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### STATE OF MICHIGAN

COURT OF APPEALS

ALLAN ROOKS,

Plaintiff, UNPUBLISHED December 22, 2016

v No. 328561
Macomb Circuit Court
ANDOVER HEIGHTS CONDOMINIUM ASSOCIATION, LC No. 13-001697-NO

Defendant/Third-Party PlaintiffAppellant,

v

JOHNNIES CONCRETE REPLACEMENT, INC.

Third-Party Defendant-Appellee.

Before: S AAD , P.J., and M ETER and M URRAY , JJ.

P ER C URIAM

.
Third-party plaintiff Andover Heights Condominium Association (Andover) appeals the trial court’s order that granted summary disposition in favor o f third-party defendant Johnnies Concrete Replacement, Inc. (J ohnnies). For the reasons provide d below, we affirm.

I. BASIC FACTS

This case arises from the replacement of a step at Andover’s p roperty and the subsequent fall of plaintiff Allan Rooks at that step. During the summer of 2011, Andover contracted with Johnnies to perform various concre te repair work throughout the Andover Heights Condominium complex in Sterling Heights, Michigan. One of the specified it ems in the agreement was for Johnnies to replace the step that was located outside the front door of unit 72.

In March 2012, nine months after Johnnies replaced the step, R ooks, who is an amputee and walks with the use of a pros thetic leg, visited his friend who lived at unit 72 in the Andover complex. Rooks entered the unit through the rear door. When R ooks left the unit, he left through the front door, and when he attempted to step down onto the replaced step, he slipped and fell to the ground. It was later determined that the heigh t differential from the landing down-2- to the step was approximately 9-1/4 inches, which is approximat ely 2 inches more than what is allowed under then-existing building codes.

Rooks sued Andover and alleged that Andover was actively negli gent for failing to inspect the premises and maintain the premises in a safe manner

. 1 Andover, in turn, filed a thirdparty claim against Johnnies and alleged two counts: (1) commo n-law/implied indemnity and (2) negligence/gross negligence and/or contribution. Regarding this second count, 2 Andover asked that Johnnies “defend, indemnify, and hold harmless [Ando ver] from any and all liability arising out of this lawsuit and must reimburse [Andover] for al l costs, expenses, and attorney
fees incurred.”

Johnnies moved for summary disposition under MCR 2.116(C)(8) a nd (C)(10) and argued that Andover could not sustain its indemnity claim becau se Rooks’ underlying complaint against Andover alleged active negligence as opposed to vicario us or derivative liability. Although Johnnies did not explicitly reference Andover’s second count, Johnnies argued that “in the alternative,” it could not be liable because there is no ev idence that it did anything wrong. Specifically, Johnnies maintained that it was not required to d o more than what was specified in the estimate it provided to Andover, which was to replace the bricks and the pre-cast concrete step. And because there was no evidence to show that Johnnies did not do exactly what it was asked to do—replace the step with an identical one—its work cou ld not have caused any damages. Andover responded to Johnnies’ motion and argued that if Johnnies replaced the step, but not in compliance with applicable building codes, then John nies was negligent, regardless of the state of compliance of the old step.

The trial court granted Johnnies ’ motion and dismissed Andover ’s case against Johnnies. The court focused on Andover’s indemnity claim and ruled that b ecause Rooks’ allegations against Andover involved “active rather than passive negligence ,” Andover was precluded from seeking indemnification from John nies. The court did not subst antively address Andover’s negligence claim against Johnnies.

Andover filed a motion for reconsideration and pointed out to the court that the order granting summary disposition in favor of Johnnies did not addre ss Andover’s negligence count. In its motion, Andover also attached numerous other exhibits in support of its opposition to Johnnies’ motion for summary disposition. The court denied the motion and stated, in pertinent part, that (1) Andover should have submitted its exhibits previ ously and (2) the court “absolutely addressed the issue of liability pursuant to the [Andover’s] cl aims of negligence” and will not “rehash[]” it again.

