Driver v. Hanley, Docket No. 193047

• Decision Date: 25 November 1997
• Docket Number: Docket No. 193047
• Citation: 226 Mich.App. 558,575 N.W.2d 31
• Parties: Maria E. DRIVER, Plaintiff-Appellant, v. William HANLEY and Julia Hanley, Defendants-Appellees. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 31

575 N.W.2d 31

226 Mich.App. 558

Maria E. DRIVER, Plaintiff-Appellant, v. William HANLEY and Julia Hanley, Defendants-Appellees. (After Remand)

Docket No. 193047.

Court of Appeals of Michigan.

Submitted June 11, 1997, at Grand Rapids.

Decided Nov. 25, 1997, at 9:10 a.m.

Released for Publication March 10, 1998.

Cunningham Davison Roges & Alward by William M. Davison, Traverse City, for Plaintiff-Appellant.

Michael E. Hall, Traverse City, for Defendants-Appellees.

Before REILLY, P.J., and HOOD and MURPHY, JJ.

AFTER REMAND

PER CURIAM.

Plaintiff appeals as of right from an order granting defendants' motion for summary disposition of plaintiff's claim under § 2 of the Whistleblowers' Protection Act (WPA), M.C.L. § 15.362; M.S.A. § 17.428(2). Plaintiff also contests the circuit court's subsequent order denying plaintiff's motion for reinstatement of a prior district court judgment. We affirm the circuit court's order granting defendants' motion for summary disposition. We reverse, in part, the circuit court's order denying plaintiff's motion seeking reinstatement of the district court judgment.

This case is before this Court for the second time. In 1985, plaintiff was discharged from her employment with defendants. The facts underlying plaintiff's discharge were set forth in this Court's first opinion. See Driver v. Hanley, 207 Mich.App. 13, 14-15, 523 N.W.2d 815 (1994). As noted in that opinion, plaintiff filed a complaint in the circuit court against defendants alleging (1) a violation of the WPA, (2) a violation of the public policy against retaliatory discharge, and (3) a breach of her employment contract. Because the parties received a mediation evaluation below the jurisdictional limit, the case was removed to the district court, where a jury, in a special verdict, found in favor of plaintiff on each count and awarded $24,800 in damages. On appeal, the circuit court (1) affirmed the district court verdict on plaintiff's WPA count, (2) reversed the verdict on her public policy count on the ground that plaintiff failed to exhaust her administrative remedies, ¹ and (3) reversed the verdict on her breach of contract count on the ground that it was preempted by the WPA. Defendants then appealed to this Court on leave granted, and plaintiff cross appealed. Defendants argued that the district court lacked subject-matter jurisdiction over plaintiff's WPA claim on the ground that exclusive jurisdiction was within the circuit court. This Court agreed and reversed the circuit court's ruling with respect to plaintiff's WPA claim. Driver, supra at 16-18, 523 N.W.2d 815. In her cross appeal, plaintiff argued that the circuit court erred in reversing the verdict on her breach of contract count. This Court disagreed and affirmed the circuit court verdict with respect to plaintiff's breach of contract count, holding that the WPA provided her exclusive remedy. Id. at 18, 523 N.W.2d 815.

After remand from this Court, plaintiff was left with only a WPA claim pending in the circuit court. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing that plaintiff could not sustain a successful claim under the WPA under the facts as alleged and developed. In particular, defendants argued that plaintiff's alleged report to the United States Department of Labor (USDL) was insufficient to support plaintiff's claim, because the USDL did not constitute a "public body" within the meaning of the WPA. According to defendants, the WPA did not offer protection to employees discharged for reporting to federal agencies. The circuit court agreed and granted defendants' motion for summary disposition. Plaintiff then moved for reinstatement of the original district court judgment, arguing that the dismissal of her other two claims had been predicated solely on the existence of a valid WPA claim against defendants. The circuit court denied plaintiff's motion, reasoning that the WPA precluded plaintiff's public policy and breach of contract claims despite being inapplicable to plaintiff's case.

Plaintiff first contends that the circuit court erred in dismissing her claim under the WPA. A trial court's determination regarding a motion for summary disposition is reviewed de novo. Atkinson v. Detroit, 222 Mich.App. 7, 9, 564 N.W.2d 473 (1997). Here, the circuit court did not specify which subsection of MCR 2.116(C) it was relying on when it granted defendants' motion for summary disposition. However, because it relied on matters outside the pleadings, we will construe the motion as having been granted pursuant to MCR 2.116(C)(10). Osman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 705, 532 N.W.2d 186 (1995). A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atkinson, supra at 9, 564 N.W.2d 473. The moving party is entitled to judgment as a matter of law if the claim suffers a deficiency that cannot be overcome. Id.

