Opinion
No. 343136
04-16-2019
KIRK LEAPHART, Plaintiff-Appellant, v. STATE OF MICHIGAN, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Court of Claims
LC No. 17-000130-MZ Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ. PER CURIAM.
Plaintiff appeals as of right an order entered by the Court of Claims granting summary disposition in favor of defendant and dismissing plaintiff's complaint brought under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. We affirm.
I. BACKGROUND
In 1977, plaintiff pleaded guilty to possession of heroin and felony-firearm in case number 77-07643 in the former Recorder's Court for the City of Detroit. Plaintiff was sentenced to two to four years' imprisonment for the possession of heroin conviction and to two years' imprisonment for the felony-firearm conviction. Plaintiff appealed these convictions and our Supreme Court remanded plaintiff's case to Recorder's Court to determine whether the prosecution could prove that plaintiff aided and abetted felony-firearm to sustain that conviction. People v Leaphart, 411 Mich 978 (1981). On remand, the prosecution filed a motion to dismiss "Count II only," for the reason that the "people cannot establish factual basis for aiding [and] abetting felony firearm." Recorder's Court granted the prosecutor's motion to dismiss plaintiff's felony-firearm conviction on July 8, 1981.
In 2017, plaintiff filed a complaint with the Court of Claims alleging that he was entitled to compensation under WICA. Defendant moved for summary disposition and Chief Judge Michael J. Talbot, a Court of Claims judge, granted summary disposition to defendant on July 10, 2017. Plaintiff appealed that order and during the course of the appeal it was discovered, for the first time, that Chief Judge Talbot may have represented plaintiff during his underlying 1977 criminal case. Defendant moved to remand the matter to the Court of Claims because of Chief Judge Talbot's possible prior representation of plaintiff. This Court granted defendant's motion to remand under MCR 7.216(A)(7), and directed Chief Judge Talbot to determine whether he did in fact represent plaintiff in his underlying 1977 criminal case. Leaphart v State of Michigan, unpublished order of the Court of Appeals, entered November 20, 2017 (Docket No. 339680). Chief Judge Talbot confirmed that he represented plaintiff in 1977, and vacated the July 10, 2017 order granting summary disposition to defendant. The Court of Claims assigned a new judge to plaintiff's case and, upon rehearing, summary disposition was again granted to defendant on March 19, 2018. This appeal followed.
Chief Judge Talbot has since retired but will still be referred to as Chief Judge Talbot throughout this opinion. --------
II. DISCUSSION
Plaintiff first argues that he is entitled to compensation under WICA because both his felony-firearm conviction and his possession of heroin conviction were dismissed by the July 8, 1981 order of dismissal entered by the Recorder's Court. We disagree.
The Court of Claims granted summary disposition to defendant under MCR 2.116(C)(10). A trial court's summary disposition ruling is reviewed de novo. Walters v Nadell, 481 Mich 377, 381; 751 NW2d 431 (2008). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012). The pleadings, admissions, and other evidence submitted by the parties is reviewed in the light most favorable to the nonmoving party to determine if a genuine issue of any material fact exists. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A genuine issue of material fact exists when reasonable minds could differ on an issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). We also review de novo issues of statutory interpretation. City of Riverview v Sibley Limestone, 270 Mich App 627, 630; 716 NW2d 615 (2006). When the language of a statute is clear and unambiguous, the statute must be applied as written without judicial construction. Driver v Naini, 490 Mich 239, 247; 802 NW2d 311 (2011).
WICA allows "[a]n individual convicted under the law of this state and subsequently imprisoned in a state correctional facility for 1 or more crimes that he or she did not commit" to seek compensation from the state. MCL 691.1753. Under MCL 691.1755(1), an individual is entitled to compensation under WICA if he or she can prove all of the following by clear and convincing evidence:
(a) The plaintiff was convicted of 1 or more crimes under the law of this state, was sentenced to a term of imprisonment in a state correctional facility for the crime or crimes, and served at least part of the sentence.
(b) The plaintiff's judgment of conviction was reversed or vacated and either the charges were dismissed or the plaintiff was determined on retrial to be not guilty. However, the plaintiff is not entitled to compensation under this act if the plaintiff was convicted of another criminal offense arising from the same transaction and either that offense was not dismissed or the plaintiff was convicted of that offense on retrial.
(c) New evidence demonstrates that the plaintiff did not perpetrate the crime and was not an accomplice or accessory to the acts that were the basis of the conviction, results in the reversal or vacation of the charges in the judgment of conviction or a gubernatorial pardon, and results in either dismissal of all of the charges or a finding of not guilty on all of the charges on retrial.
After plaintiff was convicted of felony-firearm and possession of heroin in lower court case number 77-07643, he challenged these convictions and our Supreme Court ordered a remand to Recorder's Court, stating in relevant part:
the prosecutor shall be given an opportunity to establish that the defendant procured, counseled, aided or abetted and so assisted the accomplice to obtain or retain possession of the firearm which the accomplice possessed during the commission of the felony. If the prosecutor is able to do so and there is no contrary evidence, the judgment of conviction of felony-firearm in this case shall be affirmed. If the prosecutor is unable to do so, the judgment of conviction of felony-firearm shall be set aside. If contrary evidence is produced, this matter shall be treated as a motion to withdraw the guilty plea and the court shall decide this matter in the exercise of its discretion. [Leaphart, 411 Mich at 978.]
On remand, the prosecution filed a motion to dismiss "Count II only," and Count II" referred to plaintiff's felony-firearm conviction, which was listed after plaintiff's possession of heroin conviction. Although neither conviction was numbered, the motion stated that the reason the prosecution sought to dismiss "Count II" was because the "people cannot establish factual basis for aiding [and] abetting felony firearm." The motion to dismiss Count II was granted and the order of dismissal, which was on the same document as the motion to dismiss, was executed by the Recorder's Court judge on July 8, 1981.
On appeal, plaintiff argues that the motion and order to dismiss Count II resulted in the dismissal of plaintiff's felony-firearm conviction and his possession of heroin conviction. We do not agree. The Supreme Court's order in Leaphart, 411 Mich at 978, remanded plaintiff's case for the limited purpose of determining whether the prosecution could prove the necessary elements for plaintiff's felony-firearm conviction under an aiding and abetting theory. The order did not refer to plaintiff's possession of heroin conviction, and specifically denied leave to appeal in all other respects. Id. Plaintiff's possession of heroin conviction was not subject to the remand order, only his felony-firearm conviction was to be considered on remand.
The order of conviction and sentence in case number 77-07643 listed possession of heroin as "Count 1" and felony-firearm as "Count 2." Likewise, the motion to dismiss "Count II only" listed two offenses in the upper right corner of the document and felony-firearm was listed second, after possession of heroin. Furthermore, the motion specifically indicated that the prosecution sought "to dismiss Count II only" for the reason that the "people cannot establish factual basis for aiding [and] abetting felony firearm." Thus, by its plain terms, the motion to dismiss and the order of dismissal did not contemplate or dismiss plaintiff's possession of heroin conviction. As a result, plaintiff "is not entitled to compensation" under WICA because he "was convicted of another criminal offense arising from the same transaction and . . . that offense was not dismissed[.]" MCL 691.1755(1)(b). Because the requirement set forth in MCL 691.1755(1)(b) was not met, plaintiff's argument that he met the "new evidence" requirement set forth in MCL 691.1755(1)(c) is rendered moot. And we also reject plaintiff's argument that the Court of Claims improperly converted his compensation claim under WICA into a claim for damages. In granting defendant's motion for summary disposition, the Court of Claims specifically stated that plaintiff was not entitled to "compensation" under WICA.
Next, plaintiff argues that the order granting summary disposition to defendant must be reversed because it was based on a nonexistent court rule. We disagree. "The interpretation and application of court rules present questions of law to be reviewed de novo using the principles of statutory interpretation." Lamkin v Engram, 295 Mich App 701, 707; 815 NW2d 793 (2012).
Defendant moved for summary disposition under "MCR 2.116(c)(7)." Strictly speaking, MCR 2.116 only contains subsections with a capital "C," not a lower case "c." See MCR 2.116(C). But the Court of Claims granted summary disposition under MCR 2.116(C)(10) and plaintiff makes no argument that the Court of Claims erred by doing so; thus, we consider any such argument abandoned. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 220; 761 NW2d 293 (2008). In any case, "[t]he mislabeling of a motion does not preclude review where the lower court record otherwise permits it." Ellsworth v Highland Lakes Dev Assoc, 198 Mich App 55, 57-58; 498 NW2d 5 (1993). And "[a] trial court is not necessarily constrained by the subrule under which a party moves for summary disposition." Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 312; 696 NW2d 49 (2005). The Court of Claims construed defendant's motion for summary disposition as being brought under MCR 2.116(C)(10) "in light of the substance of the arguments presented in the motion." Plaintiff has made no argument that he was unable to challenge the legal validity of defendant's claims. See Johnson v Heite, 243 Mich App 578, 584-585; 624 NW2d 738 (2000). Thus, the Court of Claims did not err by granting summary disposition to defendant under MCR 2.116(C)(10) rather than MCR 2.116(C)(7).
Finally, plaintiff argues that this Court erred by granting defendant's motion to remand plaintiff's initial appeal of the July 10, 2017 order back to the Court of Claims. We disagree.
Plaintiff's initial appeal was remanded because of allegations that Chief Judge Talbot, who entered the challenged order, represented plaintiff in his underlying 1977 criminal case. Leaphart v State of Michigan, unpublished order of the Court of Appeals, entered November 20, 2017 (Docket No. 339680). The matter was remanded for a determination whether Chief Judge Talbot should have been disqualified from presiding over plaintiff's case and was based on MCR 7.216(A)(7). Under MCR 7.216(A)(7), "in its discretion, and on the terms it deems just," this Court may "enter any judgment or order or grant further or different relief as the case may require[.]" A remand order to ensure impartial decisions and to preserve the appearance of justice falls within the broad discretion granted to this Court under MCR 7.216(A)(7). Additionally, plaintiff was not prejudiced by this Court's remand order; rather, plaintiff was provided with another chance to prevail on defendant's motion for summary disposition. Accordingly, this claim is without merit.
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron