4.2Summary Disposition1
Although summary disposition is typically ordered in response to a motion, MCR 2.116 does not expressly require a motion to order summary disposition; the court may do so sua sponte. Boulton v Fenton Twp, 272 Mich App 456, 462-463 (2006), citing MCR 2.116(I)(1). See Section 4.2(E) for more information on ordering summary disposition sua sponte.
“When an appellate court orders a new trial, that includes all phases of trial, including all pretrial matters such as motions for summary disposition.” Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, ___ Mich App ___, ___ (2023).
Although MCR 2.116(B)(2) allows a summary disposition motion to “be filed at any time consistent with [MCR 2.116(D) and MCR 2.116(G)(1)],” this court rule does not “[deprive] the trial court of discretion to set a limit on the time within which a motion under MCR 2.116 may be filed[.]” Kemerko Clawson, LLC v RxIV Inc, 269 Mich App 347, 350 (2005). MCR 2.401(B)(2)(a)(ii), allowing courts to set pretrial deadlines through scheduling orders, is a more specific provision and controls over the more general rule found in MCR 2.116. Kemerko Clawson, LLC, 269 Mich App at 351. Under MCR 2.401(B)(2)(a)(ii), “trial courts may issue scheduling orders to establish times for events including filing of motions.” Cleveland v Hath, ___ Mich App ___, ___ (2024) (cleaned up).
A defendant may raise an affirmative defense in a motion for summary disposition. “An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.” Citizens Ins Co Of America v Juno Lighting, Inc, 247 Mich App 236, 241 (2001), citing MCR 2.111(F)(3) and Chmielewski v Xermac, Inc, 216 Mich App 707, 712 (1996); see also MCR 2.111(F)(2)(a). For additional information on affirmative defenses, see Section 3.1(E)(2).
1.Motions Based on (C)(1), (C)(2), and (C)(3)
Motions based on MCR 2.116(C)(1) (lack of jurisdiction over person or property), MCR 2.116(C)(2) (insufficient process), and MCR 2.116(C)(3) (insufficient service of process) “must be raised in a party’s first motion under [MCR 2.116] or in the party’s responsive pleading, whichever is filed first, or they are waived.” MCR 2.116(D)(1). However, a general appearance does not waive a party’s right to challenge the sufficiency of service of process under MCR 2.116(C)(3). Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 293 (2007).
2.Motions Based on (C)(4) or Governmental Immunity
Motions based on MCR 2.116(C)(4) (lack of subject matter jurisdiction) and those based on governmental immunity “may be raised at any time, regardless of whether the motion is filed after the expiration of the period in which to file dispositive motions under a scheduling order entered pursuant to MCR 2.401.” MCR 2.116(D)(3).
3.Motions Based on (C)(5), (C)(6), and (C)(7)
Motions based on MCR 2.116(C)(5) (plaintiff lacks standing), MCR 2.116(C)(6) (another action exists between same parties on the same claim), or MCR 2.116(C)(7) (claim is barred) “must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under [MCR 2.116] prior to the party’s first responsive pleading.” MCR 2.116(D)(2).
4.Motions Based on (C)(8), (C)(9), and (C)(10)
Motions based on MCR 2.116(C)(8) (failure to state a claim), MCR 2.116(C)(9) (failure to state a valid defense), or MCR 2.116(C)(10) (no genuine issue of material fact) “may be raised at any time, unless a period in which to file dispositive motions is established under a scheduling order entered pursuant to MCR 2.401.” MCR 2.116(D)(4).2 It is at the court’s discretion whether to consider a motion filed after such period. Id.
Generally, motions based on MCR 2.116(C)(10) should not be filed until discovery is completed. Colista v Thomas, 241 Mich App 529, 537 (2000). However, the motion may be granted when “there is no reasonable chance that further discovery will result in factual support for the nonmoving party.” Id. at 537-538. “Mere speculation that additional discovery might produce evidentiary support is not sufficient.” Caron v Cranbrook Ed Comm, 298 Mich App 629, 646 (2012) (summary disposition in favor of defendants was not premature where plaintiffs could point to no prospective evidence to support their position, and there was not a fair chance of such evidence existing).3
5.Filing, Service, and Hearing Deadlines
Unless MCR 2.116(G) specifically provides otherwise, MCR 2.119 governs summary disposition motions. See MCR 2.119(G)(1).
