In the recently released published opinion of Barnard Manufacturing v Gates Performance Engineering, (docket 286003 released August 18th), the Michigan Court of Appeals emphasized and clarified the non-moving party’s burden when responding to such motions.
In that case, the plaintiff sought summary disposition on the defendant’s counterclaims and, in what appears to be an afterthought, included a single paragraph without its own heading requesting summary disposition on its primary claim. The trial court granted the entire motion.
The Court of appeals held:
· While the trial court may only consider admissible evidence, the submission in connection with the motion does not have to be in admissible form - - ie, the court could consider evidence as long as there is a “plausible basis” for its admission.
· A trial court has no obligation to conduct an independent review of the record to determine whether there are genuine issues of fact. Facts must be identified in brief or oral argument before a court is obligated to consider such facts.
· It is proper for the trial court to consider a separate claim for summary disposition that is not set off in a separate heading as long as the language puts the other party on notice of the need to respond to the argument.