Opinion
366898
09-20-2023
Estate of Lamar D Mitchell v. City of Flint
LC No. 22-118014-NO
Colleen A. O'Brien Presiding Judge, Kathleen Jansen, Deborah A. Servitto Judges.
ORDER
Colleen A. O'Brien, Presiding Judge.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court VACATES the June 5, 2023 order of the Genesee Circuit Court and REMANDS to the trial court for a ruling on defendants' motion for summary disposition before additional discovery is conducted. The trial court erred by holding defendants' motion under MCR 2.116(C)(8) in abeyance pending discovery because a motion under this subrule must be decided on the pleadings alone. See Bailey v Antrim County, 341 Mich.App. 411, 432; 990 N.W.2d 372 (2022). The trial court may deny defendants' motion under MCR 2.116(C)(7) if it concludes that discovery is needed, see Ousley v Phelps Towing, Inc, 509 Mich. 875 (2022), but the trial court erred by postponing a decision on the motion to afford plaintiff time to obtain defendants' depositions or other discovery before a ruling on the motion when plaintiff failed to submit an affidavit in compliance with MCR 2.116(H). On remand, the trial court shall enter an order that either grants or denies defendants' motion for summary disposition. See In re Bd of Trustees of Mich. State Univ, 480 Mich. 1052 (2008).
The motion for immediate consideration of defendants' motion to stay is GRANTED.
The motion for stay pending appeal is DENIED.
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.