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STATE OF MICHIGAN COURT OF APPEALS

ALFRED L. RIDDLE, Plaintiff-Appellee, v EVERHOME MORTGAGE COMPANY, Defendant-Appellant, and TROTT & TROTT, P.C., Defendant.

UNPUBLISHED December 15, 2009

No. 286395 Calhoun Circuit Court LC No. 2007-002064-CH

Before: Beckering, P.J., and Cavanagh and M.J. Kelly, JJ. PER CURIAM. Defendant Everhome Mortgage Company appeals as of right the trial court's order that voided and set aside the sheriff's sale of plaintiff Alfred L. Riddle's property. Plaintiff's property was sold in a sheriff's sale after he failed to pay escrow and other amounts due. We reverse and remand. I Defendant first argues that it was entitled to summary disposition pursuant to MCR 2.116(C)(8) because the complaint filed by plaintiff to initiate this action contained a different description of the property than found in the mortgage and sheriff's sale deed and the mortgage was not attached to the complaint. Defendant also argues that because plaintiff defaulted on the mortgage according to its terms, summary disposition was appropriate pursuant to MCR 2.116(C)(10), as there was no genuine issue of material fact. In addition, because plaintiff did not respond to defendant's motion, he failed to identify a genuine issue of material fact by admissible documentary evidence. A trial court's decision on a motion for summary disposition is reviewed de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. See Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). -1-

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Dolan v Continental Airlines, 454 Mich 373, 380; 563 NW2d 23 (1997). All well-pleaded factual allegations are accepted as true and construed in the light most favorable to the nonmovant. Wade v Dep't of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). However, "the mere statement of a pleader's conclusions, unsupported by allegations of fact, will not suffice to state a cause of action." ETT Ambulance Service Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498 (1994). A motion under MCR 2.116(C)(8) may be granted only where the claims alleged "are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Wade, supra at 163. When an action is based on a written contract, a copy of the contract generally must be attached to the complaint, and it becomes part of the pleadings and may be considered in deciding a motion for summary disposition based on the failure to state a claim. MCR 2.113(F); Laurel Woods Apartments v Roumayah, 274 Mich App 631, 635; 734 NW2d 217 (2007). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(10) where the proffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4); Coblentz, supra at 568. A genuine issue of material fact exists when the record, viewed in the light most favorable to the nonmoving party, leaves open an issue upon which reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). In evaluating a motion for summary disposition brought under this subsection, we consider affidavits, pleadings, depositions, admissions and other evidence submitted by the parties. MCR 2.116(G)(5). The moving party must specifically identify the matters that have no disputed factual issues, and has the initial burden of supporting his or her position by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b), (4); Coblentz, supra at 569. The party opposing the motion then has the burden of showing by evidentiary materials that a genuine issue of disputed fact exists, MCR 2.116(G)(4); Coblentz, supra, and the factual issue in dispute must be material to the dispositive legal claims, Auto Club Ins Ass'n v State Automobile Mut Ins Co, 258 Mich App 328, 333; 671 NW2d 132 (2003). Also, the existence of a disputed fact must be established by substantively admissible evidence, although the evidence need not be in admissible form. MCR 2.116(G)(6); Maiden, supra at 121, 124 n 6. Contract interpretation is a question of law, which is reviewed de novo on appeal. Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006). This state's courts . . . enforce contracts according to their terms, as a corollary to the parties['] liberty to enter into a contract. We examine contractual language and give the words their plain and ordinary meanings. An unambiguous contractual provision reflects the parties['] intent as a matter of law, and "[i]f the language of the contract is unambiguous, we construe and enforce the contract as written." Courts may not create ambiguity when contract language is clear. Rather, this Court must honor the parties' contract, and not rewrite it. [Reicher v SET Enterprises, Inc, 283 Mich App 657, 664-665; 770 NW2d 902 (2009) (citations omitted).] Finally, because the trial court's decision is predicated on the notion of waiver, we noted that "[w]aiver is a mixed question of law and fact. The definition of a waiver is a question of

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law, but whether the facts of a particular case constitute a waiver is a question of fact. A trial court's findings of fact are reviewed for clear error." Sweebe, supra (citations omitted). The complaint alleged that the property at issue was located in the Northwest

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