The opinion
STATE OF MICHIGAN
COURT OF APPEALS
WHITE CLOUD PUBLIC SCHOOLS, UNPUBLISHED
December 2, 2014
Plaintiff-Appellant,
v No. 315013
Newaygo Circuit Court
ORCHARD, HILTZ, & McCLIMENT, INC., LC No. 10-019538-NM
MICHAEL THOMAS DREWYOR, P.E.,
FRANCIS JOSEPH RUTZ, A.I.A., and
SKILLMAN CORPORATION,
Defendants/Cross-Plaintiffs,
and
SOBIE COMPANY, INC., MUSKEGON
QUALITY BUILDERS, INC., BUILDER’S
IRON, INC., and SUGAR CONSTRUCTION,
INC.,
Defendants/Cross-Defendants,
and
BRI-CAR ROOFING & SHEET METAL, INC.,
Defendant/Cross-Defendant-
Appellee.
Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.
PER CURIAM.
Plaintiff, White Cloud Public Schools (White Cloud) appeals as of right the trial court’s
order granting the renewed motion for summary disposition of defendant, Bri-Car Roofing &
Sheet Metal, Inc. (Bri-Car), under MCR 2.116(C)(7). The trial court granted the motion after a
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complicated procedural history, which included a jury verdict in favor of the school and the trial
court’s decision to grant White Cloud a new trial on the issue of damages. We affirm.
I. FACTS
A. BACKGROUND FACTS
In 2001, White Cloud began the process of renovating its existing middle school. The
project called for constructing a new roof pitched structure over the school’s existing flat roof to
house six air conditioning units. On October 6, 2003, White Cloud contracted with Bri-Car to
provide roofing services, materials, and supplies.
On March 25, 2004, architect Francis Rutz issued a certificate of substantial completion.
The certificate indicates that the “date of substantial completion . . . is hereby established as
February 1, 2004.” On April 14, 2009, the middle school’s roof structure collapsed.
On March 17, 2010, White Cloud sued Bri-Car and other defendants who performed
work on the school under theories of negligence, gross negligence, breach of contract, and
breach of warranties. White Cloud alleged that Bri-Car had not properly attached the roof
shingles to the roof decking because Bri-Car’s roofing nails did not penetrate the roof’s steel
support purlins. According to White Cloud, Bri-Car’s roofing nails did not penetrate the purlins
and “either bent or were rejected,” which resulted in a large number of water-permeable holes in
the roof deck. White Cloud alleged that the roof design should have included wooden “sleepers”
into which the roofing nails would solidly attach. White Cloud also alleged that the loud,
unusual sound of roofing nails striking the purlins should have alerted the contractor that the roof
was defectively designed.
B. BRI-CAR’S MOTION FOR SUMMARY DISPOSITION
On June 1, 2010, Bri-Car moved for summary disposition under MCR 2.116(C)(7),
alleging that the 6-year statute of repose barred White Cloud’s claims. On October 24, 2011,
Bri-Car filed a supplemental motion, contending that the statute of limitations also barred White
Cloud’s claims. The trial court denied Bri-Car’s motions. The trial court reasoned in part that
the architect issued the Certificate of Substantial completion on March 19, 2005. Accordingly,
the trial court concluded that White Cloud’s March 17, 2010 claim was timely.
C. TRIAL TESTIMONY
At trial, Charles Christenson, White Cloud’s facilities manager, testified that he was in
the middle school’s attic between 20 and 30 times. Christenson testified that he received
complaints that the roof leaked, but that he thought that the moisture in the attic was due to
condensation from the air conditioning units. Barry Seabrook, White Cloud’s superintendent,
testified that he occasionally saw water pooling on the flat roof near the air conditioning units.
John Ernst, a civil and structural engineer, testified that, given the spacing of the purlins,
40% of the roofing nails would have hit the purlins. Ernst found many “nail pops,” or areas
where water can penetrate through the nail tracks into the roof system, in the roof. Ernst
removed three nails from the roof, and found that the nails were buckled from hitting the purlins.
