                           STATE OF MICHIGAN

                            COURT OF APPEALS



JOSEPH BAYNESAN,                                                     FOR PUBLICATION
                                                                     August 4, 2016
               Plaintiff-Appellee,                                   9:05 a.m.

v                                                                    No. 326132
                                                                     Court of Claims
WAYNE STATE UNIVERSITY,                                              LC No. 14-000262-MZ

               Defendant-Appellant.


Before: MARKEY, P.J., and K. F. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Defendant Wayne State University (WSU) appeals by leave granted an order of the Court
of Claims transferring plaintiff Joseph Baynesan’s claim under the Whistleblower’s Protection
Act (WPA), MCL 15.361 et seq., from the Court of Claims back to the Wayne Circuit Court.
This Court limited the appeal to the issues raised in the application and supporting brief, “as well
as the question whether the construction of the Court of Claims Act as advocated by appellant
violates plaintiff’s jury trial right.” Baynesan v Wayne State Univ, unpublished order of the
Court of Appeals, entered July 7, 2015 (Docket No. 326132). We affirm the Court of Claims on
the limited basis that it did not abuse its discretion by transferring this action back to the Wayne
Circuit Court in the exercise of its inherent authority to control its docket and sanction litigants.
See Banta v Serban, 370 Mich 367, 368; 121 NW2d 854 (1963).

                                 I. FACTS AND PROCEEDINGS

         In December of 2012, plaintiff filed a two-count complaint in the Wayne Circuit Court
which alleged a violation of the WPA, seeking money damages and a public policy tort claim
seeking equitable relief. Regarding the latter claim, plaintiff sought to be returned to his former
position with WSU and an injunction prohibiting WSU from committing any further actions of
retaliation or discrimination. Defense counsel then notified plaintiff that the Court of Claims,
and not the Wayne Circuit Court, had jurisdiction over his public policy tort claim. Upon
stipulation of the parties and by order entered on March 18, 2013, the circuit court dismissed the
public policy tort claim of plaintiff’s complaint.

        Plaintiff subsequently filed his tort claim in the Court of Claims, then residing in the
Ingham Circuit Court. Plaintiff also filed a motion to join the tort action with the WPA action
still pending in Wayne Circuit Court. The Court of Claims, by order of June 19, 2013, granted


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the motion, directing that plaintiff’s tort claim be joined with the WPA action in the Wayne
Circuit Court.

        In late 2013, 2013 PA 164 became law. The act amended several statutes pertaining to
the Court of Claims to enlarge its jurisdiction and to transfer the Court of Claims to the Michigan
Court of Appeals. See Fulicea v State of Michigan, 308 Mich App 230, 231; 863 NW2d 385
(2014); Okrie v State of Michigan, 306 Mich App 445, 449; 857 NW2d 254 (2014). As
amended, MCL 600.6419(1)(a) conferred jurisdiction on the Court of Claims, in part, “[t]o hear
and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex
contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any
demand for an extraordinary writ against the state or any of its departments or officers
notwithstanding another law that confers jurisdiction of the case in the circuit court.” Moreover,
the act created a new mechanism for the transfer of cases pending before the circuit court to the
Court of Claims. This mechanism is codified in MCL 600.6404(3), and provides in part:

               Beginning on the effective date of the amendatory act that added this
       subsection [November 12, 2013], any matter within the jurisdiction of the court of
       claims described in section 6419(1) [MCL 600.6419(1)] pending or later filed in
       any court must, upon notice of the state or a department or officer of the state, be
       transferred to the court of claims described in subsection (1). The transfer shall
       be effective upon the filing of the transfer notice. . . .

        In December of 2013, 2013 PA 205 became law. This amendatory act preserved the
rights of parties to secure jury trials in actions that now came within the jurisdiction of the Court
of Claims in light of the expanded jurisdiction conferred on the Court of Claims by 2013 PA 164.
As amended by 2013 PA 205, MCL 600.6421 provides in part:

               (1) Nothing in this chapter eliminates or creates any right a party may
       have to a trial by jury, including any right that existed before November 12, 2013.
       Nothing in this chapter deprives the circuit, district, or probate court of
       jurisdiction to hear and determine a claim for which there is a right to a trial by
       jury as otherwise provided by law, including a claim against an individual
       employee of this state for which there is a right to a trial by jury as otherwise
       provided by law. Except as otherwise provided in this section, if a party has the
       right to a trial by jury and asserts that right as required by law, the claim may be
       heard and determined by a circuit, district, or probate court in the appropriate
       venue.

