KAY BUILDING & LAND DEVELOPMENT LLC V MICHAEL J DUL & ASSOC
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STATE OF MICHIGAN
COURT OF APPEALS
KAY BUILDING & LAND DEVELOPMENT,
L.L.C. and SHAMEL T. RUSHWIN,
UNPUBLISHED
June 3, 2004
Plaintiffs-Appellants,
V
MICHAEL J. DUL & ASSOCIATES, INC and
NU-WAY SUPPLY CO, INC,
No. 244638
Oakland Circuit Court
LC No. 01-031188-CK
Defendants
and
C.R. HEATER, INC,
Defendant-Appellee.
Before: Markey, P.J., and Wilder and Meter, JJ.
MEMORANDUM.
Plaintiffs appeal as of right the order of dismissal entered after the court granted summary
disposition to C.R. Heater, Inc (defendant). We affirm. This appeal is being decided without
oral argument pursuant to MCR 7.214(E).
Kay Building & Land Development L.L.C. was the builder of a home for Shamel
Rushwin. Michael J. Dul & Associates, Inc was the landscape architect on the project, and it
suggested that plaintiffs incorporate a snow-melting system into the driveway. Nu-Way Supply
Co, Inc. designed and provided the system, and plaintiffs contracted with defendant to install the
system.
In this appeal, plaintiffs assert that the court erred in granting summary disposition to
defendant on their breach of contract and defective design claims. A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating the motion, the trial
court considers affidavits, pleadings, depositions, admissions and other evidence submitted by
the parties in a light most favorable to the party opposing the motion. Where the proffered
evidence fails to establish a genuine issue of material fact, the moving party is entitled to
judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
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Plaintiffs claimed that defendant breached the contract by not properly installing the
system. The evidence they presented in support of this claim was that the system never worked
properly and it leaked. In support of the defective design claim, they presented deposition
testimony that defendant altered the design in an improper manner. However, none of the
evidence presented shows that the actions of defendant rendered the system defective.
Defendant presented evidence that the system passed a pressure test, and did not leak when it
was installed. The assertion that because the system leaked the installation was defective is
based on speculation that is not supported by evidence, as required by Maiden, supra. Similarly,
there is no evidence that defendant was responsible for the faulty design of the system. The trial
court properly granted summary disposition to defendant.
Affirmed.
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
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