Opinion

Michelle Busuito v. Dte Energy Company

Court
Michigan Court of Appeals
Filed
Aug 21, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 38.9%

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JEROME DUBRULLE, JENNIFER DUBRULLE, UNPUBLISHED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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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