Glasker-Davis v. Auvenshine

• Decision Date: 13 August 2020
• Docket Number: No. 345238,345238
• Parties: Thomasina GLASKER-DAVIS, Plaintiff-Appellant, v. Daman Steven AUVENSHINE, Defendant, and Meemic Insurance Company, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

333 Mich.App. 222

964 N.W.2d 809

Thomasina GLASKER-DAVIS, Plaintiff-Appellant,

v. Daman Steven AUVENSHINE, Defendant,andMeemic Insurance Company, Defendant-Appellee.

No. 345238

Court of Appeals of Michigan.

Submitted February 4, 2020, at Detroit.

Decided August 13, 2020, 9:00 a.m.

Mike Morse Law Firm (by Stacey L. Heinonen, Detroit, Marc Mendelson, and Paul E. Wheatley, Southfield) for Thomasina Glasker-Davis.

Plunkett Cooney, Bloomfield Hills (by Mary Massaron ) for Meemic Insurance Company.

Before: Ronayne Krause, P.J., and K. F. Kelly and Tukel, JJ.

Ronayne Krause, P.J. Plaintiff, Thomasina Glasker-Davis, appeals by right the trial court's order granting summary disposition in favor of defendant Meemic Insurance Company (Meemic). Plaintiff was injured in an automobile accident. Plaintiff alleged a claim of negligence against Daman Steven Auvenshine, the driver of the other vehicle, and a claim for first-party benefits against Meemic, plaintiff's no-fault insurance provider. Specifically, plaintiff claimed she was entitled to compensation for several months of replacement-care services she received daily from her daughter. At her deposition, however, plaintiff testified that her daughter had performed services daily for a brief period and thereafter only came over two to three times a week . On the basis of that discrepancy, Meemic moved for summary disposition on the ground of fraud. The trial court granted summary disposition, and Auvenshine was then dismissed by stipulation. Because we agree with plaintiff that Meemic failed to properly raise fraud in its affirmative defenses, we reverse and remand for further proceedings.

I. BACKGROUND

For purposes of this appeal, the underlying facts in this matter are not seriously disputed. On June 17, 2016, plaintiff was driving her car in Detroit when Auvenshine backed his car out onto the road and crashed into plaintiff's car. Plaintiff was injured in the crash. Meemic had issued a policy of no-fault insurance under which plaintiff was covered. Plaintiff did not make any claims for wage loss or attendant-care services, but rather only for household assistance or replacement-care services, which were referred to in the record as "the chores." The record shows that plaintiff, through counsel, submitted to Meemic "Household Services Statements" purporting to show that her daughter, Alicia Glasker, had cleaned plaintiff's kitchen, washed the dishes, and cooked almost every day¹ from July 1, 2016, through September 30, 2017. In her complaint, plaintiff contended that Meemic refused to make payments for those services. Meemic's answer to the complaint consisted almost entirely of boilerplate denials or disavowals of knowledge as to the allegations. Meemic also filed a forty-six-paragraph list of affirmative defenses, most of which are also boilerplate. One of those affirmative defenses stated in full, "The Plaintiff has given false and/or conflicting information to Defendant, thus, are [sic] fraudulent in nature."

At plaintiff's deposition, she testified that she had not kept track of when Alicia performed the chores or rendered assistance. Rather, Alicia kept track on pieces of paper that plaintiff would review and sign. We note that the Household Services Statements actually appear to be signed by Alicia, not by plaintiff, and all of the other writing on the forms appears to be from the same hand. Plaintiff testified that as of the date of her deposition, in August 2017, Alicia was coming over to help plaintiff approximately twice a week. Plaintiff believed that Alicia came over more often in 2016 because plaintiff was suffering much more pain at the time. Plaintiff stated that Alicia had come over on a daily basis when plaintiff was first injured. However, for at least some portion of 2016, Alicia came over "[m]aybe three times a week." Plaintiff emphasized that she relied on the forms Alicia filled out to determine when Alicia performed services. The record suggests that plaintiff may have suffered some memory deficits, caused by the accident, plaintiff's blood pressure, or both. However, we cannot find any other details of the nature or extent of those deficits in the record.

