Nashat M Butrus v. Jamal Yaqoo Joka ( 2024 )

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
ILHAM FARAJ KHAMMU, UNPUBLISHED
August 1, 2024
Plaintiff-Appellant,
and
NASHAT M. BUTRUS,
Plaintiff
v No. 366163
Oakland Circuit Court
JAMAL YAQOO JOKA and OMEGA REHAB LC No. 2020-183229-NI
SERVICES LLC,
Defendants-Appellees.
Before: GADOLA, C.J., and PATEL and YOUNG, JJ.
PER CURIAM.
In this automobile-negligence and owner-liability action, plaintiff appeals as of right the
trial court’s order dismissing plaintiff’s claims on the basis of judicial estoppel, and its order
denying plaintiff’s motion for reconsideration. We reverse and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
On September 12, 2017, plaintiff was a passenger in a medical transportation van owned
by defendant, Omega Rehab Services, LLC, and operated by defendant, Jamal Yaqoo Joka. Joka
was traveling eastbound on Quarton Road when the van was involved in a collision at the
intersection of Wing Lake Road with a vehicle operated by James Studinger. At the time of the
collision, Studinger was driving southbound on Wing Lake Road. Traffic on Wing Lake Road
was governed by a stop sign at the intersection. There were no traffic control devices for traffic
on Quarton Road. The investigating officer determined that Studinger failed to yield and was at
fault for the accident. No fault was assigned to Joka. Plaintiff sustained injuries as a result of the
accident.
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Following the accident, plaintiff filed a negligence action against Studinger. 1 Studinger
filed a notice of non-party fault identifying Joka and Omega Rehab as having fault in the accident.
Plaintiff did not amend her complaint to add either Joka or Omega Rehab as party defendants. The
parties agreed to submit the claim to binding arbitration. Plaintiff argued in her arbitration
summary that Studinger was at fault for the accident. She asserted that Joka “was proceeding
cautiously and at or below the speed limit on Quarton Road . . . .” Plaintiff contended “there was
no evidence or testimony of any kind that [Joka] was speeding.” Plaintiff attacked Studinger’s
testimony that he did not see the Omega Rehab van before the collision, emphasizing that
Studinger was blind in his right eye and maintaining that his blindness affected his ability to
observe the Omega Rehab vehicle approaching the intersection from his right side. Plaintiff
refused to attribute any fault to Joka, stating:
Despite having every reason to pin partial blame on the driver of her commercial
vehicle expanding the pool of money that she could obtain from these catastrophic
injuries sustained in this accident, Plaintiff testified that the operator of the
transportation van did nothing wrong. Plaintiff testified that she was seated behind
the front passenger seat and did not see the actual impact.[2] She further testified
that she was seat belted in a lap and shoulder belt.
Plaintiff argued that none of the eyewitnesses testified that Joka was speeding. In addition
to her own testimony, plaintiff quoted her son’s testimony, wherein he steadfastly maintained that
the van was traveling 25 miles per hour at the time of the impact. When Butrus was asked how he
knew the van’s speed, he stated, “Each time we enter a new road I tell the driver the speed limit.”
Butrus denied that Joka exceeded 25 miles per hour on Quarton, stating that Joka “adheres to the
speed limit.” Butrus further claimed that the accident “happened so quickly [Joka] couldn’t avoid
it.”
Plaintiff also relied on Joka’s testimony. Joka testified that he was traveling “between 20
to 25” miles per hour when he first observed Studinger’s vehicle. Joka contended that he braked
and veered to the right, but was unable to avoid the collision. Joka testified that he had “only
seconds” to react to the “very sudden” appearance of Studinger’s vehicle.
Plaintiff further argued in her arbitration summary that she was “forced to retain” Timothy
Robbins, an accident reconstruction expert, to establish liability because Studinger “hired a bought
and paid for accident reconstruction expert, Larry Peterson [,] to dispute liability . . . .” Plaintiff
asserted that Robbins criticized Petersen’s opinion because he failed to present any mathematical
computations or “scientific support for his speed estimations and biomechanical conclusions.”
Plaintiff stated that Robbins concluded that Studinger was “extremely negligent and reckless and
the sole cause of the accident.”
