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STATE OF MICHIGAN 

COURT OF APPEALS 

ANDREW J. PERUN, JR., 

 Plaintiff-Appellant, 

UNPUBLISHED 

October 21, 2014 

v No. 315191 

Macomb Circuit Court 

TROTT & TROTT, P.C., and CITIMORTGAGE, 

INC., 

LC No. 2012-004203-CK 

 Defendants-Appellees. 

Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ. 

PER CURIAM. 

 In this action to prevent a mortgage foreclosure, plaintiff, Andrew J. Perun, Jr., appeals as 

of right from the trial court’s opinion and order granting summary disposition in favor of 

defendants, Trott & Trott, P.C. (“Trott”) and CitiMortgage, Inc. (“CMI”). We affirm. 

 In 1998, Perun executed a mortgage and note with Standard Federal Bank, which 

subsequently assigned the mortgage to CMI in 2008. In 2009, Perun submitted a home 

affordable modification trial period plan (TPP) to CMI. This document, signed by Perun, 

contained a statement indicating that he was unable to afford his mortgage payments and was 

either in default or would soon be in default. Along with the TPP, Perun submitted a hardship 

affidavit identifying a loss in income, deaths in the family, and health issues as reasons for his 

request. According to CMI, Perun did not comply with the TPP, so it referred the matter to Trott 

for foreclosure proceedings. 

 In April and May 2012, Trott sent correspondence to Perun advising that the mortgage 

was in default and that an agreement could be reached to modify the loan. However, Perun was 

required to submit specified documents by June 18, 2012, to obtain a meeting with the lender. In 

response, Perun sent correspondence in June and August 2012, objecting to the documentation 

deadline and Trott’s failure to provide him with necessary tax forms. 

 On September 14, 2012, Perun filed a complaint against Trott seeking a preliminary 

injunction to stop the scheduled sheriff’s sale of his residence. He also sought permission to file 

an amended complaint on the grounds that a preliminary injunction “will not resolve this case on 

the merits.” Following a show cause hearing, the trial court denied the request for injunctive 

relief, but granted Perun’s request to file a first amended complaint. On September 24, 2012, 

Perun filed a first amended complaint and added CMI to the litigation. The only claim Perun 
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made against CMI was for breach of contract, alleging that CMI breached the note and/or 

mortgage by unilaterally raising the amount of his monthly mortgage payments. Concerning 

Trott, the amended complaint alleged that the parties had agreed to participate in a loan 

modification, but that Trott had failed to provide the necessary forms. Perun further alleged that 

Trott represented itself as an expert in loan modification and acted in a fiduciary relationship of 

trust to him, and that he relied on Trott’s misrepresentations. Perun raised claims of fraud and 

innocent misrepresentation against Trott. The first amended complaint further alleged that Trott 

committed libel by publishing notice of the foreclosure sale. Perun also alleged that Trott’s 

actions intentionally interfered with the contractual relationship and/or business expectancy he 

had with CMI, and he demanded specific enforcement of the loan modification meeting. 

 Trott filed its answer to Perun’s first amended complaint on October 4, 2012, and CMI 

filed its answer on October 16, 2012. On October 29, 2012, Perun, without seeking leave of the 

court, filed a second amended complaint1

 in which he alleged that CMI had an agency 

relationship with Trott. Trott initially filed an answer to the second amended complaint, but nine 

days later filed a motion to strike the second amended complaint on the grounds that it was too 

late to amend a pleading as a matter of course under MCR 2.118(A). Trott also filed a motion 

for summary disposition of Perun’s complaint pursuant to MCR 2.116(C)(8) and (10). 

 CMI did not file an answer to the second amended complaint, but on November 26, 2012, 

it filed a motion for summary disposition in which it addressed, among other matters, the issues 

raised in Perun’s second amended complaint. On November 30, 2012, Perun sought, and the 

clerk entered, a default against CMI for failing to answer the second amended complaint. 