The motion, brief, and any affidavits must be filed and served 21 days before the hearing, unless the court orders otherwise. MCR 2.116(G)(1)(a)(i).
A response to the motion, brief, and any affidavits must be filed and served at least 7 days before the hearing, unless the court sets a different time. MCR 2.116(G)(1)(a)(ii).
The moving party may file a reply brief in support of the motion; reply briefs must be confined to rebuttal of arguments in the nonmoving party’s response brief and cannot exceed five pages. MCR 2.116(G)(1)(a)(iii). A reply brief must be filed and served at least four days before the hearing. Id. “[N]o additional or supplemental briefs may be filed without leave of the court.” MCR 2.116(G)(1)(a)(iv).
“[T]he hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.” MCR 2.116(B)(2).
B.Grounds4
A summary disposition motion must specify the grounds on which it is based. MCR 2.116(C). However, “where a party brings a motion for summary disposition under the wrong subrule, a trial court may proceed under the appropriate subrule if neither party is misled.” Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 312 (2005). Accordingly, in Black v Cook, ___ Mich App ___, ___ (2023), the Court of Appeals held that “[d]espite [defendant’s] failure to specify the subrule under which she sought summary disposition, because the substance of her motion and accompanying brief indicated that the motion sought dismissal for failure to state a claim against defendants upon which relief could be granted, the trial court could consider, address, and decide the motion as if specifically brought under MCR 2.116(C)(8).”
“The parties . . . may submit an agreed-upon stipulation of facts to the court.” MCR 2.116(A)(1).
Committee Tip:
Trial courts should specify the subrule of MCR 2.116(C) relied on when granting or denying a motion for summary disposition. This will assist the appellate court in determining which standard to apply and what evidence to consider.
1.(C)(1): Lack of Jurisdiction Over Person or Property5
Summary disposition may be granted where “[t]he court lacks jurisdiction over the person or property.” MCR 2.116(C)(1). A motion for summary disposition based on the lack of personal jurisdiction is resolved based on the pleadings and the evidence, including affidavits.6 Lease Acceptance Corp v Adams, 272 Mich App 209, 218 (2006). The burden of establishing jurisdiction is on the plaintiff. MCR 2.116(G)(5); Lease Acceptance Corp, 272 Mich App at 218.
2.(C)(2): Insufficient Process
Summary disposition may be granted where “[t]he process issued in the action was insufficient.” MCR 2.116(C)(2). “When ruling on a motion brought under MCR 2.116(C)(2), the trial court must consider the pleadings, affidavits, and other documentary evidence submitted by the parties.” Richards v McNamee, 240 Mich App 444, 448 (2000).7 See also MCR 2.116(G)(5).
3.(C)(3): Insufficient Service of Process
Summary disposition may be granted where “[t]he service of process was insufficient.” MCR 2.116(C)(3). If the defendant actually receives service of process within the life of the summons, the fact that the manner of service was improper is not grounds for dismissal. Hill v Frawley, 155 Mich App 611, 613 (1986), citing MCR 2.105(K)(3).8 “[MCR 2.105(K)(3)] forgives errors in the manner or content of service of process. It does not forgive a failure to serve process.” Holliday v Townley, 189 Mich App 424, 426 (1991). Dismissal is warranted only where there is a complete failure of service of process. Id. at 425-426.9
If a party submits any affidavits with the pleadings, depositions, admissions, or other documentary evidence, the trial court must consider these documents when ruling on a motion pursuant to MCR 2.116(C)(3).10 MCR 2.116(G)(5).
