Department of Health and Human Services v. Nrk Rx Inc ( 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
DEPARTMENT OF HEALTH AND HUMAN FOR PUBLICATION
SERVICES, November 20, 2024
2:19 PM
Plaintiff-Appellant,
v No. 364206
Ingham Circuit Court
NRK RX, INC. and RAAD KOUZA, LC No. 22-000441-CZ
Defendants-Appellees.
Before: RIORDAN, P.J., and O’BRIEN and N. P. HOOD, JJ.
RIORDAN, P.J.
Plaintiff, the Michigan Department of Health and Human Services (DHHS), through the
Michigan Attorney General, appeals as on leave granted,1 the trial court’s order granting, in part,
defendants’ motion for a change of venue and the transfer of the matter from Ingham Circuit Court
to the Oakland Circuit Court.
In a nutshell, this is a case about the determination of venue when the Attorney General
maintains a tort claim on behalf of the state or a state agency. DHHS, the state agency represented
by the Attorney General, argues that the Ingham Circuit Court clearly erred for two reasons when
it transferred this case from Ingham Circuit Court to the Oakland Circuit Court. First, the Attorney
General contends, Ingham County is the proper venue for suits the Attorney General brings under
MCL 14.102 and MCL 600.1631, and second, even if the tort venue statutes, MCL 600.1641 and
MCL 600.1629, control, Ingham County still is the proper venue because the original injury
occurred in Ingham County. We disagree with the Attorney General. MCL 600.1641(2) mandates
that MCL 600.1629 controls the selection of venue for this tort action, which arose in Oakland
1
In lieu of granting leave to appeal, our Supreme Court remanded this case to this Court for
consideration as on leave granted. Dep’t of Health and Human Servs v NRK RX, Inc, 513 Mich
853 (2023).
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County, regardless of whether the action was brought by the Attorney General or a private party.
Accordingly, we affirm the trial court.
I. FACTS
This matter arises from DHHS’s attempts to recover excess Medicaid payments that it paid
to defendant NRK RX, Inc. (NRK). The genesis is a DHHS audit that concludes that Medicaid
reimbursement claims submitted by NRK between the years 2011 and 2017 were inflated. In its
invoice/inventory reconciliation audit, Michigan’s Office of the Inspector General (OIG) made the
determination that the state’s Medicaid program overpaid NRK by $541,590.71 during those years.
The OIG determined that the overpayment resulted from reimbursements for claims NRK
submitted for drugs which NRK never purchased from an authorized wholesaler and, thus, were
never provided to Medicaid beneficiaries. In other words, the OIG is seeking Medicaid
reimbursements for drugs it concluded NRK never sold to patients because NRK did not purchase
the drugs from drug wholesalers, which NRK would have had to do in order to re-sell them to
Medicaid patients as it claimed.
Prior to the civil suit that is the subject of this appeal, DHHS conducted administrative
proceedings to confirm the Medicaid overpayment amount. Subsequently, in July 2017, DHHS
issued a final notice of recovery notifying NRK of the OIG’s findings. In 2018, NRK requested a
hearing before an administrative law judge (ALJ) to contest the findings underlying DHHS’s final
notice of recovery. In June 2019, following a hearing that took place over the course of several
days, an ALJ issued a proposed opinion recommending that DHHS affirm its decision to recover
$541,590.71 in overpayments Medicaid made to NRK. The ALJ reasoned that NRK failed to
establish by a preponderance of the evidence that the OIG’s findings were erroneous. In July 2019,
DHHS adopted the ALJ’s proposed opinion and entered a final order affirming its decision to
recover $541,590.71 in overpayments made to NRK. NRK appealed the ALJ’s order and, in
January 2021, the Ingham Circuit Court affirmed DHHS’s decision. It reasoned that DHHS’s
decision was authorized by law and supported by competent, material, and substantial evidence.
In July 2022, DHHS filed the underlying, five-count complaint against NRK and Raad
Kouza2 in the Ingham Circuit Court. In Count I, DHHS pleaded a claim for enforcement of its
final agency decision. In Counts II and III, DHHS pleaded claims for common-law conversion
and statutory conversion, MCL 400.111b(16).3 In Counts IV and V, DHHS pleaded claims for
2
Raad Kouza is the ostensible owner of NRK. Defendants, however, have not conceded Kouza’s
ownership interest in NRK. In their appellate brief, defendants state that Kouza “allegedly owns
NRK . . . .” Defendants have not otherwise argued that Kouza is an improper party to the
proceedings.
