Michael Townsend v. Deondre Esters ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL TOWNSEND, UNPUBLISHED
January 19, 2023
Plaintiff-Appellant,
and
MERCYLAND HEALTH SERVICES, PLLC,
Intervening Plaintiff,
v No. 358570
Wayne Circuit Court
DEANDRE ESTERS, STEPHEN DAVID LC No. 19-005072-NI
CAMPAU, DMCARE EXPRESS, INC, HORACE
MANN PROPERTY AND CASUALTY
INSURANCE COMPANY,
Defendants-Appellees.
Before: HOOD, P.J., and CAMERON and GARRETT, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting the motion to enforce a settlement agreement
in favor of defendant, Horace Mann Property and Casualty Insurance Company (“Horace Mann”).1
We affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This case arises from a May 21, 2018 automobile accident in Detroit, Michigan. Plaintiff
alleged he was severely injured after his vehicle was rear-ended in a multi-vehicle collision. He
filed the complaint in this case alleging, among other things, negligence against the other drivers
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Though defendants Deandre Esters and Stephen David Campau are named in this appeal, the
issues raised on appeal only involve defendants DMCare Express, Inc. and Horace Mann.
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and their proxies. The complaint also sought first-party personal injury protection (PIP) benefits
against his automobile insurer, Horace Mann.
Plaintiff settled his claims against defendants Deandre Esters, Stephen David Campau, and
DMCare Express, Inc. Some months later, Horace Mann and plaintiff’s counsel entered settlement
negotiations. They apparently reached an agreement, but the agreement was not reduced to
writing. In the following months, plaintiff’s counsel informed Horace Mann that plaintiff would
not sign the agreement. Horace Mann moved the trial court to enforce the settlement agreement.
At the hearing on the motion, plaintiff’s counsel indicated that although plaintiff would not agree
to sign the agreement, plaintiff authorized counsel to sign the agreement in his stead. The trial
court granted the motion. This appeal followed.
II. PRESERVATION AND STANDARD OF REVIEW
An issue is preserved if it is raised in the trial court. Peterman v State Dep’t of Natural
Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). Plaintiff makes a number of arguments on
appeal, none of which were raised in the trial court. Therefore, none of plaintiff’s arguments are
preserved for review. Id. Unpreserved claims of error are reviewed for plain error affecting
substantial rights. Henderson v Dep’t of Treasury, 307 Mich App 1, 9; 858 NW2d 733 (2014).
To show plain error, a party must demonstrate: “(1) that an error occurred, (2) that the error was
plain, and (3) that the plain error affected [the party’s] substantial rights. The third factor requires
[the party] to show [they were] prejudiced by the error such that it affected the outcome of the
proceedings . . . .” Id. (quotation marks and citations omitted).
III. LAW AND ANALYSIS
As an initial matter, we must clarify the nature of plaintiff’s arguments on appeal. Plaintiff
does not deny that he authorized his attorney to sign the settlement agreement in his stead. Nor
does he challenge the validity or the enforceability of the settlement agreement with Horace Mann.
Rather, he challenges the effect of the settlement agreement on his rights to further adjudicate this
case. Although we address all the arguments, we conclude that they lack merit.
Plaintiff first argues that the settlement agreement with Horace Mann deprived him of his
constitutional right to a jury trial. The Michigan Constitution guarantees the right to a trial by jury
in certain circumstances. New Prod Corp v Harbor Shores BHBT Land Dev, LLC, 308 Mich App
638, 645; 866 NW2d 850 (2014), citing Const 1963, art 1, § 14. However, a party may also waive
their right to a jury trial. See In Nestorovski Estate, 283 Mich App 177, 193; 769 NW2d 720(2009) (“The right to a jury trial . . . may be waived. So, also, may the right to litigate be waived.”)
(quotation marks and citation omitted). The settlement agreement terminated plaintiff’s right to a
jury trial against Horace Mann. Because plaintiff does not challenge the validity of the settlement
agreement, we presume the agreement is valid and, by enacting the settlement agreement, plaintiff
voluntarily relinquished his right to a jury trial. Thus, there is no plain error in the trial court’s
failure to preserve plaintiff’s right to a jury trial.
Next, plaintiff contends that Horace Mann failed to pay certain expenses it was obligated
to cover. It is impossible for this Court to analyze the issue because the record is silent with regard
to Horace Mann’s payments for PIP benefits. Furthermore, because plaintiff settled this case in
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exchange for the release and “forever discharge” of any claims against Horace Mann, it is not
evident how Horace Mann’s failure to make any discrete payments in the past would be actionable
now. As such, this argument has no merit.
Plaintiff also claims that the trial judge was biased against him as evidenced by the judge’s
attempt to coerce him into settling his case against Horace Mann. There is no evidence as to what
was said during this conversation except for a reference in plaintiff’s supplemental response to
Horace Mann’s motion to enforce the settlement in which plaintiff stated, “Counsel has informed
Plaintiff that should he continue to refuse to sign, the Court advised that this matter would be
dismissed.” A party claiming judicial bias must overcome a heavy presumption of judicial
impartiality. Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 597; 640 NW2d 321 (2001).
Aside from generally asserting judicial bias, plaintiff presents no evidence of the same. He further
claims that the trial court should have told plaintiff’s counsel that plaintiff wanted to take this case
to trial, but he offers no authority for this position. Therefore, both of plaintiff’s challenges to the
trial court’s actions fail.
Plaintiff suggests he was denied the effective assistance of counsel because counsel did not
assert his desire to proceed to trial. The right to trial generally only attaches to criminal
proceedings, not purely civil proceedings, as is the case here. US Const, Am VI; Const 1963, art
1, § 20; see also United States v $100,375 in US Currency, 70 F3d 438, 440 (CA 6, 1995). Instead,
any remedy plaintiff would have against his counsel would be a malpractice action—which
plaintiff does not raise.
Finally, plaintiff argues that the trial court erred by failing to force DMCare Express, Inc,
to provide plaintiff with a copy of the insurance policy covering defendant Campau. Although
plaintiff asserts he “should” have been provided a copy of this policy, plaintiff provides no
authority for this proposition. Accordingly, there is no plain error affecting plaintiff’s substantial
rights in the trial court’s failure to order a copy of the insurance policy.
Affirmed.
/s/ Noah P. Hood
/s/ Thomas C. Cameron
/s/ Kristina Robinson Garrett
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