JEFFERSON MAINTENANCE COMPANY
v.
DETROIT ELECTROTYPE COMPANY.
Docket No. 991.
Michigan Court of Appeals.
Decided October 3, 1967.*622 Grossman & Grossman, for plaintiff.
Watson, Lott & Wunsch, for defendant.
BURNS, J.
Plaintiff leased the fourth floor of a building to the Detroit Electrotype Company. Before the expiration of the lease, Detroit Electrotype vacated the premises and thereafter failed to pay the stipulated monthly rental. Plaintiff commenced an action against the defendants based on different theories which were set forth in separate counts of the complaint. This appeal concerns only count 1 wherein plaintiff sought recovery of the accumulated rental payments under its written lease with Detroit Electrotype, hereinafter referred to as the appellant.
Plaintiff filed a motion for summary judgment and affidavits in support thereof. The record indicates that appellant submitted no affidavits or other pertinent proofs in opposition to the motion. At the proceedings on the motion, the circuit judge directed that a partial summary judgment be entered against Detroit Electrotype. However, when the judgment was signed on May 27, 1965, it mistakenly ordered that plaintiff recover the partial judgment from all the defendants.
On June 15, 1965, defendants filed their claim of appeal in this Court and paid their filing fee, thereby giving the Court of Appeals jurisdiction. GCR *623 1963, 802.1. On June 28, 1965, the circuit judge, after being apprised of the error in the May 27th judgment, granted a partial summary judgment nunc pro tunc which corrected the former judgment by ordering recovery only against appellant.
Although we do not condone such a practice, it was not reversible error for the trial court to enter the judgment nunc pro tunc, despite our assumption of jurisdiction over the subject matter. See Hershel Radio Co. v. Pennsylvania R. Co. (1955), 344 Mich. 75; CLS 1961, §§ 600.2311, 600.2315(8), 600.2321 (Stat Ann 1962 Rev §§ 27A.2311, 27A.2315[8], 27A.2321).
The ground for granting the partial summary judgment was that there was no genuine issue as to any material fact. GCR 1962, 117.2(3). Appellant claims that there were issues of material fact, regarding the amount of damage raised by its pleadings.
In its initial answer appellant admitted it did not pay the rent according to the lease. Further, appellant stated it vacated the premises and did not have any knowledge as to the use made of the premises by plaintiff nor any knowledge as to plaintiff's attempts to mitigate its damage. In addition appellant claimed it left $2,500 worth of air-conditioning equipment in the building; however, the appellant did not allege that plaintiff obstructed or prevented it from removing said air-conditioning equipment.
Plaintiff's reply to affirmative matters in appellant's answer alleged that it had unsuccessfully attempted to rent the premises. Thereupon, the appellant responded by denying that plaintiff had been unable to rent and by claiming that plaintiff itself had reoccupied the premises and had unilaterally attempted to set the amount of credit to be given *624 appellant for such reoccupancy, which amount was not agreeable to appellant. Attached to this response was an invoice from plaintiff for the May rental showing a credit of $145.83 for space utilized by plaintiff.
Plaintiff's motion for summary judgment was supported by affidavits. Appellant, however, failed to support its claims by opposing affidavit or other relevant proof as required by Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich. 628, where Justice SOURIS at pp 655, 656 set forth the following criteria:
"Rule 117.3 makes clear that determination of a motion for summary judgment asserting, under Rule 117.2(3), that there is no genuine issue as to a material fact must be determined on the basis of `the affidavits or other proof' and that it is not sufficient to resist such a motion, if the motion is supported by affidavits or other proofs, to rely solely upon the averments pleaded by the party opposing the motion. While such reliance may be placed upon pleadings in urging or resisting summary judgment based upon Rule 117.2(1) or (2), when the summary judgment sought asserts the absence of a genuine issue of material fact under Rule 117.2(3) and is supported by affidavit or other proofs, the opposing party must come forward with affidavits or other proofs of his own to establish that a genuine issue of material fact does exist."