3
MCL 400.111b(16) is a cause of action specific to a provider’s failure to return Medicaid funds
to which it is not entitled or that exceed the amount to which the provider is entitled. It provides:
A provider promptly shall notify the director of a payment received by the
provider to which the provider is not entitled or that exceeds the amount to which
the provider is entitled. If the provider makes or should have made notification
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breach of contract and unjust enrichment. Pivotal to this appeal is DHHS’s general allegation that
venue is proper in Ingham County under MCL 600.1631(a).4
The same day on which defendants answered the complaint, they moved to change venue.5
In their supporting brief, defendants argued that, because DHHS pleaded claims for conversion,
Michigan’s tort venue statutes applied. In applying Michigan’s tort venue statutes, defendants
argued that Wayne County was the proper venue because Kouza resided in Wayne County and the
original injury—defendants’ refusal to return the alleged Medicaid overpayment upon request—
occurred there. Alternatively, defendants claimed that venue transfer was warranted for the
convenience of the parties under MCR 2.222(A).6
DHHS opposed defendants’ motion to change venue, arguing that venue was proper in
Ingham County under Michigan’s tort venue statutes because the original injury—DHHS’s
overpayment of Medicaid funds—occurred in Ingham County. It further argued that defendants
failed to make a persuasive showing that venue transfer was warranted for the convenience of the
parties under MCR 2.222. Notably, in its response DHHS did not argue, as it alleged in its
complaint, that venue was proper in Ingham County under MCL 600.1631(a). It later raised this
issue in a supplemental brief on remand to this Court. Significantly, DHHS never argued before
the trial court, as it now does on appeal, that venue was proper in Ingham County pursuant to MCL
14.102.
Following a hearing, the trial court entered an order granting in part defendants’ motion to
change venue and transferred the case to the Oakland Circuit Court. First, relying on Angelucci v
Dart Props Inc, 301 Mich App 209; 836 NW2d 219 (2013), the trial court ruled that Michigan’s
tort venue statutes are not limited to claims involving alleged physical injury, but they are equally
as applicable to non-physical harms such as, in the matter before us, the conversion of
under this subsection or receives notification of overpayment under [MCL
400.111a(17)], the provider shall repay, return, restore, or reimburse, either directly
or through adjustment of payments, the overpayment in the manner required by the
director. Failure to repay, return, restore, or reimburse the overpayment or a
consistent pattern of failure to notify the director shall constitute a conversion of
the money by the provider. [MCL 400.111b(16).]
4
MCL 600.1631(a) provides, in relevant part, that “[t]he county in which the seat of state
government is located is a proper county in which to commence and try” an action “commenced
by the attorney general in the name of the state or of the people of the state for the use and benefit
thereof[.]”
5
Originally, defendants contended that venue was proper in Wayne County because Kouza resided
in Wayne County such that the cause of action arose there. As addressed in greater detail later in
this opinion, defendants now argue on appeal that venue is proper in Oakland County.
6
MCR 2.222(A) provides, in relevant part, that although venue may be proper, “[t]he court may
order a change of venue of a civil action, or of an appeal from an order or decision of a state board,
commission, or agency authorized to promulgate rules or regulations, for the convenience of
parties and witnesses . . . .”
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electronically transferred funds. The trial court also found that, under MCL 600.1629(1)(a)(ii),
venue is proper in Oakland County because the original injury caused by the alleged conversion—
NRK’s refusal to return the alleged Medicaid electronic overpayments upon the request by DHHS
to do so—occurred in Oakland County, where NRK had its principal place of business. The trial
court did not address the application of MCL 14.102 or MCL 600.1631.
DHHS applied for leave to appeal, which this Court denied. Dep’t of Health and Human
Servs v NRK RX, Inc, unpublished order of the Court of Appeals, entered June 13, 2023 (Docket
No. 364206). Then, DHHS filed an application for leave in our Supreme Court seeking to appeal
this Court’s order denying its original application for leave to appeal. In lieu of granting leave to
appeal, our Supreme Court remanded the matter to this Court for consideration as on leave granted.
Dep’t of Health and Human Servs v NRK RX, Inc, 513 Mich 853 (2023). This appeal then
followed.
