STATE OF MICHIGAN
COURT OF APPEALS
ROBERTA LEE CIVELLO and PAUL CIVELLO, UNPUBLISHED
February 16, 2016
Plaintiffs-Appellants,
v No. 324336
Wayne Circuit Court
CHET’S BEST RESULTS LANDSCAPING LLC, LC No. 14-007078-NO
Defendant-Appellant.
Before: SERVITTO, P.J., and SAAD and O’BRIEN, JJ.
PER CURIAM.
Plaintiffs, Roberta Lee and Paul Civello, appeal as of right the trial court’s October 7,
2014 order granting summary disposition in favor of defendant, Chet’s Best Results Landscaping
LLC, pursuant to MCR 2.116(C)(8) (failure to state a claim). We affirm.
I. BACKGROUND
This case arises out of a slip and fall by plaintiff Roberta Lee Civello in a Wendy’s
Restaurant parking lot in Livonia, Michigan, in February 2014. Defendant is a landscaping and
snow removal company that contracted with Wendy’s Michigan Management Team to provide
snow plowing services for several Wendy’s restaurants, including the one in Livonia where
Civello fell. The contract between Wendy’s and defendant required defendant to plow the
parking lot whenever there was an accumulation of two or more inches of snow. It expressly
excluded salt services and the clearing of sidewalks on the property. It also expressly provided
that defendant would not be responsible for damages of any kind resulting from injuries
sustained due to slippery conditions that existed on the property. After Civello slipped and fell,
she filed the instant lawsuit against defendant. In response, defendant moved for summary
disposition pursuant to MCR 2.116(C)(8), and the trial court granted defendant’s motion. This
appeal followed.
II. ANALYSIS
On appeal, plaintiffs argue that the trial court erred in granting summary disposition to
defendant pursuant to MCR 2.116(C)(8) because it applied the incorrect standard of review,
because it erroneously concluded that plaintiffs were not intended third-party beneficiaries,
because it misconstrued Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004),
and Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157; 809 NW2d 553 (2011),
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and because it erroneously concluded that defendant did not owe a common-law duty of care to
plaintiffs. We disagree in all respects.
A. OUR STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. Bailey
v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013). Likewise, “[w]hether a defendant owes a
particular plaintiff a duty is a question of law that this Court reviews de novo.” Id. “[S]ummary
disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of
law that defendant owed no duty to the plaintiff.” Schneider v Nectarine Ballroom, Inc (On
Remand), 204 Mich App 1, 4; 514 NW2d 486 (1994).
A. STANDARD OF REVIEW APPLIED BY TRIAL COURT
First, plaintiffs argue that the trial court erred in granting summary disposition to
defendant because it applied the incorrect standard of review. Specifically, plaintiffs claim that
reversal is required because defendant cited the standard of review applicable to MCR
2.116(C)(10) in its brief in support of its motion for summary disposition. We disagree. While it
is true that defendant mentioned MCR 2.116(C)(10) in the standard-of-review section of its brief
in support of its motion for summary disposition before the trial court, it is apparent from the
record that defendant moved for, and the trial court granted, summary disposition pursuant to
MCR 2.116(C)(8). MCR 2.116(C)(8) appears in the same brief’s title and prayer for relief, is
discussed throughout the body of the brief, and was argued by both parties during oral argument.
In granting defendant’s motion, the trial court specifically referenced the fact that plaintiffs’
lawsuit failed to state a justiciable claim. The fact that the trial court did not specifically name
MCR 2.116(C)(8) in reaching its decision is inconsequential. Additionally, to the extent
plaintiffs take issue with any discussion by defendant, the trial court, or this Court of the contract
between defendant and Wendy’s, in actions based on a written contract, i.e., plaintiffs’ breach of
contract claim, the written contract becomes part of the pleadings for purposes of review under
MCR 2.116(C)(8). Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 127, 133;
676 NW2d 633 (2003). Accordingly, we conclude that the trial court did not apply the incorrect
standard of review.
