            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS


PREYDE ONE LLC,                                                      UNPUBLISHED
                                                                     February 25, 2020
               Plaintiff-Appellee,

v                                                                    No. 346192
                                                                     Ingham Circuit Court
HOFFMAN CONSULTANTS LLC,                                             LC No. 18-000003-CB

               Defendant-Appellant,

and

GLASERS LUMBER and CONSOLIDATED
BUILDING SYSTEMS INC,

               Defendants.


Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

        In this interlocutory appeal, defendant, Hoffman Consultants LLC (Hoffman), appeals by
leave granted1 the trial court’s order denying its motion for summary disposition. Because the trial
court erred by denying summary disposition under MCR 2.116(C)(7), we reverse and remand for
entry of an order granting Hoffman summary disposition.

                                        I. BASIC FACTS

        This case arises from the construction of a hotel in Lansing, Michigan. Plaintiff, Preyde
One LLC (Preyde One), filed suit against Glasers Lumber (Glasers) on December 18, 2017,
alleging that Glasers had breached its contract with Preyde One by providing defective and
substandard work and materials and by failing to timely complete the work or cure the defects with


1
 Preyde One LLC v Glasers Lumber, unpublished order of the Court of Appeals, entered April 29,
2019 (Docket No. 346192).


                                                -1-
the work performed. It also brought claims for unjust enrichment and fraudulent misrepresentation
against Glasers. Relevant to this appeal, Glasers filed a notice of non-party fault identifying
Hoffman as a responsible non-party.

       Preyde One filed a second amended complaint, naming Hoffman as a party. Preyde One
alleged that Hoffman, the structural engineer for the hotel, had a duty to exercise ordinary and
reasonable skill and care when preparing the drawings and specifications for the hotel and when
conducting its inspections and supervision of the structural work on the hotel. In addition, Preyde
One asserted that Hoffman had a “duty to use its technical skill, ability and diligence, as required
by professional engineers, in performing the structural work.” Preyde One asserted that Hoffman
breached those duties “by preparing insufficient drawings and specifications and by failing to
properly inspect and supervise the structural work on the Hotel.”

        In lieu of filing an answer, Hoffman moved for summary disposition under MCR
2.116(C)(7), (C)(8), and (C)(10). Hoffman explained that it entered into a contract with Andrus
Architecture to provide structural engineering services for Preyde One’s hotel. It noted that it had
no contractual relationship with Preyde One, and argued that as a stranger to the contract between
Hoffman and Andrus Architecture, Preyde One could not prevail on a tort claim without showing
that Hoffman owed it a “separate and distinct” duty arising from Hoffman’s design work. Hoffman
asserted that Preyde One had failed to adequately allege that it owed such a separate and distinct
duty to Preyde One, so Preyde One’s claim should be dismissed. In addition, Hoffman argued that
summary disposition was warranted because Preyde One’s claim against it was a malpractice claim
governed by the two-year limitations period set forth in MCL 600.5805(8).

        In response, Preyde One argued that when Hoffman prepared the design plans and
specifications for construction of the hotel, Hoffman had a common-law duty to exercise due care
to avoid damage to Preyde One’s property and to avoid endangering people. It also asserted that
because it had no contract with Hoffman, its claim was a third-party negligence claim, not a
malpractice claim. As a result, it argued that the claim was governed by the six-year period set
forth in MCL 600.5839(1)(a)2 or the three-year limitations period set forth in MCL 600.5805(2).
Moreover, Preyde One contended that the accrual statute for malpractice claims, MCL
600.5838(1), provides that a malpractice claim accrues when a licensed professional discontinues
service to “the plaintiff.” It asserted that because Hoffman’s contract was with Andrus
Architecture, Hoffman never rendered any professional services to Preyde One, so it was
impossible for it to discontinue serving Preyde One. As a result, no malpractice claim accrued or
could accrue in this case. Following oral argument, the trial court denied Hoffman’s motion for
summary disposition.




2
  Preyde One asserts that as it relates to ordinary negligence claims, MCL 600.5838(1) is both a
statute of repose and a statute of limitations. Resolution of this argument is not necessary for this
appeal; however, we note that our Legislature has expressly stated that the period in MCL
600.3839 is a period of repose. See MCL 600.5805(14) (“The periods of limitation under this
section are subject to any applicable period of repose established in section 5838a, 5838b, or
5839.”).


                                                -2-
                                 II. STATUTE OF LIMITATIONS

                                   A. STANDARD OF REVIEW

        Hoffman argues that the trial court erred by denying its motion for summary disposition
under MCR 2.116(C)(7) (claim barred by statute of limitations). We review de novo whether a
cause of action is barred by the applicable statute of limitations. Seyburn, Kahn, Ginn, Bess, Deitch
and Serlin, PC v Bakshi, 483 Mich 345, 354; 771 NW2d 411 (2009). We also review de novo a
trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates
Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). Summary
dismissal is appropriate under MCR 2.116(C)(7) when an action is barred because of the “statute
of limitations.” When reviewing a motion brought under MCR 2.116(C)(7), “this Court must
accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless
other evidence contradicts them.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d
211 (2010). “If any affidavits, depositions, admissions, or other documentary evidence are
submitted, the court must consider them to determine whether there is a genuine issue of material
fact.” Id. at 429. “If no facts are in dispute, and if reasonable minds could not differ regarding the
legal effect of those facts, the question whether the claim is barred is an issue of law for the court.”
Id.