1
Plaintiff’s adult son, Nashaat Butrus, who was a front seat passenger in the Omega Rehab van at
the time of the accident, was also a party plaintiff in that action.
2
Plaintiff was asked in her deposition if she could see the speedometer of the Omega Rehab vehicle
from where she was seated. She responded, “No I couldn’t tell but it wasn’t going fast.”
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Studinger argued in his arbitration summary that he was not negligent. He maintained that
he brought his vehicle to a complete stop and confirmed that no traffic was approaching before he
entered the intersection. Studinger asserted that his vehicle cleared the westbound lane of Quarton
without incident and only the back half of his vehicle was in the eastbound lane when it was struck
by the Omega Rehab van. Studinger argued that, despite the testimony of Butrus and Joka that
there were no vision obstructions on Quarton Road, there was a “rise or hill” on Quarton Road
approximately 420 feet from the intersection that obscured the Omega Rehab van from Studinger’s
view before he proceeded into the intersection. Relying on Petersen’s report, Studinger contended
that Joka was operating the Omega Rehab van at a speed greater than 45 miles per hour at the time
he braked. Because the speed limit was 25 miles per hour, Studinger argued that Joka forfeited
any right-of-way he may have otherwise had.
The arbitrators entered an award in favor of plaintiff. Thereafter, plaintiff commenced this
action against Joka and Omega Rehab.3 Defendants filed a notice of non-party fault identifying
Studinger as having fault in the accident. Although plaintiff retained Robbins as her accident
reconstruction expert in her action against Studinger, she disclosed that she intended to rely on
Petersen’s opinion in support of her claim against Joka.
Following discovery, defendants moved to strike Petersen, arguing that his opinions were
based on unreliable speculation. Defendants further argued that they were entitled to summary
disposition under MCR 2.116(C)(10) if the expert was struck because there was no genuine issue
of material fact that defendants were not negligent. Defendants asserted that Petersen’s opinion
about Joka’s speed was based on estimated variables and assumptions, and was not based on facts.
And while Petersen stated that he relied on “published accident reconstruction methodologies” to
support his conclusions, defendants maintained that Petersen “recited mere generalities of books
he may have read, classes he may have taken, and his experience in general.” Defendants argued
that Petersen ignored pertinent facts in reaching his conclusions. For example, Petersen did not
take into account that Studinger is blind in his right eye, or that Studinger testified that he looked
right and left, but did not look for oncoming traffic again when he entered the roadway.
Defendants further asserted that Robbins and defendants’ accident reconstruction expert both
testified that there was no basis in fact or science for Petersen’s speculative opinions. Finally,
defendants maintained that none of the lay witnesses testified that Joka was speeding.
Plaintiff argued that Petersen’s testimony was admissible under MRE 702 and MCL
600.2955. Plaintiff maintained that Petersen’s opinions regarding Joka’s speed were supported by
facts and data and based on his scientific knowledge, expertise, skill, training, and education in
accident reconstruction. Plaintiff asserted that Petersen applied proper scientific principles and
reliable methodology to determine that Joka was traveling at a speed greater than 25 miles per
hour. Plaintiff contended that Peterson’s testimony, along with Studinger’s and Joka’s testimony,
established a genuine issue of material fact whether Joka’s speed caused or contributed to the
accident and thus summary disposition was not warranted.
At the hearing on defendant’s motion, the trial court sua sponte raised the issue whether
the doctrine of judicial estoppel barred plaintiff’s claims. Because the issue was not raised in
3
Butrus was also a party plaintiff, but his claims were resolved.
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defendants’ motion, the trial court afforded the parties an opportunity to submit supplemental
briefing. Following the supplemental briefing, the trial court determined that plaintiff’s claims
were barred by the doctrine of judicial estoppel and struck Petersen’s report and testimony. The
trial court stated that “[t]he arbitration panel found Studinger 100% at fault and awarded Ms.
