Alfreda Moses v. Richard Nethers ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
ALFREDA MOSES, formerly known as UNPUBLISHED
ALFREDA MANDOKA, May 2, 2017
Plaintiff-Appellant,
v No. 329829
Isabella Circuit Court
RICHARD NETHERS, LC No. 2014-011652-CZ
Defendant-Appellee,
and
SCOTT JESSEN,
Defendant.
Before: KELLY, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Plaintiff-Appellant, Alfreda Moses, formerly known as Alfreda Mandoka, appeals by
delayed leave granted, Moses v Nethers, unpublished order of the Court of Appeals, entered
February 3, 2016 (Docket No. 329829), the trial court’s June 10, 2015 order granting summary
disposition in favor of Defendant-Appellee, Richard Nethers, pursuant to MCR 2.116(C)(7).1 On
appeal, plaintiff-appellant challenges the trial court’s August 15, 2014 order, which set aside a
default judgment that was entered approximately one month earlier, and the trial court’s June 10,
2015 order, which granted summary disposition in defendant-appellee’s favor as discussed
above. We affirm.
First, with respect to plaintiff-appellant’s arguments regarding the order setting aside the
default judgment, this Court reviews such a decision for an abuse of discretion. Shawl v Spence
1
The June 10, 2015 order granting summary disposition did not adjudicate any claims alleged by
plaintiff-appellant against Defendant, Scott Jessen, who was plaintiff-appellant’s attorney when
she sued defendant-appellee’s brother, Paul Nethers, and their partnership, Christian Builders.
From the record before us, it is unclear whether that litigation remains pending, but it is
irrelevant for purposes of the arguments raised by plaintiff-appellant on appeal.
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Bros Inc, 280 Mich. App. 213, 218; 760 NW2d 674 (2008). “A motion to set aside a default or
default judgment, except when grounded in lack of jurisdiction over the appellee, shall be
granted only if good cause is shown and an affidavit of facts showing a meritorious defense is
filed.” MCR 2.603(D)(1). First, with respect to the good-cause requirement, a party need only
show that manifest injustice would result if the default or default judgment was not set aside.
Second, with respect to the affidavit requirement, a party need only present an affidavit of facts
that demonstrates that a meritorious defense existed. In our view, defendant-appellee satisfied
both of those requirements before the trial court.
Specifically, defendant-appellee satisfied both of those requirements by attacking the
adequacy of plaintiff-appellant’s complaint, which included, in its entirety, the following six
paragraphs:
1. Plaintiff Alfreda Moses, f/k/a Alfreda Mandoka, is a resident of Isabella
County.
2. Defendant Richard Nethers is a resident of Isabella County[.]
3. This Court has jurisdiction of this action because the amount in
controversy exceeds $25,000, exclusive of interest and costs.
4. Christian Builders is indebted to Plaintiff for $53,591.43 plus interest for
breach of Christian Builders’ contractual obligations to Plaintiff.
5. Defendant Richard Nethers was one of the partners of Christian Builders,
a partnership, when it entered into, and breached, those contractual obligations.
6. As a matter of law, e.g. MCL 449.15, Defendant is liable to Plaintiff for
$53,591.43 plus interest.2
2
After the July 9, 2014 default judgment was set aside, plaintiff-appellant filed an amended
complaint. While the first three paragraphs quoted above were unchanged, the last three,
paragraphs 4, 5, and 6, were changed as follows:
4. Pursuant to attached Exhibits “A” and “B”, which are incorporated herein
by this reference, Defendant was a partner of a partnership called Christian
Builders from on or about February 22, 2011 until at least on or about July 26,
2013[.]
5. During the period that Defendant was a partner in that partnership, that
partnership was adjudicated to have a debt of $53,591.43 plus interest to Plaintiff,
based on a contract entered into and breached by that partnership during that
period. A copy of that Judgment is attached as Exhibit “C” and is incorporated
herein by this reference.
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Stated simply, these six one-sentence paragraphs are insufficient to comply with, at a minimum,
MCR 2.111(B)(1), which requires “[a] statement of facts, without repetition, on which the
pleader relies in stating the cause of action, with specific allegations necessary reasonably to
inform the adverse party of the nature of the claims the adverse party is called upon to defend[.]”
(Emphasis added.) Therefore, because defendant-appellant’s counsel was able to, after merely
reviewing the complaint and the applicable court rules, determine that a meritorious defense
existed based on the inadequacy of the complaint, we conclude that both requirements set forth
in MCR 2.603(D)(1) were satisfied in this case.3
Second, with respect to plaintiff-appellant’s arguments regarding the order granting
summary disposition, this Court reviews such a decision de novo. Teel v Meredith, 284 Mich
App 660, 662; 774 NW2d 527 (2009).
A trial court’s ruling on a motion for summary disposition brought under
MCR 2.116(C)(7) is reviewed de novo to determine if the moving party is entitled
to judgment as a matter of law. If a party supports a motion under MCR
2.116(C)(7) by submitting affidavits, depositions, admissions, or other
documentary evidence, those materials must be considered unless their substance
and content is inadmissible as evidence. [T]he contents of the complaint are
accepted as true unless contradicted by documentation submitted by the movant.
[Doe v Racette, 313 Mich. App. 105, 108; 880 NW2d 332 (2015) (citations and
internal quotation marks omitted; alterations in original).]
In our view, the trial court correctly concluded that defendant-appellee, not plaintiff-appellant,
was entitled to judgment in his favor as a matter of law under the facts and circumstances of this
case.
Specifically, plaintiff-appellant’s failure to name Richard Nethers in her previous lawsuit
against his brother, Paul Nethers, and their partnership, Christian Builders, is dispositive of the
claims alleged in this case. See, e.g., 59A Am Jr 2d, Partnership, § 485, p 549.4 While this
6. As a matter of law, e.g. MCL 449.15, Defendant is liable to Plaintiff for
that debt of that partnership to Plaintiff.
Exhibit “A” was the Business Registration Certificate for Christian Builders. Exhibit “B” was
the Notice of Dissolution of Co-Partnership or Business under Assumed Name for Christian
Builders. Exhibit “C” was the December 27, 2013 default judgment entered in favor of plaintiff-
appellant and against Christian Builders and Paul Nethers. However, because this amended
complaint was filed after the July 9, 2014 default judgment was set aside, it is largely irrelevant
with respect to plaintiff-appellant’s argument that the trial court erred in setting aside the July 9,
2014 default judgment.
3
Nevertheless, we would note that, in most situations, an attorney’s affidavit, without an
affidavit by a party or another fact witness, is ordinarily insufficient for purposes of MCR
2.603(D)(1).
4
59A Am Jr 2d, Partnership, § 485, p 549 provides, in pertinent part, as follows:
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authority is not binding, it is our view that similar principles have been adopted by the Michigan
Supreme Court, see, e.g., Candee & Scribner v Clark & Brown, 2 Mich. 255, 256-257 (1851),
and the United States Supreme Court, see, e.g., Mason v Eldred, 73 U.S. 231, 238-239; 18 L. Ed.
783 (1867), and, although these decisions may be considered dated by some, plaintiff-appellant,
i.e., the appealing party in this case, has made no persuasive attempt to explain why they should
not be followed. We decline to do so for her.5
With respect to the remainder of plaintiff-appellant’s arguments on appeal, we find each
meritless. Plaintiff-appellant’s arguments with respect to affirmative defenses and waiver fail
because defendant-appellee’s answer and affirmative defenses to plaintiff-appellant’s vague
complaint and amended complaint adequately asserted his position that the prior judgment
between plaintiff-appellant, Paul Nethers, and Christian Brothers precluded this lawsuit.
Additionally, plaintiff-appellant’s arguments with respect to permissive joinder, election of
remedies, and judicial estoppel reflect her (or, perhaps more accurately, her counsel’s)
misunderstanding of joint versus joint and several liability.6 That is, because liability in the
earlier judgment was joint, not joint and several, no additional recovery is permitted in that
regard.7 Therefore, summary disposition pursuant to MCR 2.116(C)(7) in defendant-appellee’s
favor was appropriate.
Partners need not be sued jointly for a partnership debt despite the general rule of
res judicata. However, an omission to join partners individually in prior
proceedings against a partnership, reducing a partnership debt to judgment, does
not prejudice the right to subsequent proceedings at law against the partners
individually on the same debt. A judgment entered on a partnership obligation
that is joint, not joint and several, against any number of partners, but less than
all, is a bar to any action on the same claim against the partners not parties to the
judgment.
Consequently, while it is true that, generally, all partners are jointly liable for partnership debts
and obligations, see MCL 449.15, a plaintiff’s decision to name some, but not all, of a
partnership’s partners acts as a bar on the same claim against the unnamed partners at a later date
once the original action is reduced to judgment.
5
See Peterson Novelties, Inc v Berkley, 259 Mich. App. 1, 14; 672 NW2d 351 (2003).
6
We would note, however, that it is somewhat ironic that, in a second suit filed by plaintiff-
appellant regarding the breach of a single contract, plaintiff-appellant is now arguing that
“complete relief” was obtained pursuant to MCR 2.205(A) in the first suit. In any event, joinder
need not be addressed in light of our conclusion above.
7
See also 59A Am Jr 2d, Partnership, § 484, p 548, which provides, in pertinent part, as follows:
[A] plaintiff need not sue the partners themselves in order to bind the property of
the partnership and the joint property of the partners, but a judgment against the
partnership does not bind the separate property of an individual partner unless the
plaintiff has named the individual partner and the court has acquired jurisdiction
over that individual.
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Affirmed.
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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