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STATE OF MICHIGAN COURT OF APPEALS

EVA M. FRANSISCO, Plaintiff-Appellee/Cross-Appellant, v MARK EDWARD SEVERANCE, Defendant-Appellant/CrossAppellee, and NORTHERN MICHIGAN METAL ROOFING, L.L.C., Defendant/Third-Party Plaintiff, and DURA-LOC ROOFING SYSTEMS, LTD., Third-Party Defendant.

UNPUBLISHED August 11, 2009

No. 279839 Cheboygan Circuit Court LC No. 05-007495-CZ

Before: Owens, P.J., and Talbot and Gleicher, JJ. PER CURIAM. Defendant Mark Severance appeals as of right from a circuit court judgment in favor of plaintiff in the amount of $30,000, plus interest, costs, and case evaluation sanctions. Plaintiff cross appeals as of right the same order, challenging the circuit court's failure to award her attorney fees under the Michigan Consumer Protection Act ("MCPA"), MCL 445.901 et seq. We affirm in part, reverse in part, and remand for entry of judgment against defendant Northern Michigan Metal Roofing, L.L.C. ("NMMR") only. We first address defendant Severance's argument that the trial court erred by determining as a matter of law that he owed and breached a legal duty to plaintiff independent of the contract between plaintiff and NMMR. Whether Severance owed plaintiff a duty is a question of law that this Court reviews de novo. Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004). Moreover, whether the trial court erred by determining as a matter of law that -1-

Severance breached a duty owed to plaintiff is also a question of law that this Court reviews de novo.1 Id. To establish a prima facie negligence claim, a plaintiff must show: (1) that the defendant owed a duty of care, (2) that the defendant breached that duty, (3) that the plaintiff suffered injury, and (4) causation. Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). "The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff." Fultz, supra at 463. This question is an issue to be decided by the trial court as a matter of law. Burnett v Bruner, 247 Mich App 365, 368; 636 NW2d 773 (2001). In determining the existence of a duty, a court considers the foreseeability and nature of the risk as well as the relationship between the parties. Schultz v Consumers Power Co, 443 Mich 445, 450; 506 NW2d 175 (1993). "[F]or a duty to arise[,] there must exist a sufficient relationship between the plaintiff and the defendant." Id. Relying on Fultz, Severance argues that the only duties owed in this case arose from the contract between plaintiff and NMMR and that, because there existed no duty separate and distinct from that contract, he cannot be held personally liable for negligence. In Fultz, supra at 461-462, the plaintiff was injured when she slipped and fell while walking across an icy parking lot owned by "Comm-Co," one of the defendants. Comm-Co had contracted with "CML," its codefendant, to provide snow removal services for the lot. The plaintiff sued both Comm-Co and CML for negligence. Id. at 462. Our Supreme Court stated "lower 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." Id. at 467. The Court held that a tort action might stem from misfeasance of a contractual obligation if "the defendant owed a duty to the plaintiff that is separate and distinct from the defendant's contractual obligations." Id. Severance's reliance on Fultz is misplaced because plaintiff was a party to the contract at issue. Our Supreme Court specifically recognized in Fultz that its holding applied to actions in which a plaintiff is not a party to the contract at issue.2 Fultz, supra at 467. Nevertheless, pursuant to Rinaldo's Constr Corp v Michigan Bell Tel Co, 454 Mich 65, 84; 559 NW2d 647 (1997), on which the Fultz Court relied, Severance correctly contends that plaintiff must allege a duty "separate and distinct" from that imposed by contract to give rise to tort liability. In Rinaldo's Constr Corp, supra at 67-68, the plaintiff alleged that the defendant telephone company was negligent in failing to transfer the plaintiff's telephone service to its new address, resulting in the loss of business revenue. In determining whether the plaintiff could

We disagree with plaintiff that these issues are not preserved for our review. The record shows that Severance opposed the trial court's expressed intent to instruct the jury that he owed plaintiff a duty that he breached. Moreover, Severance opposed plaintiff's amendment of the complaint to add a negligence claim based on his contention that he owed no duty to plaintiff outside of that imposed by contract. See Garrett v Sam H Goodman Bldg Co, Inc, 474 Mich 948; 706 NW2d 202 (2005), in which our Supreme Court opined that this Court erred by applying Fultz to a defendant with which the plaintiff shared contractual privity.
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maintain an action in tort, the Court stated, "the threshold inquiry is whether the plaintiff alleges violation of a legal duty separate and distinct from the contractual obligation." Id. at 84. Relying on Hart v Ludwig, 347 Mich 559, 565; 79 NW2d 895 (1956), quoting Prosser, Handbook of Torts, 1st ed,

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