Szidik v. Podsiadlo

• Decision Date: 10 September 1981
• Docket Number: Docket No. 52575
• Citation: 311 N.W.2d 386,109 Mich.App. 446
• Parties: Judith A. SZIDIK and James H. Szidik, Plaintiffs-Appellants, v. Raymond Henry PODSIADLO, Jr., Defendant, and Allstate Insurance Company, Garnishee Defendant-Appellee. 109 Mich.App. 446, 311 N.W.2d 386
• Court: Court of Appeal of Michigan — District of US

Page 386

311 N.W.2d 386

Judith A. SZIDIK and James H. Szidik Plaintiffs-Appellants, v. Raymond Henry PODSIADLO, Jr., Defendant and Allstate Insurance Company, Garnishee Defendant-Appellee.

Docket No. 52575.

109 Mich.App. 446, 311 N.W.2d 386

Court of Appeals of Michigan.

Sept. 10, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 447] Mark A. Roberts, Southfield, for plaintiffs-appellants.

Garan, Lucow, Miller, Seward, Cooper & Becker, P. C., Joseph Kochis, Detroit, for Allstate Ins. Co.

[109 MICHAPP 448] Before KELLY, P. J., and BRONSON and DANIELS, ^* JJ.

KELLY, Presiding Judge.

Plaintiffs Judith and James Szidik, were awarded $60,000 in a default judgment against defendant Raymond Podsiadlo, Jr., for injuries resulting from his April 6, 1977, assault upon Mrs. Szidik. When Podsiadlo proved uncollectible, plaintiffs obtained a writ of garnishment against Allstate Insurance Company, with whom Podsiadlo's parents had a homeowner's insurance policy.

On March 11, 1980, Allstate moved for summary judgment, GCR 1963, 117.2(3). The accompanying affidavits established that defendant moved out of his parents' home on March 23, 1977. According to Podsiadlo, he moved out of his parents' home on April 1, 1977. In their motion for summary judgment, Allstate claimed that defendant was not a resident of the insured household at the time of the assault, and thus his parents could not be held liable. The trial court agreed, granting summary judgment to Allstate in an opinion dated May 14, 1980. Plaintiffs appeal as of right, GCR 1963, 806.1.

Plaintiffs contend that summary judgment was inappropriate because a factual dispute existed regarding when Podsiadlo moved out of his parents' home. GCR 1963, 117.2(3) allows a trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978). When passing upon a [109 MICHAPP 449] motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Id., 730, 270 N.W.2d 506. The court will give the benefit of any reasonable doubt to the opposing party and the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973). A material fact is an ultimate fact issue upon which a jury's verdict must be based. Partrich, supra, 84 Mich.App. 730, fn. 3, 270 N.W.2d 506.

Plaintiffs contend that a factual dispute exists between Podsiadlo and his parents concerning the date he moved out of their house. While defendant does not agree with his parents' affidavits, which stated that he moved out on March 23, 1977, he did state in his answer to plaintiffs' interrogatories that he moved out of their house prior to his assault on Mrs. Szidik. Since both defendant and his parents agree that he left home prior to the assault, no issue of material fact existed.

Plaintiffs also argue that the trial court erred when it granted summary judgment prior to the completion of discovery. In support of this contention, plaintiffs cite Goldman v. Loubella Extendables, 91 Mich.App. 212, 283 N.W.2d 695 (1979). In Goldman, the plaintiff brought an antitrust action against the defendant, claiming it conspired to restrict trade by stopping sales of its merchandise to the plaintiff. Prior to the conclusion of discovery, the defendant moved for summary judgment pursuant to GCR 1963, 117.2(3). The plaintiff opposed the motion claiming summary judgment was inappropriate where discovery was not complete. The trial court granted summary judgment but this Court reversed. Id., 222, 283 N.W.2d 695. Plaintiffs argue that [109 MICHAPP 450] this Court reversed the grant of summary judgment in Goldman because discovery had not been completed.

Plaintiffs' reading of the holding in Goldman, supra, is too broad. A motion for summary judgment limited to a single issue upon which discovery is complete is not viewed as premature, regardless of whether the final date for all discovery has passed. This conclusion finds support in Goldman, supra, 218, 283 N.W.2d 695, where the Court stated:

" * * * Defendant may under the court rule establish disputed fact through deposition testimony. GCR 1963, 117.3, Rizzo v. Kretschmer, supra. Summary judgment is premature if made before discovery on the disputed issue is complete. Johnston v. American Oil Co., 51 Mich.App. 646, 650-651, 215 N.W.2d 719 (1974). The time limit for discovery had not passed. GCR 1963, 301.7. The trial court should have either delayed resolution of the motion until discovery was completed or accepted as a promise to produce evidence that which plaintiff sought to prove through hearsay. Cf., Rizzo v. Kretschmer, supra." (Emphasis added.)

In this case, discovery on the disputed issue was complete when Allstate moved for summary judgment. The deposition testimony of the defendant's parents established that the defendant was not a resident of his parents' home at the time of the assault. The defendant's answer to various interrogatories supports the identical conclusion. Additionally, the plaintiffs failed to supply the trial court with any conflicting evidence in their answer to the motion for summary judgment, choosing instead to make an unsupported denial of this fact. Hence, their chief argument was that discovery was not complete on this issue, since it was possible that the defendant might recant his earlier sworn statement. This possibility is insufficient to [109 MICHAPP 451] prevent the court from granting summary judgment. Mere conjecture does not meet the burden of the opposing party to come forward with affidavits or some other evidentiary proof to establish that there exists a genuine issue of material fact. Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det.Col.L.Rev., 397, 414-415, citing Dionne v. Pierson Contracting Co., 2 Mich.App. 134, 139, 138 N.W.2d 555, 557 (1965).

The dissent's reliance on the possibility of testimony from defendant's friend "Steve" to establish a genuine issue of material fact is mere conjecture. The dissent makes an argument excusing the plaintiffs' failure to take a deposition that the plaintiffs did not make for themselves either below or in this Court. We think it is inappropriate. A memorandum of law submitted with the motion for summary judgment disclosed that "Steve" was the person with whom the defendants' son was living after he left his parents' home. The record discloses no effort on the plaintiffs' part to interrogate any of the parties further about "Steve" or to take his deposition.

Most important, plaintiffs failed to raise at the trial level the issue that the period of discovery had not yet expired. It is well established that an issue may not be preserved for appeal if it is not raised at trial, Hayes v. Booth Newspapers, Inc., 97 Mich.App. 758, 773, 295 N.W.2d 858 (1980), unless the claim is "necessary to a proper determination of the case", Prudential Ins. Co. of America v. Cusick, 369 Mich. 269, 290, 120 N.W.2d 1 (1963), the claim involves a question of law for which all facts have been presented, Kahn-Reiss, Inc. v. Detroit & Northern Savings & Loan Ass'n, 59 Mich.App. 1, 228 N.W.2d 816 (1975), or a manifest injustice would result, People v. Snow, 386 Mich. 586, 591, [109 MICHAPP 452] 194 N.W.2d 314 (1972). Review of the instant proceeding suggests no such special circumstances relieving the plaintiffs of their burden to raise all applicable issues below. Thus, this issue was not properly preserved for our review.

Affirmed.

DANIELS, J., concurred.

BRONSON, Judge (dissenting).

I respectfully dissent on the issue of whether summary...