Ric-Man Construction Inc v. Neyer Tiseo & Hindo Ltd

STATE OF MICHIGAN

COURT OF APPEALS

RIC-MAN CONSTRUCTION, INC., UNPUBLISHED
January 17, 2017
Plaintiff/Counter-Defendant-
Appellee,

v No. 329159
Wayne Circuit Court
NEYER, TISEO & HINDO LTD. d/b/a NTH LC No. 11-011315-CZ
CONSULTANTS, LTD.,

Defendant/Counter-Plaintiff-
Appellant.

Before: TALBOT, C.J., and JANSEN and HOEKSTRA, JJ.

PER CURIAM.

In this dispute between a contractor and project engineer, defendant/counter-plaintiff
Neyer, Tiseo & Hindo LTD., d/b/a NTH Consultants, LTD. (NTH), appeals by leave granted1 the
trial court’s August 14, 2015 opinion and order granting in part and denying in part its motion for
summary disposition. Plaintiff/counter-defendant Ric-Man Construction, Inc. cross-appeals a
portion of the same opinion and order. We affirm in part, reverse in part, and remand for further
proceedings.

I. FACTS

The instant dispute revolves around the rehabilitation of the Oakland-Macomb
Interceptor (the OMI). As background:

The OMI is an intercounty drain formerly owned by Detroit. In 2009, the
[Oakland-Macomb Interceptor Drain Drainage District (OMIDDD)] was formed
and purchased the OMI. . . . At the time the OMIDDD acquired the OMI, the
system was in a serious state of disrepair. The OMIDDD was tasked with
rehabilitating the system. An expensive, multi-year rehabilitation project was

1
Ric-Man Construction, Inc v Neyer, Tiseo & Hindo LTD, unpublished order of the Court of
Appeals, entered February 17, 2016 (Docket No. 329159).

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 approved, and is just now nearing completion. The project was funded largely by
apportionments paid by 23 communities that connected to the OMI and used it to
deliver wastewater to the Detroit Water and Sewerage Department (DWSD).[2]

The dispute in this matter revolves around one portion of the rehabilitation project.
Specifically, at issue is the construction of Control Structure 6 (CS-6). Generally speaking,
construction of this structure required excavating 75 feet deep underground to install a gate that
could be used to facilitate repairs to the sewer system in the future. The project was designed by
NTH. NTH’s plans were made available to contractors, who bid on the project. Ric-Man won
the bid, and entered into an agreement that included the construction of CS-6. This contract,
which actually consists of several documents, is referred to as the Prime Contract. The Prime
Contract designated NTH as the OMIDDD’s representative during the construction phase. NTH
would oversee the project, ensuring that Ric-Man’s work conformed to NTH’s design. NTH was
also given responsibility to make determinations regarding problems or disputes that might arise
during construction.

During construction, Ric-Man encountered two primary issues. First, Ric-Man, on
advice of a supplier and several consultants, believed the upper temporary earth retention system
(TERS) designed by NTH was defective. The TERS is a safety system, made of steel, that is
designed to keep earth from collapsing as workers excavate deeper into the ground. Ric-Man
believed that the system as designed by NTH was not sufficient to prevent a collapse. Ric-Man
brought its concerns to NTH, but NTH maintained that the system it designed was sufficient.
Eventually, Ric-Man constructed the TERS as it believed was necessary to protect its workers.

The second issue involves the soil conditions encountered at the work site. Based on
geotechnical reports prepared by NTH, Ric-Man expected to encounter “stiff silty clay and
medium compact to very compact silty sands and silts . . . .” However, as it excavated, Ric-Man
found that the soil was materially different. As a result, Ric-Man had to begin an emergency
grouting program, incurring additional expenses. Ric-Man sought a time extension related to
this issue, but the request was denied.

In 2011, Ric-Man and the OMIDDD agreed to arbitrate their disputes. Shortly thereafter,
Ric-Man filed the instant suit against NTH. The complaint raised five counts: professional
negligence, intentional misrepresentation, tortious interference with contract, negligent
misrepresentation, and defamation. On NTH’s motion, the trial court granted summary
disposition on all claims in NTH’s favor, concluding that these claims should be submitted to
arbitration along with Ric-Man’s claims against the OMIDDD. However, on appeal, this Court
reversed, holding that NTH could not compel arbitration between itself and Ric-Man.3

2
Marrocco v OMIDDD, unpublished opinion per curiam of the Court of Appeals, issued June
16, 2016 (Docket No. 326575), unpub op at 2.
3
Ric-Man Const, Inc v Neyer, Tiseo & Hindo Ltd, unpublished opinion per curiam of the Court
of Appeals, issued March 26, 2013 (Docket No. 309217).

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 After the matter returned to the trial court, NTH moved for summary disposition on all
counts. Ric-Man agreed that its intentional misrepresentation claim failed as a matter of law, but
contested the motion with regard to the remaining counts. After receiving a multitude of briefs
from the parties and hearing their arguments, the trial court issued its opinion. For the most part,
the trial court denied NTH’s motion. The trial court did hold that Ric-Man could not recover the
lost profits of a separate company, Mancini Enterprises, LLC, owned by the same three brothers
that own Ric-Man. NTH filed the instant application for leave to appeal, which this Court
granted. Ric-Man then filed a cross-appeal, challenging the trial court’s decision that it could not
pursue a claim of lost profits on behalf of Mancini Enterprises.

The issues raised on appeal generally fit into two categories: those challenging the merits
of the various counts of the complaint, and those addressing what damages Ric-Man may
recover. We begin with the arguments addressing the viability of the individual counts.

II. DUTY OF CARE – PROFESSIONAL NEGLIGENCE AND NEGLIGENT
MISREPRESENTATION

The first issue concerns Ric-Man’s professional negligence and negligent
misrepresentation counts. These counts allege that NTH negligently designed the TERS and was
negligent in reporting the soil conditions at the work site. NTH contends that both claims must
fail because neither alleges the existence of a duty of care separate and distinct from its
agreement with the OMIDDD to design the project. We agree that the professional negligence
count is barred for this reason. However, we find that the negligent misrepresentation count may
proceed.

Whether a plaintiff owes a defendant a duty of care is a question of law, reviewed de
novo.4 This Court also “reviews the grant or denial of summary disposition de novo to
determine if the moving party is entitled to judgment as a matter of law.”5 NTH brought its
motion pursuant to MCR 2.116(C)(8) and (C)(10). As our Supreme Court has explained:

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint. All well-pleaded factual allegations are accepted as true and construed
in a light most favorable to the nonmovant. 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.” When
deciding a motion brought under this section, a court considers only the pleadings.

* * *

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,

4
Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
5
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999) (citations omitted).

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 and other evidence submitted by the parties . . . in the light most favorable to the
party opposing the motion. Where the proffered evidence fails to establish a
genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law.[6]

The trial court did not identify under which provision it decided the motion. However, the
question is whether Ric-Man has pleaded the existence of a duty separate and distinct from the
contract between NTH and the OMIDDD. This is a purely legal question that may be decided by
reference to the pleadings alone, and thus, is properly decided pursuant to MCR 2.116(C)(8).

Count I alleges a claim of “Professional Negligence.” “To establish a prima facie case of
negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the
plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.”7 Thus, a claim of negligence
cannot exist if there is no duty owed by the defendant. “The threshold issue of the duty of care
in negligence actions must be decided by the trial court as a matter of law.”8 “In other words, the
court determines the circumstances that must exist in order for a defendant’s duty to arise.”9

The parties rely on a number of cases in an effort to establish whether NTH owed Ric-
Man a duty of care in this matter. In chronological order, those cases are Bacco Const Co v
American Colloid Co,10 Nat’l Sand, Inc v Nagel Constr, Inc,11 Fultz v Union-Commerce Assoc,12
Keller Constr, Inc v UP Engineers and Architects,13 and finally, Loweke v Ann Arbor Ceiling
and Partition Co.14 We begin by noting that Bacco and Nat’l Sand are not binding on this Court,
as neither case was decided after November 1, 1990.15 And as an unpublished opinion, Keller
also does not bind this Court.16 Thus, our focus is on Fultz and Loweke, two decisions of our
Supreme Court that are dispositive of the issues presented in this appeal.

6
Id. at 119-120 (citations omitted).
7
Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
8
Riddle v McClouth Steel Prods Corp, 440 Mich 85, 95; 485 NW2d 676 (1992).
9
Id.
10
Bacco Constr Co v American Colloid Co, 148 Mich App 397; 384 NW2d 427 (1986).
11
Nat’l Sand, Inc v Nagel Constr, Inc, 182 Mich App 327, 330; 451 NW2d 618 (1990).
12
Fultz, 470 Mich 460.
13
Keller Constr, Inc v UP Engineers & Architects, Inc, unpublished opinion per curiam of the
Court of Appeals, issued July 8, 2008 (Docket No. 275379).
14
Loweke v Ann Arbor Ceiling and Partition Co, 489 Mich 157; 809 NW2d 553 (2011).
15
MCR 7.215(J)(1).
16
MCR 7.215(C)(1).

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 Fultz involved a plaintiff who fell in an icy parking lot.17 The plaintiff brought a
negligence claim against the snow removal service “based on its alleged failure to plow or salt
the parking lot.”18 The operative question was whether the snow removal service owed a duty to
the plaintiff that could support her negligence action.19 Our Supreme Court explained that courts
“should analyze tort actions based on a contract and brought by a plaintiff who is not a party to
that contract by using a ‘separate and distinct’ mode of analysis. Specifically, the threshold
question is whether the defendant owed a duty to the plaintiff that is separate and distinct from
the defendant’s contractual obligations.”20 Absent the existence of a separate and distinct duty,
“no tort action based on a contract will lie.”21

Several years later, in Loweke, our Supreme Court explained that courts had, in many
cases, misapplied Fultz.22 Specifically, our Supreme Court explained that “courts have
erroneously interpreted this Court’s decisions as rejecting accepted tort-law principles and
creating a legal rule unique to Michigan tort law, which bars negligence causes of action on the
basis of a lack of duty if a third-party plaintiff alleges a hazard that was the subject of the
defendant’s contractual obligations with another.”23 The Court further explained the “separate
and distinct” mode of analysis:

Under this analysis, an action would lie in contract if it was based solely on a
defendant’s failure or refusal to perform a contractual promise. In contrast, an
action could lie in either contract or in tort if a defendant negligently performs a
contractual duty or breaches a duty arising by implication from the relation of the
parties created by the contract[.] In the latter category of cases, however, no tort
liability would arise for failing to fulfill a promise in the absence of a duty to act
that is separate and distinct from the promise made.[24]

The Court went on to explain:

Determining whether a duty arises separately and distinctly from the
contractual agreement, therefore, generally does not necessarily involve reading
the contract, noting the obligations required by it, and determining whether the
plaintiff’s injury was contemplated by the contract. Instead, Fultz’s directive is to

17
Fultz, 470 Mich at 462.
18
Id. at 461.
19
Id. at 463.
20
Id.
21
Id.
22
Loweke, 489 Mich at 163.
23
Id. The Court also explained that Fultz had been “misconstrued to, in essence, establish a form
of tort immunity that bars negligence claims raised by a noncontracting third party.” Id. at 168.
24
Id. (quotation marks, citations, and ellipses omitted).

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 determine whether a defendant owes a noncontracting, third-party plaintiff a legal
duty apart from the defendant’s contractual obligations to another. As this Court
has historically recognized, a separate and distinct duty to support a cause of
action in tort can arise by statute, or by a number of preexisting tort principles,
including duties imposed because of a special relationship between the parties,
and the generally recognized common-law duty to use due care in
undertakings.[25]

Ultimately, the question before us is whether, under Fultz and Loweke, Ric-Man has
alleged the breach of a duty separate and distinct from NTH’s contractual obligations. We
conclude that Count I of Ric-Man’s complaint fails to allege the breach of any recognized
common-law duty that is separate and distinct from NTH’s contractual obligations. Each of the
duties alleged by Ric-Man are obligations that NTH agreed to perform in its contract with the
OMIDDD. Certainly, in performing these obligations, NTH would have a duty to “use due care
in undertakings.”26 But the common-law duty to use due care in undertakings is a duty to avoid
physical harm to people or property; it is not a duty to avoid economic losses to another, which is
the only type of harm alleged by Ric-Man.

In Rinaldo’s Const Corp v Mich Bell Telephone Co, a case cited favorably by the Fultz
and Loweke Courts, our Supreme Court also examined a claim of negligence based on the
performance of a contract.27 As it would in Fultz and Loweke, the Court focused on the concept
of duty, and specifically, whether there existed a duty separate and distinct from the contract.
The Court recognized that there exists “a duty to exercise reasonable care to avoid physical harm
to persons and tangible things.”28 But the Court explained that “[t]his duty . . . does not extend
to intangible economic losses.”29 In this case, one could at least consider Count I of the
complaint as alleging the breach of a duty to use ordinary care in undertakings. But because Ric-
Man alleges only economic harm, not physical harm to persons or property, it fails to allege the
existence of a recognized common-law duty separate and distinct from the contract. Much like
the plaintiff in Rinaldo, “[w]hile plaintiff’s allegations arguably make out a claim for ‘negligent
performance’ of the contract, there is no allegation that this conduct by the defendant constitutes

25
Id. at 169-170 (citations omitted).
26
Loweke, 489 Mich at 170 (citation omitted).
27
Rinaldo’s Const Corp v Mich Bell Telephone Co, 454 Mich 65, 67-68; 559 NW2d 647 (1997).
Specifically, the plaintiff, a construction company, experienced problems with its telephone
service after moving to a new address. Id. at 67. The plaintiff sued the defendant telephone
service for a loss of business revenue allegedly caused by the inability of customers to contact
the plaintiff via telephone. Id. at 68.
28
Id. at 84 (quotation omitted).
29
Id. (quotation omitted).

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tortious activity in that it caused physical harm to persons or tangible property . . . .”30 Thus, at
least with respect to Count I of the complaint, “there is no cognizable cause of action in tort.”31

NTH does not parse out Count IV, and simply asserts that Fultz and Loweke similarly bar
Count IV of the complaint. But the two counts are distinct. Count IV alleges a claim of
negligent misrepresentation. “In a negligent misrepresentation action, the plaintiff must prove
that ‘a party justifiably relied to his detriment on information provided without reasonable care
by one who owed the relying party a duty of care.’ ”32 “Michigan recognized negligent
misrepresentation as a way of imposing third-party liability for the negligent performance of a
contract.”33 To further describe a claim for negligent misrepresentation, this Court has relied on
the Restatement Torts, 2d, § 552,34 which states:

(1) One who, in the course of his business, profession or employment, or in any
other transaction in which he has a pecuniary interest, supplies false information
for the guidance of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information, if
he fails to exercise reasonable care or competence in obtaining or communicating
the information.

(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is
limited to loss suffered

(a) by the person or one of a limited group of persons for whose
benefit and guidance he intends to supply the information or knows
that the recipient intends to supply it; and

(b) through reliance upon it in a transaction that he intends the
information to influence or knows that the recipient so intends or
in a substantially similar transaction.

(3) The liability of one who is under a public duty to give the information extends
to loss suffered by any of the class of persons for whose benefit the duty is
created, in any of the transactions in which it is intended to protect them.

30
Id. at 85.
31
Id.
32
Roberts v Safell, 280 Mich App 397, 406 n 2; 760 NW2d 715 (2008), aff’d 483 Mich 1089
(2009), quoting Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 33; 436
NW2d 70 (1989).
33
Id., citing Williams v Polgar, 391 Mich 6, 18-23; 215 NW2d 149 (1974).
34
See Law Offices of Lawrence J Stockler, PC, 174 Mich App at 35-37.

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 Thus, a business does owe a duty of care to those who justifiably rely on the information
supplied by that business. Under Restatement Torts, 2d, § 552(2)(a), this duty extends to “the
person or one of a limited group of persons for whose benefit and guidance he intends to supply
the information or knows that the recipient intends to supply it[.]” Count IV of the complaint
contends that Ric-Man was part of a group (bidders) who the OMIDDD knew would rely on the
plans drafted by NTH, that these plans were materially incorrect due to NTH’s negligence, and
that as a result of Ric-Man’s reliance on the plans, it suffered pecuniary loss. Count IV of the
complaint sets forth a claim for negligent misrepresentation. Fultz and Loweke do not preclude
this claim because Count IV alleges the breach of a duty, recognized at common law, that is
separate and distinct from the contract between the OMIDDD and NTH. Accordingly, while
Count I is barred as a matter of law, Count IV may proceed.

