Topps-Toeller, Inc. v. City of Lansing

• Decision Date: 25 June 1973
• Docket Number: No. 2,Docket No. 13296,TOPPS-TOELLE,INC,2
• Citation: 209 N.W.2d 843,47 Mich.App. 720
• Parties: , a Michigan corporation, Plaintiff-Appellee, v. CITY OF LANSING, a Michigan municipal corporation and Gerald W. Graves, Treasurer of the City of Lansing, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 843

209 N.W.2d 843

47 Mich.App. 720

TOPPS-TOELLER, INC., a Michigan corporation, Plaintiff-Appellee, v. CITY OF LANSING, a Michigan municipal corporation and Gerald

W. Graves, Treasurer of the City of Lansing,

Defendants-Appellants.

Docket No. 13296.

Court of Appeals of Michigan, Division No. 2.

June 25, 1973.

Released for Publication Aug. 24, 1973.

Leave to Appeal Denied Oct. 18, 1973.

James R. Giddings, Chief Asst. City Atty., Lansing, for defendants-appellants.

Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, for plaintiff-appellee.

Before BRONSON, P.J., and McGREGOR and DANHOF, JJ.

BRONSON, Presiding Judge.

Defendant appeals from a circuit court order granting plaintiff's motion for summary judgment.

The present case, while involving different parties, emanates from the same controversy previously considered by this Court in Topps of Warren, Inc. v. City of Warren, 27 Mich.App. 59, 183 N.W.2d 310 (1970). The essential facts precipitating this controversy are as follows.

Topps-Toeller, Inc., plaintiff, commenced this action to recover taxes paid under protest pursuant to M.C.L.A. § 211.53; M.S.A. § 7.97. The sum in dispute was assessed as the result of an upward revaluation of plaintiff's personal property by the State Tax Commission. Plaintiff, like the plaintiff in Topps is one of the 10 separate but wholly owned corporate subsidiaries of Interstate Department Stores, Inc. (hereinafter 'Interstate'). This and other independent actions arose from a petition filed by the City of Oak Park with the State Tax Commission requesting a revision of the 1966 personal property valuation of Topps-Stillman, Inc. The tax commission proceeded to revalue all the personal property of Interstate subsidiaries in Michigan after receipt of this petition. This revision caused the City of Lansing to make additional assessments of $9,785.35 upon the property of Topps-Toeller, Inc., located in Lansing.

On April 5, 1971, plaintiff filed a motion for summary judgment which defendant opposed by answer and affidavit. Subsequently, the trial judge by written opinion granted plaintiff's motion based upon this Court's previous opinion in Topps of Warren, Inc. v. City of Warren, Supra. From this decision defendant appeals, and we restate the issues raised as follows:

'(1) Did defendant adequately present a genuine issue as to a material fact in accordance with the general court rules precluding the application of GCR 1963, 117.2(3)?

(2) Does Topps of Warren, Inc. v. City of Warren constitute controlling authority for the present case justifying an entry of summary judgment upon the merits in favor of plaintiff?

Defendant first alleges that a genuine issue as to a material fact was presented foreclosing the application of GCR 1963, 117.2(3). Plaintiff opposes this contention by arguing that defendant failed to submit sufficient facts by an affidavit in compliance with GCR 1963, 116.4 to establish an issue of material fact. The rules governing the application of Rule 117.2(3) are found in Rule 117.3, which in pertinent part provides:

'A motion based upon subrule 117.2(3) Shall be supported by affidavits, and the opposing party prior to the day of hearing May serve opposing affidavits. The affidavit submitted by either party Shall be governed by the provisions of subrules 116.4, 116.5, and 116.6.' (Emphasis added.)

This language indicates that the party opposing the motion for summary judgment May submit opposing affidavits which Shall be governed by Rules 116.4--116.6. ¹ Rule 116.4 provides that both supporting and opposing affidavits 'be made on personal knowledge'. We decline plaintiff's invitation to void defendant's discretionary affidavit upon this basis.

A review of the opposing Hornbach affidavit reveals defendant's allegation that (1) plaintiff was merely an instrumentality of Interstate, (2) a false personal property statement was constructively filed by Interstate, (3) many of the books and records regarding personal property located at plaintiff's stores were kept not by plaintiff but by agents and employees of Interstate, and (4) the willful, intentional, or negligent falsification of the sworn property statement filed by Interstate precluded the Lansing assessor from making a proper initial assessment of plaintiff's property in Lansing. This affidavit by defendant's attorney did not offer these facts as within his personal knowledge but rather stated that competent admissible evidence would be offered to establish the described facts. Is plaintiff entitled to summary judgment because defendant's opposing affidavit was based upon a personal offer of proof rather than facts based upon personal knowledge?