                                           B. ANALYSIS

        Preyde One argues that its negligence claim against Hoffman is an ordinary, third-party
negligence claim, not a malpractice claim. However, the Legislature has determined that “[a]n
action against a state licensed architect or professional engineer or licensed professional surveyor
arising from professional services rendered is an action charging malpractice subject to the period
of limitation contained in [MCL 600.5805(8)].” MCL 600.3805(3) (emphasis added). Here, it is
undisputed that Hoffman is a professional engineer. Moreover, it is also plain that Preyde One’s
action against Hoffman arose “from professional services rendered.” The second amended
complaint provides:

               87. In its capacity as structural engineer, Hoffman prepared drawings and
       specification, conducted inspections and supervised the structural work [on Preyde
       One’s hotel].”

              88. In preparing the drawings and specifications and in its inspections and
       supervision of the structural work on the Hotel, Hoffman had a duty to exercise
       ordinary and reasonable care and skill.

              89. Hoffman also had a duty to use its technical skill, ability and diligence,
       as required by professional engineers, in performing the structural work.

               90. Hoffman breached its duties by preparing insufficient drawings and
       specifications and by failing to properly inspect and supervise the structural work
       on the Hotel.




                                                  -3-
               91. The design defects include, but are not limited to, inadequate
       specifications for the bracing of the cantilevered second through fourth floors,
       which subjected the Hotel to movement, twisting and racking.

              92. The design defects may have also caused all, or some, of the
       Construction defects. [Emphasis added.]

In other words, Preyde One alleged that Hoffman was negligent in performing its professional
engineering services, which included preparing the drawings and specifications for the hotel and
inspecting and supervising the structural work on the hotel. Based on a plain reading of the second
amended complaint, it is clear that none of the allegedly negligent acts and omissions are unrelated
to the professional services rendered in this case.

        Preyde One argues that because it does not have a contractual relationship with Hoffman
its claim can only sound in ordinary negligence and can never sound in malpractice. But MCL
600.3805(13) includes no language limiting a malpractice action to an action arising from a
contract between the defendant and the plaintiff. Instead, it provides in broad terms that an action
against a professional engineer is an action charging malpractice if it arises “from professional
services rendered.” If the Legislature intended a contractual relationship between the parties it
would have used language indicating that such a relationship was mandated. See Polkton Twp v
Pellegrom, 265 Mich App 88, 102; 693 NW2d 170 (2005) (“Nothing will be read into a clear
statute that is not within the manifest intention of the Legislature as derived from the language of
the statute itself.”). Moreover, examination of the relevant accrual statute does not mandate a
different result. MCL 600.5838(1) provides that “a claim based on the malpractice of a person
who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the
time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity
as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff
discovers or otherwise has knowledge of the claim.” (Emphasis added). Preyde One argues that
Hoffman did not—and could not—discontinue serving it because there is no contractual
relationship between Preyde One and Hoffman. We disagree. Even in the absence of a direct
contractual relationship, by providing structural engineering services for Preyde One’s hotel,
Hoffman was serving Preyde One. Specifically, Preyde One (or one of its affiliates) contracted
with Andrus Architecture, which in turn contracted with Hoffman to provide structural-
engineering services for Preyde One’s hotel. Although the relationship is indirect, the plain
language of the accrual statute does not mandate that a direct contractual relationship exist between
the defendant and the plaintiff in an action charging malpractice. Accordingly, we conclude that
the claim in this case alleges malpractice, not ordinary negligence, because it is an action against
a professional engineer arising from professional services rendered. See MCL 600.5805(13). As
such the two-year limitations period in MCL 600.3805(8) applies to Preyde One’s claim against
Hoffman. Hoffman last performed professional services in relation to Preyde One’s hotel on
August 25, 2015. At that time, Preyde One’s malpractice claim accrued pursuant to MCL
600.5838(1). Preyde One did not file its claim against Hoffman until June 14, 2018, which is more
than two years after the malpractice claim accrued. Consequently, as a matter of law, Preyde One’s




                                                -4-
malpractice claim is barred by the statute of limitations. The trial court, therefore, erred by denying
summary disposition.3

        We reverse the trial court’s order denying summary disposition and remand for entry of an
order granting summary disposition in Hoffman’s favor under MCR 2.116(C)(7). Hoffman may
tax costs as the prevailing party. MCR 7.219(A). We do not retain jurisdiction.

                                                               /s/ Douglas B. Shapiro
                                                               /s/ Kathleen Jansen
                                                               /s/ Michael J. Kelly




3
  Given our resolution, we need not address the parties dispute over whether Hoffman owed any
legal duty to Preyde One that was separate and distinct from its contractual obligations to Andrus
Architecture.


                                                 -5-