The court may order an immediate trial for summary motions based on MCR 2.116(C)(3). MCR 2.116(I)(3). A jury trial is not required to determine whether service of process was sufficient. Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 288-289 (2007). The court may decide whether to hold a jury trial or a bench trial on MCR 2.116(C)(3) motions. Al-Shimmari, 477 Mich at 289-290.
4.(C)(4): Lack of Subject Matter Jurisdiction
Summary disposition may be granted where “[t]he court lacks jurisdiction of the subject matter.” MCR 2.116(C)(4). “Whether subject-matter jurisdiction exists is a question of law for the court.” Dep’t of Natural Resources v Holloway Constr Co, 191 Mich App 704, 705 (1991). The court must consider the pleadings, affidavits, depositions, admissions, and documentary evidence submitted by the parties. MCR 2.116(G)(5).11, 12
In an appeal regarding a motion for summary disposition under MCR 2.116(C)(4), the reviewing court “must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact.” Sun Communities v Leroy Twp, 241 Mich App 665, 668 (2000). Accordingly, “when deciding a motion for summary disposition under MCR 2.116(C)(4), which requires a court to consider evidence in the record, a circuit court must go beyond the pleadings to determine whether the amount in controversy could not exceed $25,000.” Rodriguez v Hirshberg Acceptance Corp, 341 Mich App 349, 365 (2022).
Where a plaintiff has failed to exhaust all available administrative remedies, summary disposition for lack of jurisdiction may be granted under MCR 2.116(C)(4). Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 50 (2000).
5.(C)(5): Lack of Legal Capacity to Sue
Summary disposition may be granted where “[t]he party asserting the claim lacks the legal capacity to sue.” MCR 2.116(C)(5). In deciding this motion, the trial court must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence.13 MCR 2.116(G)(5); Wortelboer v Benzie Co, 212 Mich App 208, 213 (1995).
Committee Tip:
Standing and capacity to sue are distinct concepts. However, a motion challenging standing might be properly considered under MCR 2.116(C)(5). See Miller v Chapman Contracting, 477 Mich 102, 104 (2007); UAW v Central Mich Univ Trustees, 295 Mich App 486, 493-497 (2012). Real-party-in-interest is another distinct concept. However, a motion based on a real-party-in-interest defense should be considered under MCR 2.116(C)(8) or MCR 2.116(C)(10). See Leite v Dow Chem Co, 439 Mich 920 (1992). See Section 2.15 for more information on standing and real-party-in-interest.
6.(C)(6): Another Action Exists Between the Same Parties Involving the Same Claim
“Summary disposition is appropriate when ‘[a]nother action has been initiated between the same parties involving the same claim.’” Dairyland Ins Co v Mews, ___ Mich App ___, ___ (2023), quoting MCR 2.116(C)(6). See also Valeo Switches & Detection Sys, Inc v EMCom, Inc, 272 Mich App 309, 319-320 (2006). The purpose of this rule is to prevent endless litigation of the same claim by the same parties. Id.14 Summary disposition “cannot be granted under MCR 2.116(C)(6) unless there is another action between the same parties involving the same claims currently initiated and pending at the time of the decision regarding the motion for summary disposition.” Dairyland, ___ Mich App at ___ (quotation marks and citation omitted). “[T]he term ‘same parties’ in the court rule does not require complete identity as to all parties in each lawsuit; rather, it only requires the moving party and the opposing party to be the same.” Id. at ___. Put differently, “the ‘same parties’ language of MCR 2.116(C)(6) requires that relevant parties, i.e., the moving and opposing party, be the exact same in both actions.” Dairyland, ___ Mich App at ___. The Court of Appeals rejected plaintiff’s argument that a defendant “was a ‘party’ for purposes of MCR 2.116(C)(6) merely” because it “had an interest that would be affected by the [circuit court] case and participated in discovery.” Dairyland, ___ Mich App at ___. The Court further held that the “fact that [defendant] was central to [plaintiff’s] request for declaratory relief in the [circuit court] case, participated extensively in discovery, and would be affected by the outcome, does not make it a ‘party’ to the original action” under MCR 2.116(C)(6). Dairyland, ___ Mich App at ___.