II. STANDARD OF REVIEW
“We review for clear error a circuit court’s decision to grant or deny a motion to change
venue.” Hills & Dales Gen Hosp v Pantig, 295 Mich App 14, 19; 812 NW2d 793 (2011). “Clear
error exists when the reviewing court is left with a definite and firm conviction that a mistake has
been made.” Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). “This Court reviews
de novo questions of statutory interpretation.” Owens Fin, Inc v Deloitte & Touche (ISC), LLC,
481 Mich 618, 624; 752 NW2d 37 (2008).
III. OAKLAND COUNTY IS THE PROPER VENUE BASED ON THE CONTROLLING
VENUE STATUTES
“Venue is controlled by statute in Michigan.” Dimmitt, 481 Mich at 624, citing Omne Fin,
Inc v Shacks, Inc, 460 Mich 305, 309; 596 NW2d 591 (1999). Accordingly, analysis of this issue
requires us to interpret and apply Michigan’s venue statutes.
MCL 600.1641 addresses proper venue is cases where there is more than one type of claim
raised in the complaint. Relevant here, MCL 600.1641(2) provides:
If more than 1 cause of action is pleaded in the complaint or added by
amendment at any time during the action and 1 of the causes of action is based on
tort or another legal theory seeking damages for personal injury, property damage,
or wrongful death, venue shall be determined under the rules applicable to actions
in tort as provided in section 1629.[7]
Here, in the matter before us, the language of MCL 600.1641(2), i.e., “venue shall be
determined under the rules applicable to actions in tort as provided in section 1629,” is mandatory
through the Legislature’s use of the term “shall be.” As we have previously ruled, the Legislature’s
“use of the word ‘shall’ . . . indicates a mandatory and imperative directive.” Fradco, Inc v Dep’t
of Treasury, 495 Mich 104, 114; 845 NW2d 81 (2014). By use of the term “shall,” the Legislature
7
MCL 600.1629.
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indicates that satisfaction of the requirements in MCL 600.1629 is a mandatory precondition for
DHHS to file a civil tort action. Id. Thus, in the matter before us, we must apply MCL 600.1629
to determine proper venue.
MCL 600.1629 provides a hierarchy of criteria for determining the proper venue in tort
actions. See Massey, 462 Mich at 381-385 (analyzing MCL 600.1629 and its subparts
sequentially, beginning with MCL 600.1629(1)(a)). The first provision in the hierarchy, MCL
600.1629(1)(a), provides that, in an action based in tort:
The county in which the original injury occurred and in which either of the
following applies is a county in which to file and try the action:
(i) The defendant resides, has a place of business, or conducts business in
that county.
(ii) The corporate registered office of a defendant is located in that county.
Accordingly, in applying MCL 600.1629(1)(a), the first step is to determine the county in
which the original injury occurred.
DHHS has pled tort claims for common-law conversion and statutory conversion related
to Medicaid overpayments, MCL 400.111b(16). In the civil context, conversion is defined as “any
distinct act of dominion wrongfully exerted over another’s personal property in denial of or
inconsistent with his rights therein.” Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc,
497 Mich 337, 351-352; 871 NW2d 136 (2015) (quotation marks and citation omitted). Refusing
to return property to its owner upon demand can constitute an act of conversion. Id. at 352. See
also MCL 400.111b(16).
In Ground Development, Inc v Doyle & Lang, LLC, unpublished per curiam opinion of the
Court of Appeals, issued November 1, 2005 (Docket No. 255202),8 this Court considered the
location of the original injury underlying the plaintiff’s conversion claim. There, the defendant
leased equipment to the plaintiff. Id. at 1. The lease included a purchase option that permitted the
plaintiff to purchase the equipment once all of the payments were made. Id. If, however, the
plaintiff failed to make timely payments, then the defendant could repossess the equipment. Id.
The plaintiff provided the defendant a check that was returned for nonsufficient funds, and the
defendant repossessed the equipment. Id. The plaintiff then provided the defendant a check for
the full amount owed under the contract and claimed that it was entitled to purchase the equipment.
Id. The defendant disagreed and refused to return the equipment. Id. The plaintiff filed suit
alleging conversion, among other claims. Id. Analyzing the proper venue for the action under
MCL 600.1629(1)(a), this Court held that the original injury occurred when the defendant refused
8
Although unpublished opinions are not binding precedent, MCR 7.215(C)(1), they may be
considered persuasive or instructive. Kern v Kern-Koskela, 320 Mich App 212, 241; 905 NW2d
453 (2017).
