Michael Forsberg v. Shane Wallin ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL ALAN FORSBERG, UNPUBLISHED
November 16, 2023
Plaintiff-Appellee,
V No. 363023
Delta Circuit Court
SHANE DAVID WALLIN, LC No. 22-025011-CZ
Defendant-Appellant.
Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.
PER CURIAM.
In this contract dispute over an allegedly abandoned home construction and renovation
project, defendant appeals as of right the trial court’s order denying him an adjournment and
granting plaintiff’s motion for summary disposition. We affirm.
I. FACTS
According to plaintiff’s complaint, the parties entered into a contract under which the
parties agreed that defendant, who held himself out to be a licensed residential builder, would
construct an attached garage, remodel the kitchen, and construct two walk-in closets, and that
plaintiff would pay the estimated amount of at least $32,000, subject to changes in price for any
changes to the scope of the work. Plaintiff ultimately paid defendant a total of more than $45,000.
Defendant began but did not finish the projects, and eventually “walked off” and “abandoned” the
job without completing it or returning any money to plaintiff, notwithstanding plaintiff’s attempts
to contact defendant. Plaintiff later learned that defendant was not, and had never been, licensed
as a residential builder. Plaintiff ultimately had to resort to seeking out and engaging the services
of another builder to complete the projects and repair parts of plaintiff’s property that defendant
allegedly damaged.
A. THE COMPLAINT, ANSWER, AND MOTION FOR SUMMARY DISPOSITION
Plaintiff then sued defendant, and asserted four counts: breach of contract, fraud,
conversion, and violation of the Michigan Consumer Protection Act, MCL 445.901, et seq.
Plaintiff attached five exhibits to the complaint: copies of bank statements with cash withdrawals
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corresponding to the amount plaintiff alleges he paid defendant; copies of the contract between
plaintiff and defendant; a print-out from the Department of Licensing and Regulatory Affairs’
“Verify a License” web site that indicated that defendant held an expired “Plumbing Apprentice”
license and no other building-related license; a proposal from the contractor plaintiff engaged to
complete the work; and a copy of an invoice defendant issued to plaintiff.
Defendant, acting in propria persona, filed an answer, using a form approved by the State
Court Administrative Office (SCAO). Defendant’s answer consisted of his placing check marks
in boxes appearing on that form that indicated his disagreement for paragraphs 1 through 8, while
in each instance leaving blank the line provided for the “substance of the matters” supporting the
denial. Defendant did not make any marks in the boxes corresponding to paragraphs 9 through
15; instead, there appears a large “X” drawn across the face of the page over those paragraphs with
no other writing. Defendant’s answer included no statement of affirmative defenses, and no
additional pages with paragraphs corresponding to paragraphs 16 through 46 of the complaint.
The trial court held a pretrial status conference at which a lawyer appeared on defendant’s
behalf and he was noted to be defendant’s attorney on the pretrial order entered after the
conference; that lawyer also currently represents defendant in this appeal. There was, however,
apparently some confusion about the extent or nature of that lawyer’s appearance and
representation of defendant below—the lawyer, despite his appearance at the pretrial conference,
did not contemporaneously, or otherwise “promptly,” file a written appearance as required by
MCR 2.117 (or a motion or stipulation to withdraw).1
Plaintiff subsequently filed a motion for summary disposition under MCR 2.116(C)(9) and
(10), arguing that he was entitled to summary disposition because defendant failed to assert any
defenses, failed to answer the majority of the allegations in the complaint, and failed to properly
and sufficiently answer with respect to those allegations defendant did answer. Defendant did not
file a response to this motion before the hearing; indeed, aside from the answer, defendant filed
nothing in the trial court until after the hearing and plaintiff’s presentment of a proposed order.
This is despite the fact that plaintiff noticed the hearing on his motion for summary disposition for
a date nearly two months after filing the motion.
B. PLAINTIFF’S ORAL MOTION FOR ADJOURNMENT
The trial court heard the motion on the date plaintiff noticed, August 12, 2022. Defendant
appeared at the hearing in propria persona. After plaintiff’s counsel presented his arguments, the
trial court asked for defendant’s response. Defendant’s only substantive response to the motion
was that he had gone to the trial-court clerk’s office near the close of business on the last day to
timely answer the complaint, and had been given the SCAO form and was “instructed” on “how
to fill out the form,” and that he did so “to the best . . . of [his] ability.” Immediately thereafter,
defendant orally moved the court for an adjournment on the ground that he “had trouble acquiring
an attorney to represent [him] and help [him] through this . . . .” The trial court noted in response
that the lawyer who had represented defendant during the pretrial conference did not file a written
1
The lawyer ultimately filed an appearance in the trial court ten days after the hearing on the
motions that are at issue in this appeal.
