May it please this Honorable Court, Attorney Patrick A. Maizy (P79503), on behalf of Plaintiff _______, an individual, hereby replies to the Defendants’ Response and Concurrence in the Realty Defendants’ Motion for Summary Disposition. The Defendants, in part, request dismissal for the same reasons recited in the Realty Defendants’ Brief in Support, and Plaintiff hereby requests denial of said request for the same reasons recited in Plaintiff's Reply to the Realty Defendants’ Motion for Summary Disposition, dated July 14, 2022. Additionally, the Defendants request dismissal for other reasons outlined in their brief, to which Plaintiff requests denial for the reasons outlined in the attached Brief.

MAIZY LAW PLLC

Patrick A. Maizy (P79503)

Attorney for Plaintiff

135 N Old Woodward Ave., Ste. 200

Birmingham, MI 48009

ph.: (248) 388-8363

fax: (248) 928-2271

e.: patrick@maizylaw.com

Dated: July 14, 2022

PLAINTIFF’S BRIEF IN SUPPORT OF PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE AND CONCURRENCE IN REALTY DEFENDANTS’ MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116(C)(10)

The Defendants indicate that Plaintiff’s claim for intentional infliction of emotion distress fails as a matter of law, in part, because a failure to repair property quickly enough cannot be extreme and outrageous behavior. Plaintiff disagrees.

Issue: Evidence of Extreme and Outrageous Behavior

At issue is the question of what type of action can constitute extreme and outrageous behavior. In Ledsinger v. Burmeister, 114 Mich.App. 12, 17-21, 318 N.W.2d 558 (1982), the question was addressed. The Michigan Court of Appeals found that racial epithets in the course of throwing plaintiff out defendant's retail store could in fact be considered to be extreme and outrageous conduct under the circumstances. Similarly, in Rosenberg v. Rosenberg Bros Special Account, 134 Mich.App. 342, 350-353, 351 N.W.2d 563 (1984), the Michigan Court of Appeals found that where a defendant exerted his position over a widowed plaintiff to compel her into selling her interests in her husband's estate, that conduct could be sufficiently outrageous to state a claim. The court in Margita v. Diamond Mortg. Corp., 406 N.W.2d 268, 159 Mich.App. 181 (Mich. App. 1987), citing Ledsinger, id. at 19, held that the extreme and outrageous character of the conduct may arise from the position of the actor or a relationship to the distressed party. The court went on to include an example by which extreme and outrageous conduct may occur through an abuse of a relationship which gives a defendant power to affect a plaintiff's interest. See also Warren v. June's Mobile Home Village & Sales, Inc, 66 Mich.App. 386, 391, 239 N.W.2d 380 (1976). Whether a defendant's acts were sufficiently outrageous depends upon the context in which the defendant committed them. Rosenberg, supra, p. 353, 351 N.W.2d 563. In Margita, for example, Defendant sent letters and made phone calls to Plaintiff assessing late charges on a debt that didn’t actually exist. Margita at 182. The court found that continuous unnecessary harassment might easily be viewed as extreme and outrageous conduct under the circumstances. Id. at 190. It was a question for the trier of fact. Id. In the case at bar, where Defendant was forced to endure 85 estimate and repair visits, roughly half of which occurred during the Defendants’ period of ownership, with countless individuals entering and exiting her home during a pandemic, including but not limited to estimates and repairs to necessary appliances like toilets, stove, and washer/dryer, it could easily be found that Defendants’ actions constitute extreme and outrageous behavior.

Second Issue: Existence of a Contract

As indicated by Plaintiff in its Reply to the Realty Defendants’ Motion for Summary Disposition, the court in Clark v. Dalman, 379 Mich. 251 (Mich. 1967) (overturned on other grounds) citing Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893 held that actionable negligence presupposes the existence of a legal relationship between the parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his action as to not unreasonably endanger the person or property of others. Clark at 261, emphasis added.

WHEREFORE, Plaintiff hereby requests this Honorable Court dismiss and/or deny the Defendants’ Motion for Summary Disposition based on the reasons articulated in Plaintiff’s Brief in Support of Plaintiff’s Reply to Defendants’ Motion for Summary Disposition.