S Baxter Jones v. Esurance Insurance Co ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
S. BAXTER JONES, UNPUBLISHED
October 25, 2018
Plaintiff-Appellant,
v No. 339410
Wayne Circuit Court
ESURANCE INSURANCE CO., LC No. 15-015754-CZ
Defendant-Appellee.
Before: O’BRIEN, P.J., and K. F. KELLY and FORT HOOD, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition on grounds of res judicata. Because plaintiff failed to properly invoke the
trial court’s jurisdiction by filing a complaint, we vacate the trial court’s order and remand for
further proceedings consistent with this opinion.
This case arises out of an automobile accident that occurred in Shelby County, Kentucky
on August 8, 2005, between plaintiff, a Michigan resident, and Christopher K. Leet, a Kentucky
resident. Plaintiff filed a cause of action in Kentucky on July 25, 2007, in which it named
defendant and Leet as defendants, and sought “underinsured motorist benefits and uninsured
motorist benefits and personal injury protection benefits” from defendant. A lengthy litigation in
Kentucky ensued.
While the case in Kentucky was ongoing, plaintiff filed a complaint in Michigan on
January 22, 2013, seeking PIP benefits from defendant stemming from the 2005 Kentucky
accident. In the Michigan action, defendant moved for summary disposition, arguing that
dismissal was required under MCR 2.116(C)(6)1 because the ongoing litigation in Kentucky
included the same claim between the same parties. The case went before Judge Daphne Means
Curtis, who held a hearing on defendant’s motion on March 7, 2014. At the hearing, plaintiff’s
counsel represented that it was attempting to “transfer” the Kentucky case to Michigan, and
1
Under MCR 2.116(C)(6), summary disposition is appropriate if “[a]nother action has been
initiated between the same parties involving the same claim.” See Valeo Switches and Detection
Sys v ECom Inc, 272 Mich App 309, 319; 725 NW2d 309 (2006).
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asked that defendant’s motion be held in abeyance until “there is a determination made in
Kentucky.” Judge Curtis decided to take defendant’s motion “under advisement to see whether
or not the case from Kentucky is transferred here.” Over six months after Judge Curtis entered
this ruling, the parties had made no progress, so on September 25, 2014, Judge Curtis granted
defendant’s motion.
Nearly one year after Judge Curtis entered the order dismissing the Michigan action, the
Kentucky trial court entered an order “transferring” the Kentucky case to Michigan. The order
stated that its prior orders related to whether defendant was entitled to reimbursement of PIP
benefits were “VACATED, SET ASIDE, AND OF NO FURTHER EFFECT,” and that the
issues were to be decided “in the Wayne County Circuit Court after transfer.” It further ordered
that Michigan law applied “to all PIP issues between these parties” and that those issues were to
“be decided by the Wayne County Circuit Court, applying Michigan law in the Michigan
forum.” It also ordered that plaintiff’s “defenses to the statutory claim are preserved.” The order
also stated that plaintiff’s objections to an amended counter-complaint previously filed by
defendant were withdrawn, that the amended counter-complaint was accepted for filing, and that
plaintiff’s defenses to the counterclaim were preserved. The order also provided as follows:
IT IS FURTHER ORDERED that this updated Order and its rulings
concerning the applications of Michigan law to this dispute will apply to this case
after transfer to Wayne County and to the presently pending case in the State of
Michigan, Wayne County Circuit Court in Detroit and will be considered the law
of the case.
IT IS FURTHER ORDERED that the proper forum for further
proceedings is in the Wayne County Circuit Court in the State of Michigan.
IT IS FURTHER ORDERED that this action shall be transferred to the
State of Michigan, County of Wayne, before the Honorable Daphne Means Curtis,
the presiding Judge in the subsequently filed action for further proceedings.
IT IS FURTHER ORDERED that all claims in the action shall be
governed by and related: back to the filing date in the Kentucky action;
specifically July 25, 2007.
The case was then “transferred” to the Wayne County Circuit Court.
This “transfer” was filed in Michigan on December 4, 2015, and is the case now before
this Court. Although no new complaint was filed, the first entry in the Register of Actions reads
“Complaint, filed,” and beneath it states, “TRANSFER FILE FROM SHELBY CIRCUIT COURT,
KENTUCKY, CASE NO. 07-CI00449 ORDER TO CHANGE VENUE TO WAYNE COUNTY
CIRCUIT PER JUDGE CHARLES R. HICKMAN.” The “complaint” was a 789-page file
recording the eight years of litigation in Kentucky. This case was assigned to Judge Curtis.
