Johnson v. Patmon, Young & Kirk, PC , 119 Mich. App. 362 ( 1982 )

119 Mich. App. 362 (1982) 326 N.W.2d 511

JOHNSON
v.
PATMON, YOUNG & KIRK, PC
PATMON, YOUNG & KIRK, PC
v.
CORNHUSKER CATTLE COMPANY, INC

Docket No. 52769.

Michigan Court of Appeals.

Decided September 9, 1982.

Murdock J. Hertzog, for Robert C. Johnson.

Patmon & Young, P.C. (by Ulysses W. Boykin, III), for defendant.

Berkey & Erickson (by Jonathan A. Braun), for Cornhusker Cattle Company.

Before: BRONSON, P.J., and R.M. MAHER and M. WARSHAWSKY,^[*] JJ.

PER CURIAM.

Several parties in two cases consolidated for trial converge on an appeal by Patmon, Young & Kirk, P.C. Appellant appeals from several orders of Detroit Common Pleas Court, which were affirmed by Wayne County Circuit Court.

Robert C. Johnson, plaintiff in the first action, brought suit in common pleas court on a promissory note for $2,800 issued by appellant. By way of answer, appellant set up the terms of an alleged agreement referred to in the note. Appellant alleged a right to credit against its debt to Johnson the value of services performed for Johnson's alleged principal, Edgemont Securities Corporation. Appellant alleged that the note naming Johnson as payee represented a debt for services performed by Edgemont through Johnson as its agent. Johnson denied that he was an agent for Edgemont.

Appellant then brought a separate action in common pleas court against Cornhusker Cattle Company, a Nebraska corporation, Edgemont, Anthony F. Tewes, and Johnson. In this second suit, appellant sought $4,425 for the value of legal services allegedly performed on defendants' behalf. Appellant stated, through its complaint and various affidavits, that Cornhusker was a seller of cattle, that Edgemont, a securties dealer, acted as general agent for Cornhusker, that Tewes was Edgemont's president, and that Johnson was an agent of both Edgemont and Cornhusker.

Both actions were consolidated on July 20, 1976, for trial, and appellant, as plaintiff in the second action, was ordered to file a bill of particulars. On August 20, 1976, summary judgment was ordered in common pleas court for Johnson in his suit against appellant. At the same time, appellant's complaint in the second suit was dismissed on the grounds that its bill of particulars was insufficient. On appeal to Wayne County Circuit Court, both lower court orders were affirmed. In addition, the circuit court, on Johnson's motion, dismissed appellant's pleadings seeking leave to appeal to this Court.

The circuit court was without authority to dismiss an unfiled appeal to the Court of Appeals. The common pleas court's order granting summary judgment to Johnson and dismissing appellant's complaint were affirmed by the circuit court on May 18, 1979. Appellant then had 20 days to file for leave to appeal to this Court. GCR 1963, 806.2(4), 806.3, 803.1. This was not done. By the time of the circuit court's order dated June 30, 1980, dismissing appellant's pleadings to appeal, time remained for appellant to file a delayed application for leave to appeal. GCR 1963, 806.2(5), 806.4(1) and (2). Having determined that the circuit court could not dismiss the appeal, we treat the remaining questions as if presented on leave to appeal.

Common Pleas Court Rule (CPCR) 1969, 21.1 provided at the time of this action:

"At any time after any cause arising upon contract or judgment or statute shall be at issue, upon motion of the plaintiff, after the usual notice to the defendant, supported by the affidavit of the plaintiff, or anyone on his behalf having knowledge of the facts, verifying the plaintiff's cause of action, and stating the amount claimed and his belief that there is no defense to the action, the Court shall enter a judgment in favor of the plaintiff, unless the defendant shall prior to, or at the time of hearing of said motion, make and file an affidavit of merits. Said affidavit of merits shall state whether or not the defense claimed therein applies to the whole of the plaintiff's claim, and if not, it shall state definitely what item or items of the plaintiff's claim and the amount thereof, is admitted."

Like GCR 1963, 117.2(3), CPCR 1969, 21.1 and 21.7 provide for summary judgment where there is no genuine issue of material fact.

