Action for judicial foreclosure; Claim that the complaint should have been dismissed for failure to include the promissory note; MCR 2.113(F)(1); MCR 2.116(I)(5); Harmless error; MCR 2.613(A); Waiver of claim the summary disposition motion should have been dismissed when plaintiff failed to appear for the hearing; In re Gerald L Pollack Trust; Allowing new grounds of argument to be raised in reply briefs; Kinder Morgan MI, LLC v. City of Jackson; Failure to provide the relevant transcript; MCR 7.210(B)(1)(a); PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; Principle that an affidavit using conclusory language unsupported by underlying facts is insufficient for purposes of MCR 2.116(C)(10); Jubenville v. West End Cartage, Inc.

Concluding that the plaintiff could have easily cured any defect in the complaint, and that any error in allowing plaintiff to raise new grounds of argument in its reply briefs would have been harmless, the court affirmed the trial court’s orders granting plaintiff summary disposition and entering judgment in its favor in this action for judicial foreclosure. On appeal, the defendants-Hatchett argued that the trial court should have dismissed the case pursuant to MCR 2.113(F)(1) due to plaintiff’s “failure to include the promissory note with its complaint.” However, they failed “to contemplate that, pursuant to MCR 2.116(I)(5), even if the trial court had summarily disposed of plaintiff’s claim, plaintiff would have been permitted to amend its pleadings. Considering plaintiff later filed the promissory note prior to any decision on” the summary disposition motion, it stood to reason that it “could have easily cured any defect in the complaint.” Given that “the same result would have occurred in either circumstance,” defendants provided no basis for reversal. They waived their argument that plaintiff’s summary disposition motion “should have been dismissed when plaintiff failed to appear at the original hearing.” Further, MCR 2.119(E)(4)(b), on which they relied, “does not permit the trial court to dismiss plaintiff’s motion as a sanction for failing to attend a hearing.” In their final procedural argument, defendants referred to a hearing on “plaintiff’s motion for summary disposition where, both parties agree, there was a discussion and decision by the trial court regarding reply briefs to be filed by plaintiff.” The court noted that its ability to review this argument was hindered by defendants’ failure to provide it with the relevant transcript. It added that “any such error would have been harmless pursuant to MCR 2.613(A), because defendants were given a full and fair opportunity to respond to the reply brief, and because the trial court had the power, pursuant to MCR 2.116(I)(1),” to sua sponte enter an order granting plaintiff summary disposition “in light of the newly presented evidence and argument.”