An acceptance of plaintiff's contention predicated upon defendant's technical noncompliance would subvert the underlying purpose of the court rules. Both the nature of the opposing affidavit and scope of the decisional basis of the motion preclude the harsh penalty plaintiff seeks. Unlike supporting affidavits, opposing affidavits are not required. This is not to say that submitted affidavits are not subject to the strictures of Rules 116.4--116.6. However, noncompliance is not as devastating as plaintiff would wish since the opposing party's burden may be satisfied by alternative grounds. The opposing party's burden has been summarized as follows:

'Although the Rule does not require opposing affidavits, it is the obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on file that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense. Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392. In several cases, this burden has not been met, and summary judgment has been entered. Durant v. Stahlin, Supra; Zimmerman v. Stahlin, 1964, 374 Mich. 93, 130 N.W.2d 915; People for Use and Benefit of (Sic, ex rel.) F. Yeager Bridge & Culvert Co. v. Cooke Contracting Co., 1964, 372 Mich. 563, 127 N.W.2d 308; and Podvin v. St. Joseph Hospital, 1963, 369 Mich. 65, 119 N.W.2d 108.' 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.) (1972 pocket part), p. 83.

This described burden recognizes that the decisional basis for granting or denying a motion for summary judgment extends beyond a consideration of the submitted affidavits. Rule 117.3 in pertinent part provides:

'Such affidavits, Together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing.' (Emphasis added.)

In this context, we find that the submitted affidavits satisfied the spirit and purpose of the court rules. A review of the entire record supports a conclusion that defendant successfully presented a genuine issue as to a material fact requiring resolution by the trial judge.

Plaintiff argues that it is entitled to a summary judgment upon the merits since this Court's prior decision of Topps of Warren, Inc. v. City of Warren, Supra constitutes controlling authority disposing of the same issue defendant seeks to raise in its opposition to summary judgment. The Topps Court found that the failure of the assessor of the City of Warren to file a petition with the tax commission requesting a revaluation of plaintiff's property within the statutory period denied the commission jurisdiction to effect such revaluation. This finding was based upon the conclusion that the petition of an assessor from one district did not establish jurisdiction in the commission to review the property statements of taxpayers in other districts. The statutory language expressly limited application to 'the person submitting' the challenged property statement. The Topps Court concluded:

'Since Topps-Stillman, Inc., and Topps of Warren are Distinct corporate entities, and hence different 'persons,' the petition of the Oak Park assessor could not extend the commission's jurisdiction to Topps of Warren.' 27 Mich.App. p. 63, 183 N.W.2d p. 312. (First emphasis added.)

Thus, the Topps Court considered the identity of the various Topps subsidiaries, finding that they were distinct corporate entities and different persons within the meaning of the applicable statute. Although the merits of this conclusion were challenged by Judge Quinn in his dissenting opinion, this conclusion constitutes the precise issue raised by defendant.

Defendant argues that it has a right to present and develop the facts, albeit upon the same issue, during its day in court. The fundamental policy of providing every party with a day in court underlies our inquiry for a legal theory binding the instant parties to the Topps decision. The pre-emptive value of the Topps decision could be arguably based upon one of four legal theories: (1) res judicata, (2) collateral estoppel, (3) law of the case, and (4) stare decisis. Since these theories are often used indiscriminately and without clarification, we find it necessary to describe the operative effect of each.

Res judicata and its corollary of collateral estoppel have been adequately described by our courts. In Mango v. Plymouth Twp. Board of Trustees, 33 Mich.App. 715, 190 N.W.2d 285 (1971), this Court defined res judicata as the doctrine which bars a subsequent action between the same parties when the facts or evidence essential to the maintenance of the two actions are identical. The doctrine of Res judicata applies only when the issues and the parties or their privies in the prior litigation are identical.' Sheridan Drive Association v. Woodlawn Backproperty Owners Association, 29 Mich.App. 64, 68, 185 N.W.2d 107, 109 (1970). In People ex rel. Director of Conservation v. Babcock, 38 Mich.App. 336, 346, 196 N.W.2d 489 (1972), the Court adopted this definition of res judicata and described collateral estoppel as follows:

'When the subsequent action is based on a new cause of action, the prior litigation is...