LITIGATION 8: Michigan law is clear that a trial court has the authority to grant a properly supported motion for summary disposition under MCR 2.116(C)(10) when the nonmoving party fails to file a timely response.

Plaintiffs sued Defendant for claims for account stated and breach of contract. Following discovery, plaintiffs moved for summary disposition under MCR 2.116(C)(10), arguing that they were entitled to a judgment in their favor as a matter of law on the account-stated and breach-of-contract claims. The trial court entered judgment in favor of plaintiffs and against defendants, jointly and severally, in the amount of $49,245 plus taxable costs. Defendants appeal as of right. We affirm.

ANALYSIS

Pursuant to MCR 2.116(G)(1)(a)(ii), defendants were required to file and serve their response to plaintiffs’ motion “at least 7 days before the hearing,” unless the trial court set a different deadline. The trial court did not do so, and defendants did not timely file their response. Instead, they waited until 4:44 p.m. on Friday, November 2, 2018, to file their response to a motion that was set for a hearing on the following Monday morning, November 5, 2018. Because defendants’ response was not filed on time, the trial court was permitted, but not required, to consider it. The trial court chose not to consider the response, which left plaintiffs’ motion unopposed.

Based on our review of plaintiffs’ motion, it is apparent that the motion was “made and supported as provided in” MCR 2.116(C)(1). “A party claiming a breach of contract must establish by a preponderance of the evidence (1) that there was a contract, (2) that the other party breached the contract and, (3) that the party asserting breach of contract suffered damages as a result of the breach.” In support of their motion, plaintiffs submitted documentary evidence demonstrating establishing all elements of a breach of contract. The same evidence was also sufficient to establish the account-stated claim. Therefore, plaintiffs properly supported their motion for summary disposition under MCR 2.116(C)(10).

Because the motion was properly supported, MCR 2.116(G)(4) required defendants to, “by affidavits or as otherwise provided in [MCR 2.116], set forth specific facts showing that there is a genuine issue for trial. Yet, as noted above, their untimely response was not considered by the trial court. Thus, by not filing a timely response to plaintiffs’ motion, defendants did not present sufficient documentary evidence to create a genuine issue of material fact and summary disposition was properly granted in plaintiffs’ favor.

On appeal, defendants neglect to mention their failure to file a timely response to plaintiffs’ motion for summary disposition or the trial court’s decision not to consider their untimely response. Rather, they take the position that the trial court did not understand the relevant standard under MCR 2.116(C)(10). This position is not supported by the record. The trial court considered the evidence properly before it and, applying the correct standard, determined that summary disposition was warranted.

CONCLUSION

In sum, Michigan law is clear that a trial court has the authority to grant a properly supported motion for summary disposition under MCR 2.116(C)(10) when the nonmoving party fails to file a timely response with evidence creating a genuine issue of material fact. That is precisely what happened here: Defendants did not file a timely response to plaintiffs’ motion, and effectively left plaintiffs’ version of events undisputed.

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MICHIGAN FAMILY LAW 94: Defendant testified that he had the ability to pay child support, but it was impossible for him to do so due to his religion.

Defendant’s testimony was that he could pay child support, but his religion precluded him from entering a civil contract with a secular court by recognizing an order from the State of Michigan directing him to pay it.

MICHIGAN PROBATE 59: The petition to admit the will was unopposed at the time of the hearing, and the court granted the petition to admit the will.

If a petition is unopposed at the time set for the hearing, the court may either grant the petition on the basis of the recitations in the petition or conduct a hearing.

MICHIGAN CONTRACTS 23: After defendant did not receive payment, it recorded a claim of lien against plaintiff’s property.

The order also required defendant to deliver the HVAC units and required plaintiff to complete its outstanding obligations under the settlement agreement.

MICHIGAN FAMILY LAW 93: Parents’ relationship had become so bitter court determined it was necessary to hold an evidentiary hearing on the issues of custody.

The trial court found that clear and convincing evidence established that a change of custody was in AH’s best interests, noting the parties were unable or unwilling to work together to reach an agreement on AH’s education and medical treatment.

MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.

When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.

MICHIGAN DIVORCE 21: Plaintiff file a motion to enforcement the judgment of divorce.

