This is an appeal from the circuit court’s denial of defendant’s motion to amend his pleadings and the grant of plaintiff’s motion for summary judgment based upon GCR 1963, 117.2(2). 1
On May 25, 1978, plaintiff, Lowell R. Hanon, Sr. filed a complaint against Ross C. Barber, Jr., seeking a money judgment on two promissory notes dated November 5, 1971, and March 19, 1972, between Barber as payor and Hanon as payee.
On June 13, 1978, defendant filed his answer and affirmative defenses of compromise and release, satisfaction, discharge, duress, estoppel, and assignment of the claim. Plaintiff filed a response *854 on June 16, 1978, denying defendant’s affirmative defenses.
Following two adjournments, 2 the parties appeared for trial before Judge Thorburn on December 29, 1978. Plaintiff thereupon made a motion for summary judgment, claiming that defendant’s answer failed to state a valid defense to the claim asserted against him. Defendant immediately moved for leave to amend his answer. The trial judge denied defendant’s motion to amend and granted plaintiffs motion for summary judgment. Judgment in the plaintiffs favor was entered in the amount of $20,286.94. Defendant subsequently filed a motion to rehear the motion for summary judgment and a motion to amend and requested that defendant be granted a new trial. On April 18, 1979, Judge Thorburn issued an order denying the defendant’s motion. The defendant now appeals from the trial court’s order granting summary judgment and denying defendant’s motion to amend the pleadings.
On appeal, defendant raises two issues. First, defendant challenges the trial judge’s grant of summary judgment for failure to state a valid defense.
A motion for summary judgment based on the failure to state a valid defense tests the legal sufficiency of the pleaded defense. Such motion is tested by reference to the pleadings alone,
Durant v Stahlin,
On review of the record, we believe that the possible defenses offered by defendant should have precluded the granting of summary judgment pursuant to subrule 117.2(2). Sufficient basis for denial of the motion was made in defendant’s answer by his allegations regarding compromise, release, payment, discharge, assignment, coercion, and duress. Were defendant to prove one or more of these claims at trial, plaintiff would be denied recovery on the debt. See Bashara, The Elusive Summary Judgment Rule, 1976 Det Col L Rev, 397, 409-410.
The trial court’s ruling appears to be grounded on the basis that, although defendant listed his affirmative defenses, they were defective, since he failed to state those facts upon which he relied.
The general rule of pleading affirmative defenses is governed by GCR 1963, 111.7.
3
In essence, it is
*856
the intent of the rule to provide for fact pleading sufficient to give plaintiff
notice
of the affirmative defenses alleged.
Abbey v Hudgens,
"The primary function of a pleading is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position. No pleading is insufficient, so far as facts are concerned, which serves this function. ”
We find that plaintiff did have such notice.
Assuming,
arguendo,
however, that defendant’s affirmative defenses were deficient, we further note that defendant categorically denied owing plaintiff on the alleged notes. In
August v Poznanski,
While resolution of the foregoing is dispositive and renders discussion of defendant’s remaining allegation of error unnecessary, we believe it should, nevertheless, be addressed. Immediately following plaintiff’s motion for summary judgment, defendant asked the court for leave to amend his pleadings. Defense counsel argued that summary judgment was improper and requested the court to *857 grant him one week in which to file an amended answer in order to cure the alleged deficiency of his pleadings.
On appeal, defendant argues that the trial court abused its discretion in not granting his motion to amend. 4 GCR 1963, 117.3 provides in pertinent part:
"Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified.”
GCR 1963, 118.1, states that "[l]eave shall be freely given when justice so requires”. This requires the trial court to make a finding that justice would not be served by granting the motion to amend.
Burg v B & B Enterprises, Inc,
The test on appeal is whether the trial court abused its discretion in denying the motion to amend.
Fred Gibbs, Inc v Old Colony Ins Co,
In
Ben P Fyke & Sons v Gunter Co,
"We have acknowledged the Federal source of Rule 118 and have been guided by the Federal precedents. LaBar v Cooper,376 Mich 401 , 405;137 NW2d 136 (1965).
"Our rule, as the Federal rule, is 'designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result’. United States v Hougham,364 US 310 , 316;81 S Ct 13 , 18;5 L Ed 2d 8 , 14 (1960). A motion to amend ordinarily should be granted, and denied only for particularized reasons:
" 'In the absence of any apparent or declared reason —such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc, — the leave sought should, as the rules require, be "freely given.” ’
"To safeguard and implement the policy favoring amendment, this Court has directed that upon denial of a motion to amend 'such exercise of discretion should be supported by specific findings as to reasons for the same’. LaBar v Cooper, supra, p 409. (Emphasis supplied.)”
In the instant case, plaintiff did not argue that defendant’s request to amend would result in injustice or would unduly prejudice plaintiff. In fact, defendant prepared and proceeded to trial only to *859 be met with a motion for summary judgment. 5 Faced by this unexpected turn of events, defendant then attempted to cure his answer and preserve his right to a full hearing. Under the circumstances, defendant’s motion was as timely as could be expected.
We note that this is not a case where a party is adding a party or parties which in effect results in the addition of a new cause of action,
Central Advertising Co v City of Novi,
We further note that the trial judge failed to support his motion denial with specific findings as to why justice would not be served by the amendment. Such a failure constitutes reversible error.
*860
Goldstein v Kern,
We rule that the trial court should have granted defendant leave to amend, and set aside the summary judgment in favor of the plaintiff entered herein.
Costs to be paid by plaintiff.
Notes
GCR 1963, 117.2(2) provides in pertinent part:
".2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
"(2) the opposing party has failed to state a valid defense to the claim asserted against him, * *
The case was first scheduled for trial on September 1, 1978, but was adjourned until October 31 because an illness in defense counsel’s family required him to be out of state. And on October 31, 1978, both counsel requested an adjournment until December 29, 1978.
GCR 1963, 111.7 provides:
".7 Affirmative Defenses. A party shall in separate defenses set forth the facts constituting any affirmative defense, such as, contributory negligence, assumption of risk, payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, statute of limitations, illegality, want or failure of consideration in whole or in part, that an instrument or transaction is void or voidable in point of law, or cannot be recovered upon by reason of statute, or by reason of nondelivery, and any defense which by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim set forth in the plaintiff’s complaint in whole or in part, and any ground of defense which, if not raised in the pleading, would be likely to take the adverse party by surprise. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the *856 court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
We note that, although the trial court characterized defendant’s request as one which sought a continuance, it in fact was a motion for leave to amend in response to plaintiffs motion for summary judgment.
We agree with defendant’s contention that, if plaintiff found defendant’s affirmative defenses lacking, he should have made a timely motion for a more definitive statement under GCR 1963, 115.1.