According to Perun, CMI failed to timely answer the second amended complaint. On December 

9, 2012, CMI filed what it termed a “response to the application for default” and asserted that its 

motion for summary disposition was not untimely; thus, a default was improper. 

 On January 16, 2013, the trial court issued a written opinion and order striking the second 

amended complaint because it was filed without leave of the court, granting CMI’s request to set 

aside the default because the default had been premised on CMI’s failure to answer the second 

amended complaint, which had been stricken, and granting both defendants’ motions for 

summary disposition. The trial court later denied Perun’s motion for reconsideration of the 

summary disposition ruling and request to file a third amended complaint. 

I. SECOND AMENDED COMPLAINT 

 Perun first argues that the trial court erred by striking his second amended complaint 

because the plain language of MCR 2.118(A)(1) permitted him to amend the pleading once as a 

matter of course after receiving CMI’s answer to the first amended complaint. We disagree. We 

review for an abuse of discretion the trial court’s decision to strike a pleading. Belle Isle Grill 

Corp v Detroit, 256 Mich App 463, 469; 666 NW2d 271 (2003). The interpretation of a court 

rule presents an issue of law that we review de novo. Acorn Inv Co v Mich Basic Prop Ins Ass’n, 

 

1

 Perun admits that he improperly labeled his second amended complaint as a “First Amended 

Complaint as of Right.” 
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495 Mich 338, 348; ___ NW2d ___ (2014); Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 

187; 732 NW2d 88 (2007). “A court by definition abuses its discretion when it makes an error 

of law.” Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009) (citation and 

quotation marks omitted). 

 When construing a court rule, a court applies the legal principles governing the 

interpretation and application of statutes. In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004). 

The judiciary’s objective when interpreting a statute is to discern and give effect to the intent of 

the Legislature. Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). The 

most reliable evidence of the Legislature’s intent is the language of the statute itself. Id. “When 

construing statutory language, [the court] must read the statute as a whole and in its grammatical 

context, giving each and every word its plain and ordinary meaning unless otherwise defined.” 

In re Receivership of 11910 South Francis Rd, 492 Mich 208, 222; 821 NW2d 503 (2012). 

Effect must be given to every word, phrase, and clause in a statute, and the court must avoid a 

construction that would render part of the statute surplusage or nugatory. Johnson v Recca, 492 

Mich 169, 177; 821 NW2d 520 (2012). “If the language of a statute is clear and unambiguous, 

the statute must be enforced as written and no further judicial construction is permitted.” 

Whitman, 493 Mich at 311. 

 MCR 2.118 provides, in pertinent part: 

 (A) Amendments. 

 (1) A party may amend a pleading once as a matter of course within 14 

days after being served with a responsive pleading by an adverse party, or within 

14 days after serving the pleading if it does not require a responsive pleading. 

 (2) Except as provided in subrule (A)(1), a party may amend a pleading 

only by leave of the court or by written consent of the adverse party. Leave shall 

be freely given when justice so requires. 

*** 

 (B) Response to Amendments. Within the time prescribed by MCR 

2.108, a party served with an amendment to a pleading requiring a response under 

MCR 2.110(B) must 

 (1) serve and file a pleading in response to the amended pleading, or 

 (2) serve and file a notice that the party’s pleading filed in response to the 

opposing party’s earlier pleading will stand as the response to the amended 

pleading. 

