Samuel Jerome v. Michael Crum

STATE OF MICHIGAN

COURT OF APPEALS

SAMUEL JEROME, UNPUBLISHED

December 27, 2018

Plaintiff-Appellant,

v No. 335328

Oakland Circuit Court

MICHAEL CRUM and CITY OF BERKLEY, LC No. 2015-148401-CZ

Defendants-Appellees.

Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.

PER CURIAM.

In this case alleging police misconduct, plaintiff appeals the grant of summary disposition

to defendants. For the reasons provided below, we affirm.

I. BASIC FACTS

Plaintiff was the target of a criminal investigation pertaining to alleged sexual abuse of

his step-daughter, the complainant. Defendant Michael Crum was the officer in charge of the

investigation and was employed by the City of Berkley, his codefendant. We set forth only the

facts necessary to place the legally significant issues in context, but the full facts can be found in

Jerome v Crum, 695 F Appx 935, 936-940 (CA 6, 2017).

The complainant participated in four different interviews during the course of the

criminal investigation. Crum interviewed plaintiff three times: on May 7, July 11, and August

21, 2013. And the complainant was interviewed at CARE House on May 16, 2013, by other

individuals. However, there were significant discrepancies between the interviews. On May 7,

2013, the complainant stated that plaintiff assaulted her two times, and provided details. But the

following week, at CARE House, the complainant stated that there had been no assault. Indeed,

according to Crum’s notes, the complainant “made excuses for [plaintiff] and took most of the

blame for the incident.”1

1

The only record we have of this CARE House interview is from Crum’s notes. Although Crum

did not ask questions during the interview, he witnessed it and took notes.

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On July 11, 2013, Crum interviewed the complainant to find out why her versions of

events had changed. The complainant stated that her mother had made her change her story.

Specifically, the complainant described her mother as saying that if she did not change her story,

the mother, who already had a history of mental illness, would commit suicide. Further the

mother purportedly threatened that the complainant and her younger sister would be sent to

foster home, where they “would be raped daily.” The complainant further reiterated that plaintiff

had sexually assaulted her twice.

Crum sent the case to the prosecutor’s office. However, the prosecutor requested further

information from the complainant before authorizing an arrest warrant. As a result, Crum

interviewed the complainant (and her sister) on August 21, 2013. In his written notes regarding

that interview, Crum stated that the complainant’s story was “exactly” as she had previously

described it in the May 7, 2013 interview. However, the August 21 interview was video

recorded,2 and the recording reveals that the complainant’s statements, rather than being exactly

as she had said in May, diverged in some respects. The video shows that regarding the first

alleged assault, the complainant stated that, in response to her telling plaintiff to stop, he kept

saying “Why?”; in her May 7 description, by contrast, she stated that plaintiff said nothing

during the encounter. Related to the second alleged assault, the video shows that the

complainant stated that plaintiff “sat on [her]” and held her down, and that plaintiff “kept

talking” about the complainant’s mother. These descriptions are different from what Crum noted

the complainant as saying during the May 7 interview, where she stated that plaintiff “sat next to

her” and said nothing during the encounter.

Following the filing of criminal charges, the complainant testified at an October 9, 2013

preliminary examination. There, the details she provided were similar to what the video of the

August 21 interview revealed. Regarding her recantation at CARE House, plaintiff testified that

she had changed her story on that occasion because her mother had pressured her to do so.

Based on the complainant’s testimony at the preliminary examination alone, the court found

probable cause to bind plaintiff over for trial.

However, Crum belatedly disclosed the existence of the videotape of the August 21

interview to the prosecutor, which resulted in the trial court declaring a mistrial. After the

mistrial, the prosecution decided to not retry plaintiff.

Afterward, plaintiff filed a complaint in federal district court. He alleged federal claims

of false arrest and imprisonment, malicious prosecution, denial of due process, and

2

Crum claimed the recording was inadvertent, testifying that another officer ran the video

machine, that Crum did not know how to do so, and that departmental policy prohibited the

recording of juveniles such as the complainant.

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unconstitutional policy or custom.3 With respect to these federal claims, defendants moved for

summary judgment pursuant to FR Civ P 56.

