Jorden Chance Kulhanek v. Alan a Crawford ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JORDEN CHANCE KULHANEK, UNPUBLISHED
August 14, 2018
Plaintiff-Appellant,
v No. 341849
Saginaw Circuit Court
ALAN A. CRAWFORD and JOHN E. MELTON, LC No. 17-034163-NM
Defendants-Appellees.
Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.
PER CURIAM.
The circuit court summarily dismissed Jorden Kulhanek’s legal malpractice and fraud
claims against two attorneys he retained to represent him during a criminal proceeding. Those
attorneys secured a favorable plea agreement and lenient sentence for their client in exchange for
his testimony against a codefendant. Kulhanek failed to adequately plead his claims or to create
triable issues of material fact to place before a jury. Moreover, the circuit court did not clearly
err in determining that Kulhanek was aware of these deficiencies when he filed his complaint,
meriting sanctions. We affirm.
I. BACKGROUND
On November 6, 2015, Jorden Kulhanek and Isaac Bowling went on a vehicle breaking-
and-entering spree. Afterward, Bowling asked Kulhanek to drive him to a home in Chesaning.
Bowling entered alone, armed, and robbed the home with its elderly residents inside. Bowling’s
and Kulhanek’s roles in this heist were established by a series of text messages between the pair
and cell phone tower data placing them in the vicinity of the robbery at the right time. See
People v Bowling, unpublished per curiam opinion of the Court of Appeals, issued May 24, 2018
(Docket No. 336769), unpub op at 1-2. Kulhanek also admitted that the police found robbery
proceeds on his dresser.
On July 26, 2016, Kulhanek entered a guilty plea to one charge each of first-degree home
invasion, conspiracy to commit breaking and entering with intent to commit a larceny inside, and
breaking and entering with intent to commit a larceny inside, and three counts of felony-firearm.
Kulhanek promised to cooperate with the investigation and prosecution of Bowling. The
prosecutor noted that Kulhanek also gave information against other individuals for less serious
offenses that might lead to additional arrests. In exchange for his plea and cooperation, the
prosecutor dismissed an armed robbery charge and a fourth felony-firearm charge. The Midland
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County Prosecutor’s Office also agreed not to file charges for offenses committed in that county
on the night in question. And the court and the prosecution agreed to within-guidelines
sentences. At the plea hearing and under oath, Kulhanek indicated that no one had promised him
anything beyond that stated on the record, no one had threatened him, and that he was pleading
guilty voluntarily. He then indicated under oath that he served as the getaway driver and lookout
during the home invasion.
On August 30, 2016, Kulhanek moved to fire his retained attorney, John Melton, and hire
replacement counsel. In a letter to the court, Kulhanek indicated, “[M]y lawyer is
misrepresenting me. He’s talked me into taking this plea. He lead [sic] me to believe something
other then what’s happening. He had me say things I didn’t do to except [sic] this plea.”
At a hearing on September 12, 2016, the court granted Kulhanek’s motion and he
retained Alan Crawford in Melton’s stead. At the hearing, Melton indicated, “I’m not exactly
sure what happened. As far as I know, we were on the same page.” Kulhanek had apparently
notified the court in another letter that is not included in the lower court record that “he wanted
to withdraw his plea,” but that Melton had not filed the requested motion. The court asked
Kulhanek if he actually had talked to Melton about “wanting to withdraw [his] plea.” Kulhanek
indicated that he had not broached the subject with Melton “[b]ecause I - - I just thought about it,
and I talked to a lawyer about it [Crawford] . . . and he said he’s going to take my case.” The
court advised Kulhanek that only sentencing remained and that his sentence was dependent upon
his adherence to the plea agreement. The court further warned Kulhanek that it was not required
to grant his potential motion to withdraw his plea and that if it was granted, he would face new
consequences that he should discuss with counsel.
In October 2016, Kulhanek testified against Bowling at his criminal trial. That testimony
is summarized in this Court’s opinion affirming Bowling’s convictions. See Bowling, unpub op
at 1-2. After that trial, Crawford filed a sentencing memorandum on Kulhanek’s behalf,
requesting leniency given his otherwise clean record and cooperation.
