The opinion
Belfance, Judge,
concurring in judgment only.
{¶ 15} I concur in the judgment of this case. The Fabers filed a complaint for breach of contract. The Fabers made no mention of negligence or any elements of negligence in their complaint. The trial court concluded that Fodor’s assignment of the contract to the Fabers failed to create privity between themselves and Chaffman. The Fabers do not challenge that finding on appeal and thus, this court is bound by it. “As a general rule, if a plaintiff brings an action sounding in tort and bases his claim upon a theory of duty owed by a defendant as a result of contractual relations, he must be a party or privy to the contract in order to prevail.” Vistein v. Keeney (1990), 71 Ohio App.3d 92, 106 , 593 N.E.2d 52 . As the Fabers’ only claim was a claim for breach of contract, and based upon the unchallenged conclusion of the trial court, the parties were not in privity, the Fabers could not succeed on their breach-of-contract claim. Therefore, the trial court did not err in dismissing their complaint.
{¶ 16} It is thus unnecessary to decide whether the holding of McMillan v. Brune-Harpenau-Torbeck Builders, Inc. (1983), 8 Ohio St.3d 3 , 8 OBR 73, 455 N.E.2d 1276 , is applicable to the facts of the instant ease, as the Fabers do not state a claim for negligence in their complaint.
{¶ 17} The Supreme Court of Ohio held in McMillan that “[p]rivity of contract is not a necessary element of an action in negligence brought by a vendee of real property against the builder-vendor.” (Emphasis added.) Id. at syllabus. The Fabers argue on appeal that the trial court erred in not extending the holding of McMillan to include the facts of their case. However, as the Fabers did not allege in their complaint that Chaffman or his company was negligent, McMillan is inapplicable on its face.