Opinion
No. 354617
05-20-2021
GARY ARLAND MITCHELL, Plaintiff-Appellant, v. AMANDA VICTORIA WOODS, formerly known as AMANDA VICTORIA MITCHELL, MARIA WOODS, and MICHAEL WOODS, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 20-000494-CZ Before: SHAPIRO, P.J., and JANSEN and BECKERING, JJ. PER CURIAM.
In this civil action, plaintiff Gary Arland Mitchell alleges various torts against his ex-wife, defendant Amanda Woods, and her parents, defendants Maria and Michael Woods. The trial court granted Amanda's motion summary disposition under MCR 2.116(C)(7) (statute of limitations) and (C)(8) (failure to state a claim), and dismissed plaintiff's complaint with prejudice as to all defendants. Plaintiff now appeals. We affirm.
I. BACKGROUND
Plaintiff is currently serving a minimum sentence of 30 years' imprisonment for committing assault with intent to murder against Amanda. We previously affirmed plaintiff's convictions and sentences in the criminal case. People v Gary Arland Mitchell, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2019 (Docket No. 339937). In that opinion, we provided an abbreviated history of plaintiff and Amanda's relationship according to the proofs at trial:
Trial testimony revealed that [Amanda] and [plaintiff] met on a music website called Jango in 2009. At the time [plaintiff] and [Amanda] met, [Amanda] was 14 years old; however, she represented that she was 19 years old on the website. [Plaintiff's] profile on the website stated that he was 30 years old, but he was actually in his 50s. [Plaintiff] and [Amanda] met in person in 2010, when she was 15 years old. The relationship eventually became romantic. At trial, [Amanda]
stated that she told [plaintiff] her actual age six or eight months after they met. He told her his actual age in 2012. [Amanda] moved in with [plaintiff] in the summer of 2012, when she was 17 years old. The couple had a son in December 2014, and they married in January 2015. In 2016, [Amanda] decided to divorce [plaintiff] and she moved in with her parents. Eventually, [Amanda] brought the minor child to her parents' home and obtained a personal protection order against [plaintiff]. [Id. at 1-2.]
The parties refer to the criminal matter in their briefs, and we may take judicial notice of the facts stated in this Court's prior opinion. See MRE 201(b) and (e). See also Johnson v Dep't of Natural Resources, 310 Mich App 635, 649; 873 NW2d 842 (2015) (taking judicial notice of a public record under MRE 201).
Plaintiff's complaint provides a substantially similar timeline of these events but from his perspective and with many additional details relating to Amanda's parents' attempts to interfere with plaintiff and Amanda's marriage. The timeline provided in plaintiff's complaint culminates when Amanda, having decided to divorce plaintiff, allegedly used deception to take their son from plaintiff's care. According to plaintiff, that event occurred "3 ½ years ago" from the filing of the complaint on May 29, 2020.
The criminal case arose on August 9, 2016, when plaintiff hit Amanda with his car outside her place of employment. Plaintiff was arrested that day and charged with various crimes. Although he maintains that he accidentally hit Amanda, the jury disagreed.
The parties' divorce was finalized in either July or August 2017. The instant action was brought nearly three years later, with plaintiff claiming defamation against Michael, and intentional infliction of emotional distress (IIED), tortious interference with contractual relations, and intentional interference with the parent-child relationship against all defendants. In lieu of an answer, Amanda moved for summary disposition under MCR 2.117(C)(7) and (C)(8). She argued that plaintiff's complaint was time barred under the one-year limitations period for defamation and the three-year limitations period for all other claims. She also argued that plaintiff's allegations failed to state a claim for relief. In response, plaintiff argued that his claims accrued no sooner than the parties' divorce in 2017 and therefore he satisfied the three-year limitations period. He also asserted that he was alleging a "continuous tort." In addition, plaintiff requested discovery so he could determine the specific dates for the alleged events and that he be allowed to amend his complaint if the court found it deficient.
Lower court Case No. 16-002321-DM.