The court must consider any affidavits, pleadings, depositions, admissions, or other documentary evidence when ruling on a motion pursuant to MCR 2.116(C)(6). MCR 2.116(G)(5).15
Summary disposition may occur even where the other action initiated between the parties was not filed in Michigan. Valeo Switches, 272 Mich App at 319. However, the Court of Appeals noted “that it might be appropriate, when dismissing a case under MCR 2.116(C)(6), to do so without prejudice in the event that the foreign court’s jurisdiction is disputed, an issue such as forum non conveniens arises, or the case is dismissed on grounds other than its merits.” Valeo Switches, 272 Mich App at 319 (emphasis added).
Before dismissing claims under MCR 2.116(C)(6), the trial court must specifically identify which claims are being dismissed and which claims are already pending in another action. Planet Bingo, LLC v VKGS, LLC, 319 Mich App 308, 326-327 (2017) (noting that the dismissal was proper “on its face” where there was an action pending in a Nebraska court that involved the same claims and parties, but remanding for additional fact-finding because it was not clear from the record whether the trial court considered all of the plaintiffs’ claims). On remand, the Court required the trial court to order the parties “to make a record of what claims are then pending in the Nebraska action (or on appeal in Nebraska) and to subsequently address—on an individual basis—the issue of whether summary disposition of each claim involved in this action is appropriate under MCR 2.116(C)(6).” Planet Bingo, LLC, 319 Mich App at 326.
Further, “‘if there is another action pending and the party opposing the motion under MCR 2.116(C)(6) raises a question regarding whether that suit can and will continue, a stay of the second action pending resolution of the issue in the first action should be granted.’” Planet Bingo, LLC, 319 Mich App at 327, quoting Fast Air, Inc v Knight, 235 Mich App 541, 549 (1999) (punctuation omitted).
7.(C)(7): Claim Is Barred by One of Several Grounds Listed in the Subrule
Summary disposition may be granted where “[e]ntry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.” MCR 2.116(C)(7).
A party is not required to submit any material in support of a motion under MCR 2.116(C)(7); the motion can be evaluated on the pleadings alone. Maiden v Rozwood, 461 Mich 109, 119 (1999). “The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant.” Id. “A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence.”16 Maiden, 461 Mich at 119.
“In reviewing the motion, a court must review all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Yono v Dep’t of Transp (Yono I), 495 Mich 982, 982-983 (2014); see also MCR 2.116(G)(5). “If the movant properly supports his or her motion by presenting facts that, if left unrebutted, would show that there is no genuine issue of material fact that the movant [is entitled to summary disposition], the burden shifts to the nonmoving party to present evidence that establishes a question of fact.” Yono v Dep’t of Transp (On Remand) (Yono II), 306 Mich App 671, 679-680 (2014), rev’d on other grounds, 499 Mich 636 (2016).17 “If the trial court determines that there is a question of fact as to whether the movant [is entitled to summary disposition], the court must deny the motion.” Yono II, 306 Mich App at 680, citing Dextrom v Wexford Co, 287 Mich App 406, 431 (2010). See also Emerzian v North Bros Ford Inc, ___ Mich App ___, ___ (2024) (“the trial court did not err by granting defendant’s motion to dismiss plaintiff’s complaint under MCR 2.116(C)(7) in favor of arbitration” because “the language of the arbitration provision in the parties’ lease agreement indicated the parties’ agreement to permissive arbitration of the claims plaintiff brought.”)
See Section 9.6(H) for information regarding a defense of immunity granted by law as asserted against a claim for quantum meruit.
8.(C)(8): Failure to State a Claim on Which Relief Can Be Granted
Summary disposition may be granted where “[t]he opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). When deciding a motion on this ground, a court may consider only the parties’ pleadings. MCR 2.116(G)(5). “[A]ll well-pleaded allegations are accepted as true, and construed most favorably to the non-moving party.” Wade v Dep’t of Corrections, 439 Mich 158, 162-163 (1992). “A mere statement of a pleader’s conclusions and statements of law, unsupported by allegations of fact, will not suffice to state a cause of action.” Varela v Spanski, 329 Mich App 58, 79 (2019) (plaintiff failed to plead facts in support of his claim but instead made conclusory statements and conclusions of law). A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are “so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Wade, 439 Mich at 163.
