            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



WILLIAM UHLS,                                                       UNPUBLISHED
                                                                    May 14, 2019
              Plaintiff-Appellant,

v                                                                   No. 343901
                                                                    Court of Claims
DEPARTMENT OF TRANSPORTATION,                                       LC No. 16-000142-MD

              Defendant-Appellee.


Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.

PER CURIAM.

        Plaintiff, William Uhls, appeals as of right the Court of Claims order granting summary
disposition in favor of defendant, the Department of Transportation. We affirm for the reasons
stated in this opinion.

                                       I. BASIC FACTS

        On July 15, 2015, Uhls crashed his motorcycle while driving westbound on I-94. At the
scene, Uhls told the responding police officer that he was changing lanes to avoid potholes when
he lost control of the motorcycle and crashed. Uhls was injured as a result of the accident. On
October 28, 2015, Uhls, through his lawyer, filed an amended notice of claim under MCL
691.1402. With regard to the location of the crash, Uhls asserted:

              This incident occurred on Westbound I-94 freeway, under the Cass Street
       overhead bridge overpass. Specifically, the defect can be located measuring from
       the most northwest concrete column of said overhead bridge, going 12 feet 7
       inches south and 13 feet 6 inches east. The hole is approximately 4 inches deep
       and 20 inches wide. See enclosed photographs and diagram.

              In other words, under the overhead bridge for Cass Street, on the
       westbound I-94 Freeway, in the first right travel lane from right shoulder utilizing
       the most north concrete North West bridge support column as a reference point:
       13’6” feet east and 12’7” south from concrete wall on right shoulder. The hole is



                                               -1-
       approximately 4 inches deep and 20 inches wide. See enclosed photographs and
       diagram. [Emphasis added.]

As stated in the notice, Uhls attached photographs and a diagram purporting to show the defect
causing his injury, i.e., a pothole under the Cass Street overpass bridge.

        On June 24, 2016, Uhls filed a complaint against the Department of Transportation.
Following discovery, the Department moved for summary disposition under MCR 2.116(C)(7)
and MCR 2.116(C)(10). The Department argued that summary disposition was warranted
because Uhls’s notice of intent did not provide the exact location of the defect that caused the
accident and because he was unable to prove that a road defect caused his injuries. Uhls did not
file a response to the motion for summary disposition. 1 Accordingly, the Court of Claims
entered an order granting the Department’s motion “as unopposed pursuant to MCR
2.119(C)(3).” The Court of Claims did not make any ruling on the merits of the Department’s
motion for summary disposition.

                                II. SUMMARY DISPOSITION

       Uhls argues that the trial court erred by granting summary disposition “as unopposed
pursuant to MCR 2.119(C)(3)” without reviewing the merits of the Department’s motion for
summary disposition. We agree.

        We review de novo a trial court’s decision on a motion for summary disposition.
Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775
NW2d 618 (2009). A party moving for summary disposition under MCR 2.116(C)(10) must
support the motion with enough detail that the opposing party is on notice of the need to respond.
Id.; see also MCR 2.116(G)(4) (stating that the moving party must “specifically identify the
issues as to which the moving party believes there is no genuine issue as to any material fact”).
The motion must be supported “with affidavits, depositions, admissions, or other documentary
evidence in support of the grounds asserted.” Barnard Mfg, 285 Mich App at 369; MCR
2.116(G)(3). A properly supported motion for summary disposition shifts the burden to the
opposing party to establish that a genuine issue of disputed fact exists. Quinto v Cross & Peters
Co, 451 Mich 358, 362; 547 NW2d 314 (1996). However, “[i]f the moving party fails to
properly support its motion for summary disposition, the nonmoving party has no duty to
respond and the trial court should deny the motion.” Barnard Mfg, 285 Mich App at 370.

       In addition, MCR 2.116(G)(4) provides:

              A motion under subrule (C)(10) must specifically identify the issues as to
       which the moving party believes there is no genuine issue as to any material fact.
       When a motion under subrule (C)(10) is made and supported as provided in this


1
  In a motion for reconsideration, Uhls’s lawyer asserted that “[d]ue to a calendaring error, the
date for the response did not get logged, and this court granted Defendant’s motion for summary
disposition.”


