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### STATE OF MICHIGAN

COURT OF APPEALS

ERIN NASEEF,

Plaintiff-Appellant, UNPUBLISHED January 19, 2017

v No. 329054
Oakland Circuit Court WALLSIDE, INC., LC No. 2014-143534-NO

Defendant,
and

HFS CONSTRUCTION, LLC,

Defendant-Appellee.

ERIN NASEEF,

Plaintiff-Appellant,

v No. 329505
Oakland Circuit Court WALLSIDE, INC., LC No. 2014-143534-NO

Defendant-Appellee.

Before: R IORDAN , P.J., and F ORT H OOD and S ERVITTO , JJ.

P ER C URIAM

.
In these consolidated appeals, plaintiff appeals two orders of the trial court dismissing her complaints against defendants Wallside, Inc. and HFS Constructi on, LLC under MCR 2.116(C)(10) (no genuine issue of m aterial fact). We affirm in Docket No. 329505, and reverse in Docket No. 329054 and remand for pr oceedings consistent with this opinion.

I. FACTS

Plaintiff alleges that her foot was injured when a window was dropped on her foot by a
service technician sent to her home to install/repair a window. Plaintiff filed a complaint seeking-2- damages stemming from the injury which she alleged was caused b y one of defendant, Wallside, Inc.’s (Wallside) employees. Wallside sought summary dispositi on under MCR 2.116(C)(10), arguing that the work was perfor med by its independent contract or, defendant HFS Construction, LLC, (HFS), and that Wallside was not responsible for any negli gence committed by HFS. Wallside attached to its motion a copy of an “Installer’s Agree ment” between it and HFS, in which HFS agreed that it was an independent contractor. HFS fu rther agreed that it would be solely responsible for hiring, paying, and supervising its empl oyees and establishing their working hours, that it would pr ovide the necessary tools, and t hat it would be solely responsible for any damages resulting from work done under the agreement. Wallside also provided an affidavit executed by a long-time Wallside employee, who, consi stent with the above agreement, averred that HFS was an independent contractor of Wallside, tha t “Wallside does not provide any rules or regulations regardi ng HFS’ work,” that the “means, methods and planning of the work is left exclusively to HFS,” that “Wallside does not contr ol or direct how HFS’ work should be accomplished,” and that “Wallside does not provide an y tools or workers to HFS.”

Wallside also attached a service ticket for the work performed by HFS on plaintiff’s window, which indicates that HFS was paid an amount that varied with the work involved. Wallside also provided a summary of the incident signed by Adam Dandron, who was repairing
the window on behalf of HFS when the accident occurred. Dandro n attested that he did not drop a window on plaintiff’s foot. Rather, he maintained that the w indow sash, weighing between seven and ten pounds, fell from t he window and landed on plaint iff’s foot.

Plaintiff responded to Wallside’s motion by arguing that the r equest for summary disposition was “absurd” because the individuals repairing her window were either Wallside’s employees or its ostensible agents and because discovery had no t yet been completed. The only relevant evidence plaintiff att ached to her reply was a screens hot of a webpage on Wallside’s
website titled “Our Installati on,” which plaintiff contended im plies that those working on Wallside windows were Wallside employees, and thus ostensible a gents of the company.
Plaintiff attached no affi davits to her response.

The trial court found that plain tiff failed to present any evi dence to counter the evidence
Wallside attached to its summa ry disposition motion. The trial court therefore awarded summary judgment to Wallside. However, th e trial court granted plainti ff’s motion to amend her complaint to add HFS as a defendant.

Plaintiff did amend her complaint, now alleging that she was i njured when HFS employees or ostensible agents ac ted negligently in repairing h er window. HFS subsequently filed a motion for summary disposition pursuant to MCR 2.116(C) (10), asking the trial court to dismiss the case because the service technician who was working on plaintiff’s window when she was allegedly injured was an independent contractor of HFS, and, therefore, HFS was not liable for any negligence on his part. HFS attached to this mo tion a copy of Dandron’s summary of the incident (mentioned above) and a copy of an agreement be tween HFS and Dandron in which the latter agreed to be “an independent contractor solely responsible for his or her actions and inactions.” HFS also attached a signed affidavit by the em ployee of HFS responsible for its day-to-day operations, who averred that Dandron was an independ ent contractor, that he did not instruct Dandron “concerning the methods, processes, or procedu res by which he was to repair-3- the window” at plaintiff’s resid ence, and that he did not assig n any other independent contractors to work with Dandron on plaintiff’s window.