At the outset of the sentencing hearing on November 1, 2016, the court noted, “You’ve
been handed a form explaining your right to appeal that includes a space for you to request a
lawyer. Your request for an attorney must be made within 42 days of today’s date.” Crawford
then asked the court to sentence Kulhanek leniently, citing Kulhanek’s otherwise clean record,
his cooperation with authorities, and his minimal role in the home invasion. Kulhanek stated
under oath that he took “full responsibility for [his] actions” and that he felt “terrible for what
happened.” Before sentencing Kulhanek, the judge reminded him that she had presided over
Bowling’s trial and heard Kulhanek “admit[] involvement in other car offenses, breaking-and-
enterings,” and that he had disposed of the weapon used by Bowling. Kulhanek’s minimum
sentencing guidelines range was 51-85 months and the court sentenced him to concurrent terms
of 70 months to 20 years for home invasion, 48 months to 10 years for conspiracy, and 36
months to 10 years for breaking and entering, to be served consecutively with three concurrent
two-year terms for felony-firearm.
Kulhanek did not request appellate counsel within 42 days as advised by the court and the
advice of rights form. Instead, he filed a delayed request on February 24, 2017. The trial court
denied the motion, noting that Kulhanek had signed the advice of rights form in court. Kulhanek
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then filed an in pro per motion to withdraw his guilty plea and requesting a hearing pursuant to
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973). In a follow-up brief, Kulhanek accused
Crawford of not giving him copies of the notice of appellate rights, transcripts, and other
documents, making him miss the 42-day deadline. The court treated Kulhanek’s filings as a
motion for reconsideration of his request for appellate counsel. The court denied the motion, but
provided Kulhanek with copies of the hearing transcripts, his sentencing information report, and
presentencing information report.
In Docket No. 338832, Kulhanek filed an in pro per delayed application for leave to
appeal his plea-based convictions and sentences. Kulhanek alleged that Melton rendered
ineffective assistance by waiving his right to a preliminary examination. He alleged that
Crawford rendered ineffective assistance by filing a sentencing memorandum on his behalf as
Kulhanek had hired Crawford to file a motion to withdraw his guilty plea and to remand to the
district court for a preliminary examination. Kulhanek then alleged that Crawford had promised
to file his request for appellate counsel and claim of appeal but failed to do so because
Kulhanek’s grandfather was unable to pay a retainer of $25,000. Kulhanek filed his delayed
request as soon as he learned of counsel’s inaction, he asserted. Kulhanek further requested this
Court to remand for a Ginther hearing. This Court ultimately denied Kulhanek’s application and
remand request. People v Kulhanek, unpublished order of the Court of Appeals, entered
December 11, 2017 (Docket No. 338832).
In the meantime, Kulhanek filed grievances against Melton, Crawford, and the prosecutor
who handled his criminal case with the Attorney Grievance Commission (AGC). Kulhanek
accused Melton of working with the prosecutor and the Michigan State police trooper in charge
of the investigation to file false charges against him. With the threat of these false charges,
Kulhanek continued, Melton, the prosecutor, and the trooper coerced him to make a false police
statement, take a “false” polygraph examination (which he failed), and then to give false
testimony against Bowling. Kulhanek complained that Crawford exceeded the scope of his
employment and filed a sentencing memorandum rather than motions to withdraw his guilty plea
and to remand to the district court for a preliminary examination. After Crawford was hired,
Kulhanek informed him that his police statement against Bowling was false, but Crawford
allegedly convinced him to testify falsely against Bowling at his October 2016 trial. Finally,
Kulhanek accused Crawford of withholding the appellate advice of rights form because he could
not pay $25,000, causing him to miss his appellate filing deadline.
The AGC declined to investigate Kulhanek’s complaints against Melton and Crawford,
stating that he should file an appeal claiming ineffective assistance of counsel. Kulhanek has not
provided to this Court his AGC complaint against the prosecutor. However, the AGC declined
to investigate that claim as well, noting that it is within the prosecutor’s discretion to charge
criminal defendants and that claims of prosecutorial misconduct should be reviewed by an
appellate court, not the AGC.
On August 31, 2017, Kulhanek filed a 23-page civil complaint against Melton and
Crawford, seeking $2 million in damages and alleging fraud and legal malpractice. Kulhanek
reiterated his accusation that Melton “worked in concert with” the police trooper to file “bogus”
charges against him. Melton then waived Kulhanek’s preliminary examination so the prosecutor
could file charges against him without probable cause and use those charges to “trick” Kulhanek
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into giving false testimony against Bowling. To support the negligence element of his legal
malpractice claim, Kulhanek alleged that Melton worked with the prosecutor to convince him to
lie “to improperly convict” Bowling. Kulhanek noted that Bowling might be entitled to a new
trial once the courts realized that his testimony was false. And Kulhanek cited his own injury as
being convicted and sentenced based on a false plea.
