                            STATE OF MICHIGAN

                            COURT OF APPEALS



ERIN NASEEF,                                                         UNPUBLISHED
                                                                     January 19, 2017
               Plaintiff-Appellant,

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: RIORDAN, P.J., and FORT HOOD and SERVITTO, JJ.

PER CURIAM.

       In these consolidated appeals, plaintiff appeals two orders of the trial court dismissing her
complaints against defendants Wallside, Inc. and HFS Construction, LLC under MCR
2.116(C)(10) (no genuine issue of material fact). We affirm in Docket No. 329505, and reverse
in Docket No. 329054 and remand for proceedings 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

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damages stemming from the injury which she alleged was caused by one of defendant, Wallside,
Inc.’s (Wallside) employees. Wallside sought summary disposition under MCR 2.116(C)(10),
arguing that the work was performed by its independent contractor, defendant HFS Construction,
LLC, (HFS), and that Wallside was not responsible for any negligence committed by HFS.
Wallside attached to its motion a copy of an “Installer’s Agreement” between it and HFS, in
which HFS agreed that it was an independent contractor. HFS further agreed that it would be
solely responsible for hiring, paying, and supervising its employees and establishing their
working hours, that it would provide the necessary tools, and that 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, consistent with the above agreement,
averred that HFS was an independent contractor of Wallside, that “Wallside does not provide
any rules or regulations regarding HFS’ work,” that the “means, methods and planning of the
work is left exclusively to HFS,” that “Wallside does not control or direct how HFS’ work
should be accomplished,” and that “Wallside does not provide any 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. Dandron attested that he did not drop
a window on plaintiff’s foot. Rather, he maintained that the window sash, weighing between
seven and ten pounds, fell from the window and landed on plaintiff’s foot.

        Plaintiff responded to Wallside’s motion by arguing that the request for summary
disposition was “absurd” because the individuals repairing her window were either Wallside’s
employees or its ostensible agents and because discovery had not yet been completed. The only
relevant evidence plaintiff attached to her reply was a screenshot of a webpage on Wallside’s
website titled “Our Installation,” which plaintiff contended implies that those working on
Wallside windows were Wallside employees, and thus ostensible agents of the company.
Plaintiff attached no affidavits to her response.

       The trial court found that plaintiff failed to present any evidence to counter the evidence
Wallside attached to its summary disposition motion. The trial court therefore awarded summary
judgment to Wallside. However, the trial court granted plaintiff’s motion to amend her
complaint to add HFS as a defendant.

        Plaintiff did amend her complaint, now alleging that she was injured when HFS
employees or ostensible agents acted negligently in repairing her 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 motion a copy of Dandron’s summary
of the incident (mentioned above) and a copy of an agreement between 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 employee of HFS responsible for its
day-to-day operations, who averred that Dandron was an independent contractor, that he did not
instruct Dandron “concerning the methods, processes, or procedures by which he was to repair


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the window” at plaintiff’s residence, and that he did not assign any other independent contractors
to work with Dandron on plaintiff’s window.

        Plaintiff responded to this motion by arguing that the work performed by Dandron was no
different than that performed by a traditional employee. She further argued that summary
disposition was inappropriate because the parties had not yet completed discovery. Plaintiff did
not provide any affidavits or other documentary evidence to counter 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 provide an affidavit or other
documentary evidence to counter that produced by HFS, HFS was entitled to summary
disposition pursuant to MCR 2.116(C)(10).

                                         II. ANALYSIS

        Plaintiff challenges the court’s action in both cases. This Court 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 disposition 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 appropriate if there is no genuine
issue regarding any material fact and the moving party is entitled 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 rule, a party
“may move for dismissal of or judgment on all or part of a claim,” 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 entitled to judgment or partial judgment 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 fact exists when the record,
drawing all reasonable inferences in favor of the nonmoving party, 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 provided in this
       rule, an adverse party may not rest upon the mere allegations or denials of his or
       her pleading, but must, by affidavits or as otherwise provided in this rule, set forth


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       specific facts showing that there is a genuine issue for trial. If the adverse party
       does not so respond, judgment, if appropriate, shall be entered against him or her.

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

        “The general rule is that an employer of an independent contractor 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 used in this jurisdiction to determine whether a particular individual
is an independent contractor or an employee for whom an employer 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 the 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 who, 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 the 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 Supreme Court provided some guidance
for determining who controls the work performed:

       Generally the circumstances which go to show one to be an independent
       contractor, while separately they may not be conclusive, are the independent
       nature of his business, the existence of a contract for the performance 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 control, 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 rate 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 he was to complete the job, and
that HFS did not send additional employees to assist Dandron.

       The only relevant evidence plaintiff attached to her response to Wallside’s motion for
summary disposition was a printout from Wallside’s website, which plaintiff claims shows that
Wallside held out its contractors as its employees, therefore making these contractors its
ostensible agents. “An agency is ostensible when the principal intentionally or by want of

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ordinary care, causes a third person to believe another to be his agent who is not 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 contractor is the ostensible agent of the
principle, plaintiff must prove three things:

        (First) the person dealing with the agent must do so with belief in the agent’s
        authority and this belief must be a reasonable one; (second) such 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 the screenshot states, “Wallside installers install windows . . . .
[T]he professionals who bring your new Wallside Windows will have installed hundreds or
thousands before.” Thus, right away the webpage limits the scope 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 installation, and “we” will complete the installation, typically, in one
day. Accordingly, only installers—not repair people—fall into the category “we.” The
screenshot also lays out the way the window will be installed and 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 explain how any problems covered
under this warranty will be addressed, including who will attend to them. Therefore, the trial
court properly dismissed plaintiff’s complaint against Wallside under MCR 2.116(C)(10).

       Regarding HFS’s motion for summary disposition, plaintiff failed 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, plaintiff also argued below (and argues
on appeal) that summary disposition was premature because discovery had yet to be completed.
In Marilyn Froling Revocable Living Trust 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 premature if
        it is granted before discovery on a disputed issue is complete. However, the mere
        fact that the discovery period remains open does not automatically mean that the
        trial court’s decision to grant summary disposition was untimely or otherwise
        inappropriate. The question is whether further discovery stands 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 disposition is
        premature without identifying a disputed issue and supporting that issue with
        independent evidence. The party opposing summary disposition must offer the


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       required MCR 2.116(H) affidavits, with the probable testimony to 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 and remanded for
proceedings consistent with this opinion. This Court does not retain jurisdiction. Wallside,
being a prevailing party, may tax costs pursuant to MCR 7.219.



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




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