 As noted above, Perun filed his complaint on September 14, 2012. With leave of the 

court, he filed a first amended complaint on September 24, 2012. After receiving Trott’s and 

CMI’s responses as required by MCR 2.118(B), and without seeking leave of court, Perun filed 

yet another amendment to his complaint on October 29, 2012, which constituted the second 
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amendment to and third version of his pleading. Perun contends that the plain language of MCR 

2.118(A)(1) entitled him to amend his pleading again because he was doing so as a matter of 

course within 14 days after being served with a responsive pleading. But to interpret MCR 

2.118(A)(1) as Perun proposes would allow a party to amend a pleading not once, as a matter of 

course, but in perpetuity, because the filing of a response to an amended pleading as required by 

MCR 2.118(B) would trigger the applicability of MCR 2.118(A)(1), creating an endless cycle of 

unfettered amendment opportunities. This interpretation defies the plain meaning of the court 

rule, which permits amending a pleading once as a matter of course. MCR 2.118(A)(1). When 

Perun filed his first amended complaint, it constituted an amendment to his pleading, regardless 

of whether it was accomplished by leave or as a matter of course. Thus, MCR 2.118(A)(1) was 

no longer available to him in seeking to file additional amendments. Subsequent amendments 

could only be filed by leave of the court or with the written consent of the adverse parties in 

accordance with MCR 2.118(A)(2). Because Perun neither obtained leave of court nor the 

written consent of the adverse parties when filing the second amended complaint, the trial court 

did not abuse its discretion when it struck his second amended complaint. Belle Isle Grill Corp, 

256 Mich App at 469. 

II. MOTION TO STRIKE 

 Next, Perun argues that the trial court erred by even considering Trott’s motion to strike 

the second amended complaint. He contends that the motion was not timely filed and that Trott 

did not raise the defense in its answer filed on November 20, 2012; thus, he claims that Trott 

waived its claim, pursuant to MCR 2.111(F)(2). We again disagree. “This Court reviews a trial 

court’s decision regarding a motion to strike a pleading pursuant to MCR 2.115 for an abuse of 

discretion.” Belle Isle Grill Corp, 256 Mich App at 469. The interpretation of a court rule 

presents an issue of law that is reviewed de novo. Acorn Inv Co, 495 Mich at 348; Muci, 478 

Mich at 187. 

 On November 20, 2012, Trott filed an answer to the second amended complaint without 

objecting to the propriety of the document’s filing. On November 29, 2012, Trott filed a motion 

to strike the second amended complaint, contending that Perun was required to seek leave to file 

the amendment. Perun first argues that the trial court erred in considering Trott’s motion to 

strike because the claim was not timely raised within 21 days after the second amended 

complaint was filed pursuant to MCR 2.108(B). This Court rejected Perun’s position in Belle 

Isle Grill Corp, 256 Mich App at 470-471, by holding that the time limit of MCR 2.108(B) does 

not apply to motions to strike. Instead, this Court held that “a motion to strike should be allowed 

at any reasonable time.” Id. at 471. Trott’s answer was filed on November 20, 2012, and the 

motion to strike was filed only nine days later, on November 29, 2012. The motion to strike was 

filed within a reasonable time. 

 Next, Perun argues that the motion to strike should have been denied because of a failure 

to comply with MCR 2.111(F)(2). That rule requires that “defenses” against a claim must be 

asserted in a responsive pleading, and that any defense “not asserted in the responsive pleading 

or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction 

over the subject matter of the action, and failure to state a claim on which relief can be granted.” 

MCR 2.111(F)(2). We reject Perun’s argument because CMI’s motion to strike the second 

amended complaint was not a defense to the claim; it was an attack on a pleading not drawn in 
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conformity with the court rules. See MCR 2.115(B). Pursuant to Belle Isle Grill Corp, 256 

Mich App at 471, such a motion “should be allowed at any reasonable time.” As such, CMI did 

not need to assert the issue in its responsive pleading in order to be preserved. 

III. DEFAULT 

 Next, Perun argues that the trial court erred by setting aside the default against CMI, 

which was entered because CMI failed to timely file a response to the second amended 

complaint. Perun also contends that the trial court should not have found that CMI filed a 

motion to set aside the default. “Review of a trial court’s decision on a motion to set aside a 

default or a default judgment is for a clear abuse of discretion.” Saffian v Simmons, 477 Mich 8, 

12; 727 NW2d 132 (2007). “[A]n abuse of discretion occurs only when the trial court’s decision 

is outside the range of reasonable and principled outcomes.” Id. 