B. THIRD-PARTY BENEFICIARY
Next, plaintiffs argue that the trial court erred in granting summary disposition to
defendant because it erroneously concluded that plaintiffs were not entitled to relief under a
third-party-beneficiary theory. We disagree.
“A person is a third-party beneficiary of a contract only when that contract establishes
that a promisor has undertaken a promise directly to or for that person.” Schmalfeldt v North
Pointe Ins Co, 469 Mich 422, 428; 670 NW2d 651 (2003), citing MCL 600.1405; Koenig v
South Haven, 460 Mich 667, 677; 597 NW2d 99 (1999). The Legislature’s use of the word
“directly” demonstrates its intent to ensure that the contracting parties are aware that the scope of
the contractual undertakings encompasses a third party. Brunsell v City of Zeeland, 467 Mich
293, 297; 651 NW2d 388 (2002). “Third-party beneficiary status requires an express promise to
act to the benefit of the third-party[.]” Dynamic Constr Co v Barton Malow Co, 214 Mich App
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425, 428; 543 NW2d 31 (1995). While the third party need not be specifically named, he or she
must be a member of a class that is sufficiently described in the contract. Brunsell, 467 Mich at
297.
In this case, plaintiffs claim that they “are the intended beneficiaries to the contract”
between defendant and Wendy’s because the contract “was obviously entered into for the benefit
of its patrons.” This is simply untrue. Viewing the contract objectively, we conclude that
defendant and Wendy’s did not intend their contract to benefit plaintiffs as they contend. The
contract between defendant and Wendy’s does not indicate an intent to benefit patrons. Rather,
it does the complete opposite—it expressly states that defendant is not responsible for any
injuries or damages that result from the icy or slippery conditions of the property. Stated
differently, “[t]here is nothing in the [contract between defendant and Wendy’s] that specifically
designates plaintiff (or any reasonably identified class) as an intended beneficiary of the promise.
Accordingly, as explained in the lead opinion in Koenig, plaintiff cannot be considered an
intended third-party beneficiary under MCL 600.1405[.]” Brunsell, 467 Mich at 298. Therefore,
we conclude that the trial court correctly determined that plaintiffs were not entitled to relief
under a third-party beneficiary theory.
C. COMMON LAW DUTIES & THE FULTZ AND LOWEKE DECISIONS
1. THE FULTZ AND LOWEKE DECISIONS
Plaintiffs also argue that the trial court erred in granting summary disposition to
defendant because it misconstrued our Supreme Court’s decisions in Fultz and Loweke. We
disagree.
In Fultz, our Supreme Court was presented with a factual scenario that is strikingly
similar to the one presented in this case. A woman slipped and fell while walking through a
snow- and ice-covered parking lot. 470 Mich at 462. At the time she fell, the parking lot owner
had previously entered into a contract with a company to provide snow and salt services. Id.
The woman sued the company, not the parking lot owner, for negligence. Id. A jury eventually
found that the company negligently failed to perform its duties under the contract with the
parking lot owner, and this Court affirmed the jury’s verdict. Id. Our Supreme Court reversed.
Id. at 470. It concluded that, because the company did not owe the woman a duty that was
separate and distinct from its contractual promises to the parking lot owner, tort liability could
not exist. Id. at 468-470.
In Loweke, our Supreme Court was presented with a factual scenario that is somewhat
different than the one presented in this case; however, its implications remain the same. An
employee of an electrical subcontractor was injured when several cement boards leaning against
a wall fell on him while working. 489 Mich at 159. The boards that fell on the injured employee
were leaned against the wall by a second subcontractor’s employees, and the injured employee
sued that second subcontractor. Id. The second subcontractor moved for summary disposition,
arguing that it owed no duty to the injured employee under Fultz. Id. Our Supreme Court,
taking that “opportunity to clarify Flutz’s ‘separate and distinct’ mode of analysis,” held “that a
contracting party’s assumption of contractual obligations does not extinguish or limit separately
existing common-law or statutory tort duties owed to noncontracting third parties in the
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performance of the contract.” Id. (citation and internal quotation marks omitted). Because the
injured employee’s claim was not solely based on the second subcontractor’s failure to perform
its contractual obligations, summary disposition under Fultz was inappropriate. Id. at 171-172.
