Detroit Bank & Trust Co. v. Nugent , 27 Mich. App. 129 ( 1970 )

Per Curiam.

This is an appeal from an order entered in the Circuit Court for the County of Wayne on January 31, 1969, granting appellee’s motion for summary judgment.

Appellants conducted a miniature golf business known as “Pun Golf” on property leased from a former owner. The lease expired in 1960 and an extension expired in September, 1962. Appellants occupied the premises as hold-over tenants until March 9, 1967. On September 30, 1966, appellee purchased the property and on March 9,1967, served appellants a thirty-day notice to terminate tenancy and vacate the premises by April 13, 1967. Appellants did not vacate until September 15, 1967 after a judgment was obtained by appellee ordering return of possession.

The present case was brought to collect rents and damages during the period of wrongful possession. Rent was unpaid from April 1 to September 15,1967. Appellants cross-claimed for damages, alleging that appellee caused loss or destruction of their property situated on the premises.

Appellee filed a motion for summary judgment which was granted after oral argument on January 31, 1969. Appellants appealed to this Court as of right. Appellee thereafter filed a motion to dismiss the appeal and/or affirm the judgment of the lower court for failure to serve a copy of the transcript. This Court denied that motion on October 24, 1969, granting appellants an extension of time.

Appellants have handled this entire case in propria persona. Although their briefs are in improper form and border on the contemptuous, the Court has given them and the oral argument full consideration, and has carefully reviewed the transcript. Appellants’ major contention is that they were denied a hearing in the trial court in that they were not allowed to tell their side of the story, and that there were issues of fact. They sought to introduce testimony about a parking lot not having been provided, but as this is not raised in the pleadings, and summary judgment consideration is based on and limited to the pleadings, it could not be raised for the first time at the hearing.

Therefore, under GCR 1963, 117.2(3), there was no question of fact. Appellants admitted owing rent for April through July in the pleadings. They were still occupying the property through September 15, and owed rent for that period. The rent due for that period was $621.23, based on figures supplied by Mrs. Nugent. The trial judge reduced that amount to $310.75 and granted summary judgment.

Nor can we find merit in the claim that the trial judge denied appellants the right to offer a defense. The only testimony allowed on either side was as to the amount of rent and damages. The remainder of the evidence was contained in the pleadings. Appellants at the hearing claimed that sending certain checks was a mistake, hut hy their pleadings admitted owing the amount. In actuality, neither side was allowed any extraneous comment.

It is unfortunate that appellants had no legal representation. They were afforded additional time to engage counsel by the trial judge hut chose not to do so. They are necessarily hound hy their own pleadings and admissions. It appears obvious that appellants misunderstood various statements of the trial judge, designed to point out that the law of contested cases had no application to a motion for summary judgment. This they erroneously interpreted as an indication of prejudice.

The order of the trial court is affirmed, with costs to appellee.