The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JEROME DUBRULLE, JENNIFER DUBRULLE, UNPUBLISHED
EDWARD KERFOOT, ELLEN KERFOOT, August 21, 2025
NICOLE NORRIS, MATTHEW NORRIS, CHAD 10:54 AM
HAURANI, MONA HAURANI, MARCY
TAYLER, ABBY PAULSON, ANDREW
HASTINGS, MARGUERITE KAISER, ROBERT
KAISER, MOLLY MCCLANAGHAN, RYAN
MORRIS, PATRICK SHANLEY, KELLY
SHANLEY, RHONDA FENDERSON, SARAH
FELDMAN, JOSHUA TUCKER, DANIELLE
TUCKER, and all others similarly situated,
Plaintiffs-Appellants,
and
MICHELLE BUSUITO and MATTHEW HOWE,
Plaintiffs,
v No. 367095
Wayne Circuit Court
DTE ENERGY COMPANY, MILLER PIPELINE- LC No. 21-009198-NZ
MICHIGAN LLC, UTILITY RESOURCE GROUP
LLC, and TMC ALLIANCE LLC,
Defendants-Appellees.
Before: PATEL, P.J., and RIORDAN and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs sued defendants, alleging that defendants’ actions caused power outages in the
Freud Pump Station, resulting in the flooding of plaintiffs’ properties. The trial court denied
plaintiffs’ motion to amend their complaint to add DTE Electric Company as a defendant.
Ultimately, the trial court granted defendants’ motions for summary disposition under MCR
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2.116(C)(8) and denied plaintiffs’ motion to strike exhibits that DTE Energy Company and Utility
Resource Group LLC (URG) filed with their motions. We reverse and remand for further
proceedings.
I. BACKGROUND
According to plaintiffs’ third amended complaint (TAC), on June 22, 2021, defendant
Miller Pipeline–Michigan LLC, acting as a contractor for DTE Energy or one of its subsidiaries,
was engaged in excavation and damaged an underground cable. As a result, power could not be
transmitted from the Ludden Substation to the Freud Pump Station, and five of the eight pumps at
the pump station became inoperable. On June 25 and 26, 2021, a “rain event” occurred. Plaintiffs
purportedly experienced property damage as a result of sewage backups and flooding. The parties
dispute the comparative impact of the rain and disabled pumps on plaintiffs’ alleged damages, and
the admissibility of information about the extent of the rain at this stage of the proceedings, but no
parties dispute that there was a damaged cable or power outage, or that it rained on June 25 and
26, 2021.
Plaintiffs originally sued DTE Energy and “John Does 1-5.” DTE Energy first moved for
summary disposition under MCR 2.116(C)(8) in December 2021, arguing that plaintiffs failed to
plead how DTE Energy “fit[] into this picture” or owed plaintiffs a duty. The trial court denied
DTE Energy’s motion, concluding that plaintiffs’ complaint sufficiently alleged the facts and
elements of plaintiffs’ claims. The case was ultimately reassigned to a different trial court judge.
In June 2022, plaintiffs moved for leave to file the TAC. Plaintiffs sought to add Miller
Pipeline, URG, TMC Alliance LLC (TMCA), and DTE Electric as defendants, and to remove
reference to John Does 1-5. DTE Energy opposed the request, arguing that amending plaintiffs’
complaint would be futile. DTE Energy further argued that plaintiffs “improperly conflate[d] DTE
Energy and DTE Electric,” that neither DTE Energy nor DTE Electric had a contractor relationship
with Miller Pipeline or TMCA, and, even if a DTE entity had contracted with one of the
subcontractors, any negligence could not imputed to DTE. Following a hearing, the trial court
granted plaintiffs’ motion to add the proposed defendants, except for DTE Electric. The trial court
stated during the hearing that adding DTE Electric would be futile.
