SSC Associates Ltd. Partnership v. General Retirement System

480 N.W.2d 275, 192 Mich. App. 360, 1991 Mich. App. LEXIS 517
CourtMichigan Court of Appeals
DecidedDecember 27, 1991
DocketDocket 120281
StatusPublished
Cited by81 cases

This text of 480 N.W.2d 275 (SSC Associates Ltd. Partnership v. General Retirement System) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SSC Associates Ltd. Partnership v. General Retirement System, 480 N.W.2d 275, 192 Mich. App. 360, 1991 Mich. App. LEXIS 517 (Mich. Ct. App. 1991).

Opinions

Reilly, P.J.

Defendant appeals as of right from the circuit court’s order granting summary disposition to plaintiff based on no genuine issue of material fact. MCR 2.116(0(10). We reverse.

On December 13, 1984, plaintiff executed a mortgage note for $5,500,000 payable to defendant. On October 8, 1986, it prepaid the note, defendant having determined that the amount owed was $6,007,910. Plaintiff later demanded a partial refund, alleging that defendant miscalculated the interest due. When defendant refused the request, plaintiff filed a complaint, claiming that defendant had breached the terms of the note.

The note provided in pertinent part:

Minimum Interest Return. Notwithstanding anything to the contrary contained in this Note, the total amount of interest to be paid by Maker to Payee shall not be less than an amount sufficient to pay to Payee an internal rate of return of fourteen and one half (14Vi%) percent per annum, as calculated by Payee, on the Principal Balance.

The court initially denied the parties’ respective motions for summary disposition. It then appointed an expert to determine the accepted meaning, if any, in the financial community of the contract term "internal rate of return.” The expert reported by letter to the court and to both counsel. In the expert’s opinion, plaintiff’s interpretation of the term was correct, and interest should have been computed to yield the annual rate of 14.5 percent. Defendant had computed the interest at 15.5 percent.

Following receipt of the expert’s letter, the parties renewed their motions for summary disposi[363]*363tion, claiming there was no genuine issue of a material fact. The parties agreed that the only issue before the court was the interpretation of the contract. They argued it was not ambiguous, yet they disputed the meaning of the contract term "internal rate of return ... as calculated by Payee.”

In response to a motion for summary disposition in an action for breach of contract, a trial court may determine the meaning of the contract only when the terms are not ambiguous. If the terms are subject to two or more reasonable interpretations, a factual development is necessary to determine the intent of the parties and summary disposition is inappropriate. Petovello v Murray, 139 Mich App 639; 362 NW2d 857 (1984). Here the trial court acknowledged that it did not know the meaning of the phrase. In an attempt to determine whether the phrase had an accepted meaning in the trade, the court, relying on MRE 706(a), sought the opinion of an expert. The parties did not object. In fact, the expert’s credentials apparently were acknowledged by both parties, and they shared the cost of his fee. However, the record does not show that defendant waived its rights under MCR 2.116(G)(3). Nor does it show that defendant agreed that the expert’s opinion would be binding.

The trial court adopted the expert’s opinion, submitted in letter form, determined that there was no genuine issue of a material fact, and granted plaintiff summary disposition under MCR 2.116(0(10). We hold that this was error.

A motion for summary disposition brought under MCR 2.116(0(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim.

Affidavits, depositions, admissions, or other docu[364]*364mentary evidence in support of the grounds asserted in the motion must be filed with the motion. MCR 2.116(G)(3). The affidavits must be made on the basis of personal knowledge and must set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the motion. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). They do not resolve issues of fact. Their purpose is to help the court determine whether an issue of fact, exists. Id. at 640, 645-647. Opinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact (or the lack of it) must be established by admissible evidence. Remes v Duby (After Remand), 87 Mich App 534, 537; 274 NW2d 64 (1978).

The party opposing the motion must then come forward with a showing that there is truly a dispute. Hollowell v Career Decisions, Inc, 100 Mich App 561; 298 NW2d 915 (1980). However, the party opposing a motion for summary disposition has no obligation to submit any affidavit until the moving party submits a proper affidavit regarding a dispositive fact. Bobier v Norman, 138 Mich App 819; 360 NW2d 313 (1984). In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties. MCR 2.116(G)(5). Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988). Giving the benefit of all reasonable doubt to the opposing party, the trial court must determine whether the kind of record that might be developed would leave open an issue upon which reasonable minds could differ. Weeks v Bd of Trustees, Detroit General Retirement System, 160 Mich App 81, 84; 408 NW2d 109 (1987). A reviewing court should be liberal in finding that a genuine issue of material [365]*365fact exists. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). A court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Id. at 371.

It is well settled that where the truth of a material factual assertion of a moving party’s affidavit depends on the affiant’s credibility, there exists a genuine issue to be decided at trial by the trier of fact and a motion for summary disposition cannot be granted. Metropolitan Life Ins, supra; Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973); Crossley v Allstate Ins Co, 139 Mich App 464, 468; 362 NW2d 760 (1984).

The trial court must not usurp a trial jury’s right, nor anticipate its own right as the trial factfinder if such it may become later, to determine the affiant’s credibility. Durant, supra at 647-652. Moreover, summary disposition is especially suspect where motive and intent are at issue, or where the credibility of a witness or deponent is crucial. Crossley, supra.

Plaintiff submitted only one affidavit relating to the meaning of the phrase in controversy, that of George Nyman, one of the partners in the plaintiff partnership. The sworn affidavit stated that the partnership understood that upon prepayment the city was entitled to be paid interest reflecting an internal rate of return of 14.5 percent per annum. This was a self-serving statement of opinion for which no factual support was offered. Because of Mr. Nyman’s involvement in the partnership, his sworn statement is naturally suspect. Furthermore, his affidavit did not resolve the ambiguity. It merely reasserted plaintiffs version of the contract language.

Defendant did not offer any affidavits, letters, or other evidence in support of its petition that the [366]*366contract phrase, when taken in context, was unambiguous and could only be interpreted to mean a return of 15.5 percent.

At the hearing regarding the motion, the trial court considered the letter opinions from the court’s expert and plaintiff’s accountant, both of which favored the plaintiff’s interpretation, and granted plaintiff’s motion.

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Bluebook (online)
480 N.W.2d 275, 192 Mich. App. 360, 1991 Mich. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ssc-associates-ltd-partnership-v-general-retirement-system-michctapp-1991.