Approximately 16 months after this complaint was filed—and following minimal discovery—
Judge Curtis entered a trial notice and final pretrial order on April 5, 2017. The case was then
reassigned to Judge Craig S. Strong.
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On May 1, 2017, defendants filed a motion for summary disposition. In its motion,
defendant argued that there was no basis to “transfer” this case from Kentucky to Michigan and,
therefore, the case must be dismissed. Defendant also argued that, based on Judge Curtis’s
September 2014 ruling dismissing the previously filed Wayne County case, res judicata applied
to plaintiff’s claims for PIP benefits prior to September 2014. Defendant walked through a res
judicata argument, and concluded that plaintiff’s claims for PIP benefits prior to September 2014
should be dismissed under MCR 2.116(C)(7).
In response, plaintiff argued that the transfer from Kentucky to Michigan was valid
because defendant consented to the transfer in Kentucky and “[t]he parties [were] bound by the
admissions and statements that have taken place in the Kentucky case.” Plaintiff also asserted
that venue was proper in Michigan based on MCL 600.1621. Plaintiff pointed out that defendant
“cited no law to assert that [the trial court] cannot accept a transfer of venue where the parties
have agreed to it by Order.” Finally, plaintiff argued that that the trial court should reject
defendant’s res judicata argument because Judge Curtis dismissed the earlier Michigan case “for
lack of jurisdiction,” which did not bar plaintiff’s claim.
The trial court held a hearing on defendant’s motion on June 29, 2017. At the hearing,
defendant reiterated its main argument: “The most important thing is, how does this case get
transferred from Kentucky to Michigan when it was a Kentucky State case? There is no basis for
that, your honor.” In response, plaintiff argued that venue in either Michigan or Kentucky was
proper, and that the transfer “can be looked at by Courts as far as a form of convenience.” In a
short ruling, the trial court did not address the transfer issue, but instead only decided the case on
res judicata grounds:
The Court notes that the plaintiff has already had the case dismissed in the State
of Michigan by Judge Curtis, claims of the 2013 PIP suit is exactly the same as
those being advanced in this case.
The doctrine of res judicata applies. The Court is going to grant the
motion.
The trial court entered an order granting defendant’s dispositive motion on July 11, 2017.
Plaintiff now appeals by right.
On appeal, the parties continue to argue the validity of the “transfer” from Kentucky to
Michigan. The trial court chose not to address this issue, but we believe that it is dispositive to
the issues raised on appeal.2 We conclude that this case could not be “transferred” from a
Kentucky state court to a Michigan state court, as there is no court rule or statute that would
authorize this procedure. We further conclude that the 789-page Kentucky file, that was
2
We consider the issue preserved because a party “should not be punished for the omission of
the trial court.” Dell v Citizens Ins Co of America, 312 Mich App 734, 752 n 40; 880 NW2d 280
(2015).
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accepted by the trial court on December 4, 2015, could not constitute a “complaint” and,
therefore, this case must be remanded to the trial court for further proceedings.
A central dispute between the parties on appeal is how to conceptualize this case. In
plaintiff’s view, this is the same case that was filed in 2007; it was transferred from Kentucky to
Michigan, and it should be considered as one fluid case. In defendant’s view, the Kentucky case
is distinct from the Michigan case; the Kentucky case was not “transferred” to Michigan, but
rather was refiled in Michigan, and the Michigan case is an entirely separate, new case.3
Only defendant’s view is tenable. To invoke a Michigan circuit court’s jurisdiction, a
party must file a complaint with the court. MCR 2.101; Galien Twp Sch Dist v Dep’t of Ed, 306
Mich App 410, 418; 857 NW2d 659, 663 (2014), vacated in part on other grounds 497 Mich 951(2015) (stating that the circuit court’s “jurisdiction is invoked by filing a complaint with the
court”). According to the Register of Actions, plaintiff’s “complaint”—which consisted of the
nearly 800-page Kentucky file—was filed in Michigan on December 4, 2015. That was when
this case commenced in Michigan; that the parties were litigating the same case in Kentucky
does not change that the case commenced in Michigan on December 4, 2015.4
Plaintiff contends that the stipulated order entered in Kentucky backdates the complaint
to when it was first filed in Kentucky. But, quite simply, the Kentucky trial court’s order cannot
have that effect. “In order to qualify for recognition under the Full Faith and Credit Clause, a
sister-state judgment must constitute a final judgment on the merits.” Hare v Starr
Commonwealth Corp, 291 Mich App 206, 216; 813 NW2d 752 (2011). Clearly, the Kentucky
order was not a final judgment on the merits. Rather, it was an order to have a Michigan court
issue a final judgment on the merits.