               (2) For declaratory or equitable relief or a demand for extraordinary writ
       sought by a party within the jurisdiction of the court of claims described in section
       6419(1) and arising out of the same transaction or series of transactions with a
       matter asserted for which a party has the right to a trial by jury under subsection
       (1), unless joined as provided in subsection (3), the court of claims shall retain
       exclusive jurisdiction over the matter of declaratory or equitable relief or a
       demand for extraordinary writ until a final judgment has been entered, and the
       matter asserted for which a party has the right to a trial by jury under subsection


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       (1) shall be stayed until final judgment on the matter of declaratory or equitable
       relief or a demand for extraordinary writ.

               (3) With the approval of all parties, any matter within the jurisdiction of
       the court of claims described in section 6419(1) may be joined for trial with cases
       arising out of the same transaction or series of transactions that are pending in any
       of the various trial courts of the state. A case in the court of claims that has been
       joined with the approval of all parties shall be tried and determined by the judge
       even though the trial court action with which it may be joined is tried to a jury
       under the supervision of the same trial judge.

               (4) Except as provided in subsection (5)[1], the court of claims’ jurisdiction
       in a matter within its jurisdiction as described in section 6419(1) and pending in
       any circuit, district, or probate court on November 12, 2013 is as follows:

              (a) If the matter is not transferred under section 6404(3), the jurisdiction of
       the court of claims is not exclusive and the circuit, district, or probate court may
       continue to exercise jurisdiction over that matter.

              (b) If the matter is transferred to the court of claims under section 6404(3),
       the court of claims has exclusive jurisdiction over the matter, subject to
       subsection (1).

       Despite these late 2013 changes in the law, the parties continued to litigate plaintiff’s
claims in the Wayne Circuit Court through most of 2014. Then, with a final pretrial conference
scheduled for November 5, 2014 and a jury trial scheduled for December 1, 2014, WSU filed a
“Notice of Transfer to Court of Claims” on November 3, 2014, notifying plaintiff and the circuit
court that it was transferring the entire case to the Court of Claims “pursuant to
MCL 600.6404(3), as amended by 2013 PA 164.”

        On November 4, 2014, plaintiff filed an emergency motion in the Court of Claims to
transfer the case back to the Wayne Circuit Court and for sanctions. The Court of Claims heard
oral arguments on the motion on January 12, 2015, and granted plaintiff’s motion for transfer by
opinion and order entered on January 30, 2015. After relating the case’s procedural history and
the changes in the law by 2013 PA 164 and 2013 PA 205, the Court of Claims opined in part:

              The parties continued to litigate the matter in the Wayne Circuit Court
       until November 3, 2014, when defendant filed a notice of transfer pursuant to
       MCL 600.6404(3), transferring the matter to this Court. The Court finds that
       doing so was inappropriate and impermissible, for two reasons. First, although
       the Court recognizes, and plaintiff concedes, that MCL 600.6404(3) does not have


1
 Subsection 5 refers to the transfer of cases pending in the court of claims, pursuant to MCL
600.6404(2), at the time the court of claims was transferred from the Ingham circuit court to the
Court of Appeals. This provision is not at issue in this case.


                                                -3-
       a time limit, defendant’s act of continuing to litigate the matter in the Wayne
       Circuit Court for almost a year after the option of transferring to this Court
       became possible and known constitutes an unequivocal act of approval to the
       matter being joined for trial in that court. MCL 600.6421(3) does not require any
       particular manner of expressing approval; under the circumstances, the Court
       finds that such approval was clearly and unambiguously expressed. That statute
       therefore provides that the action therefore “shall be tried and determined by the
       judge even though the trial court action with which it may be joined is tried to a
       jury under the supervision of the same trial judge.” MCL 600.6421(3).

        The Court of Claims continued, making comments on the new legislation, and noting
“that the Legislature could [not] have intended to permit parties to have an unrestricted ability to
forum-shop at their convenience with no regard to the effect thereof on other parties, the efficient
administration of the involved courts, the pursuit of justice[.]” The Court of Claims continued:

               Having elected to remain in the Wayne Circuit Court for almost a year,
       defendant committed itself to that venue, and the notice of transfer was untimely
       and impermissible because by the time it was filed, MCL 600.6421(3) has already
       established that the matter shall be heard in the Wayne Circuit Court. Therefore,
       MCL 600.6421(4)(b) never became effective. The Court does not purport to be
       able to say with certainty “how long is too long” for a party to wait, but this was
       clearly beyond the pale. The Court declines, however, to speculate that
       defendant’s transfer was motivated by any improper purpose under MCR
       2.114(D)(3) and chooses instead to believe that defendant’s counsel believed that
       transfer was allowed. The Court will not sanction an honest error, although the
       Court trusts counsel is now fully apprised of the error and will not attempt to
       repeat it.

