                           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SAMUEL JEROME,                                                        UNPUBLISHED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.


                                                 -1-
        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.


                                                -2-
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).


                                                 -3-
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

                                                -4-
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




                                                -5-
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”).


                                                 -6-
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




                                                 -7-
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.


                                                -8-
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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