Note that (C)(8) motions are distinct from (C)(10) motions: (C)(8) motions denounce a claim’s legal sufficiency and require the court to consider evidence only from the pleadings, while (C)(10) motions denounce a claim’s factual sufficiency and allow the court to consider evidence beyond the pleadings. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159-160 (2019). Courts should be careful to analyze the summary disposition motion under the correct standard. See id. “While the lack of an allegation can be fatal under MCR 2.116(C)(8), the lack of evidence in support of the allegation cannot.” Id. at 162 (“the Court of Appeals erroneously conducted what amounted to analysis under MCR 2.116(C)(10) in deciding a motion under MCR 2.116(C)(8) by requiring evidentiary support for plaintiff’s allegations rather than accepting them as true”).
The trial court did not consider evidence outside the pleadings where the partnership agreement in dispute was attached to the defendants’ reply brief, and the plaintiff’s complaint raised a reasonable inference that plaintiff failed to attach the agreement to the complaint because the defendants had destroyed the document. Varela, 329 Mich App at 69 (noting that MCR 2.113(C)(1)(b) and MCR 2.113(C)(2) excuse such failure). “Therefore, the partnership agreement was part of the pleadings, and although the trial court articulated the wrong standard [(MCR 2.116(C)(10))], it did not actually consider evidence outside the pleadings in deciding defendants’ motion for summary disposition. Varela, 329 Mich App at 69-70.
9.(C)(9): Failure to State a Valid Defense
Summary disposition may be granted where “[t]he opposing party has failed to state a valid defense to the claim asserted against him or her.” MCR 2.116(C)(9). This motion tests the legal sufficiency of a pleaded defense to determine whether the defense is “‘so clearly untenable that as a matter of law no factual development could possibly deny the plaintiff’s right to recovery.’” Vayda v Lake Co, 321 Mich App 686, 693 (2017), quoting Abela v Gen Motors Corp, 257 Mich App 513, 518 (2003). When deciding a motion on this ground, “the trial court may only consider the pleadings, which include complaints, answers, and replies, but not the motion for summary disposition itself.” Ingham Co v Mich Co Rd Comm Self-Ins Pool, 321 Mich App 574, 579 (2017); MCR 2.116(G)(5). Summary disposition is inappropriate on this ground when a material allegation of the complaint is categorically denied and the nonmoving party has stated a legally cognizable defense. Dimondale v Grable, 240 Mich App 553, 564-565 (2000).
10.(C)(10): No Genuine Issue as to Any Material Fact Exists
Summary disposition may be granted where “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). This motion tests the factual sufficiency of the complaint18 and “must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” MCR 2.116(G)(4). The moving party bears the initial burden of supporting its position. Smith v Globe Life Ins Co, 460 Mich 446, 455 (1999). “Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required . . . when judgment is sought based on [MCR 2.116(C)(10)].” MCR 2.116(G)(3)(b). “The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted.” Smith, 460 Mich at 455 (citations omitted; emphasis added).
“A party’s own testimony, standing alone, can be sufficient to establish a genuine question of fact.” Jewett v Mesick Consol Sch Dist, 332 Mich App 462, 476 (2020). “A conflict in the evidence may generally only be removed from the trier of fact’s consideration if it is based on testimony that is essentially impossible or is irreconcilably contradicted by unassailable and objective record evidence.” Id. The “court cannot make findings of fact” “[i]n its review of the evidence.” Doster v Covenant Medical Center, Inc., ___ Mich ___, ___ (2022). Accordingly, “when a witness’s credibility is at issue, summary disposition is inappropriate.” Taylor Estate v Univ Physician Group, 329 Mich App 268, 284 (2019).