        The Court of Claims went on to discuss the effect of a hypothetically timely filed request
for a transfer to the Court of Claims, which we decline to address as a court should not decide
hypothetical issues. See Huntington Woods v Detroit, 279 Mich App 603, 616; 761 NW2d 127
(2008). We address only the Court of Claims’ determination that on the facts and circumstances
of this case, WSU’s request for transfer was untimely and ineffective.

                                  II. STANDARDS OF REVIEW

        Both jurisdictional issues and matters of statutory interpretation are reviewed de novo.
Fulicea, 308 Mich App at 232. The Court also reviews constitutional issues de novo. Bonner v
City of Brighton, 495 Mich 209, 221; 848 NW2d 380 (2014).

        The goal of construction and interpretation of a statute is to discern and give effect to the
intent of the Legislature. Id. at 222. “ ‘[O]ur obligation is to ascertain the legislative intent that
may reasonably be inferred from the words expressed in the statute. When the Legislature has
unambiguously conveyed its intent in a statute, the statute speaks for itself, and judicial
construction is not permitted.’ ” Fulicea, 308 Mich App at 232, quoting Koontz v Ameritech
Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).


                                                 -4-
        In this case, the Court of Claims was acting as a trial court. A trial court has the inherent
authority to control its own docket. Maldonado v Ford Motor Co, 476 Mich 372, 376; 719
NW2d 809 (2006) (“trial courts possess the inherent authority . . . to manage their own affairs so
as to achieve the orderly and expeditious disposition of cases”); see also Brenner v Kolk, 226
Mich App 149, 158-160, n 5; 573 NW2d 65 (1997). “An exercise of the court’s ‘inherent power’
may be disturbed only upon a finding that there has been a clear abuse of discretion.” Brenner,
226 Mich App at 160. An abuse of discretion occurs when a court chooses an outcome outside
the range of principled outcomes. Maldonado, 476 Mich at 376.

        A trial court’s findings of fact are reviewed for clear error. MCR 2.613(C). “A finding is
clearly erroneous if, after reviewing the entire record, we are left with the definite and firm
conviction that a mistake was made.” Loutts v Loutts, 298 Mich App 21, 26; 826 NW2d 152
(2012).

                                        III. DISCUSSION

        Pursuant to the plain terms of the amended § 6419(1)(a), the Court of Claims has
jurisdiction of both plaintiff’s statutory WPA claim for money damages and his claim for
equitable relief. In analyzing the jurisdictional issues of this case, we note that our Supreme
Court has held that a plaintiff has a right to a jury trial regarding a WPA money damages claim,
but no such right exists with respect to a claim for equitable relief. Anzaldua v Band, 457 Mich
530, 538 n 6, 541-543, 553-554; 578 NW2d 306 (1998). This is important because § 6419(1)
provides that “[e]xcept as provided in sections 6421 and 6440, the jurisdiction of the Court of
Claims, as conferred upon it by this chapter, is exclusive.” But as noted already, § 6421
provides, “if a party has the right to a trial by jury and asserts that right as required by law, the
claim may be heard and determined by a circuit, district, or probate court in the appropriate
venue.” MCL 600.6421(1). Furthermore, “[w]ith the approval of all parties, any matter within
the jurisdiction of the Court of Claims described in section 6419(1) may be joined for trial with
cases arising out of the same transaction or series of transactions that are pending in any of the
various trial courts of the state.” MCL 600.6421(3). Thus, under these statutory provisions, the
Court of Claims and the Wayne Circuit Court had concurrent jurisdiction of both plaintiff’s
WPA damages claim and his claim for equitable relief “[w]ith the approval of all parties[.]” Id.

        We agree with the Court of Claims that no formalistic approval is required to invoke
joinder under § 6421(3), and that by continuing in the Wayne Circuit Court for almost year with
pretrial proceedings after the statutory right of removal under § 6404(3) came into existence,
WSU tacitly and via its conduct approved of the continuing jurisdiction of the Wayne Circuit
Court for a trial of both plaintiff’s jury claim for money damages and his claim for equitable
relief. This joinder under § 6404(3) defeated the exclusive jurisdiction of the Court of Claims as
to plaintiff’s claim for equitable relief. MCL 600.6419(1); MCL 600.6421(2).

