Opinion
No. 339365
06-26-2018
HOUDA BENHJILA, Plaintiff-Appellant, v. EHAB ABDALLA and DOUA BADR, Defendants-Appellees.
UNPUBLISHED Oakland Circuit Court
LC No. 2017-156916-NO Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(10) after plaintiff failed to respond to defendants' motion for summary disposition. We affirm.
Plaintiff filed her complaint on January 20, 2017, alleging counts sounding in fraudulent concealment, misrepresentation, intentional infliction of emotional distress, assault and battery, civil conspiracy, and false imprisonment. The case was designated as an "eFiling case." A general scheduling order was entered by the trial court on April 3, although defendants had yet to be served with process. After plaintiff was unable to serve defendants with the summons and complaint, the trial court, on plaintiff's motion, entered an order extending the summons and allowing for alternate service. On May 11, counsel for defendants filed his appearance. On May 19, in lieu of filing an answer to the complaint, defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), supporting the (C)(10) motion with various pieces of documentary evidence, including an affidavit from each defendant.
All of the dates cited in this opinion pertain to 2017; therefore, we shall hereafter reference only the month and the day of the month in regard to events.
On May 22, the trial court entered an order, which indicated that defendants had filed a motion for summary disposition, that the motion would be heard on July 12, that defendants were required to praecipe the motion for said date, that plaintiff's response "brief must be filed and received by the [c]ourt and opposing counsel on or before June 28 . . . at 4:00 p.m.," and that defendants had the option of filing a reply brief on or before July 5, not to exceed five pages. The gist of plaintiff's position in this case concerns this order, with plaintiff arguing as follows in her appellate brief:
[Plaintiff's counsel] received Defendants' motion for summary disposition directly from Defendants' counsel because, upon information and belief, he noticed that [plaintiff's counsel] was not in the service contacts in the updated e-file system. [Plaintiff's counsel] was registered in the Oakland County's e-filing system. However, [plaintiff's counsel] was unaware of the new registration process which overhauled the previous e-filing system. [Plaintiff's counsel] later learned that in order to receive e-filings in the updated system, he needed to re-register. Upon learning of the new registration process, [plaintiff's counsel] registered and re-registered as a service contact for this case. However, prior to re-registering as a service contact in this case under the updated e-filing system a scheduling order was entered by the trial court which required a response to Defendants' motion for summary disposition[]. [Emphasis in original.]
This is clearly a reference to the trial court's order of May 22, setting deadlines and a hearing date relative to defendants' motion for summary disposition, not the general scheduling order entered early on in the proceeding. --------
Returning to the timeline of lower court proceedings, on June 23, plaintiff e-filed and served her witness list. The due date for plaintiff's response brief to defendants' motion for summary disposition - June 28 - passed without a response brief being filed. In an emergency motion filed by plaintiff on July 7, she requested an extension of due dates regarding the summary disposition scheduling order. In the motion, plaintiff's counsel indicated that court staff had called his office on July 6 and informed him that the scheduled July 12 hearing on the summary disposition motion had been canceled, because plaintiff had not filed a response brief by the deadline and the court, therefore, was granting summary disposition in favor of defendants. In the emergency motion, plaintiff, consistently with the passage quoted earlier from plaintiff's appellate brief, set forth the reason for the failure to file a response brief. Counsel claimed that only when contacted by court staff did he first learn about the summary disposition scheduling order.
By order dated July 7, but entered July 10, the trial court stated that plaintiff had failed to file a response brief by June 28 and that, in light of this failure, the court was dispensing with oral argument and canceling the summary disposition hearing. The trial court then noted that defendants had moved for summary disposition under MCR 2.116(C)(8) and (10), and the court proceeded to recite the general principles applicable to those two grounds for summary disposition. The court concluded the opinion, ruling as follows:
The Plaintiff failed to present any opposition to the motion, thereby failing to prove the existence of a genuine issue for trial. In looking at the evidence in the light most favorable to the Plaintiff, summary disposition is granted in favor of the Defendants pursuant to MCR 2.116(C)(10). The Plaintiff's claims against Defendants are dismissed with prejudice.The trial court did not make a ruling relative to MCR 2.116(C)(8).