III. EXCULPATORY CLAUSE

NTH argues that an exculpatory clause found within the Prime Contract bars Ric-Man’s
claims, and that the trial court erred by holding otherwise. We disagree. “Questions involving
the proper interpretation of a contract or the legal effect of a contractual clause are also reviewed
de novo.”35

The exculpatory clause at issue states the following:

Neither Engineer’s authority or responsibility under this Article 9 or under any
other provision of the Contract Documents nor any decision made by Engineer in
good faith either to exercise or not exercise such authority or responsibility or the
undertaking, exercise, or performance of any authority or responsibility by
Engineer shall create, impose, or give rise to any duty in contract, tort, or
otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any
individual or entity, or any surety for or employee or agent of any of them.

The first question is whether NTH, which is not a party to the agreement containing the
exculpatory clause, may nonetheless enforce it. The trial court concluded that under the Prime
Contract, NTH was an agent of OMIDDD. Because NTH was the OMIDDD’s agent, the trial
court held that NTH could enforce the exculpatory clause, as well as other provisions of Prime
Contract. Rather than dispute the trial court’s decision, the parties argue over whether NTH was
a third-party beneficiary to the Prime Contract who could, due to that status, enforce the
exculpatory clause. Thus, with respect to the question whether NTH may enforce the
exculpatory clause, no one provides any argument questioning the trial court’s basis for holding
that NTH could enforce the exculpatory clause and any other clause of the Prime Contract. As
such, we need not question the trial court’s decision in this regard.36

35
Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005).
36
See Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004) (if
an appellant fails to address the basis for the trial court’s ruling, this Court need not even
consider granting relief).

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 The remaining question is whether the clause applies to the conduct at issue in the
complaint. The trial court differentiated between allegations of negligence that occurred prior to
the construction period, i.e., errors or omissions in the design of the project by NTH, and
allegations of negligence that occurred during the construction phase, while NTH was to serve as
project manager. It held that the exculpatory clause applied only to the latter. We agree that this
is the correct interpretation of the clause.

Clearly, NTH did have two distinct roles. It first designed the project. Then, under the
Prime Contract, NTH served as the OMIDDD’s representative, overseeing construction of the
project it had designed. The exculpatory clause is found within Article 9 of the General
Conditions, one of the various documents that make up the Prime Contract. The entire purpose
of this particular article is to describe NTH’s duties during construction. The article itself is
entitled, “Engineer’s Status During Construction.” The paragraphs that precede the exculpatory
clause describe NTH’s status as the OMIDDD’s “representative during the construction period.”
NTH has a duty to visit the worksite to observe the progress being made and whether it is
satisfactory. It also has the authority to authorize minor variations in the work, to interpret the
contract and judge the acceptability of the work being performed, and to reject work it finds
defective. The article also references other duties and responsibilities of NTH by reference to
other parts of the General Conditions. The exculpatory clause is then found in the final
paragraph of Article 9.

Based on the context in which it appears, we, like the trial court, conclude that the
exculpatory provision applies only to NTH’s conduct during the construction phase. The clause
first refers to NTH’s “authority or responsibility under this Article 9 or under any other provision
of the Contract Documents” and NTH’s decisions to “exercise or not exercise such authority or
responsibility . . . .” Clearly, NTH’s authority and responsibility under Article 9 is limited to the
construction phase. The remainder of the “Contract Documents” similarly describe the
construction phase of the project. The remaining portion of the exculpatory clause describes “the
undertaking, exercise, or performance of any authority or responsibility by [NTH] . . . .” NTH
contends that this portion of the clause must be read broadly to encompass any authority or
responsibility of NTH whatsoever, which would include its responsibility to design the project.
Such a broad reading is illogical in light of the provisions that precede the exculpatory clause.
We find it clear that by referencing “any authority or responsibility,” the clause refers to any
authority or responsibility of NTH provided for by the Prime Contract, not any authority or
responsibility NTH has ever exercised at any point in time.

Further, if we were to adopt NTH’s reading of the exculpatory clause, it would render
another portion of the General Conditions nugatory. As is discussed in more detail later in this
opinion, Paragraphs 4.02 and 4.03 of the General Conditions restrict the scope of damages that
Ric-Man could potentially recover in a suit against NTH if the soil conditions prove different
than represented by NTH. Implicit in such a restriction on damages is the recognition that the
claim itself is viable; there would be no need to restrict the damages available for a particular
claim if the claim itself is barred. But if we were to agree with NTH’s interpretation of the
exculpatory clause, NTH could not be liable for erring with regard to the soil conditions present

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at the work site. We must avoid interpreting the contract in such a way “that would render any
part of the contract surplusage or nugatory.”37

NTH presents several additional arguments challenging this conclusion, all of which are
without merit. NTH contends that its authority and responsibility under the Prime Contract
includes its design of the project. It is true that various provisions of the Prime Contract
reference NTH’s design or the fact that NTH designed the project. But the Prime Contract is not
what gave NTH the authority or responsibility of designing the project. That responsibility was
created by NTH’s agreement with the OMIDDD. NTH contends that Ric-Man’s complaint does
not distinguish between NTH’s design role and its supervisory role. The allegations of Ric-
Man’s complaint do not change the scope of the Prime Contract, which clearly covers the
construction phase of the project. NTH also argues that because the delays occurred during the
construction phase, the exculpatory clause should apply. This argument is meritless because the
issue is not when delays occurred, but when NTH’s allegedly negligent conduct occurred – i.e.,
when the duty was breached. Ric-Man alleges that NTH breached a duty when it designed the
project, not during the construction of the project.

NTH also contends that the trial court erred when it concluded that the exculpatory clause
only applies to errors made in good faith. We agree with this particular position. The phrase
“good faith” occurs within the portion of the exculpatory clause referring to “decision[s] made
by [NTH] . . . to either exercise or not exercise such authority . . . .” It is not found in other
portions of the clause. A plain reading of the clause leads to the conclusion that the “good faith”
language applies only to NTH’s decisions to “either exercise or not exercise” any “authority or
responsibility” granted to it under “Article 9 or under any other provision of the Contract
Documents . . . .” There is no similar “good faith” language tied to NTH’s “undertaking,
exercise, or performance of any authority or responsibility . . . .”38

The question that still must be answered is what effect the exculpatory clause has on the
different counts raised in the complaint. As we have explained, Count I fails as a matter of law
because it does not allege the existence of a duty separate and distinct from NTH’s contractual
duties to the OMIDDD. Thus, there is no need to consider the effect of the exculpatory clause
with regard to that count. Count II was dismissed by Ric-Man, and thus, is no longer at issue.
With regard to Count III, the trial court explained that the exculpatory clause would not protect

37
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003).
38
The trial court and Ric-Man rely on the Wyoming Supreme Court’s decision in Excel Const,
Inc v HKM Engineering, Inc, 228 P3d 40; 2010 WY 34 (2010), which interpreted the same
clause. Id. at 49-50. The Wyoming Supreme Court found that the clause “means that the
contractor may not recover from the engineer for careless errors which were not made in bad
faith, while it does not bar claims involving bad faith . . . .” Id. at 50. We disagree with that
holding, as it ignores the specific context in which the words “good faith” appear in the clause.
And of course, Excel Const, Inc is not binding on this Court. See In re Jajuga Estate, 312 Mich
App 706, 723 n 7; 881 NW2d 487 (2015) (decisions from other jurisdictions are not binding on
this Court).

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NTH because such a claim requires a showing of an intentional or malicious conduct, and parties
may not contract against liability for gross negligence or willful or wanton misconduct.39
Neither party addresses this holding, and thus, there is no need for this Court to revisit the trial
court’s decision with regard to this count. Count IV, negligent misrepresentation, alleges
negligence in NTH’s design of the project. As discussed, the exculpatory clause does not reach
NTH’s conduct during the design phase. Thus, Count IV survives.