Even if the parties agreed to the order—which they dispute5—it is of no consequence.
The Kentucky court transferred the case based on a finding of forum non coveniens. In the
3
Questions of law are reviewed de novo. Shinkle v Shinkle, 255 Mich App 221, 224; 663 NW2d
481 (2003).
4
Under MCR 2.101(A), “[a] civil action is commenced by filing a complaint with a court.” The
rule does not specify that the court must be a Michigan court. But court rules, like statutes, must
be interpreted in context. In re Vary Estate, 401 Mich 340, 352; 258 NW2d 11 (1977). Once a
complaint is filed, the court clerk must issue a summons, MCR 2.102(A), and the summons must
be “In the name of the people of the State of Michigan,” MCR 2.102(B). Clearly, only Michigan
courts issue summons in the name of the people of Michigan, so only complaints filed in a
Michigan court can commence a civil action in Michigan.
5
It is not this Court’s place to make a finding of fact on this issue, but this Court has reviewed
the entire file from the parties’ litigation in Kentucky, and we note that nowhere in that file did
defendant object or otherwise contest the “transfer.” To the contrary, defendant represented that
it was unopposed to the “transfer” but would only agree if certain conditions were met, and all of
those conditions were included in the Kentucky court’s order.
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comments of the Restatement (Second) of Conflict of Laws § 84 regarding forum non coveniens,
it provides as follows:
e. Action taken when forum inappropriate. A court lacks power to transfer a case
to the courts of another state. For this reason, a court which finds itself to be an
inappropriate forum under the rule of this Section must dismiss the action
outright, or do so conditionally (as by requiring that the defendant stipulate to
accept service of process and not plead the statute of limitations in some second
state that is deemed a more convenient forum), or else stay the action pending
institution of suit and service of process upon the defendant in a more convenient
forum. [Restatement (Second) of Conflict of Laws § 84 (1971).]
The basic premise for this comment is that a court of one state lacks the inherent authority to
transfer a case to a sister-state, and it can only do so with statutory authority. See Leadford v
Leadford, 6 Cal App 4th 571, 574 n 4 (1992)6; United States v 11 Cases, More or Less, Ido
Pheno-Chon, 94 F Supp 925, 926 (D Or, 1950). Even if the Kentucky General Assembly
granted its courts the authority to transfer this case to Michigan, that alone would not be
enforceable on Michigan courts, and therefore is irrelevant. See Societe Nationale Industrielle
Aerospatiale v US Dist Court for S Dist of Iowa, 482 US 522, 556-557; 107 S Ct 2542; 96 L Ed
2d 461 (1987) (BLACKMUN, J., dissenting) (“Under the classic view of territorial sovereignty,
each state has a monopoly on the exercise of governmental power within its borders and no state
may perform an act in the territory of a foreign state without consent.”); Tennessee v Davis, 100
US 257, 267; 25 L Ed 648 (1879) (“Before the adoption of the Constitution, each State had
complete and exclusive authority to administer by its courts all the law, civil and criminal, which
existed within its borders.”). No Michigan statute or court rule allows a sister-state court to
transfer a case to a Michigan state court, nor do any statutes or court rules allow a Michigan
court to accept this type of transfer. There was simply no basis for the Kentucky court to transfer
a case to Michigan, and there is certainly no legal basis to consider this case, which was filed in
Michigan in 2015, the same case that was filed in Kentucky in 2007. Rather, if the parties
wanted to effectuate a “transfer” from Kentucky to Michigan, they needed to file a complaint in
Michigan in which they agreed in Michigan to the conditions in the Kentucky order. This is the
practice followed by courts throughout the United States.7
6
Cases from other jurisdictions, although not binding, may be persuasive. Hiner v Mojica, 271
Mich App 604, 612; 722 NW2d 914 (2006).
