Iron County v. Sundberg, Carlson & Associates, Inc.

• Decision Date: 04 March 1997
• Docket Number: Docket No. 185644
• Citation: Iron County v. Sundberg, Carlson & Associates, Inc., 564 N.W.2d 78, 222 Mich.App. 120 (Mich. App. 1997)
• Parties: COUNTY OF IRON, Plaintiff-Appellee, v. SUNDBERG, CARLSON & ASSOCIATES, INC., Defendant/Third-Party Plaintiff-Appellant, and Pellow Roofing & Sales, Inc., Defendant, and Homasote Company, Third-Party Defendant.
• Court: Court of Appeal of Michigan

Page 78

564 N.W.2d 78

222 Mich.App. 120

COUNTY OF IRON, Plaintiff-Appellee, v. SUNDBERG, CARLSON & ASSOCIATES, INC., Defendant/Third-Party Plaintiff-Appellant and Pellow Roofing & Sales, Inc., Defendant and Homasote Company, Third-Party Defendant.

Docket No. 185644.

Court of Appeals of Michigan.

Submitted Oct. 15, 1996, at Marquette.

Decided March 4, 1997, at 9:05 a.m.

Released for Publication May 15, 1997.

Clary, Nantz, Wood, Hoffius & Cooper by Robert L. DeJong, Grand Rapids, for plaintiff-appellee.

Sullivan, Ward, Bone, Tyler & Asher, P.C. by Thomas M. Slavin, Southfield, for defendant.

Before GRIBBS, P.J., and MacKENZIE and GRIFFIN, JJ.

RICHARD ALLEN GRIFFIN, Judge.

Defendant Sundberg, Carlson & Associates, Inc. (hereinafter defendant), appeals as of right a circuit court judgment confirming an arbitration award in plaintiff's favor. We affirm but remand for recalculation of the judgment interest.

Plaintiff brought this action against defendant for damages allegedly arising from defendant's design and construction oversight of a roof for a county medical care facility. In general terms, plaintiff's complaint alleges claims both of breach of contract and of negligence. For example, in paragraphs thirteen and fourteen the complaint states:

13) That Sundberg, Carlson and Associates, Inc., did breach the contract alleged in that they

a) did fail to properly inspect the building;

b) did fail to analyze the structure for roof selection;

c) did fail to select an adequate roof system;

d) did fail to properly inspect construction;

e) did fail to notify Plaintiff of improper installation.

14) That as a result the shingles on the installed roof are cracking and deteriorating and Plaintiff has not received the roof for which it bargained and has suffered losses on the contract in excess of $10,000. [Emphasis added.]

Further, although paragraph ten alleges that the shingles were damaged by distortion, the allegations of damages contained in paragraphs eighteen and twenty-two are broader:

18) That as a result of this breach of duty the Plaintiff now has a roof inadequate to its needs which must be repaired or replaced and has thereby suffered damage in excess of ten thousand dollars.

* * * * * *

22) That as a result the Plaintiff must replace or repair the roof and has incurred damages in excess of ten thousand dollars.

During discovery, it was learned from an inspection of the roof by an expert that the roof did not comply with the applicable fire code. Shortly thereafter, plaintiff declared its intention to use this evidence in support of its claims of breach of contract and negligence. Further, plaintiff offered to adjourn an upcoming arbitration hearing and to pay defendant its expenses incurred because of the adjournment. Although the arbitration hearing was thereafter adjourned, defendant did not pursue any further discovery. Instead, defendant objected to plaintiff's use of this newly discovered evidence on the ground that the statute of repose for architects, M.C.L. § 600.5839; M.S.A. § 27A.5839, barred all allegations not previously pleaded.

On appeal, defendant contends that the arbitrator erred in allowing plaintiff to support its claims of breach of contract and negligence with evidence that the roof failed to comply with the fire code. Defendant argues that plaintiff's previously pleaded claims were too narrow to encompass this evidence. We disagree.

Under Michigan's rule of general fact-based pleading, see MCR 2.111(B)(1), the only facts and circumstances that must be pleaded "with particularity" are claims of "fraud or mistake." MCR 2.112(B)(1). In other situations, MCR 2.111(B)(1) provides that the allegations in a complaint must state "the facts, without repetition, on which the pleader relies," and "the specific allegations necessary reasonably to inform the adverse party" of the pleader's claims. See Dacon v. Transue, 441 Mich. 315, 330, 490 N.W.2d 369 (1992). A complaint is sufficient under MCR 2.111(B)(1) as long as it "contain[s] allegations that are specific enough reasonably to inform the defendant of the nature of the claim against which he must defend." Porter v. Henry Ford Hosp., 181 Mich.App. 706, 708, 450 N.W.2d 37 (1989); see also Goins v. Ford Motor Co., 131 Mich.App. 185, 195, 347 N.W.2d 184 (1983).

We conclude that plaintiff's allegation of a fire code violation pertaining to the roof was not a new claim for relief. Rather, this evidence constitutes a new theory, learned through discovery, that supports plaintiff's previously pleaded claims. See, generally, Derbeck v. Ward, 178 Mich.App. 38, 443 N.W.2d 812 (1989); Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, p. 417. This new theory falls within the scope of the general factual allegations pleaded in support of plaintiff's claims of breach of contract and negligence. Indeed, a roof that does not comply with the fire code is clearly an "inadequate" roof that "must be replaced or repaired." See Porter, supra at 709-710, 450 N.W.2d 37; Reinhardt v. Bennett, 45 Mich.App. 18, 24-25, 205 N.W.2d 847 (1973). Thus, because plaintiff is not obligated under MCR 2.111(B)(1) to plead its factual allegations with particularity, plaintiff should not be precluded from supporting its claims with evidence of a fire code violation gleaned through the discovery process. See Goins, supra at 195, 347 N.W.2d 184; Simonson v. Michigan Life Ins. Co., 37 Mich.App. 79, 83, 194 N.W.2d 446 (1971). To the extent defendant found the pleaded factual allegations supporting plaintiff's claims to be too general, it could have filed a motion for a more definite statement under MCR 2.115(A) or interrogatories requesting greater factual specificity regarding plaintiff's claims. ¹

Accordingly, we hold that the statute of repose, M.C.L. § 600.5839; M.S.A. § 27A.5839, did not bar plaintiff's proofs concerning the factual issue of a fire code violation because such evidence was relevant and material to plaintiff's previously pleaded claims of breach of contract and negligence. Therefore, we affirm the decision of the lower court with regard to this issue.

Defendant also argues that the trial court should have used its equitable powers over an arbitration proceeding, see M.C.L. § 600.5035; M.S.A. § 27A.5035, to rule that plaintiff's claims were barred by the doctrine of laches. We disagree. "[T]he timeliness of the bringing of an arbitration proceeding is a procedural issue to be determined by the arbitrators rather than the courts." Bennett v. Shearson Lehman-American Express, Inc., 168 Mich.App. 80, 83, 423 N.W.2d 911 (1987). The question of timeliness includes consideration of the doctrine of laches. See Said v. Rouge Steel Co., 209 Mich.App. 150, 155, 530 N.W.2d 765 (1995). Therefore, we...