Midwest Bridge Co. v. Highway Department

Michigan Court of Appeals

Midwest Bridge Co. v. Highway Department

180 N.W.2d 117, 24 Mich. App. 151, 1970 Mich. App. LEXIS 1672

Michigan Court of Appeals·Decided May 27, 1970·No. Docket 7,268·Published·Cited by 6 cases

Opinions

Danhop, J.

Plaintiff sued defendants in the Court of Claims on a contract between the parties. Defendants moved for summary judgment on the [153] ground that plaintiff failed to state a claim upon which relief could be granted. GCB. 1963, 117.2(1). Defendants’ motion was based on the records and files and on an affidavit. The parties stipulated as to the facts, and plaintiff concluded its brief on defendants’ motion for summary judgment by requesting the court to grant summary judgment in its favor for $1,461.70, stating accurately that a separate motion therefor was unnecessary under GCB 1963, 117.3. Plaintiff did not file any affidavits in support of its request. The lower court granted defendants’ motion for summary judgment.

On appeal plaintiff argues that the court acted outside the scope, power and policy of GCB 1963, 117.2(1) and 117.2(3), and that there was a substantial question of fact which precluded granting summary judgment under either GCB 1963, 117.2(1) or 117.2(3). Plaintiff’s arguments are without merit. This case presents a classic example of the proper use of summary judgment. The facts were stipulated. Both parties sought summary judgment. Only a question of law was involved, namely, whether on the undisputed facts defendant had breached the contract between the parties.

During oral argument, plaintiff’s attorney argued that 1.04.05 of the Michigan State Highway Department’s 1965 standard specifications for road and bridge construction should apply. However, this was not argued in the brief filed in the Court of Claims, nor in the brief filed in the Court of Appeals. This Court has repeatedly refused to consider issues not presented for determination by the trial court. Haggerty v. MacGregor (1968), 9 Mich App 671, 674; Hileman v. Indreica (1969), 15 Mich App 662, 668 (leave to appeal granted, 383 Mich 751). Also, ordinarily no point will be considered which is [154] not set forth in or necessarily suggested by the statement of questions involved. GCR 1963, 813.1.

Footnotes

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Danhop, J.

Plaintiff sued defendants in the Court of Claims on a contract between the parties. Defendants moved for summary judgment on the [153] ground that plaintiff failed to state a claim upon which relief could be granted. GCB. 1963, 117.2(1). Defendants’ motion was based on the records and files and on an affidavit. The parties stipulated as to the facts, and plaintiff concluded its brief on defendants’ motion for summary judgment by requesting the court to grant summary judgment in its favor for $1,461.70, stating accurately that a separate motion therefor was unnecessary under GCB 1963, 117.3. Plaintiff did not file any affidavits in support of its request. The lower court granted defendants’ motion for summary judgment.

On appeal plaintiff argues that the court acted outside the scope, power and policy of GCB 1963, 117.2(1) and 117.2(3), and that there was a substantial question of fact which precluded granting summary judgment under either GCB 1963, 117.2(1) or 117.2(3). Plaintiff’s arguments are without merit. This case presents a classic example of the proper use of summary judgment. The facts were stipulated. Both parties sought summary judgment. Only a question of law was involved, namely, whether on the undisputed facts defendant had breached the contract between the parties.

During oral argument, plaintiff’s attorney argued that 1.04.05 of the Michigan State Highway Department’s 1965 standard specifications for road and bridge construction should apply. However, this was not argued in the brief filed in the Court of Claims, nor in the brief filed in the Court of Appeals. This Court has repeatedly refused to consider issues not presented for determination by the trial court. Haggerty v. MacGregor (1968), 9 Mich App 671, 674; Hileman v. Indreica (1969), 15 Mich App 662, 668 (leave to appeal granted, 383 Mich 751). Also, ordinarily no point will be considered which is [154] not set forth in or necessarily suggested by the statement of questions involved. GCR 1963, 813.1.

Footnotes

Midwest Bridge Co. v. Highway Department, 180 N.W.2d 117, 24 Mich. App. 151, 1970 Mich. App. LEXIS 1672 (Mich. Ct. App. 1970).

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180 N.W.2d 117 (Midwest Bridge Co. v. Highway Department) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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