On August 5, 2015, plaintiff filed the instant complaint in state court, alleging four

counts: unlawful arrest, malicious prosecution, false imprisonment, and gross negligence. On

July 8, 2016, defendants moved the state court for summary disposition on plaintiff’s state

claims. With respect to the intentional tort claims of unlawful arrest and false imprisonment,

defendants argued that Crum was entitled to governmental/individual immunity. Defendants

also argued that the existence of probable cause defeated the two claims. With respect to the

claim of malicious prosecution, defendants argued that the existence of immunity and probable

cause defeated plaintiff’s claim. And with respect to the gross negligence count, defendants

argued that the claim merely was a restatement of plaintiff’s unlawful arrest and false

imprisonment claims. Moreover, defendants argued that the facts did not demonstrate conduct

that was “so reckless” as to constitute gross negligence and that Crum’s actions were not “the”

proximate cause of plaintiff’s alleged damages.

On August 25, 2016, plaintiff filed a response to defendants’ motion in state court. On

that same day, the federal district court entered an opinion and order that granted defendants’

motion for summary judgment on the federal claims. The federal district court ruled that there

had been probable cause to prosecute plaintiff, which defeated the claims for false arrest and

malicious prosecution. Further, because the evidence did not show that Crum acted with reckless

disregard for the truth, he was entitled to qualified immunity. The federal court also dismissed

the due-process claim, which was based on an alleged Brady violation, 4 because the criminal

proceedings ultimately resolved in plaintiff’s favor. Finally, because plaintiff failed to

demonstrate that Crum violated his constitutional rights, the court ruled that he could not show

municipal liability on the part of defendant City of Berkley.

Subsequently, in their reply brief filed in the state trial court, defendants asserted for the

first time that summary disposition was warranted because the federal judgment collaterally

estopped plaintiff from litigating his state claims.

Two weeks later, the trial court held a hearing on defendants’ motion. At the hearing,

plaintiff’s counsel commented on how he had not been afforded an opportunity to respond in

writing regarding the collateral estoppel issue. Plaintiff’s counsel argued that, in any event,

collateral estoppel did not bar the state claims because (1) the federal judgment was under appeal

and (2) the federal claims are completely separate from the state claims. The trial court entered

an opinion and order granting defendants’ motion for summary disposition. The trial court

3

Plaintiff also alleged certain state claims, but the federal court declined to exercise

supplemental jurisdiction over them and consequently dismissed them.

4

“[T]he suppression of evidence that was favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed

2d 215 (1963).

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granted the motion solely on the basis that plaintiff was collaterally estopped from proceeding

based on the adjudication of the federal claims.

Plaintiff subsequently filed his appeal of right in this Court. While this appeal was

pending, the United States Sixth Circuit Court of Appeals affirmed the federal district court’s

decision to dismiss the federal claims. Jerome, 695 F Appx at 943.

II. STANDARD OF REVIEW

Summary disposition is proper under MCR 2.116(C)(7) if plaintiff’s claims are barred on

the basis of collateral estoppel. Alcona Co v Wolverine Environmental Production, Inc, 233

Mich App 238, 246; 590 NW2d 586 (1998). Summary disposition under MCR 2.116(C)(10) is

properly granted if there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Transou v City of Pontiac, 283 Mich App 71, 73; 769 NW2d 281

(2009). This Court reviews a trial court’s decision on a motion for summary disposition de novo.

Id. at 72-73. When considering a motion under MCR 2.116(C)(7) or (C)(10), a court must

consider the pleadings, depositions, admissions, and documentary evidence then filed in the

action in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Transou, 283

Mich App at 73.

III. ANALYSIS

A. DUE PROCESS AT THE TRIAL COURT

Plaintiff first argues that the trial court erred when it granted summary disposition in

favor of defendants without allowing him to submit a written response to defendants’ request for

summary disposition on the basis of collateral estoppel. He claims that such action deprived him

of his right to procedural due process. Plaintiff is correct that no written response normally

would have been permitted because the issue of collateral estoppel was first raised in defendants’

reply brief. While plaintiff asked at the hearing that he be allowed to submit a brief after the

hearing, he never argued that the failure to allow him to submit such a brief violated his right to

due process. As a result, the issue raised on appeal is not preserved, see Keenan v Dawson, 275

Mich App 671, 681; 739 NW2d 681 (2007), and our review is limited to one for plain error

affecting substantial rights, In re Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810

(2007), aff’d 480 Mich 19 (2008).

On appeal, plaintiff claims that he was precluded from opposing defendants’ motion “in a

meaningful way” and that we should remand to allow him “the opportunity to fully and

meaningfully respond to what is now the central issue in this case [collateral estoppel].” We

disagree. Plaintiff fails to acknowledge that he was given an opportunity at the motion hearing

in the trial court to orally contest the motion and in fact availed himself of the opportunity. At

the hearing, plaintiff’s counsel argued that collateral estoppel did not bar the claims because (1)

at that time the federal judgment was under appeal; and (2) the federal claims were completely

separate from the state claims. Under these circumstances, there is no plain error requiring

reversal. “The fundamental requirements of procedural due process are notice and a meaningful

opportunity to be heard before an impartial decision maker.” In re Beck, 287 Mich App 400,

401-402; 788 NW2d 697 (2010). Here, plaintiff fails to explain how, in light of his having been

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timely apprised of the issue in advance, being permitted to orally argue at the motion hearing did

not constitute a meaningful opportunity to contest the motion. Indeed, hearings in open court

routinely are sufficient to meet this requirement. See, e.g., Klco v Dynamic Training Corp, 192

Mich App 39, 42; 480 NW2d 596 (1991). Accordingly, we hold that plaintiff has failed to show

how he was denied the basic requirements of due process.

B. MERITS OF TRIAL COURT’S DECISION

The trial court granted summary disposition on the basis of collateral estoppel. The term

“collateral estoppel” refers to issue preclusion. People v Gates, 434 Mich 146, 154 n 7; 452

NW2d 627 (1990). By contrast, the term “res judicata” refers to “claim preclusion,” Bennett v

Mackinac Bridge Auth, 289 Mich App 616, 629; 808 NW2d 471 (2010), which addresses “the

preclusive effect of a judgment upon a subsequent proceeding on the basis of the same cause of

action,” Gates, 434 Mich at 154 n 7. “Collateral estoppel precludes relitigation of an issue in a

subsequent, different cause of action between the same parties when the prior proceeding

culminated in a valid judgment and the issue was actually and necessarily determined in the prior

proceeding.” Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995). The doctrine

of collateral estoppel is intended “ ‘to relieve parties of the cost and vexation of multiple

lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage

reliance on adjudication . . . .’ ” Monat v State Farm Ins Co, 469 Mich 679, 692-693; 677 NW2d

843 (2004) (citation omitted). “Generally, for collateral estoppel to apply three elements must be

satisfied: (1) a question of fact essential to the judgment must have been actually litigated and

determined by a valid and final judgment; (2) the same parties must have had a full and fair

opportunity to litigate the issue; and (3) there must be mutuality of estoppel.” Id. at 682-683

(quotation marks and citations omitted). Here, defendant argues that issues determined by the

district court and court of appeals in plaintiff’s federal lawsuit satisfy the requirements of

collateral estoppel and thus bar the present case.

1. PRECLUSIVE EFFECT OF FEDERAL COURT RULING PENDING ITS APPEAL

In arguing that the trial court erred when it granted summary disposition in favor of

defendant, plaintiff does not contend that the elements of collateral estoppel are not met. Instead,

plaintiff contends that, because the federal district court’s judgment was pending appeal in the

Sixth Circuit at the time the trial court in this case granted summary disposition, the trial court

should have stayed the matter until the Sixth Circuit rendered its decision. This issue is moot, as

the Sixth Circuit has since then affirmed the federal district court’s ruling. Jerome, 695 F Appx

at 943. In any event, the federal district court’s decision retained whatever preclusive effect it

had during the pendency of the federal appeal. Erebia v Chrysler Plastic Products Corp, 891

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F2d 1212, 1215 n 1 (CA 6, 1989).5 As a result, the trial court did not err when it failed to wait

for plaintiff’s appeal in the Sixth Circuit to resolve.6

2. COUNTS I, II, AND III

Plaintiff next argues, in summary fashion, that collateral estoppel does not bar Counts I,

II, or III of his complaint. Count I alleged that plaintiff was unlawfully or falsely arrested, on the

basis that there was not probable cause to arrest him. Count II alleged malicious prosecution,

again based on the purported absence of probable cause for initiating or continuing the criminal

proceedings. Count III alleged false imprisonment, also premised on an asserted lack of

probable cause to arrest him.

