Dionne v. Pierson Contracting Co.

2 Mich. App. 134 (1965) 138 N.W.2d 555

DIONNE
v.
PIERSON CONTRACTING COMPANY.
GARAVAGLIA
v.
SAME.

Docket Nos. 953, 954.

Michigan Court of Appeals.

Decided December 20, 1965.

Darin, Darin & McMillan (Malcolm McMillan, of counsel), for plaintiff Dionne.

Brucker & Brucker (Wilber M. Brucker, Jr., of counsel), for plaintiffs Michael Garavaglia and others.

O'Keefe, Braun, Kendrick & Finkbeiner (Larry C. Carl, of counsel), for defendant.

FITZGERALD, J.

Plaintiffs are the owners of shares of class D and class E preferred stock issued by defendant corporation. Defendant's articles of incorporation and stock certificates provide for final redemption of class D stock by June 1, 1962, and of class E stock by June 1, 1963. The certificates state in part that "Classes of preferred stock shall be redeemed only out of surplus to the extent that the same are legally capable of being redeemed in whole or in part, at those final maturity dates." (Emphasis supplied.)

Neither class of stock had been redeemed as of July 20, 1964, and plaintiffs brought suits for the stated redemption prices, dividends which they alleged were due and unpaid, and interest subsequently accrued at the legal rate, relying on balance sheets and financial statements issued by defendant containing figures which plaintiffs alleged indicated sufficient retained earnings and net income for these purposes.

Defendant denied that there was an adequate surplus to require or permit redemption or that any dividends were due. They submitted a financial statement stating that retained earnings as of the fiscal year ending April 30, 1962, were $104,892.36 as opposed to the $392,751.11 figure which appeared in an earlier statement relied on by plaintiffs. The total amount prayed for by plaintiffs was $57,960 plus accrued interest and costs.

Plaintiffs' motions for summary judgments based on the allegation that there were no genuine issues as to any material fact were granted by the trial court following a hearing and the submission of briefs. Summary judgments entered for plaintiffs totaling $52,440, representing the redemption of the stock plus 4% dividends. The defendant appeals these judgments, the cases being consolidated for this purpose.

This appeal revolves solely around the propriety of the summary judgments granted plaintiffs in these two cases. It asks the question: Did the pleadings and affidavits set forth any material facts entitling defendant-appellant to a trial on the merits?

These cases, with judgments totaling $52,440 for plaintiffs, point up the incisive quality of a motion for summary judgment and the burden it places upon the challenged party.

Indeed, we could say that this case is decided merely by citing Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney) (1965), 375 Mich. 628, were it not that a brief examination of the posture of the pleadings is in order.

In Durant, Mr. Justice ADAMS set forth what we consider to be the essence of summary judgment proceedings, in stating (p 640):

"Once a party is challenged as to the existence of the facts upon which he purports to build his case, the sum and substance of the summary judgment proceeding is that general allegations and notice pleading are not enough. Matters upon information and belief and alleged common knowledge are not enough. That party must come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case. If he fails, the motion for summary judgment is properly granted. In the language of GCR 1963, 117.3, `Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact'." (Emphasis supplied.)

A brief review of the case at bar will illustrate why it falls four-square within the above-quoted admonition.

Defendant's affidavit opposing plaintiffs' motion for summary judgment stated, "that deponent * * * is satisfied that the answer of the defendant raises material questions of fact to be decided by the court only after hearing testimony from numberous (sic) witnesses, including accountants and other experts familiar with corporate matters of this nature"; and further, "upon information and belief states that there was not a surplus on June 1, 1962, or on June 1, 1963, which legally permitted the redemption of preferred stock issued by the defendant corporation."

Such responses cannot be said to fall within GCR 1963, 116.4, governing the content of affidavits and its requirement that "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion." (Emphasis supplied.)

Defendant's affidavit is deficient in the very things that the court rule and Durant require. In that case, where the situation was reversed, with defendant filing summary judgment motion, Mr. Justice SOURIS, concurring in affirmance, stated (p 657):

"Instead, however, plaintiff chose to file affidavits * * * which were not responsive to the defendant's affidavits, which were in part based upon information and belief instead of personal knowledge of the affiant, and which were cast in conclusionary language instead of stating with particularity facts which would be admissible as evidence."

Defendant urges that interrogatories answered by the president of the corporation suggest that defendant's creditors would be prejudiced if the shares had been redeemed. Here again, a conclusion is asserted, as is done throughout defendant's pleadings and brief, e.g. "In addition, the actual value of the property and equipment might have been considerably less than that shown on the corporate books."

We agree with the trial court opinion where it states:

"On consideration of the arguments and briefs, this court is of the opinion that the motions for summary judgments must be granted because all defendant says is that plaintiffs should not rely on its financial statements."

Conjecture cannot substitute for fact nor conclusion for admissible evidence. A review of defendant's contentions indicates that the summary judgments in the consolidated cases should be affirmed.

Affirmed. Costs to appellees.

McGREGOR, P.J., and T.G. KAVANAGH, J., concurred.