With regard to Count V (defamation), the trial court held that the exculpatory clause did
not apply because a claim of defamation is inconsistent with an act of good faith. As discussed,
the good faith portion of the exculpatory clause only applies to NTH’s decisions to either
exercise or not exercise its authority. The defamation claim does not involve a decision by NTH
to either exercise or not exercise its authority, and thus, NTH’s good faith, or lack thereof, is not
relevant with respect to the defamation claim. That said, we find it questionable whether the
exculpatory clause would reach the defamation claim. As one example, we question whether, by
making false statements to the Michigan Occupational Safety and Health Administration
(MIOSHA) and others, NTH was acting within its authority or responsibility granted under the
Prime Contract. However, there is no briefing on the topic. Rather than decide the issue, we
remand the matter to the trial court to consider whether the exculpatory clause, as interpreted by
this Court, bars Ric-Man’s defamation claim.

IV. TORTIOUS INTERFERENCE WITH CONTRACT

NTH argues that the trial court erred when it allowed Ric-Man’s claim of tortious
interference with contract to proceed. We disagree.

“To maintain a cause of action for tortious interference, the plaintiff must establish that
the defendant was a ‘third party’ to the contract rather than an agent of one of the parties acting
within the scope of its authority as an agent.”40 It is also settled law that “corporate agents are
not liable for tortious interference with the corporation’s contracts unless they acted solely for
their own benefit with no benefit to the corporation.”41 Hence, when an agent acts solely for its
own benefit, and with no benefit to the principal, the agent is not acting within the scope of its
authority. Thus, an agent who acts solely for its own benefit and not for the benefit of the
principal may be liable for tortious interference with contract.

On appeal, NTH contends that as an agent, it is not an independent third party to the
Prime Contract, and for that reason, cannot be liable for tortious interference with the contract.
The argument ignores the basis of the trial court’s decision. The trial court did not dispute that
NTH was an agent; indeed, it had already held that NTH was an agent of the OMIDDD. The
basis of the trial court’s ruling was that the complaint alleged facts sufficient to demonstrate that
even though NTH was the OMIDDD’s agent, NTH acted solely for its own benefit, and thus,

39
Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311 (2002).
40
Lawsuit Fin, LLC v Curry, 261 Mich App 579, 593; 683 NW2d 233 (2004).
41
Reed v Mich Metro Girl Scout Council, 201 Mich App 10, 13; 506 NW2d 231 (1993).

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could still be liable for tortious interference. Because NTH fails to dispute the basis of the trial
court’s ruling, there is no need for this Court to revisit the trial court’s decision.42

V. DEFAMATION

NTH contends that the trial court erred when it allowed Ric-Man’s defamation claim to
proceed. We disagree.

NTH contends that expressions of opinion cannot form the basis of a defamation claim.
But as our Supreme Court has explained:

[A] statement of “opinion” is not automatically shielded from an action for
defamation because “expressions of ‘opinion’ may often imply an assertion of
objective fact.” . . . [T]he statement “in my opinion Jones is a liar” may cause just
as much damage to a person’s reputation as the statement “Jones is a liar.” . . .
Thus, a statement of opinion that can be proven to be false may be defamatory
because it may harm the subject’s reputation or deter others from associating with
the subject.[43]

Thus, NTH’s belief that a statement of opinion cannot form the basis of a defamation
claim is simply not accurate under Michigan law. Ric-Man cites an email sent by a
representative of NTH to a MIOSHA representative as defamatory. The email states:

As we discussed, R[ic-Man] has been engaged in an ongoing campaign to obtain a
change order and increased compensation on the project, and has resorted to a
variety of questionable tactics, including (but not limited to) intentional
misinterpretation of their own consultant’s statements to you, and concealing the
April 29, 2009 meeting from NTH and the [OMIDDD].

This statement can easily be interpreted as a statement of fact, not simply an opinion. But even if
considered an opinion, the statement certainly fits within those types of “opinions” that may
nonetheless be considered defamatory. Accordingly, summary disposition is inappropriate.

NTH’s only other argument is that its statement was privileged, an argument rejected by
the trial court. As this Court has explained:

The determination whether a privilege exists is one of law for the court. The
elements of a qualified privilege are (1) good faith, (2) an interest to be upheld,
(3) a statement limited in its scope to this purpose, (4) a proper occasion, and (5)
publication in a proper manner and to proper parties only.[44]

42
Derderian, 263 Mich App at 381.
43
Smith v Anonymous Joint Enterprise, 487 Mich 102, 128; 793 NW2d 533 (2010).
44
Prysak v RL Polk Co, 193 Mich App 1, 14-15; 483 NW2d 629 (1992) (citations omitted).

-12-
NTH fails to address any of these elements. It simply cites the elements and explains that
“[b]ecause the purported opinion was made to OMIDDD while acting as a representative for
OMIDDD and to MIOSHA, a government agency responsible for overseeing safety, NTH’s
opinions were privileged.” It is well-established that an appellant may not simply “announce a
position and leave it to this Court to discover and rationalize the basis for the claim.”45 By
failing to properly address the merits of its contention of error, NTH has waived the issue.46

VI. DIFFERING SITE CONDITIONS CLAUSE

The remaining arguments on appeal address what damages Ric-Man may potentially
receive if it succeeds on its claims. More to the point, the parties dispute whether Ric-Man may
recover lost profits. These lost profits fall into two categories: (1) lost profits on construction
projects that Ric-Man alleges it lacked the resources to bid because it was addressing problems
with CS-6, and (2) lost profits that Mancini Enterprises, a separate company owned by the same
three brothers that own Ric-Man, could have realized from the purchase of real estate in Florida.

The first argument presented by NTH concerns what the parties refer to as the “differing
site conditions” clause. We agree that the trial court’s interpretation of this clause was
erroneous.47

Article 4 of the General Conditions is entitled “Availability of Lands; Subsurface and
Physical Conditions; Hazardous Environmental Conditions; Reference Points[.]” Paragraph 4.02
specifically addresses “Subsurface and Physical Conditions[.]” This paragraph states:

45
Nat’l Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739 NW2d 121
(2007).
46
Id.
47
In this issue, NTH also asks us to consider the effect of another clause, found in Article 12 of
the general conditions. We decline to do so for several reasons. First, this particular clause was
not cited by NTH in its application for leave to appeal. As ordered by this Court, this appeal is
“limited to issues raised in the application and supporting brief.” Ric-Man Construction, Inc v
Neyer, Tiseo & Hindo Ltd, unpublished order of the Court of Appeals, entered February 17, 2016
(Docket No. 329159). Second, the statement of the question presented clearly asks this Court to
consider a single clause – the “differing site conditions” clause found in Article 4 of the General
Conditions. Because the clause found in Article 12 of the General Conditions has not been
raised in NTH’s statement of the question presented, this Court need not address the effect of
that particular clause. Ypsilanti Fire Marshal v Kircher, 273 Mich App 496, 543; 730 NW2d
481 (2007) (issues not specifically raised in the statement of questions presented are abandoned).
Finally, despite the extraordinary number of briefs submitted to the trial court, we have been
been unable to find any point at which NTH suggested that this clause was relevant or precluded
recovery of consequential damages. “Issues raised for the first time on appeal are not ordinarily
subject to review.” Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234;
507 NW2d 422 (1993).

-13-
 A. Reports and Drawings: The Supplementary Conditions identify:

1. those reports of explorations and tests of subsurface conditions at or
contiguous to the Site that [NTH] has used in preparing the Contract Documents;

2. those drawings of physical conditions in or relating to existing surface and
subsurface structures at or contiguous to the Site (except Underground Facilities)
that [NTH] has used in preparing the Contract Documents.

B. Limited Reliance by Contractor on Technical Data Authorized: [Ric-Man]
may rely upon the general accuracy of the “technical data” contained in such
reports and drawings, but such reports and drawings are not Contract Documents.
Such “technical data” is identified in the Supplementary Conditions. Except for
such reliance on such “technical data,” Contractor may not rely upon or make any
claim against [the OMIDDD] or [NTH], or any of their Related Entities with
respect to:

1. the completeness of such reports and drawings for [Ric-Man]’s purposes,
including, but not limited to, any aspects of the means, methods, techniques,
sequences, and procedures of construction to be employed by [Ric-Man], and
safety precautions and programs incident thereto; or

2. other data, interpretations, opinions, and information contained in such reports
or shown or indicated in such drawings; or

3. any Contractor interpretation of or conclusion drawn from any “technical data”
or any such other data, interpretations, opinions, or information.

