Pauley v. Hall

• Decision Date: 08 June 1983
• Docket Number: 62634,Docket Nos. 56299,STATE-WIDE
• Parties: Doral V. PAULEY, d/b/a Pauley Oil Company, Plaintiff, Counter-Defendant-Appellant, v. Lee N. HALL and Sara J. Hall, Defendants, Counter-Plaintiffs-Appellees, and Truman FASSETT and Mary Fassett, Defendants, Counter-Plaintiffs, v.REAL ESTATE OF MIDLAND, INC., Third-Party Defendant. 124 Mich.App. 255, 335 N.W.2d 197
• Court: Court of Appeal of Michigan — District of US

Page 197

335 N.W.2d 197

Doral V. PAULEY, d/b/a Pauley Oil Company, Plaintiff, Counter-Defendant-Appellant, v. Lee N. HALL and Sara J. Hall, Defendants,

Counter-Plaintiffs-Appellees, and Truman FASSETT and Mary Fassett, Defendants, Counter-Plaintiffs, v. STATE-WIDE REAL ESTATE OF MIDLAND, INC., Third-Party

Defendant.

Docket Nos. 56299, 62634.

124 Mich.App. 255, 335 N.W.2d 197

Court of Appeals of Michigan.

Submitted Feb. 8, 1982.

Decided March 21, 1983.

Rehearing Denied May 23, 1983.

Released For Publication June 8, 1983.

[124 MICHAPP 258] Monaghan, Campbell, LoPrete, McDonald & Norris by James J. Williams, Bloomfield Hills, for plaintiff and counter-defendant-appellant.

Schneider, Handlon & Gerisch by Sidney B. Schneider, Midland, for defendants and counter-plaintiffs-appellees.

[124 MICHAPP 259] Before DANHOF, C.J., and CAVANAGH and WALSH, JJ.

CAVANAGH, Judge.

In December 1977, plaintiff and counter-defendant Pauley sued defendants and counter-plaintiffs Hall and Fassett. Two months later, the Halls won a summary judgment against Pauley who, after the summary judgment was rendered final by a nunc pro tunc order, appeals by right (Docket No. 62634). The Halls then sued Pauley for malicious prosecution. The jury returned a verdict of $7,000 in their favor, and the trial judge trebled this amount. Pauley also appeals from this judgment by right (Docket No. 56299).

Briefly, the facts are as follows. In February 1976, Pauley and the Fassetts negotiated an oil and gas lease for the Fassetts' 80-acre property in Gladwin, Michigan. Subsequently, the Halls bought 40 acres of this property from the Fassetts. A title search failed to reveal Pauley's oil and gas lease, and the Halls' deed was recorded on June 16, 1976. Pauley's leasehold interest was not recorded until May 20, 1977.

Pauley attempted to enforce his oil and gas lease against the Halls after learning they had bought the property from the Fassetts. After his efforts failed, he began suit against the Halls and the Fassetts, in the alternative, on December 5, 1977. The Halls moved for summary judgment claiming that they had not actually known about the oil and gas lease before they purchased their property. The trial court granted their motion and entered a summary judgment in their favor. The Halls then began an action against Pauley for malicious prosecution, which resulted in a judgment in their favor. Pauley appeals from both the [124 MICHAPP 260] judgments in favor of the Halls, and the two cases were consolidated by this Court for decision.

In the malicious prosecution case, Pauley raises two issues on appeal. First, he argues that the Halls failed to prove a prima facie case for malicious prosecution, and therefore the trial court should have granted his motion for a judgment notwithstanding the verdict. Second, he argues that the trial judge improperly trebled the jury's verdict.

In Taft v. J.L. Hudson Co., 37 Mich.App. 692, 698, 195 N.W.2d 296 (1972), lv. den. 387 Mich. 772 (1972), this Court described the standard of review for a motion for a judgment notwithstanding the verdict as follows:

"In Michigan a court reviewing a motion for a judgment notwithstanding the verdict must view all the evidence and testimony adduced at the trial in the light most favorable to the person against whom the motion was made. If, when so viewed, there is any evidence which was competent and sufficient to support the jury's determination, said determination should not be disturbed." (Citations omitted.)

Thus, we must examine whether there is any competent evidence to support the jury's determination that Pauley had engaged in malicious prosecution of the Halls.

The elements which establish malicious prosecution include: (1) the present defendant instituted a prior legal action against the present plaintiff, (2) the prior action was terminated in favor of the present plaintiff, (3) the present defendant lacked probable cause to bring the prior action, and (4) the present defendant had acted maliciously in bringing the prior action. Wilson v. Yono, 65 Mich.App.[124 MICHAPP 261] 441, 443, 237 N.W.2d 494 (1975). ¹ Pauley concedes that the first element was established, i.e., that he sued the Halls, but claims that the suit was not terminated in their favor nor did they show the requisite elements of lack of probable cause and malice.