"GCR 1963, 117.2(3) allows a trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test whether there is factual suport for a claim. Partrich v Muscat, 84 Mich. App. 724, 730; 270 NW2d 506 (1978). When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Id., 730. The court will give the benefit of any reasonable doubt to the opposing party and the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich. 363, 372; 207 NW2d 316 (1973). A material fact is an ultimate fact issue upon which a jury's verdict must be based. Partrich, supra, 730, fn 3." Szidik v Podsiadlo, 109 Mich. App. 446, 448-449; 311 NW2d 386 (1981).

Summary judgment was erroneously ordered in Johnson's favor. The affidavits of the parties frame issues of fact. While the authenticity of appellant's note has been admitted, CPCR 1969, 20, by its own terms the note is subject to an agreement between appellant and Johnson. Johnson's affidavit denies the existence of any agreement. Affidavits from appellant state that the note is subject to the value of services performed for Edgemont and Cornhusker. The agreement may give appellant a defense of setoff to Johnson's action. We need not pass on these questions, however. There exists a question of material fact about the existence and terms of the alleged agreement.

In appellant's separate action against Cornhusker, Edgemont, Tewes, and Johnson, appellant was ordered to submit a bill of particulars. CPCR 1969, 8.1, 8.4. Finding the bill of particulars submitted by appellant inadequate, the trial court dismissed appellant's action, which was affirmed in the circuit court.

A bill of particulars, which explains and amplifies the complaint, Knop v National Fire Ins Co of Hartford, Conn, 101 Mich. 359; 59 N.W. 653 (1894), may be demanded in an action for recovery for specific services where the complaint contains only general allegations. Anti-Kalsomine Co v Kent Circuit Judge, 119 Mich. 434; 78 N.W. 467 (1899); Hamilton v Ingham Circuit Judge, 84 Mich. 393; 47 N.W. 681 (1891); Dierickx v Vulcan Industries, 10 Mich. App. 67, 70-71; 158 NW2d 778 (1963). See also Janiszewski v Berhrmann, 345 Mich. 8; 75 NW2d 77 (1956); Mineau v Boisclair, 323 Mich. 64; 34 NW2d 556 (1948); O'Rourke v Deffenbaugh, 280 Mich. 407; 273 N.W. 749 (1937); Applebaum v Goldman, 155 Mich. 369; 121 N.W. 288 (1909); Cicotte v Wayne County, 44 Mich. 173; 6 N.W. 236 (1880).

The bill of particulars submitted by appellant incorporated the ad damnum clause of the complaint. It listed the services for which appellant claims a right of recovery, but failed to state when the services were rendered and the charge for each service.

The trial court correctly found this bill of particulars insufficient, but failed to recognize that it possessed discretion to allow amendment. Battle Creek v Haak, 139 Mich. 514; 102 N.W. 1005 (1905); Mead v Glidden, 79 Mich. 209; 44 N.W. 596 (1890); Carver v Ford Motor Co, 108 Mich. App. 359; 310 NW2d 47 (1981). Appellant should be allowed to amend its bill of particulars.

Lastly, appellant complains of the trial judge's refusal to impose discovery sanctions. Appellant sought to depose for a second time Tewes, Johnson, and an agent of Cornhusker. After the parties failed to appear for deposition, appellant moved the day before trial to dismiss Cornhusker's answer and for a default judgment, to strike the pleadings of Johnson and Tewes and for dismissal of Johnson's complaint.

We do not find an abuse of discretion. Coming one day before trial, the motions were untimely, CPCR 1969, 17.4. Moreover, the decision to impose discovery sanctions rests in the trial court's discretion. MacArthur Patton Christian Ass'n v Farm Bureau Ins Group, 403 Mich. 474; 270 NW2d 101 (1978); Device Trading, Ltd v Viking Corp, 105 Mich. App. 517; 307 NW2d 362 (1981). Appellant sought to depose Johnson and Tewes a second time. No court order was obtained to compel a nonresident officer of the foreign corporation Cornhusker to appear. GCR 1963, 305.2. CPCR 1969, 25 required discovery and pretrial completed within 60 days from the date of issue, which, in the present case, was some eight months prior to appellant's attempt to take the depositions of Johnson, Tewes, and an agent of Cornhusker.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.