7
See, e.g., MacLeod v MacLeod, 383 A2d 39, 43-44 (Maine, 1978) (after concluding that Maine
was not the best forum for the action, ordering the case be stayed “conditioned upon acceptance
by the defendant” of service in the alternative forum, with the additional stipulation that the
defendant treat the action in the alternative forum as having been filed on the same date as the
Maine action); Silversmith v Kenosha Auto Transp, 301 NW2d 725, 729 (Iowa, 1981)
(dismissing action on the grounds of forum non conveniens, but placing “reasonable conditions
on the dismissal to insure that [the] plaintiff is not without a forum in which to litigate his
claim”); Shewbrooks v AC & S Inc, 529 So 2d 557, 562 (Miss, 1988), superseded by statute on
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At the trial court, after arguing that the transfer was legally impermissible, defendant
asserted that the case should be dismissed because “[t]here has never been a Complaint filed in
the State of Michigan for this case” and plaintiff otherwise failed to follow the court rules for
bringing a claim. Indeed, plaintiff never submitted a complaint to the circuit court. Instead, he
had the circuit court in Kentucky transfer the parties’ Kentucky case file—a 789-page file
documenting the eight years of litigation in Kentucky—to the Wayne County circuit court. The
file was clearly not intended as a “complaint”; plaintiff sought to have the entire case from
Kentucky transferred to Michigan, not to begin a new case in Michigan by filing a complaint.
Without filing a complaint, plaintiff did not invoke the circuit court’s jurisdiction. Galien, 306
Mich App at 418; MCR 2.101(B).
Nonetheless, we acknowledge that our court rules do not say that a party needs to intend
to file a “complaint” before doing so, and the circuit court labeled the 789-page file from
Kentucky a “complaint.” But because there was no legal basis for considering the Kentucky file
a “complaint” under our court rules, the circuit court erred by doing so.8
Under MCR 2.111(B)(1), a complaint must include “[a] statement of the facts, without
repetition, on which the pleader relies in stating the cause of action, with the specific allegations
necessary reasonably to inform the adverse party of the nature of the claims the adverse party is
called on to defend[.]” Like all pleadings, a complaint must conform to the signature and
verification requirements in MCR 2.114. See MCR 2.111(A).9 A complaint must also meet the
form requirements in MCR 2.113.10
other grounds (listing cases from various states, including Michigan, as examples of “the
overwhelming authority in this county [requiring] a defendant to waive the statute of limitations
before the court will grant a forum non conveniens transfer”); Foster v Chicago & N W Transp
Co, 102 Ill 2d 378, 385; 466 NE2d 198 (1984) (“Since the statute of limitations involved in this
case may have run, this disposition is conditioned on the defendant’s waiver of the statute of
limitations defense when the cause is transferred to another forum. If the defendant refuses to
waive the statute of limitations defense, then the plaintiff should be given leave to reinstate the
cause in the circuit court of Madison County.”); Norman v Norfolk & W Ry Co, 228 Pa Super
319, 328-329; 323 A2d 850 (1974) (recognizing that a state court may conditionally dismiss a
state-court action when applying forum non coveniens to assure filing in the sister state).
8
“This Court reviews interpretation of the court rules de novo.” Hyslop v Wojjusik, 252 Mich
App 500, 505; 652 NW2d 517 (2002).
9
Effective September 1, 2018, MCR 2.114 was repealed, and the signing and verification
requirements for MCR 2.111(A) are now provided in MCR 1.109(D)(3) and (E). See MCR
2.111(A) (as amended).
10
Effective September 1, 2018, MCR 2.113 was amended, and its requirements are now different
than they were when plaintiff filed his complaint. Compare MCR 2.113 with MCR 2.113 (as
amended).
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Here, the trial court considered the complaint to be the 789-page Kentucky file. “The
purpose of a complaint in a civil action is to state a cause of action and to allege facts with
‘sufficient particularity to reasonably inform the defendant of the nature of the cause of action.’ ”
Grievance Admin v Miller, 486 Mich 873, 879 (2010) (CORRIGAN, J., dissenting), quoting Steed
v Covey, 355 Mich 504, 510; 94 NW2d 864 (1959). “In general, the complaint or petition is
sufficient if its allegations state facts upon which the plaintiff relies for a recovery, and if it
adequately advises the defendant of the charge so as to enable him to prepare his defense.”