II. STANDARD OF REVIEW

1 Rooks and Andover settled that sui t, so Rooks’ claims against Andover are not before us.

2 As discussed, infra , Andover’s claim of indemnit y also is not before us.-3- Johnnies moved for summary disposition under both MCR 2.116(C) (8) and (C)(10). This Court reviews a trial court’s decision on a motion for summary disposition de novo. Peters v Dep’t of Corrections , 215 Mich App 485, 486; 546 NW2d 668 (1996). “A motion for su mmary disposition brought under MCR 2.1 16(C)(8) tests the legal suffi ciency of the complaint on the basis of the pleadings alone. The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motio n should be granted if no factual development could possibly justify recovery.” Beaudrie v Henderson , 465 Mich 124, 129-130; 631 NW2d 308 (2001). A motion brought under MCR 2.116(C)(10) t ests whether there is factual support for the claim. Neubacher v Globe Furniture Rentals, Inc , 205 Mich App 418, 419; 522 NW2d 335 (1994). Such a motion is properly granted if there are no genuine questions of material fact and the moving party is entitled to judgment a s a matter of law. Dawoud v State

Farm Mut Auto Ins , ___ Mich App ___; ___ NW2d ___ (Docket Nos. 327915 & 327927, issued October 18, 2016), slip op, p 3.

III. ANALYSIS

Andover concedes that the trial court properly dismissed its c laim of indemnity 3 but argues that the court erred when it failed to consider Andover’ s claim of negligence against
Johnnies at the time it summaril y dismissed its complaint. We disagree.

“It is well established that the gravamen of an action is dete rmined by reading the complaint as a whole, and by looking beyond mere procedural lab els to determine the exact
nature of the claim.” Adams v Adams , 276 Mich App 704, 710-711; 742 NW2d 399 (2007). Thus, Andover’s use of the label “negligence” on the second cou nt in its complaint is not controlling. Indeed, our review of the claim shows it merely a restatement of its claim of indemnity.

The right to common-law indemnification is based on the equita ble theory that where the wrongful act of one party results in another par ty’s being held liable, the latter party is entitled to restitution for any los ses. The right exists independently of statute, and whet her or not contractual relati ons exist between the parties, and whether or not the negligent person owed the o ther a special or particular legal duty not to be negligent. Common-law indemnit y is intended only to make whole again a party held vicariously liable to another through no fault of his own. [ Botsford Continuing Care Corp v Intelistaf Healthcare, Inc , 292 Mich App 51, 62; 807 NW2d 354 (2011) (quotation marks, citations, an d brackets omitted).]

Here, while Andover invoked the word “negligence” in the title of its second count, it is clear that Andover simply was re-presenting its claim for indem nification. Any “damages” Andover suffered were the result of paying Rooks on his initial claim that Andover was negligent. Indeed, in Andover’s p rayer for relief on this seco nd count, Andover asked the trial

3 Consequently, we offer no opinion on whether Andover’s claim o f indemnity was legally
barred.-4- court to order Johnnies to “defend,” “indemnify,” “hold harmles s,” and to “reimburse” Andover. Such requests are inconsistent with a claim of negligence, whic h only seeks to recover actual damages. Here, arguably any ne gligent act on Jo hnnies’ part wo uld have caused Rooks’ injuries. For Andover to recoup the amount it paid Rooks, based on Rooks’ underlying claim against Andover, sounds in indemnification. Accordingly, with Andover’ s complaint sounding only in indemnification, there is no negligence count to decide. Thus, the trial court did not err when it failed to address Johnnies’ motion for summary disposition in t he context of a claim of negligence. 4 Although the trial court did not espouse these reasons, we wi ll nonetheless affirm on different grounds. See Messenger v Ingham Co Prosecutor , 232 Mich App 633, 643; 591 NW2d 393 (1998).

When a third-party plaintiff, like Andover, seeks to have a th ird-party defendant held responsible, in whole or in part, for the damages paid to the p laintiff, the third-party plaintiff
must advance a claim for indemnif ication or, if the third-parti es are both tortfeasors, contribution. But, here, because Andover has conceded that its indemnification claim was barred by Rooks’ active negligence claim against it and because Andove r failed to assert a claim for statutory contribution among joint tortfeasors, 5 it has no direct cause of action against Johnnies to require Johnnies to reimburse it for its settlement with Roo ks.

Affirmed. Johnnies, as the prevailing party, may tax costs pu rsuant to MCR 7.219.

/s/ Henry William Saad
/s/ Patrick M. Meter /s/ Christopher M. Murray

4 And, as already noted, Andover concedes on appeal that its cla im for indemnity was properly
dismissed.

5 Although Andover’s second count against Johnnies was titled “N EGLIGENCE/GROSS NEGLIGENCE AND/OR CONTRIBUTION,” Andover made no allegations th at sounded in
contribution and did not cite Mich igan’s contribution statute, MCL 600.2925a. Moreover, Andover also never argued before the trial court or this Court that its second count against Johnnies referred to any claim of contribution. Instead, Andov er asserted that the claim was one of negligence, but we have already indicated that this is incor rect because its claim is purely derivative, as it seeks to have Johnnies pay some or all of the settlement dollars it paid to Rooks.