The referee recommended that the trial court grant plaintiff’s request for enforcement of the judgment and require the parties to comply with its provisions and further recommended that plaintiff’s request for attorney fees be preserved and awarded should plaintiff have to return to court.

MICHIGAN PROBATE 58: Lady Bird deed did not restrict the grantor’s ability to execute another deed.

The trial court concluded that the first Lady Bird deed did not convey any interest to L until the death of both grantors, and RPC, as the conservator, did not violate any statutory duties but was entitled to execute a Lady Bird deed in fulfilling its fiduciary obligations to the protected individual, B.

MICHIGAN WILLS/TRUSTS 32: The probate court found that the Memo substantially complied with the Trust’s method for amendment.

The probate court also found that the Memo substantially complied with the Trust’s method for amendment, as required by statute, and that the Memo was not merely an attempt to distribute personal property. The probate court granted petitioner’s motion for summary disposition, confirming the validity of the Memo as a trust amendment.

MICHIGAN CRIMINAL 20: Respondent found of criminal contempt for violating the PPO.

The trial court conducted the show-cause hearing, which resulted in a finding of criminal contempt for violating the PPO. The trial court sentenced respondent to a 7- day jail term and a $100 fine but suspended the jail term absent further violations of the PPO and directed respondent to have her fingerprints taken.

MICHIGAN DIVORCE 76: Defendant had not exercised his parenting time with the children to warrant the award of any child support amount.

Plaintiff filed a motion for relief from judgment and child support. Plaintiff characterized the failed parenting-time arrangement as newly discovered evidence that negated her child support obligation.

MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.

At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.

REAL ESTATE 94: Short-term lease violates property owners restricted covenants.

Defendant continued to advertise and lease its property for short-term rental. Because plaintiff concluded that defendant used its lot and the home thereon for business purposes, specifically as a rental property, plaintiff filed suit.

FAMILY LAW 92: Defendant objected to the referee’s recommendation on the ground that the record did not support a deviation from the MCSF.

The referee found that the support amount calculated under the MCSF would be unjust and inappropriate, and that a deviation of $750 was warranted.

FAMILY LAW 91: Referee determined that neither party had established grounds for changing custody.

The referee ultimately determined that neither party had established grounds for changing custody and that plaintiff had not established her intended move to Minnesota was in the best interests of the two youngest children.

FAMILY LAW 90: Loss of longtime pediatrician was sufficient to justify addressing legal custody.

The trial court discussed the difference between the parties’ care for WPS’s medical needs, noting plaintiff was much more involved and defendant’s refusal to provide his schedule contributed to his own frustrations regarding his lack of involvement.

FAMILY LAW 89: Motion to change the domicile of the children.

The court determined that plaintiff had established by clear and convincing evidence that the change of domicile was in the best interests of the children.

PROBATE 56: Court finds that an examination via a videoconferencing software is sufficient for clinical certificate.

Respondent argues that he was entitled to an in-person, rather than remote, personal examination.

DIVORCE 75: The trial court agreed that the long morning commute on school days satisfied the threshold burden for reconsidering custody.

The court expressed concern regarding plaintiff’s failure to appreciate how her actions left the children in a position of having to keep secrets from defendant, caused them uncertainty about their future schooling, and made them feel guilty for telling defendant the truth.

REAL ESTATE 93: Plaintiff argues whether the land contract violates Michigan’s usury act.

Plaintiff acknowledges that the land contract states on its face that the annual interest rate is 7%. But plaintiff argues that a blending approach must be undertaken to account for the surplus funds that defendant received pursuant to the Affidavit of Non-Redemption (AONR).

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

FAMILY LAW 87: The court concluded that plaintiff’s request for 50-50 custody was more about plaintiff’s needs and wants than the children’s best interests.

By the time of the trial court’s order, custody and parenting time of the children had been governed by the interim order for nearly a year. The trial court was appropriately mindful that from the children’s perspective, any change to their established custodial environment should be minimal.

CRIMINAL 19: Traffic stop leads to vehicle search after the smell of marijuana.

The smell of burned marijuana does provide probable cause to search a defendant’s vehicle, in that the Michigan Medical Marijuana Act does not allow for the use of marijuana in a vehicle or in a place opened to the public. You don’t necessarily have to be under the influence of marijuana, but the use of marijuana suffices.

