Comerica Bank v. Hb Stubbs Properties LLC, 328425

Background

Comerica Bank sued H.B. Stubbs corporate entities and individual Stubbs defendants to collect on two promissory notes (one for $4,000,000 and one for $800,000) and a guaranty following defaults.
Defendants signed a guaranty on March 6, 2014 and a forbearance acknowledging defaults and waiving defenses until May 1, 2014.
Plaintiff alleged total owing of $905,175.74 and filed suit on October 6, 2014; a scheduling order required plaintiff to submit an accounting and set discovery closure for May 8, 2015.
Plaintiff moved for summary disposition (MCR 2.116(C)(9) and (C)(10)) on January 7, 2015, supporting the motion with an accounting and an affidavit from its VP.
Defendants produced an affidavit asserting a post-suit $45,000 payment might not have been credited and generally claimed additional unproven transactions might exist; discovery closed May 8, 2015 and the court granted summary disposition June 10, 2015.
The trial court found defendants offered no independent evidence creating a genuine dispute as to damages or showing that further discovery would likely uncover support for their claims; judgment for plaintiff was entered (except as to one defendant not included in judgment).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary disposition was premature because discovery was incomplete	Plaintiff contended discovery was closed and its evidence established liability and damages, so judgment was proper	Defendants argued discovery on damages was incomplete and further discovery could show payment/crediting errors	Court held not premature: discovery was closed when decision issued and defendants failed to present independent evidence showing a genuine dispute or that further discovery would likely help
Whether defendants raised a genuine issue of material fact as to the $45,000 payment	Plaintiff presented an accounting showing the $45,000 was credited and an affidavit corroborating balances	Defendants provided an affidavit claiming the $45,000 may not have been credited and suggested other possible payments	Court held defendants offered no independent proof disputing the accounting; no genuine factual dispute on damages
Whether mere conjecture that additional post-suit payments exist defeats summary disposition	Plaintiff argued conjecture insufficient without independent evidence	Defendants argued depositions or consultant reports might reveal other payments or errors	Court held conjecture insufficient; minimal independent evidentiary support required and defendants did not meet it
Whether plaintiff violated discovery order by submitting accounting not conforming to MCR 2.310(C)(5)	Plaintiff did not contest the discovery-motion ruling below; accounting was considered by trial court	Defendants raised a motion to compel on accounting form and asserted noncompliance on appeal	Court declined to revisit because defendants did not properly challenge the trial court’s mootness ruling on the motion to compel

Key Cases Cited

Arabo v Michigan Gaming Control Bd, 310 Mich. App. 370 (cited for de novo review of summary disposition)
Liparoto Constr., Inc. v Gen. Shale Brick, Inc., 284 Mich. App. 25 (standard for evaluating MCR 2.116(C)(10) evidence)
Maiden v Rozwood, 461 Mich. 109 (summary disposition appropriate except as to amount of damages when no genuine issue of material fact)
Allison v AEW Capital Mgt, LLP, 481 Mich. 419 (definition of genuine issue of material fact)
Peterson Novelties, Inc. v City of Berkley, 259 Mich. App. 1 (summary disposition premature if discovery incomplete but exceptions exist)
Davis v City of Detroit, 269 Mich. App. 376 (party resisting summary disposition must assert a dispute and support it with independent evidence)
Bellows v Delaware McDonald’s Corp., 206 Mich. App. 555 (same principle regarding need for evidentiary support to oppose summary disposition)
Royal Prop Group, LLC v Prime Ins. Syndicate, Inc., 267 Mich. App. 708 (appellate courts consider only issues properly presented)