Huron Pipe & Supply Co. v. R & A Plumbing, Inc.

188 N.W.2d 188, 32 Mich. App. 226, 1971 Mich. App. LEXIS 1871

• Court: Michigan Court of Appeals
• Decided: March 31, 1971
• Docket: Docket No. 8719
• Status: Published

Opinion

Per Curiam.

Plaintiff, Huron Pipe & Supply Co., filed suit on November 14, 1968, in the St. Clair County Circuit Court alleging that from December 23, 1965, to February 25, 1966, it sold and delivered • to defendant, R & A Plumbing, Inc., eight boilers and accessories which defendant had ordered. Plaintiff’s claim was in the amount of $12,804.09 plus interest. Defendant then filed a third-party complaint on March 3, 1969, pursuant to GCR 1963, 204, against North American Construction Corporation, Walter J. Kassuba, Halmar Construction Corporation, and Edwards Engineering Company alleging, inter alia, that North American Construction Corporation entered into an agreement with Halmar Construction Corporation whereby it accepted full responsibility for the payment of the boilers and that Walter J. Kassuba, as an officer in North American Construction Corporation, entered into an agreement with Halmar Construction Corporation whereby he made himself personally liable.

Defendant, R & A Plumbing, Inc., on July 5, 1966, had filed a complaint against Halmar Construction Corporation, Walter J. Kassnba, and North American Construction Corporation in the Kalamazoo County Circuit Court seeking $34,922.95. At about the same time, defendant R & A Plumbing filed suit against Kassuba Development Corporation, Walter J. Kassuba, North American Construction Corporation, and others in the Superior Court of Allen County, Indiana, seeking $4,498.19. In both the Kalamazoo case and the Indiana case there was an additional count for foreclosure of a mechanic’s lien involving construction of certain apartment buildings in the township of Kalamazoo and in Port Wayne, Indiana.

Settlement negotiations were conducted between the parties in both the Indiana and Kalamazoo actions and on or about December 6,1967, the claims were settled in the amount of $11,500. At the time of this settlement, R & A Plumbing executed a release of all liens, all claims, and covenant not to sue discharging all claims it may have, known and unknown, against Walter J. Kassuba, North American Construction Corporation, and any of the related companies of Walter J. Kassuba.

North American Construction Corporation and Walter J. Kassuba filed the affirmative defense of release in this present action before the St. Clair County Circuit Court. They also filed a counterclaim against the defendant, R & A Plumbing, Inc., based upon the covenant not to sue. Plaintiff denies that the release applied to the transaction in question.

Third-party defendants, North American Construction Corporation and Walter J. Kassuba, filed a motion for accelerated judgment pursuant to G-CR 1963, 116, alleging that the claim of a third-party plaintiff was barred by the release and dismissal of a prior action with prejudice. The motion was based upon the records and files in said cause and an affidavit alleging personal knowledge. Attached as exhibits to the affidavit were the release and covenant not to sue. Defendant R & A Plumbing, Inc., did not answer the motion nor file any affidavits in opposition to the motion for accelerated judgment. The trial court, on December 1, 1969, denied the motion without an opinion.

GCR 1963, 116.3, expressly states the duty imposed on the trial court when confronted with a motion for accelerated judgment on the grounds of release.

“As to defenses and objections based upon sub-rule 116.1(5), the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing.”

The rule delineates the permissible methods of disposition of motions for accelerated judgment. The court may order an immediate trial on any dispute related to the validity of the release. After a finding of fact is made, “judgment may be rendered forthwith”. In the alternative, the court “may postpone the hearing on the matter until the trial on the merits”.

In the present case, the trial court summarily denied the motion. In light of the provisions set forth in the court rule, we remand this case to the trial court for proceedings in accordance with GCR 1963, 116.3. Costs to appellants.