            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



RUBY SEIFUDDIN,                                                      UNPUBLISHED
                                                                     June 20, 2019
               Plaintiff-Appellant,

v                                                                    No. 340564
                                                                     Wayne Circuit Court
ESURANCE PROPERTY AND CASUALTY                                       LC No. 16-008008-NF
INSURANCE COMPANY,

               Defendant-Appellee.


Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff suffered injuries in a 2013 auto accident. In 2016, plaintiff filed this action
against her insurance carrier, seeking payment of personal-injury-protection benefits, alleging
claims for both work-loss and replacement-services benefits. The trial court granted defendant
summary disposition of plaintiff’s claims, and plaintiff now appeals. We affirm.

                                       I. BACKGROUND

         This case arises from a car accident that occurred on November 30, 2013. Following the
accident, plaintiff sought treatment from Dr. Kevin Crawford, who determined that she was
disabled and that she could not perform household services. In plaintiff’s deposition, she
testified that her son assisted her with replacement services for a six-month period after the
accident. Her son stopped providing replacement services at some point and plaintiff stopped
treatment with Dr. Crawford in either June or July of 2014.

        Plaintiff filed a lawsuit against defendant on June 23, 2016, alleging that she was entitled
to personal-injury-protection (PIP) benefits under the no-fault act, MCL 500.3101 et seq.
Specifically, plaintiff sought payment of both work-loss and replacement-services benefits.
Defendant filed a motion for summary disposition under MCR 2.116(C)(10), arguing that
plaintiff’s claims were barred by the one-year-back rule, MCL 500.3145. In addition,
defendant’s motion pointed to plaintiff’s testimony that she had not received treatment for her
alleged injuries since 2014.



                                                -1-
         In response to defendant’s motion, plaintiff acknowledged that her claims that arose
before June 23, 2015, were barred. Yet, plaintiff argued that she was entitled to work-loss and
replacement-services benefits for three years after the accident, under MCL 500.3107(1)(b).
Accordingly, plaintiff argued that her claims for work-loss and replacement-service benefits for
the period from June 23, 2015, through November 30, 2016, were valid. In support of that
argument, plaintiff relied on her deposition testimony that she was employed on the date of the
accident and that she was no longer able to work. In addition, plaintiff submitted her own
affidavit stating that she was no longer able to work because of her accident-related injuries and
that she was continuing to seek medical treatment. Finally, plaintiff submitted a June 29, 2017
letter from her doctor, Dr. Zakaria Ahmad, stating that he was treating plaintiff for “joint pain
that is related to a Motor Vehicle Accident that occurred in 2015.”

        The trial court initially granted defendant’s motion for summary disposition only in part,
applying the one-year-back rule to bar plaintiff’s claims that arose before June 23, 2015. At a
subsequent settlement conference, defendant orally renewed its motion for dismissal of
plaintiff’s remaining claims for work-loss and replacement-service benefits for the period from
June 23, 2015, through November 30, 2016. Defendant argued that plaintiff failed to provide
sufficient evidence that she (1) she was unable to work, (2) was treating for her accident-related
injuries, or (3) needed replacement services. Plaintiff responded that her deposition testimony
and affidavit provided sufficient evidence to maintain her claims. The trial court dismissed all of
plaintiff’s remaining claims, citing MCR 2.116(C)(10), based on plaintiff’s failure to provide any
medical records or a disability prescription to create a genuine issue of material fact regarding
her claims for work-loss and replacement-services benefits.

       Plaintiff now appeals.

                                         II. ANALYSIS

                                  A. DUE-PROCESS CLAIM

        Plaintiff argues that the trial court violated her due-process rights when it dismissed the
case sua sponte without providing notice of the proceeding. Plaintiff’s claim focuses on the
settlement conference at which the trial court granted defendant’s oral motion. Whether due
process has been afforded is a constitutional issue that we review de novo. Elba Twp v Gratiot
Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). We conclude that the trial court
did not violate plaintiff’s due-process rights.

        MCR 2.116(I)(1) states, “If the pleadings show that a party is entitled to judgment as a
matter of law, or if the affidavits or other proofs show that there is no genuine issue of material
fact, the court shall render judgment without delay.” “Under this rule, a trial court has authority
to grant summary disposition sua sponte, as long as one of the two conditions in the rule is
satisfied.” Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009). A trial court
may not grant summary disposition sua sponte, however, “in contravention of a party’s due
process rights.” Id. at 489. “The basic requirements of due process in a civil case include notice
of the proceeding and a meaningful opportunity to be heard.” Id. at 485. In this case, plaintiff
argues only that the trial court failed to provide her with proper notice and does not argue that
she was deprived of an opportunity to be heard.

