JOHN BARBER V WILLIAM J DRILLOCK
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN BARBER,
UNPUBLISHED
Plaintiff-Appellant,
and
DENNIS BARBER, d/b/a BARBER FARMS, and
HAROLD BARBER,
Plaintiffs,
v
No. 179974
Huron Circuit Court
LC No. 93-8404-NM
WILLIAM J. DRILLOCK and LAW OFFICES OF
WILLIAM J. DRILLOCK,
Defendants-Appellees.
Before: Reilly, P.J., and White and P.D. Schaefer,* JJ.
WHITE, J. (concurring in part, dissenting in part)
While I conclude that the better course would have been to grant the motion to amend and
address the merits of the fraud claim through a ruling on a motion for summary disposition, if brought by
defendants after amendment, I conclude that based on the posture of the case and the failure of plaintiff
to present the trial court with support for his fraud claim, the court’s grant of the motion, apparently
based on its conclusion that amendment would be futile, should not be reversed.
I respectfully dissent, however, from the majority’s conclusion that defendants were entitled to
sanctions and attorney fees under MCR 2.114(E). I would remand on this issue.
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
Plaintiff’s complaint in the underlying suit alleged:
12. That Plaintiffs . . . expanded from four to five milkers in 1983 and to six milkers
in 1984; that DeLaval through its agents and employees represented that said system
was designed in 1981 to operate with three milkers on each side for a total of six
milkers using a two-inch stainless steel milkline.”
***
15. That after the expansion to six milkers in 1984, Plaintiffs John Barber and Dennis
Barber experienced minor problems with their herd, but had no reason to believe that
the milking system was not properly designed and installed; that in the spring of 1986,
Plaintiffs . . . began experiencing high somatic cell counts and severe mastitis problems
in their dairy herd.” [Emphasis added.]
Plaintiff’s response to defendant’s motion for summary disposition in the instant case stated: “In 1981
the brothers added new stalls and expanded the milking system and again expanded the system in
1984.” Emphasis added. One of the plaintiffs 1 testified at deposition that paragraph twelve of the
underlying complaint, quoted above, was factually correct.
Thus, I conclude that plaintiff should not have been sanctioned for pleading in the instant case
that defendant was consulted “within four years from the date of the last installation,” unless it is
determined that there is no factual basis for the allegation that the system was expanded in 1984. It
appears that the circuit court’s finding that the allegation (paragraph six) “is clearly an untrue statement. .
. The plaintiffs entered the office of the defendant five and a half years after the last installation, everyone
agrees with that . . . even the plaintiff can’t--isn’t asserting otherwise,” was based on the belief that the
last installation was 1981. The basis for this conclusion is unclear.
I would remand with instructions to address the question whether there was a reasonable basis
to assert that there was an additional installation in 1984. If the court concludes that there was, the
sanctions should be vacated; if the court concludes that there was no basis for the allegation that there
was an additional installation in 1984, the sanctions should not be vacated.
/s/ Helene N. White
1
Exhibit six of defendant’s motion for summary disposition contains excerpts of the deposition
testimony of either Dennis or John Barber. Defendant’s brief refers to exhibits six and seven jointly, as
the depositions of Dennis and John Barber.
-2
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