STUART E SMALL V MARVIN L BERRIS
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STATE OF MICHIGAN
COURT OF APPEALS
STUART E. SMALL, individually and on behalf
of SMALL & BERRIS, P.C., SMALL AND
SMALL, P.C., and LAW OFFICES OF STUART
E. SMALL AND ASSOCIATES, P.C.,
UNPUBLISHED
June 15, 2001
Plaintiffs/Counter-Defendants-
Appellees,
v
No. 212952
Oakland Circuit Court
LC No. 93-451089-CK
MARVIN L. BERRIS,
Defendant/Counter-Plaintiff -
Appellant.
Before: Hoekstra, P.J., and Cavanagh and Gage, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s orders granting plaintiffs summary
disposition as to liability regarding plaintiffs’ complaint and, after a bench trial, awarding
damages and attorney fees to plaintiffs, and granting plaintiffs summary disposition on
defendant’s counter-complaint. We reverse in part, affirm in part, and remand for further
proceedings.
Defendant first argues that the trial court erred in granting plaintiffs summary disposition
on the complaint. Specifically, defendant claims that he was denied procedural due process
because he did not receive adequate notice that plaintiffs’ motion encompassed more than a
request to dismiss a portion of defendant’s counterclaim, i.e., that it encompassed a request for
summary disposition on the allegations in plaintiffs’ complaint. Further, defendant claims that
the trial court violated the Michigan Court Rules by granting summary disposition as a sanction
for failure to appear at scheduled hearings. We agree that the trial court’s grant of summary
disposition in favor of plaintiffs on their complaint was improper and therefore reverse and
remand.
In Brenner v Kolk, 226 Mich App 149, 155; 573 NW2d 65 (1997), this Court stated:
As an initial matter, we note that the trial court dismissed this case by
granting defendants' motion for summary disposition. The trial court did not
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specify the court rule under which it granted the motion, but it is clear from the
transcript of the hearing that the court granted summary disposition as a sanction
for plaintiff's failure to preserve evidence. We conclude that the trial court's
method of dismissing this case was incorrect as a matter of law because MCR
2.116 is not a rule of sanction. Summary disposition is proper only when the
pleadings show that a party is entitled to judgment as a matter of law or if the
affidavits or other proofs show no genuine issue of material fact. See MCR
2.116(I)(1).
The Brenner Court determined that a Michigan trial court may sanction parties for the loss or
destruction of evidence as an exercise of its inherent powers and remanded the case to the trial
court to determine the admissibility of the challenged evidence, noting that the trial court may
then entertain a motion for summary disposition. Id. at 159-165.
In the present case, the trial court did not specify the court rule under which it granted
plaintiffs’ motion and the record reveals that the trial court granted summary disposition as a
sanction for defendant failing to respond to the motion. In fact, the trial court later referred to the
action as a default. As in Brenner, supra, we conclude that the trial court’s method of dismissing
the present case was incorrect as a matter of law because it inappropriately used summary
disposition under MCR 2.116 as a sanction. Further, plaintiffs’ only motion for summary
disposition and supporting brief requested that the trial court dismiss with prejudice the
defendant’s counterclaim, without specifically mentioning a request for summary disposition as
to plaintiffs’ complaint, nor was defendant present at the hearing to contest an oral motion for
summary disposition on the complaint. See Lawrence v Department of Corrections, 81 Mich
App 234, 237-238; 265 NW2d 104 (1978) (Where the incarcerated plaintiff did not receive
notice of the Attorney General’s motion for summary judgment until after the motion was
granted, the plaintiff was denied due process because “[u]nderlying the claim made here is the
principle that notice must be given sufficiently in advance of the scheduled proceeding to afford
the party a reasonable opportunity to prepare and answer.”). Under these circumstances, the
procedural defects substantially impacted the course of the case and reversal and remand to the
trial court for proceedings on the complaint is necessary.
Because of the procedural defects requiring remand to the trial court, we decline to
address the merits of summary disposition on plaintiffs complaint, which the trial court did not
address. See Brenner, supra. However, if plaintiff moves for summary disposition on the
complaint after remand, obviously the trial court can address the issues raised on appeal at that
time.1
With regard to defendant’s counterclaim for which plaintiff actually filed a motion for
summary disposition in the trial court, defendant also argues that the trial court erred in granting
summary disposition in favor of plaintiffs. A review of the record compels us to find that the
trial court’s grant of summary disposition of the counterclaim also was granted as a sanction and
1
To that end, we note that it seems that the conversion statute, MCL 600.2919a; MSA
27A.2919(1), is inapplicable to the facts pleaded here.
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without addressing the merits of defendant’s motion. Accordingly, for the same reason that we
reversed the grant of summary disposition on the complaint, we also reverse the grant of
summary disposition on the counter-complaint and remand to the trial court. Again, we note that
upon remand the trial court is free to address the merits of plaintiff’s motion for summary
disposition on the counterclaim.
Defendant further argues that the trial court abused its discretion in awarding plaintiffs
$2,500 in sanctions for defendant’s failure to comply with discovery requests. Defendant does
not contest that the trial court should have imposed sanctions; rather, defendant argues that the
sanctions imposed by the trial court do not reflect reasonable compensation for the time
expended by plaintiffs’ attorney in obtaining the requested orders, for drafting the motions at
issue, and for the time for the appearance. We disagree. The record amply supports the
imposition of sanctions under MCR 2.313(B)(2), which allows reasonable expenses, including
attorney fees, and “such sanctions as are just.” From the record before us, we are satisfied that
the sanctions amount that the trial court awarded was reasonable in light of defendant’s repeated
failures to comply with plaintiffs’ discovery requests.
Defendant also argues that the trial court erred in appointing a receiver over defendant’s
law practice and assessing him the fees. Defendant concedes that this issue is unpreserved, and
we find no plain error affecting the outcome of the proceedings. People v Carines, 460 Mich
750, 763, 774; 597 NW2d 130 (1999). Regardless, by failing to cite any supporting legal
authority for his position, defendant has abandoned this issue. Prince v MacDonald, 237 Mich
App 186, 197; 602 NW2d 834 (1999); Head v Phillips Camper Sales & Rental, Inc, 234 Mich
App 94, 116; 593 NW2d 595 (1999) (“This Court will not search for authority to sustain or reject
a party's position.”).
Because of our resolution of the previous issues, we need not address defendant’s
remaining arguments.
Reversed in part, affirmed in part, and remanded for further proceedings. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
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