            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


KEN FREEMAN and K & K EXCAVATING                                     UNPUBLISHED
CONSTRUCTION AND RENTALS, INC.,                                      July 23, 2020

               Plaintiffs-Appellees,

v                                                                    No. 348115
                                                                     Macomb Circuit Court
VINCENT DILORENZO, TWIN RIVER                                        LC No. 2017-004164-CK
DEVELOPMENT LIMITED PARTNERSHIP, TDL
CONSTRUCTION COMPANY, formerly known as
D & T CONSTRUCTION COMPANY, and
FANELLI, INC.,

               Defendants-Appellants.


Before: MARKEY, P.J., and M. J. KELLY and BOONSTRA, JJ.

PER CURIAM.

        Plaintiffs Ken Freeman and K & K Excavating Construction and Rentals, Inc. (K & K
Excavating) sued defendants Vincent DiLorenzo, Twin River Development Limited Partnership
(Twin River Development), TDL Construction Company, and Fanelli, Inc., alleging, in pertinent
part, claims for account stated and breach of contract. Plaintiffs alleged that Twin River
Development failed to pay K & K Excavating for construction work it performed. Following
discovery, plaintiffs moved for summary disposition under MCR 2.116(C)(10), arguing that they
were entitled to a judgment in their favor as a matter of law on the account-stated and breach-of-
contract claims. The trial court entered judgment in favor of plaintiffs and against defendants,
jointly and severally, in the amount of $49,245 plus taxable costs. Defendants appeal as of right.
We affirm.

        Pursuant to MCR 2.116(G)(1)(a)(ii), defendants were required to file and serve their
response to plaintiffs’ motion “at least 7 days before the hearing,” unless the trial court set a
different deadline. The trial court did not do so, and defendants did not timely file their response.
Instead, they waited until 4:44 p.m. on Friday, November 2, 2018, to file their response to a motion
that was set for a hearing on the following Monday morning, November 5, 2018. Because
defendants’ response was not filed on time, the trial court was permitted, but not required, to


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consider it. See Prussing v Gen Motors Corp, 403 Mich 366, 369-370; 269 NW2d 181 (1978).
The trial court chose not to consider the response, which left plaintiffs’ motion unopposed.1

       MCR 2.116(G)(4) provides in relevant part:

       When a motion under subrule (C)(10) is made and supported as provided in this
       rule, an adverse party may not rest upon the mere allegations or denials of his or
       her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
       specific facts showing that there is a genuine issue for trial. If the adverse party
       does not so respond, judgment, if appropriate, shall be entered against him or her.
       [Emphasis added.]

Based on our review of plaintiffs’ motion, it is apparent that the motion was “made and supported
as provided in” MCR 2.116(C)(1). “A party claiming a breach of contract must establish by a
preponderance of the evidence (1) that there was a contract, (2) that the other party breached the
contract and, (3) that the party asserting breach of contract suffered damages as a result of the
breach.” Miller-Davis Co v Ahrens Constr, Inc (On Remand), 296 Mich App 56, 71; 817 NW2d
609 (2012), rev’d in part on other grounds 495 Mich 161 (2014). In support of their motion,
plaintiffs submitted documentary evidence demonstrating (1) that DiLorenzo, on Twin River
Development’s behalf, accepted K & K Excavating’s bids for construction work; (2) that K & K
Excavating completed 60% of the first contract and 100% of the second contract; (3) that K & K
Excavating was precluded from completing its work on the first contract because of permit-related
issues; (4) that K & K Excavating sent Twin River Development an invoice; (5) that defendants
never objected to the invoice; (6) and that defendants never paid that invoice. This established a
breach of contract. The same evidence was also sufficient to establish the account-stated claim.
See Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657 NW2d 759 (2002) (stating that
“[i]n order to demonstrate that its fees for its services to the [defendants] had become an account
stated, [plaintiff] had to prove that the [defendants] either expressly accepted the bills by paying
them or failed to object to them within a reasonable time.”). Therefore, plaintiffs properly
supported their motion for summary disposition under MCR 2.116(C)(10).