                                               -2-
       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.]

As is made clear by the last sentence in MCR 2.116(G)(4), even if the nonmoving party fails to
properly respond to a properly supported motion for summary disposition, a judgment may only
be entered against the nonmoving party if appropriate. In other words, if the moving party does
not present evidence sufficient to establish that entry of summary disposition is proper, then it
would not be “appropriate” to dismiss the claim notwithstanding the nonmoving party’s failure
to respond to the motion for summary disposition. Because the court was required to evaluate
the merits of the Department’s motion, notwithstanding Uhls’s failure to file a response to that
motion, we conclude that the trial court erred by granting summary disposition solely on the
basis that the Department’s motion was “unopposed.”

       Despite the Court of Claims’ error, it is well-established that this Court will uphold a
lower court’s ruling if the court rendered the right result, albeit for the wrong reason. Gleason v
Mich Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003). Accordingly, we must
consider whether the Department’s unopposed motion for summary disposition established that
summary disposition was appropriate in this case.

        In its motion, the Department argued that summary disposition under MCR 2.116(C)(7)
was appropriate because Uhls had violated MCL 691.1404 by failing to notify the Department of
the exact location of the defect. The Governmental Tort Liability Act (GTLA), MCL 691.1401
et seq., generally provides immunity from tort liability to governmental agencies if the agency
“is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). But
the GTLA provides several exceptions to governmental immunity, one of which is the defective
highway exception, MCL 691.1402. Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App
449, 455; 890 NW2d 680 (2016). To file a claim against the government for injuries caused by a
highway defect, a notice of intent must be filed in compliance with MCL 691.1404. Relevant to
this case, MCL 691.1404(1) requires that the notice of intent “shall specify the exact location and
the nature of the defect, the injury sustained and the names of the witnesses known at the time by
the claimant.”

        The main purpose of a notice of intent is “to provide the governmental agency with an
opportunity to investigate the claim while the evidentiary trail is still fresh and, additionally, to
remedy the defect before other persons are injured.” Burise v City of Pontiac, 282 Mich App
646, 652; 766 NW2d 311 (2009) (quotation marks, citation, and brackets omitted). “Although
under some circumstances this Court will conclude that a notice is sufficient despite a technical
defect, the plaintiff must at least ‘adequately’ provide the required information.” McLean v City
of Dearborn, 302 Mich App 68, 75; 836 NW2d 916 (2013) (citation omitted). “Failure to
provide adequate notice under this statute is fatal to a plaintiff’s claim against a government
agency.” Id. at 74.




                                                -3-
       Uhls’s notice of intent identified the defect causing his crash as a pothole located under
the Cass Street overpass bridge, and he provided photographs, a diagram, and detailed
measurements to show the pothole’s exact location. In its motion for summary disposition the
Department concedes that Uhls identified a defect in his notice, but argues that based on the
other evidence in the record, it had established that Uhls had not identified the defect alleged to
have caused the crash. In support, the Department attached deposition testimony from the officer
who responded to the scene, deposition testimony from Uhls, and a copy of the police report
prepared by the officer after he responded to the crash scene.

         On appeal, Uhls asserts that the officer’s testimony and the police report should not be
considered because both are inadmissible. Under MCR 2.116(G)(6), “[a]ffidavits, depositions,
admissions, and other documentary evidence offered in support of or in opposition to a motion
based on subrule (C)(1)—(7) or (10) shall only be considered to the extent that the content or
substance would be admissible as evidence to establish or deny the grounds stated in the
motion.” Uhls suggests that the officer’s testimony is inadmissible because the officer testified
that he did not see the accident, did not interview any witnesses, did not take any photographs of
the scene, did not perform any measurements, and is not an accident reconstructionist. Yet, the
officer’s testimony is replete with statements indicating that his opinion testimony with regard to
the location where the crash occurred was based on of his personal observations of the crash
scene and his discussion with Uhls after the accident. See MRE 701 (allowing lay opinion
testimony if the witness’s opinion testimony is “rationally based on the perception of the
witness” and “helpful to a clear understanding of the witness’ testimony or a determination of a
fact in issue.”). Further, as the officer who wrote the police report, he could testify regarding the
content and substance of the report. Accordingly, we reject Uhls’s contention that the police
report and the officer’s testimony is inadmissible and should not be considered.

