531 N.W.2d 719 | Mich. Ct. App. | 1995
UNIVERSAL GYM EQUIPMENT, INC.
v.
VIC TANNY INTERNATIONAL, INC.
Michigan Court of Appeals.
Barbier & Barbier, P.C. (by Ralph W. Barbier), for the plaintiff.
Petersmarck, Callahan, Bauer & Barbour, P.C. *512 (by George E. Petersmarck, Jr., and Richard W. West), for the defendant.
Before: MICHAEL J. KELLY, P.J., and CORRIGAN and C.D. CORWIN,[*] JJ.
ON REHEARING
CORRIGAN, J.
We granted defendants' motion for rehearing, limited to the propriety of our decision granting remand for further consideration of plaintiff's motion to amend its complaint. We conclude that we erred in permitting remand. We otherwise adhere to our original opinion and affirm the circuit court order in all respects.
The question regarding the circuit court's denial of Universal's motion to amend its complaint was abandoned on appeal. In our initial opinion, Universal Gym Equipment, Inc, v Vic Tanny Int'l, Inc, 207 Mich. App. 364, 368; 526 NW2d 5 (1994), we stated:
Although Universal's original complaint did not sound in gross negligence, it filed a motion for a second amended complaint that did include allegations of gross negligence. The trial court denied the motion, but Vic Tanny's response to the motion and the order denying the motion are missing from the record. Because motions to amend a complaint are accorded great liberality, see MCR 2.118, and because the grounds for the trial court's denial of the motion in this case remain a mystery, we reverse the order of denial and remand for a new hearing on the motion to file a second amended complaint. If the trial court grants the motion it shall allow further proceedings on the *513 gross negligence claim. If it denies the motion it shall specify the reasons and grounds for such denial.
In stating that the trial court's reasons for denying the motion "remain a mystery," we were misled. On rehearing, the mystery was solved. Defendants supplied portions of the record that had not been ordered. Contrary to MCR 7.210(B)(1) (a), plaintiff failed to order the full transcript of proceedings. Further, plaintiff had not moved for less than the full transcript or stipulated with defendants to file some portion less than the full transcript. MCR 7.210(B)(1)(c) and (d). We assumed that the record was missing, when, in fact, it had never been ordered.
Having scrutinized the relevant transcript of the hearing on the motion to amend the complaint, we are persuaded that plaintiff abandoned the issue upon which we granted remand. We ordered remand on a ground that was never asserted or addressed in the lower court, nor was it asserted before us.
Having reviewed the transcript of the hearing, we see no abuse of discretion in the circuit court's ruling denying the motion to amend the complaint. More significantly, the grounds that were argued during the motion to amend are essentially irrelevant to the claims of contribution and indemnification that we addressed in the published opinion.
For the foregoing reasons, the decision of the circuit court granting summary disposition is affirmed. That portion of the opinion that permitted a remand for a new hearing on the motion to file a second amended complaint is vacated.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.