 An issue “is moot when it presents only abstract questions of law that do not rest upon 

existing facts or rights.” Ryan v Ryan, 260 Mich App 315, 330; 677 NW2d 899 (2004) (citation 

and quotation omitted). “Generally, this Court need not reach moot issues or declare legal 

principles that have no practical effect on the case unless the issue is one of public significance 

that is likely to recur, yet evade judicial review.” Id. (citation and quotation omitted). Here, 

because we conclude that the trial court did not abuse its discretion in striking the second 

amended complaint, any claim of error relating to a default entered in connection with the second 

amended complaint is moot as the issue no longer rests upon existing facts or rights. Id. 

IV. SUMMARY DISPOSITION AS TO CMI 

 Next, Perun contends that the trial court erred when it granted summary disposition to 

CMI. The only claim Perun raised against CMI in the first amended complaint was breach of 

contract for unilaterally raising Perun’s monthly mortgage payment in violation of the terms of 

the note and mortgage. CMI moved for summary disposition pursuant to MCR 2.116(C)(8) and 

(C)(10). The trial court granted summary disposition because Perun “fail[ed] to identify any 

specific provision of either [the note or mortgage] which was breached. Accordingly, [Perun] 

has failed to properly plead his breach of contract claim and CMI is entitled to summary 

disposition.” 

 We review a trial court’s decision to grant or deny summary disposition de novo. Ter 

Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014). Summary disposition is proper 

under MCR 2.116(C)(8) when the opposing party fails “to state a claim on which relief can be 

granted.” “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the 

allegations of the pleadings alone.” Hanlin v Saugatuck Twp, 299 Mich App 233, 239; 829 

NW2d 335 (2013). Conversely, summary disposition is proper pursuant to MCR 2.116(C)(10) 

when “there is no genuine issue as to any material fact, and the moving party is entitled to 

judgment as a matter of law.” A motion premised on MCR 2.116(C)(10) tests the factual support 

of the complaint. Hanlin, 299 Mich App at 239. “The moving party has the initial burden to 

support its claim for summary disposition by affidavits, depositions, admissions, or other 

documentary evidence.” McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 693; 

818 NW2d 410 (2012). Once this burden is satisfied, the nonmoving party must demonstrate 

that a genuine issue of disputed fact exists for trial. Id. Affidavits, depositions, and documentary 
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evidence submitted in support of, or opposition to, the motion are considered only to the extent 

that the content or substance would be admissible as evidence. Maiden v Rozwood, 461 Mich 

109, 120-121; 597 NW2d 817 (1999). Mere conclusory allegations that are devoid of factual 

detail are insufficient to create a genuine issue of material fact. Quinto v Cross & Peters Co, 451 

Mich 358, 371-372; 547 NW2d 314 (1996). 

 The trial court did not err by granting summary disposition to CMI on Perun’s breach of 

contract claim. Perun asserted that CMI breached the mortgage by increasing his monthly 

mortgage payment without authorization under the terms of the note and mortgage. CMI 

presented evidence, which Perun did not refute, that he was in default on his mortgage payments. 

CMI also presented the mortgage and note, which contain provisions for acceleration of the debt, 

charges for late payments, and other remedies, in the event of Perun’s default. Thus, CMI 

satisfied its burden of producing documentary evidence in support of its assertion that it did not 

breach the terms of the note by adding additional charges after default, and Perun did not refute 

that evidence. Although we employ different reasoning than the trial court, we find that 

summary disposition was appropriate. See McCoig Materials, LLC, 295 Mich App at 693. See 

also Lavey v Mills, 248 Mich App 244, 250; 639 NW2d 261 (2001) (citation and quotation 

omitted; alteration in original) (“[w]hen this Court concludes that a trial court has reached the 

correct result, this Court will affirm even if it does so under alternative reasoning.”). 

V. SUMMARY DISPOSITION AS TO TROTT 

 Perun next argues that the trial court erred in granting Trott’s motion for summary 

disposition. Because the trial court considered evidence beyond the pleadings, we review the 

motion as having been granted summary disposition pursuant to MCR 2.116(C)(10). Hughes v 

Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). 

 Perun argues that the trial court’s opinion and order granting summary disposition 

impermissibly made credibility determinations. He correctly recognizes that, when deciding a 

motion for summary disposition, the trial court is not to make credibility determinations. See 

Lysogorski v Bridgeport Twp, 256 Mich App 297, 299; 662 NW2d 108 (2003) (citation and 

quotation omitted) (explaining that in deciding a motion for summary disposition under MCR 

2.116(C)(10), “a court may not weigh the evidence before it or make findings of fact[.]”). Here, 

the record reveals that the trial court made findings of fact and credibility determinations on 

some of Perun’s claims. However, Perun fails to explain how he otherwise satisfied his burden 

of establishing a genuine issue of material fact with respect to each of his claims. In addition, 

our review of the record reveals that Trott was entitled to summary disposition on all of Perun’s 

claims. Therefore, as discussed below, we affirm the trial court’s grant of summary disposition 

on alternate grounds. See Lavey, 248 Mich App at 250. 

A. FRAUD AND INNOCENT MISREPRESENTATION 

 Perun alleged fraudulent misrepresentation against Trott, and, in the alternative, innocent 

misrepresentation. Turning first to his fraud claim, Perun was required to establish: 

(1) the defendant made a material representation; (2) the representation was false; 

(3) when the defendant made the representation, the defendant knew that it was 
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false, or made it recklessly, without knowledge of its truth and as a positive 

assertion; (4) the defendant made the representation with the intention that the 

plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the 

plaintiff suffered damage. [Belle Isle Grill Corp, 256 Mich App at 477 (citation 

and quotation omitted).] 

Fraud must be pleaded with particularity. MCR 2.112(B)(1); State ex rel Gurganus v CVS 

Caremark Corp, 496 Mich 45, 63; __ NW2d __ (2014). General allegations and “conclusory 

statements that are unsupported by allegations of fact on which they may be based will not 

suffice to state a cause of action.” Id. See also LaMothe v Auto Club Ins Ass’n, 214 Mich App 

557, 586; 543 NW2d 42 (1995). 

 The trial court did not err by granting summary disposition to Trott because Perun failed 

to plead its allegations of fraud with particularity. The first amended complaint contains only 

general allegations of fraud in relation to the delivery of certain tax forms, but contains no 

allegations as to when the alleged representations were made, who from Trott made the alleged 

representations, and, in general, were simply conclusory statements that Trott committed fraud. 

As such, Perun’s allegations of fraud were not pleaded with particularity, and summary 

disposition was appropriate. Gurganus, slip op at 19-20; LaMothe, 214 Mich App at 586. 

 Summary disposition was also appropriate with regard to Perun’s innocent 

misrepresentation claim. “A claim of innocent misrepresentation is shown if a party 

detrimentally relies upon a false representation in such a manner that the injury suffered by that 

party inures to the benefit of the party who made the representation.” Unibar Maintenance 

Servs, Inc v Saigh, 283 Mich App 609, 621; 769 NW2d 911 (2009) (citation and quotation 

omitted). A plaintiff need not show that the defendant acted with fraudulent intent, but the 

plaintiff “must show that privity of contract existed between the plaintiff and the defendant.” Id. 

Here, Perun’s first amended complaint did not allege privity of contract between himself and 

Trott. Thus, his claim fails, and summary disposition was appropriate pursuant to MCR 

2.116(C)(8). 