Thus, each of Counts I, II, and III was predicated factually on there being an absence of

probable cause to arrest plaintiff at the time the criminal charges issued. See Matthews v Blue

Cross & Blue Shield of Mich, 456 Mich 365, 389; 572 NW2d 603 (1998) (“[T]he only situation

in which an action for malicious prosecution would properly lie is where a police officer

knowingly swears to false facts in a complaint, without which there is no probable cause.”);

Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 18; 672 NW2d 351 (2003) (“To

prevail on a claim of false arrest or false imprisonment, a plaintiff must show that the arrest was

not legal, i.e., the arrest was not based on probable cause.”).

In plaintiff’s federal lawsuit, the courts ruled that probable cause was in fact established

and that even if Crum had disclosed the exculpatory recording of the August 21 interview to

plaintiff, as he may have been required to, probable cause nevertheless would have continued to

exist. See Jerome, 695 F Appx at 942. Thus, collateral estoppel applies to each of Counts I, II,

and III because the federal court action was between the same parties, there was a valid

judgment, and the issue of whether disclosure of the withheld video recording to plaintiff would

have eviscerated probable cause was actually and necessarily determined in the prior proceeding.

5

This Court “must apply federal claim-preclusion law in determining the preclusive effect of a

prior federal judgment.” Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380-

381; 596 NW2d 153 (1999) (quotation marks and citation omitted).

6

We note that to the extent the trial court erred when it granted summary disposition on the basis

of collateral estoppel when that issue was initially raised in defendants’ reply brief instead of

their motion for summary disposition, any such error is harmless. It is important to recognize

that in his brief on appeal in this Court, plaintiff simply asks that we remand to allow him to fully

present his argument regarding collateral estoppel to the trial court. When, as here, all the facts

necessary to resolve the issue have been presented to the trial court and therefore are available to

us, the issue of collateral estoppel is one of law which we can decide without a remand. Laurel

Woods Apartments v Roumayah, 274 Mich App 631, 640; 734 NW2d 217 (2007); Minicuci v

Scientific Data Mgt, Inc, 243 Mich App 28, 34; 620 NW2d 657 (2000); see also People v

LeBlanc, 399 Mich 31, 49 n 12; 248 NW2d 199 (1976) (stating that a reviewing court may

decide an issue, although not properly raised at the trial court, “in the interest of justice and

judicial efficiency”).

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Porter, 214 Mich App at 485. Thus, based on collateral estoppel, plaintiff cannot prevail here

because he may not relitigate the issue of probable cause. Because the lack of probable cause is

an element of each of Counts I, II, and III, and because plaintiff cannot, as a matter of law,

establish a lack of probable cause for his arrest, summary disposition was properly granted as to

each of these counts.

3. COUNT IV

Plaintiff next argues that even if the federal decision is given full preclusive effect, while

it might bar most of his claims, it cannot preclude his state-law claim of gross negligence. This

is so, plaintiff maintains, because at most the federal decisions merely resulted in a conclusive

determination that there was probable cause to arrest and imprison him, which is different than a

determination that Crum did not act with gross negligence. While we agree that the

determination of probable cause in the federal action does not equate to a finding regarding gross

negligence, the claim is still barred under principles of collateral estoppel.

One of the elements of any negligence or gross negligence claim is causation. Indeed,

under the governmental tort liability act, MCL 691.1401 et seq., “[a]n employee of a

governmental agency acting within the scope of his or her authority is immune from tort liability

unless the employee’s conduct amounts to gross negligence that is the proximate cause of the

injury.” Kendricks v Rehfield, 270 Mich App 679, 682; 716 NW2d 623 (2006) (emphasis

added). A governmental employee’s gross negligence is the proximate cause of an injury if it is

“ ‘the one most immediate, efficient, and direct cause’ preceding the injury.” Love v Detroit, 270

Mich App 563, 565; 716 NW2d 604 (2005), quoting Robinson v Detroit, 462 Mich 439, 446; 613