CONTRACTS 22: Trial court granted defendant summary disposition, finding the statutory limitations period had already run for plaintiff’s claims.

Plaintiff filed a three-count complaint on December 3, 2019, alleging breach of contract, unjust enrichment, and requesting foreclosure of the property. Defendant answered, pleading affirmative defenses, including that the statutes of limitations barred plaintiff’s claims. Defendant moved for summary disposition.

DIVORCE 74: Tax debt generated by the sale of business would be divided equally between the parties.

Plaintiff claims that this debt should be Defendant’s debt alone since he controlled the finances and she had little input on what happened with the money gained from the sale. The court disagrees and finds that she cannot enjoy the fruits of the marital business decisions for 17 years and then disavow herself the debt that comes from those same business decisions.

PROBATE 55: Plaintiffs argue that decedents were subject to coercion and undue influence.

When defendant petitioned to close the estates and admit the wills to probate, plaintiffs objected, arguing that decedents were subject to coercion and undue influence by defendant.

FAMILY LAW 86: Change in custody and parenting time because defendant repeatedly disobeyed court orders.

The change in custody and parenting time was primarily brought about by evidence that defendant repeatedly disobeyed court orders and parenting-time rules, prioritized his personal vendettas, and continuously made unsupported allegations that plaintiff and her family were abusive.

DIVORCE 73: Plaintiff filed a complaint for separate maintenance once husband was disabled.

The trial court agreed that third-party intervention in domestic-relations matters was only permitted in limited circumstances that did not apply to DHHS, and denied DHHS’s motion for reconsideration.

REAL ESTATE 92: Owner of more than 75 percent of the real estate in industrial park was authorized to revoke the restrictive covenants.

The revocation in this case was executed by the requisite 75% super-majority and it did not subject the property in the industrial park to additional encumbrances.

REAL ESTATE 91: The Condo Association was entitled to recover fees and costs for all aspects of the proceedings.

Regarding the award of attorney fees, Michigan follows the American Rule, which states that attorney fees are not recoverable as an element of costs or damages unless expressly allowed by statute, court rule, common-law exception, or contract.

REAL ESTATE 90: Owners demonstrated possession of disputed property because use had been more significant and continuous for a longer period.

Although the neighboring landowners testified that they also made similar recreational use of the land west of Creek, the trial court concluded that the B owners use had been more significant and continuous for a longer period.

FAMILY LAW 85: Defendant refused to co-parent with plaintiff and attempted to undermine her.

When parents are unable to cooperate and make joint decisions, a trial court may be required to grant sole custody to one parent.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

DIVORCE 72: Defendant asserts the trial court failed to acknowledge the seven-day rule.

MCR 2.602(B)(3), the so-called seven-day rule, allows a party to serve a copy of the proposed judgment or order on the other parties, with a notice to them that it will be submitted to the court for signing if no written objections to its accuracy or completeness are filed with the court clerk within 7 days after service of the notice.

DIVORCE 71: Court determined house was marital property and defendant was not entitled to spousal support.

In addition, the trial court noted that plaintiff did not have the means to pay spousal support because she had substantial debt and was financially supporting her unemployed adult son.

PROBATE 54: The probate court removed the current bank as trustee because the Trust could not afford the fees.

The court questioned whether the fees, which were standard for the bank, were reasonable for the Trust. The Court reiterated its concern that this particular Trust cannot afford the bank as a trustee.

Family Law 84: Trial court must issue a PPO if it determines that there is reasonable cause.

The petitioner bears the burden of establishing reasonable cause for issuance of a PPO, and of establishing a justification for the continuance of a PPO at a hearing on the respondent’s motion to terminate the PPO.

REAL ESTATE 88: Neighbors with adjoining properties clash over two driveways.

Plaintiff’s lot was landlocked. Plaintiff argued his easement to access the highway was a gravel driveway. Defendants argued plaintiff’s easement was a two-track dirt trail that wound through the woods.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

DIVORCE 70: Plaintiff filed an ex parte motion for temporary custody of the marital home and children.

Defendant filed an answer, countering that it was in the children’s best interests for the parties to share joint legal and joint physical custody. During the divorce proceedings, plaintiff filed an ex parte motion for temporary custody of the marital home and children, which the trial court granted.

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