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Cory Wheeler, a Bri-Car employee, testified that he would be able to feel it if a nail in his
nail gun hit a purlin, and that there would be an echo noise. Wheeler testified that he only heard
the noise once or twice a day, and that he would pull the nail out and drive another in. David
Reed, another Bri-Car employee, testified that if his nails hit purlins, he would have moved his
nails up a little so that they would seat in the plywood decking. Wheeler testified that he would
have felt nail pops when he was checking the roof for nail pops at the end of each day. However,
on cross-examination, Wheeler testified that he may not have felt the nail pops if the nails had
only popped 1/16 or 1/32 of an inch.
Anthony Esson, an architect expert, testified that the entire roof needed to be torn off and
fixed. Esson testified that removing only the bad shingles would not correct the problems with
the roof. James Teahan, a professional engineer, estimated that roof repairs would cost
$220,561.
A jury found that Bri-Car breached its contract and was 10% negligent in shingling the
roof. The jury awarded White Cloud $45,000 in damages.
D. POST-TRIAL PROCEEDINGS
On May 7, 2012, Bri-Car appealed the jury’s verdict to this Court. On May 10, 2012,
White Cloud moved the trial court for additur or a new trial on damages. On June 4, 2012, the
trial court granted White Cloud’s motion for additur or a new trial, concluding that the jury’s
award of $45,000 was grossly inadequate to remedy the damages shown by the evidence. The
trial court awarded White Cloud a new trial on damages in the event that Bri-Car rejected
additur.
Bri-Car rejected additur. On September 11, 2012, this Court dismissed Bri-Car’s pending
appeal for lack of prosecution. On September 21, 2012, Bri-Car filed a renewed motion for
summary disposition in the trial court, arguing that the statute of limitations barred White
Cloud’s breach of contract claim. Bri-Car relied in part on Miller-Davis Co v Ahrens Constr,
Inc,1 which applied the six-year statute of limitations to a similar construction contract. Bri-Car
also contended that White Cloud failed to state a claim for negligence because Bri-Car did not
owe White Cloud any duties independent of the parties’ contract.
This Court reinstated Bri-Car’s appeal on October 31, 2012. On December 10, 2012, the
trial court granted Bri-Car’s motion for summary disposition. The trial court noted that, because
it had granted a new trial on damages, judgment had not been entered on White Cloud’s claim
and summary disposition was available. The trial court found that Miller-Davis Co applied and
MCL 600.5807(8) provided a six-year statute of limitations.
The trial court concluded that the six-year statute of limitations barred White Cloud’s
claim. The trial court reasoned in that
1
Miller-Davis Co v Ahrens Constr, Inc (Miller-Davis I), 489 Mich 355; 802 NW2d 33 (2011).
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[t]he date of substantial completion was established as February 1, 2004, and this
date appears to accurately reflect the actual date by which Bri-Car’s work was
substantially complete. The parties’ contract expressly provides that the
limitations period starts no later than the date of substantial completion. As a
result, [White Cloud] did not file its claim within the six-year limit . . . .
The trial court rejected White Cloud’s argument that Bri-Car had fraudulently concealed the
roofing problem, and it declined to toll the statute of limitations.
The trial court also granted summary disposition on White Cloud’s negligence claim.
The trial court determined that the substance of White Cloud’s claim was based on the parties’
contract. It also determined that Bri-Car did not have any duties to White Cloud outside the
parties’ contract. Accordingly, the trial court granted summary disposition because White
Cloud’s negligence claim was not based on a separate, distinct duty from its contractual claim.
On February 6, 2013, Bri-Car moved to dismiss its pending appeal as moot. This Court
dismissed Bri-Car’s appeal because “subsequent developments in the trial court . . . have
rendered it impossible for this Court to grant relief as to the issues raised in the appeal and cross
appeal which are predicated on [White Cloud] having prevailed as to liability in the trial court.”2
II. THE TRIAL COURT’S ABILITY TO GRANT SUMMARY DISPOSITION
A. STANDARD OF REVIEW
This Court reviews de novo questions of law.3 We also review de novo the interpretation
and application of court rules.4
B. LEGAL STANDARDS
A party may move to dismiss all or part of a claim in compliance with MCR 2.116.5
MCR 2.116(G)(1) provides that MCR 2.119 also applies to motions for summary disposition.
MCR 2.119(A) provides in pertinent part that “[a]n application to the court for an order in a
pending action must be by motion[.]”6 A suit “is ‘pending’ from its inception until the rendition
2
White Cloud Pub Sch v Orchard, Hiltz, & McCliment, Inc, unpublished order of the Court of
Appeals, entered March 19, 2013 (Docket No. 310207).
