Windemere Park of Troy Operations LLC v. Ma Engineering Inc

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
WINDEMERE PARK OF TROY OPERATIONS, UNPUBLISHED
LLC, May 7, 2020
Plaintiff-Appellant,
v No. 346246; 346960
Oakland Circuit Court
MA ENGINEERING, INC. and LC No. 2017-162538-CB
SALIM M. SESSINE,
Defendants-Appellees.
Before: M. J. KELLY, P.J., and K. F. KELLY and SERVITTO, JJ.
PER CURIAM.
In Docket Number 346246, plaintiff, Windemere Park of Troy Operations LLC, appeals as
of right the trial court’s order granting summary disposition in favor of defendants, MA
Engineering, Inc, (MAE), and Salim M. Sessine. In Docket Number 346960, plaintiff appeals as
of right the trial court’s order for sanctions.1 We affirm.
I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Plaintiff is the owner and operator of Windemere Park of Troy, a senior assisted-living
community. Construction for Windemere Park began in 2014. On January 20, 2014, MAE
provided an engineering services proposal to Legacy Construction Group, LLC (Legacy), the
general contractor for the Windmere Park project, and on April 23, 2014, the two companies
entered an agreement for MAE to provide electrical and mechanical engineering designs for the
project. Defendants were to provide plans for the project that “would lay out the electrical and
mechanical schematics of the building, including HVAC ducts, the performance specification for
1
This Court consolidated the appeals in Windemere Park of Troy Operations LLC v MAE
Engineering, Inc, unpublished order of the Court of Appeals issued February 1, 2019 (Docket
No.’s 346246 and 346960).
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the fire alarm system, plumbing and building drainage systems, interior and exterior lighting
systems, and main and branch electrical power distribution.” According to plaintiff, these plans
were “critical to the timely completion of the project” because the plans “ensure that each
component of the overall system” is compatible with the other components. When the steel was
placed into the frame of the building, however, according to plaintiff it “became apparent that the
ducts designed” by defendant “did not leave enough ceiling height clearance for other lines to be
run through that space . . . .” Plaintiff alleged that defendants’ faulty designs necessitated a great
deal of additional cost and work, and caused a five-month delay on the completion of the project.
Thus, on December 12, 2017, plaintiff filed its complaint against defendants alleging breach of
contract under a third-party beneficiary theory, professional malpractice, and negligent
misrepresentation.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10).
Defendants asserted that plaintiff sought damages on theories completely sounding in professional
malpractice, regardless of how plaintiff labeled the claims. Defendants claimed that the complaint
against them must be dismissed because all of the asserted claims are time-barred by the 2-year
malpractice statute of limitations, because defendants owed no duties to plaintiff, and because
there is no genuine issue of fact that plaintiff is, at most, an incidental beneficiary of the general
contractor-engineer agreement and defendants made no misrepresentations to plaintiff. The trial
court found that all of the allegations in plaintiff’s complaint “sound[ed] in malpractice no matter
the label” attached by plaintiff, and that plaintiff’s claims were governed by the two-year
limitations period applicable to malpractice claims. The trial court further concluded that
plaintiff’s complaint established that plaintiff had discovered (or should have discovered) the
existence of any claim before defendants’ last day on the project in October 2015 and that
plaintiff’s complaint filed in December 2017 was therefore barred by the applicable two-year
limitations period. The trial court thus granted defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(7) and dismissed plaintiff’s complaint. The trial court denied
plaintiff’s later motion for reconsideration.
Defendants thereafter filed a motion for sanctions against plaintiff and its attorney.
Defendants argued that plaintiff’s malpractice claims were frivolous because plaintiff’s own
allegations proved that the claims were time-barred in light of plaintiff discovering its claims as
early as 2014. Additionally, defendants argued that plaintiff and its attorney should be sanctioned
because the allegations were not well-grounded in fact and were devoid of arguable legal merit.
Plaintiff, naturally, disagreed with defendants’ arguments and further argued that
defendants’ claim for attorney fees was unreasonable and excessive, and requested an evidentiary
hearing concerning the requested fees. The trial court held an evidentiary hearing with respect to
the reasonableness of the requested sanctions, after which it entered an order awarding defendants’
sanctions in the amount of $16,118 in attorney fees and $1,301.66 in costs, for a total of
$17,420.16. These appeals followed.
II. SUMMARY DISPOSITION
On appeal, plaintiff first argues that the trial court abused its discretion when it
characterized plaintiff’s breach of contract and negligent misrepresentation claims as malpractice
claims. We disagree.
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“ ‘Decisions concerning the meaning and scope of pleadings fall within the sound
discretion of the trial court.’ ” Lockridge v Oakwood Hosp, 285 Mich. App. 678, 692; 777 NW2d
511 (2009), quoting Dacon v Transue, 441 Mich. 315, 328; 490 NW2d 369 (1992). A trial court
abuses its discretion, when its decision falls outside the range of principled outcomes. Id.
In a pleading, a party is allowed to “state as many separate claims or defenses as the party
has, regardless of consistency and whether they are based on legal or equitable grounds or on
both.” MCR 2.111(A)(2)(b). Courts must, however, look beyond the procedural labels in a
complaint and determine the exact nature of a plaintiff’s claims. MacDonald v Barbarotto, 161
Mich. App. 542, 547; 411 NW2d 747 (1987). A court is not bound by a party’s choice of label for
a cause of action “because to do so ‘would exalt form over substance.’ ” Norris v Lincoln Park
Police Officers, 292 Mich. App. 574, 582; 808 NW2d 578 (2011), quoting Johnston v City of
Livonia, 177 Mich. App. 200, 208; 441 NW2d 41 (1989). A party cannot avoid dismissal of a cause
of action through artful pleading; the gravamen of a plaintiff’s actions is determined by evaluating
the entire claim. Maiden v Rozwood, 461 Mich. 109, 135; 597 NW2d 817 (1999). Thus, the
limitations period applicable to a claim depends on the true nature of the claim. Adams v Adams
(On Reconsideration ), 276 Mich. App. 704, 710; 742 NW2d 399 (2007). “In determining whether
an action is of a type subject to a particular statute of limitations, we look at the basis of the
plaintiff’s allegations. The type of interest allegedly harmed is the focal point in determining
which limitation period controls.” Aldred v O’Hara-Bruce, 184 Mich. App. 488, 490; 458 NW2d
671 (1990).
Plaintiff’s complaint finds its genesis in the contract between Legacy and defendants.
Relevant to the instant matter, when a contract does not necessitate more than what is required by
a professional relationship, the action sounds in malpractice, not contract, and the two-year
limitations period for malpractice claims applies. Brownell v Garber, 199 Mich. App. 519, 525-
526; 503 NW2d 81 (1993). In essence, if, as a whole, the claim indicates that the defendant failed
to exercise the requisite skill, it is a malpractice claim. Aldred, 184 Mich. App. at 490; Brownell,
199 Mich. App. at 524. However, if the claim indicates that the professional failed to perform some
sort of special agreement, then it is a contract claim. Aldred, 184 Mich. App. at 490; Brownell, 199
Mich. App. at 524. A claim of inadequate and defective engineering services, without an allegation
of a breach of some special agreement, sounds in malpractice and is governed by the limitations
period of a malpractice claim, even if the plaintiff couches its complaint in terms of a breach of
contract. See Aldred, 184 Mich. App. at 490-491.
Here, the allegations in plaintiff’s breach of contract claim indicate that defendants failed
to exercise the requisite skill in creating and providing “adequate and sufficient designs” which
resulted in project delays. Additionally, the common allegations that plaintiff incorporated into its
breach of contract claim focused on defendants’ allegedly defective designs and the effect they
had on the project. Similarly, with respect to its negligent misrepresentation claim, plaintiff
alleged that defendants owed it a duty to “provide accurate information and to exercise reasonable
care or competence in communicating accurate information” regarding the designs that defendants
contracted with Legacy to create. Further, plaintiff alleged that defendants “provided false
information” about the designs, i.e., the designs were inadequate and defective. In its motion for
reconsideration, plaintiff argued that defendants’ design plans were the misrepresentation upon
which it and others relied when planning the construction project. Plaintiff also incorporated the
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common allegations, the breach of contract claim, and its professional malpractice claim into its
negligent misrepresentation claim.
In all three of plaintiff’s stated causes of action, plaintiff alleged that defendants failed to
provide adequate and sufficient engineering designs for the construction project. All three claims
indicate that the defendant failed to exercise the requisite skill to fulfill its contractual duties. They
are thus, as a whole, a single malpractice claim. Aldred, 184 Mich. App. at 490.
Plaintiff next argues that even if its claims were malpractice claims, the trial court erred in
granting summary disposition on the basis of the statute of limitations because defendants were
obligated to perform under the contract until all permits were closed out and the certificate of
occupancy was issued. We disagree.
This Court reviews de novo a trial court’s ruling on a motion for summary disposition.
Galea v FCA US LLC, 323 Mich. App. 360, 368; 917 NW2d 694 (2018). “Summary disposition
may be granted under MCR 2.116(C)(7) when a claim is barred by the statute of limitations.”
Dillard v Schlussel, 308 Mich. App. 429, 442; 865 NW2d 648 (2014). A party may support a
motion under MCR 2.116(C)(7) with admissible evidence such as affidavits, depositions,
admissions, or other documentary evidence, but is not required to do so. Maiden, 461 Mich. at
119. However, “[t]he contents of the complaint are accepted as true unless contradicted by
documentation submitted by the movant.” Id. (citation omitted). In the absence of disputed facts,
whether a cause of action is barred by the applicable statute of limitations is a question of law.
Joliet v Pitoniak, 475 Mich. 30, 35; 715 NW2d 60 (2006).
The statutory limitation period applicable to malpractice claims is two years from the
accrual date. MCL 600.5805(8). “A professional malpractice claim accrues when the professional
stops serving the plaintiff in a professional capacity on the matter giving rise to the claim.” Nortley
v Hurst, 321 Mich. App. 566, 570; 908 NW2d 919 (2017), citing MCL 600.5838(1). “A plaintiff
must bring a malpractice action within two years of accrual of the claim, MCL 600.5805(1) and
[(8)], or within six months of when he or she discovered or should have discovered the claim,
MCL 600.5838(2), whichever is later.” Nortley, 321 Mich. App. at 570. The discovery rule
generally applies when there is a verifiable basis for the plaintiff’s inability to bring the claim
within the statutory period. Nelson v Ho, 222 Mich. App. 74, 86; 564 NW2d 482 (1997).
In its complaint, plaintiff recognized that it was aware of the design defects as early as
sometime between March 2014 and October 2014. Plaintiff alleged that the final design plans
were provided in March 2015, and that these defective designs resulted in project delays. Plaintiff
has offered no explanation why it did not recognize a connection between the allegedly defective
designs and the delays to its project, and this Court can discern none. Given plaintiff’s allegations
that it knew defendants’ allegedly defective designs were causing project delays between March
2014 and October 2014, plaintiff cannot rely on the six-month discovery rule. Thus, the two-year
limitations period applicable to malpractice claims applies and plaintiff must have brought its
claim within two years of the date that the claim accrued.
The uncontroverted evidence establishes that plaintiff’s claim accrued on October 30,
2015. Defendants submitted evidence that the last day on which anyone associated with MAE
provided labor, material, or any other professional service related to the project was October 30,
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2015, “in relation to an emergency lighting calculation done as part of the approval process” for
the certificate of occupancy. Although plaintiff contends that the claim would not have accrued
until it became apparent that the Windemere project would not open for business by the scheduled
completion date, plaintiff did not provide any evidence sufficient to create a genuine issue of
material fact regarding when its claim accrued.
In its appeal brief, plaintiff refers to an affidavit detailing plaintiff’s “understanding about
the terminal date of the relationship between” plaintiff and defendants for supporting its belief
“that [defendants were] contractually obligated to answer questions associated with [their] plans .
. . until the certificate of occupancy was received.” Although plaintiff does not cite to any affidavit
with specificity, plaintiff could be referring to the affidavit of Lorenzo Cavaliere, manager of
Windemere Park of Troy Operations, LLC, which was attached to its motion for reconsideration.
In the affidavit, Cavaliere stated that although he could not “locate documentation of specific
services performed after October 30, 2015,” the contract with MAE “required that they remain
available to respond to questions from trade subcontractors and the municipality authority.”
Notably, however, the trial court cannot be held to have erred in its summary disposition ruling on
the basis of Cavaliere’s affidavit when that affidavit was not provided until plaintiff’s motion for
reconsideration. Further, Cavaliere conceded that he could not find documentation showing that
defendants rendered services after October 30, 2015. Plaintiff, therefore, failed to rebut the
evidence that defendants stopped serving plaintiff in a professional capacity on October 30, 2015.
Because plaintiff failed to rebut defendants’ evidence that their last day of service was
October 30, 2015, that is the day on which plaintiff’s claim accrued, and plaintiff was thus required
to file its complaint on or before October 30, 2017. Plaintiff did not file its complaint until
December 12, 2017. As a result, the trial court did not err in dismissing plaintiff’s malpractice
claim as time barred under MCR 2.116(C)(7).
III. RECONSIDERATION
Plaintiff next argues that the trial court abused its discretion when it denied plaintiff’s
motion for reconsideration. However, plaintiff failed to include this argument in its statement of
questions presented. “An issue not contained in the statement of questions presented is waived on
appeal.” English v Blue Cross Blue Shield of Mich, 263 Mich. App. 449, 459; 688 NW2d 523
(2004). Although plaintiff waived its argument concerning reconsideration, we will nonetheless
briefly address this issue.
Plaintiff, in its motion for reconsideration, cited Vanerian v Charles L Pugh Co, Inc, 279
Mich. App. 431; 761 NW2d 108 (2008) for the first time. Plaintiff argued that Vanerian
contravened the holding of the case cited by defendants in their motion for summary disposition
and relied upon by the trial court when it rejected plaintiff’s breach-of-contract claim, Kisiel v
Holz, 272 Mich. App. 168, 171; 725 NW2d 67 (2006). But, there is no articulable reason that
plaintiff failed to address defendants’ reliance on Kisiel in response to their motion for summary
disposition. A trial court cannot abuse its discretion by denying a motion for reconsideration
“resting on a legal theory and facts which could have been pled or argued prior to the trial court’s
original order.” Woods v SLB Prop Mgmt, LLC, 277 Mich. App. 622, 630; 750 NW2d 228 (2008).
Because plaintiff could have presented its legal theory regarding Vanerian before the trial court’s
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original order related to defendants’ motion for summary disposition, the trial court did not abuse
its discretion in denying plaintiff’s motion for reconsideration.
IV. SANCTIONS
Plaintiff lastly argues that the trial court erred in imposing sanctions. We disagree.
A trial court’s decision to impose sanctions under MCR 1.1092 is reviewed for clear error.
Kelsey v Lint, 322 Mich. App. 364, 379; 912 NW2d 862 (2017). “A decision is clearly erroneous
when, although there may be evidence to support it, we are left with a definite and firm conviction
that a mistake has been made.” Id. (quotation marks and citation omitted).
MCR 1.109(E) provides, in relevant part:
(5) Effect of Signature. The signature of a person filing a document,
whether or not represented by an attorney, constitutes a certification by the signer
that:
(a) her or she has read the document;
(b) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
(c) the document is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
(6) Sanctions for Violation. If a document is signed in violation of this rule,
the court, on the motion of a party or on its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the document, including
reasonable attorney fees. The court may not assess punitive damages.
(7) Sanctions for Frivolous Claims and Defenses. In addition to sanctions
under this rule, a party pleading a frivolous claim or defense is subject to costs as
provided in MCR 2.625(A)(2). The court may not assess punitive damages. [MCR
1.109(E)(5) to (7).]
Thus, an attorney has an affirmative duty to conduct a reasonable inquiry into both the factual and
legal basis of a document before it is signed. Kelsey, 322 Mich. App. at 379. “The reasonableness
2
The trial court imposed sanctions under MCR 2.114, which was repealed, effective September 1,
2018. The language previously found in MCR 2.114(D)-(F) was retained identically in MCR
1.109(E)(5)-(7). Therefore, our analysis proceeds under MCR 1.109.
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of the attorney’s inquiry is determined by an objective standard, not the attorney’s subjective good
faith.” Meisner Law Group PC v Weston Downs Condo Ass’n, 321 Mich. App. 702, 731; 909 NW2d
890 (2017).
MCR 2.625(A)(2) provides: “In an action filed on or after October 1, 1986, if the court
finds on motion of a party that an action or defense was frivolous, costs shall be awarded as
provided by MCL 600.2591.” MCL 600.2591, in turn, provides:
(1) Upon motion of any party, if a court finds that a civil action or defense
to a civil action was frivolous, the court that conducts the civil action shall award
to the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
their attorney.
(2) The amount of costs and fees awarded under this section shall include
all reasonable costs actually incurred by the prevailing party and any costs allowed
by law or by court rule, including court costs and reasonable attorney fees.
(3) As used in this section:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the
defense was to harass, embarrass, or injury the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
(b) “Prevailing party” means a party who wins on the entire record. [MCL
600.2591(1) to (3).]
MCR 1.109(E)(6), MCR 2.625(A)(2), and MCL 600.2591(1), “not only authorize but
require a court to sanction an attorney or party that files a frivolous action or defense.” Meisner
Law Group PC, 321 Mich. App. at 731. “To determine whether sanctions are appropriate under
MCL 600.2591, it is necessary to evaluate the claims or defenses at issue at the time they were
made, and [t]he factual determination by the trial court depends on the particular facts and
circumstances of the claim involved.” DC Mex Holdings, LLC v Affordable Land, LLC, 320 Mich
App 528, 548; 907 NW2d 611 (2017) (quotation marks and citation omitted; alteration in original).
“The purpose of imposing sanctions for asserting frivolous claims ‘is to deter parties and
attorneys from filing documents or asserting claims and defenses that have not been sufficiently
investigated and researched or that are intended to serve an improper purpose.’ ” BJ’s & Sons
Constr Co, Inc v Van Sickle, 266 Mich. App. 400, 405; 700 NW2d 432 (2005), quoting FMB-First
Mich Bank v Bailey, 232 Mich. App. 711, 723; 591 NW2d 676 (1998). “ ‘The determination
whether a claim or defense is frivolous must be based on the circumstances at the time it was
asserted.’ ” Robert A Hansen Family Trust v FGH Indus, LLC, 279 Mich. App. 468, 486; 760
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NW2d 526 (2008), quoting Jerico Constr, Inc v Quadrants, Inc, 257 Mich. App. 22, 36; 666 NW2d
310 (2003). “Not every error in legal analysis constitutes a frivolous position.” Kitchen v Kitchen,
465 Mich. 654, 663; 641 NW2d 245 (2002). “A claim is devoid of arguable legal merit if it is not
sufficiently grounded in law or fact[.]” Ford Motor Co v Dep’t of Treasury, 313 Mich. App. 572,
589; 884 NW2d 587 (2015) (quotation marks and citation omitted; alteration in original).
In ruling that plaintiff’s action was frivolous and imposing sanctions against plaintiff, the
trial court did not specify under which subparagraph of MCL 600.2591(3)(a) it relied upon.
However, the trial court implicitly and explicitly concluded that plaintiff acted with an improper
purpose under MCL 600.2591(3)(a)(i). That is, as the trial court found, plaintiff “filed its disguised
malpractice claims under different labels in order to get around the [two-year] statute of
limitations” applicable to malpractice claims. This finding is supported by the record. Due to the
specific allegations in plaintiff’s complaint and plaintiff’s early knowledge of any deficiencies on
defendants’ part, the trial court did not clearly err in finding plaintiff’s action frivolous and in
imposing sanctions.3
Affirmed.
/s/ Michael J. Kelly
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
3
Plaintiff does not challenge the amount of sanctions imposed.
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