On July 10, plaintiff filed a motion for relief from judgment under MCR 2.612. On July 11, the trial court entered a cursory order denying plaintiff's emergency motion to extend the due dates associated with defendants' motion for summary disposition. By order entered July 21, the trial court denied plaintiff's motion for relief from judgment, ruling:
The court dispenses with oral argument. MCR 2.119(E)(3). The above titled motion was brought pursuant to MCR 2.612. The court does not find that the neglect in this matter was excusable nor does it conclude that extraordinary circumstances exist that mandate setting aside the judgment in order to achieve justice. The court notes that the Plaintiff also relied upon "relevant case law" but failed to cite any case law in support of her motion. "It is not enough for [the moving party] in [her] brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for [her] claims, or unravel and elaborate [her] arguments, and then search for authority either to sustain or reject [her] position. Mitcham v City of Detroit, 355 Mich 182, 203 (1959). [Alterations in original.]Plaintiff appeals as of right.
We review de novo a trial court's ruling on a motion for summary disposition. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). Plaintiff first argues that we should affirm the trial court's apparent denial of defendants' motion for summary disposition under MCR 2.116(C)(8). The trial court did not rule one way or the other on the (C)(8) component of defendants' motion. Given that the trial court specifically granted summary disposition in favor of defendants under MCR 2.116(C)(10), absent an indication that it was also granting the motion under MCR 2.116(C)(8), there is no need to entertain any arguments concerning MCR 2.116(C)(8) in the procedural posture of this appeal. There is no ruling to review.
Plaintiff next argues that the trial court erred in granting summary disposition in favor of defendants under MCR 2.116(C)(10). Plaintiff presents two grounds for this argument. First, plaintiff asserts that defendants' affidavits should not have been considered because they were unsigned and not notarized. This argument fails, considering that the affidavits in the lower court record that are in front of this panel are indeed signed and notarized. Second, plaintiff contends that summary disposition was premature because discovery had not even started and it is likely that discovery would yield support for plaintiff's position. In Caron v Cranbrook Ed Community, 298 Mich App 629, 645-646; 828 NW2d 99 (2012), this Court observed:
Summary disposition is generally premature if discovery is not complete. However, summary disposition may be proper before discovery is complete where further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. A party opposing a motion for summary disposition because discovery is not complete must provide some independent evidence that a factual dispute exists. Mere speculation that additional discovery might produce evidentiary support is not sufficient. [Citations, quotation marks, and alteration brackets omitted.]
Here, given that there was no summary disposition response brief filed by plaintiff, there was no preserved argument concerning the need for discovery and there was no independent evidence suggesting the existence of a possible factual dispute. The trial court relied on the principle expressed in MCR 2.116(G)(4), which provides:
When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.Plaintiff cannot escape this rule under the guise of seeking discovery, where she did not submit any documentary evidence in the first place, which could have been accomplished by a simple affidavit by plaintiff herself.
Finally, plaintiff asks this Court to exercise its discretion for purposes of justice and allow plaintiff the opportunity to defend against the motion for summary disposition, considering the circumstances that caused the failure to file a response brief. While we are somewhat tempted by plaintiff's plea in light of the horrific allegations contained in the complaint, we cannot do so on the existing record. The trial court, which certainly was familiar with the e-filing system in place in the county, found that counsel's neglect was not excusable. Counsel never submitted any documents below in support of his claimed excuse, such as his own affidavit, attesting to the "update" in the e-filing system that purportedly required him to re-register and his lack of knowledge of the update, or some informational document or notice from the court itself regarding any update in the e-filing system. Logic dictates that attorneys would have been given notice of any update in the system that required them to re-register their e-mail contact. Plaintiff's counsel used and accessed the e-filing system earlier in the proceedings. Indeed, he e-filed a witness list five days before the response brief was due, with the proof of service indicating that the list had been e-filed with the court and served on defendants via the e-filing system. Aside from the lack of supporting documentary evidence, counsel does not even state when this "update" took place or explain why he was unaware of it. Furthermore, there is no dispute that plaintiff received notice of defendants' motion for summary disposition, where it was e-filed and given directly to plaintiff's counsel around May 19. This should have alerted counsel of the need to monitor the matter. To the extent that the trial court's ruling is viewed as a sanction for not complying with the court's scheduling order, we cannot conclude that the court abused its discretion in summarily dismissing the suit. See Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Affirmed. Having fully prevailed on appeal, defendants are awarded taxable costs under MCR 7.219.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause