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12/10/75 TRICK v. BUHR

December 10, 1975

TRICK
v.
BUHR



Appeal from St. Joseph, Robert E. A. Boyle, J.

Leave to appeal applied for.

Bronson, P. J., and V. J. Brennan and D. E. Holbrook, Jr., JJ. Bronson, P. J., concurred. D. E. Holbrook, Jr., J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Judgment -- Summary Judgment -- Court Rules -- Issue of Material Fact -- Trusts -- Mismanagement.

No genuine issue of material fact exists, in a suit by a trust beneficiary alleging improprieties in the management of the trust, where the lawsuit was filed some 15 years ago, the lower court Judges have without exception granted plaintiff's discovery requests and the plaintiff still is unable to point to any specific instance of wrongdoing; therefore, summary judgment for defendants was properly granted (GCR 1963, 117.2[3]).

Dissent by D. E. Holbrook, Jr., J.

2. Judgment -- Summary Judgment -- Trusts -- Mismanagement -- Court Rules.

Summary judgment was improperly granted, in a suit alleging trust mismanagement, because a review of the record indicates that there is an issue of material fact in dispute (GCR 1963, 117.2[3]).

The opinion of the court was delivered by: Brennan

Complaint by Margaret Buhr Trick against Joseph H. Buhr and others alleging mismanagement of a trust of which plaintiff is a beneficiary. Summary judgment for defendants. Plaintiff appeals by leave granted.

On June 28, 1960, plaintiff filed suit against defendants, alleging various improprieties in the management of a trust set up by her father; plaintiff being one of three beneficiaries named in the trust agreement. On May 7, 1973, the trial Judge granted defendants' request for a summary judgment, based on his finding that no genuine issue of material fact existed. GCR 1963, 117.2(3). This Court granted plaintiff leave to appeal.

The trial Judge based his summary judgment order on certain admissions made by plaintiff while she was being deposed. Essentially, he found that plaintiff had admitted that many of the allegations made in her complaint were false, and that she had further admitted that she knew of no evidence to support the remaining allegations. The trial Judge ruled that plaintiff was bound by these admissions, and therefore that no genuine issue of material fact existed.

On appeal, plaintiff does not contend that her admissions are not binding against her, *fn1 rather she argues that she did not "admit away" all material allegations made in her complaint. She argues that under Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973), it was improper for the trial Judge to have granted summary judgment when any material allegation in her complaint remained uncontradicted. Whatever the applicability of Rizzo, supra, is in a non-jury ...


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