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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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