Khammu $425,750.00 in damages.” The court concluded:
Plaintiff has successfully and unequivocally asserted a position as it relates to fault
and negligence in the prior proceeding and now seeks to assert an inconsistent
position in this subsequent proceeding. The Court is satisfied the arbitration panel
that heard Plaintiff’s 2017 action accepted Plaintiff’s position regarding fault,
negligence, and damages as true, and ruled accordingly, in light of the panel’s
arbitration award, in Plaintiff’s favor. Additionally, the Court finds Plaintiff’s
reversal of position regarding the instant Defendants’ contribution to the accident
resulting in Plaintiff’s injury, in light of Plaintiff’s assertions in case number 2017-
161555-NI and the instant case, are wholly inconsistent. Spohn[ v Van Dyke Pub
Sch, 296 Mich App 470; 822 NW2d 239 (2012)]. To the extent Plaintiff wished
for legal consideration of Defendants Joka and Omegas’ alleged contribution to the
accident, those matters should have been addressed in the 2017 action wherein
Plaintiff specifically alleged a different party (Mr. Studinger) was entirely at fault
for her damages. Specifically, the notion that Mr. Studinger’s expert witness, Mr.
Petersen, who Plaintiff then argued as not credible and incorrect in his assessment
of the accident in the 2017 case (and in the accompanying arbitration proceedings),
cannot now be the supporting basis for a new recovery stemming from the same
accident. Id.Based on the above, the Court finds it appropriate to bar Plaintiff’s claim
under the doctrine of judicial estoppel. As such, the Court strikes Mr. Petersen’s
report and testimony from being asserted by Plaintiff in the instant matter, Spohn,
supra, Wolverine Power [Coop v DEQ, 285 Mich App 548; 777 NW2d 1 (2009)],
as it finds Plaintiff's reliance on that report is wholly inconsistent with her position,
on which she prevailed, in case number 2017-161555-NI. Id.Plaintiff filed a timely motion for reconsideration, which included a new piece of evidence:
a supplemental exhibit from plaintiff’s arbitration summary that contained a summation of the
$1,000,000 in damages she sought in the arbitration proceeding. For purposes of the motion,
plaintiff conceded that she unequivocally took the position in the arbitration proceedings that Joka
was not at fault for the accident, but argued that she was permitted to assert alternative positions.
Plaintiff maintained that there was no evidence that the arbitrators found Studinger 100% at fault.
Plaintiff contended that the fact that the arbitrators awarded her less than half of the amount of
damages she requested demonstrated that she was not completely successful in her prior arguments
against Studinger. The trial court denied plaintiff’s motion, concluding that that plaintiff had
presented the same issues already ruled on by the court and that plaintiff had failed to demonstrate
a palpable error by which the court and parties were misled. This appeal followed.
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II. STANDARDS OF REVIEW
A trial court’s decision regarding whether to admit expert witness testimony is reviewed
for an abuse of discretion. Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). “An
abuse of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” Id. “A trial court necessarily abuses its discretion when it makes an error
of law.” Pirgu v United Servs Auto Ass’n, 499 Mich 269, 274; 884 NW2d 257 (2016).
We review for clear error a trial court’s findings of fact relative to the doctrine of judicial
estoppel and review de novo determinations regarding the application of the equitable doctrine.
Szyszlo v Akowitz, 296 Mich App 40, 46; 818 NW2d 424 (2012). Under the “clear error” standard,
“the appellate court must defer to the trial court’s view of the facts unless the appellate court is left
with the definite and firm conviction that a mistake has been made by the trial court.” Herald Co,
Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 472; 719 NW2d 19 (2006).
A trial court’s decision on a motion for summary disposition is also reviewed de novo. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary
disposition under MCR 2.116(C)(10) is warranted when “[e]xcept as to the amount of damages,
there is no genuine issue as to any material fact, and the moving party is entitled to judgment or
partial judgment as a matter of law.” MCR 2.116(C)(10). When reviewing a motion for summary
disposition under MCR 2.116(C)(10), we must consider the evidence submitted by the parties in
the light most favorable to the non-moving party. El-Khalil, 504 Mich at 160. But we will
consider only “what was properly presented to the trial court before its decision on the motion.”
Pena v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). “A genuine issue
of material fact exists when the record leaves open an issue upon which reasonable minds might
differ.” El-Khalil, 504 Mich at 160 (cleaned up). If there is a genuine issue of material fact,
dismissal is inappropriate. Id.
Finally, a trial court’s decision on a motion for reconsideration is reviewed for an abuse of
discretion. Farm Bureau Ins Co v TNT Equip, Inc, 328 Mich App 667, 672; 939 NW2d 738 (2019).