                                                -2-
        First, we conclude that the trial court did not dismiss the case sua sponte. Instead,
defendant orally renewed its motion seeking dismissal of the case because plaintiff failed to
provide evidence of her claims that she was unable to work and that she needed help with
household services. Defendant’s earlier motion for summary disposition concentrated on the
argument that plaintiff’s claims for work-loss and replacement-services benefits were barred
because of the one-year-back rule. In addition, defendant’s motion for summary disposition also
stated: “Plaintiff testified that she has not sought any treatment for any injuries allegedly
sustained in the subject accident, since June or July 2014.” In plaintiff’s response in opposition
to that motion, she stated that she had been unable to work since the accident, she was still
disabled from working, and she was still in treatment for her injuries from the accident.
Therefore, defendant’s oral request to renew its motion for summary disposition because plaintiff
had failed to provide evidence of his claims was entirely consistent with its earlier-filed motion
that the trial court granted in part.

        Plaintiff’s argument regarding a lack of notice refers to a lack of notice that the issue
would be litigated at the settlement conference, rather than a lack of notice that the evidence
supporting her claims of disability and inability to work were disputed. Although plaintiff was
not afforded notice that the issue would be litigated at the settlement conference, plaintiff
certainly had notice that her disability and inability to work were at issue generally. Reviewing
defendant’s motion for summary disposition and plaintiff’s response to the motion, we conclude
that plaintiff had notice that the evidence supporting her assertions that she was disabled and
unable to work were at issue.

        Plaintiff relies on Al-Maliki to support her argument that the trial court failed to provide
her with proper notice that the issue would be litigated at the settlement conference. In that case,
the sole issue raised in the defendant’s motion for summary disposition was related to a serious
impairment of bodily function, and the defendant even conceded the issue of causation for
purposes of the motion. Id. at 486. At the motion hearing, however, the trial court raised the
issue of causation sua sponte, and ultimately granted summary disposition to the defendant on
the ground that the plaintiff’s injuries were not caused by the automobile accident. Id. This
Court reversed the trial court’s order granting summary disposition, reasoning that the plaintiff
had no notice that causation would be at issue during the hearing. Id. at 487. This Court also
noted that the plaintiff did not have a meaningful opportunity to be heard on the issue of
causation, stating:

       [T]he trial court was dismissive of plaintiff’s counsel and did not consider
       evidence plaintiff attempted to provide orally regarding causation in an attempt to
       avoid summary disposition. Also, plaintiff’s counsel sought time to present
       documentary evidence establishing causation since causation had now become an
       issue in the summary disposition stage of litigation. The trial court denied
       plaintiff time to present the evidence stating only that it was “too late now”
       without further explanation. And when plaintiff provided new evidence regarding
       causation at the time she moved for reconsideration, the trial court did not credit
       the evidence, finding that the motion for reconsideration merely presented the
       same issue ruled on by the court when granting summary disposition. [Id. at 489.]



                                                -3-
        Al-Maliki is distinguishable because the trial court in this case did not raise a new issue
and dismiss the lawsuit sua sponte. Instead, defendant orally renewed its motion that the trial
court dismiss the case. Defendant’s request for dismissal raised the argument that plaintiff had
failed to provide sufficient evidence of her inability to work or current medical treatment.
Additionally, plaintiff’s response to defendant’s motion for summary disposition demonstrates
that plaintiff was fully aware that whether she could work and continued to receive medical
treatment for her injury were at issue. Based on these facts, we conclude that the trial court’s
dismissal of the case at the settlement conference did not violate plaintiff’s due-process rights.

                                    B. PIP-BENEFIT CLAIMS

        Plaintiff also argues that she presented valid claims for work-loss and replacement-
services benefits. Therefore, plaintiff argues that the trial court erred when it granted summary
disposition. We conclude that the trial court properly granted defendant summary disposition of
plaintiff’s claims.