“[S]peculation isn’t enough to give rise to a genuine issue of material fact.” Doster, ___ Mich at ___. It is not appropriate for the court to consider whether a record “might be developed” in an attempt to give the nonmovant the benefit of reasonable doubt. Smith, 460 Mich at 455 n 2. The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion. Smith, 460 Mich at 455 n 2; MCR 2.116(G)(6). A reviewing court may not employ a standard citing the mere possibility that the claim might be supported by evidence produced at trial. Smith, 460 Mich at 455 n 2. A promise is insufficient under the current court rules. Id.
Material Considered. In evaluating a motion for summary disposition on this ground, a trial court must consider any affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, subject to the limitations in MCR 2.116(G)(6) (material submitted for consideration must be admissible as evidence). MCR 2.116(G)(5). This evidence should be considered in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552 (2007).
Party Responsible for Presenting Material. In a motion for summary disposition under MCR 2.116(C)(10), “[t]he moving party may . . . satisfy its burden . . . by submitting affirmative evidence that negates an essential element of the nonmoving party’s claim, or by demonstrating to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7 (2016) (quotation marks and citation omitted). Accordingly, the moving party is “not required to go beyond showing the insufficiency of [the nonmoving party’s] evidence.” Id. at 3, 9 (holding that “in order to obtain summary disposition under MCR 2.116(C)(10), defendant was not required to present proof that it lacked notice of the hazardous condition, but needed only to show that plaintiff presented insufficient proof to establish the notice element of her claim”).
If the motion for summary disposition is properly made and supported, an adverse party must, by affidavit or otherwise, “set forth specific facts showing there is a genuine issue for trial.” MCR 2.116(G)(4). If the adverse party fails to respond, and if appropriate, the court must grant the summary disposition motion. MCR 2.116(G)(4).
Where “the opposing party fails to present any evidence” in response to a motion for summary disposition under MCR 2.116(C)(10), “the motion is properly granted because no genuine issue of material fact exists.” Cleveland v Hath, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Cleveland, ___ Mich App at ___, the “plaintiff assert[ed] that he should not have lost the case as a sanction for missing the deadline in the scheduling order for filing a response to defendants’ summary disposition motions.” “[T]he failure to file a timely brief in response to a dispositive motion is not, by itself, grounds for dismissal as a sanction”; however, “if a motion for summary disposition under MCR 2.116(C)(10) challenges the existence of any genuine issue of material fact and the opposing party fails to timely present evidence in response, then the motion may be properly granted on the merits.” Cleveland, ___ Mich App at ___. “Here, the trial court not only established deadlines for motion practice, but also cautioned the parties in . . . its scheduling order: ‘If you do not submit a timely brief, the Court will assume that there is no legal or factual support for your position.’” Id. at ___. “That language seems consistent with the well-settled proposition that the reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion”—“the trial court’s scheduling order appears compatible with that standard because the scheduling order . . . obligates the party opposing a summary disposition motion to present evidence and arguments to fend off a motion for relief under MCR 2.116(C)(10).” Cleveland, ___ Mich App at ___ (cleaned up). “[D]efendants’ motions shifted the burden to plaintiff to present evidence to establish a genuine issue of material fact,” and “[b]y neglecting to submit timely responses to the motions, plaintiff failed to carry that burden, so the trial court properly awarded relief to defendants under MCR 2.116(C)(10).” Cleveland, ___ Mich App at ___.
Affidavit Contradicting Earlier Deposition Testimony. “[A] party may not raise an issue of fact by submitting an affidavit that contradicts the party’s prior clear and unequivocal [deposition] testimony.” Palazzola v Karmazin Prod Corp, 223 Mich App 141, 155 (1997).
Self-Conflicting Testimony. “[A] party may provide an affidavit to explain, clarify, or expand upon deposition testimony, especially where the deposition testimony was not unequivocal.” Bakeman v Citizens Ins Co, 344 Mich App 66, 77 (2022) (adopting a case-by-case approach when analyzing arguably inconsistent deposition testimony). “[W]hen a deponent’s testimony is inherently self-contradictory, a court may not, at the summary disposition stage of proceedings, blindly assume that one statement is true and the other is false. In the absence of an objective basis for concluding that one or the other of the statements must have been the true statement, doing so constitutes an impermissible credibility assessment.” Id. at 80.
