4.10Trials

A.In General

The court may only resolve the case immediately following the advice of rights and information required by MCR 4.201(K)(2)(a)¹ without adjourning the trial in the following circumstances:

•“The plaintiff dismisses the complaint, with or without prejudice, and without any conditions.” MCR 4.201(K)(2)(e)(i).

•“The residential defendant is personally served under MCR 2.105(A), service of process was made on the residential defendant under [MCR 4.201(D)] and the court mailed a second copy of the initial summons and complaint in a court envelope and a record was kept pursuant to [MCR 4.201(D)] and fails to appear at the date and time set for trial noticed by the summons under [MCR 4.201(K)(2)(a)], or the commercial defendant is served under [MCR 4.201(D)] and fails to appear at the date and time set for trial noticed by the summons under [MCR 4.201(D)(K)(2)(a)].” MCR 4.201(K)(2)(e)(ii).

•“Both plaintiff and defendant are represented by counsel, and a consent judgment or conditional dismissal is filed with the court.” MCR 4.201(K)(2)(e)(iii).

•“The parties enter into a consent judgment or conditional dismissal on the record after knowingly and voluntarily waiving the rights identified in [MCR 4.201(K)(2)(a)] and the adjournment required by [MCR 4.201(K)(2)(d)]. The court must review the defendant’s waiver of rights and the terms of the consent judgment or conditional dismissal. After adequate inquiry, if the court determines that a valid waiver exists and the terms are fair, it may enter the consent judgment or conditional dismissal on the record. A defendant who has consulted with an attorney either in person or remotely after receiving the summons and who is waiving these rights is presumed to have knowingly and voluntarily waived the rights identified in [MCR 4.201(K)(2)(a)].” MCR 4.201(K)(2)(e)(iv).

•“[A]ny of the circumstances listed in [MCR 4.201(G)(5)(a)(ii)], except for an action in which MCL 600.5714(1)(b) applies, is pleaded and proved, with notice, sufficient to meet the statutory requirements. Actions in which MCL 600.5714(1)(b) apply shall be heard pursuant to MCL 600.5735(7).” MCR 4.201(K)(2)(e)(v).

Bench trials involving summary proceedings are governed by the procedures found in MCR 2.507 and MCR 2.509(B)-(C). Jury trials are governed by MCR 2.507, MCR 2.508, MCR 2.509(A), and MCR 2.509(C)-(D).

A trial court has discretion to order a jury trial of one or more issues in a case, even when a party had the right to a jury trial and failed to exercise that right. MCR 2.509(B).

B.Scheduling and Pretrial Motions

“Except as otherwise provided by court rule, a summary proceeding shall be heard within 7 days after the defendant’s appearance or trial date and shall not be adjourned beyond that time other than by stipulation of the parties in writing or on the record.” MCL 600.5735(6).

Notwithstanding MCL 600.5735(6), and unless otherwise provided in MCR 4.201², the court must adjourn the trial as provided in MCR 4.201(K)(1) after verbally advising the parties of the rights and information at the date and time set for trial under MCR 4.201(K)(2)(a). MCR 4.201(K)(2)(d). If the court adjourns the trial after advising the defendant of the rights and information set forth in MCR 4.201(K)(2)(a), “it must be scheduled at least 7 days but not more than 14 days after the initial date and time set for trial noticed by the summons, unless a jury demand is made under [MCR 4.201(G)(4)] or good cause is shown under [MCR 4.201(K)(1)(c)].” MCR 4.201(K)(1)(a).

If good cause is shown, the court may adjourn the trial up to 56 days. MCR 4.201(K)(1)(c). “If the court adjourns trial for more than 14 days, an escrow order may be entered pursuant to [MCR 4.201(I)(2)].”³ MCR 4.201(K)(1)(c). Additionally, the “parties may adjourn trial by stipulation in writing or on the record, subject to the approval of the court.” Id.

In general, motions must comply with MCR 2.119. After advising the defendant of the rights and information listed in MCR 4.201(K)(2)(a), “the court must decide remaining pretrial motions and determine if there is a triable issue. If there is no triable issue, the court must enter judgment.” MCR 4.201(K)(1)(b).⁴ The court may only resolve the case immediately following the advice of rights and information required by MCR 4.201(K)(2)(a) without adjourning the trial in limited circumstances. MCR 4.201(K)(1)(c); MCR 4.201(K)(2)(e).

C.Discovery

In general, the court does not facilitate formal discovery before entry of judgment unless a party has requested the discovery from the opposing party, and the opposing party has refused the request. “In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused.” MCR 2.301(A)(2).

D.Burdens of Proof

A landlord has the burden of proving his or her right to possession of the premises. Rathnaw v Hatch, 281 Mich 402, 404 (1937). A tenant has the burden of proving any defenses raised, “either as a counterclaim or as an affirmative defense.”⁵ MCR 2.507(B)(2). The quantum of proof required in civil cases is a preponderance of the evidence. Miller-Davis Co v Ahrens Const, Inc (On Remand), 296 Mich App 56, 71 (2012).