3
Miller-Davis Co v Ahrens Constr, Inc (Miller-Davis II), 495 Mich 161, 172; 848 NW2d 95
(2014).
4
Id.
5
MCR 2.116(B).
6
Emphasis added.
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of final judgment.”7 In a civil case, final judgment is the “first judgment or order that disposes of
all the claims and adjudicates the rights and liabilities of all the parties, including such an order
entered after reversal of an earlier final judgment or order.”8
C. APPLYING THE STANDARDS
White Cloud contends that the trial court improperly granted Bri-Car’s motion for
summary disposition because no action was pending. We disagree.
White Cloud bases its assertion on the judgment that the trial court entered on April 20,
2012, after the jury’s verdict. However, White Cloud’s argument ignores the case’s subsequent
procedural history. White Cloud moved the trial court for additur or a new trial. The trial court
granted White Cloud’s motion, vacated the first judgment, and set a new trial on damages. After
the trial court granted a new trial on damages, Bri-Car renewed its motion for summary
disposition on statute-of-limitations grounds, which it had properly raised in its first responsive
pleading.
When the trial court granted summary disposition, there was no final judgment between
the parties. Thus, the trial court vacated its original judgment. An action is pending until there is
a final judgment in the case disposing of all the parties’ claims. When the trial court granted Bri-
Car’s motion for summary disposition, the parties had active claims concerning damages.
Therefore, we conclude that the parties’ action was pending when the trial court granted Bri-
Car’s motion for summary disposition.
III. SUMMARY DISPOSITION ON THE SCHOOL’S CONTRACTUAL CLAIM
A. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary
disposition under MCR 2.116(C)(7).9 We review de novo whether a statute of limitations bars a
claim.10 This Court also reviews de novo questions of law,11 including whether it is proper to
apply a judicial holding retroactively.12
7
Grievance Administrator v Fieger, 476 Mich 231, 249; 719 NW2d 123 (2006), quoting Black’s
Law Dictionary (6th ed) (quotation marks omitted).
8
MCR 7.202(6)(a)(i).
9
Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).
10
Miller-Davis I, 489 Mich at 361; Scherer v Hellstrom, 270 Mich App 458, 461; 716 NW2d
307 (2006).
11
Miller-Davis II, 495 Mich at 172.
12
Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 570; 703
NW2d 115 (2005).
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B. LEGAL STANDARDS
A defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff’s
claims are barred because of immunity granted by law.13 The moving party may support its
motion with affidavits, depositions, admissions, or other documentary evidence that would be
admissible at trial.14 We consider the contents of the plaintiff’s complaint to be true unless the
documentary evidence contradicts them.15 If reasonable minds could not differ on the legal
effects of the facts, whether the statute of limitations bars a plaintiff’s claim is a question of
law.16
C. RETROACTIVE APPLICATION OF MILLER-DAVIS I
White Cloud contends that the trial court erred when it applied Miller-Davis I to its claim
because courts should only apply Miller-Davis I prospectively. We disagree.
Courts give judicial decisions full retroactive effect unless doing so would cause an
injustice.17 If a holding overrules settled precedent, courts may properly limit it to prospective
application.18 The threshold question is whether the judicial decision clearly established a new
principle of law.19
In Miller-Davis I, the Michigan Supreme Court addressed whether MCL 600.5839(1)’s
statute of repose or MCL 600.5807(8)’s statute of limitations applied to a plaintiff’s breach of
construction contract claim.20 The Court noted that MCL 600.5807 set forth the limitations
period for suits seeking damages for breach of contract, but it did not refer to MCL 600.5805 or
MCL 600.5839.21 MCL 600.5839 concerns “injuries to person or property” and generally
applies to tort actions.22
The Court noted that its prior decision in Huhtala v Travelers Ins Co23 reinforced its
conclusion.24 In Huhtala, the Michigan Supreme Court held that MCL 600.5805 applies to tort
13
Odom, 482 Mich at 466.
14
Id.; MCR 2.116(G)(5), (6).
15
Odom, 482 Mich at 466.
16
Moll v Abbott Laboratories, 444 Mich 1, 5-6; 506 NW2d 816 (1993).
17
Pohutski v City of Allen Park, 465 Mich 675, 695-696; 641 NW2d 219 (2002).
18
Id. at 696.
19
Id.
20
Miller-Davis I, 489 Mich at 361.
21
Id. at 363.
22
Id.
23
Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977).
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actions and MCL 600.5807 applies to breach of contract actions.25 Huhtala “did not specifically
address the language of MCL 600.5839(1).”26 But the United States Court of Appeals for the
Sixth Circuit applied Huhtala to conclude that MCL 600.5839(1) does not apply to breach of
contract claims involving construction contracts.27
The Miller-Davis I Court also expressly overruled prior decisions of this Court that relied
on dicta Michigan Millers,28 because Michigan Millers erroneously expanded the scope of MCL
600.5839(1).29 The Michigan Supreme Court overruled Michigan Millers and cases relying on it
because they were inconsistent with the statutory language.30
We reject White Cloud’s assertion that Miller-Davis I overruled precedent established in
1992. As clearly explained by the Michigan Supreme Court in Miller-Davis I, the statement in
Mich Millers was dicta.31 Dictum is not binding precedent.32 At best, the precedent on which
White Cloud relies was established in 1998, when this court in Travelers Ins Co v Guardian
Alarm Co of Michigan relied on the language in Michigan Millers to hold that MCL
600.5839(1)’s statute of repose applied to a plaintiff’s breach of contract claim.33 However, this
precedent was not “settled” because a federal court, applying Michigan law, had previously
reached an opposite conclusion. More importantly, Michigan Millers was contrary to precedent
established by the Michigan Supreme Court, making Miller-Davis I a reversion to previous
precedent, not an establishment of new precedent.
We conclude that Miller-Davis I did not clearly establish a new principle of law.
Accordingly, the trial court properly applied Miller-Davis I retroactively.
24
Miller-Davis I, 489 Mich at 364.
25
Huhtala, 401 Mich at 124-127. See also Miller-Davis I, 489 Mich at 364 (discussing
Huhtala’s holding).
26
Miller-Davis I, 489 Mich at 365.
27
Id.; see Garden City Osteopathic Hosp v HBE Corp, 55 F2d 1126 (CA 6, 1995).
28
Mich Millers Mut Ins Co v West Detroit Bldg Co, Inc, 196 Mich App 367; 494 NW2d 1
(1992).
29
Miller-Davis I, 489 Mich at 367.
30
Id. at 368.
31
See id. at 367 n 31.
32
McNeil v Charlevoix Co, 275 Mich App 686, 702; 741 NW2d 27 (2007).
33
See Travelers Ins Co v Guardian Alarm Co of Mich, 231 Mich App 473, 481-482; 586 NW2d
760 (1998).
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D. MILLER-DAVIS I’S APPLICATION TO WHITE CLOUD’S COMPLAINT
White Cloud contends that the trial court erred by (1) applying MCL 600.5807(8) to its
complaint and (2) engaging in fact-finding to support its decision to grant summary disposition.
We disagree.
A party must bring a breach of contract claim within six years from when the claim
accrues.34 A claim accrues “when the promisor fails to perform under the contract.”35 Separate
breaches of a contract accrue at separate times.36
The parties may contractually alter a limitations period.37 The goal of contractual
interpretation is to honor the parties’ intent.38 The language of the contract determines the
parties’ intent.39 If contractual language is unambiguous, we must interpret and enforce the
contract as written.40
Here, the parties’ contract provides that the date of substantial completion is the latest
point at which the statute of limitations begins to run:
As to acts or failures to act occurring prior to the relevant date of Substantial
Completion, any applicable statute of limitations shall commence to run and any
alleged cause of action shall be deemed to have accrued not later than such date of
Substantial Completion.
The parties’ contract defines substantial completion as
the stage in the progress of the Work when the Work or the designated portion
thereof is sufficiently complete in accordance with the Contract Documents . . . .
The parties’ contract also provides that the certificate of substantial completion establishes the
date of substantial completion.
When the work or designated portion thereof is substantially complete, the
Architect will prepare a Certificate of Substantial Completion, which shall
establish the date of Substantial Completion, . . . .