Paragraph 4.03 of the General Conditions explains what steps are to be taken in the event
Ric-Man “believes that any subsurface or physical condition . . . is uncovered or revealed” to be
different than provided by the “technical data” referenced in the preceding paragraph. Under
such circumstances, Ric-Man must provide notice to the OMIDDD and NTH and cease work.
NTH must then review the condition and determine how to proceed. Under certain
circumstances, adjustments to the contract price and contract time must be made. Paragraph
4.03(C)(3) provides that:

If [the OMIDDD] and [Ric-Man] are unable to agree on entitlement to or on the
amount or extent, if any, of any adjustment in the Contract Price or Contract
Times, or both, a Claim may be made therefore as provided in Paragraph 10.05.
However, [the OMIDDD] and [NTH] shall not be liable to [Ric-Man] for any
claims, costs, losses, or damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals and all court or
arbitration or other dispute resolution costs) sustained by [Ric-Man] on or in
connection with any other project or anticipated project. [emphasis supplied.]

In this case, one of the disputes involves a claim that the soil conditions were not as
represented by NTH in the project designs. Clearly, the above language applies to that portion of
Ric-Man’s claim. Under this clause, Ric-Man’s claimed damages for lost profits sustained in

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relation to other projects or other anticipated projects are not recoverable. We disagree,
however, with NTH’s belief that this clause applies to the part of the claim stemming from
NTH’s design of the TERS. This part of the claim does not concern a differing soil condition,
but a design defect in a safety system.48

NTH contends that the language of Paragraph 4.03(C)(3) is not limited to claims
involving differing site conditions. And in truth, if one reads this specific paragraph in isolation,
it does not speak of differing site conditions. But contracts must be read as a whole.49 Reading
the paragraph as NTH suggests completely divorces the paragraph from the context that
surrounds it. Clearly, the type of claims at issue in Paragraph 4.03(C)(3) are those encompassed
by the multitude of provisions that precede it: claims involving differing subsurface or physical
conditions. NTH’s suggested reading of the provision must be rejected.

The trial court erred, however, when it limited the scope of Paragraph 4.03(C)(3) to
NTH’s conduct during the construction phase of the project. Ric-Man believes that Paragraph
4.03(C)(3) must be read “through” the exculpatory clause, which, as discussed, is limited to
NTH’s conduct during the construction phase of the project. There is absolutely no basis for
such a reading of Paragraph 4.03(C)(3). Paragraph 4.03(C)(3) does not reference Article 9 or
any of its provisions. Nor do the two provisions encompass the same subject matter. The
exculpatory clause eliminates liability entirely for certain conduct. Paragraph 4.03(C)(3) allows
for certain claims, but restricts the scope of damages available to Ric-Man.

Further, reading Paragraph 4.03(C)(3) as the trial court and Ric-Man suggest would
eliminate the limitations on damages altogether. The entire point of Paragraph 4.03 of the
General Conditions is to address liability in the event that NTH’s reports and drawings regarding
subsurface and physical conditions at the work site prove inaccurate. These reports and
drawings were, by necessity, prepared before the construction phase began. Thus, if the
limitations stated in Paragraph 4.03(C)(3) apply only to negligence occurring in the construction
phase, there is no conduct to which these same limitations could apply. Contract language must
be read in such a way to avoid rendering any language surplusage or nugatory.50 Thus, we
cannot interpret Paragraph 4.03(C)(3) in the same manner as the trial court and Ric-Man.51 The
paragraph is not limited to NTH’s conduct during the construction phase of the project.

48
NTH fails to explain how any problems with the TERS system resulted from differing site
conditions.
49
Detroit Pub Schools v Conn, 308 Mich App 234, 251-252; 863 NW2d 373 (2014).
50
Klapp, 468 Mich at 468.
51
Ric-Man also contends that NTH was not a third-party beneficiary to the Prime Contract, and
thus, may not enforce the differing site conditions clause. As discussed in Issue III, this
argument ignores the trial court’s reason for permitting NTH to enforce clauses of the agreement
– agency.

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 VII. LIMITATIONS ON “CLAIMS”

The second contractual provision cited by NTH as a bar to Ric-Man’s claims for lost
profits is found in Article 10 of the General Conditions. Article 10 of the General Conditions is
entitled “Changes in the Work; Claims.” Paragraph 10.05 explains the process for resolving
“Claims,” a term that is specifically defined earlier in the General Conditions. Pursuant to
Paragraph 10.06:

10.06 Certain Limitation on Contractor Claims for Damages

A. [Ric-Man] agrees that in any Claim, its damages will be computed pursuant to
Article 1, and in no case shall its damages exceed the actual cost incurred to
perform the Work plus anticipated profit arising from the Work.

B. In any Claim or any other suit or proceeding against the [OMIDDD], in
addition to any costs excluded by Paragraph 11.02.B, [Ric-Man] waives damages
incurred by [Ric-Man] for [other specific areas of damages].

NTH contends that Paragraph 10.06(A) precludes Ric-Man from seeking its claimed
consequential damages. This is because NTH believes that the instant complaint is a Claim, and
thus, the limitations found in Paragraph 10.06(A) apply. Ric-Man’s argument in response is
identical to its treatment of the differing site conditions clause. For the same reasons discussed
in the prior issue, we find Ric-Man’s argument unavailing.

That said, we do not find that Paragraph 10.06 has any application to this matter because
a Claim under the General Conditions does not include claims of any sort made against NTH.
We reach this conclusion because the process for resolving Claims is not compatible with claims
made against NTH. Paragraph 10.05, entitled, “Claims,” first explains that “[a]ll Claims . . .
shall be referred to [NTH] for decision.” NTH then has 30 days to render its decision. NTH’s
decision is “final and binding upon [the OMIDDD] and [Ric-Man], unless [the OMIDDD] or
[Ric-Man] invoke the dispute resolution procedure set forth in Article 16 within 30 days of such
denial.” Under Article 16 of the General Conditions, any decision by NTH is “final and binding
30 days after receipt of written notice of [NTH]’s action or decision unless, within that time
period, [the OMIDDD] or [Ric-Man] gives to the other party written notice of intent to submit
the Claim to a process of bilateral negotiations as set forth below.” A negotiation process
between the OMIDDD and Ric-Man follows. “If the Claim is not resolved by negotiation,
[NTH]’s action . . . shall become final and binding 30 days after termination of the negotiations
unless, within that time period, [the OMIDDD] or [Ric-Man] agrees with the other party to
submit the Claim to another dispute resolution process.”

The procedure described above is clearly aimed at resolving disputes between the
OMIDDD and Ric-Man. It is also entirely incompatible with claims raised against NTH. It
makes little sense for NTH to serve as the arbiter of claims against itself. It also makes no sense
for the OMIDDD and Ric-Man to engage in negotiations or other alternative dispute resolution
procedures when a claim is made against NTH. The above process makes complete sense,
however, if it is understood that Claims exist only between Ric-Man and the OMIDDD.

-16-
 NTH contends that claims against it are included within the definition of a Claim. A
Claim is defined as:

10. Claim - A demand, assertion, or legal or arbitration proceeding by [the
OMIDDD] or [Ric-Man] seeking an adjustment of Contract Price or Contract
Times, or both, or other relief with respect to the terms or performance of the
Contract. A demand for money or services by a third party is not a Claim.

The claims at issue in this suit could conceivably fit into the definition of a Claim under
this provision. Ric-Man’s complaint could be described as “[a] . . . legal . . . proceeding by . . .
[Ric-Man] seeking . . . other relief with respect to the terms or performance of the Contract.”
But the definition of a Claim does not explicitly provide that a claim against NTH is a Claim as
defined by the General Conditions. And ultimately, this Court must read the contract as a whole,
“giving harmonious effect, if possible, to each word and phrase.”52 If a Claim includes those
made by Ric-Man against NTH, the procedures for resolving such a Claim make little sense.
Reading the definition of a Claim in conjunction with the provisions covering the resolution of
such Claims, the only logical, harmonious result is to limit the definition of a Claim to those
brought by the OMIDDD or Ric-Man against each other.