III. ANALYSIS
Plaintiff argues that the trial court erred by granting summary disposition to defendants
based on the application of judicial estoppel and denying plaintiff’s motion for reconsideration.
We agree.
“Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing
in one phase of a case on an argument and then relying on a contradictory argument to prevail in
another phase.” Spohn v Van Dyke Pub Sch, 296 Mich App 470, 479; 822 NW2d 239 (2012)
(cleaned up). Michigan follows the “prior success model” of judicial estoppel, which provides
that, “ ‘a party who has successfully and unequivocally asserted a position in a prior proceeding is
estopped from asserting an inconsistent position in a subsequent proceeding.’ ” Paschke v Retool
Indus, 445 Mich 502, 509; 519 NW2d 441 (1994) (emphasis in original), quoting Lichon v
American Univ Ins Co, 435 Mich 408, 416; 459 NW2d 288 (1990). Under this model, a party’s
“mere assertion of inconsistent positions is not sufficient to invoke estoppel; rather, there must be
some indication that the court in the earlier proceeding accepted that party’s position as true.”
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Paschke, 445 Mich at 510. Judicial estoppel applies only where the claims are “wholly
inconsistent.” Id.
This Court has instructed that “[t]he doctrine of judicial estoppel is to be applied with
caution[,]” explaining that the doctrine “is an extraordinary remedy to be invoked when a party’s
inconsistent behavior will otherwise result in a miscarriage of justice.” Opland v Kiesgan, 234
Mich App 352, 363-364; 594 NW2d 505 (1999) (cleaned up). Judicial estoppel “is not meant to
be a technical defense for litigants seeking to derail potentially meritorious claims[.]” Id. at 364(cleaned up). Rather, it is applied “to prevent a party from abusing the judicial process through
cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an
exigency of the moment.” Id. (cleaned up). The doctrine “is widely viewed as a tool to be used
by the courts in impeding those litigants who would otherwise play ‘fast and loose’ with the legal
system.” Paschke, 445 Mich at 509. The purpose of judicial estoppel “is to protect the judicial
process, not the parties.” Spohn, 296 Mich App at 489.
In this case, plaintiff concedes that her argument in the arbitration proceedings that Joka
was not at fault for the accident was inconsistent with the position she takes in this case, but argues
that there is no proof that she was completely successful in getting the arbitrators to accept her
argument that Studinger was solely responsible for the accident. The trial court concluded that
“[t]he arbitration panel found Studinger 100% at fault and awarded Ms. Khammu $425,750.00 in
damages.” The court stated that it was “satisfied the arbitration panel that heard Plaintiff’s 2017
action accepted Plaintiff’s position regarding fault, negligence, and damages as true, and ruled
accordingly, in light of the panel’s arbitration award, in Plaintiff’s favor.”
The arbitrators’ award in favor of plaintiff simply stated:
This Arbitration hearing having been conducted on May 15, 2019, and the
parties to this action, along with their legal counsel, having appeared with pleadings
and arguments regarding 3rd party claim provided in Plaintiff’s Summary, the
Arbitrators make the following award: $425,750.00, inclusive of costs or attorney
fees, arising out of the September 12, 2017 motor vehicle accident.
There is nothing in the language of the award reflecting that the arbitrators found that Studinger
was the sole cause of the accident. It is undisputed that Studinger filed a notice of non-party fault
identifying Joka and Omega Rehab as having fault in the accident. The arbitrators were required
to determine the liability of each person, including nonparties Joka and Omega Rehab, in
proportion to their percentage of fault. See MCL 600.2957(1); MCL 600.6304(1). It is unclear
from the face of the award how much fault, if any, the arbitrators apportioned to Joka and Omega
Rehab.
Further, although Studinger did not contest that plaintiff sustained a right humerus fracture
that required surgical intervention as a result of the September 2017 accident, he argued that
plaintiff was disabled as the result of a February 2017 accident at the time of the September 2017
accident and was receiving Social Security Disability benefits as the result of other medical issues.
Thus, in addition to liability, Studinger contested damages. The award is silent as to whether the
panel apportioned fault to either of the nonparties or whether it determined that some of plaintiff’s
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damages were attributable to her prior accident. The arbitrators provided no specifics as to how
the award was calculated.