On appeal, plaintiffs claim, in essence, that these decisions are distinguishable from this
case in a major way—those cases involve torts, and plaintiffs’ case “is a clear breach of contract
claim” and “not based on ‘tort.’ ” We find this curious, especially in light of the fact that the
very next argument section in their brief is entitled as follows: “The trial court erred in not
finding that the Appellee also had a common law duty to [plaintiffs].” It seems that plaintiffs
desire this case to solely involve a breach-of-contract claim for purposes of avoiding summary
disposition based on tort law as well as desire this case to solely involve a tort claim for purposes
of avoiding summary disposition based on contract law. Either way, we find their arguments
unpersuasive.
If plaintiffs’ claim is purely a breach of contract action, it fails as a matter of law. As
discussed above, plaintiff has failed to state a justiciable claim as a third-party beneficiary, and
plaintiffs assert no additional contract theory to support their position. The Fultz and Loweke
decisions have no impact on this result. Indeed, as our Supreme Court expressly recognized in
Loweke, a third-party beneficiary claim is a separate and distinct claim under Fultz. 489 Mich at
166-167 (“Thus, because the plaintiff did not claim that she was a third-party beneficiary of the
contract between the defendant and the premises owner . . . the plaintiff failed to plead a duty
owed to her that was independent, or ‘separate and distinct,’ from the defendant’s contractual
duty . . . .”). This is precisely what the trial court concluded: “I also don’t believe that there is a
claim for a third-party beneficiary[.]” It did not apply, much less misconstrue, Fultz or Loweke
to plaintiffs’ breach of contract claim. Accordingly, as stated above, we conclude that the trial
court correctly found that plaintiffs were not entitled to relief under a third-party beneficiary
theory.
2. COMMON-LAW DUTIES
The trial court did, however, apply the reasoning of Fultz and Loweke to tort, not
contract, theories raised by plaintiffs. On appeal, in rather confusing fashion, plaintiffs appear to
argue “[t]he contractual obligations created a duty towards Wendy’s restaurant” under common
law. This is precisely the type of argument that was rejected in Fultz and Loweke. Plaintiffs also
argue that defendant assumed various duties imposed on Wendy’s under the International
Property Maintenance Code and the Building Officials and Code Administrators National
Building Code. Plaintiffs provide no legal authority to support that position. Moreover, aside
from their unsupported claims that defendant “assumed” these various duties, there is absolutely
nothing in the record to support their position. A party’s failure to adequately support his or her
argument with factual and legal citation results in abandonment of that argument. Peterson
Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Furthermore, even
if it were adequately supported, plaintiffs’ argument is simply untrue. Accordingly, we conclude
that the trial court correctly concluded that defendant did not owe plaintiffs various common-law
duties that are imposed on Wendy’s.
III. CONCLUSION
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In sum, because the trial court did not apply the incorrect standard of review, because the
trial court correctly concluded that plaintiffs were not entitled to relief under a third-party
beneficiary theory, because the trial court did not misconstrue the Fultz and Loweke decisions to
plaintiffs’ third-party beneficiary claim, and because the trial court correctly concluded that
defendant did not owe plaintiffs various common-law duties that are imposed on Wendy’s,
summary disposition was proper. We therefore affirm the trial court’s October 7, 2014 order
granting summary disposition to defendant pursuant to MCR 2.116(C)(8).
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Deborah A. Servitto
/s/ Henry William Saad
/s/ Colleen A. O’Brien
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