Plaintiff responded to this mo tion by arguing that the work pe rformed by Dandron was no different than that performed by a traditional employee. She f urther argued that summary disposition was inappropriate because the parties had not yet c ompleted discovery. Plaintiff did not provide any affidavits or other documentary evidence to cou nter that produced by HFS. Instead, plaintiff asserted that she was unable to produce any documentary evidence because discovery was in its early stages.

The trial court concluded that because plaintiff did not provi de an affidavit or other documentary evidence to counter that produced by HFS, HFS was e ntitled to summary disposition pursuant to MCR 2.116(C)(10).

II. ANALYSIS

Plaintiff challenges the court’s action in both cases. This C ourt reviews “a grant of summary disposition de novo.” Peters v Dep’t of Corrections , 215 Mich App 485, 486; 546 NW2d 668 (1996). When reviewing a motion for summary dispositi on under MCR 2.116(C)(10), this Court considers “ ‘the pleadings, admissions , and other evidence submitted by the parties in the light most favorable to the nonmoving party. ’ ” Sallie v Fifth Third Bank , 297 Mich App 115, 117-118; 824 NW2d 238 (2012), quoting Latham v Barton Malow Co , 480 Mich 105, 111, 746 NW2d 868 (2008). Summary disposition is appropri ate if there is no genuine issue regarding any material fact and the moving party is entit led to judgment as a matter of law.
Latham , 480 Mich at 111.

“A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). Under this court rul e, a party “may move for dismissal of or judgment on all or part of a clai m,” MCR 2.116(B)(1), where “[e]xcept concerning the amount of damages, there is no genuine issue concerning any material fact, and the moving party is e ntitled to judgment or partial j udgment as a matter of law.” MCR 2.116(C)(10). “If the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law.” Franchino v Franchino , 263 Mich App 172, 181; 687 NW2d 620 (2004). “A genuine issue of material fa ct exists when the record, drawing all reasonable inferen ces in favor of the nonmoving par ty, leaves open an issue on
which reasonable minds could differ.” Campbell v Kovich , 273 Mich App 227, 230; 731 NW2d 112 (2006).

MCR 2.116(G)(4) speaks to how the movant is to argue a (C)(10) motion, and how the nonmoving party must respond:

A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as pr ovided in this rule, an adverse party may not r est upon the mere allegations o r denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth-4- specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if ap propriate, shall be entered against him or her.

“A litigant’s mere pledge to establish an issue of fact at tria l cannot survive summary disposition under MCR 2.116(C)(10). The court rule plainly requires the ad verse party to set forth specific facts at the time of the motion showing a genuine issue for tri al.” Maiden , 461 Mich at 121. Further, in addition to the iden tified affidavits, a non-moving party may also respond to a (C)(10) motion by providing “depositions, admissions, or other document ary evidence” that show that there is a genuine factual issu e for the trier of fact. MCR 2. 116(G)(3).

“The general rule is that an employer of an independent contra ctor is not liable for the contractor’s negligence.” Reeves v Kmart Corp , 229 Mich App 466, 471; 582 NW2d 841 (1998). The “control test” is u sed in this jurisdiction to det ermine whether a particular individual is an independent contractor or an employee for whom an employe r is vicariously liable in negligence. See Hoffman v JDM Assoc, Inc , 213 Mich App 466, 468; 540 NW2d 689 (1995). “The control theory was the traditional test used at common law to delineate the master-servant relationship” and is used by our courts “to define and limit th e scope of the master’s liability under the doctrine of respondeat superior.” Id . (internal quotation marks and citation omitted). Under this test, “ ‘ [a]n independent contractor is one w ho, carrying on an independent business, contracts to do a piece of work according to his own methods , and without being subject to control of his employer as to th e means by which the result is to be accomplished, but only as to
the result of the work.’ ” Campbell , 273 Mich App at 234, quoting Utley v Taylor & Gaskin, Inc

, 305 Mich 561, 570; 9 NW2d 842 (1943) (emphasis by Campbell Court). In Utley , 305 Mich at 570 (internal quotation marks and citation omitted), our Suprem e Court provided some guidance for determining who controls the work performed:

Generally the circumstances which go to show one to be an indep endent contractor, while separately they may not be conclusive, are th e independent nature of his business, the existence of a contract for the per formance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his cont rol, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.

