Opinion
No. 99-47.
March 22, 2000.
Orders Entered March 22, 2000:
On order of the Court, this is to advise that the Court is considering amendment of Rule 2.116 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives. Before adoption or rejection, this proposal will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below:]
RULE 2.116. SUMMARY DISPOSITION.
(A)-(F) [Unchanged.]
(G) Affidavits; Hearing.
(1)-(4) [Unchanged.]
(5) When the motion is based on subrules (C)(1)-(7) or (10), T thepleadings affidavits, together with the pleadings substantively admissible evidence in the affidavits, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).
(H)-(J) [Unchanged.]
Staff Comment: The proposed amendment of MCR 2. 116 (G)(5) incorporates the principle stated in Maiden v Rozwood, 461 Mich. 109, 121 (1999), that only "substantively admissible evidence" may be considered in ruling on motions for summary disposition under MCR 2.116 (C)(1)-(7) and (10).
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk by August 1, 2000. When filing a comment, please refer to our file No. 99-47.