        Because the motion was properly supported, MCR 2.116(G)(4) required defendants to, “by
affidavits or as otherwise provided in [MCR 2.116], set forth specific facts showing that there is a
genuine issue for trial. Yet, as noted above, their untimely response was not considered by the
trial court.2 “If the opposing party fails to present documentary evidence establishing the existence


1
  On appeal, defendants do not challenge the court’s decision to not consider their response. As a
result, the issue is not properly before this Court, and we decline to review it. See Grand Rapids
Employees Indemnity Union v City of Grand Rapids, 235 Mich App 398, 409; 597 NW2d 284
(1999).
2
  During oral argument on plaintiffs’ summary disposition motion, defendants asked the trial court
to consider a previously filed affidavit by DiLorenzo. Assuming without deciding that defendants
could rely on this affidavit, asserting that K & K Excavating did not perform its obligations under
the relevant contracts, DiLorenzo’s assertions regarding what K & K Excavating did and did not
do squarely contradict his deposition testimony that he was unaware of what K & K Excavating



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of a material factual dispute, the motion is properly granted.” Smith v Globe Life Ins Co, 460 Mich
446, 455; 597 NW2d 28 (1999). Thus, by not filing a timely response to plaintiffs’ motion,
defendants did not present sufficient documentary evidence to create a genuine issue of material
fact and summary disposition was properly granted in plaintiffs’ favor.

        On appeal, defendants neglect to mention their failure to file a timely response to plaintiffs’
motion for summary disposition or the trial court’s decision not to consider their untimely
response.3 Rather, they take the position that the trial court did not understand the relevant standard
under MCR 2.116(C)(10). This position is not supported by the record. The trial court considered
the evidence properly before it and, applying the correct standard, determined that summary
disposition was warranted.

        Defendants also suggest that it is a mystery how all four defendants could be held jointly
and severally liable for Twin River Development’s actions. However, plaintiffs and the trial court
reached that conclusion based on defendants’ partnership-based relationships with one another.
“Under the common law the members of a partnership firm are jointly and severally liable for the
tortious act of one of the partners, or of an agent or servant of the partnership, if committed in the
course of his employment.” Soberg v Sanders, 243 Mich 429, 431; 220 NW 781 (1928).
Defendants do not address this reasoning on appeal, and we discern no reversible error in the
court’s decision.

        In sum, Michigan law is clear that a trial court has the authority to grant a properly
supported motion for summary disposition under MCR 2.116(C)(10) when the nonmoving party
fails to file a timely response with evidence creating a genuine issue of material fact. That is
precisely what happened here: Defendants did not file a timely response to plaintiffs’ motion, and
effectively left plaintiffs’ version of events undisputed. The trial court was persuaded by that
undisputed version of events. Defendants do not address, much less persuasively challenge, the
trial court’s decision not to consider their response. And, even if they had, defendants have not




did. “This Court has held that parties may not contrive factual issues merely by asserting the
contrary in an affidavit after having given damaging testimony in a deposition.” Dykes v William
Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d 440 (2001). While the affidavit preceded
the testimony, DiLorenzo’s assertions regarding what work was and was not performed are
squarely undermined by his deposition testimony.
3
 MCR 7.212(C)(6) (“A statement of facts . . . must be a clear, concise, and chronological narrative.
All material facts, both favorable and unfavorable, must be fairly stated without argument or
bias.”) (emphasis added). The evidence actually and properly before the trial court when it decides
a motion for summary disposition is, unsurprisingly, a material fact. This Court’s review of a trial
court’s decision on a summary disposition motion is made based upon the evidence actually
submitted to the trial court, not based upon whether the trial court’s decision is erroneous in light
of evidence not properly submitted to the court.



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been able to undermine the trial court’s ultimate decision. Accordingly, we affirm the trial court’s
summary-disposition decision and the judgment entered in plaintiffs’ favor.4

       Affirmed. Plaintiffs may tax costs. MCR 7.219(A).

                                                              /s/ Jane E. Markey
                                                              /s/ Michael J. Kelly
                                                              /s/ Mark T. Boonstra




4
  To the extent that defendants may be arguing that the trial court abused its discretion by denying
their motion for reconsideration, their argument is without merit. As this Court has recognized
before, a trial court does not abuse its discretion when it denies a motion for reconsideration that
relies on evidence that could have been presented the first time the issue was argued. Churchman
v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000) (“However, we can find no abuse of
discretion in the denial of a motion for reconsideration that rests on testimony that could have been
presented the first time the issue was argued.”).


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