Temrowski v. Kent
| Decision Date | 09 September 2021 |
| Docket Number | 352207 |
| Parties | LEE ROY TEMROWSKI, JR., Plaintiff-Appellant, v. ROBERT KENT and VALERIE LONG, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Ingham Circuit Court LC No. 19-000484-NO
Before: Ronayne Krause, P.J., and Shapiro and Gadola, JJ.
Plaintiff Lee Roy Temrowski, Jr., appeals by right the trial court's order granting summary disposition to defendants Robert Kent and Valerie Long, under MCR 2.116(C)(7) (governmental immunity). We affirm.
Plaintiff is an attorney who specializes in litigation under the Michigan no-fault act, MCL 500.3101 et seq. Underlying this matter, plaintiff successfully represented a client against Allstate Insurance Company. One of that client's medical providers had been the Michigan State University (MSU) Health Team. To enforce his attorney lien, plaintiff instructed Allstate to make checks out to the client and to plaintiff's law firm jointly. Unfortunately, Allstate repeatedly disobeyed plaintiff's instructions, instead making the checks, in relevant part, payable to MSU and plaintiff's law firm jointly. After plaintiff returned numerous such checks (including checks involving other medical providers) to Allstate, defendant Long, a medical biller for MSU, contacted plaintiff by telephone to inquire into plaintiff's client's claims. Plaintiff informed Long about Allstate having made the checks out to his law firm and to MSU jointly.
Plaintiff contends that Long, on behalf of MSU, agreed to permit plaintiff to endorse and deposit the checks on MSU's behalf, withhold a 20% commission instead of his usual 33% commission, and then send the remaining balance to MSU. Long agrees that she discussed that possibility with plaintiff, but she contends that she told plaintiff that she would have to speak to her supervisor. Long further contends that her supervisor instructed her to call plaintiff back and ask him to instead send all of the Allstate checks directly to MSU, but plaintiff did not answer his phone, so Long left him a message asking him to send the Allstate checks to MSU. In any event, plaintiff endorsed the checks, deposited them into his law firm's account, retained a 20% contingency fee of $68.40, and issued a check to MSU for the remainder of Allstate's payment.
According to Long, "[a] few weeks later, [she] noticed that the claims related to Plaintiff's client had only been paid in part, with a balance remaining," which Long thought was "unusual" given plaintiff's indication to her "that the checks he received from Allstate were for the full balance of his client's claims." Pursuant to the discretion she had as a medical biller, Long conducted a further investigation of the claims by requesting copies of the checks from MSU's claim processing system. She eventually decided to escalate the incident to her supervisor.
At some point thereafter, defendant Kent, an attorney in MSU's Office of General Counsel, became involved. According to Kent, another attorney in the same office "brought to [his] attention an incident involving a potential forgery or unauthorized endorsement of two checks on MSU's behalf by [plaintiff], resulting in MSU not receiving a portion of the debt it was owed." Kent then conducted an investigation. Approximately two months after plaintiff's phone call with Long, Kent left a voicemail at plaintiff's law firm inquiring into an outstanding balance of $68.40 on plaintiff's client's account. Plaintiff responded with several lengthy and increasingly-vitriolic emails that, in part, denied any wrongdoing, offered to remit the full payment to MSU if MSU returned his original check "and we can continue to battle it out in court over the payment of your bills," and accused Long of being a liar. Kent indicated that he had confirmed with Long that no agreement had been reached regarding plaintiff's deposit of the checks on behalf of MSU and explained that he had "an ethical obligation to [his] client and to the State Bar to report the conduct you have engaged in." Plaintiff responded by asserting that Long was "nothing but a liar," reiterating that he would provide a full refund to Allstate upon receipt of a check from MSU but would not permit MSU to "stiff" him out of his 20%, accused Kent and MSU of greed and a desire to cheat him, and challenged Kent's "audacity to accuse me of 'ethical violations' when all [Kent] have to do sir is look in the mirror and it is you who is guilty of the ethical violations and not me."