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to return the equipment and concluded that the original injury occurred in the county where the
refusal took place. Id.Thus, with Ground Development as a guide, the original injury occurred when defendants
refused to return the disputed Medicaid funds upon request. We acknowledge that a statutory
conversion claim under MCL 400.111b(16) could encompass other types of conduct and other
types of harms, including the harm that occurs as soon as a defendant wrongfully obtains money
from state coffers, i.e., a conversion akin to that of straight-out Medicaid fraud. But that is not
how DHHS alleges this conversion occurred. DHHS filed this case after administrative
proceedings that determined the amount of the overpayment and defendants failure to return the
overpaid funds. Thus, DHHS alleges that defendants’ refusal to return the funds to it at that point
constitutes a single injury. Notably, NRK is the enrolled Medicaid provider, and Kouza is its
ostensible owner. DHHS made a joint request for NRK and Kouza to return the entirety of the
disputed Medicaid funds, but NRK did not do so and Kouza did not do so on NRK’s behalf. The
parties also do not dispute that NRK’s registered office is located in Oakland County. It follows,
then, that the original injury occurred in Oakland County, the county in which NRK has its
corporate office and where it refused to return the funds to DHHS. In light of these circumstances,
Oakland County is a proper venue under MCL 600.1629(1)(a)(ii).
DHHS argues that MCL 600.1629(1)(a) and its subparts do not apply if there are multiple
defendants in a case. DHHS is incorrect. Our Supreme Court addressed the application of MCL
600.1629(1)(a) and its subparts in Massey, 462 Mich 375. There, the plaintiff brought a wrongful-
death action against multiple defendants. Id. at 377-378. Interpreting MCL 600.1629(1)(a), our
Supreme Court concluded that for purposes of determining venue, MCL 600.1629(1)(a)(i) did not
apply because it addresses a singular defendant. Id. at 381-382. The Court explained:
The use of the word “the” has a meaning that is different than the word “a.”
Subd. (1)(a)(i) does not say “a defendant” resides, has a place of business, or
conducts business in the county. Nor does it say “one of the defendants.” Rather,
it says “the defendant.” . . . “The” and “a” have different meanings. “The” is
defined as “definite article. 1. (used, esp. before a noun, with a specifying or
particularizing effect, as opposed to the indefinite or generalizing force of the
indefinite article a or an). . . .” Random House Webster’s College Dictionary, p
1382. Moreover, when, as in subd. (1)(a), the Legislature has qualified the same
word with the definite article “the” in one instance (subd [1][a][i]) and the indefinite
article “a” in another instance (subd. [1][a][ii]), and both are within the same
subsection of a statute, even more clearly there can be no legitimate claim that this
Court should read “the” as if it were “a.” [Id. at 382 n 5.]
After concluding that MCL 600.1629(1)(a)(i) did not apply, the Court went on to state that,
under MCL 600.1629(1)(a)(ii), “venue would be required to be in the county where the original
injury occurred if a defendant is a corporation and its registered corporate office is in the same
county.” Id. at 383 (emphasis added). The Court explained that the statute’s reference to a
defendant, as opposed to the defendant, “should be understood to cover a case with more than one
defendant and one of them is a corporation.” Id. Thus, MCL 600.1629(1)(a)(ii)’s application is
not limited to cases involving a single defendant.
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Because the original injury in the matter before us occurred in Oakland County, and the
parties agree that defendant NRK’s corporate registered office is located there, the trial court did
not clearly err when it held that Oakland County is the proper venue under Michigan’s tort venue
statutes.
IV. INGHAM COUNTY IS NOT A PROPER VENUE
DHHS’s argument relating to MCL 600.1631(a) and MCL 14.102 is unpreserved. See
Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008). Prior to this remand by our
Supreme Court, DHHS did not cite MCL 14.102 in any of its filings in the trial court or in this
Court.9 In the trial court, DHHS initially took the position that MCL 600.1641(2), with its
mandatory language, is controlling in this matter, and it did not waiver from that contention until
filing its brief on remand to this Court.10 Regardless of the fact that DHHS failed to preserve this
issue for appeal, and despite recent protestations by DHHS to the contrary, we agree with
defendants that MCL 600.1631(a) and MCL 14.102 are permissive venue statutes, but MCL
600.1641(2) is mandatory and is controlling here.