E.Evidence

The Michigan Rules of Evidence apply to summary proceedings.⁶ See MRE 101; MRE 1101.

One court rule provision expressly addresses the admission into evidence of government reports in summary proceedings. MCR 4.201(K)(3) states: “If the defendant claims that the plaintiff failed to comply with an ordinance or statute, the court may admit an authenticated copy of any relevant government employee’s report filed with a government agency. Objections to the report affect the weight given it, not its admissibility.”

F.Bench Trial: Findings and Conclusions

Specific rules apply in cases tried without a jury. According to MCR 2.517(A):

“(1) In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.

(2) Brief, definite, and pertinent findings and conclusions on the contested matters are sufficient, without over elaboration of detail or particularization of facts.

(3) The court may state the findings and conclusions on the record or include them in a written opinion.

(4) Findings of fact and conclusions of law are unnecessary in decisions on motions unless findings are required by a particular rule. See e.g., MCR 2.504(B) [(involuntary dismissals)].

(5) The clerk shall notify the attorneys for the parties of the findings of the court.

(6) Requests for findings are not necessary for purposes of review.

(7) No exception need be taken to a finding or decision.”

G.Jury Trial

The right to trial by jury in summary proceedings is guaranteed by the Michigan Constitution, Const 1963, art 1, § 14; by statute, MCL 600.5738; and by court rule, MCR 2.508(A), MCR 4.201(B)(2), and MCR 4.201(G)(4).⁷ The existence of “a strong policy in favor of protecting a civil litigant’s properly exercised demand for a jury trial” has been recognized in the summary proceedings context. Adamski v Cole, 197 Mich App 124, 128 (1992).

1.Jury Selection

“Procedures for selecting, impaneling and otherwise governing jurors in [summary] proceedings shall be the same as for a trial by jury in other civil actions in the same court.” MCL 600.5738.

a.Voir Dire

Voir dire of prospective jurors is vital to obtaining an impartial jury. See e.g., People v Tyburski, 445 Mich 606, 618 (1994). According to the Michigan Supreme Court: “It is indispensable to a fair trial that a litigant be given a reasonable opportunity to ascertain on the voir dire whether any of the jurors summoned are subject to being challenged for cause or even peremptorily.” Fedorinchik v Stewart, 289 Mich 436, 438-439 (1939).

“The court may examine prospective jurors or permit the attorneys for the parties to do so”; “[i]f the court examines the prospective jurors, it must permit the attorneys for the parties to (1) ask further questions that the court considers proper, or (2) submit further questions that the court may ask if it considers them proper.” MCR 2.511(C). Indeed, the court has discretion over the scope of voir dire; however, the court must permit a scope broad enough to allow for “a showing of facts that would constitute ground for challenging for cause or the reasonable exercise of peremptory challenges.” Fedorinchik, 289 Mich at 438-439.

b.Challenges to Prospective Jurors

Two distinct kinds of challenges may be made to prospective jurors: challenges for cause and peremptory challenges. See MCR 2.511(E) and MCR 2.511(F), respectively. Challenges for cause allow the removal of any prospective juror about whom articulate reasons exist to doubt his or her fairness or who is otherwise disqualified from serving as a juror in the matter. See MCR 2.511(E)(1)-(12) for a list of reasons a juror may be challenged for cause. See also MCL 600.1337. Peremptory challenges, or challenges without cause, allow the removal of a juror on the basis of a party’s subjective impressions about the juror. MCR 2.511(F)(1). In civil jury trials, a party may exercise three peremptory challenges. MCR 2.511(F)(2).

2.Jury Instructions

Although each party must submit a statement of the issues and may submit a theory of the case for the court to read, MCR 2.512(A)(2), the court alone is responsible for charging the jury. MCR 2.512(A)(5); Johnson v Corbet, 423 Mich 304, 326-327 (1985). Model Civil Jury Instructions for landlord-tenant matters may be found at M Civ JI 100.01 et seq. Use of the Model Civil Jury Instructions is governed by MCR 2.512(D). In addition to providing a written copy, the court must orally deliver preliminary and final instructions. See MCR 2.513(A); MCR 2.513(N)(1); MCR 2.513(N)(3).

Requests for all instructions must be in writing and filed “[a]t a time the court reasonably directs” or “[i]n the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.” MCR 2.512(A)(1). A request must be served on the opposing party or parties. MCR 2.512(A)(3). “The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.” MCR 2.512(A)(4).

To preserve as error the court’s giving of or failure to give an instruction, a party must object, on the record, before the jury begins its deliberations, or, when instructions are given after the jury has begun its deliberations, before the deliberations resume. MCR 2.512(C). An objection must “stat[e] specifically the matter to which the party objects and the grounds for the objection.” Id. The parties must be given an opportunity “to make the objection out of the hearing of the jury.” Id.

3.Conduct of Jury Trial

MCR 2.513 describes the manner in which a civil jury trial is to be conducted.