Steed, 355 Mich at 511 (quotation marks and citation omitted). The 789-page complaint cannot
be said to state facts with sufficient particularly or to adequately advise defendant of the charge
against it. The file is a meandering procedural history of a case that has involved numerous
parties, various allegations, and a number of rulings that have affected how the parties currently
stand. Yet nowhere in the 789-page file is there a statement of facts that explains this history and
alleges the charges that remain against defendant. Stated differently, in all of the almost 800
pages, there are no “allegations [that] state facts upon which . . . plaintiff relies for a recovery,”
nor anything that “adequately advises . . . defendant of the charge so as to enable [it] to prepare
[its] defense.” Id. (quotation marks and citation omitted). While it may be possible for
defendant to piece together the cause of action remaining against it by walking through each
page of the 789-page file, the file is full of duplicative documents and includes hundreds of
pages of materials not relevant to plaintiff’s claim against defendant. Clearly, plaintiff’s
“complaint” is not “[a] statement of facts without repetition,” and it lacks “specific allegations
necessary reasonably to inform” defendant of the nature of plaintiff’s claims. MCR 2.11(B)(1)
(emphasis added); see also Miller, 486 Mich at 879, quoting Steed, 355 Mich at 510 (a complaint
should “allege facts with ‘sufficient particularity to reasonably inform the defendant of the nature
of the cause of action.’ ”) (Emphasis added). Thus, considering plaintiff’s “complaint,” we
conclude that it was deficient.
Generally, when a complaint is deficient, the proper remedy is to dismiss the case without
prejudice to allow the plaintiff to file a proper complaint. See State Bar Grievance
Administrator v Jackson, 390 Mich 147, 156; 211 NW2d 38 (1973). But under the unique
circumstances of this case, we do not believe that remedy is sufficient. Instead, we remand this
case to the trial court with instructions for the court to order plaintiff, within a reasonable time, to
file a complaint that comports with the Michigan Court Rules. The specific time-limits for the
filing of the complaint shall be decided by trial court, in its discretion. If plaintiff seeks to toll
the date of the complaint’s filing, for instance by arguing that defendant agreed in Kentucky to
consider the complaint as having been filed in Michigan at an earlier date, the trial court is
directed to resolve those factual questions and make legal conclusions as necessary.
In the trial court, plaintiff argued that its complaint was not deficient because it did, in
fact, state its claim with sufficient particularity. It contended that its claim is stated in its
complaint that it filed in Kentucky, which was included in the 789-page Kentucky file. But this
is an entirely unreasonable interpretation of what should constitute plaintiff’s complaint. The
document that plaintiff refers to is at page 786 of the 789-page file, meaning that defendant
would have had to go through the entire file to reach the “complaint.” Included in the 789-page
file is another document labeled “amended complaint,” and it is unclear why plaintiff’s original
complaint should be his “complaint” when plaintiff clearly believed that the original complaint
was insufficient and needed to be amended. Even considering the complaint championed by
plaintiff, that complaint lists Leet as a defendant—which he is not—and plaintiff previously
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agreed to not pursue any additional recovery against Leet. The complaint is also signed by a
Kentucky attorney who has never been an attorney of record in this Michigan case, see MCR
2.114(C)(1),11 it lists the court as the Shelby Circuit Court of Kentucky without reference to the
proper case number, see MCR 2.113(C),12 and it includes numerous other flaws in its form as
applicable to a complaint filed in Michigan, see generally MCR 2.113.13
Because plaintiff did not file a proper complaint, he failed to invoke the circuit court’s
jurisdiction. See Galien, 306 Mich App at 418. Without jurisdiction, any order that the trial
court entered was void. See Reed v Yackell, 473 Mich 520, 548; 703 NW2d 1 (2005). We
therefore vacate the trial court’s order granting defendant’s motion for summary disposition.
We vacate the trial court’s order granting defendant’s motion for summary disposition
and remand this case to the trial court for proceedings consistent with this opinion. Neither party
may tax costs under MCR 7.219 because neither party prevailed in full. We do not retain
jurisdiction.
/s/ Colleen A. O'Brien
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
11
Although MCR 2.114 was repealed, a document must still be signed by “at least one attorney
of record” if the party is represented by counsel. See MCR 1.109(E)(2).
12
Although MCR 2.113 was amended, a document filed with the court must still contain a
caption stating the name of the court and the case number. See MCR 2.113(A); MCR 1.109(D).
13
The form requirements for a complaint must now meet the standards in MCR 1.109(D), see
MCR 2.113(A) (as amended), which plaintiff’s “complaint” does not.
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