MCL 600.1631 states that “[t]he county in which the seat of state government is located is
a proper county in which to commence and try the following actions: (a) when the action is
commenced by the attorney general in the name of the state or of the people of the state for the use
and benefit thereof . . . .” (Emphasis added.) This Court specifically has recognized the difference
between definite and indefinite articles. See Attorney Gen v Kent Co Rd Comm, 184 Mich App
525, 528; 459 NW2d 11 (1990) (explaining that “the” proper venue for action in one statute
overrides indefinite “a” proper venue in another);11 Borman v State Farm Fire & Cas Co, 198
Mich App 675, 678-679; 499 NW2d 419 (1993) (legislative use of “the” in statutory insurance
policy overrides the use of “any” in contract language in the defendant’s policy). In Kent Co Rd
Comm, like in the instant matter before us, the Attorney General filed suit in Ingham County
asserting venue was proper in that matter under MCL 600.1631(a). Kent Co Rd Comm, 184 Mich
App at 526. The defendant claimed that venue should have been determined under MCL 600.1615,
which applies to actions against a governmental unit. Id. This Court held that the indefinite article
9
DHHS first mentions MCL 14.102 in its November 22, 2023 appellate brief on remand. MCL
14.102 provides that “[a]ny action at law brought by the attorney general in the name of the state
or of the people of the state, for the use and benefit thereof, may be begun in the circuit court in
and for the county of Ingham . . . .”
10
In the trial court, DHHS stated, “In Michigan, the general venue rules favor bringing lawsuits
to defendants. MCL 600.1621(a). But special venue rules apply to tort claims and are primarily
concerned with bringing the case where the resulting injury occurred. MCL 600.1629; see also
MCL 600.1641(2). In this case, Plaintiff asserted, among others, two tort claims: conversion and
statutory conversion. Therefore, the special venue provisions for torts would apply. The special
tort rules are applied in a hierarchy . . . .”
11
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority.” In re Stillwell Trust, 299 Mich App
289, 299 n 1; 829 NW2d 353 (2012) (citation omitted).
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“a” in MCL 600.1631(a) was an expression of the Legislature’s intent that Ingham County was
merely “a” proper venue. Id. at 528. On the other hand, MCL 600.161512 uses mandatory language
designating the home county of a governmental unit as “the” proper venue. Id. Therefore, because
MCL 600.1615 uses mandatory language, and MCL 600.1631(a) is merely permissive, venue
should have been determined under MCL 600.1615 rather than MCL 600.1631(a). Id.
Similarly, in the matter before us, MCL 600.1641(2) uses the mandatory language “shall,”
which requires us to apply the venue rules under MCL 600.1629(1)(a). We reach this result
because the Legislature’s command in MCL 600.1641(2) is plain, unambiguous, and permits only
one interpretation, that we must determine venue in this matter by applying the rules set forth in
MCL 600.1629(1)(a). When the language of a statute is unambiguous, as is MCL 600.1629(1)(a),
we give effect to its plain meaning. Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531(2014). We cannot fathom a more unambiguous directive than that found in MCL 600.1641(2),
“venue shall be determined under the rules applicable to actions in tort as provided in section
1629.” While, in cases where more than one statute may appear to be applicable to a factual
scenario and a conflict results, if possible, we must attempt to construe the statutes harmoniously.
Wells Fargo Rail Co v Dep’t of Treasury, 344 Mich App 351, 363; 1 NW3d 373 (2022). But in
the instant matter, the Legislature’s command in MCL 600.1641 that “venue shall be determined
under the rules applicable to actions in tort as provided in section 1629,” means just that, and there
is no carve out for actions brought by DHHS nor is there an exception made for MCL 14.102 and
MCL 600.1631(a).13
As such, DHHS’s claim that it can choose whether to follow MCL 600.1631(a) or MCL
600.1629 because the latter statute uses the phrase “a county” must be rejected. This interpretation
ignores MCL 600.1641(2)’s directive that trial courts “shall” follow MCL 600.1629, and there is
12
MCL 600.1615 reads, “[A]ny county in which any governmental unit, including but not limited
to a public, municipal, quasi-municipal, or governmental corporation, unincorporated board,
public body, or political subdivision, exercises or may exercise its governmental authority is the
proper county in which to commence and try actions against such governmental units, except that
if the cause of action arose in the county of the principal office of such governmental unit, that
county is the proper county in which to commence and try actions against such governmental
units.” (Emphasis added.)
13
Thus, we do not believe that an implied revocation analysis is necessary to resolve the matter
before us.
Moreover, MCL 14.102 was enacted in 1919, more than 70 years prior to enacting MCL
600.1641(2) in 1995. We must presume that the Legislature recognized that an occasion may arise
where the venue statutes might seemingly conflict or otherwise provide varying means to
determine venue. While not germane to the matter before us, we see MCL 600.1641(2) as an
alternative to determining venue when a complaint pleads a tort and there is a question about which
of the venue statutes may apply. This is because it states that “venue shall be determined under
the rules applicable to actions in tort as provided in section 1629” whenever any of the causes of
action “is based on tort.” MCL 600.1641(2) (emphasis added).