34
MCL 600.5807(8); Miller-Davis I, 489 Mich at 358, 371.
35
Miller-Davis II, 495 Mich at 180 (quotation marks and citation omitted).
36
Id. at 184
37
Rory v Continental Ins Co, 473 Mich 457, 471; 703 NW2d 23 (2005).
38
Miller-Davis II, 495 Mich at 184
39
Id.
40
Id.
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White Cloud asserts that the trial court should have determined that the statute of
limitations began to accrue on March 17, 2004, the date when the architect signed the certificate
of substantial completion. We disagree because White Cloud’s contention is contrary to the
plain language of the parties’ contract. Courts will not undermine the parties’ freedom to
contract by altering unambiguous contractual language.41 As established above, the parties’
contract provides that the architect’s certificate establishes the date of substantial completion; the
contract does not provide that the date of signing the certificate establishes substantial
completion.
Here, the parties’ contract provides that the architect’s certificate of substantial
completion establishes the date of substantial completion. The certificate of substantial
completion states that Bri-Car’s work was substantially complete on February 1, 2004. The
parties’ contract provides that the statute of limitations begins to accrue not later than the date of
substantial completion. Accordingly, pursuant to the plain language of the contract, the statute
of limitations commenced to run not later than February 1, 2004.
White Cloud filed suit on March 17, 2010. The six-year limitations period began to
accrue on February 1, 2004, at the latest. White Cloud filed suit more than six years after the
limitations period began to accrue. Therefore, we conclude that the trial court properly
determined that White Cloud did not timely file its complaint.
Further, the trial court did not need to make factual findings to reach this conclusion
because reasonable minds could not differ concerning the legal effect of the facts. The trial court
only needed to review the parties’ contract and the documentary evidence to conclude that the
limitations period began to accrue more than six years before White Cloud filed its complaint.
Therefore, we also reject White Cloud’s contention that the trial court engaged in impermissible
fact-finding when deciding Bri-Car’s motion for summary disposition.
E. TOLLING FOR FRAUDULENT CONCEALMENT
White Cloud contends that the trial court erred when it rejected White Cloud’s claim that
Bri-Car’s fraudulent concealment of the roof defects tolled the statute of limitations. We
disagree.
MCL 600.5855 provides that the statute of limitations is tolled if “a person who is or may
be liable for a claim fraudulently conceals the existence of the claim . . . .” When this section
applies,
the action may be commenced at any time within 2 years after the person who is
entitled to bring the action discovers, or should have discovered, the existence of
41
See DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 372-373; 817 NW2d 504 (2012).
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the claim or the identity of the person who is liable for the claim, although the
action would otherwise be barred by the period of limitations.[42]
Here, White Cloud contended that Bri-Car knowingly failed to report obvious design and
construction errors and told the architect that their work was substantially complete, despite
knowing about the defects. The trial court considered that trial testimony showed that White
Cloud’s personnel were in the attic at least twice a year. The trial court reasoned that “[t]his
activity would appear to create a reasonable opportunity to discover evidence of a roof leaking
like a sieve for five years before it partially collapsed in 2009.” The trial court thus concluded
that White Cloud could not show that Bri-Car fraudulently concealed the roofing problem.
To the extent that the trial court relied on the parties’ trial testimony and weighed the
facts when deciding Bri-Car’s motion, we agree the trial court erred. The trial court may not find
facts when ruling on a motion for summary disposition.43 However, we conclude that this error
was harmless.
This Court will not vacate or modify a judgment unless failing to do so would be
inconsistent with substantial justice.44 To plead fraudulent concealment, a plaintiff must plead
affirmative actions on the part of the defendant that “show that the defendant engaged in some
arrangement or contrivance of an affirmative character designed to prevent subsequent
discovery.”45 Absent a fiduciary relationship between the parties, a defendant’s mere silence
does not constitute fraudulent concealment.46
White Cloud contended in their complaint that Bri-Car failed to report obvious
construction defects and signed the certificate of substantial completion despite knowing that the
roof was defectively designed. We conclude that Bri-Car’s alleged actions do not amount to
affirmative action to conceal the roof’s defective condition. There is no evidence that White
Cloud and Bri-Car had a fiduciary relationship, such that Bri-Car had an affirmative duty to
disclose. At best, Bri-Car’s actions amount to silence when Bri-Car had a contractual obligation
to speak up.