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appearance, which led the court to ask if the lawyer was “not [defendant’s] attorney nor will he
be?” Defendant replied that he contacted the lawyer on the day of the hearing, and that the lawyer
said he would represent defendant, but also instructed defendant to ask for an adjournment.
The trial court emphasized that two months had elapsed without response to the motion or
request for adjournment from either defendant or any attorney on his behalf, and asked whether it
was defendant’s position that defendant’s last-minute contact with the lawyer, and the lawyer’s
instruction for defendant to ask for an adjournment, was sufficient basis for delaying the case, to
which defendant replied that he began looking for another attorney on the day of the hearing upon
learning that the lawyer who had previously appeared for him would not be present. The trial court
stated that plaintiff had already waited two months to have his motion heard, and that any
adjournment would delay decision on the motion by several more months because of the trial
court’s heavy criminal docket, and that, whether one measured from the March filing of the
complaint or the June filing of plaintiff’s motion, defendant had had several months to “get [his]
ducks in a row and only today at the very last minute [did he] decide that [he was] going to try to
find a lawyer,” and that defendant’s “excuses are not holding much water so far.” In response,
plaintiff, in addition to agreeing with the trial court about the timing issues, noted that defendant’s
lawyer had appeared earlier that day via Zoom for a bond motion being heard immediately before
plaintiff’s motion, and could easily have appeared remotely for plaintiff’s motion without any
objection from plaintiff.
The trial court explained that it would “generally grant” an adjournment “with some liberal
allowance,” but that “the good cause standard cannot be erased from the equation,” and that
defendant’s lack of diligence in attempting to secure counsel indicated a lack of good cause. The
court accordingly denied the motion for adjournment.
C. SUMMARY-DISPOSITION MOTION AND SUBSEQUENT PROCEEDINGS
With respect to plaintiff’s motion for summary disposition under MCR 2.116(C)(9), the
trial court ruled that summary disposition was appropriate because defendant failed to state a
valid—or any—defense to plaintiff’s complaint, because the answer was entirely deficient. With
respect to Subrule (C)(10), the court noted that plaintiff’s motion was supported by a verified
complaint with attached exhibits that supported the claims, while defendant presented no evidence,
or any response, whatsoever. The trial court ruled that summary disposition was accordingly
appropriate under both MCR 2.116(C)(9) and (C)(10), and invited plaintiff to prepare a proposed
order.
Plaintiff filed a proposed order with a notice of presentment, and served the documents on
defendant. Ten days after the hearing, and seven days after being served with the proposed order,
defendant’s lawyer filed a written appearance along with an objection to the proposed order. The
latter’s only substantive objection concerned the amount of the damages awarded. The other two
objections related to the timing of service of the proposed order versus the date appearing on it,
and to a scrivener’s error on the notice of presentment, which the trial court properly described as
an “obvious clerical error” that did not appear on the actual proposed order. The trial court also
overruled defendant’s objection regarding damages. The trial court entered plaintiff’s proposed
order granting him summary disposition. This appeal followed.
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II. ANALYSIS
A. DEFENDANT’S MOTION TO ADJOURN
This Court reviews a trial court’s decision about whether to grant an adjournment for an
abuse of discretion. Tisbury v Armstrong, 194 Mich App 19, 20; 486 NW2d 51 (1991). A trial
court abuses its discretion when its ruling “falls outside the range of reasonable and principled
outcomes.” Loutts v Loutts, 298 Mich App 21, 26; 826 NW2d 152 (2012).
When reviewing a trial court’s decision to deny an adjournment, this Court weighs at least
three factors to determine whether the trial court abused its discretion: the number of previous
adjournments, the diligence on the part of the moving party, and any possible injustice to the
moving party arising from a denial of an adjournment. Rosselott v Muskegon Co, 123 Mich App
361, 371; 333 NW2d 282 (1983). In Rosselott, this Court held that the trial court had properly
denied a motion for adjournment primarily on the basis of the movants’ lack of diligence. Id. at
371-372. This Court also emphasized, however, that there was no showing that an adjournment
would have benefited the movants. Id. at 372-373. By contrast, in each of the other two published
cases defendant cites, this Court held that the trial court had abused its discretion because there
was no lack of diligence on the movants’ part, and because denying the adjournments would be
more harmful to the movants than granting them would be to the nonmovants. See Tisbury, 194
Mich App at 20-21; Hackett v Connor, 58 Mich App 202, 206-207; 227 NW2d 292 (1975).
