STEVEN N ROSS REVOCABLE TRUST V BORROWERS NETWORK
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STATE OF MICHIGAN
COURT OF APPEALS
STEVEN N. ROSS, Trustee of the STEVEN N.
ROSS REVOCABLE TRUST,
UNPUBLISHED
September 21, 2010
Plaintiff-Appellee,
and
BARRY ROSS,
Plaintiff,
v
No. 292944
Oakland Circuit Court
LC No. 08-093801-CK
BORROWERS NETWORK,
Defendant/Third-Party PlaintiffAppellant,
and
ROBERT GUNTMACHER,
Third-Party Defendant.
Before: O’CONNELL, P.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
In this action for breach of a loan agreement, defendant Borrowers Network appeals as of
right, challenging the trial court’s order granting summary disposition in favor of plaintiff Steven
N. Ross, trustee of the Steven N. Ross Revocable Trust, pursuant to MCR 2.116(C)(10), and
awarding judgment of $106,584.26 in favor of plaintiff. We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
We review de novo a trial court’s decision on a motion for summary disposition. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition may be granted
under MCR 2.116(C)(10) when “there is no genuine issue as to any material fact, and the moving
party is entitled to judgment . . . as a matter of law.” To the extent that defendant’s issue requires
consideration of the meaning of MRE 408, we review that question de novo. Waknin v
Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).
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We find no merit to defendant’s argument that the trial court improperly relied on
evidence that was inadmissible under MRE 408, which states, in pertinent part:
Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in
compromising or attempting to compromise a claim which was disputed as to
either validity or amount, is not admissible to prove liability for or invalidity of
the claim or its amount. . . .
Plaintiff presented a series of letters in support of his motion for summary disposition, two of
which were from defense counsel and addressed defendant’s obligations under the loan
agreement. None of these letters related to the offer or acceptance of consideration in order to
compromise a claim that was disputed as to either validity or amount. Rather, the letters
indicated that the parties intended to comply with the agreement and agreed on its terms. Thus,
MRE 408 did not preclude consideration of the letters.1
We also reject defendant’s argument that there were disputed issues of fact concerning
whether plaintiff provided the loan consideration. Defendant argues that plaintiff had the burden
of showing that it provided consideration to be entitled to summary disposition, and there is no
writing showing that plaintiff provided any consideration. When a party moves for summary
disposition under MCR 2.116(C)(10), the moving party must “specifically identify the issues as
to which the moving party believes there is no genuine issue as to any material fact,” and it has
the initial burden of presenting affidavits, depositions, admissions, or other documentary
evidence in support of the motion. MCR 2.116(G)(4)-(5); see also Maiden, 461 Mich at 120;
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Once the moving party
meets this burden, the burden shifts to the opposing party to show that a genuine issue of
material fact exists. Quinto, 451 Mich at 362.
Plaintiff presented the loan agreement, which identifies plaintiff as “Lender” and states
that “Lender” advanced $74,000 to defendant. Ross’s affidavit states that he is trustee of the
Steven N. Ross Revocable Trust Agreement, dated September 12, 1996, and makes the affidavit
on its behalf. The affidavit further avers that Ross “loaned $74,000 to [defendant] pursuant to a
written Loan Agreement dated December 22, 2004.”
In response to plaintiff’s motion, defendant presented checks to Parkchester L.L.C.
(“Parkchester”) from Steven Ross and from “Serman’s Inc.” (“Serman”) as executed by Ross, as
well as a cashier’s check to Parkchester with Ross listed as “Remitter.” The checks do not
indicate that Ross was acting as trustee in executing the checks. Plaintiff and defendant agree
that the $74,000 referenced in the loan agreement was part of the funds originally provided by
Ross and Serman to Parkchester and later transferred to defendant.
1
Further, the record discloses that the trial court did not rely on the letters in determining that
plaintiff was entitled to summary disposition.
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Plaintiff met his initial burden of showing that he provided consideration in his capacity
as trustee by presenting the loan agreement that recited the consideration defendant received
from plaintiff. The checks from Ross and Serman to Parkchester do not contradict the
representations in the loan agreement, and defendant did not present any evidence showing that it
did not receive consideration from plaintiff. Even if Ross and Serman originally provided
Parkchester the $74,000 referenced in the agreements, evidence concerning the origination of the
funds does not address the extent to which the funds belonged to the trust at the time of transfer
to defendant. Thus, the representation in the agreement that plaintiff provided consideration was
undisputed. Because defendant failed to show that a genuine issue of material fact existed, the
trial court properly granted summary disposition to plaintiff.
Affirmed.
/s/ Peter D. O’Connell
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
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