Pauley alleges that the summary judgment in the original action, entered April 6, 1978, was not a final judgment because it did not comply with GCR 1963, 518.2. That rule requires the trial court, whenever granting a summary judgment for less than all the parties in a multi-party suit, to expressly state in the judgment itself that the judgment is final and that "there is no just reason for delay". This Court has ruled that there must be strict compliance with GCR 1963, 518.2. Covello v. Brammer, 47 Mich.App. 395, 400, 209 N.W.2d 615 (1973). It is clear that the 1978 order of summary judgment did not comply with this court rule; however, that order of summary judgment was amended by an order nunc pro tunc which was entered July 21, 1981, which did comply with GCR 1963, 518.2.

In the consolidated appeal from the order of summary judgment, Pauley argues that: (1) the trial court erred in granting summary judgment to the Halls, and (2) the trial court erred in amending nunc pro tunc the original order of summary judgment in favor of the Halls in order to render it final under GCR 1963, 518.2. A determination of [124 MICHAPP 262] these issues must precede any finding that the prior suit terminated in favor of the Halls, which is an essential element of their malicious prosecution case.

It is well settled in Michigan that under GCR 1963, 117.2(3) a trial court has the authority to grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Szidik v. Podsiadlo, 109 Mich.App. 446, 448, 311 N.W.2d 386 (1981). Opponents of a motion grounded upon this court rule must show the existence of a factual dispute by submitting opposing affidavits, testimony, depositions, admissions or other documentary evidence. Opinion evidence, conclusory denials, unsworn averments, and inadmissible hearsay do not satisfy GCR 1963, 117.2(3); the existence of a disputed fact must be established by admissible evidence. Goldman v. Loubella Extendables, 91 Mich.App. 212, 217, 283 N.W.2d 695 (1979), lv. den. 407 Mich. 901 (1979); Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978).

Pauley alleges that the court file contained two separate pleadings which indicated that the Halls knew of his leasehold interest before they purchased their property. These pleadings consisted of an answer and third-party complaint by the Fassetts which alleged that third-party defendant State-Wide Real Estate of Midland, Inc., had told the Halls about the lease. These unverified pleadings, drafted solely upon information and belief by the Fassetts' attorney, contained multiple levels of hearsay and, as such, were insufficient to sustain Pauley's burden of showing the existence of a factual dispute. Thus, at the time the Halls' motion for summary judgment was argued, the court [124 MICHAPP 263] had no competent evidence before it which established the existence of witnesses who could testify that the Halls in fact had had actual notice of the lease.

Pauley argues in the alternative that the trial court's grant of the summary judgment was premature because his discovery on the issue of the Halls' knowledge of the lease had not yet been completed. This Court has held that a grant of summary judgment is premature if made before discovery on the disputed issue is complete. Goldman, supra, 91 Mich.App. 218, 283 N.W.2d 695; Johnston v. American Oil Co., 51 Mich.App. 646, 650-651, 215 N.W.2d 719 (1974). However, there must be a disputed issue before the court. If the party opposing a motion for summary judgment cannot present competent evidence of a disputed fact because his or her discovery is incomplete, the party must at least assert that such a dispute does indeed exist and support the allegation by some independent evidence, even if hearsay. An unsupported allegation which amounts solely to conjecture does not entitle a party to an extension of time for discovery, since under such circumstances discovery is nothing more than a fishing expedition to discover if any disputed material fact exists between the parties. Here, Pauley alleged only that the Halls may have known about his leasehold interest and that he needed time to depose the parties to find out if anyone had told the Halls about the lease. This amounts to an insufficient showing of a disputed fact, and the court did not err in refusing Pauley's request for additional time for discovery. Furthermore, even if we were persuaded that error had occurred, we note that the error would have been harmless because during the malicious prosecution case between the parties the testimony revealed [124 MICHAPP 264] that the Halls had no notice of the leasehold interest, thus indicating no factual dispute existed between the parties with respect to the summary judgment.

Pauley also argues that the trial court erred in amending nunc pro tunc the original order of summary judgment in order to render it final under GCR 1963, 518.2 because neither the parties nor the court intended that the judgment be final. We disagree.

A nunc pro tunc entry has been defined by the Michigan Supreme Court as:

" 'an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the Court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake.' " Mallory v. Ward Baking Co., 270 Mich. 91, 93, 258 N.W. 414 (1935).

We conclude that the parties and the court intended the summary judgment to be a final disposition...