NTH contends that including Ric-Man’s claims against it is consistent with Paragraph
10.06. NTH explains that subsection (A) of this paragraph places limitations on “any Claim,”
but subsection (B) places limitations only on “any Claim or any other suit or proceeding against
the [OMIDDD].” NTH argues that there must be a difference between “any Claim,” as
discussed in the first subsection, and Claims against the OMIDDD, as discussed in the second.
NTH contends that the difference is that “any Claim” includes claims against the OMIDDD and
against NTH.

We reject NTH’s strained reading of paragraph 10.06. Subsection (A) describes how
Ric-Man’s damages will be calculated with regard to Claims, while subsection (B) describes
limitations applicable both to Claims and to other suits or proceedings. Both subsections,
however, refer to issues raised by Ric-Man against the OMIDDD. The additional language
“against the [OMIDDD]” found in subsection (B) is necessitated because that subsection
describes both Claims and “other suit[s] or proceeding[s] . . . .” This additional language does
not recognize different potential defendants, but rather, different types of actions, all of which
may be brought by Ric-Man against the OMIDDD.

VIII. COLLATERAL ESTOPPEL

NTH also contends that Ric-Man is collaterally estopped from seeking lost profits in this
matter because in its arbitration claim against the OMIDDD, the arbitration panel declined to
award the same lost profits to Ric-Man. We disagree.

As our Supreme Court has explained:

52
Wilkie v Auto-Owners Ins Co, 469 Mich 41, 50 n 11; 664 NW2d 776 (2003).

-17-
 Generally, for collateral estoppel to apply three elements must be satisfied:
(1) a question of fact essential to the judgment must have been actually litigated
and determined by a valid and final judgment; (2) the same parties must have had
a full and fair opportunity to litigate the issue; and (3) there must be mutuality of
estoppel. Mutuality of estoppel requires that in order for a party to estop an
adversary from relitigating an issue that party must have been a party, or in privy
to a party, in the previous action. In other words, the estoppel is mutual if the one
taking advantage of the earlier adjudication would have been bound by it, had it
gone against him.[53]

It is also well established that collateral estoppel “applies to factual determinations made during
grievance hearings or arbitration proceedings.”54

In the arbitration proceeding, Ric-Man brought breach of contract claims against the
OMIDDD that sought damages for the problems with the TERS design and the soil conditions
encountered on the project. The arbitration panel found in favor of Ric-Man with respect to both
claims, and awarded Ric-Man substantial direct damages. It declined, however, to award Ric-
Man its claimed lost profits, stating that Ric-Man “failed to meet its burden that the claimed
consequential damages proximately resulted from any breach of contract by [the] OMIDDD.”
The question is whether this finding prevents Ric-Man from seeking the same consequential
damages in this case.

The trial court found that the issue decided by the arbitration panel was not identical to
that at issue in this case, and thus, collateral estoppel did not apply. In doing so, the trial court
noted the differences between contract damages and tort damages. And indeed, there is a
difference. “In a breach of contract case, the plaintiff must establish a causal link between the
asserted breach of contract and the claimed damages.”55 Only those damages “that are the direct,
natural, and proximate result of the breach[]” may be recovered.56 Contract damages also must
meet a standard of foreseeability. The damages available in a breach of contract case are those
that arise naturally from the breach, or which can reasonably be considered to have been within
the contemplation of the parties at the time the contract was made.57 The standard is objective;
damages that the breaching party either knew or should reasonably have known would occur are

53
Monat v State Farm Ins Co, 469 Mich 679, 683-685; 677 NW2d 843 (2004) (quotation marks,
brackets, and citations omitted).
54
Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995).
55
Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 118-119; 839 NW2d 223
(2013).
56
Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003).
57
Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980).

-18-
recoverable.58 This standard is applied when examining “the element of foreseeability to make
out a prima facie case for lost profits.”59

In this matter, however, the relevant claim is one of negligent misrepresentation. If Ric-
Man prevails on this claim, it is entitled to all damages that “are the legal and natural
consequences of the wrongful act and are such as, according to common experience and the
usual course of events, might reasonably have been anticipated.”60 Ric-Man must establish
“both causation in fact and proximate causation, the latter of which involves the question of
whether the defendant should be held legally responsible for the injury.”61 The cause-in-fact
element requires a plaintiff to “present substantial evidence from which a jury may conclude that
more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have
occurred.”62 Such evidence must establish at least a reasonable probability that the defendant’s
negligent conduct caused the claimed injury.63 “[T]he legal concept of proximate causation
depends in part on foreseeability, that is, whether the risk of harm to the victim was foreseeable
and whether the result of that conduct and any intervening causes were foreseeable.”64
“Proximate cause is that which operates to produce particular consequences without the
intervention of any independent, unforeseen cause, without which the injuries would not have
occurred.”65 “To find proximate cause, it must be determined that the connection between the
wrongful conduct and the injury is of such a nature that it is socially and economically desirable
to hold the wrongdoer liable.”66

Thus, while contract damages and tort damages encompass similar principles, the two are
not identical. Our Supreme Court, too, has viewed the two as distinguishable.67 “The doctrine
[of collateral estoppel] is strictly applied in that the issues in both cases must be identical, and
not merely similar.”68 While there are similarities between the scope of damages available in
contract and in tort, we cannot say that they are identical.

58
Lawrence v Will Darrah & Assoc, Inc, 445 Mich 1, 13; 516 NW2d 43 (1994).
59
Id.
60
Law Office of Lawrence J. Stockler, PC, 174 Mich App at 33-34.
61
Id. at 34.
62
Skinner v Square D Co, 445 Mich 153, 164-165; 516 NW2d 475 (1994).
63
Id. at 166.
64
Law Office of Lawrence J. Stockler, PC, 174 Mich App at 34.
65
Helmus v Dep’t of Transp, 238 Mich App 250, 256; 604 NW2d 793 (1999).
66
Id.
67
See Corl v Huron Castings, Inc, 450 Mich 620, 629; 544 NW2d 278 (1996) (“Thus, in the face
of this Court’s reluctance to extend tort remedies to cases pleaded and proven in contract, we
elect to continue to distinguish between tort and contract remedies.”).
68
Keywell and Rosenfeld v Bithell, 254 Mich App 300, 340; 657 NW2d 759 (2002).

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 Nor is the basis for the arbitration panel’s ruling entirely clear. The arbitration panel’s
decision could be read as a finding that the claimed consequential damages did not result, as a
factual matter, from the problems with NTH’s designs. It could also be read as a finding that the
OMIDDD did not foresee, or should not have reasonably foreseen, that NTH’s errors would
cause such damages. “Collateral estoppel applies only when the basis of the prior judgment can
be clearly, definitely, and unequivocally ascertained.”69 That cannot be done in this case.

NTH’s brief primarily addresses whether the breach of contract claims brought in
arbitration were identical to the negligence claims brought in this matter. In this regard, we do
not disagree with NTH. Clearly, the basis for the breach of contract claims against the OMIDDD
was the same conduct that Ric-Man alleges was negligent in its suit against NTH. But the
relevant inquiry is more specific. The precise issue is causation, and specifically, whether
NTH’s conduct caused Ric-Man’s damages. Because the concept of causation in the breach of
contract context is not perfectly identical to the concept of causation in the negligence context,
that Ric-Man failed to demonstrate causation in the arbitration proceeding does not collaterally
estop it from seeking the same damages here.70

IX. STANDING AND DUTY TO MANCINI ENTERPRISES

In its cross-appeal, Ric-Man argues that the trial court erred when it found that Ric-Man
could not pursue a claim of lost profits when those profits were lost not by Ric-Man, but by
Mancini Enterprises. We find no error in the trial court’s decision. This Court reviews “de novo
both a trial court’s decision to grant or deny a motion for summary disposition and issues
concerning the application of the doctrine of collateral estoppel.”71

We first address whether Ric-Man has standing to recover lost profits on behalf of
Mancini Enterprises. 72 “Whether a party has standing is a question of law subject to review de
novo.”73