Here, with respect to the first factor, it is undisputed that there were no previous
adjournments. But the lack of adjournments must be considered in light of the fact that defendant
took essentially no action at all, aside from attending the pretrial conference, between filing his
answer and appearing at the motion hearing. The lack of prior adjournments thus went hand in
hand with defendant’s general lack of vigorous advocacy, and thus does not undercut the trial
court’s decision.
The lack-of-diligence factor, however, strongly supports the court’s decision. At virtually
every stage of the case—indeed from the very beginning—defendant failed to exhibit any diligence
at all, as shown by his own statements on the record. Defendant admittedly waited until the very
end of the very last day to timely answer the complaint to go to the trial-court clerk’s office to take
any step to answer the complaint. He then did not fully answer the complaint, did not seek more
time to answer, and did not move to amend his answer. Although he managed to secure a lawyer
for the pretrial conference, he apparently did not act with sufficient diligence to give the lawyer
the impression that defendant had retained him for the entire case. That lawyer, for his part,
appears not to have exercised much diligence either—there is no indication from the record that
he informed defendant, the trial court, or plaintiff that his representation was temporary or
otherwise limited in any way. See MCR 2.117(B)(2)(c) and (d); MRPC 1.2(b). Defendant neither
filed a response to the motion, nor indicated that he had reason to expect an attorney to do so on
his behalf. Defendant waited until the day of the hearing to see whether the lawyer who
represented him at the pretrial conference would appear, and only when he was told that the lawyer
would not appear, did defendant make any effort to find other counsel. Neither defendant nor his
counsel filed any response to the motion for summary disposition, nor even a motion for
reconsideration. Ultimately, defendant’s attorney filed an almost perfunctory objection to
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plaintiff’s proposed order (again at the last possible minute) that offered no substantive arguments
about plaintiff’s motion or the trial court’s ruling.
With respect to the prejudice factor, the trial court noted that it would be particularly unfair
to force plaintiff to wait several more months to obtain relief in a case that defendant almost
completely failed to defend. We agree that—in light of defendant’s utter failure to defend this
case, or even allude to any substantive defenses he might have, along with his complete lack of
diligence in trying to secure counsel in the first place—defendant was not unfairly prejudiced by
the denial of an adjournment. Accordingly, we hold that the trial court did not abuse its discretion
by denying defendant an adjournment.
B. PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION
Ordinarily, a trial court’s decision on a motion for summary disposition is reviewed de
novo. See Corley v Detroit Bd of Ed, 470 Mich 274, 277-278; 681 NW2d 342 (2004). In this
case, however, defendant filed no response to plaintiff’s motion for summary disposition, and at
the hearing offered no substantive arguments. An issue is preserved by raising it before the trial
court. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Here, none
of the arguments defendant makes in this Court were ever made before the trial court—not even
in a motion for reconsideration. Defendant’s failure to raise any substantive arguments regarding
plaintiff’s summary-disposition motion left unpreserved any attendant appellate objections. See
Napier v Jacobs, 429 Mich 222, 227-228; 414 NW2d 862 (1987). We decline to consider
defendant’s forfeited issue regarding whether the record provided the trial court with an adequate
basis for granting summary disposition to plaintiff. See Tolas Oil & Gas Exploration Co v Bach
Servs & Mfg, LLC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359090) (“the
plain-error rule” for unpreserved issues in criminal cases “does not apply to civil cases and it is
error to do so”); slip op at 5.
But even if we were to review this issue, we would conclude that the trial court committed
no error in this regard. Defendant’s wholesale failure to answer the vast majority of the complaint,
together with his deficient attempt to answer those few paragraphs for which he checked the
“denial” box, constituted an admission to all of plaintiff’s allegations except those concerning the
amount of damages, see MCR 2.111(C), (D), and (E)(1), and thus summary disposition under
MCR 2.116(C)(9) for failure to state a valid defense was appropriate. And because defendant
provided no evidence—nor even a response—in reply to plaintiff’s motion and accompanying
documentary evidence, defendant failed to raise any genuine question of material fact about any
part of plaintiff’s complaint, and thus summary disposition under MCR 2.116(C)(10) was also
appropriate.
Affirmed. Plaintiff is entitled to costs as the prevailing party. See MCR 7.219(A).
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
/s/ Kristina Robinson Garrett
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