PAUL WILLIAM SCHOENEMANN V ANTHONY STEVEN BRENNEN
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STATE OF MICHIGAN
COURT OF APPEALS
PAUL WILLIAM SCHOENEMANN,
UNPUBLISHED
December 28, 2006
Plaintiff-Appellee,
v
No. 268451
Oakland Circuit Court
LC No. 02-045003-NI
ANTHONY STEVEN BRENNEN,
Defendant-Appellee,
and
DAIMLERCHRYSLER CORP.,
Defendant,
and
CORPORATE AUTO RESOURCE
SPECIALISTS, a/k/a KEN TOMPOR AUTO
BROKER & LEASING, LTD,
Defendant-Appellant.
Before: Owens, P.J., and White and Hoekstra, JJ.
PER CURIAM.
Defendant Corporate Auto Resource Specialists, Inc. (CARS) appeals by leave granted
from the trial court’s order granting plaintiff Paul Schoenemann’s motion to strike defendant’s
MCR 2.116(C)(8) motion for summary disposition as untimely. We reverse.
Defendant rents and sells luxury cars to corporations and other businesses in southeastern
Michigan.1 Codefendant Anthony Brennen was defendant’s employee.2 Plaintiff was Brennan’s
1
We refer to appellant CARS as “defendant” in this opinion.
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roommate. On the evening of Friday, November 12, 1999, without defendant’s permission,
Brennen and plaintiff went to CARS headquarters and took a Dodge Viper owned by
DaimlerChrysler from the garage where rental cars were stored.3 Brennen and plaintiff drove to
Detroit, visited several bars, and became intoxicated. As the men drove back to CARS
headquarters, Brennen lost control of the vehicle and struck a fence. Brennen and plaintiff
suffered extensive injuries.4
In his complaint, plaintiff alleged respondeat superior liability against defendant. On
February 18, 2004, on the agreement of all parties, the trial court, Judge Richard D. Kuhn
presiding, entered a scheduling order requiring that dispositive motions be heard by May 31,
2004. On September 8, 2004, defendant moved for partial summary disposition of plaintiff’s
respondeat superior claim pursuant to MCR 2.116(C)(8).5 Judge Kuhn entered a scheduling
order with regard to defendant’s motion for summary disposition in October 2004. Judge Kuhn
retired in December 2004, and Oakland Circuit Judge Michael Warran was assigned this case.
On January 31, 2006, Judge Warren granted plaintiff’s motion to strike defendant’s
MCR 2.116(C)(8) motion as untimely. This Court granted defendant leave to appeal the entry of
this order.
Defendant argues that the trial court erred when it refused to consider its
MCR 2.116(C)(8) motion for summary disposition on the merits because it was filed after the
May 31, 2004, deadline for filing dispositive motions established in the February 18, 2004,
scheduling order. We conclude that Judge Warren clearly erred when he refused to consider
defendant’s motion for summary disposition because Judge Kuhn, in his October 2004
scheduling order for this motion, implicitly chose to hear defendant’s motion on the merits, and
Judge Warren was bound by this decision.
MCR 2.116(D)(3) permits parties to raise motions under MCR 2.116(C)(8) or (C)(10) “at
any time.” However, the trial court may issue a scheduling order to “facilitate the progress of the
case . . . .” MCR 2.401(B)(2)(a). In a scheduling order, the trial court “shall establish times for
events the court deems appropriate . . . ,” including for “the amendment of pleadings, adding of
(…continued)
2
Brennen was a detailer, cleaning, washing, and polishing the rental cars.
3
Plaintiff’s claims against DaimlerChrysler were dismissed, and DaimlerChrysler is not a party
to this appeal.
4
Brennen later pleaded no contest to unlawfully taking and using an automobile. He is not a
party to this appeal.
5
Although defendant presented an MCR 2.116(C)(8) motion for summary disposition before the
trial court, it argued that the trial court should have granted its motion because Brennen had
stolen the Viper and no question of fact existed concerning defendant’s respondeat superior
liability for Brennen’s actions. We note that this argument might have been more appropriately
raised in an MCR 2.116(C)(10) motion for summary disposition. However, as will be discussed
infra, Judge Kuhn had the discretion to consider both MCR 2.116(C)(8) and (C)(10) motions on
their merits after the deadline set in the scheduling order had passed. Therefore, the status of
defendant’s motion as an MCR 2.116(C)(8) or (C)(10) motion for summary disposition does not
affect our analysis of this issue.
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parties, or filing of motions . . . .” MCR 2.401(B)(2)(a) and (a)(ii). Furthermore, a trial court has
the inherent power to control the movement of cases on its docket. Banta v Serban, 370 Mich
367, 368; 121 NW2d 854 (1963). Therefore, under MCR 2.401(B)(2)(a)(ii), “the trial court has
the discretion to decline to entertain motions beyond the stated deadline.” Kemerko Clawson,
LLC v RxIV Inc, 269 Mich App 347, 349; 711 NW2d 801 (2005). However, if the trial court has
the discretion to decline to entertain motions beyond the stated deadline, it also has the discretion
to accept motions filed after the deadline established by a scheduling order. We may only
disturb the trial court’s exercise of its inherent power if we find that the trial court clearly abused
its discretion. Persichini v William Beaumont Hosp, 238 Mich App 626, 642; 607 NW2d 100
(1999).