The TAC alleged that defendants “were collectively responsible” for either damaging the
cable or failing to take reasonable steps to repair the power instrumentalities servicing Freud Pump
Station, and, as a result, Freud Pump Station was not fully operational during the “rain event,” and
plaintiffs suffered property damage from the resulting sewage backups. Specifically, plaintiffs
alleged that URG had been responsible for marking the power cables and had a duty to mark the
infrastructure as URG had indicated that it had. Miller Pipeline, acting as a contractor for DTE
Energy or one of its subsidiaries, had damaged the cable, failed to act with reasonable care, locate
the cables, or engage in soft-excavation techniques.1 According to plaintiffs, DTE Energy and
1
Under the MISS DIG Underground Facility Damage Prevention and Safety Act, MCL 460.721
et seq., “soft excavation” is “a method and technique designed to prevent contact damage to
underground facilities, including, but not limited to, hand-digging, cautious digging with
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Miller Pipeline had a duty to conduct a reasonable investigation to locate the underground power
cables near the planned excavation project. Further, DTE Energy and TMCA had a duty to
maintain and repair the power infrastructure that serviced the sewage-disposal system, but they
had failed to do so. Plaintiff explained that a 2014 agreement, the Energy Delivery Services
Agreement (EDSA), provided for a gradual system conversion of Detroit Public Lighting
Department’s (DPLD) assets, services, and customers to DTE. Under the EDSA, the city of
Detroit had contracted with TMCA to perform maintenance repairs on the DPLD system, but
TMCA was required to submit proposed work to DTE for review and approval, and DTE made
payments to TMCA. Plaintiffs alleged that DTE Energy failed to supervise its contractors, despite
being “functionally responsible” for the operation and maintenance of the DPLD system, including
the Ludden Substation and its instrumentalities.
Defendants each moved for summary disposition under MCR 2.116(C)(8), each describing
the June 25 and 26, 2021 rain as severe, historic, or a “1,000-year storm.” Specifically, Miller
Pipeline argued that it did not owe a legal duty to plaintiffs and that its actions were not a proximate
cause of plaintiffs’ damages. In its motion, TMCA also argued that it was entitled to summary
disposition because plaintiffs could not demonstrate that TMCA owed them a duty or that TMCA’s
actions were the cause in fact or a proximate cause of plaintiff’s damages. Next, DTE Energy
denied that it owed a duty to plaintiffs. In support of its motion, DTE Energy submitted various
exhibits, including Great Lakes Water Authority (GLWA) “Talking Points”; slides from a
presentation to GLWA by AECOM, an engineering consulting firm; an executive order of
Governor Whitmer declaring a state of emergency as a result of the “heavy rainfall”; and a contract
purportedly between Miller Pipeline and DTE Gas to demonstrate that DTE Energy had not
contracted with Miller Pipeline. Finally, URG argued that it was entitled to summary disposition
on the basis of a lack of proximate cause. URG attached exhibits that included the AECOM
presentation and the executive order.
Plaintiffs opposed the motions, and they also moved the trial court to strike or exclude the
AECOM presentation, GLWA Talking Points, and executive order on the basis that the trial court
was not permitted to consider evidence outside the pleadings when deciding defendants’ motions
made under MCR 2.116(C)(8). Further, the exhibits were “inadmissible, unreliable, and
contain[ed] hearsay not subject to any exception.” The trial court denied plaintiffs’ motion.
After a hearing, the trial court granted defendants’ motions for summary disposition. In its
opinion, the trial court referred to the June 25 and 26, 2021 rain as an “extraordinary 1000-year
rainfall event.” The trial court stated that it would treat DTE Energy “as encompassing all of its
subsidiaries,” which included DTE Electric and DTE Gas. Next, the trial court determined that
any duty that DTE Energy owed to plaintiffs arose from the common law. Although the EDSA
was “somewhat confusing,” and DLPD continued to own the electrical infrastructure, the EDSA
“appear[ed] to transfer maintenance of the prior DLPD lines to DTE.” Further, it was “clear” to
the trial court that a DTE entity “was in control of the electrical infrastructure of the pumping
stations.” The trial court determined that the damage that plaintiffs suffered “resulted from a series
nonmechanical tools, vacuum excavation methods, or use of pneumatic hand tools.” MCL
460.723(bb).
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of unfortunate events that coincided with an unexpected torrential rain event” and there was “no
connection between” the damaged utility and the damage to plaintiffs’ homes. Instead, “the
extraordinary 1000-year rainfall event was not reasonably foreseeable and was the superseding
cause of the damage done.”
Accordingly, the trial court concluded that DTE Energy owed no duty to plaintiffs when
the unforeseeable event was the cause of the damage. Additionally, Miller Pipeline was entitled
to summary disposition on the basis of a lack of proximate cause because the rainfall was a
superseding cause that was not reasonably foreseeable. Likewise, plaintiffs could not establish
that URG’s actions were a proximate cause of plaintiffs’ damages. Finally, according to the trial
court, “TMCA was in no way implicated in or connected to any damage suffered by Plaintiffs.”