Appellant failed to meet its burden in this respect; no genuine issue of material fact was raised by the appellant. When the trial court considered the amount of damages at the hearing on the motion for summary judgment, appellant made no request for a hearing on the issue of damages, offered no proofs regarding the amount of damages and made no objection on the record to the court's determination. *625 Therefore, the partial summary judgment against Detroit Electrotype is affirmed. Costs to appellee.
LESINSKI, C.J., concurred with BURNS, J.
LEVIN, J. (dissenting).
Although entitled "motion for summary judgment", GCR 1963, 117 incorporates not only the former summary judgment court rule[1] but also the court rule pertaining to motions to dismiss.[2]
A motion for summary judgment on the ground that there is no genuine issue as to any material fact is now covered in subdivision (3) of Rule 117.2 (GCR 1963, 117.2(3)). Motions to dismiss for failure to state a claim or valid defense are now covered in subdivisions (1) and (2), respectively, of that rule (GCR 1963, 117.2[1] [2]). So that the respondent to such a motion and the court can know whether it is based on one ground or another, the rule provides that the motion "shall state" which of the grounds is relied on.[3] In my opinion the ground stated in plaintiff's motion is that expressed in GCR 1963, 117.2(2) failure to state a valid defense; and not (3) absence of a genuine issue as to any material fact.
Plaintiff's motion for summary judgment states that plaintiff moves for a summary judgment "for the reason that the defendants' answer fails to state *626 a valid defense, and the defendants have not denied any of the material matters alleged in the complaint, but only such immaterial matters not pertinent to the issues and not constituting a defense to the plaintiff's claim." (Emphasis added.)
The matter is of importance in this case because the trial judge and this Court have decided against the defendant because defendant failed to present affidavits establishing that there is a genuine issue of fact. But no such affidavit is required or permitted where the motion is based on an alleged failure to state a valid defense.
"As under our former dismissal practice for failure of the plaintiff to state a cause of action, motions for summary judgment under Rule 117.2(1), based upon the ground that the opposing party has failed to state a claim upon which relief can be granted, need no affidavit in support, for the simple reason that the ground for the relief requested must, if at all, appear on the face of the pleading so attacked. The same is true of a motion for summary judgment under Rule 117.2(2), based upon the ground that the opposing party has failed to state a valid defense to the claim asserted against him. In neither of such motions is nonpleaded fact, offered by affidavit or otherwise, pertinent to the issue (failure to state a claim upon which relief can be granted or failure to state a valid defense) presented by such motion." From concurring opinion of Justice SOURIS in Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich. 628, 643, 644.
In my opinion the trial judge was not justified in partially granting the motion for summary judgment on the ground that "there is no genuine issue as to any material fact, and that under the undisputed facts, plaintiff is entitled to a judgment as a matter *627 of law." (Quoted words from the judgment entered by the trial judge.)
I would, therefore, reverse although there are other hurdles defendant may not have fully negotiated. Assuming the defense of failure to mitigate damages is an affirmative defense,[4] we have noted that it may not have been properly pleaded.[5] Nevertheless, I would not vote to affirm on that ground because it has not been suggested any such deficiency was argued to the trial judge, and to affirm on such ground under that circumstance would be to deprive the defendant of an opportunity to seek leave from the trial judge to file an amended answer, which "leave shall be freely given when justice so requires." GCR 1963, 118.
For the reason expressed in Fox v. Roethlisberger (1957), 350 Mich. 1, 3, I would not attempt, on the record before us, to decide the validity of the defense.
NOTES
[1] See Court Rule No 30 (1945), for the prior rule.
[2] See Court Rule No 17, § 7 (1945), for the prior rule.
[3] ".2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
(1) the opposing party has failed to state a claim upon which relief can be granted,
(2) the opposing party has failed to state a valid defense to the claim asserted against him,
(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law." GCR 1963, 117.2. (Emphasis added.)
[4] See 22 Am Jur 2d, Damages, § 291.
[5] However, see 2 Callaghan's Michigan Pleading & Practice, § 24.19, pp 425, 426.