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Excell Construction6/19/2003
UNPUBLISHED
Plaintiff appeals as of right the trial court's grant of summary disposition to defendant pursuant to MCR 2.116(C)(7) and denial of plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
I. Facts and Proceedings
In June 1993, defendant entered into a contract with the State of Michigan concerning design work for "Revitalization of the Michigan Animal Agriculture Swine Teaching and Research Center" (the project) at Michigan State University (MSU). In March 1994, defendant contracted with MSU to provide construction administration and design implementation services for the project.
In reliance on defendant's drawings and specifications, plaintiff contracted with MSU to act as the general contractor on the project. Plaintiff claims that after construction began, it realized that defendant's drawings and specifications were incomplete, inaccurate, and defective. As a result, plaintiff claims that it suffered delays in construction and additional, unexpected costs.
The contract between MSU and plaintiff provided that MSU could terminate plaintiff's employment upon certification by defendant that sufficient cause, as defined in the contract, existed for termination. Eventually, MSU recommended to defendant that plaintiff's employment be terminated. Defendant, allegedly without investigating whether sufficient cause for termination existed, certified plaintiff's termination. On July 24, 1997, MSU terminated plaintiff's employment and refused to make requested payments to plaintiff.
In December 1997, plaintiff sued MSU in the Court of Claims, alleging breach of contract, unjust enrichment, and misrepresentation/detrimental reliance. MSU filed a counter-claim alleging that plaintiff had breached the contract and asserted in defense of plaintiff's complaint that its decision to withhold payment was justified because plaintiff had breached the contract and MSU had sufficient cause to terminate plaintiff's employment. The parties filed cross-motions for summary disposition, and the Court of Claims granted MSU's motion, concluding that MSU had not breached the contract because sufficient cause existed to terminate plaintiff's employment. Plaintiff appealed that decision to this Court.
In March 2000, plaintiff filed the instant action against defendant, claiming that defendant committed professional malpractice (Count I) by providing defective design drawings, making multiple changes to the drawings, and "failing to make an affirmative undertaking of the facts and substance of the recommendation by MSU to terminate [plaintiff]." In Count II, plaintiff asserted a claim for gross negligence, alleging facts virtually identical to those alleged in Count I. In Count III, plaintiff claimed that defendant had breached its contract with MSU by, among other things, "failing to make an affirmative undertaking of the facts and substance of the recommendation by MSU to terminate [plaintiff]" and that plaintiff was a third-party beneficiary of the contract. Count IV of plaintiff's complaint alleged that defendant breached its duties under MCL 339.2008(3) by providing incomplete drawings and delegating to plaintiff, a non-licensed entity, certain design responsibilities. Finally, in Count V of its complaint, plaintiff alleged that defendant tortiously interfered with plaintiff's contract with MSU by failing to meet its own contractual obligations in a timely manner and approving MSU's termination of plaintiff without an independent review of plaintiff's performance.
In June 2000, plaintiff filed a motion for summary disposition concerning the "liability portion of its malpractice claims" pursua
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