Plaintiffs now appeal.2
II. ANALYSIS
A. MOTION TO STRIKE
First, plaintiffs argue that the trial court erred by failing to strike evidence that DTE Energy
and URG submitted with their motions for summary disposition. We review for an abuse of
discretion a trial court’s decision on a motion to strike. Kalaj v Khan, 295 Mich App 420, 425;
820 NW2d 223 (2012). “A trial court abuses its discretion when its decision falls outside the range
of principled outcomes.” Micheli v Mich Auto Ins Placement Facility, 340 Mich App 360, 367;
986 NW2d 451 (2022) (cleaned up).
When deciding a motion made under MCR 2.116(C)(8), a trial court may only consider the
pleadings. MCR 2.116(G)(5). In this case, defendants moved for summary disposition under
MCR 2.116(C)(8), and, accordingly, the trial court was not permitted to consider information
beyond the pleadings. On appeal, DTE Energy argues that the challenged exhibits contained
information subject to judicial notice under MRE 201. At the time that the trial court made its
decision, MRE 201(b) provided, “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Although a trial court may take judicial notice of certain facts, the
parties disagree about the amount of rain that occurred and the impact that the rain had on
plaintiffs’ property damage. Accordingly, the facts were subject to reasonable dispute at this stage
of the proceeding.3
2
These plaintiffs have also sued the GLWA and involved cities in a separate case. The trial court
dismissed those claims under MCR 2.116(C)(7) on the basis of governmental immunity. An
appeal of that order is pending.
3
This does not necessarily foreclose defendants from arguing that there is a lack of a genuine
question of material fact in a motion for summary disposition made under MCR 2.116(C)(10)
following discovery.
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It was not improper for the trial court to take judicial notice of the existence of the executive
order when there can be no dispute that the order was issued. See, e.g., Dalley v Dykema Gossett,
287 Mich App 296, 301 n 1; 788 NW2d 679 (2010). Nor do plaintiffs dispute that it rained. It
was, however, erroneous for the trial court to consider the content of the order, and the content of
the other exhibits, to determine, at this stage of the proceedings, that the rain was a superseding
cause of the damages when the facts could not reasonably be said to have been undisputed or
capable of accurate determination. See Freed v Salas, 286 Mich App 300, 340; 780 NW2d 844
(2009).
B. SUMMARY DISPOSITION
Next, plaintiffs argue that the trial court erred by granting summary disposition to all
defendants. This Court reviews de novo a trial court’s decision to grant or deny a motion for
summary disposition. Sherman v City of St. Joseph, 332 Mich App 626, 632; 957 NW2d 838
(2020). “A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of
a claim by the pleadings alone.” Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998).
“When considering such a motion, a trial court must accept all factual allegations as true, deciding
the motion on the pleadings alone.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160;
934 NW2d 665 (2019). A trial court may only grant a motion under MCR 2.116(C)(8) “when a
claim is so clearly unenforceable that no factual development could possibly justify recovery.” Id.
“Whether a defendant owes a particular plaintiff a duty is a question of law that this Court reviews
de novo.” Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013).
A negligence claim requires that a plaintiff establish that: (1) the defendant owed the
plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered damages; and (4)
the breach proximately caused the plaintiff’s damages. Loweke v Ann Arbor Ceiling & Partition
Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). There can be no liability for negligence if
the defendant owed no duty to the plaintiff. Hills v Sears, Roebuck & Co, 492 Mich 651, 660; 822
NW2d 190 (2012). A duty may arise from statute or through common-law principles. Phillips v
Deihm, 213 Mich App 389, 397; 541 NW2d 566 (1995). Under the common law, every person
has “an obligation to use due care, or to so govern his actions as not to unreasonably endanger the
person or property of others.” Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). If the
existence of a duty turns on the resolution of a factual dispute, then the dispute must be submitted
to the fact-finder. Howe v Detroit Free Press, Inc, 219 Mich App 150, 156; 555 NW2d 738 (1996).
“Proximate cause is usually a factual issue to be decided by the trier of fact, but if the facts bearing
on proximate cause are not disputed and if reasonable minds could not differ, the issue is one of
law for the court.” See Dawe v Dr Reuven Bar-Levav & Assoc (On Remand), 289 Mich App 380,
393; 808 NW2d 240 (2010).
Plaintiffs argue that it was improper for the trial court to consider information apart from
the pleadings and make factual determinations when granting defendants summary disposition. It
does appear, in fact, that the trial court considered the extent and nature of the rainfall, either
through the exhibits that defendants submitted or through information provided in plaintiffs’ other
lawsuit. Specifically, the trial court determined that “the damage suffered by Plaintiffs resulted
from a series of unfortunate events that coincided with an unexpected torrential rain event” and
that there was “no connection between the damage done to the electric power line and the cause
of the damage done to Plaintiffs’ homes” (emphasis added). The trial court determined that “the
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1000-year rainfall was a superseding cause and was not reasonably foreseeable.” This was all
information outside the TAC.
This was error. “Michigan is a notice-pleading jurisdiction,” Dobronski v Transamerica
Life Ins Co, 347 Mich App 92, 106; 13 NW3d 895 (2023), and, in this case, plaintiffs adequately
put defendants on notice of plaintiffs’ claims against them. Plaintiffs were only required to include
enough information in their complaint “reasonably to inform the defendant of the nature of the
claim against which [it] must defend.” Veritas Auto Machinery, LLC v FCA Int’l Operations, 335
Mich App 602, 615; 968 NW2d 1 (2021) (cleaned up).
With respect to duty, although there are a variety of factors to consider when determining
whether to recognize a duty, “the nature of the relationship between the parties and the
foreseeability of the harm are paramount.” Roberts v Salmi, 308 Mich App 605, 614; 866 NW2d
460 (2014). There is no duty to exercise reasonable care to avoid an unforeseeable harm. See
Babula v Robertson, 212 Mich App 45, 51-52; 536 NW2d 834 (1995).
The trial court concluded that DTE Energy had no duty to plaintiffs, primarily resting its
decision on the unforeseeable nature of the damages and the superseding cause of the rain.
Foreseeability is a crucial factor when addressing whether a duty exists. See Roberts, 308 Mich
App at 53. The trial court’s opinion also appears to determine that DTE Energy could not have
been a proximate cause of plaintiffs’ damages on the basis of superseding rain. There is not,
however, enough factual support at this point in the proceedings to determine whether DTE Energy
was entitled to dismissal on the basis of duty or proximate cause. See Veritas, 335 Mich App
at 614. DTE Energy argues that the trial court appropriately determined that the rainstorm was a
superseding cause of plaintiffs’ damages when “the magnitude of the rainstorm and the
infrequency of such an event are beyond dispute.” The magnitude of the rain and its impact,
however, were in dispute, and the trial court could not determine, at this stage of the proceedings,
that no factual developmental could possibly justify recovery. See El-Khalil, 934 NW2d at 160.
Moreover, plaintiffs adequately pleaded a relationship between DTE Energy and plaintiffs.
The trial court seemed to recognize this, noting that it was “clear” that “DTE[] was in control of
the electric infrastructure of the pumping stations” and that Miller Pipeline was a DTE contractor.
The trial court observed that the EDSA was “somewhat confusing,” but it “appear[ed] to transfer
maintenance of the prior DPLD lines to DTE.”
Despite acknowledging a potential relationship between a DTE entity and plaintiffs, the
trial court determined that DTE Energy had no duty to plaintiffs. As discussed below, the trial
court erred by not allowing plaintiffs to amend their complaint to add DTE Electric as a defendant.
Plaintiffs alleged that DTE Energy, or one of its subsidiaries, was responsible for managing the
Ludden Substation and overseeing TMCA’s work to ensure that the Freud Pump Station was
adequately operational. Further, plaintiffs alleged that a DTE entity approved the excavation
project, even though it knew, or should have known, that DPLD cables were nearby; failed to
supervise Miller Pipeline’s work plan; and failed to take reasonable steps to repair the electrical
service despite knowing about the power outage for three days before the forecasted rain.
Although DTE Energy disputes these allegations, those questions are not resolvable under MCR
2.116(C)(8). Further, although DTE Energy argues that it cannot be held liable for any negligence
by its contractors, see DeShambo v Nielsen, 471 Mich 27, 31; 684 NW2d 332 (2004), even if it
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had contracted with the other defendants in this case, plaintiffs’ allegations were sufficient to
warrant factual development before this determination is made. Accordingly, plaintiffs adequately
pleaded a duty.
