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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.


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.


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 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 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.

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.

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.

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.

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