DENNIS STEWART V BIRMINGHAM MORTGAGE CORP
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STATE OF MICHIGAN
COURT OF APPEALS
DENNIS STEWART,
UNPUBLISHED
February 3, 1998
Plaintiff-Appellant,
v
BIRMINGHAM MORTGAGE CORPORATION
and FLEET FINANCE, INC.,
No. 190235
Kent Circuit Court
LC No. 94-000814-CK
Defendants-Appellees,
and
BIRMINGHAM BANCORP and HOME LOAN
FINANCIAL CORPORATION,
Defendants.
Before: Neff, P.J., and Sawyer and Murphy, JJ.
PER CURIAM.
Plaintiff appeals as of right the dismissal of his multi-count action against defendant Birmingham
Mortgage Corp., a mortgage broker, and defendant Fleet Finance, Inc., to which Birmingham assigned
plaintiff’s residential mortgage. We affirm.
Plaintiff first contends that the trial court abused its discretion by limiting discovery and by
denying him the opportunity to file a fourth and fifth amended complaint. We disagree. The reasons
plaintiff advanced to support his requests for extension of discovery and for permission to file additional
complaints were inadequate.
Plaintiff also maintains that the trial court erred when it set aside a default against Fleet on the
ground that Fleet possessed a meritorious defense. We disagree. The propriety of the court’s action is
evidenced by the fact that shortly after setting aside the default the court granted Fleet summary
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disposition regarding all counts of the third amended complaint. See Komejan v Suburban Softball,
Inc, 179 Mich App 41, 49-51; 445 NW2d 186 (1989).
Plaintiff challenges the trial court’s grant of Birmingham’s motion in limine, filed after the deadline
set by the pretrial order. As the court stated, its consideration of the motion expedited trial, and
Birmingham could have objected to the proposed evidence at trial even if the court had declined to hear
the motion. No error occurred.
Plaintiff contends that the trial court improperly awarded Fleet summary disposition regarding
his breach of contract claim. The court noted that plaintiff was requesting it to cancel and forgive the
balance owing on his promissory note and mortgage, but had not cited any legal authority indicating that
the court had the power to do so as a matter of law, or that any jury had the right to do so as a matter
of fact. Reviewing de novo the trial court’s grant of summary disposition, Wills v State Farm Ins Co,
222 Mich App 110, 114; 564 NW2d 488 (1997), we conclude that the court’s action was proper.
We disagree with plaintiff’s allegation that the trial court erred by ruling that Fleet was a holder
in due course with respect to plaintiff’s mortgage. According to MCL 440.3302(1)(a) & (b); MSA
19.3302(1)(a) & (b), the holder of an instrument is a holder in due course if the instrument, when issued
or negotiated to the holder, does not bear apparent evidence of forgery or alteration or is not otherwise
so irregular or incomplete as to call into question its authenticity, and the holder took the instrument for
value, in good faith, without notice that the instrument was overdue or had been dishonored, without
notice that it contained an unauthorized signature or had been altered, without notice of any claim to the
instrument, and without notice that any party had a defense or claim in recoupment. Pursuant to these
criteria, the trial court correctly concluded from the evidence that Fleet was a holder in due course.
Plaintiff claims that the trial court erred by dismissing as “untimely and unnecessary” his motion
for summary disposition made pursuant to MCR 2.116(C)(10). However, plaintiff was not prejudiced
by the dismissal because the court stated that it had considered with respect to each count the assertions
made by plaintiff that he was entitled to summary disposition, and expressly rejected them.
Plaintiff maintains that the trial court erred by awarding a directed verdict for Birmingham with
respect to Counts I and II of the third amended complaint, on the ground that plaintiff’s proof of
damages was legally insufficient. This Court reviews for an abuse of discretion a trial court’s decision to
grant a directed verdict, considering the evidence presented up to the time that the motion was made
and viewing that evidence in the light most favorable to the nonmoving party, while resolving all doubt in
the nonmoving party’s favor. Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App
190, 195; 555 NW2d 733 (1996). The evidence shows that the trial court granted the directed verdict
not because plaintiff failed to prove his damages “to the last dollar,” but rather because he was unable
to suggest a reasonable method of proving his damages at all. No error occurred.
Plaintiff argues that both the trial judge and the chief judge of the circuit erred by denying his
motion to disqualify the court. MCR 2.003(C)(3). An order denying disqualification of a judge will be
reversed only where it is apparent that the court abused its discretion. Michigan Ass’n of Police v
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Pontiac, 177 Mich App 752, 757; 442 NW2d 773 (1989). We concur with the chief circuit judge’s
determination that plaintiff’s motion was without merit. No abuse of discretion occurred.
Plaintiff also alleges that prejudicial error occurred because the attorney representing Judge Soet
in plaintiff’s post-trial suit to disqualify the judge consulted with Fleet’s counsel. However, we agree
with the chief circuit judge’s finding that there was
no arguable impropriety in the judge’s counsel consulting with counsel for the other side
because the only possible objective of any such consultation is defending the judge’s
ruling. Counsel needs to be educated about the case, which is what is done by
consulting with other counsel, and defense of the ruling needs to be coordinated, which
is also done by consulting with other counsel as co-counsel do regularly.
Plaintiff’s remaining allegations of error are either not preserved for appellate review or are
without merit.
Affirmed.
/s/ Janet T. Neff
/s/ David H. Sawyer
/s/ William B. Murphy
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