DTE Energy also relies on the trial court’s opinion in the GLWA case, arguing that
plaintiffs “had a full and fair opportunity to litigate the factual predicates for the trial court’s ruling”
and are bound by that adjudication. The trial court, however, dismissed that case on a motion
made under MCR 2.116(C)(7). Although a trial court is permitted to consider record evidence
when evaluating claims of governmental immunity, see MCR 2.116(G)(5), it is not accurate to say
that plaintiffs have had a full and fair opportunity to litigate the issues in this case, that differ from
the claims in plaintiffs’ other case, against different defendants, before completing discovery.
Further, as plaintiffs argue, DTE Energy did not claim collateral estoppel in its motion for
summary disposition, and the trial court did not determine that it applied. “Collateral estoppel bars
relitigation of an issue in a new action arising between the same parties or their privies when the
earlier proceeding resulted in a valid final judgment and the issue in question was actually and
necessarily determined in that prior proceeding.” Leahy v Orion Twp, 269 Mich App 527, 530;
711 NW2d 438 (2006). DTE Energy argues that under the concept of “One Court of Justice,”
see, e.g., Prawdzik v Heidema Bros, Inc, 352 Mich 102; 89 NW2d 523 (1958), the trial court was
permitted to take notice of the proceedings in plaintiffs’ other case. Although a trial court may be
permitted to consider that other related records exist, weighing those factual findings in this case
is not appropriate, particularly when plaintiffs’ other case involved different defendants and factual
questions. Therefore, the trial court erred by granting DTE Energy’s motion.
The trial court did not address the duties of the remaining defendants, beyond noting that
there can be no duty when an unforeseeable event was the cause of the damages, although TMCA
and Miller Pipeline properly raised the issue in their motions for summary disposition. As with
DTE Energy, however, summary disposition on the basis of duty would have been premature for
these defendants.
Turning to proximate cause, the trial court primarily decided the case as to all defendants
on the basis that the rain constituted a superseding cause. To establish causation, a plaintiff must
prove that a defendant’s action was both the cause in fact and a proximate cause of the plaintiff’s
injuries. See Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). “The cause
in fact element generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s
injury would not have occurred.” Id. at 163. Proximate cause, or legal causation, “requires a
determination of whether it was foreseeable that the defendant’s conduct could result in harm to
the victim.” See Ray v Swager, 501 Mich 52, 65; 903 NW2d 366 (2017). More than one proximate
cause may contribute to an injury. Id. “An intervening cause breaks the chain of causation and
constitutes a superseding cause which relieves the original actor of liability, unless it is found that
the intervening act was reasonably foreseeable.” McMillian v Vliet, 422 Mich 570, 576; 374 NW2d
679 (1985). “[B]ecause proximate cause is concerned with the foreseeability of consequences,
only a human actor’s breach of a duty can be a proximate cause.” Ray, 501 Mich at 72. A
nonhuman force may constitute a superseding cause that relieves a defendant from liability,
however, if the intervening force was not reasonably foreseeable. Id.
The trial court erred by determining at this stage of the proceedings that the rain constituted
a superseding cause, precluding a finding that plaintiffs did not adequately plead causation. There
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may be no dispute that it rained on June 25 and 26, 2021, but the parties dispute the extent of the
rain. Critically, the extraneous records cited by defendants are all outside the pleadings, and the
information in those records cannot be judicially noticed for purposes of summary disposition
under MCR 2.116(C)(8).
Accordingly, the trial court erred by granting URG’s motion on the basis of proximate
cause. Plaintiffs properly pleaded that URG responded to the MISS DIG notification and that
URG may be liable if they failed to mark the cable, resulting in the power outage at Freud Pump
Station and flooding of plaintiffs’ properties. It is not unforeseeable as a matter of law, with this
lack of evidentiary record, that failing to mark underground utilities could result in the damages
that plaintiffs allege here. URG argues that the unprecedented nature of the rain event is not
disputable. To argue that the rain was a superseding cause, however, requires factual
determinations that some level of rain superseded the effect of the power outages, and those
determinations cannot yet be made. As plaintiffs argue on appeal, rain, even heavy rain, is not
necessarily unforeseeable, and sewage backups are a foreseeable type of injury to result from
disabling a pumping station.
Likewise, the trial court erred by granting Miller Pipeline’s motion for summary
disposition on the basis of proximate cause. Plaintiffs properly alleged that Miller Pipeline
damaged the cable, resulting in the power outages, after failing to locate the cable or use soft-
excavation techniques. It was erroneous to determine at this point that no factual development
could support plaintiffs’ well-pleaded claims against Miller Pipeline.
Finally, plaintiffs properly pleaded causation as it related to TMCA. Specifically, plaintiffs
alleged that TMCA undertook the duty to repair the power instrumentalities, but failed to do so in
a timely manner, and the resulting inoperability of the Freud Pump Station pumps caused
plaintiffs’ damages. TMCA disputes that plaintiffs can establish either cause in fact or proximate
cause, but little is known at this stage of the proceedings about what actions TMCA took toward
making the repairs and what impact TMCA’s actions had on the Freud Pump Station remaining
disabled by the time of the rain. As TMCA argues on appeal, proximate cause does not always
need to be determined by a jury. See Babula, 212 Mich App at 54. It is possible that, following
discovery, the trial court will determine that plaintiffs have failed to raise a genuine question of
material fact on the issue. At this point, however, plaintiffs have put TMCA, and all defendants,
on notice of the claims against them. Further, as plaintiffs argue on appeal, defendants blame each
other for plaintiffs’ damages, but multiple tortfeasors may be liable for a common injury. See
Gerling Konzern Allgemeine Versicherungs AG v Lawson, 472 Mich 44, 56; 693 NW2d 149
(2005). Plaintiffs are entitled to engage in discovery regarding their well-pleaded allegations.
C. MOTION TO AMEND
Finally, plaintiffs argue that the trial court erred by denying their motion to add DTE
Electric as a party. This Court reviews for an abuse of discretion a trial court’s decision regarding
a motion to amend pleadings. Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich
App 440, 458; 980 NW2d 119 (2021).
A party has the right to “amend a pleading once as a matter of course within 14 days after
being served with a responsive pleading by an adverse party.” MCR 2.118(A)(1). “Except as
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provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written
consent of the adverse party. Leave shall be freely given when justice so requires.” MCR
2.118(A)(2). If a court grants summary disposition under MCR 2.116(C)(8), it must give the
parties an opportunity to amend their pleadings, unless amendment would be futile. Weymers v
Khera, 454 Mich 639, 658; 563 NW2d 647 (1997). A trial court should ordinarily grant a motion
to amend, and should only deny a motion to amend on the basis of “(1) undue delay, (2) bad faith
or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by
amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance
of the amendment, [or] (5) futility.” Id. (cleaned up).
First, DTE Energy argues that plaintiffs lack standing to challenge the trial court’s denial
of their motion to add DTE Electric as a defendant because the trial court treated DTE Energy and
its subsidiaries as one party, and, accordingly, plaintiffs were not aggrieved by the decision. An
appellant may, however, “raise issues on appeal related to prior orders.” Green v Ziegelman, 282
Mich App 292, 301 n 6; 767 NW2d 660 (2009) (cleaned up). Further, because the pleadings were
sufficient to survive defendants’ motions for summary disposition under MCR 2.116(C)(8), the
question of DTE Energy’s and DTE Electric’s involvement will be relevant on remand. The trial
court found that adding DTE Electric would be futile, but DTE Energy has argued that plaintiffs
were conflating DTE Energy and DTE Electric, and that DTE Energy was not a party to the EDSA
or otherwise close enough to the events to be held liable. Adding DTE Electric will permit the
proper parties to engage in discovery and litigation.
Therefore, adding DTE Electric at this stage of the proceedings would not be futile. The
trial court did not address the remaining bases for denying a motion to amend, but there is also no
evidence that there was undue delay or that plaintiffs acted in bad faith by not first naming DTE
Electric as a defendant. See Weymers, 454 Mich at 658. Further, there is no evidence that there
were repeated failures to cure deficiencies, or that that there would be undue prejudice to DTE
Energy, DTE Electric, or any other defendant to allow the amendment. See id. Accordingly, the
trial court erred by denying plaintiffs’ motion for leave to amend to add DTE Electric as a party.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Sima G. Patel
/s/ Michael J. Riordan
/s/ Brock A. Swartzle
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