TOWN & COUNTRY STERLING HEIGHTS V MICHAEL MENTZ
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STATE OF MICHIGAN
COURT OF APPEALS
TOWN & COUNTRY STERLING HEIGHTS,
d/b/a CENTURY 21 TOWN & COUNTRY,
UNPUBLISHED
March 29, 2002
Plaintiff-Appellant,
v
MICHAEL MENTZ, a/k/a MIKE MENTZ, and
TURN KEY ENTERPRISES,
No. 226841
Macomb Circuit Court
LC No. 99-000451-CK
Defendants-Appellees.
Before: Hood, P.J., and Gage and Murray, JJ.
PER CURIAM.
Plaintiff appeals as of right from a trial court order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(10). We reverse and remand.
Plaintiff argues that the trial court improperly granted defendants’ motion for summary
disposition, erroneously finding that the agreement between plaintiff and defendants for payment
of a commission upon the completion of a construction project was covered by the statute of
frauds. We agree. This Court reviews de novo a trial court’s decision on a motion for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A
motion brought pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff’s
claim and permits summary disposition when there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212
Mich App 45, 48; 536 NW2d 834 (1995). In presenting a motion for summary disposition, the
moving party has the burden of supporting its position with affidavits, depositions, admissions,
or other documentary evidence, and then the burden shifts to the opposing party to establish that
a genuine issue of material fact exists. If the opposing party fails to present admissible
documentary evidence establishing the existence of a material factual dispute, the motion is
properly granted. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999); Graham v
Ford, 237 Mich App 670, 672-673; 604 NW2d 713 (1999).
The oral contract alleged by plaintiff for which the commission was to be paid was not,
as the trial court found, a contract for the sale of a building. Rather, the deposition testimony of
Ms. Phillips, when viewed in a light most favorable to plaintiff, shows that the contract was for a
commission to be paid if defendant was a successful bidder for a construction contract. The
record evidence indicates that plaintiff was entitled to a commission upon the purchasers’
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acceptance of a construction bid by defendants and was to receive it upon the completion of the
construction of a commercial building on the property. Therefore, purported agreement to pay
commission was not an agreement “to pay a commission for or upon the sale of an interest in real
estate,” subject to MCL 566.132(1)(e).1 As such, this alleged oral contract for payment of
commission with respect to a successful construction bid, and not for the sale of an interest in
real estate, was not covered by the statute of frauds. See Mitchell-Morris & Co, Inc v Samaras,
325 Mich 425, 427-428; 38 NW2d 904 (1949). Accordingly, the trial court erred in granting
defendants’ motion for summary disposition.
Defendants urge various alternative grounds for affirming the trial court, arguing, for
example, that there was insufficient consideration for the contract to pay commission and that
conditions precedent for payment of the commission, such as the issuance by the township of a
certificate of occupancy, had not been met. This Court may affirm a trial court’s decision on
alternate grounds, Messenger v Ingham Co Prosecutor, 232 Mich App 633, 643; 591 NW2d 393
(1998), but in this case, we think it inappropriate to do so because the trial court did not take the
opportunity to rule on these issues when originally raised by defendants in their motion for
summary disposition.2 Plaintiff also asks that summary disposition be entered in its favor, but
we decline to do so for the same reason. See Fast Air, Inc v Knight, 235 Mich App 541, 549;
599 NW2d 489 (1999).
Finally, we note that plaintiff argues that the trial court had no authority to enter summary
disposition in this case, as it had entered an order setting a date for trial before the summary
disposition motions were filed, and the conditions of MCR 2.612(C) for relief from an order
were not met. This argument is misplaced. The requirements of MCR 2.612(C) apply to relief
from final judgments and similar orders entered by a trial court, not to case management and
other interim orders. The order at issue here was a routine case management order, and not a
final judgment from which relief could be obtained only upon following special procedures.
Thus, the provisions of MCR 2.612(C) had no application to it.
Reversed and remanded. We do not retain jurisdiction.
/s/ Harold Hood
/s/ Hilda R. Gage
/s/ Christopher M. Murray
1
We note that this section is to be strictly construed. Summers v Hoffman, 341 Mich 686, 694;
69 NW2d 198 (1956).
2
Defendants never raised the statute of frauds defense in the trial court. Rather, the trial court
raised the issue sua sponte, and thus, failed to address the issues actually raised by the parties.
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