Court's Decision May Tie Hands of Appellate Practitioners

The Court of Appeals issued a published opinion in Barnard Manufacturing v Gates Performance Engineering, which could cause problems for many appellate attorneys appealing trial court orders on summary disposition. In Barnard, although the Court of Appeals recognized that the defendant's evidentiary support "could have been better organized and presented," the Court of Appeals would not consider evidence attached to the motion and response that created a fact issue for plaintiff's case because plaintiff had failed to call attention to evidence in its response.

The Court interpreted MCR 2.116(G)(5) -- which states that "The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1) - (7) or (10) -- to mean that the trial court did not have to consider all of those pieces of evidence unless they were specifically addressed in the response to the summary disposition motion.

The practical effect of this opinion is that an appellate attorney, possibly facing imperfect trial court briefing but good evidence attached to the motion or response, will be unable to make the case on appeal that there is a genuine issue of material fact.