Plaintiff does not argue that the circuit court erred substantively in dismissing her WPA claim on the ground that the USDL was not a "public body." ² Accordingly, we will not address the issue whether an agency of the federal government constitutes a "public body" for purposes of the WPA. Radtke v. Everett, 442 Mich. 368, 397-398, & n. 48, 501 N.W.2d 155 (1993). Instead, plaintiff argues only that defendants should have been estopped from asserting that the WPA was inapplicable to plaintiff's case. In Michigan, the doctrine of judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in a prior proceeding from asserting a wholly inconsistent position in a subsequent proceeding. Paschke v. Retool Industries, 445 Mich. 502, 509-510, 519 N.W.2d 441 (1994). The fact that the prior and subsequent proceedings in this case occurred within the same litigation is not a bar to the application of the doctrine. See Detroit Edison Co. v. Public Service Comm., 221 Mich.App. 370, 382, 562 N.W.2d 224 (1997).

Here, defendants successfully argued to the circuit court (on appeal from the district court) and to this Court that the WPA provided plaintiff's exclusive remedy. Then, on remand to the circuit court, defendants argued that the WPA was inapplicable to the specific facts of plaintiff's case. Plaintiff contends that defendants' "new" position, allegedly taken for the first time on remand, was wholly inconsistent with defendants' prior position. We disagree. Contrary to plaintiff's assertion, defendants' position on remand regarding the applicability of the WPA to the specific facts of plaintiff's case did not conflict with their prior arguments and was not a new position. Defendants first raised both arguments in their original (and ultimately unsuccessful) motions for summary disposition filed in 1986. ³ Moreover, at no time did defendants ever assert, unequivocally, that the WPA was applicable to the specific facts of plaintiff's case. After the initial district court judgment, defendants' arguments did not address the applicability of the WPA to the specific facts of plaintiff's case. Instead, defendants merely argued that, because plaintiff had alleged a violation of the WPA, she could not, as a matter of law, allege a cumulative breach of contract claim. Finally, we note that plaintiff failed to raise the issue of judicial estoppel before the circuit court and therefore failed to preserve the issue for appellate review. Chilingirian v. City of Fraser, 194 Mich.App. 65, 70-71, 486 N.W.2d 347 (1992), remanded 442 Mich. 874, 500 N.W.2d 470 (1993), on remand 200 Mich.App. 198, 504 N.W.2d 1 (1993). For these reasons, we hold that the circuit court did not err in allowing defendants to argue that the WPA was inapplicable to the specific facts of plaintiff's case. See Paschke, supra at 509-510, 519 N.W.2d 441.

Plaintiff next argues, in the alternative, that because the circuit court dismissed her WPA claim, which had been deemed her "exclusive remedy," it should have reinstated the judgment of the district court with respect to her public policy and breach of contract claims. A trial court on remand possesses the authority to take any action that is consistent with the opinion of the appellate court. VanderWall v. Midkiff, 186 Mich.App. 191, 196, 463 N.W.2d 219 (1990). In this case, it is apparent from the record that when plaintiff requested reinstatement of the district court judgment, she was in fact requesting relief from the original circuit court order dismissing the district court's favorable judgment on her public policy and breach of contract claims. ⁴ Under MCR 2.612(C)(1)(f), relief from judgment may be granted for "any reason justifying relief from the operation of the judgment." Huber v. Frankenmuth Mut. Ins. Co., 160 Mich.App. 568, 575-576, 408 N.W.2d 505 (1987). A trial court's decision to grant such relief is discretionary and will not be disturbed absent an abuse of discretion. Id. at 576, 408 N.W.2d 505.

The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Reeves v. Cincinnati, Inc. (After Remand), 208 Mich.App. 556, 559, 528 N.W.2d 787 (1995). Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. Id. This rule applies without regard to the correctness of the prior determination. Id. However, the law of the case doctrine controls only if the facts have remained materially the same. CAF Investment Co. v. Saginaw Twp., 410 Mich. 428, 454, 302 N.W.2d 164 (1981).

In deciding the first appeal in this case, this Court relied on the "well established" rule that "the WPA provides the exclusive remedy for an employee who has been discharged wrongfully from employment for reporting an...