Meemic moved for summary disposition on the basis of the fraud provision in its policy. That provision apparently² stated in relevant part that the "entire Policy is void if any insured person has intentionally concealed or misrepresented any material fact or circumstance relating to ... any claim made under it." Meemic argued that in light of plaintiff's deposition testimony that Alicia had performed services at most three times a week, the Household Services Statements and plaintiff's claim seeking payment for daily services constituted fraud under the policy. Plaintiff recognized that her claims for daily replacement household services conflicted with her deposition testimony. However, plaintiff argued that the policy's fraud provision required intentional misrepresentations, and there were outstanding factual questions whether plaintiff had intentionally provided conflicting or inaccurate information, especially because Alicia had not been deposed. Plaintiff further argued that Meemic had not properly raised fraud in its affirmative defenses, because a mere reference to fraud did not constitute pleading with particularity as required by the court rules.

The trial court held a motion hearing, during which the parties argued consistently with their briefs regarding whether plaintiff had intentionally misrepresented any material facts within the meaning of the insurance policy. During the hearing, neither the parties nor the trial court mentioned plaintiff's contention that Meemic had waived any fraud defense. The trial court ruled from the bench that it found plaintiff to have unequivocally testified that Alicia "never" provided services more than three times a week. It also found that plaintiff's testimony established that she had reviewed all the statements provided by Alicia, so plaintiff would have known the statements were incorrect; therefore, plaintiff necessarily provided material and intentional misrepresentations to Meemic. The trial court concluded that no "reasonabl[e] trier of fact could conclude other than that there was a material and intentional misrepresentation made by the Plaintiff," so it granted summary disposition in Meemic's favor.

Plaintiff moved for reconsideration, reiterating her position that Meemic had not properly raised its fraud affirmative defense, and reminding the court that plaintiff had included the waiver argument in her response to Meemic's motion for summary disposition. She argued that Meemic's late assertion of fraud after the close of discovery precluded plaintiff from deposing Alicia, thereby prejudicing her. The trial court entered an order denying reconsideration, repeating that no palpable error occurred because no rational trier of fact could find that plaintiff had not committed fraud. The trial court's order denying reconsideration did not mention waiver of the fraud affirmative defense. Plaintiff and Auvenshine stipulated to Auvenshine's dismissal and to the entry of a final order closing the case. This appeal followed.

II. ISSUE PRESERVATION

It is sometimes erroneously believed that an issue must be raised in and decided by the trial court for that issue to be preserved for appeal. See, e.g., Fast Air, Inc. v. Knight , 235 Mich. App. 541, 549, 599 N.W.2d 489 (1999). However, our Supreme Court has unequivocally explained that "[parties] should not be punished for the omission of the trial court," and it squarely rejected "the proposition that issues undecided by the trial court are not preserved for appeal." Peterman v. Dep't of Natural Resources , 446 Mich. 177, 183, 521 N.W.2d 499 (1994). Rather, issue preservation requirements only impose a general prohibition against raising an issue for the first time on appeal. Id. Consistently with that principle, a party also need not preserve an objection to "a finding or decision" made by the trial court, MCR 2.517(A)(7), or, at least under some circumstances, to other acts or omissions undertaken sua sponte by a court. See In re Gach , 315 Mich. App. 83, 97, 889 N.W.2d 707 (2016). Furthermore, so long as the issue itself is not novel, a party is generally free to make a more sophisticated or fully developed argument on appeal than was made in the trial court. See Steward v. Panek , 251 Mich. App. 546, 554, 652 N.W.2d 232 (2002). This Court also has the power to consider an issue when necessary, even if unpreserved or not properly presented. Id. ; Mack v. Detroit , 467 Mich. 186, 207, 649 N.W.2d 47 (2002).

Here, plaintiff specifically and extensively argued in response to Meemic's motion for summary disposition that Meemic had waived the affirmative defense of fraud. Although waiver was not discussed during oral argument at the motion hearing, a party need only bring the issue to the court's attention—whether orally or in a brief or both. See Steward , 251 Mich. App. at 551 n. 6, 652 N.W.2d 232. Plaintiff's briefing of the issue unambiguously raised the issue. "The purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice." Local Emergency Fin. Assistance Loan Bd. v. Blackwell , 299 Mich. App. 727, 737, 832 N.W.2d 401 (2013) (quotation marks, citation, and alteration omitted). Plaintiff clearly did everything reasonable to bring this issue to the trial court's attention. Cf. Fraser Twp. v. Haney (On Remand) , 331 Mich. App. 96, 98-99, 951 N.W.2d 97 (2020) ( Fraser II ) (stating that because the plaintiff permitted an unraised affirmative defense to be tried by implied consent, the plaintiff waived any argument that the defendant had waived that affirmative defense). The trial court—not plaintiff—erred by failing to address this issue. It is therefore...