B. LIBEL 

 Perun alleged that Trott committed libel by publishing notice of the foreclosure sale and 

his default, and that the publication reflected that he was a “deadbeat” who was unable to pay his 

bills. Perun’s libel claim required him to plead and prove: 

1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged 

communication to a third party, 3) fault amounting to at least negligence on the 

part of the publisher, and 4) either actionability of the statement irrespective of 

special harm or the existence of special harm caused by publication. [Collins v 

Detroit Free Press, Inc, 245 Mich App 27, 32; 627 NW2d 5 (2001).] 

 The trial court did not err by granting summary disposition on Perun’s libel claim. The 

record reveals documentary evidence noting a schedule of payments Perun failed to pay. In 

addition, the record reveals that he submitted a hardship affidavit in his attempt to obtain a loan 

modification and admitted therein that he was unable to afford his payments and that he was 
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either in default or that he would soon be in default. Perun did not refute this documentary 

evidence. Indeed, his affidavit did not even deny that he was in default, but stated that the 

default was “a direct result of the service’s [sic] errors misrepresentations and other 

deficiencies . . . .” Further, even to the extent that the statement in Perun’s affidavit noted above 

could constitute a denial that he was in default, “summary disposition cannot be avoided by a 

party’s conclusory assertions in an affidavit that conflict with the actual historical conduct of the 

party.” Bergen v Baker, 264 Mich App 376, 389; 691 NW2d 770 (2004). A party may not 

contradict previously submitted evidence in an 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). Perun’s conclusory affidavit that he was not responsible for his default could not be used 

to contradict a previous affidavit submitted in connection with his application for a loan 

modification. 

C. TORTIOUS INTERFERENCE 

 Perun alleged that Trott tortiously interfered with his contract and/or business expectancy 

with CMI, claiming that Trott’s conduct and misrepresentations prevented him from obtaining a 

loan modification meeting with CMI. “One who alleges tortious interference with a contractual 

or business relationship must allege the intentional doing of a per se wrongful act or the doing of 

a lawful act with malice and unjustified in law for the purpose of invading the contractual rights 

or business relationship of another.” Derderian v Genesys Health Care Sys, 263 Mich App 364, 

382; 689 NW2d 145 (2004) (citation and quotation omitted). 

 The documentary evidence presented in this case shows that Trott attempted to work with 

Perun in obtaining a loan modification. In response, Perun’s affidavit contains only generic 

allegations of misrepresentations and misconduct by Trott, without specifying the foundation for 

the claims. Perun’s unspecified, conclusory allegations were insufficient to create a genuine 

issue of material fact. SSC Assoc Ltd Partnership v Gen Retirement Sys, 192 Mich App 360, 

364; 480 NW2d 275 (1991) (explaining that conclusory allegations do not create a genuine issue 

of material fact). Further, Perun’s conclusory allegations fail to state how Trott interfered with 

any relationship he had with CMI. On this record, Trott was entitled to summary disposition 

pursuant to MCR 2.116(C)(10). 

D. SPECIFIC PERFORMANCE 

 Perun alleged that he was entitled to specific performance of the loan modification 

meeting. An action for specific performance may not be maintained when there is no obligation 

on the opposing party to perform. Bauer v Hobbs, 151 Mich App 769, 776; 391 NW2d 482 

(1986). In the present case, the evidence produced does not demonstrate the existence of any 

agreement with Trott that could be specifically performed. Consequently, we affirm the trial 

court’s grant of summary disposition, as there was no genuine issue of material fact and Trott 

was entitled to judgment as a matter of law on this claim. 

VI. DISCOVERY 

 Perun argues that the trial court erred by granting summary disposition before the close of 

discovery. We disagree. “Generally, summary disposition under MCR 2.116(C)(10) is 
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premature if it is granted before discovery on a disputed issue is complete.” Marilyn Froling 

Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 

234 (2009). However, an open period of discovery does not automatically render the trial court’s 

decision to grant summary disposition inappropriate or untimely. Id. The appropriate inquiry is 

whether there is a fair likelihood that further discovery will uncover support for the nonmoving 

party’s position. Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-34; 772 

NW2d 801 (2009). The party alleging that summary disposition is premature bears the burden of 

asserting or providing an evidentiary basis to support the factual dispute. VanVorous v 

Burmeister, 262 Mich App 467, 477; 687 NW2d 132 (2004); Village of Dimondale v Grable, 

240 Mich App 553, 567; 618 NW2d 23 (2000). A contention that additional discovery is 

warranted must be accompanied by an allegation of some independent evidence. Davis v 

Detroit, 269 Mich App 376, 379-380; 711 NW2d 462 (2005). “A mere promise that facts will be 

established is not sufficient.” VanVorous, 262 Mich App at 479. Similarly, “[m]ere conjecture 

does not entitle a party to discovery, because such discovery would be no more than a fishing 

expedition.” Davis, 269 Mich App at 380. “Without any assertion regarding what facts are 

disputed or likely to be uncovered by further discovery, allegedly incomplete discovery will not 

bar summary disposition.” VanVorous, 262 Mich App at 477. 

 Perun asserts that the need for additional discovery was supported by his affidavit, as 

well as independent evidence, including documentation from the Federal Reserve Bank and the 

Office of the Comptroller. However, he failed to specify what facts he hoped to establish 

through discovery. Perun’s conclusive statements are insufficient. He has not provided specific 

allegations of what additional evidence he expects will be produced in discovery. Accordingly, 

Perun has failed to meet his burden of showing a fair likelihood that further discovery will 

uncover support for his position. 

VII. THIRD AMENDED COMPLAINT AND RECONSIDERATION 

 Perun next argues that the trial court erred by failing to rule on his request to file a third 

amended complaint, which was attached to his motion for reconsideration. Because the 

proposed amendment would have been futile, this issue does not warrant appellate relief. 

 MCR 2.116(I)(5) provides that if the trial court grants summary disposition pursuant to 

MCR 2.116(C)(8), (9), or (10), “the court shall give the parties an opportunity to amend their 

pleadings as provided in MCR 2.118, unless the evidence then before the court shows that 

amendment would not be justified.” (Emphasis added.) The use of the term “shall” denotes 

mandatory action. Manuel v Gill, 481 Mich 637, 647; 753 NW2d 48 (2008). An amendment is 

not justified if it would be futile. Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 

127, 138; 676 NW2d 633 (2003). “A determination of futility must be based on the legal 

insufficiency of the claim on its face.” Id. at 139. “An amendment would be futile if (1) 

ignoring the substantive merits of the claim, it is legally insufficient on its face; (2) it merely 

restates allegations already made; or (3) it adds a claim over which the court lacks jurisdiction[.]” 

PT Today, Inc v Comm’r of the Office of Fin & Ins Servs, 270 Mich App 110, 143; 715 NW2d 

398 (2006) (citations omitted). 

 In the present case, amendment was not warranted because it would have been futile. 

Perun submitted a proposed amended complaint with his motion for reconsideration. A review 
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of that document reveals that it raises the same causes of action alleged in his previously filed 

complaint, but adds additional defendants. The recitation of the same claims with added parties 

is insufficient to warrant amendment. See id. (explaining that amendment would be futile when 

it merely restates the allegations already made). 

 Finally, Perun argues that the trial court abused its discretion by denying his motion for 

reconsideration. We disagree. “We review a trial court’s decision on a motion for 

reconsideration for an abuse of discretion.” Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 

629; 750 NW2d 228 (2008). A review of the motion for reconsideration reveals that it reasserted Perun’s previous claims, none of which had merit. Under these circumstances, the trial 

court did not abuse its discretion in denying the motion. Id. at 629-630. 

 Affirmed. 

/s/ Cynthia Diane Stephens 

/s/ Michael J. Talbot 

/s/ Jane M. Beckering