Kent apparently did not further communicate with plaintiff, and he instead reported the matter to the MSU Police Department. An MSU Police detective spoke with Long and asked plaintiff to contact her to discuss the matter. Plaintiff maintained his innocence but otherwise declined to discuss the matter with the police. The MSU Police then forwarded the matter to the Ingham County Prosecutor's Office, which proceeded to charge plaintiff with two felony counts of uttering and publishing, MCL 750.249, and one misdemeanor count of larceny under $200, MCL 750.356(5). Plaintiff voluntarily surrendered to the police and was bound over for trial after a preliminary examination. However, the prosecution then conceded that it did not have a provable case; the circuit court quashed the felony charges and granted the prosecution's request for noelle prosequi. The criminal matter was therefore dismissed.
Plaintiff then commenced this action. Plaintiff alleged claims of malicious prosecution, abuse of process, intentional infliction of emotional distress (IIED), and civil conspiracy against Kent and Long. Plaintiff also alleged claims of tortious interference with a contract and tortious interference with a business relationship against Kent, and claims of fraudulent misrepresentation and innocent misrepresentation against Long. Plaintiff served discovery requests on Kent and Long with his complaint. Among other things, plaintiff requested that Long admit that she authorized plaintiff to withhold a contingency fee, that defendants admit that they had instituted allegations of criminal activity against plaintiff, that defendants had no probable cause to believe that plaintiff had violated the law, and that defendants made false statements to the MSU Police Department.
In lieu of an answer, defendants moved for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (8) (failure to state a claim on which relief could be granted). Defendants also moved to stay discovery pending the outcome of their motion for summary disposition, arguing that plaintiff had served them with broad discovery requests, whereas their summary disposition motion was based on narrow grounds. The trial court refused to entirely deny plaintiff discovery, but it would limit discovery to what was necessary to resolve the summary disposition motion. The trial court asked plaintiff to identify what specific records he would need to respond to defendants' summary disposition motion. Plaintiff was unable to do so at the hearing, explaining that he would need to "make a list, look at their discovery for that . . ." He indicated that he was willing "to whittle down our discovery and be very, very specific." The trial court instructed plaintiff to send a more-specific discovery request to defendants. It then partially granted defendants' motion to stay discovery, "[a]llowing for discovery only for matters that pertain to Plaintiff responding to the pending motion for summary disposition." Plaintiff never availed himself of the opportunity to craft and serve a narrowed-down discovery request. Eventually, the trial court granted summary disposition in defendants' favor on the basis of governmental immunity.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at 119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120. Under MCR 2.116(C)(7), where the claim is allegedly barred, the trial court must accept as true the contents of the complaint, unless they are contradicted by documentary evidence submitted by the moving party. Id. at 119. "Where summary disposition is granted under the wrong rule, Michigan appellate courts, according to longstanding practice, will review the order under the correct rule." Spiek v. Michigan Dep't of Transportation, 456 Mich. 331, 338 n 9; 572 N.W.2d 201 (1998).
The interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v. Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). Whether a claim is barred by governmental immunity is a question of law that we review de novo. Ray v. Swagger, 501 Mich. 52, 61 903 N.W.2d 366 (2017). Decisions regarding discovery are discretionary with the trial court, and we review the trial court's decision to limit discovery for an abuse of discretion. Augustine v. Allstate Ins Co, 292 Mich.App. 408, 419; 807 N.W.2d 77 (2011). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. "A trial court necessarily abuses its discretion when it makes an error of law." Ronnisch Constr Group, Inc v. Lofts on the Nine, LLC, 499 Mich. 544, 552; 886 N.W.2d 113 (2016). Appellate courts will affirm a right result arrived at on the basis of wrong reasoning. Kirl v. Zinner, 274 Mich. 331, 336; ...
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