PIATKOWSKI v. MOK
No. 7142
Michigan Court of Appeals
January 18, 1971
29 Mich. App. 426
Defendant lists two issues in his brief which are devoid of any analysis whatsoever. Questions for appeal which аre not briefed are considered abandoned by this Court. People v. Rogers (1968), 10 Mich App 380.
Affirmed.
All concurred.
PIATKOWSKI v. MOK
OPINION OF THE COURT
- JUDGMENT—BASIS—PROOFS—COURT RULE.
A judgment must be based on what is proved rather than on what is pleaded (
GCR 518.3 ). - DAMAGES—AMOUNT RECOVERABLE—PROVABLE DAMAGES—AD DAMNUM CLAUSE.
A plaintiff may recover a judgment in the amount of his рrovable damages irrespective of his ad damnum clause.
CONCURRING OPINION BY CHURCHILL, J.
- DAMAGES—AMOUNT RECOVERABLE—AD DAMNUM CLAUSE—COURT RULE.
A plaintiff cannot recover damages in an amount greater than that demanded, if proved, because allowing recovery of amounts greater than that in ad damnum clause would cause unlimited mischief in excess-liability insurance situations and would discourage non-contests of liаbility (
GCR 1963, 518.3 ).
REFERENCES FOR POINTS IN HEADNOTES
[1] 46 Am Jur 2d, Judgments § 1 et seq.
[2, 3] 46 Am Jur 2d, Judgments §§ 81-84.
[4-6] 41 Am Jur, Pleading §§ 288-315.
PLEADING—AMENDMENT—ALLOWANCE—PREJUDICE. An amendment to the pleadings is not allowed when prejudice would result and when the substantial rights of the parties would be adversely affected.
- PLEADINGS—AMENDMENT—DELAYING EFFECT—DISCRETION.
The delaying effect, if any, of granting a motion to amend after pre-trial conference is a factor for consideration in the exercise of discretion.
- PLEADINGS—AD DAMNUM CLAUSE—AMENDMENT—FINDINGS OF FACT.
Denial of plaintiff‘s motion to amend her pleadings to increase her ad damnum clause should be remanded for further proceedings where the trial judge did not make findings of fact or state conclusions of law in denying plaintiff‘s motion (
GCR 1963, 517.1 ).
Appeal from Wayne, James M. Ryan, J. Submitted Division 1 May 11, 1970, at Detroit. (Docket No. 7142.) Decided January 18, 1971.
Complaint by Philip and Helen Piatkowski and others against Ira E. Mok for personal injuries received in an automobile accident. Plaintiff Helen Piatkowski‘s motion to amend her complaint denied without prejudice. Plaintiff appeals. Remаnded for entry of order granting the motion to amend the complaint and allowing defendant to amend his answer.
Zeff & Zeff, for plaintiffs.
Markle & Markle, for defendant.
Before: R. B. BURNS, P. J., and LEVIN and CHURCHILL,* JJ.
R. B. BURNS, P. J. Although I am in complete agreement with Judge CHURCHILL‘S decision to re-
The language of 518.3, in no uncertain terms, states that a judgment must be based on what is proved rather than on what is pleaded. To base a judgment solely on what is pleaded totally ignores the word “entitled”2 and the phrase “even if” contained in
We hold the plaintiff may recover a judgment in the amount of his provable damages irrespective of the ad damnum clause.
The case is remanded for entry of an order granting the motion to amend plaintiff‘s ad damnum
We do not retain jurisdiction.
LEVIN, J., concurred.
CHURCHILL, J. (concurring in result). This is a personal-injury auto negligence action, commenced September 22, 1964, three years to the day after the accident. In 1968 plaintiff Helen Piatkowski filed a motion to increase her ad damnum clause to $300,000. The motion was denied “without prejudice“. Plaintiff, on leave granted, appeals from the order denying the motion.
The trial court‘s reasons for denial of the motion do not appear in the record nor do we perceive the meaning of the words “without prejudice” in this context.
“Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitlеd, even if the party has not demanded such relief in his pleadings.”
This provision is a verbatim repetition of
The Federal courts have consistently construed rule 54 (c) to mean that in contested actions plaintiff‘s recovery is not limited by the ad damnum clause.1
This was the construction forecast in the Committee Notes to rule 518.3 and by the authors of 2
“In former Michigan practice it was said a judgment could not exceed the amount requested in the ad damnum clause, although in practice the problem might have been sidestepped by permitting an amendment to conform the pleadings to the proofs * * * The new rule makes it clear that except upon default judgment, the court has рower to enter judgment in an amount greater than that demanded, if proved.”
If the rule is so construed the denial of the motion is indeed nonprejudicial to plaintiff. I do not, howеver, adopt this construction.2 Such a construction would cause unlimited mischief in excess-liability insurance situations and it would discourage non-contests of liability.
The motion cоntains the allegation that plaintiff‘s physical condition has worsened and that the amount sued for will not adequately compensate her. The motion was accomрanied by an “information and belief” affidavit of her attorney which does not disclose the source of his information or belief. Attached to the appellant‘s brief on appeal is a copy of a letter from a physician dated October 14, 1968, which tends to substantiate plaintiff‘s claim of serious injury. It does not, however, appear in thе record that this letter was ever submitted to the trial judge for his consideration.
Defendant filed a pleading objecting to the increase of the ad damnum clause from $25,000 to $300,000. Thе ad damnum clause in the original complaint was for $50,000.
By his answer defendant pled no contest as to liability. In his brief on appeal defendant suggests that a typical insurance excess-liability problem would be created by the increase. He asserts that he would want to defend the aсtion on the merits of liability if the ad damnum clause is increased and he suggests that discovery would be difficult after so many years. He does not, however, disclose the limits of coverage nor does he show what further discovery would be required which is unavailable.
In Burg v. B & B Enterprises, Inc. (1966), 2 Mich App 496, 500, this Court, reversing the trial judge‘s decision to deny leave to amend a pleading, said:
“[W]e believe that the language of
GCR 1963, 118.1 , ‘Leave shall be freely given when justice so requires‘, imposes a limitation on the discretion of the court necessitating a finding that justice would not be served by the amendment.”
This is totally consistent with the Supreme Court‘s statement in Phillips v. Rolston, supra, at 268, that amendments are not allowed when prejudice would result and when the substantial rights of the parties would be affected adversely.
The delaying effect, if any, of granting a motion to amend after pretrial conference is a factor for consideration in the exercise of discretion, Simonelli v. Cassidy (1953), 336 Mich 635.
The action is remanded for further proceedings. After consideration of such further affidavits, testimony, or argument as the trial court deems necessary, the trial judge should make findings on the record and exercise his discretion in a manner consistent with the findings. If the ad damnum сlause is increased above $50,000, defendant shall be permitted to amend his answer and defend on the merits of liability.