            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



TAYLOR MADISON, a Minor, by her Next                                UNPUBLISHED
Friend, LATRESE DICKENS,                                            September 26, 2019

               Plaintiff-Appellee,

v                                                                   No. 342868
                                                                    Wayne Circuit Court
AAA OF MICHIGAN,                                                    LC No. 17-011570-AV

               Defendant-Appellant.


Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

PER CURIAM.

        This case began in 2010, when plaintiff filed a complaint in district court seeking first-
party no-fault benefits. She alleged that the amount in controversy did not exceed $25,000. But
plaintiff’s proofs far exceeded that amount, precipitating defendant’s challenge to the district
court’s jurisdiction. Ultimately the case reached our Supreme Court, which reaffirmed the long-
standing principle that jurisdiction is determined by the amount alleged in the pleadings rather
than the actual proofs. The Supreme Court remanded the matter to the district court “for further
proceedings.”

         There, defendant sought relief from judgment, insisting that plaintiff pleaded an
artificially deflated measure of damages in bad faith, thereby ousting the district court of
jurisdiction. The district court agreed but the circuit court reversed, concluding that the law-of-
the-case doctrine precluded any jurisdictional review. We affirm for a different reason:
defendant’s “bad faith” claim comes too late.

                                 I. FACTUAL BACKGROUND

        Almost a decade ago, plaintiff filed a complaint in the district court seeking payment of
attendant care benefits. Her complaint alleged damages in the amount of $25,000, the
jurisdictional maximum, yet her proofs totaled $144,480, an amount far exceeding the
jurisdictional limit. The jury returned a non-unanimous verdict for plaintiff in the amount of
$42,280. In November 2011, the parties stipulated to the entry of a judgment for $25,000.


                                                -1-
Madison v AAA of Mich, unpublished per curiam opinion of the Court of Appeals, issued March
13, 2014 (Docket No. 312880), slip op at 1-2 (Madison I).

        One month after judgment entered, defendant filed an unsuccessful motion for judgment
notwithstanding the verdict or transfer to the circuit court. Defendant claimed an appeal in the
circuit court, asserting that the district court lacked jurisdiction because the amount in
controversy exceeded $25,000. The circuit court rejected this argument. This Court granted
defendant’s application for leave to appeal and in 2014, we vacated the judgment on subject-
matter jurisdiction grounds. See Madison I.

         Plaintiff appealed our ruling to the Supreme Court, where the case pended in abeyance of
a decision in Hodge v State Farm Mut Auto Ins Co, 499 Mich 211; 884 NW2d 238 (2016).
Hodge is virtually identical to this case and was filed by the same attorney, Michael Fortner.
The plaintiff in Hodge brought suit in district court to recover no-fault benefits against her no-
fault insurer. Id. at 214. Her complaint sought damages not in excess of the district court’s
$25,000 jurisdictional limit, but at trial she presented damage proofs exceeding $150,000. Id.
The jury returned of verdict of $85,957, which the district court reduced to $25,000. Id. On
appeal, the defendant argued that because the amount in controversy exceeded $25,000, the
district court was divested of subject-matter jurisdiction. Id. The Supreme Court disagreed,
holding that “a district court determines the amount in controversy using the prayer for relief set
forth in the plaintiff’s pleadings, calculated exclusive of fees, costs, and interest.” Id. at 223-
224.1 Therefore, the Court explained, it was irrelevant that the plaintiff presented proofs in
excess of the $25,000 limit at trial. Id. at 224.

        Defendant’s current claim that “bad faith pleading” destroyed the district court’s
jurisdiction derives from Hodge. A footnote in that case dangled the possibility that bad faith in
pleading damages might give rise to a successful jurisdictional challenge:

       This Court has held that a court will not retain subject-matter jurisdiction over a
       case “when . . . fraud upon the court is apparent” from allegations pleaded in bad
       faith. Fix v Sissung, 83 Mich 561, 563; 47 NW 340 (1890). In Fix, this Court
       dismissed the plaintiff’s suit as being brought in bad faith because the amount
       claimed was “unjustifiable” and could not be proved. Id. However, beyond that
       holding, our cases give no indication of what would constitute bad faith sufficient
       to oust the court of jurisdiction. The Court of Appeals seemed concerned with
       plaintiffs filing in district court knowing that provable actual damages exceeded
       the $25,000 jurisdictional limit. . . . We question, but do not decide, whether a
       fully-informed plaintiff acts in bad faith by filing a claim in district court, thereby
       limiting his own recovery to $25,000. In this case, defendant made no allegation
       of bad faith in the pleadings, and there has been no finding of bad faith by the
       district court. [Id. at 222 n 31 (emphasis added, first alteration in original).]


1
 The amount of recovery is also limited to the $25,000 amount in controversy pleaded in the
complaint. See Hodge, 499 Mich at 221-222 n 30.


                                                -2-
And in a single sentence located within the penultimate paragraph of the majority opinion the
Court added, “Because there were no allegations, and therefore no findings, of bad faith in the
pleadings, the district court had subject-matter jurisdiction over the plaintiff’s claim.” Id. at 224.

        Defendant seized on the Supreme Court’s “bad faith” ruminations when this case
returned to the district court on remand in 2016, promptly filing a motion for relief from the
November 2011 judgment based on plaintiff’s “bad faith” in pleading an amount of damages that
plaintiff knew would be exceeded by its proofs. Defendant’s motion invoked MCR
2.612(C)(1)(d), which permits a court to grant relief when “[t]he judgment is void.”

         Factually, defendant’s “bad faith” claim rests on statements made by an attorney other
than Mr. Fortner during a 2013 motion hearing in an unrelated case. That attorney characterized
Mr. Fortner’s decision to litigate in district court as a “strategy” based on the differences in “jury
composition” between the district and circuit courts. In the district court, the totality of
defendant’s argument in support of relief from judgment was as follows: “In sum, Plaintiff’s
attorney routinely pleads damages within this Court’s jurisdictional limit in order to litigate in
this Court cases which should be litigated in the Wayne County Circuit Court. As Hodge points
out, such a pleading is in bad faith.” Plaintiff replied that the Supreme Court order precluded the
district court from considering whether it lacked jurisdiction.2

       The district court decided that the Supreme Court’s order reinstating the November 3,
2011 judgment did not bar consideration of defendant’s motion because the issue of subject-
matter jurisdiction may be raised at any time. Relying primarily on Justice MARKMAN’s
concurrence in Hodge, the district court found that plaintiff’s pleading was brought in bad faith
and dismissed the case with prejudice.

       Plaintiff claimed another appeal to the circuit court. At the hearing, plaintiff argued that
legal questions decided by an appellate court may not be differently decided upon remand.
Counsel asserted that the law-of-the-case doctrine foreclosed defendant’s jurisdictional
argument. Defendant countered that the law-of-the-case doctrine was inapplicable because the
appellate courts did not address the question of bad faith.


2
  The Supreme Court’s order of remand reinstated the judgment and remanded “for further
proceedings:”

               By order of February 4, 2015, the application for leave to appeal the
       March 13, 2014 judgment of the Court of Appeals was held in abeyance pending
       the decision in Hodge v State Farm Mut Auto Ins Co (Docket No. 149043). On
       order of the Court, the case having been decided on June 6, 2016, the application
       and motion for peremptory reversal are considered. In light of our opinion in
       Hodge, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
       reverse the judgment of the Court of Appeals, reinstate the November 3, 2011
       judgment entered in the 36th District Court, and remand this case to the district
       court for further proceedings. [Madison v AAA of MI, 500 Mich 861 (2016).]



                                                 -3-
         The circuit court determined that the law-of-the-case doctrine barred the district court
from overruling the Supreme Court on the issue of subject-matter jurisdiction. Defendant’s
argument that the district court could revisit the issue of subject-matter jurisdiction was
counterintuitive, the circuit court explained, because Hodge had definitively resolved that the
district court had jurisdiction. The “further proceedings” contemplated by the Supreme Court
were only those necessary to carry out its order. The circuit court ruled that although subject-
matter jurisdiction may be raised at any time, it could not be raised by a lower court where the
Supreme Court already had decided the issue. The circuit court also rejected the district court’s
finding of bad faith because the district court relied on hearsay evidence from a separate case and
without an evidentiary hearing.

       Defendant successfully sought leave to appeal in this Court. Madison v AAA of Mich,
unpublished order of the Court of Appeals, issued August 9, 2018 (Docket No 342868).

                                          II. ANALYSIS

       Defendant argues that the law-of-the-case doctrine did not bar the district court from
granting relief from judgment based on plaintiff’s alleged bad faith in pleading her damages. We
review the application of the law-of-the-case doctrine and interpret the language of a court rule
de novo as questions of law. Spine Specialists of Mich, PC v State Farm Mut Auto Ins Co, 317
Mich App 497, 500; 894 NW2d 749 (2016); Kasben v Hoffman, 278 Mich App 466, 470; 751
NW2d 520 (2008).

        Hodge’s suggestion that pleading in “bad faith” might jeopardize jurisdiction stems from
the Supreme Court’s 1890 opinion in Fix, 83 Mich 561. That replevin dispute involved the price
of a flock of 20 geese. Id. at 562. After the defendant seized the geese, the plaintiff offered $1
for their return. Id. And once the sheriff freed the birds, the flock was appraised at $8.80. Id.
The plaintiff filed an action in the circuit court seeking $200, despite that exclusive jurisdiction
vested in justices of the peace when the amount in controversy was less than $100. Id. at 562-
563. The Supreme Court acknowledged that the “value[] of property depend[s] in a large
measure upon opinion.” Id. at 563. When the value approaches that jurisdictional limit, the
Court advised that it would refrain from declaring “a want of jurisdiction, if, in good faith, the
declaration alleges the value within the jurisdiction of the circuit court[.]” Id. But jurisdiction is
not obtained, the Court held, “when the fraud upon the court is apparent, as it is in this case.”
Therefore, “[t]he circuit court had no jurisdiction of the subject-matter nor the process.” Id.

         Post-Hodge, this Court has published one case addressing the “bad faith pleading”
mechanism for challenging a court’s subject matter jurisdiction. In The Meisner Law Group PC
v Weston Downs Condo Ass’n, 321 Mich App 702, 712; 909 NW2d 890 (2017), the plaintiff
filed its case in the circuit court but it was undisputed that the plaintiff’s damages did not come
close to reaching the circuit court’s jurisdictional limit. Citing Hodge, this Court held that “bad
faith exists when a plaintiff’s claim to damages in the pleadings are ‘unjustifiable’ because they
‘could not be proved.’ ” Id. at 718.

       Like Fix, The Meisner Law Group involved bad faith that arose from pleading an inflated
amount of damages. The two cases share a second similarity. In both, the actual amount of
recoverable damages was undisputed and unmistakably below the jurisdictional limit of the

                                                 -4-
circuit court. The plaintiff’s prayer for damages in an amount in excess of what a jury could ever
possibly return was a fraud, the courts held, because the plaintiff had knowingly misrepresented
material facts.

        This case is different. Here, the plaintiff claimed that attendant care had been provided
for a certain amount of time (24 hours per day for approximately 15 months), and sought
compensation at a rate of $14 an hour. Madison I, slip op at 1. Affidavits attesting to these facts
were submitted to the defendant before trial; defendant elected to try the question of damages to
the jury. Id. The non-unanimous jury awarded damages for 12 hours per day at a rate of $8 per
hour. Id. at 1 n 3. Given these findings, plaintiff’s request for damages within the jurisdictional
limit of $25,000 was not an obvious or an irrefutable misrepresentation of the amount that might
be recovered in a jury trial. Plaintiff’s proofs substantiated damages of more than $25,000, but
that hardly proves that the case was definitively and indisputably worth an amount in excess of
that figure. Had it been so clear, we question why defendant failed to offer judgment for
$25,000, thereby ending the litigation.

        But in the end, whether a court could ultimately find bad faith after conducting an
evidentiary hearing does not matter, because defendant waited far too long to make this claim.

       MCR 2.612(C)(1) sets forth the possible grounds for relief from judgment, and
subsection (C)(2) provides the time limits that accompany those grounds:

       Grounds for Relief From Judgment.

       (1) On motion and on just terms, the court may relieve a party or the legal
       representative of a party from a final judgment, order, or proceeding on the
       following grounds:

               (a) Mistake, inadvertence, surprise, or excusable neglect.

              (b) Newly discovered evidence which by due diligence could not have
       been discovered in time to move for a new trial under MCR 2.611(B).

              (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
       an adverse party.

               (d) The judgment is void.

              (e) The judgment has been satisfied, released, or discharged; a prior
       judgment on which it is based has been reversed or otherwise vacated; or it is no
       longer equitable that the judgment should have prospective application.

               (f) Any other reason justifying relief from the operation of the judgment.

       (2) The motion must be made within a reasonable time, and, for the grounds
       stated in subrules (C)(1)(a), (b), and (c), within one year after the judgment, order,
       or proceeding was entered or taken. Except as provided in MCR 2.614(A)(1), a


                                                -5-
       motion under this subrule does not affect the finality of a judgment or suspend its
       operation.

        Defendant relies on MCR 2.1612(C)(1)(d), which permits a court to set aside a void
judgment. Defendant’s appellate brief asserts that “[p]laintiff’s deliberately pleading a false
jurisdictional amount in order to litigate a circuit court case in district court constitutes ‘bad
faith’ pleading within the exception recognized in Hodge,” rendering the judgment “void.”

        In Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 544; 260 NW 908 (1935),
our Supreme Court described a “void” judgment as follows: “When there is a want of
jurisdiction over the parties, or the subject-matter, no matter what formalities may have been
taken by the trial court, the action thereof is void because of its want of jurisdiction, and
consequently its proceedings may be questioned collaterally as well as directly.” “Void”
judgments flow from cases in which the court “ha[d] no power to adjudicate at all.” Id. Such
judgments are different and distinct from those in which the court had “undoubted jurisdiction of
the subject matter” and the parties at the outset, but continued to exercise that jurisdiction
“erroneous[ly].” Id. at 545. In those cases, jurisdiction could be challenged “by direct appeal, or
by direct attack.” Id.

       This case falls into Jackson’s second category of cases in which “undoubted jurisdiction”
may be have been mistakenly exercised. Such cases are not void for lack of jurisdiction. Id. at
544. Rather, when jurisdiction is arguably improper, a litigant must assert a jurisdictional
challenge in the trial court, or on direct appeal. See Buczkowski v Buczkowski, 351 Mich 216,
221; 88 NW2d 416 (1958) (quotation marks and citation omitted) (“The failure to distinguish
between ‘the erroneous exercise of jurisdiction’ and ‘the want of jurisdiction’ is a fruitful source
of confusion and errancy of decision.”).

        Viewed through that lens, there is no merit in defendant’s claim that the judgment entered
in 2011 is “void.” Jurisdiction undoubtedly attached when plaintiff filed her complaint seeking
damages in an amount within the statutory limits for the district court. The district court had the
power to enter judgment on the jury’s verdict. The question of bad faith goes to whether the
court should have retained jurisdiction, not whether it existed in the first place. See Hodge, 499
Mich at 222 n 31 (emphasis added, alteration in original) (“This Court has held that a court will
not retain subject-matter jurisdiction over a case ‘when . . . fraud upon the court is apparent’
from allegations pleaded in bad faith.”). Any error in determining whether to retain jurisdiction
in the face of possible bad faith is not equivalent to acting without jurisdiction at all.
Accordingly, we reject defendant’s claim that the judgment in this case is “void” for lack of
jurisdiction.

        Federal caselaw buttresses our view. The language of FR Civ P 60(b)(4) mirrors MCR
2.612(C)(1)(4); both permit relief from judgment when the judgement is “void.” And federal
common law, like Michigan’s, permits a court to declare a judgment “void” if the court
rendering it lacked personal or subject-matter jurisdiction, and to grant relief from judgment on
that ground. “An order is ‘void’ for purposes of Rule 60(b)(4) only if the court rendering the
decision lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due
process of law.” Wendt v Leonard, 431 F3d 410, 412 (CA 4, 2005). The reach of Rule 60(b)(4)
is short. Citing Moore’s Federal Practice and cases from several other federal circuit courts of

                                                -6-
appeal, Wendt explained that “[t]he concept of a void judgment is extremely limited,” and “a
federal court judgment is almost never void because of lack of federal subject matter
jurisdiction.” Id. at 412-413 (citations omitted).

       [W]hen deciding whether an order is “void” under Rule 60(b)(4) for lack of
       subject matter jurisdiction, courts must look for the “ ‘rare instance of a clear
       usurpation of power.’ ” . . . A court plainly usurps jurisdiction “only when there
       is a ‘total want of jurisdiction’ and no arguable basis on which it could have
       rested a finding that it had jurisdiction.” . . . ; see also In re G A D, Inc, 340 F3d
       331, 336 (CA 6, 2003) (“Other circuits have determined . . . that a Rule 60(b)(4)
       motion will succeed only if the lack of subject matter jurisdiction was so glaring
       as to constitute a total want of jurisdiction, or no arguable basis for jurisdiction
       existed.”) (citations and internal quotation marks omitted); Gschwind v Cessna
       Aircraft Co, 232 F3d 1342, 1346 (CA 10, 2000) (“There must be ‘no arguable
       basis on which [the court] could have rested a finding that it had
       jurisdiction.’ ” . . .). “[A]n ‘error in interpreting a statutory grant of jurisdiction
       is not equivalent to acting with total want of jurisdiction.’ ” Gschwind, 232 F3d
       at 1346-1347 . . . . [Wendt, 431 F3d at 413.]

        In United Student Aid Funds, Inc v Espinosa, 559 US 260, 270; 130 S Ct 1367; 176 L Ed
2d 158 (2010), the United States Supreme Court highlighted that “a motion under Rule 60(b)(4)
is not a substitute for a timely appeal.” Espinosa arose from a bankruptcy case. The debtor filed
a plan to discharge his student loan debt but failed to commence a legally prerequisite “adversary
proceeding” at which he would be obligated to show “undue hardship.” Id. at 263-264. Despite
this omission, the bankruptcy court confirmed a plan discharging the student loan debt. The
creditor received proper notice of the plan, but did not object or appeal. Id. at 264. Years later,
the creditor sought relief from the judgment under Rule 60(b)(4), asserting that it was void
because it had been issued in violation of the bankruptcy code and bankruptcy rules mandating
an “adversary proceeding.” Id.

        The Supreme Court rejected the creditor’s argument, and in so doing described just how
narrowly Rule 60(b)(4) applies. The rule sets forth “an exception to finality,” the Court began,
and operates “under a limited set of circumstances.” Id. at 269-270 (quotation marks and
citations omitted). “[A] void judgment “is one so affected by a fundamental infirmity that the
infirmity may be raised even after the judgment becomes final.” Id. at 270. But “[t]he list of
such infirmities is exceedingly short; otherwise, Rule 60(b)(4)’s exception to finality would
swallow the rule.” Id.

         The Supreme Court highlighted that “[a] judgment is not void simply because it is or may
have been erroneous.” Id. (quotation marks and citations omitted). “Instead, Rule 60(b)(4)
applies only in the rare instance where a judgment is premised either on a certain type of
jurisdictional error or on a violation of due process that deprives a party of notice or the
opportunity to be heard.” Id. at 271. Reviewing caselaw, the Supreme Court pointed out that
federal courts generally reserve relief under Rule 60(b)(4) “only for the exceptional case in
which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.” Id.
And the Court emphasized that “Rule 60(b)(4) does not provide a license for litigants to sleep on
their rights.” Id. at 275.

                                                -7-
        The defect underlying the creditor’s claim in Espinosa was not jurisdictional; the
Supreme Court characterized the error as procedural. Id. at 271-272. Here, defendant’s
characterization of its bad faith pleading argument as “jurisdictional” is inapt, as bad faith
pleading did not divest the district court of subject-matter jurisdiction. Merely by invoking the
word “jurisdiction,” defendant cannot transform its claim of pleading malfeasance into a basis
for relief under MCR 2.612(C)(4). We take heed from Espinosa—voidness on jurisdictional
grounds is “rare.” Id. at 271. It does not exist here.

        In our view, the gravamen of defendant’s motion for relief from judgment is not that the
judgment is void for lack of jurisdiction, but that plaintiff’s counsel misrepresented, in bad faith,
the amount in controversy. A motion for relief from judgment premised on fraud,
misrepresentation, or other misconduct is embodied in MCR 2.612(C)(1)(c). Under this
subsection of the court rule, a motion for relief from judgment must be brought “within one year
after the judgment . . . was entered.” MCR 2.612(C)(2). The rule brooks no exceptions.
Therefore, the one-year period continues to run even while a case is pending on appeal. See also
3 Dean & Longhofer, Michigan Court Rules Practice (4th ed), § 2612.20, p 521. Here, the one-
year period expired in November 2012, one month after this Court granted defendant’s initial
application for leave to appeal. Defendant is therefore barred from raising that issue now.

       We affirm.



                                                              /s/ Douglas B. Shapiro
                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Brock A. Swartzle




                                                -8-