After dispensing with oral argument pursuant to MCR 2.119(E)(3), the trial court entered an order granting Amanda's motion for summary disposition and dismissing plaintiff's complaint with prejudice as to all defendants. This appeal followed.
II. ANALYSIS
A. SUMMARY DISPOSITION
Plaintiff first argues that the trial court erred by granting summary disposition and that his complaint complies with the three-year limitations period. We conclude that summary disposition was properly granted under a combination of MCR 2.116(C)(7) and (C)(8).
We review de novo a trial court's decision to grant summary disposition. See Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A court may grant summary disposition under MCR 2.116(C)(7) "because of . . . statute of limitations . . . ." "A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence." Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). "The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Id. "A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint." Id. Summary disposition under this subrule is proper only when the claims are "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Kuznar v Raksha Corp, 481 Mich 169, 176; 750 NW2d 121 (2008) (quotation marks and citations omitted). To make this determination, the factual allegations in the complaint are accepted as true and construed in a light most favorable to the nonmonving party. Id.
A claim accrues "at the time the wrong upon which the claim is based was done regardless of the time when damage results." MCL 600.5827. "A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section." MCL 600.5805(1).
To begin, although plaintiff maintains that his claims accrued beginning with the parties' divorce in 2017, he does not address Amanda's argument that plaintiff's defamation claim, which is governed by a one-year limitations period, is nonetheless time barred. See Puetz v Spectrum Health Hosps, 324 Mich App 51, 59; 919 NW2d 439 (2018); MCL 600.5805(11). Plaintiff's defamation claim provides no specific date or estimated time frame for when the alleged false statements were made. Further, plaintiff did not address this claim in his opposition to Amanda's motion for summary disposition or in his brief on appeal. We therefore conclude that summary disposition of plaintiff's defamation claim was appropriate under MCR 2.116(C)(7) and that he has effectively abandoned this claim on appeal. See Thompson v Thompson, 261 Mich App 353, 356; 683 NW2d 250 (2004).
If we accept the parties' 2017 divorce as the accrual date for plaintiff's other tort claims, most of the underlying allegations in the May 29, 2020 complaint are time barred by the three-year limitations period. See MCL 600.5805(2). That is, the vast majority of the events described in plaintiff's complaint occurred before the parties were divorced and the criminal incident in August 2016. Indeed, plaintiff alleges in his complaint that he has not seen his son since Amanda took the child from him three-and-a-half years ago. Thus, even accepting the allegations in the complaint as true, many of them are time barred by the three-year limitations period.
Perhaps in an attempt to nonetheless rely on the events outside of the three-year window, plaintiff asserts that he is claiming a continuous tort. We presume that plaintiff is referring to the continuing wrongs doctrine, which has been overruled in Michigan and is no longer valid. See Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 284; 696 NW2d 646 (2005); Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 289; 769 NW2d 234 (2009). Accordingly, plaintiff's claim of a continuous tort is misplaced, and the question is whether the allegations that occurred after May 29, 2017, sufficiently state a claim under MCR 2.116(C)(8).
"To establish a claim of [IIED], a plaintiff must prove the following elements: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress." Hayley v Allstate Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004) (quotation marks and citation omitted). "It is for the trial court to initially determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Id. "But where reasonable individuals may differ, it is for the jury to determine if the conduct was so extreme and outrageous as to permit recovery." Id.
Fairly read, the complaint contains a few allegations that post-date the parties' divorce. Plaintiff notes that Amanda was given physical custody of their son and refers to the provision in the judgment of divorce that Amanda was required to send plaintiff photographs of the child. Plaintiff further alleges that Amanda refuses to allow him communication with the child and that she throws away his letters to the child. However, in her motion for summary disposition Amanda provided an order from the divorce court explaining that she is no longer required to provide plaintiff with photographs, records, or other information regarding the minor child and that plaintiff is prohibited from making contact of any kind with Amanda. In May 2020, the divorce court also denied plaintiff's motion for photographs of his son and to have communication with the child. Accordingly, per the orders in the divorce case, Amanda may deny plaintiff and his family members photographs of the child and communications with him. And acting in accordance with a court's orders cannot be considered extreme or outrageous conduct. " 'The actor is never liable . . . where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.' " Roberts v Auto-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905 (1985), quoting Restatement Torts, 2d, § 46. For the same reasons, we conclude that plaintiff's claim of intentional interference with the parent-child relationship, also fails to state a claim. In sum, summary disposition of these claims were properly granted under MCR 2.116(C)(7) and (C)(8).
The only other specific event identified in the complaint relates to plaintiff's father's attempts to contact the child on April 21, 2020, out of concern about the ongoing COVID-19 pandemic. But plaintiff's father is not a party to this action and plaintiff may not maintain a claim on his behalf. See Pontiac Police & Fire Retiree Prefunded Group Health & Ins Trust Bd of Trustees v Pontiac, 309 Mich App 611, 622; 873 NW2d 783 (2015). Further, given that Amanda is not required to provide plaintiff a photograph or information about the child, it cannot be said that her decision to not provide the same to plaintiff's father is extreme and outrageous behavior.
We will assume for purposes of this appeal that intentional interference with the parent-child relationship is a cognizable cause of action.
The only remaining claim is tortious interference with contractual relations. "The elements of tortious interference with a contract are (1) the existence of a contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the defendant." Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 89-90; 706 NW2d 843 (2005). "To maintain a cause of action for tortious interference, the plaintiff must establish that the defendant was a 'third party' to the contract rather than an agent of one of the parties acting within the scope of its authority as an agent." Lawsuit Fin, LLC v Curry, 261 Mich App 579, 593; 683 NW2d 233 (2004).
Plaintiff does not expressly identify a contract that defendants interfered with. Marriage is a civil contract, MCL 551.2, but even assuming a claim of tortious interference could be maintained with respect to a marriage, defendant concedes that his claims accrue from the date of his divorce, and so any alleged interference by Amanda's parents with her and defendant's marriage—which necessarily occurred before Amanda decided to divorce plaintiff in 2016—is time barred by the three-year limitations period. And although "[c]onsent judgments of divorce are contracts and treated as such," Andrusz v Andrusz, 320 Mich App 445, 452; 904 NW2d 636 (2017), Amanda's actions are consistent with the divorce court's subsequent orders in that case. Further, Amanda is not a third party to the judgment of divorce and so plaintiff may not maintain a claim of tortious interference against her as it pertains to that "contract." See Curry, 261 Mich App at 593. Accordingly, summary disposition of the tortious interference claim was appropriate under MCR 2.116(C)(7) and (8).
Plaintiff also argues that the trial court erred by not allowing him discovery before granting summary disposition. A motion for summary disposition is generally premature if granted before discovery is complete, however, "summary disposition may nevertheless be appropriate if further discovery does not stand a reasonable chance of uncovering factual support for the opposing party's position." Peterson Novelties, Inc v Berkley, 259 Mich App 1, 24-25; 672 NW2d 351 (2003).
In his brief on appeal, plaintiff does not explain what he hoped to learn through discovery or how it would cure the deficiencies in his complaint. Instead he argues that defendants failed to establish that there was no genuine issue of material fact. However, this is a reference to MCR 2.116(C)(10), while Amanda moved for summary disposition under MCR 2.116(C)(7) and (C)(8). For the reasons stated, summary disposition is appropriate because the allegations in plaintiff's complaint, even accepted as true, are deficient. Although discovery may have helped plaintiff determine specific dates of the incidents alleged in his complaint, the vast majority of those events are time barred by the three-year limitations period, and so determining specific dates for those events is inconsequential. Accordingly, plaintiff fails to show that discovery stands a reasonable chance of providing further support for his claims.
B. AMENDMENT
Plaintiff next argues that he should be given the opportunity to amend his complaint. We disagree.
We review a trial court's decision on a motion to amend pleadings for an abuse of discretion. Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 207-208; 920 NW2d 148 (2018). "The trial court abuses its discretion when its decision falls outside this range of principled outcomes." Kincaid v Flint, 311 Mich App 76, 94; 874 NW2d 193 (2015) (quotation marks and citation omitted).
Under MCR 2.116(I)(5), "[i]f the grounds asserted [for summary disposition] are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified." See also MCR 2.118(A)(2) ("Leave [to amend] shall be freely given when justice so requires."). "[A]n amendment is not justified if it would be futile." Liggett Restaurant Group, Inc v Pontiac, 260 Mich App 127, 138; 676 NW2d 633 (2003). "Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party, or where amendment would be futile." Miller v Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007).
In this case, plaintiff does not provide a proposed amended complaint. "If a plaintiff does not present its proposed amended complaint to the court, there is no way to determine whether an amendment is justified." Anton, Sowerby & Assoc, Inc v Mr C's Lake Orion, LLC, 309 Mich App 535, 551; 872 NW2d 699 (2015). Plaintiff's point is taken that, without knowing the trial court's specific reasons for granting summary disposition, he does not know how he needs to amend his complaint. But, as discussed, the pre-divorce allegations in plaintiff's complaint are time barred. Even if plaintiff were to amend his complaint to pertain to only post-divorce events, he has been incarcerated during this time and his right to communicate with his son has been governed by the orders in the divorce case. Accordingly, we conclude that any amendment to the complaint would be futile.
C. DUE PROCESS
Finally, plaintiff argues that he was denied due process and his right participate in the proceedings as a parent and a prisoner acting pro se.
Whether a party has been afforded due process is a question of law reviewed de novo. In re Contempt of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009). Plaintiff did not preserve this issue before the trial court, and so our review is for plain error. Duray Dev, LLC v Perrin, 288 Mich 143, 150; 792 NW2d 749 (2010). "Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings." Id.
Although plaintiff's statement of issues presented claims that he was denied participation in the "district court" proceedings in addition to the "family court" proceedings, his substantive arguments relate solely to the divorce proceedings, not the civil action from which he appeals. For instance, plaintiff makes repeated reference to the divorce judge and the four years of litigation in the divorce case. Further, plaintiff relies on MCR 2.004, which does not apply to the present action. Thus, even assuming plaintiff's assertions about his lack of participation in the divorce proceedings are true, there is no relief that we could grant him. That is, this Court cannot reverse the orders in the divorce case in an appeal from a dismissal of plaintiff's civil action. Overall, plaintiff's attempt to seek relief in this case contrary to the orders in the divorce case constitute an impermissible collateral attack. See People v Iannucci, 314 Mich App 542, 544; 887 NW2d 817 (2016); Kosch v Kosch, 233 Mich App 346, 353; 592 NW2d 434 (1999).
MCR 2.004, which governs the participation of incarcerated parties, applies to "(1) domestic relations actions involving minor children," and "(2) other actions involving the custody, guardianship, neglect, or foster-care placement of minor children, or the termination of parental rights, in which a party is incarcerated under the jurisdiction of the Department of Corrections." MCR 2.004(A)(1)-(2). Plaintiff's civil action is not a domestic relations action. And while plaintiff's complaint largely concerns the relationship with his son, this action does not involve child custody, guardianship, neglect, foster-care placement or the termination of plaintiff's parental rights.
Although it is clear that plaintiff's arguments relate to the divorce proceedings, we nonetheless conclude that he was afforded meaningful participation in the civil action. "Due process in civil cases generally requires notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker." In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000). In this case, the trial court dispensed with oral argument pursuant to MCR 2.119(E)(3) and decided Amanda's motion for summary disposition on the briefs. So plaintiff was not denied an opportunity to participate in a hearing. Further, plaintiff had the opportunity to be heard through his pleading and his brief in opposition to Amanda's motion for summary disposition. Accordingly, he has not shown that he was denied due process.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Jane M. Beckering