69
Ditmore v Michalik, 244 Mich App 569, 578; 625 NW2d 462 (2001).
70
We do wish to note our disagreement with Ric-Man’s position on appeal. Ric-Man argues that
mutuality of estoppel is missing in this case, and for that reason, collateral estoppel cannot apply.
This argument is irrelevant because mutuality of estoppel is not required when collateral estoppel
is asserted defensively, as it is here by NTH. Monat, 469 Mich at 691-692. We find no support
for Ric-Man’s belief that this rule does not apply when the prior proceeding is an arbitration.
71
Barrow v Pritchard, 235 Mich App 478, 480; 597 NW2d 853 (1999).
72
The theory behind this claim is as follows. Ric-Man explains that it is one of several
companies owned by the same three brothers. One of these companies, Mancini Enterprises,
develops real estate in Florida. According to Ric-Man, profits from Ric-Man may be sent to the
other companies, including Mancini Enterprises, to use in that company’s ventures. Ric-Man
contends that because of the issues related to its work for the OMIDDD, it did not have profits to
send to Mancini Enterprises, which would have been used by Mancini Enterprises to purchase

-20-
 “An action must be prosecuted in the name of the real party in interest.”74 “A real party
in interest is one who is vested with the right of action on a given claim, although the beneficial
interest may be in another.”75 “This standing doctrine recognizes that litigation should be begun
only by a party having an interest that will assure sincere and vigorous advocacy.”76

In Michigan, “[i]t is a well-recognized principle that separate corporate entitles will be
respected.”77 Even subsidiaries of a parent company are generally treated as separate corporate
entities; it is only if “a subsidiary [has] become a mere instrumentality of the parent [that] its
separate corporate existence will be disregarded.”78 “The doctrine of standing provides that a
suit to enforce corporate rights or to redress or prevent injury to a corporation, whether arising
from contract or tort, ordinarily must be brought in the name of the corporation, and not that of a
stockholder, officer, or employee.”79 Here, there exist two distinct corporate entities: Ric-Man
and Mancini Enterprises. Ric-Man has filed the instant suit, and it is the only named plaintiff. In
part, Ric-Man seeks damages allegedly incurred by Mancini Enterprises in the form of lost
profits. Ric-Man, which is not the real party in interest with regard to these damages, has no
standing to recover those damages. Accordingly, the trial court properly held that Ric-Man
could not seek to recover the lost profits of Mancini Enterprises.

Ric-Man first contends that the trial court erred in applying the standards for a motion
brought under MCR 2.116(C)(8) because it failed to consider evidence, in the form of affidavits
and testimony, that could have supported a conclusion that there was an inexorable flow of
profits between Ric-Man and Mancini Enterprises. A motion brought under MCR 2.116(C)(8) is
decided by looking only to the pleadings.80 Assuming (as Ric-Man does) that this portion of the
motion was decided under MCR 2.116(C)(8), the trial court would have erred had it done as Ric-
Man wishes and considered evidence beyond the pleadings.81

Ric-Man primarily relies on Mars, Inc v Coin Acceptors, Inc,82 a federal circuit court
decision, as support for its belief that it may pursue a claim on behalf of a related, but separate
real estate in Florida. Because Mancini Enterprises did not purchase this real estate, it lost
profits that could have been realized from the development of the property.
73
Groves v Dep’t of Corrections, 295 Mich App 1, 4; 811 NW2d 563 (2011).
74
Mich Nat’l Bank v Mudgett, 178 Mich App 677, 679; 444 NW2d 534 (1989).
75
Id.
76
Id.
77
Seasword v Hilti, Inc, 449 Mich 542, 547; 537 NW2d 221 (1995).
78
Id. at 548 (quotation marks and citations omitted).
79
Belle Isle Grill Corp v Detroit, 256 Mich App 463, 474; 666 NW2d 271 (2003).
80
Maiden, 461 Mich at 119-120.
81
In any event, what Ric-Man argues is that there exists evidence that its profits inexorably flow
to Mancini Enterprises. The trial court assumed this was true for purposes of its decision.
82
Mars, Inc v Coin Acceptors, Inc, 527 F3d 1359 (CA Fed, 2008).

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corporation. Mars, Inc involved “standing and damages for patent infringement.”83 The patent
at issue concerned technology used in vending machine coin changers.84 While the plaintiff,
Mars, owned the patent, its subsidiary, Mars Electronics International, Inc. (MEI), produced the
coin changers, paying a royalty to Mars.85 As damages in its patent infringement suit, Mars
sought lost profits for lost sales of coin changers. On the motion of the defendant, Coinco, the
district court dismissed this part of the claim for the reason that Mars itself did not sell coin
changers, and thus, had not lost any sales.86 In doing so, the trial court relied on Poly-America
LP v GSE Lining Tech, Inc,87 a case in which the federal circuit court held that “a patent holder is
not entitled to recover under a lost profits theory as a result of sales lost by a sister corporation,
absent a showing that the patent holder itself had lost profits.”88 The district court also
concluded that “Mars’s arrangement with [its subsidiary,] MEI[,] was a licensing arrangement,
rather than an arrangement where profits flowed inexorably from MEI to Mars . . . .”89

On appeal, Mars argued that “by virtue of the parent-subsidiary relationship and its
consolidated financial statements, all MEI’s lost profits were inherently lost profits of Mars.”90
Mars sought to distinguish Poly-America on the basis that because of its corporate structure
relative to MEI, MEI’s profits flowed inexorably to Mars.91 The circuit court rejected the
argument, agreeing with the district court that the facts presented did not establish that, as a
factual matter, MEI’s profits flowed inexorably to Mars.92 The circuit court then explained:

Because we conclude that MEI’s profits did not—as Mars argued—flow
inexorably to Mars, we, like the Poly-America court, need not decide whether a
parent company can recover on a lost profits theory when profits of a subsidiary
actually do flow inexorably up to the parent. See Poly-America, 383 F3d at 1311
(“[I]t is not clear here whether Poly-America has itself suffered lost profits from
the infringement, a matter that may be dealt with on remand . . . .”) We hold
simply that the facts of this case cannot support recovery under a lost profits
theory.[93]

83
Id. at 1362.
84
Id.
85
Id. at 1362-1363.
86
Id. at 1362.
87
Poly-America LP v GSE Lining Tech, Inc, 383 F3d 1303 (CA Fed, 2004).
88
Mars, Inc, 527 F3d at 1365, citing Poly-America LP, 383 F3d at 1311.
89
Id. (quotation marks omitted).
90
Id. at 1367 (quotation marks omitted).
91
Id.
92
Id.
93
Id.

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 Ric-Man contends that Mars, Inc stands for the premise that if one company’s profits
inexorably flow up to another company, the latter has standing to seek damages on behalf of the
former. As is plain from the final paragraph quoted above, Mars, Inc specifically disclaimed
creating such a rule. Mars, Inc is also distinguishable because it is a patent suit and because it
involved a parent-subsidiary relationship, neither of which exists here. Further, Mars, Inc, as a
decision of a lower federal court, is not binding on this court.94

Ric-Man contends that the principle it believes was recognized by Mars, Inc, is consistent
with Michigan law. Ric-Man’s contention is without merit. Ric-Man first compares this matter
to agency law. Ric-Man explains that it, Mancini Enterprises, and several other companies are
all owned by the same three brothers. Ric-Man contends that these companies hold themselves
out as part of the same enterprise. Ric-Man then contends that it is an agent of the greater
enterprise. Ric-Man explains that an undisclosed principal may sue for the breach of a promise
made to the agent.95 Ric-Man argues that the reverse should also be true, in that an agent should
be able to sue on behalf of the undisclosed principal. Ric-Man contends that it was an agent to
the greater enterprise, and as such, should be able to seek lost profits on behalf of Mancini
Enterprises.

Ric-Man’s argument contains a variety of flaws. First, it is premised on the existence of
an agency relationship, which Ric-Man claims exists here with it serving as an agent to the
collective enterprise. At an absolute minimum, any agency relationship must have two parties:
an agent and a principal.96 The collective enterprise for which Ric-Man purports to serve as an
agent, however, exists only in Ric-Man’s imagination. The purported enterprise does not exist in
any legally recognized way. That the three brothers who own Ric-Man apparently hold out their
group of companies as an enterprise does not create a legal entity. Thus, there exists no
principal, and accordingly, no agency.