Plaintiff argued in her motion for reconsideration that there was evidence establishing that
the arbitrators did not accept her claim in its entirety and thus she was not completely successful
in taking her inconsistent position in the prior proceeding. In support, she submitted a computation
of damages that was presented as a supplemental exhibit to the arbitration panel. The computation
reflects a claim of $500,000 for past and present pain and suffering and $500,000 for future pain
and suffering. Plaintiff argued to the trial court that reconsideration of its decision was warranted
because it could not be said with certainty that she prevailed on her argument that Studinger was
100% at fault in light of the panel’s $425,750 award on her $1,000,000 claim. Because our de
novo review of the summary-disposition order is limited to the evidence that was presented to the
trial court at the time the motion was decided, we will not consider the computation of damages
that was attached for the first time to plaintiff’s motion for reconsideration.4 See Karaus v Bank
of New York Mellon, 300 Mich App 9, 15 n 2; 831 NW2d 897 (2012); Innovative Adult Foster
Care, Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009); Pena, 255 Mich App
at 310.
Because there is no indication that the arbitrators accepted plaintiff’s position (that
Studinger was 100% at fault), we cannot conclude that plaintiff successfully asserted a prior
inconsistent position. Accordingly, we are left with the definite and firm conviction that the trial
court made a mistake by assuming that the arbitrators found Studinger 100% at fault and accepted
plaintiff’s position regarding fault as true when it rendered its award.
The trial court chastised plaintiff for failing to join Joka and Omega Rehab as defendants
in her 2017 action if she wanted a legal determination of their alleged contribution to the accident.
Although plaintiff was required to join all claims she had against Studinger arising out of the 2017
accident when she filed the 2017 action, MCR 2.203(A), there is nothing in Michigan law that
compelled her to join Joka and Omega Rehab as party defendants in her 2017 action. After
Studinger identified Joka and Omega Rehab as nonparties at fault, plaintiff could have sought
leave to add them as parties to her prior action. But plaintiff was not required to join Joka and
Omega Rehab as party defendants under MCL 600.2957(2) and MCR 2.112(k)(4). See Rinke v
Potrzebowski, 254 Mich App 411, 416; 657 NW2d 169 (2002) (“[A] plaintiff is not required to
join a nonparty as a party defendant; the language of both the applicable court rule and statute is
discretionary rather than compulsory.”).
Moreover, a plaintiff is permitted to plead alternative, inconsistent theories. As our
Supreme Court recognized, “the ‘prior success’ model is more narrowly tailored to allow for
alternative pleadings in the same or different proceedings.” Paschke, 445 Mich at 510 n 4. Thus,
“it may be seen as focusing less on the danger of inconsistent claims, than on the danger of
inconsistent rulings.” Id. There is no danger of an inconsistent ruling here because the trier of fact
will be required to determine the liability of each person, including Studinger as a nonparty, and
apportion fault. See MCL 600.2957(1); MCL 600.6304(1). And there is no risk of a double
4
Plaintiff acknowledges that this exhibit is only relevant to her argument that the trial court abused
its discretion by denying her motion for reconsideration.
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recovery or windfall to plaintiff. If the trier of fact renders a verdict in favor of plaintiff, defendants
may be entitled to a setoff. See Kaiser v Allen, 480 Mich 31, 39; 746 NW21d 92 (2008) (“An
injured party has the right to pursue multiple tortfeasors jointly and severally and recover separate
judgments; however, a single injury can lead to only a single compensation.”).
The trial court clearly erred by assuming that the arbitrators found Studinger 100% at fault.
Given the absence of any danger of an inconsistent ruling, Paschke, 445 Mich at 510 n 4, and
recognizing that the judicial estoppel doctrine should be applied with caution, Opland, 234 Mich
App at 363-364, we conclude that the trial court erred by applying the doctrine to bar plaintiff’s
claims against Joka and Omega Rehab. Because the trial court misapplied the doctrine, it abused
its discretion by denying plaintiff’s motion for reconsideration. Accordingly, we remand the
matter to the trial court to consider the merits of defendant’s motion to strike Petersen and for
summary disposition under MCR 2.116(C)(10).
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Sima G. Patel
/s/ Adrienne N. Young
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