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nothing in MCL 600.1629 that allows MCL 14.102 or MCL 600.1631(a) to be determinative of
venue. We agree with defendants that if DHHS’s conclusion that it can choose whether to apply
MCL 600.1629 or MCL 600.1631(a) is allowed, then the mandatory language of MCL
600.1641(2) is rendered meaningless and superfluous.14
Further, while not necessary for our analysis, we note the possibility that MCL 14.102 and
MCL 600.1631(a) contemplate only those cases in which the Attorney General is the named
plaintiff, or perhaps cases in which the state is the named plaintiff. In this regard, MCL 14.102
refers to an action “brought by the attorney general” while MCL 600.1631(a) refers to an action
“commenced by the attorney general.”15 For example, in Attorney Gen v Diamond Mortgage Co,
414 Mich 603; 327 NW2d 805 (1982), the Attorney General was the named plaintiff alleging that
the defendant violated the Michigan Consumer Protection Act, MCL 445.901 et seq. Our Supreme
Court indicated that venue was proper in Ingham Circuit Court under MCL 600.1631(a). See id.
at 618. Similarly, in Kelley v Atwell, the named plaintiff was Frank J. Kelley, Attorney General,
14
In her concurring opinion in Massey, JUSTICE CORRIGAN aptly explained the practical effect of
MCL 600.1641(2), which is that MCL 600.1629 takes precedence over other venue provisions:
Subsection 1641(2) creates a preference for § 1629 over the other substantive
venue statutes.
Consider, for instance, a complaint that joins a cause of action sounding in tort
with a cause of action sounding in contract. The proper venue for the tort cause
of action would be determined by reference to § 1629, which is the substantive
venue provision applicable to tort actions. The proper venue for the contract cause
of action would be determined by reference to § 1621, which is the substantive
venue provision applicable to contract actions. Under the general rule set forth
in subsection 1641(1), either of these venues would be permissible for the entire
case. Under the exception set forth in subsection 1641(2), however, only the
venue determined proper by reference to § 1629 would be permissible for the
entire case. Thus, the practical effect of subsection 1641(2) is that, in cases
involving joinder of multiple causes of action, venues determined by reference to
§ 1629 take precedence over venues determined by reference to the other
substantive venue provisions. [Massey, 462 Mich at 389-390 (CORRIGAN, J.,
concurring).]
DHHS’s interpretation of MCL 600.1629 would render MCL 600.1641(2) nugatory, and
is precisely what Justice Corrigan counseled against, and which we rule against here.
15
To illustrate the point, suppose that John Doe, an ordinary citizen, files a tort complaint against
a particular defendant. We would correctly say that the action is “brought” or “commenced” by
John Doe, not the attorney or law firm responsible for drafting and filing the complaint. So too
here. This case is “brought” or “commenced” by DHHS, not the Attorney General, which is why
DHHS is the named plaintiff.
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who alleged that the defendant violated the Deceptive Advertising Act, MCL 445.801 et seq. This
Court explained that the action was properly filed in Ingham Circuit Court under MCL 14.102. Id.
at 222. Thus, it is at least arguable that MCL 14.102 and MCL 600.1631(a) do not apply here for
the alternate reason that DHHS is the named plaintiff.16
V. CONCLUSION
We affirm the trial court’s conclusion that Oakland County is the proper venue for this
matter.
/s/ Michael J. Riordan
/s/ Colleen A. O’Brien
16
Indeed, DHHS states as follows in its brief on appeal:
The Attorney General’s ability to choose to sue in Ingham County has a
long history. As early as 1894 the Michigan Supreme Court affirmed the Attorney
General’s statutory choice to bring suit in Ingham County, even where it was not
the location of the dispute. In McMullen v Ingham Circuit Judge, 102 Mich 608,
611 (1894), the Attorney General commenced a lawsuit on behalf of several citizens
in Ingham County. The defendants argued that the suit should be maintained in
Cheboygan County, where the dispute arose. Id. at 610. But the Supreme Court
relied on a venue statute allowing the Attorney General to elect to sue in Ingham
County to hold that the location was proper, stating that “[t]he power of the
legislature to provide that such suits may be instituted in the county of Ingham,
where the office of the law department of the state is located, is beyond question.”
Id. at 611–612.
As we have noted, however, there is a distinction between the Attorney General as the named
plaintiff and a different state agency as the named plaintiff.
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