STEPHEN J KEARNS V COUNTY OF ST CLAIRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
STEPHEN J. KEARNS, Individually and as Personal
Representative of the Estate of THERESA J.
November 6, 1998
COUNTY OF ST. CLAIR, ST. CLAIR COUNTY
ROAD COMMISSION, and ST. CLAIR COUNTY
RETIREMENT BOARD OF TRUSTEES,
St. Clair Circuit Court
LC No. 96-003703 NO
Before: Markman, P.J., and Bandstra and J.F. Kowalski*, JJ.
Plaintiff appeals as of right the order granting defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). We affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
Plaintiff’s deceased spouse worked for defendant road commission for three separate periods
of time. Upon leaving employment the first two occasions, she received a refund of her retirement
contributions, and forfeited her credited service time. At the time of her death, she had not reached the
required amount of service credit to qualify plaintiff for a survivor’s pension. Plaintiff later sought to
reinstate his wife’s former service credit to qualify for a pension. Plaintiff’s request was denied, and he
filed this action. The trial court granted defendants’ motion for summary disposition, finding that
defendants met their fiduciary duty to plaintiff’s wife, and that plaintiff was not a member entitled to seek
reinstatement of forfeited credits.
When deciding a motion under MCR 2.116(C)(10), a court must consider all the evidence
presented and determine whether a record might be developed that would leave open an issue for trial.
Skinner v Square D Co, 445 Mich 153, 160-162; 516 NW2d 475 (1994). Once the moving party
* Circuit judge, sitting on the Court of Appeals by assignment.
supports its motion with documentary evidence, the nonmoving party must respond with evidence
setting forth specific facts showing that there is a genuine issue for trial. Richardson v Michigan
Humane Society, 221 Mich App 526, 527; 561 NW2d 873 (1997).
Here, defendants supported their motion with a copy of the retirement ordinance along with
affidavits indicating that the materials had been provided to plaintiff’s decedent. While plaintiff argued
that the plans had not been provided and that other plan members were allowed to reinstate forfeited
time after they retired, plaintiff presented no documentary evidence to support these claims, as required
by MCR 2.116(G)(4).
The retirement plan is not susceptible to the interpretation given to it by plaintiff. There is no
plausible reading of the plan that would allow plaintiff, as the spouse of a member who had yet to
accumulate the time needed for vesting, to arrange to reinstate forfeited time to render himself eligible for
benefits. The trial court properly granted summary disposition to defendants.
/s/ Stephen J. Markman
/s/ Richard A. Bandstra
/s/ John F. Kowalski