       The officer testified that when he arrived at the scene, Uhls’s motorcycle was under the
Cass bridge, in the right lane, with one wheel protruding into the middle lane. He recounted that
Uhls told him that before the crash he was changing lanes to avoid potholes and lost control of
his motorcycle. The officer explained that he did not think that a pothole directly caused Uhls to
crash because hitting a pothole while driving “45 miles per hour, the speed limit, or whatever it
is” would damage the motorcycle’s tire and he did not observe any damage to the front tire of
Uhls’s motorcycle. He added that Uhls did not tell him that he hit a pothole, only that he was
swerving to avoid potholes.

        The officer also testified that he observed “scrapes on the cement from where the crash
started” leading to where it “came to rest.” He explained that although he did not measure the
distance from the start of the scrapes to the end, he estimated that it was approximately 50 feet.
The officer added that, although the exact distance was a “rough estimate,” Uhls “definitely” fell
“east of the bridge” and “then slid underneath the Cass Avenue bridge.” He also testified that “if
[Uhls] hit a pothole it would have been before the bridge because he ended up underneath the
Cass bridge.”

         The Department also relied on Uhls’s deposition testimony. Although Uhls consistently
testified that he hit a pothole and “flipped” his motorcycle, thereby sustaining injuries, he was
wholly unable to identify the location of the pothole. He testified that he did not know if he went
under the Cass Avenue overpass, and he added, “I don’t remember a bridge,” before noting that

                                                -4-
he did not think the photographs shown by the Department’s lawyer were correct.2 Uhls thought
that the crash “had to be 200 yards” from the Brush exit, but he did not know if that exit was near
the Cass bridge. When asked if he could “generally” identify where the pothole he hit was
located, he stated, “No, I don’t know,” and then repeated that he did not know where the pothole
was “by these pictures.” Uhls clarified that generally speaking he could not say where the
pothole was in relation to the Cass Avenue overpass because he “didn’t notice that.” Uhls does
identify a pothole in “Exhibit 5” as the pothole that he hit; however, when asked to identify
where that pothole was located, he stated “I can’t really tell.” Further, the record before the trial
court did not include “Exhibit 5” so even viewing his testimony in the light most favorable to
him, we cannot infer that exhibit 5 showed a pothole under the Cass Avenue overpass bridge.

        In sum, viewing all evidence in the light most favorable to Uhls, there is no evidence that
the crash occurred under the bridge, which is the location specified in the notice of intent.
Instead, the officer testified that that the crash occurred before the bridge, as demonstrated by the
scrapes on the road from where the crash occurred to where the motorcycle came to rest. And
Uhls’s testimony makes plain that he did not know where the crash occurred in relation to the
bridge, and he made it clear that he does not even recall the bridge. Accordingly, because the
uncontested facts show that the accident occurred before the bridge, the notice of intent
identifying the location of the defect as being under the bridge is insufficient to satisfy MCL
691.1404(1) because it does not identify the “exact location” of the defect. And, as the failure to
provide adequate notice under the statute is “fatal to a plaintiff’s claim against a government
agency,” McLean, 302 Mich App at 74, we conclude that the trial court did not err by granting
summary disposition.3

         Affirmed. No taxable costs shall be awarded. MCR 7.219(A).

                                                              /s/ Brock A. Swartzle
                                                              /s/ Michael J. Kelly
                                                              /s/ Jonathan Tukel




2
  On the basis of the records submitted, it is unclear what the photographs shown to Uhls
depicted.
3
    Given our resolution, we need not address the remaining issues raised on appeal.


                                                 -5-
