Gates similarly argues that his fraud claims were not untimely. “In actions for fraud or
misrepresentation the applicable limitation period is six years.” Blue Cross & Blue Shield of
Mich v Folkema, 174 Mich App 476, 481; 436 NW2d 670 (1988). We agree that Gates sued
within the six-year period, but conclude that the trial court nevertheless properly dismissed the
fraud claims. As Brubaker argued before the trial court, Gates has not shown that there is a
genuine issue of material fact that his representations were fraudulent.



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       Gates alleged claims of fraudulent misrepresentation and silent fraud against Brubaker.
This Court has described the relationship between these two causes of actions as follows:

               Common-law fraud or fraudulent misrepresentation entails a defendant
       making a false representation of material fact with the intention that the plaintiff
       would rely on it, the defendant either knowing at the time that the representation
       was false or making it with reckless disregard for its accuracy, and the plaintiff
       actually relying on the representation and suffering damage as a result. Silent
       fraud is essentially the same except that it is based on a defendant suppressing a
       material fact that he or she was legally obligated to disclose, rather than making
       an affirmative misrepresentation. [Alfieri v Bertorelli, 295 Mich App 189, 193;
       813 NW2d 772 (2012) (citation omitted).]

In this case, there is no evidence that Brubaker made a false representation. During his post-
conviction proceedings, Gates’ lawyer sent Brubaker a letter requesting a copy of the lease in
issue. Brubaker replied in a letter that Gates “was never on . . . the lease for the property.” This
was not a false statement. Gates did not sign the lease and his name did not otherwise appear on
the lease. While Gates may have lived at the home, he was not a lessee.

       Moreover, Gates presented no evidence that he relied on any misrepresentation or the
suppression of any material fact. Instead, in response to Brubaker’s letter, Gates wrote to
Brubaker in November 2009 and stated his belief that he was in fact on the lease. The letter is
evidence that Gates did not rely on Brubaker’s representation.

        Gates also argues that summary disposition was inappropriate for procedural reasons. He
argues that the trial court did not provide him an opportunity to amend his complaint after it
granted defendant summary disposition. MCR 2.116(I)(5) provides that where summary
disposition is granted under subsections (C)(8), (9), or (10), “the court shall give the parties an
opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before
the court shows that amendment would not be justified.” Here, Gates did not request an
opportunity to amend his complaint and the trial court was not required to sua sponte offer him
the opportunity. Kloian v Schwartz, 272 Mich App 232, 242; 725 NW2d 671 (2006).

        Additionally, Gates argues that Brubaker improperly filed a reply brief, which the trial
court may have relied on. Gates notes that MCR 2.116(G)(1) only refers to the motion and a
response; it does not refer to a reply to a response. Although the court rule does not specifically
refer to reply briefs, it also does not prohibit them. And Gates has otherwise failed to cite any
authority that prohibits a trial court from considering a reply brief.

        Gates contends that the trial court likely relied on false statements found in Brubaker’s
pleadings. He argues that certain assertions in Brubaker’s pleadings and affidavit are lies, and
“[t]his matter must be remanded to the trial Court to place on the record whether the
aforementioned untruths were considered in the trial Court’s decision to grant the Defendant[’s]
motion for summary disposition.” In particular, Gates takes issue with Brubaker’s assertions that
he did not control who stayed at the residence, did not know who stayed there, and had no
involvement in the criminal case. To the extent that these claims were disputed, it would have
been inappropriate for the trial court to resolve the disputes. Skinner v Square D Co, 445 Mich

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153, 161; 516 NW2d 475 (1994). However, these assertions did not involve the bases for
dismissing Gates’ claims; rather, this case was resolvable on issues of law and undisputed fact.

       Gates also argues that he had a landlord-tenant relationship with Brubaker. However,
Gates did not allege or present any evidence that he paid any consideration, which is an essential
element of a landlord-tenant relationship. See Grant v Detroit Ass’n of Women’s Clubs, 443
Mich 596, 605 n 6; 505 NW2d 254 (1993).

        He also argues that summary disposition was premature. “Generally, a motion for
summary disposition is premature if granted before discovery on a disputed issue is complete.
However, summary disposition may nevertheless be appropriate if further discovery does not
stand a reasonable chance of uncovering factual support for the opposing party’s position.”
Oliver v Smith, 269 Mich App 560, 567; 715 NW2d 314 (2006) (internal quotation marks and
citation omitted). Gates argues that discovery had to continue to collect evidence that he did in
fact live at the house. But evidence that Gates actually lived at the house was not pertinent to his
claims. Gates alleged in his complaint and in an affidavit that he had lived at the residence. This
was sufficient to create a question of fact. Furthermore, although Brubaker did not admit that
Gates lived at the residence, he did not contest it either. Gates also appended documents to his
response that showed he reported that address as his residence. Again, further documentation to
the same effect was unnecessary. Thus, because Gates has not identified any issues on which
further discovery was needed, the trial court did not err in declining to permit further discovery.
Id.

        Finally, Gates asserts that he did not discover Brubaker’s fraud until May 2011, when he
“was made aware of a statement laughingly made by Owusu-Agyei to an associate of hers
stating, ‘It was lucky for her . . . that your dad’s lawyer did not get the lease because your dad
and your brother were on the lease as occupants.’ ” Gates contends that MCL 600.5855 tolled
the applicable period of limitations. Thus, he argues, because he filed his complaint in April
2013, his claims were timely brought.

        Gates’ allegation that he did not discover that he was on the lease until 2011 is
disingenuous. According to the letter he wrote in November 2009, he knew, or thought he knew,
that he was on the lease. He is not entitled to contradict his prior conduct in order to survive a
motion for summary disposition. Bergen v Baker, 264 Mich App 376, 389; 691 NW2d 770
(2004). Consequently, his argument that the statute of limitations should be tolled is without
merit.

       There were no errors warranting relief.

       Affirmed.

                                                             /s/ Michael J. Talbot
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Michael J. Kelly




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