Attorney fees; Breach of contract; Miller-Davis Co v Ahrens Constr, Inc; Account stated; Dunn v Bennett; Summary disposition under MCR 2.116(C)(10); Effect of the opposing party failing to respond; Cleveland v Hath

The court held that the trial court properly granted summary disposition to plaintiff-law firm on its breach-of-contract and account-stated claims because defendants failed to timely respond and the record independently established liability as a matter of law. Plaintiff represented defendants in an initial zoning matter under a written 2018 retainer agreement. After that matter concluded, defendants continued to send the firm additional legal matters, received detailed monthly invoices, and made more than $100,000 in partial payments without objection before ultimately refusing to pay the remaining $140,725.45. The trial court granted summary disposition after defendants missed the response deadline in the scheduling order and later tried to file their response one day late. On appeal, the court held that the trial court was permitted to decide the motion without considering an untimely response because MCR 2.116(G)(4) allows judgment when the nonmoving party fails to set forth specific facts showing a genuine issue for trial. Further, Cleveland confirmed that enforcing a scheduling order in that manner is proper. The court also held that the firm proved breach of contract because the parties’ course of performance showed that the 2018 retainer terms extended to the later matters, as defendants kept requesting services, received itemized invoices at the agreed rates, and paid numerous invoices without complaint. The court also held that the firm established an account stated because defendants’ partial payments and failure to object within a reasonable time permitted assent to the balances due to be inferred. Affirmed.