Kulhanek again alleged that he informed Crawford of Melton’s improper conduct and
that Crawford hid this information from the court. Instead of revealing Kulhanek’s false
statement, Crawford “forced” him to give perjured testimony at Bowling’s trial. Kulhanek
accused Crawford of committing fraud by filing a sentencing memorandum instead of filing a
motion to remand for a preliminary examination and to withdraw his plea. Kulhanek asserted a
claim of fraudulent concealment, claiming that Crawford denied him access to the courts by
failing to file his request for appointed appellate counsel within 42 days because he could not
afford Crawford’s requested $25,000 fee. This resulted in Kulhanek being denied counsel and
evidenced that Crawford “[p]lanned to prevent inquiry . . . or escape investigation” into his
presentation of his client’s false testimony against Bowling. As to the negligence required to
establish legal malpractice, Kulhanek cited Crawford’s failure to file a claim of appeal or to
move to have Kulhanek’s “illegal” plea withdrawn.
In lieu of an answer, Melton filed a motion for summary disposition pursuant to MCR
2.116(C)(8) and (10), in which Crawford joined. Melton described that he undertook “extensive
negotiations” with the prosecutor, after which Kulhanek signed a plea agreement and promised
to testify against Bowling. As a result of this plea, Kulhanek received reduced charges and “a
much lower sentence” for a serious felony. Kulhanek apparently recognized the benefit of this
bargain as he accepted the plea and testified against Bowling even after he fired Melton. And
Kulhanek’s longest minimum sentence was 70 months, less than six years, compared to
Bowling’s minimum 12-year sentence. Melton emphasized that by accusing his attorneys, the
prosecutor, and the trooper of collaborating to coerce him into making false statements,
Kulhanek implicated himself in two additional felonies: making a false statement to the police
and perjury. Even if Kulhanek did lie in his statements, Melton asserted that neither he nor
Crawford had any way to know that; only Kulhanek could know the truth of what happened that
night.
In relation to Kulhanek’s legal malpractice claim, Melton contended that Kulhanek had
alleged no negligence, only deliberate conduct: forcing him to lie. As deliberate conduct is
insufficient to establish negligence, Melton asserted that he was entitled to summary disposition
of the legal malpractice claim under MCR 2.116(C)(8). Melton argued that he was also entitled
to summary disposition under (C)(10) as Kulhanek had not come forward with any evidence to
prove that his attorneys coerced him into making a false statement. A plaintiff must do more
than pledge to come forward with evidence in response to a summary disposition motion, Melton
continued.
In relation to Kulhanek’s fraud counts, Melton argued that a plaintiff must plead those
claims with particularity. For example, Kulhanek would need to allege the time, place, and
content of his attorneys’ fraudulent statements and describe the benefit to the speaker. Kulhanek
failed in this regard.
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Finally, Melton asserted that Kulhanek’s civil complaint was completely frivolous. The
complaint was “a combination of a shakedown with the hopes of some quick cash and a vehicle
to lash out at his attorneys, who he blames for his current troubles.” The complaint, however,
was “completely devoid of arguable legal merit,” as Kulhanek well knew. Melton therefore
sought reimbursement of his costs in defending the action.
Kulhanek initially requested additional time to respond to Melton and Crawford’s joint
motion for summary disposition. Before the court could respond, however, Kulhanek filed his
brief in opposition. Kulhanek asserted that the trial court in his criminal case granted his motion
to fire Melton because his “representation so prejudiced [Kulhanek] as to deprive [him] of a fair
trial.” Kulhanek repeated that he hired Crawford to file a motion to remand to the district court
for a preliminary examination and to move to withdraw his plea but that Crawford filed a
sentencing memorandum instead. This amounted to negligence, Kulhanek asserted. Kulhanek
also repeated that Melton worked in concert with the police and the prosecutor to convince him
to waive his preliminary examination, to make a false police statement, and to falsely testify
against Bowling. For the most part, however, Kulhanek’s brief was a reiteration of his very
general complaint. And his affidavit was simply a copy of his brief in opposition to the summary
disposition motion that had been notarized.