        When, on November 3, 2014, WSU filed a “Notice of Transfer to Court of Claims,”
under the plain terms of MCL 600.6404(3), as amended by 2013 PA 164, the transfer of
plaintiff’s case became “effective upon the filing of the transfer notice.” A transfer of a matter to
the Court of Claims is mandated under the statute if (1) the matter is within the jurisdiction of the
Court of Claims; (2) the matter was pending on or is filed after the effective date of the
amendatory act, and (3) a notice of transfer is filed. With regard to the first requirement, we note

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that § 6404(3) requires only that the matter subject to transfer be within the “jurisdiction of the
court of claims,” as opposed to within the “exclusive jurisdiction” of the Court of Claims, the
latter phrase being employed in other sections of the Court of Claims Act but not in § 6404(3).
Thus, the first requirement may be satisfied so long as the matter is subject to the Court of
Claims concurrent jurisdiction, i.e., it is a matter subject to the Court of Claims’ jurisdiction but
also subject to a jury trial right. In this case, there is no dispute that plaintiff’s claims were
pending in the Wayne Circuit Court at the time the amendatory act became effective on
November 12, 2013. There also can be no dispute that plaintiff’s claims fall within the expanded
jurisdiction of the Court of Claims as provided in the amended MCL 600.6419(1)(a), “[t]o hear
and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex
contractu or ex delicto, or any demand for monetary, equitable or declaratory relief . . . against
the state or any of its departments or officers.” (Emphasis added). Thus, pursuant to the clear
and unambiguous terms of § 6404(3), WSU’s filing of its notice under that section transferred
plaintiff’s entire case to the Court of Claims, which then had jurisdiction over plaintiff’s
emergency motion to return the case to the Wayne Circuit Court.

        If the notice of transfer were indeed valid, then the Court of Claims obtained “exclusive
jurisdiction over the matter, subject to subsection (1).” MCL 600.6421(4)(b). Subsection (1) of
§ 6421, MCL 600.6421(1), preserves the existing right to a jury trial that accompanies any claim
now under the expanded jurisdiction of the Court of Claims, as well as the right of another court,
such as the circuit court, to hear and determine those claims for which the right to a jury trial is
required by law. Thus, when a matter is transferred to the Court of Claims under§ 6404(3), the
otherwise exclusive jurisdiction of the Court of Claims, see § 6419(1) and § 6421(4)(b), becomes
concurrent with the circuit court, among other courts, with respect to matters to which “a party
has the right to a trial by jury and asserts that right as required by law[.]” MCL 600.6421(1).
Because plaintiff’s WPA claim for damages is subject to the right of trial by jury, Anzaldua, 457
Mich at 554, which right plaintiff asserted, the circuit court would retain concurrent jurisdiction
over that part of plaintiff’s claim. But plaintiff’s claim for equitable relief would remain in the
exclusive jurisdiction of the Court of Claims pursuant to MCL 600.6421(2). Furthermore, the
claim for equitable relief in the Court of Claims must be resolved first. Until the equitable claim
is resolved, the claim for damages pending a jury trial in the court of concurrent jurisdiction is
stayed. Id. (“[T]he matter asserted for which a party has the right to a trial by jury . . . shall be
stayed until final judgment on the matter of declaratory or equitable relief . . . .”).

         On the other hand, if WSU’s notice of transfer pursuant to § 6404(3) is ineffective, then,
as already discussed, pursuant to MCL 600.6421(1) and (3), plaintiff’s WPA claim for money
damages and his claim for equitable relief remain joined and within the concurrent jurisdiction of
the circuit court. Indeed, MCL 600.6421(4)(b) specifically provides: “If the matter is not
transferred under section 6404(3), the jurisdiction of the court of claims is not exclusive and the
circuit, district, or probate court may continue to exercise jurisdiction over that matter.”

        The Court of Claims ruled that WSU’s notice was ineffective because it was not timely
filed and would, if allowed to stand, foster gamesmanship and forum-shopping detrimental to the
administration of justice. To the extent these findings are factual, we see they are supported by
the record. Consequently, on appeal we are not left with the definite and firm conviction that a
mistake was made. Loutts, 298 Mich App at 26. The Court of Claims’ findings are thus not
clearly erroneous. MCR 2.613(C).

                                                -6-
        We also conclude that the Court of Claims’ determination that the transfer notice was
ineffective was within the inherent authority of a court to “impose sanctions appropriate to
contain and prevent abuses so as to ensure the orderly operation of justice.” Maldonado, 476
Mich at 375. “This power is not governed so much by rule or statute, but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Id. at 376. While such cases often involve the dismissal of an
action, see id.; Banta, 370 Mich at 368; Brenner, 226 Mich App at 154-155, in this case, there
was no drastic sanction; the court merely ordered the case returned to the court that WSU had
already, by its conduct, consented to the litigation of all issues presented by plaintiff’s complaint.
MCL 600.6404(3). Under these circumstances, we cannot conclude that the Court of Claims
abused its discretion because the court’s decision was within the range of principled outcomes.
Maldonado, 476 Mich at 376.

       We affirm.

                                                              /s/ Jane E. Markey
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Colleen A. O'Brien




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