On October 14, 2004, Judge Kuhn entered a scheduling order for defendant’s
MCR 2.116(C)(8) motion. Although the trial court noted the objection to the motion previously
filed by plaintiff, in which plaintiff maintained that defendant’s motion was untimely and should
be struck, the scheduling order does not indicate that Judge Kuhn planned to separately consider
plaintiff’s procedural objection. Instead, Judge Kuhn established in the scheduling order the date
by which plaintiff was required to file his response to defendant’s motion and the date on which
defendant’s motion would be heard. Finally, Judge Kuhn noted that “Judge Michael Warren will
be reviewing and deciding the instant Motion for Summary Disposition.” By scheduling
defendant’s motion for a hearing on the merits, and by specifying that Judge Warren would
review and decide the “instant Motion for Summary Disposition,” not whether the motion was
timely filed and should be considered on the merits by the trial court, Judge Kuhn, in an exercise
of his discretion, waived the February 18, 2004, scheduling order requirement that defendant’s
dispositive motion must have been filed by May 31, 2004.
We find that Judge Kuhn did not clearly abuse his discretion when he waived the
requirement that defendant’s motion be filed by the date set in the scheduling order and chose to
consider defendant’s motion on its merits. Permitting plaintiff’s claim of respondeat superior to
proceed to trial if plaintiff has failed to even state a claim for which the trial court could grant
relief or to present a genuine issue of material fact would not promote the just, speedy, and
efficient resolution of this action. Choosing to hear defendant’s motion on the merits in an
attempt to more efficiently resolve the case and avoid a potentially needless trial is an
appropriate act of judicial discretion.
After Judge Warren was assigned this case, he chose to reconsider plaintiff’s objection to
defendant’s motion for summary disposition on grounds that it was untimely and to strike it for
that reason, although Judge Kuhn had previously waived the requirement that the motion be filed
in a timely manner and indicated that the disposition of the motion would be made on the merits.
Because MCR 2.613(B) only permits a subsequent trial judge to set aside a judgment or order to
correct an error by the prior judge in the same action, and Judge Kuhn’s exercise of discretion in
this case does not constitute an error, Judge Warren had no authority to reconsider Judge Kuhn’s
waiver of the requirement that defendant’s motion be filed by the date set forth in the scheduling
order.
MCR 2.613(B) provides:
Correction of Error by Other Judges. A judgment or order may be set
aside or vacated, and a proceeding under a judgment or order may be stayed, only
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by the judge who entered the judgment or order, unless that judge is absent or
unable to act. If the judge who entered the judgment or order is absent or unable
to act, an order vacating or setting aside the judgment or order or staying
proceedings under the judgment or order may be entered by a judge otherwise
empowered to rule in the matter.
Court rules are subject to the same rules of construction as statutes. In re KH, 469 Mich 621,
628; 677 NW2d 800 (2004). If the language of a court rule is clear and unambiguous, we must
enforce the rule as written. People v Venticinque, 459 Mich 90, 99-100; 586 NW2d 732 (1998).
Because Judge Kuhn retired shortly after issuing the October 2004 scheduling order, he
was “unable to act” and Judge Warren was “otherwise empowered to rule in the matter.”
According to the text of the rule itself, under these circumstances, Judge Warren could issue an
order vacating or setting aside a judgment or order previously issued by Judge Kuhn. However,
the scope of a statute and, similarly, of a court rule, is limited by its title. Bankhead v Mayor of
River Rouge, 35 Mich App 7, 15; 192 NW2d 289 (1971), aff’d 387 Mich 610 (1972). The title
of MCR 2.613(B) indicates that the rule permits a succeeding judge to vacate or set aside a
preceding judge’s order only if the preceding order was erroneous.
However, Judge Kuhn’s waiver of the scheduling order requirement that defendant’s
motion be filed by a particular date was an exercise of his discretion, not an error. Accordingly,
MCR 2.613(B), which gives a subsequent trial judge the authority to correct errors by the prior
judge in a given case, does not apply to the circumstances of this case. Judge Warren had no
authority to essentially set aside Judge Kuhn’s waiver of the timeliness requirement, and his
order striking defendant’s motion for summary disposition as untimely was in error. Because
Judge Warren lacked the authority to reconsider whether defendant’s motion should have been
stricken because it was untimely filed, we need not consider the appropriateness of his reasons
for granting plaintiff’s motion to strike defendant’s motion for summary disposition.6
Defendant also argues that the trial court ignored the law of the case when it granted
plaintiff’s motion to strike defendant’s motion for summary disposition. However, defendant
fails to identify a previous ruling by this Court or our Supreme Court in the present case that the
trial court failed to apply. See Poirier v Grand Blanc Twp (After Remand), 192 Mich App 539,
6
Although not necessary to the disposition of this motion, we wish to address the trial court’s
conclusion that it need not consider defendant’s MCR 2.116(C)(8) motion on its merits because
defendant failed to move to adjourn pursuant to MCR 2.503(B). An adjournment refers to
putting off a court session or other meeting or assembly until a later time. Black’s Law
Dictionary (8th ed). “[MCR 2.503] applies to adjournments of trials, alternative dispute
resolution processes, pretrial conferences, and all motion hearings.” MCR 2.503(A). Because
adjournments apply to motion hearings, defendant was not required to file a motion for
adjournment before the trial court could consider his MCR 2.116(C)(8) motion on the merits.
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546; 481 NW2d 762 (1992). Accordingly, we need not consider the issue further.7 See Mitcham
v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Joel P. Hoekstra
/s/ Donald S. Owens
7
In its reply brief, defendant argues that, pursuant to the doctrine of stare decisis, the trial court
should have applied Yee and Gerling when considering whether to grant plaintiff’s motion to
strike. Yet defendant failed to raise this issue in its statement of questions presented.
MCR 7.212(C)(5). Accordingly, we need not consider the issue further. Joerger v Gordon Food
Service, Inc, 224 Mich App 167, 172; 568 NW2d 365 (1997).
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