Cross v. Earl Burhans, D.O., & Westside Family Med. Ctr., PC
| Decision Date | 13 December 2016 |
| Docket Number | No. 328598,No. 328019,328019,328598 |
| Parties | CONNIE CROSS, Plaintiff-Appellee, v. EARL BURHANS, D.O., and WESTSIDE FAMILY MEDICAL CENTER, PC, Defendants-Appellants. CONNIE CROSS, Plaintiff-Appellee, v. EARL BURHANS, D.O., Defendant, and WESTSIDE FAMILY MEDICAL CENTER, PC, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kalamazoo Circuit Court
Before: SHAPIRO, P.J., and HOEKSTRA and SERVITTO, JJ.
In Docket No. 328019, defendants, Earl Burhans, D.O., and Westside Family Medical Center, PC (Westside), appeal by leave granted the June 2, 2015 orders of the trial court that denied Dr. Burhans's motions for summary disposition based on the statute of limitations and judicial estoppel. In Docket No. 328598, Westside appeals by leave granted the orders denying its motions concurring in Dr. Burhans's motions for summary disposition. We affirm and remand for further proceedings consistent with this opinion.
This case involves an alleged "wrongful/inappropriate" relationship between Dr. Burhans and plaintiff. Plaintiff suffers from migraines. Dr. Burhans, who was employed by Westside, became plaintiff's primary care physician in 2004. Plaintiff testified that Dr. Burhans first "overstepped the boundary" in April 2007 when he groped and kissed her. Plaintiff and Dr. Burhans first had sexual intercourse at Westside in April or May 2008 and, thereafter, they had sexual intercourse each time that plaintiff came to Westside with a migraine. They also had sexual intercourse almost every Thursday and Sunday at plaintiff's parents' house, where plaintiff resided. Plaintiff testified that she never enjoyed the sexual relationship with Dr. Burhans but that she kept Dr. Burhans as her primary care physician because she did not believe that another physician would give her the prescriptions for pain medication that she received from Dr. Burhans. According to plaintiff, she received the prescriptions that she needed from Dr. Burhans, but she paid for them with sex.
In March 2009, plaintiff filed a petition for Chapter 7 bankruptcy. In July 2009, the bankruptcy court granted plaintiff a discharge, and it subsequently closed the bankruptcy case. Plaintiff acknowledged that she did not disclose any causes of action against defendant in the bankruptcy proceedings prior to discharge. Plaintiff averred that she "truly believed that if [she] were to have told the Bankruptcy Trustee about [her] potential claim against Dr. Burhans, and Dr. Burhans found out about it, then Dr. Burhans [and the other physicians at Westside] would refuse to provide [her] with health care and pain medication."
In December 2012, plaintiff sued defendants. Following plaintiff's deposition, Dr. Burhans moved for summary disposition, arguing that plaintiff lacked standing and that plaintiff's claims were barred by judicial estoppel, as well as other legal doctrines. The basis for the summary disposition motion, with which Westside concurred, was that plaintiff failed to disclose her claims against defendants in the bankruptcy proceedings. Thereafter, plaintiff moved the bankruptcy court to reopen the bankruptcy case. The bankruptcy court granted the motion, and in March 2015, the bankruptcy trustee abandoned the property known as the Kalamazoo County case. Dr. Burhans thereafter renewed his motion for summary disposition, contending that plaintiff's claims were barred by the statute of limitations because the trustee did not abandon the claims until after the applicable limitations periods expired and additionally argued that judicial estoppel precluded plaintiff's claims. Westside again concurred in the motion and the trial court again denied summary disposition to defendants.
On appeal, defendants argue that the trial court erred in denying them summary disposition on the basis of the statute of limitations and judicial estoppel. Summary disposition is proper under MCR 2.116(C)(7) if the plaintiff's claims are barred by the statute of limitations or judicial estoppel. We review de novo a trial court's decision on a motion for summary disposition. Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must consider any affidavits, depositions, admissions, or other documentary evidence submitted by the parties. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. Dextrom v Wexford Co, 287 Mich App 406, 431; 789 NW2d 211 (2010). But, if a question of fact exists so that factual development could provide a basis for recovery, then dismissal without further factual development is inappropriate. Id.
Judicial estoppel is an equitable doctrine. Szyszlo v Akowitz, 296 Mich App 40, 46; 818 NW2d 424 (2012). The application of legal doctrines, including judicial estoppel, is reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); Szyszlo, 296 Mich App at 46.1
In response, plaintiff first argues that defendants waived the affirmative defenses of lack of standing and judicial estoppel.2 "Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118." MCR 2.111(F)(3). The failure to do so constitutes a waiver of the defense. Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 311-312; 503 NW2d 758 (1993). In a pleading, a party "must state the facts" constituting an affirmative defense. MCR 2.111(F)(3)(a); see also Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 214; 850 NW2d 667 (2013), rev'd on other grounds 498 Mich 68 (2015) (). We agree with plaintiff that defendants did not adequately plead the relevant affirmative defenses. Defendants did not set forth "why and how" they believed that the defenses were applicable. Tyra, 302 Mich App at 214. Rather, defendants simply stated that the claims alleged "are barred by the running of the applicable statutes of limitation," and, potentially interpretable as a judicial estoppel defense, the claim "is barred by the fraudulent acts of the Plaintiff."
"[A] defendant may move to amend their affirmative defenses to add any that become apparent at any time[.]" Id. at 213. After plaintiff argued in response to Dr. Burhans's motion for summary disposition that defendants waived the defenses of lack of standing and judicial estoppel, Dr. Burhans, in a reply to plaintiff's response, requested leave to amend defendants' affirmative defenses. Had the trial court addressed the request for leave to amend, its decision would have been reviewed for an abuse of discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). Leave to amend "shall be freely given when justice so requires." MCR 2.118(A)(2). Amendment is generally a matter of right rather than of grace. In re Kostin Estate, 278 Mich App 47, 51; 748 NW2d 583 (2008). Leave to amend should be denied only for "particularized reasons," such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, undue prejudice to the opposing party, or futility. Id.; Ostroth v Warren Regency, GP, LLC, 263 Mich App 1, 5; 687 NW2d 309 (2004).
According to plaintiff, defendants wrongfully delayed in asserting the affirmative defenses. "Delay, alone, does not warrant denial of a motion to amend." Weymers, 454 Mich at 659. However, a trial court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice. Id. " '[P]rejudice' exists if the amendment would prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be able to properly contest the matter raised in the amendment because important witnesses have died or necessary evidence has been destroyed or lost." Id.
Plaintiff claims that defendants, early on in discovery, could have learned that she had filed for bankruptcy. Defendants were given plaintiff's social security number in discovery, and defendants only asked plaintiff if she had been involved in any other legal action as "a plaintiff or a defendant." The term "bad faith" is generally defined as "[d]ishonesty of belief, purpose, or motive." Black's Law Dictionary (10th ed). Defendants' failure to use plaintiff's social security number to discover that she had filed for bankruptcy and their failure to specifically inquire whether plaintiff had been a "debtor" in a bankruptcy case do not evidence a dishonest purpose or motive by defendants in attempting to ascertain whether plaintiff had previously filed for bankruptcy.
Plaintiff also claims that defendants should have known that she filed for bankruptcy in 2009. In an affidavit, plaintiff averred that she had informed Dr. Burhans about her bankruptcy because she had kept asking Dr. Burhans and other physicians at Westside for sample prescriptions because she did not have the money to pay for prescriptions. Dr. Burhans's reply to plaintiff's argument that the affirmative defenses were waived indicates that defendants' attorneys were not aware that plaintiff had filed for bankruptcy until plaintiff was deposed, and nothing in the record indicates that defendants' attorneys were aware of the bankruptcy case at any time before plaintiff's deposition. Additionally, there is no indication in the record that Dr. Burhans, even if he remembered that plaintiff had filed for bankruptcy in 2009, failed to tell this fact to his attorney because of a dishonest purpose or motive. Any delay by defendants in asserting the affirmative defenses of lack of standing and judicial estoppel was not done in bad faith. Weymers, 454 Mich at 659.
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