Even if the purported enterprise was a legally recognized entity, Ric-Man’s argument
makes little sense. Assuming that Ric-Man could seek redress on behalf of its principal, Ric-
Man would be entitled to seek redress based on wrongs done to its purported principal, the
collective enterprise. But that is not what Ric-Man seeks to do. Rather, Ric-Man seeks to
recover the lost profits of Mancini Enterprises. Under Ric-Man’s theory, Mancini Enterprises is
but another agent of the collective enterprise. Thus, even accepting Ric-Man’s argument, all that
Ric-Man has shown is that there exist two agents of the same purported principal. We are

94
State Treasurer v Sprague, 284 Mich App 235, 241-242; 772 NW2d 452 (2009). The parties
do not dispute the fact that Mars, Inc has never been adopted by a Michigan appellate court. We
have not found a single Michigan case citing Mars, Inc.
95
See Socomet, Inc v Detroit, 33 Mich App 626, 632; 190 NW2d 551 (1971) (“[A]n undisclosed
principal is entitled, as against third persons dealing with his agent, to the benefit of the agent’s
acts on his behalf.”).
96
See St Clair Intermediate Sch Dist v Intermediate Educ Ass/MEA, 458 Mich 540, 557; 581
NW2d 707 (1998) (“[I]n its broadest sense agency includes every relation in which one person
acts for or represents another by his authority.” (quotation marks and citation omitted)).

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unaware of any authority, and Ric-Man cites none, permitting an agent to seek damages on
behalf of another agent.

The second comparison drawn by Ric-Man is to the common control doctrine recognized
in the context of ERISA and the MPAAA. As explained by the United States District Court for
the Eastern District of Pennsylvania:

ERISA was enacted in 1974 to address the increasingly-apparent
insecurity of workers’ vested pension funds. Among its many provisions, ERISA
required employers to make contributions that would produce pension plan assets
sufficient to meet future vested pension liabilities and if a plan became insolvent,
made any employer who had withdrawn from the plan during the previous five
years liable for a fair share of the plan's underfunding.

Under ERISA as originally enacted, therefore, an employer could
withdraw from an underfunded pension plan without any responsibility for the
underfunding, as long as the plan remained solvent for five years after the
withdrawal. This liability structure encouraged an employer to withdraw from a
financially shaky plan and risk paying its share if the plan later became insolvent,
rather than to remain and (if others withdrew) risk having to bear alone the entire
cost of keeping the shaky plan afloat.

To correct this problem, Congress passed the MPPAA in 1980 and
imposed a withdrawal charge on all employers withdrawing from an underfunded
plan (whether or not the plan later became insolvent). This withdrawal liability
represented the pro rata share of the unfunded vested liability remaining in the
fund at the time of withdrawal, subject to certain adjustments. The provision of
the MPPAA establishing this liability is 29 U.S.C. § 1381(a): “If an employer
withdraws from a multiemployer plan in a complete withdrawal or a partial
withdrawal, then the employer is liable to the plan in the amount determined
under this part to be the withdrawal liability.”[97]

By statute, both the employer and other businesses under the common control of the
employer are liable for this withdrawal liability.98 Ric-Man contends that under this common
control doctrine, it may be held liable for any withdrawal liability that might be owed principally
by Mancini Enterprises. Ric-Man reasons that if it could potentially be held liable in such a way,
it should also be able to seek damages on behalf of Mancini Enterprises. Simply put, the matter
before this Court has absolutely nothing to do with ERISA, the MPPAA, or the federal statute
holding those within the common control of an employer liable for the employer’s withdrawal
liability under those statutory schemes. Nor is there any logical reason to conclude that because

97
Brown v Astro Holdings, Inc, 385 F Supp 2d 519, 527 (ED Pa, 2005) (quotation marks and
citations omitted).
98
29 USC § 1301(b)(1). See also Brown, 385 F Supp 2d at 528.

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Ric-Man could possibly be liable for Mancini Enterprises’s withdrawal liability, it is vested with
the right to recover lost profits on behalf of Mancini Enterprises. The argument has absolutely
no basis in law or logic.

The trial court also rejected Ric-Man’s attempt to seek lost profits on behalf of Mancini
Enterprises for a second, independent reason: that NTH owed no duty to Mancini Enterprises.99
Ric-Man contends that this conclusion is erroneous because “the law of agency imposes a duty
upon NTH to an undisclosed principal . . . .”100 Ric-Man explains that as a general matter,
undisclosed principals are common in the construction field, and because of that fact, NTH
should have foreseen that Mancini Enterprises could be harmed by NTH’s design defects. But
there simply is no agency relationship here. As discussed, there can be no agency relationship
with the purported enterprise because there is no such entity. To the extent Ric-Man can be
understood as arguing that Mancini Enterprises was an undisclosed principal in relation to the
Prime Contract, this argument clearly fails. Ric-Man contracted with the OMIDDD purely on its
own behalf. Ric-Man was to perform all obligations under the Prime Contract. Mancini
Enterprises was in no way a part of the agreement between Ric-Man and the OMIDDD. Ric-
Man fails to demonstrate the existence of any duty owed to Mancini Enterprises.

X. LEAVE TO AMEND

Finally, Ric-Man asks this Court to either direct the trial court to grant its requests for
leave to amend its complaint, or to direct the trial court to consider the requests, which were
made pursuant to MCR 2.116(I)(5). We see no need for such a directive. “This Court reviews a
trial court’s decision regarding amendment of a complaint pursuant to MCR 2.116(I)(5) for an
abuse of discretion.”101

In its response to the motion for summary disposition, Ric-Man asked that in the event
any portion of the motion were granted, Ric-Man be allowed an opportunity to amend its
complaint pursuant to MCR 2.116(I)(5). Under this court rule, if a motion is granted pursuant to
MCR 2.116(C)(8), (C)(9), or (C)(10), the trial court “shall give the parties an opportunity to
amend their pleadings as provided by MCR 2.118, unless the evidence then before the court
shows that amendment would not be justified.” The trial court granted summary disposition with
regard to the claim of lost profits incurred by Mancini Enterprises, but did not specifically rule
on the question of whether Ric-Man would be able to amend its complaint. Then, in Ric-Man’s
motion for reconsideration, Ric-Man again requested that as an alternative to reconsidering its

99
Whether a defendant owes a plaintiff a duty of care is a question of law, reviewed de novo on
appeal. Fultz, 470 Mich at 463.
100
Michigan does recognize that an undisclosed principal may “claim the benefit of a contract,
maintain an action thereon, and enforce any remedies which might have been pursued by the
agent himself . . . .” Grand Rapids Milk Producers Ass’n v McGavin, 295 Mich 477, 481; 295
NW 232 (1940).
101
Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 127, 138; 676 NW2d 633
(2003).

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holding, the trial court provide Ric-Man with the opportunity to amend its complaint to add
Mancini Enterprises as a plaintiff. Once again, the trial court did not specifically rule on the
request. However, at no point did Ric-Man file a motion seeking leave to amend its complaint,
nor did it present the trial court with a proposed amendment.

Ric-Man now asks this Court to remand the matter and direct the trial court to either grant
leave to amend, or to consider Ric-Man’s “numerous requests for leave to amend its complaint.”
We do not see the necessity of such a directive. Ric-Man has never filed a motion for leave to
amend. It has explained only that an amendment would add Mancini Enterprises as a plaintiff.
Ric-Man states that such an amendment would cure most or all of the defects with the lost profits
claim, but that does not appear to be the case. For example, simply naming Mancini Enterprises
would not change the fact that Ric-Man has yet to identify a legally recognized duty owed by
NTH to Mancini Enterprises. Issues may also arise related to the statute of limitations. Under
the circumstances, it is not at all clear that an amendment to the complaint is warranted.

Nor do we find it necessary to direct the trial court to consider the requests made by Ric-
Man. The trial court has never indicated that it would refuse to consider a proper motion for
leave to amend the complaint. When the matter returns to the trial court, Ric-Man can file such a
motion. The parties (and ultimately, the trial court) would then have an opportunity to explain
why leave to amend should or should not be granted. But absent any indication from the trial
court that it would not consider such a motion, there is no need for further action by this Court.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.

/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra

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