DeMARE BROTHERS CONST. CO., INC. v. Teska

212 N.W.2d 602, 49 Mich. App. 642, 1973 Mich. App. LEXIS 863

• Court: Michigan Court of Appeals
• Decided: September 26, 1973
• Docket: Docket 14241
• Status: Published

Opinions

V. J. Brennan, P. J.

Plaintiffs suit seeks the balance due on a contract to construct a residence for the defendants. Defendants claimed that plaintiff was not, at all necessary times, licensed as a residential builder as required by statute (MCLA 338.1501; MSA 18.86[101]); and that that fact bars plaintiffs suit (MCLA 338.1516; MSA 18.86[116]).

Defendants moved for summary judgment pursuant to GCR 1963, 117.2(3) arguing that there was no issue of fact regarding plaintiffs capacity to maintain his lawsuit. This motion was not supported by affidavits as required by GCR 1963, 117.3. The trial court granted defendants’ motion for summary judgment, and later denied plaintiffs motion to set aside that judgment.

Plaintiff appeals and argues that the failure of the defendants to support their motion for summary judgment with any affidavits as required by court rule, supra, is fatal and mandates a reversal of the judgment. The relevant rule provides as follows:

".3 Motion and Proceedings Thereon. [1] A motion based upon subrule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. [2] The affidavits submitted by either party shall be governed by the provisions of subrules 116.4, 116.5, and 116.6. [3] Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. [4] Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. [5] Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. [6] If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor.” GCR 1963, 117.3.

We have numbered each sentence of the rule for convenient reference throughout this opinion. After careful analysis, we have come to the conclusion that there are two distinct portions within this rule. The first portion of the rule, consisting of the first two sentences, sets forth the proper manner for making a motion for summary judgment founded on GCR 1963, 117.2(3). The latter portion of the rule, the third through the sixth sentences, defines the proper procedures to be followed subsequent to the making of a motion under that rule.

Such an interpretation is the most logical for several reasons. First, it renders the rule consistent rather than internally contradictory. If the language in the third and fifth sentences, which we read to authorize the judge to consider everything in the record in addition to the affidavits,¹ were read to authorize resort to such other proofs in lieu of affidavits, it would clearly contradict the mandatory language of the first sentence.

Second, while some might regard such an interpretation as overly technical, there is a valid rationale behind an absolute requirement for the submission of affidavits. Requiring parties to present support for such a motion by affidavits based on personal knowledge (GCR 1963, 116.4) serves to clarify the position of the parties, and to facilitate disposition by the trial court and review of the trial court’s decision by the appellate courts. It is relatively easy to read and evaluate an affidavit; by comparison, it is difficult to sift and search through a lengthy deposition in .order to determine precisely what evidentiary support a party may be able to muster at trial. v

Third, we attach no significance to the use of the disjunctive in the fifth sentence of the rule (i.e., "affidavits or other proof’). Had the drafters of the rule phrased that sentence in the conjunctive (i.e., affidavits and other proof) the rule would then have been read to require such other proof in addition to the affidavits. Finally, this position finds support in our Supreme Court’s interpretation of the predecessor to GCR 1963, 117.3. In International Chemical Workers Union, Local 179, AFL-CIO v Swenor, 368 Mich 658, 661; 118 NW2d 839, 840 (1962), our Supreme Court, in discussing the predecessor to the current summary judgment rule, held as follows:

"The motion [for summary judgment], although it was purported to have been filed pursuant to Court Rule No 30 (1945), was not supported by affidavit as required by the rule.

"The pleadings do not warrant summary disposition as here attempted. Plaintiffs’ failure to comply with the requirements of our rule, designed to afford summary relief only in extraordinary circumstances, would be sufficient reason alone for denying their motion and compelling our reversal of its grant.”

The rule being construed by our Supreme Court in that case provided, in pertinent part, as follows:

"In any action at law, the defendant may, after issue is joined, move the court for entry of judgment in his favor upon a showing by affidavits or depositions filed in the cause that there is no question of fact to be determined by the court or jury, and that he is entitled to a judgment in his favor.” MCR 1945, Rule 30, § 7. (Emphasis added.)

It is obvious that our current rule is much more explicit in requiring a basis when summary judgment is sought on the ground that there is no issue as to any material fact. The language from our current rule ("shall be supported by affidavits”) is even more directory than the prior rule ("upon a showing by affidavits or depositions”). Nevertheless our Supreme Court found a failure to support such a motion for summary judgment by affidavit or deposition to be fatal; therefore, the current rule being phrased in stronger terms, such a defect is also fatal under the current rule.

We therefore conclude that the current rule, while permitting the court to base its judgment on everything in the record, nevertheless requires that the motion itself be accompanied with or supported by affidavits.

Reversed and remanded for further proceedings not inconsistent with this opinion.

T. M. Burns, J., concurred.

1 Specifically "[s]uch affidavits, together with the pleadings, depositions, admissions, and documentary evidence” and "the affidavits or other proof.”