        This Court reviews de novo a trial court’s decision to grant or deny summary disposition.
Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). In this case, the trial court
granted summary disposition under MCR 2.116(C)(10), which tests the factual sufficiency of the
complaint. See Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A motion for
summary disposition under MCR 2.116(C)(10) shall be granted if there is no genuine issue
regarding any material fact and the movant is entitled to judgment as a matter of law. Bazzi v
Sentinel Ins Co, 502 Mich 390, 398; 919 NW2d 20 (2018). “If the opposing party fails to
present documentary evidence establishing the existence of a material factual dispute, the motion
is properly granted.” Quinto v Cross & Peters Co, 451 Mich 358, 363; 547 NW2d 314 (1996).

                                   1. WAGE-LOSS BENEFITS

        Plaintiff argues that she presented a valid claim for wage-loss benefits. Yet, the trial-
court record demonstrates that plaintiff’s only evidence that she was unable to work was
provided by her own deposition testimony and her affidavit. Plaintiff’s testimony and affidavit
were insufficient to establish a genuine issue of material fact because plaintiff, as a lay person,
could not properly testify to the medical conclusion that she could not work. See Gilbert v
Daimler Chrysler Corp, 470 Mich 749, 787-791; 685 NW2d 391 (2004) (determining that a
social worker’s testimony regarding the plaintiff’s inability to work, among other medical
diagnoses, was inadmissible because the testimony was beyond the scope of the social worker’s
expertise because the social worker did not have medical training or an ability to interpret
medical records).

        Moreover, plaintiff stated at her deposition that she last received treatment for her injuries
in June or July 2014. This contradicted plaintiff’s affidavit, which stated that she was currently
receiving treatment for her injuries. “[A] witness is bound by his or her deposition testimony,
and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for
summary disposition.” Casey v Auto-Owners Ins Co, 273 Mich App 388, 396; 729 NW2d 277
(2006). Accordingly, plaintiff’s affidavit and deposition testimony were insufficient to establish
that she could not work.


                                                 -4-
        Additionally, Dr. Ahmad’s letter did not create a genuine issue of material fact because
the letter comprises inadmissible hearsay under MRE 801, given that plaintiff offers the letter to
prove that Dr. Ahmad is currently treating plaintiff for injuries from the accident. See MRE
801(c) (stating that hearsay is a statement made outside of court that is offered to prove the truth
of the matter asserted). The letter does not qualify under the business-records exception to
hearsay, MRE 803(6), because the letter was not kept in the course of regularly conducted
business, “as shown by the testimony of the custodian or other qualified witness, or by
certification,” and was written at plaintiff’s request. See MRE 803(6). Moreover, the letter’s
presumed typographic error—listing the accident as occurring in 2015, when the accident took
place in 2013—indicates a lack of trustworthiness. See MRE 803(6).

        Even if Dr. Ahmad’s letter was admissible, the letter does not create a genuine issue of
material fact because the letter does not address plaintiff’s ability to work. All the letter states is
that Dr. Ahmad was treating plaintiff for injuries related to the accident. In addition, the letter is
not an affidavit. An affidavit is “a document [that] must be (1) a written or printed declaration or
statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party
making it, taken before a person having authority to administer such oath or affirmation.”
Holmes v Mich Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000). Dr. Ahmad’s
letter did not have a confirmation of the facts, taken by oath, in front of a person with the
authority to administer such an oath.

        Moreover, plaintiff did not present any documentary evidence to establish her disability,
and admitted that she had not possessed a disability prescription since 2014. Plaintiff’s 2014
disability prescription was not relevant to whether she was unable to work because plaintiff’s
work-loss claims were for the period of June 23, 2015 through November 30, 2016. The trial
court properly granted summary disposition of plaintiff’s claim for wage-loss benefits.

                                 2. REPLACEMENT SERVICES

        Plaintiff also argues that she had a valid claim for replacement-services benefits. A
“nonmoving party may not rely on mere allegations or denials in pleadings, but must set forth
specific facts showing that a genuine issue of material fact exists. If the opposing party fails to
present documentary evidence establishing the existence of a material factual dispute, the motion
is properly granted.” Aho v Dep’t of Corrections, 263 Mich App 281, 288; 688 NW2d 104
(2004) (citation omitted). Because plaintiff failed to provide any medical evidence supporting
the necessity of replacement services, the trial court properly dismissed her claim for those
services.

        In summary, the trial court properly determined that there was no genuine issue of
material fact regarding plaintiff’s ability to work or her need for replacement services. The trial
court did not err when it granted summary disposition in favor of defendant.

       Affirmed.

                                                               /s/ Michael F. Gadola
                                                               /s/ Mark T. Boonstra
                                                               /s/ Brock A. Swartzle

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