Expert Affidavit. An affidavit that simply states an expert’s opinion, without providing any scientific or factual support, may be insufficient to create a genuine issue of material fact. Travis v Dreis & Krump Mfg Co, 453 Mich 149, 174-175 (1996) (the affidavit was not factually or scientifically supported and “merely parrot[ed] the language of the legal test”).
Contractual Interpretation. Summary disposition under MCR 2.116(C)(10) may be granted when the issues raised are merely those of contractual interpretation rather than factual dispute. See Allstate Ins Co v Freeman, 432 Mich 656, 700 (1989).
Motive or Intent. “Michigan does not apply a rule precluding summary disposition whenever a claim or defense involves an individual’s motive or intent.” Franks v Franks, 330 Mich App 69, 86 (2019). “To the extent that [Michigan Court of Appeals’s] decisions seem to apply an absolute exception to the application of summary disposition premised on the mere possibility that a jury might disbelieve an essential witness, . . . the application of that rule is limited to those situations where the moving party relies on subjective matters that are exclusively within the knowledge of its own witness and those in which the witness would have the motivation to testify to a version of events that are favorable to the moving party.” Id. at 90-91 (where “plaintiffs present[] evidence that if left unrebutted . . . establishe[s] that defendants [acted] . . . with the requisite intent, . . . the trial court could properly grant summary disposition on liability if defendants [do] not establish a question of fact on the issue of intent”).
C.Unavailability of Affidavits
A party may present an affidavit to establish “that the facts necessary to support the party’s position cannot be presented because the facts are known only to persons whose affidavits a party cannot procure.” MCR 2.116(H). See also Brooks v Reed, 93 Mich App 166, 174 (1979), where the defendant was unable to present an affidavit on the facts because “the specific evidential facts concerning the nature of plaintiff’s injuries and treatment [stemming from an automobile accident] were within the personal knowledge of only the plaintiff and [her doctor].” (Citation omitted.) The Michigan Court of Appeals concluded that under such circumstances, the defendant may be excused from presenting the material facts by filing an affidavit under what is now MCR 2.116(H). Brooks, 93 Mich App at 174.
The party’s affidavit must include (1) the names of the people whose affidavits the party cannot procure, (2) a statement as to why the party cannot procure the testimony, and (3) a statement as to “the nature of the probable testimony of these persons and the reason for the party‘s belief that these persons would testify to those facts.” MCR 2.116(H)(1)(a)-(b).
Once the party has filed a conforming affidavit, “the court may enter an appropriate order, including an order
(a) denying the motion, or
(b) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.” MCR 2.116(H)(2)(a)-(b).
Outcomes for summary disposition motions include:
•judgment for the moving party, MCR 2.116(I)(1);
•judgment for the nonmoving party, MCR 2.116(I)(2);
•an immediate trial on disputed issues, subject to the requirements in MCR 2.116(I)(3);
•postpone hearing and decision on the matters until trial, MCR 2.116(I)(4); or
•where the grounds are based on MCR 2.116(C)(8), MCR 2.116(C)(9), or MCR 2.116(C)(10), and justification exists, an opportunity to amend the pleadings, MCR 2.116(I)(5).
“A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on [MCR 2.116(C)(1)] through [MCR 2.116(C)(6)], or if the motion is based on [MCR 2.116(C)(7)] and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on [MCR 2.116(C)(7)] and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury.” MCR 2.116(I)(3).
Where the summary disposition motion is not based on MCR 2.116(C)(1)-(7), the court may not order an immediate trial. Sweet Air Investment, Inc v Kenney, 275 Mich App 492, 505 (2007). It must provide notice to the plaintiff and allow him or her an opportunity to present any objections. Id. at 505.
