For additional information on affirmative defenses, see Section 3.1(E)(2).ġ. “An affirmative defense must be stated in a party’s responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, or the defense is waived.” Citizens Ins Co Of America v Juno Lighting, Inc, 247 Mich App 236, 241 (2001), citing MCR 2.111(F)(3) and Chmielewski v Xermac, Inc, 216 Mich App 707, 712 (1996) see also MCR 2.111(F)(2)(a). Under MCR 2.401(B)(2)(a)( ii ), “trial courts may issue scheduling orders to establish times for events including filing of motions.” Cleveland v Hath, _ Mich App _, _ (2024) (cleaned up).Ī defendant may raise an affirmative defense in a motion for summary disposition.
Kemerko Clawson, LLC, 269 Mich App at 351.
MCR 2.401(B)(2)(a)( ii ), allowing courts to set pretrial deadlines through scheduling orders, is a more specific provision and controls over the more general rule found in MCR 2.116.
“When an appellate court orders a new trial, that includes all phases of trial, including all pretrial matters such as motions for summary disposition.” Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, _ Mich App _, _ (2023).Īlthough MCR 2.116(B)(2) allows a summary disposition motion to “be filed at any time consistent with ,” this court rule does not “ the trial court of discretion to set a limit on the time within which a motion under MCR 2.116 may be filed” Kemerko Clawson, LLC v RxIV Inc, 269 Mich App 347, 350 (2005). See Section 4.2(E) for more information on ordering summary disposition sua sponte. Although summary disposition is typically ordered in response to a motion, MCR 2.116 does not expressly require a motion to order summary disposition the court may do so sua sponte.