Jefferson Maintenance Co. v. Detroit Electrotype Co.

152 N.W.2d 699, 7 Mich. App. 619, 1967 Mich. App. LEXIS 619

• Court: Michigan Court of Appeals
• Decided: October 3, 1967
• Docket: Docket 991
• Status: Published

Opinions

Burns, J.

Plaintiff leased the fourth floor of a building to the Detroit Electrotype Company. Before the expiration of the lease, Detroit Electrotype vacated the premises and thereafter failed to pay the stipulated monthly rental. Plaintiff commenced an action against the defendants based on different theories which were set forth in separate counts of the complaint. This appeal concerns only count 1 wherein plaintiff sought recovery of the accumulated rental payments under its written lease with Detroit Electrotype, hereinafter referred to as the' appellant. ■ ■

Plaintiff filed a motion for summary judgment and affidavits in support thereof. The record indicates that appellant submitted no affidavits or other pertinent proofs in opposition to the motion. At the proceedings on the motion, the circuit judge directed that a partial summary judgment be entered against Detroit Electrotype. However, when the judgment was signed on May 27, 1965, it mistakenly ordered that plaintiff recover the partial judgment from all the defendants.

On June 15, 1965, defendants filed their claim of appeal in this Court and paid their filing fee, thereby giving the Court of Appeals jurisdiction. GCR 1.963, 802.1. On June 28, 1965, the circuit judge, after being apprised of tbe error in tbe May 27th judgment, granted a partial summary judgment nunc pro tunc which corrected the former judgment by ordering recovery only against appellant.

Although we do not condone such a practice, it was not reversible error for tbe trial court to enter tbe judgment nunc pro tunc, despite our assumption of jurisdiction over tbe subject matter. See Hershel Radio Co. v. Pennsylvania R. Co. (1955), 344 Mich 75; CLS 1961, §§ 600.2311, 600.2315(8), 600.2321 (Stat Ann 1962 Rev §§ 27A.2311, 27A.2315[8], 27 A-.2321).

Tbe ground for granting tbe partial summary judgment was tbat there was no genuine issue as to any material fact. G-CR 1962, 117.2(3). Appellant claims tbat there were issues of material fact, regarding tbe amount of damage raised by its pleadings.

In its initial answer appellant admitted it did not pay tbe rent according to tbe lease. Further, appellant stated it vacated tbe premises and did not have any knowledge as to tbe use made of tbe premises by plaintiff nor any knowledge as to plaintiff’s attempts to mitigate its damage. In addition appellant claimed it left $2,500 worth of air-conditioning equipment in tbe building; however, tbe appellant did not allege that plaintiff obstructed or prevented it from removing said air-conditioning equipment.

Plaintiff’s reply to affirmative matters in appellant’s answer alleged tbat it bad unsuccessfully attempted to rent tbe premises. Thereupon, tbe appellant responded by denying tbat plaintiff bad been unable to rent and by claiming tbat plaintiff itself bad reoccupied tbe premises and bad unilaterally attempted to set the amount of credit to be given appellant for such reoccupancy, which amount was not agreeable to appellant. Attached to this response was an invoice from plaintiff for the May rental showing a credit of $145.83 for space utilized by plaintiff.

Plaintiff’s motion for summary judgment was supported by affidavits. Appellant, however, failed to support its claims- by opposing affidavit or other relevant proof as required by Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich 628, where Justice Souris at pp 655, 656 set forth the following criteria:

“Rule 117.3 makes clear that determination of a motion for summary judgment asserting, under Rule 117.2(3), that there is no genuine issue as to a material fact must be determined on the basis of the affidavits or other proof’ and that it is not sufficient to resist such a motion, if the motion is supported' by affidavits or other proofs, to rely solely upon the averments pleaded by the party opposing the motion. While such reliance may be placed upon pleadings in urging or resisting summary judgment based upon Rule 117.2(1) or (2), when the summary judgment sought asserts the absence of a genuine issue of material fact under Rule 117.2(3) and is supported by affidavit or other proofs, the opposing party must come forward with affidavits or other proofs of his own to establish that a genuine issue of material fact does exist.”

Appellant failed to meet its burden in this respect; no genuine issue of material fact was raised by the ■ appellant. When the trial court considered the • amount of damages at the hearing on the motion for ..summary judgment, appellant made no request for a hearing on the issue of damages, offered no proofs regarding the amount of damages and made no objection on fhe record to the court’s determination. Therefore, the partial summary judgment against Detroit Electrotype is affirmed. Costs to appellee.

Lesinski, C. J., concurred with Burns, J.