Accordingly, we conclude that the trial court properly concluded that fraudulent
concealment did not toll the statute of limitations in this case, though the trial court did so for the
wrong reason.
42
MCL 600.5855.
43
In re Peterson Estate, 193 Mich App 257, 261; 483 NW2d 624 (1993).
44
MCR 2.613(A). See also Chastain v Gen Motors Corp (On Remand), 254 Mich App 576,
586; 657 NW2d 804 (2002).
45
Doe v Roman Catholic Archbishop of Archdiocese of Detroit, 264 Mich App 632, 642; 692
NW2d 398 (2004) (quotation marks and citation omitted).
46
Brownell v Garber, 199 Mich App 519, 527; 503 NW2d 81 (1993); Doe, 264 Mich App at
645.
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IV. SUMMARY DISPOSITION ON THE SCHOOL’S NEGLIGENCE CLAIM
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition.47
A party may move for summary disposition under MCR 2.116(C)(8) if the opposing party has
failed to state a claim on which relief can be granted. “A motion under MCR 2.116(C)(8) may
be granted only where the claims alleged are so clearly unenforceable as a matter of law that no
factual development could possibly justify recovery.”48 This Court reviews de novo questions of
law, including whether a defendant owes a plaintiff a duty.49
B. LEGAL STANDARDS
To prove negligence, a plaintiff must show that (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached that duty, (3) the plaintiff was injured, and (4) the
defendant’s breach caused the plaintiff’s injury.50 A defendant is not liable to the plaintiff if the
defendant does not owe the plaintiff a duty of care.51
A plaintiff may only sue a defendant in tort if the plaintiff alleges a duty that is separate
and distinct from a duty that the parties’ contractual relationship imposes.52 Such duties can
arise from statues, pre-existing tort principles, the parties’ special relationship, or the common-
law duty to use due care.53 For instance, a contractor has a separate duty “not to unreasonably
endanger the well-being of employees of either subcontractors or inspectors, or anyone else
lawfully on the site of the project.”54
C. APPLYING THE STANDARDS
White Cloud contends that the trial court erred when it dismissed its negligence claim
because Bri-Car owed White Cloud separate duties of skill and care. We disagree.
White Cloud relies on a contractor’s separate duty to use reasonable skill and care while
performing his or her work.55 Here, White Cloud contended that Bri-Car had a duty to “conduct
47
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
48
Wilson v King, 298 Mich App 378, 381; 827 NW2d 203 (2012).
49
Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011).
50
Henry v Dow Chemical Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005).
51
Beaty v Hertzberg & Golden, PC, 456 Mich 247, 262; 571 NW2d 716 (1997).
52
Id.; Fultz v Union-Commerce Assoc, 470 Mich 460, 467; 683 NW2d 587 (2004).
53
Loweke, 489 Mich at 170.
54
Id. at 169-170 (quotation marks and citations omitted).
55
Id. at 169; see Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967).
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[its] contractually assigned scope of the Project with reasonable care” and that Bri-Car breached
its duties to White Cloud by (1) “[d]riving shingled nails directly over underlying steel support
structures, causing numerous nail pops and resultant roof leaks,” and (2) [f]raudulently claiming
that its work was complete with full knowledge of the construction and/or design defects.”
White Cloud did not allege that Bri-Car had independent, common-law duties of
reasonable care that Bri-Car breached. Rather, in its negligence count, White Cloud contended
that Bri-Car’s duty was to use reasonable care when completing the contract. Accordingly, the
trial court did not err when it determined that White Cloud did not allege that Bri-Car had a duty
separate and distinct from the contract.
V. CONCLUSION
We conclude that the trial court did not err when it applied Miller-Davis I to White
Cloud’s case and granted summary disposition to Bri-Car on the basis that White Cloud did not
file its suit within the six-year limitations period of MCL 600.5807(8). We also conclude that
the trial court did not err when it granted summary disposition on White Cloud’s negligence
claims. Because we affirm, we do not reach White Cloud’s issue regarding attorney fees, which
is premised on this Court reversing the trial court’s grant of summary disposition.
We affirm.
/s/ Douglas B. Shapiro
/s/ William C. Whitbeck
/s/ Cynthia Diane Stephens
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