Opinion
Docket No. 12658.
Decided August 30, 1972. Leave to appeal denied, 388 Mich. 789.
Appeal from Wayne, Neal Fitzgerald, J. Submitted Division 1 June 12, 1972, at Detroit. (Docket No. 12658.) Decided August 30, 1972. Leave to appeal denied, 388 Mich. 789.
Complaint by Huron School District against Huron Township and township officers to have a debt service charge for sanitary sewers declared invalid, to enjoin collection of the charge, and for other relief. Summary judgment for plaintiff. Defendant township appeals. Reversed and remanded with instructions.
Wilson Wilson, for plaintiff.
Berry, Hopson, Francis Mack, for defendant.
Defendant Township of Huron appeals as of right from the summary judgment entered in favor of plaintiff.
Such facts as appear from the somewhat sketchy record indicate that in August of 1968 the State Water Resources Commission obtained a court order directing defendant to abate its unlawful pollution of the Huron River by constructing the required sanitary sewers and treatment facilities. Pursuant to MCLA 123.731 et seq.; MSA 5.570(1) et seq., defendant township contracted with Wayne County for construction of the sewage facilities; bonds were issued by the county; and defendant, to fulfill its contractual obligations, enacted township ordinance No. 68-2. Of the various rates, charges and inspection fees imposed by ordinance, we are concerned solely with the "debt service charge". The "debt service charge" was comprised of an "interceptor charge" and a "lateral charge". The total of all costs and charges payable by plaintiff amounted to $66,590.
Plaintiff filed a complaint challenging the "debt service charge" assessed against it by defendant and alleging that the "interceptor charge" and the "lateral charge" were, in reality, taxes and not mere user fees.
Plaintiff subsequently filed a motion for summary judgment under GCR 1963, 117, alleging that defendant had failed to state a valid defense to plaintiff's claim (GCR 1963, 117.2) and arguing that no material issue as to any material fact existed under GCR 1963, 117.2(3) because inter alia: plaintiff was exempt from taxation as a matter of law and that plaintiff was exempt from special assessments in the absence of prior agreement.
The motion was orally argued before the learned trial judge who entered an order granting plaintiff's motion for summary judgment. This appeal of right followed. Examination of the record discloses at least two grounds for reversing the judgment entered below. We discuss the errors seriatim.
We note a typographical error in the order inadvertently stating that defendant is entitled to judgment as a matter of law even though the relief granted and the briefs of the parties clearly indicate that plaintiff prevailed on the aforesaid motion.
While the learned trial judge may have completely understood the issues on the basis of counsel's arguments, we are limited to what affirmatively appears of record. There was no record made of what occurred at the hearing on plaintiff's motion for summary judgment and the order granting this relief merely recites that the prevailing party is entitled to judgment as a matter of law. We cannot act on the basis of such an incomplete record.
Now as to the second error, we set forth the affidavit submitted in support of plaintiff's motion for summary judgment:
SUPPORTING AFFIDAVIT
STATE OF MICHIGAN | SS COUNTY OF WAYNE |
On this 16th day of August, A.D. 1971, before me, a notary public in and for said county and state, personally appeared KIRBY L. WILSON, III, who, being first duly sworn, deposes and says that he has read the foregoing Motion by him subscribed and knows the contents thereof; that the same is true of his own knowledge except as to matter therein stated to be upon information and belief, and as to those matters, he believes them to be true.
Mary Coman Notary Public, Wayne County, Michigan My Commission Expires: 6-27-75
It hardly need be said that this affidavit does not indicate that plaintiff's attorney could competently testify as to the determinative issue on appeal: whether the charge imposed by defendant was an invalid tax or sustainable as a valid service charge. See GCR 1963, 117.3 and 116.4; Durant v. Stahlin, 375 Mich. 628 (1965); Wiegand v. Tringali, 22 Mich. App. 230 (1970).
Reversed and remanded for proceedings not inconsistent herewith.
Defendant may tax costs on appeal.
All concurred.