NW2d 307 (2000). Here, the Sixth Circuit expressly ruled that Crum’s failure to disclose the

tape of the August 21 interview did not cause any harm to plaintiff. Specifically, the Sixth

Circuit ruled that, assuming

Crum had maliciously misled the prosecutor into thinking that the August 21

interview had been identical to the initial May interview, [the complainant’s]

testimony at the preliminary examination in October repeating all of the material

differences in the August 21 interview removed any materiality of Crum’s

statements in the maintenance of [plaintiff’s] prosecution. The prosecution (and

[plaintiff], for that matter) would have been aware that [the complainant’s]

October testimony differed from her May testimony. Because those differences

were the same differences from the August 21 interview, any diminution of

probable cause based on those discrepancies would have already been revealed

and Crum’s contention of consistent testimony would have had little impact upon

the decision to continue prosecution. Therefore, the withholding of the

information within the August 21 interview was not material to the prosecution.

[Jerome, 695 F Appx at 942-943.]

In other words, the federal court ruled that Crum’s failure to turn the tape of the August

interview over to either the prosecution or plaintiff did not affect the continuation of the

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prosecution against plaintiff and had no effect on plaintiff’s continued confinement while

awaiting trial.7 With the federal courts having already determined that the failure to turn over the

tape of the interview had no effect on plaintiff’s prosecution or imprisonment, plaintiff cannot

relitigate the issue of causation anew. Therefore, the trial court properly granted defendant’s

motion for summary disposition on this count as well.

Moreover, assuming that collateral estoppel was not applicable as the dissent suggests,

summary disposition would be appropriate under MCR 2.116(C)(10) for lack of a genuine issue

of material fact. For the reasons already outlined, there is no evidence to show that Crum’s

failure to turn over the video recording of the August interview was a cause, let alone the

proximate cause, of plaintiff’s continued prosecution or imprisonment. Any suggestion that the

prosecution would have dropped the case against plaintiff sooner if it had been aware of the tape

earlier is to engage in impermissible speculation. See Libralter Plastics, Inc v Chubb Group of

Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993) (“[P]arties opposing a motion for

summary disposition must present more than conjecture and speculation to meet their burden of

providing evidentiary proof establishing a genuine issue of material fact.”). Any reliance on the

prosecution’s ultimate decision to decline pursuing the case after the mistrial is misplaced

because there is nothing in the record to show that the prosecution’s decision was based on the

existence of the videotape. Indeed, there are a host of possible reasons not related to the late

production of the videotape why the prosecution could have decided to forgo a second trial,

including that the witnesses perhaps testified in an unexpected way at the first trial8 or that the

complainant perhaps simply decided that she was not going to testify or cooperate any more after

having already been subjected to several interviews and having already testified in court twice.

Hence, plaintiff cannot maintain his claim of gross negligence, and summary disposition is

properly entered in favor of defendants. Thus, assuming the trial court erred when it granted

summary disposition on plaintiff’s gross negligence claim on the basis of collateral estoppel, we

nonetheless affirm because summary disposition was warranted under MCR 2.116(C)(10). See

7

The dissent claims that the Sixth Circuit’s ruling did not address causation. Such an assertion is

puzzling as the harm plaintiff complains of in his gross-negligence claim is his continued

prosecution and incarceration. Thus, because the Sixth Circuit ruled that Crum’s failure to turn

the videotape over did not affect the prosecution’s decision to prosecute the case and did not

affect plaintiff’s incarceration, see Jerome, 695 F Appx at 942-943, it clearly is a ruling on

causation. In other words, because the failure to disclose the tape did not have an effect on

plaintiff’s confinement in jail, it necessarily did not cause his confinement. Also, the fact that

the two involved claims are different (malicious prosecution vs. gross negligence) is of no

consequence. The application of the doctrine of collateral estoppel is not limited to the same or

similar claims because it involves issue preclusion, not claim preclusion. See Ditmore v

Michalik, 244 Mich App 569, 577; 625 NW2d 462 (2001).

8

The full transcript of the criminal trial was not provided to this Court, so we do not know how

the witnesses, including the complainant, testified at that trial.

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Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling

may be upheld on appeal where the right result issued, albeit for the wrong reason.”).

Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.

/s/ Mark T. Boonstra

/s/ Jonathan Tukel

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