On October 30, 2017, the court held a hearing on Kulhanek’s motion to extend time to
file a responsive brief. Both Crawford and Melton were present, but Kulhanek had not filed a
request to appear by phone or video conference from the prison. Noting that Kulhanek had
already filed a responsive brief, the court proceeded to consider Crawford’s and Melton’s
summary disposition request.
Melton described that in the early stages of Kulhanek’s criminal proceedings, “it became
pretty obvious” that the prosecutor would give one participant a deal if he cooperated. Melton
consulted with Kulhanek and then waived his preliminary examination to deny Bowling “a good
opportunity to testify against him.” Kulhanek then spoke to the police over multiple days.
“[T]here was more that came out during this proffer than I even knew about, and then he testified
against [Bowling] in both a preliminary examination and the trial.” Melton summarized that
Kulhanek now alleged that his police statement and testimony against Bowling at the preliminary
examination and trial were false, and that the prosecutor and Melton “worked together to
facilitate that.” However, Melton noted, Kulhanek never said, “on this date I met with Mr.
Melton and this is what he told me. This is how he gave me instructions on what to say so I
would know what to say on the stand, and then also explain how that even amounts to a cause of
action. . . .” This entitled Melton to summary disposition, he contended.
Crawford argued that he “was really on the case for the tail end strictly for the sentencing
portion” and that Kulhanek’s allegations “really just bl[ew] [his] mind.” Crawford opined that
Kulhanek was “disgruntled with the sentence he received,” but emphasized that Kulhanek had
been charged with a capital offense and his sentence “could have been worse.” Crawford
insisted that he never told Kulhanek to give false testimony and that he truly believed that
Kulhanek told the truth on the stand.
The court took the matter under advisement and eventually dismissed Kulhanek’s
complaint on December 21, 2017, 10 days after this Court denied Kulhanek’s delayed
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application for leave to appeal in his criminal matter. After outlining the facts, the circuit court
noted that the “thrust of” Kulhanek’s legal malpractice complaint was that his attorneys, the
prosecutor, and the investigating police trooper “conspired against [him] to ‘trick’ him into
falsely testifying against Bowling and to plead guilty to crimes that he did not commit.”
Kulhanek alleged that his attorneys “forced” him “to give a false recorded statement” to the
police, “to take a false polygraph,” and “to commit fraud on the court with his testimony and
guilty pleas.” However, the court noted, Kulhanek responded to his attorneys’ summary
disposition motion merely by reiterating the claims in his complaint.
The court noted that Kulhanek alleged that he was coerced into pleading guilty and
testifying against Bowling; however, Kulhanek “testified under oath in the hearing and at
Bowling’s trial that he was being voluntary and truthful.” The court ruled that Kulhanek failed
to state claims of legal malpractice against either Melton or Crawford. Rather, Kulhanek raised
claims of intentional conduct, not negligence.
While intentional conduct could form the basis of Kulhanek’s fraud claims, those claims
failed because Kulhanek did “not specify what material representations [Crawford and Melton]
allegedly made to garner [Kulhanek’s] false testimony.” The court further noted that a plaintiff
cannot establish a fraud claim when he had “ ‘means of knowledge regarding the truthfulness of
the representation.’ ” Webb v First of Mich Corp, 195 Mich. App. 470, 474; 491 NW2d 851
(1992). Kulhanek was “the only one who could have known whether his testimony in the
Bowling case and his plea were truthful.” Accordingly, the court reasoned, Kulhanek could not
reasonably rely on any misrepresentation by his attorneys.
The court further determined that Kulhanek had not shown that his attorneys caused his
injury. Crawford did not cause Kulhanek to lose his right to appeal as Kulhanek stated under
oath that he received and read the appellate advice of rights form. Kulhanek also indicated under
oath that he understood the terms of his plea agreement and understood that his cooperation
would lead to a minimum sentence within the guidelines. Kulhanek testified under oath that no
one threatened him and that he was not promised anything beyond that placed on the record at
his plea hearing. He then described that he acted as the getaway driver and lookout while
Bowling broke and entered into the subject home in Chesaning while the elderly residents were
inside. Kulhanek never identified which of his many statements were false.
The court further found that Kulhanek’s complaint was frivolous, meriting sanction.
Kulhanek could have no reasonable basis to believe that his claims were factually supported, the
court concluded.
Kulhanek now appeals, again without the representation of counsel.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de
novo. Wayne Co v Wayne Co Retirement Comm, 267 Mich. App. 230, 243; 704
NW2d 117 (2005). A motion under MCR 2.116(C)(8) “tests the legal sufficiency
of the complaint on the basis of the pleadings alone to determine if the opposing
party has stated a claim for which relief can be granted.” Begin v Mich Bell Tel
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Co, 284 Mich. App. 581, 591; 773 NW2d 271 (2009). We must accept all well-
pleaded allegations as true and construe them in the light most favorable to the
nonmoving party. Id. The motion should be granted only if no factual
development could possibly justify recovery. Id.
A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” Walsh v Taylor, 263 Mich. App. 618, 621; 689 NW2d 506
(2004). “Summary disposition is appropriate . . . if there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a
matter of law.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468
(2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers
the pleadings, admissions, affidavits, and other relevant documentary evidence of
record in the light most favorable to the nonmoving party to determine whether
any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich. App.
at 621. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West, 469 Mich. at 183. [Zaher v Miotke,
300 Mich. App. 132, 139-140; 832 NW2d 266 (2013).]
III. LEGAL MALPRACTICE
To establish a claim of legal malpractice, a plaintiff must show:
(1) the existence of an attorney-client relationship;
(2) negligence in the legal representation of the plaintiff;
(3) that the negligence was a proximate cause of an injury; and
(4) the fact and extent of the injury alleged. [Charles Reinhart Co v Winiemko,
444 Mich. 579, 585-586; 513 NW2d 773 (1994) (quotation marks and citation
omitted).]
As aptly determined by the circuit court in this case, Kulhanek failed to state a claim of
legal malpractice upon which relief could be granted because he failed to allege negligence.
“[T]his Court has rejected attempts to transform claims involving elements of intentional torts
into claims of gross negligence.” VanVorous v Burmeister, 262 Mich. App. 467, 483; 687 NW2d
132 (2004), citing Smith v Stolberg, 231 Mich. App. 256, 258-259; 586 NW2d 103 (1998); Sudul
v Hamtramck, 221 Mich. App. 455, 458, 477; 562 NW2d 478 (1997). In VanVorous, 262 Mich
App at 483, for example, the plaintiff attempted to transform her intentional tort claim into a
claim for gross negligence by asserting that the defendants breached their duty of care by
employing excessive force.
In Smith, 231 Mich. App. at 257, the plaintiff filed suit against an attorney who
represented his daughter-in-law in a custody battle. The plaintiff accused the defendant attorney
of pushing him into a bench at a court appearance. Id. The plaintiff raised claims of assault and
battery and ordinary negligence, but later amended his complaint to eliminate the intentional tort
claim. Id. The plaintiff’s negligence claim accused the defendant of breaching his duty “ ‘not to
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engage in disruptive behavior, not to speak to opposing parties in a case in which defendant is
engaged as counsel, and not to touch or strike members of the opposite parties’ family.’ ” Id. at
258-259. This claim essentially alleged an intentional, offensive touching, however, and not a
negligent act. Accordingly, this Court affirmed the trial court’s summary dismissal of the
plaintiff’s ordinary negligence count. Id. at 259.
Kulhanek alleged that Melton and Crawford intentionally undertook certain acts that
harmed him. Melton allegedly collaborated with the prosecutor and the investigating police
trooper to file false charges against Kulhanek, waived Kulhanek’s preliminary examination so
Kulhanek would not learn that the prosecutor lacked probable cause to charge him, and
knowingly advised Kulhanek to give false police statements and to testify falsely against
Bowling. Kulhanek asserted in his complaint that Melton exhibited “negligence in failing . . . to
have the . . . illegal plea[] withdrawn[].” But this was part and parcel of the course of intentional
conduct allegedly undertaken by Melton to force Kulhanek to testify falsely against Bowling.
Melton did not allegedly act with mere negligence in failing to seek withdrawal of the plea based
on the false statements intentionally coerced by Melton; Melton allegedly acted intentionally in
failing to seek withdrawal to cover up his prior intentional conduct. Accordingly, we discern no
error in the circuit court’s dismissal of Kulhanek’s legal malpractice claim against Melton.
As to Crawford, Kulhanek alleged that he was negligent in failing to file a direct appeal
and failing to move to withdraw Kulhanek’s illegal plea. However, the facts alleged by
Kulhanek depict an intentional failure to file a direct appeal. Specifically, Kulhanek alleged that
Crawford purposefully failed to file his signed notice of appellate rights and to request appellate
counsel on his behalf because Kulhanek’s family could not pay Crawford $25,000. Summary
disposition was therefore appropriate under MCR 2.116(C)(8).
Dismissal of Kulhanek’s claim against Crawford based on his failure to seek withdrawal
of his guilty plea was proper under MCR 2.116(C)(10). Kulhanek alleged that he hired
Crawford to move to withdraw his plea and to remand to the district court for a preliminary
examination. The trial court advised Kulhanek when he fired Melton that withdrawing his plea
could lead to dire consequences and that he should first discuss the issue with his new attorney.
The court also notified Kulhanek that the only step left in his criminal proceeding was
sentencing. Crawford stated in court that he was hired at the end of the case “strictly for the
sentencing portion,” contradicting Kulhanek’s version of events. Kulhanek never presented a
retainer agreement to rebut Crawford’s description of the services he was retained for and did not
swear in an affidavit that Crawford verbally agreed to seek withdrawal of his plea. Accordingly,
Kulhanek has not created a triable issue of fact that Crawford committed legal malpractice.
IV. FRAUD
Intentional conduct can be sufficient to support a claim of fraud, however. Kulhanek
appears to raise two types of fraud claims: fraud by concealment and fraud by misrepresentation.
Silent fraud, also known as fraudulent concealment, arises from suppression of the truth.
M & D, Inc v McConkey, 231 Mich. App. 22, 35-36; 585 NW2d 33 (1998). The term
“suppression” implies deliberate action. But fraud may also result from inaction or silence when
there is a duty to speak. In a claim for silent fraud, “the suppression of a material fact, which a
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party in good faith is duty-bound to disclose, is equivalent to a false representation.” Id. at 28-
29. Our Supreme Court has described silent fraud as a doctrine that has “long been recognized in
Michigan,” holding that “when there is a legal or equitable duty of disclosure,” fraud may arise
from “suppression of the truth” with “intent to defraud.” Titan Ins Co v Hyten, 491 Mich. 547,
557; 817 NW2d 562 (2012) (quotation marks and citation omitted).
To establish a claim of fraudulent misrepresentation:
[A] plaintiff must prove that (1) the defendant made a material representation, (2)
the representation was false, (3) the defendant knew that it was false when it was
made, or made it recklessly, without any knowledge of its truth and as a positive
assertion, (4) the defendant made the representation with the intention that the
plaintiff would act on it, (5) the plaintiff acted in reliance on it, and (6) the
plaintiff suffered injury because of that reliance. [Zaremba Equipment, Inc v
Harco Nat’l Ins Co, 280 Mich. App. 16, 38-39; 761 NW2d 151 (2008).]
The plaintiff must reasonably rely on the misrepresentation to support a fraud claim. Id. at 39.
“ ‘There can be no fraud where a person has the means to determine that a representation is not
true.’ ” Id. at 38, quoting Nieves v Bell Indus, Inc, 204 Mich. App. 459, 464; 517 NW2d 235
(1994).
Pursuant to court rule, fraud must be pleaded “with particularity.” MCR 2.112(B)(1).
This is a “heightened pleading standard.” State of Michigan ex rel Gurganus v CVS Caremark
Corp, 496 Mich. 45, 64; 852 NW2d 103 (2014). “General allegations will not suffice to state a
fraud claim.” LaMothe v Auto Club Ins Ass’n, 214 Mich. App. 577, 586; 543 NW2d 42 (1995).
“Because fraud must be pleaded with particularity and is not to be lightly presumed, but must be
clearly proved by clear, satisfactory and convincing evidence, trial courts should ensure that
these standards are clearly satisfied with regard to all of the elements of a fraud claim.” Cooper
v Auto Club Ins Ass’n, 481 Mich. 399, 414; 751 NW2d 443 (2008).
Here, Kulhanek alleged that Melton conspired with the prosecutor and the investigating
trooper to coerce or force him to commit fraud on the court, thereby committing fraud indirectly.
Kulhanek accused Melton of fraud in conspiring to bring “bogus” criminal charges against him.
Kulhanek asserted that Melton convinced him to waive his preliminary examination by telling
Kulhanek that he had not been able to reach a settlement with the prosecutor. And Kulhanek
accused both Crawford and Melton of fraudulently concealing from the court that they convinced
Kulhanek to give false testimony against Bowling.
The only representation cited by Kulhanek was Melton’s statement before the
preliminary examination that he had not yet “settled the case.” This statement was not false
when made. Kulhanek was bound over to the circuit court after waiving his preliminary
examination on March 21, 2016. The prosecutor and Melton did not reach a plea agreement to
place before Kulhanek until May 9.
Kulhanek implies that Melton and Crawford made other representations to convince him
to make a false police statement and to testify falsely against Bowling. These allegations are
insufficient to meet the particularity requirement of MCR 2.112(B)(1). Kulhanek has never
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explained what his attorneys said to convince him. He therefore failed to state an actionable
claim in this regard.
Kulhanek alleged that Crawford defrauded him by filing a sentencing memorandum
instead of seeking to withdraw his plea and remand to the district court for a preliminary
examination. However, the trial court in the criminal action advised Kulhanek that plea
withdrawal was not guaranteed and that he needed to discuss the issue with Crawford. Kulhanek
has not described any representation made by Crawford on the subject. Kulhanek proceeded to
testify against Bowling, implicitly reaffirming his acceptance of the plea agreement.
Accordingly, summary disposition of this claim was appropriate under both MCR 2.116(C)(8)
and (C)(10).
Kulhanek also accuses Melton and Crawford of fraudulently concealing from the court
that he lied under oath. Kulhanek has never identified which of his statements were false. He
has not claimed that he and Bowling were not the perpetrators of the subject offenses or that he
mischaracterized his role in his police statement or testimony. Kulhanek did not sufficiently
describe the information fraudulently concealed and therefore cannot state a claim for relief.
Finally, Kulhanek accused Crawford of fraudulently concealing that he did not file his
signed request for appellate counsel within the 42-day deadline. As noted by the trial court in the
criminal action, however, the court advised Kulhanek of this deadline on the record and provided
Kulhanek with an advice of rights form. Kulhanek could have personally given the signed form
to the court that day. Moreover, Crawford denied withholding services and Kulhanek did not
rebut that claim with an affidavit from his relatives or a document from Crawford requesting
$25,000 in exchange for his services. Summary disposition was therefore supported under MCR
2.116(C)(10).
V. SANCTIONS FOR FRIVOLOUS COMPLAINT
Kulhanek finally challenges the circuit court’s imposition of sanctions against him. We
review for clear error a trial court’s finding of frivolity. Kitchen v Kitchen, 465 Mich. 654, 661;
641 NW2d 245 (2002). “A finding is clearly erroneous when this Court is left with a definite
and firm conviction that a mistake has been made.” Johnson Family Ltd Partnership v White
Pine Wireless, LLC, 281 Mich. App. 364, 387; 761 NW2d 353 (2008). This standard is
deferential; “[t]o be clearly erroneous, a decision must strike us as more than just maybe or
probably wrong.” People v Cheatham, 453 Mich. 1, 30 n 23; 551 NW2d 355 (1996).
A party who raises frivolous claims is subject to sanctions, MCR 2.114(E), and can be
ordered to pay the other parties’ costs in defending against that complaint. MCR 2.114(F). See
also MCL 600.2591(1)-(2). A claim is deemed “frivolous” if
(i) The party’s primary purpose in initiating the action or asserting the defense
was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that
party’s legal position were in fact true.
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(iii) The party’s legal position was devoid of arguable legal merit. [MCL
600.2591(3)(a).]
As a general rule, courts hold complaints filed by in pro per litigants “to less stringent
standards than formal pleadings drafted by lawyers.” Haines v Kerner, 404 U.S. 519, 520; 92 S
Ct 594; 30 L. Ed. 2d 652 (1972). Even employing this standard, however, we cannot proclaim
that the circuit court clearly erred in finding Kulhanek’s complaint frivolous. Despite setbacks in
his postconviction motions and delayed application for leave to appeal in his criminal matter,
Kulhanek made no attempt to clarify or refine his challenges in his complaint. Indeed, Kulhanek
even responded to the summary disposition motion by merely repeating the claims in his
complaint with no greater specificity. Kulhanek’s legal malpractice claim was devoid of
arguable legal merit and his repeated general factual averments evidence the Kulhanek had no
reasonable basis to believe that he could support his claims with evidence. Kulhanek is therefore
not entitled to relief from the sanctions imposed against him.
We affirm. Defendants, as the prevailing parties, may tax costs pursuant to MCR
7.219(A).
/s/ William B. Murphy
/s/ Elizabeth L. Gleicher
/s/ Anica Letica
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