If a summary disposition motion is based on MCR 2.116(C)(8), MCR 2.116(C)(9), or MCR 2.116(C)(10), the court must give the parties an opportunity to amend their pleadings as provided in MCR 2.118,19 unless evidence before the court shows that an amendment would be unjustified. MCR 2.116(I)(5). Where a party does not seek leave of the court or obtain the opposing party’s consent to amend his or her pleading, “MCR 2.116(I)(5) [does] not require the court to sua sponte offer [the party] an opportunity to amend.” Kloian v Schwartz, 272 Mich App 232, 242 (2006) (finding no plain error in these circumstances).
“[A]n amendment is not justified if it would be futile.” Liggett Restaurant Group, Inc v Pontiac, 260 Mich App 127, 138 (2003). “[L]eave to amend should ordinarily be denied only for particularized reasons such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, or futility.” Bennett v Russell, 322 Mich App 638, 647 (2018) (quotation marks and citation omitted).
A trial court’s decision whether to grant leave to amend a pleading is reviewed for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53 (2004). “[A] court must specify its reasons for denying the motion [to amend the pleading]; a failure to do so requires reversal, unless amendment would be futile.”Noyd v Claxton, Morgan, Flockhart & Vanliere, 186 Mich App 333, 340 (1990).
E.Ordering Summary Disposition Sua Sponte
MCR 2.116 does not expressly require a motion to order summary disposition; the court may do so sua sponte. Boulton v Fenton Twp, 272 Mich App 456, 462-463 (2006), citing MCR 2.116(I), which states:
“(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.
(2) If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.”
However, a trial court may not sua sponte grant summary disposition in contravention of a party’s due process rights. Al-Maliki v LaGrant, 286 Mich App 483, 489 (2009). See also Lamkin v Hamburg Twp Bd of Trustees, 318 Mich App 546, 549-551 (2017). In a civil proceeding, notice and a meaningful opportunity to be heard meet basic due process requirements. Al-Maliki, 286 Mich App at 485. “Where a court considers an issue sua sponte, due process can be satisfied by affording a party with an opportunity for rehearing.” Id. at 485-486. In addition, “any error by a court in granting summary disposition sua sponte without affording a party an adequate opportunity to brief an issue and present it to the court may be harmless under MCR 2.613(A), if the party is permitted to fully brief and present the argument in a motion for reconsideration.” Al-Maliki, 286 Mich App at 486.
F.Filing Multiple Summary Disposition Motions
“A party may file more than one motion under [MCR 2.116], subject to the provisions of [MCR 2.116(F)].”20”MCR 2.116(E)(3). “The denial of a motion for summary disposition does not preclude such a motion on the same ground from being granted later in the same case.” Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 521-522 (2016) (holding that the trial court had authority to revisit and reverse its previous denials of summary disposition and reconsideration after the defendant raised the same issue again in another motion for summary disposition).
In deciding whether an order granting a motion for summary disposition “should be with or without prejudice, the trial court should consider whether the doctrine of res judicata would bar subsequent actions involving the same claim.” ABB Paint Finishing, Inc v Nat’l Union Fire Ins Co, 223 Mich App 559, 562 (1997).21 “Where a trial court dismisses a case on the merits, the plaintiff should not be allowed to refile the same suit against the same defendant and dismissal should therefore be with prejudice.” Id. at 563.
“[S]ummary disposition under [MCR 2.116(C)(8)] is necessarily a decision on the merits. To grant such a motion ‘without prejudice’ is . . . equally incongruous. . . . Logically, then, a grant of summary disposition under [MCR 2.116(C)(8)] should always be with prejudice.” ABB Paint Finishing, Inc, 223 Mich App at 563. However, “[t]his conclusion does not . . . preclude a plaintiff from requesting leave to amend its complaint [as permitted by MCR 2.116(I)(5)], before the court rules on a motion under [MCR 2.116(C)(8)].” ABB Paint Finishing, Inc, 223 Mich App at 563.
A trial court’s decision whether to grant summary disposition is reviewed de novo. Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 558 (2007).