In this case, each defendants’ motion for summary disposition was supported by documentary evidence. Wallside produced evidence which showed that HFS signed an agreement with Wallside under which HFS would be an independent contractor. Wallside also provided evidence that it did not control the work performed by HFS while it was in progress, did not provide employees or tools to HFS, and paid HFS at a ra te which varied by the job performed. HFS produced evidence of an independent contractor agreement between Dandron and HFS, that HFS not instruct Dandron on the manner in which h e was to complete the job, and that HFS did not send additional employees to assist Dandron.

The only relevant evidence plai ntiff attached to her response to Wallside’s motion for summary disposition was a printout from Wallside’s website, whi ch plaintiff claims shows that Wallside held out its contractors as its employees, therefore m aking these contractors its ostensible agents. “An agency is ostensible when the principal intentionally or by want of-5- ordinary care, causes a third person to believe another to be h is agent who is no t really employed by him.” Grewe v Mt Clemens Gen Hosp , 404 Mich 240, 252; 273 NW2d 429 (1978) (internal quotation marks and citation omitted). To prove that a contrac tor is the ostensible agent of the principle, plaintiff mu st prove three things:

(First) the person dealing with the agent must do so with belie f in the agent’s authority and this belief must be a reasonable one; (second) su ch belief must be generated by some act or neglect of the principal sought to be charged; (third) and the third person relying on the agent’s apparent authority must not be guilty of negligence. [ Id. at 253 (internal quotation marks and citation omitted).]

The first line of the text of t he screenshot states, “Wallside installers install windows . . . . [T]he professionals who bring your new Wallside Windows will ha ve installed hundreds or thousands before.” Thus, right away the webpage limits the sco pe of the work done by Wallside employees to installation of new windows. Wallside repeatedly used the word “we” on the webpage, but only when referring to the installation process. Wallside stated that “we” will phone before coming out for the install, “we” will measure the window openings and set out the windows before starting installa tion, and “we” will complete th e installation, typically, in one day. Accordingly, only installe rs—not repair people—fall into the category “we.” The screenshot also lays out the way the window will be installed a nd tasks attendant to that
installation.

Thus, while the screenshot makes clear that Wallside employees would perform the
installation of a customer’s new windows, it does not imply the same with respect to window repair. Indeed, the word “repair” is not found anywhere on the webpage. Wallside does warrant to “stand[] behind your window for 35 years,” but it does not e xplain how any problems covered under this warranty will be addressed, including who will atten d to them. Therefore, the trial court properly dismissed plainti ff’s complaint against Wallside under MCR 2.116(C)(10).

Regarding HFS’s motion for summ ary disposition, plaintiff fail ed to provide an affidavit or other documentary evidence, save for attaching copies of the evidence HFS used to indicate that Dandron was its independent contractor. However, plaintif f also argued below (and argues on appeal) that summary disposition was premature because disco very had yet to be completed.

In Marilyn Froling Revocable Living Tr ust v Bloomfield Hills Country Club , 283 Mich App 264, 292-293; 769 NW2d 234 (2009), this Court addressed the issue of incomplete discovery in the context of a summary disposition motion:

Generally, summary disposition under MCR 2.116(C)(10) is prema ture if it is granted before discovery on a disputed issue is complete. However, the mere fact that the discovery period remains open does not automatica lly mean that the trial court’s decision to grant summary disposition was untimel y or otherwise inappropriate. The question is whether further discovery stand s a fair chance of uncovering factual support for the opposing party’s position. In addition, a party opposing summary disposition cannot simply state that summary d isposition is premature without identifying a disputed issue and supporting t hat issue with independent evidence. The party opposing summary disposition m ust offer the-6- required MCR 2.116(H) affidavits, with the probable testimony t o support its contentions. [Citations omitted.]

Plaintiff indicated that the deposition of HFS Construction’s owner had just occurred, and while a transcript was not yet available, the testimony tended to indicate that Dandron was an employee, despite his designation as an independent contractor. Moreover, Dandron had failed to appear for his deposition and that had yet to occur. The above being true, dismissal of plaintiff’s case against HFS Construction was premature.

Affirmed in Docket No. 329505; reversed in Docket No. 329054 a nd remanded for proceedings consistent with this opinion. This Court does not retain jurisdiction. Wallside, being a prevailing party, may ta x costs pursuant to MCR 7.219.

/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto