                           STATE OF MICHIGAN

                            COURT OF APPEALS



CRAIG G. BROWN,                                                    UNPUBLISHED
                                                                   April 23, 2015
                Plaintiff-Appellant,

v                                                                  No. 318687
                                                                   Lapeer Circuit Court
POLICE OFFICERS LABOR COUNCIL and                                  LC No. 12-045945-CZ
VILLAGE OF ALMONT,

                Defendants-Appellees.


Before: M. J. KELLY, P.J., and WILDER and K. F. KELLY, JJ.

PER CURIAM.

        In this labor dispute, plaintiff, Craig G. Brown, proceeding on his own behalf, appeals by
right the trial court’s order denying his motion for partial summary disposition and granting
summary disposition in favor of defendants, the Police Officer Labor Council and Village of
Almont. Because we conclude there were no errors warranting relief, we affirm.

                                        I. BASIC FACTS

        Brown was an officer and detective with Almont’s police department. In July 2003,
Almont fired Brown after a prosecutor with Lapeer County charged him with delivery of a
controlled substance, MCL 333.7401(2)(b), and willful neglect of duty, MCL 750.478. A jury
acquitted Brown of the delivery charges, but convicted him of willful neglect of duty. This
Court affirmed that conviction.1 Brown was also charged with separate offenses in Oakland
County in 2003, and a jury convicted him of delivery or manufacture of a controlled substance,
MCL 333.7401(2)(b)(ii), and possession of a controlled substance, MCL 333.7403(2)(b)(ii).
This Court affirmed those convictions as well.2




1
 See People v Brown, unpublished opinion per curiam of the Court of Appeals issued April 7,
2005 (Docket No. 254476).
2
    See People v Brown, 279 Mich App 116, 119; 755 NW2d 664 (2008).


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        In 2012, Brown successfully obtained habeas corpus relief in federal court, which
resulted in his two Oakland County felony convictions being vacated.3 He then sued Almont and
the Labor Council in December of that same year. He alleged various claims arising from their
failure to arbitrate his 2003 termination as required under his collective bargaining agreement.
The trial court later granted the motions for summary disposition by Almont and the Labor
Council and denied Brown’s motion for summary disposition.

       Brown now appeals in this Court.

                                    II. NATURE OF CLAIM

        Brown first argues that the trial court erred when it determined that his claim for breach
of contract against Almont was actually a claim involving due process or a civil rights violation
and applied the three-year period of limitations. This Court is not bound by a party’s choice of
label for a cause of action because to do so would exalt form over substance. Norris v City of
Lincoln Park Police Officers, 292 Mich App 574, 582; 808 NW2d 578 (2011). Rather, the
gravamen of a plaintiff’s action is determined by examining the entire claim. Maiden v
Rozwood, 461 Mich 109, 135; 597 NW2d 817 (1999). Consequently, the procedural label is not
controlling, and the claim is examined as a whole to determine its nature and the applicable
statute of limitation. MacDonald v Barbarotto, 161 Mich App 542, 547; 411 NW2d 747 (1987).

       Although Brown labelled count one of his complaint against Almont “wrongful
termination” and alleged in part that Almont failed to follow the collective bargaining agreement
by terminating him without adequate cause, the gravamen of this claim centers on the notice and
procedures Almont employed through its lawyer, Thomas McGraw, in reaching the decision to
terminate his employment. Specifically, Brown alleged that he was not given evidence to
support the violations, was not given notice of the charges before his interview, was not provided
with the opportunity to defend, and was not provided with due process of law. Notably, he did
not make any allegations concerning the actual reason for his termination and whether that
reason would not amount to just cause. It is evident from the totality of his allegations that this
claim concerned the due process provided by Almont before the termination and any grievance
proceeding. The trial court did not err when it determined that this claim was premised on a
procedural due process violation.

                                III. SUMMARY DISPOSITION

        Next, Brown argues the trial court erred in granting Almont’s motion for summary
disposition. This Court reviews de novo a trial court’s decision on a motion for summary
disposition. Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014). Summary
disposition under MCR 2.116(C)(7) is appropriate when the undisputed facts establish that the



3
 See Brown v Aud, 868 F Supp 2d 608 (ED Mich, 2012), vacated and remanded Brown v Aud,
unpublished order of the Sixth Circuit Court of Appeals, entered November 12, 2013 (Docket
No. 12-1845).


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plaintiff’s claim is barred under the applicable statute of limitations. Kincaid v Cardwell, 300
Mich App 513, 522; 834 NW2d 122 (2013).

        “Generally, the burden is on the defendant who relies on a statute of limitations defense
to prove facts that bring the case within the statute.” Id. “In determining whether an action is of
a type subject to a particular statute of limitation, we look at the basis of the plaintiffs’
allegations.” Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 342-343; 573 NW2d
637 (1997). “The type of interest allegedly harmed is the focal point in determining which
limitation period controls.” Id. at 343.

       The period of limitation applicable to claims involving injury to person or property is
three years. See MCL 600.5805(10). Unless otherwise provided, “the claim accrues at the time
the wrong upon which the claim is based was done regardless of the time when damage results.”
MCL 600.5827. The limitations period for a claim arising from a breach of contract is six years.
MCL 600.5807(8). The period of limitations for a breach of contract begins to run when the
promisor fails to perform under the contract. Miller-Davis Co v Ahrens Constr, Inc, 495 Mich
161, 180; 848 NW2d 95 (2014). However, in certain limited cases, the accrual date may be
extended by the doctrine of equitable tolling. Chabad-Lubavitch of Mich v Schuchman, 305
Mich App 337, 344; 853 NW2d 390 (2014).

        Although Brown alleged two claims against Almont, wrongful termination and breach of
contract, Brown agreed in his deposition that the breach of contract claim was not actionable
against Almont. Therefore, the trial court examined the complaint and appropriately determined
that the wrongful termination claim actually raised a violation of procedural due process.
Procedural due process claims are subject to a three-year period of limitations. MCL
600.5805(10). Brown contends that Almont violated his procedural due process rights by failing
to give him adequate pre-termination notice and process. Almont fired him on July 11, 2003.
Thus, at the latest, Brown’s claim accrued on that date and, absent tolling, the three-year period
expired on July 11, 2006.

        Brown contends that the doctrine of equitable tolling acted to “freeze” the limitations
period while the appeals in his criminal matters were pending. In Michigan State Employees
Ass’n v Civil Serv Comm, 406 Mich 313, 315-316; 279 NW2d 530 (1979), the plaintiff received
written communication of his discharge on September 25, 1975, because of his participation in
alleged welfare fraud. In April 1976, the plaintiff was indicted for welfare fraud, but he was
acquitted of all charges on September 28, 1976. The next day, the plaintiff sought reinstatement
to his state employment. However, he was advised that he failed to timely file a grievance after
his discharge, thereby barring review of his discharge. He filed a mandamus action in circuit
court requesting reinstatement, which the circuit court dismissed. Id. at 316.

        On appeal to our Supreme Court, the plaintiff alleged that he was entitled to automatic
reinstatement or minimally a hearing regarding his dismissal because the limitations period was
tolled during the pendency of the criminal charges. Our Supreme Court held that under the
circumstances it was inappropriate to allow the employer to assert laches and the failure to
exhaust administrative remedies because the employee had the right to remain silent during the
criminal prosecution. Id. at 317-318. The Court stated that the tolling began when the plaintiff


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was terminated and informed that the matter was being referred for possible criminal prosecution
and continued until the criminal prosecution terminated. Id. at 318-319.

        In the present case, a jury convicted Brown of willful neglect of duty in Lapeer County,
and another jury in Oakland County convicted him of two felonies for delivery and manufacture
or possession of a controlled substance. Brown was sentenced in the Lapeer County case on
February 17, 2004, and in the Oakland County case on May 8, 2006. Thus, both prosecutions
were completed by, at the latest, May 8, 2006. The MSEA Court did not hold that the tolling
period applies to any period in which a party opts to pursue appellate remedies. Because any
tolling would not have continued beyond May 8, 2006, and Brown did not sue before May 8,
2009, his due process claim is time-barred.

        Brown nevertheless asserts that the parties agreed to hold his grievance in abeyance
pending his “appeals,” which included his pursuit of habeas relief in federal court. A writ of
habeas corpus is not a continuation of the appellate process, but rather an independent civil
action. See People v McCager, 367 Mich 116, 121; 116 NW2d 205 (1962). “A complaint for
habeas corpus is designed to test the legality of detaining an individual and restraining him of his
liberty.” Hinton v Parole Bd, 148 Mich App 235, 244; 383 NW2d 626 (1986). The writ
addresses only radical defects that render a judgment or proceeding absolutely void. Id. at 244-
245.

       In People v Jones, 467 Mich 301, 302-303; 651 NW2d 906 (2002), the defendant
conditionally pleaded guilty to drug offenses and was sentenced to a term of imprisonment. The
plea agreement allowed the defendant to appeal the legality of the search warrant that led to the
drug discovery and to remain free on $50,000 bond “pending appeal.” The trial court sentenced
the defendant in accordance with the agreement. This Court denied the defendant’s application
for leave to appeal, our Supreme Court also denied leave to appeal, and the United States
Supreme Court denied the defendant’s petition for a writ of certiorari. Id.

        The prosecutor moved to revoke the defendant’s bond, but the defendant filed a writ of
habeas corpus while the motion was pending. The trial court rejected the prosecutor’s argument
that the federal habeas proceeding constituted an independent civil action, not a continuation of
direct appellate review, and therefore, denied the prosecutor’s motion. Our Supreme Court
disagreed and noted that an appeal was not taken to federal court because it constituted a separate
system of justice:

               A federal district court considering an application under 28 USC 2254 is
       simply a trial court exercising original jurisdiction over an application for a writ
       authorized under federal law. See 28 USC 1331. That its habeas corpus
       jurisdiction permits it, under carefully defined circumstances, to scrutinize state
       court proceedings for alleged violations of the United States Constitution and
       federal laws does not transform the federal district court into a superior appellate
       court with jurisdiction to reverse the judgment of a prisoner’s conviction. Rather,
       its power is limited to granting a writ that compels the release of the prisoner from
       unlawful detention. [Id. at 306.]



                                                -4-
        Therefore, Brown’s assertion in this case that his grievance was held in abeyance
“pending appeal” and thereby included the period of time during which he pursued habeas relief
in federal court is without merit.

     The trial court did not err by granting Almont’s motion for summary disposition under
MCR 2.116(C)(7).

        Brown’s statement of this issue only addresses whether the trial court erred by granting
Almont’s motion for summary disposition. In the discussion section of this issue, however, he
contends that the trial court erred because he invoked the court’s equitable powers to toll the
limitations period by raising claims of fraud and estoppel. However, the fraud and estoppel
claims were not raised against Almont, but against the Labor Council. Because his statement of
this issue does not challenge the grant of summary disposition to the Labor Council, any claim
related to it is abandoned. Yono v Dep’t of Transp, 299 Mich App 102, 114 n 4; 829 NW2d 249
(2012), remanded by 495 Mich 982 (2014). Moreover, Brown’s failure to cite authority
addressing the application of estoppel and fraud to the statute of limitations, also results in
abandonment of the issue. Id. In any event, fraud must be pleaded with particularity, MCR
2.112(B)(1), cannot relate to future events, and there can be no fraud if a person has the means of
determining that a representation is untrue. Cummins v Robinson Twp, 283 Mich App 677, 695-
696; 770 NW2d 421 (2009). Here, Brown’s fraud claim is premised on future events.
Therefore, his challenge is without merit.

                                    IV. REQUESTS TO ADMIT

        Next, Brown argues the trial court abused its discretion by allowing the Labor Council’s
untimely answers to his requests for admissions under MCR 2.312. The trial court’s decision to
allow a party to file late answers to requests to admit is reviewed for an abuse of discretion.
Medbury v Walsh, 190 Mich App 554, 556; 476 NW2d 470 (1991). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

         The failure to properly answer requests for admissions does not automatically entitle a
party to summary disposition, even if the admissions cover the entire lawsuit. Janczyk v Davis,
125 Mich App 683, 691; 337 NW2d 272 (1983). Rather, the trial court has discretion to allow a
party to file late answers, or even to amend or withdraw the answers. Id. In deciding whether to
allow a party to file late answers, the court must balance the interests of justice and diligence in
litigation. Id. The court should consider: (1) whether allowing the party to file an untimely
answer will aid in the presentation of the litigation, that is, will refusing the request eliminate a
trial on the merits, which weighs against granting summary disposition; (2) whether the other
party would be prejudiced by allowing a late answer; and (3) the reason for the delay and
whether it was inadvertent. Id. at 692-693. Because this inquiry involves an exercise of
discretion, it is best left to the trial court, and remand is appropriate where the trial court fails to
examine the factors. Id. at 693-694.




                                                  -5-
        In the present case, the Labor Council’s answers to Brown’s second request to admit
were filed eight days late. Although the answers were filed in May 2013, the issue of the
timeliness did not arise until August 2013, in the context of Brown’s motion for partial summary
disposition. The trial court examined the Janczyk factors and concluded that deeming the
answers admitted would forego a trial, which was a harsh remedy. Furthermore, the court found
that Brown was not prejudiced and could pursue other remedies, such as sanctions, for the lack
of timeliness.

        The exclusion of the Labor Council’s answers would eliminate a trial, and this factor
weighed against granting summary disposition. Additionally, Brown complained that he
suffered prejudice, but he failed to state how he was prejudiced. Finally, the eight-day delay is
insignificant considering that the Labor Council was addressing a decade old case where the file
had to be recovered from storage and witnesses were not readily available. Under the
circumstances, the trial court did not abuse its discretion by accepting the answers. The decision
was within the range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.

        Brown asserts that the trial court erred by denying his motion for partial summary
disposition. He argues that partial summary disposition in his favor was proper because of the
untimely answers to his requests to admit. As previously discussed, however, the trial court did
not abuse its discretion in allowing the late answers. Therefore, his argument is without merit to
the extent that it is premised on his position that the late answers to his requests to admit should
not have been allowed.

        Brown also contends the trial court erred by denying his motion for partial summary
disposition because the Labor Council failed to oppose his dispositive motion with admissible
documentary evidence. Contrary to his assertion, the Labor Council did file admissible
documentary evidence, specifically, Brown’s deposition testimony, in opposition to Brown’s
motion. McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 693; 818 NW2d 410
(2012).

       There were no errors warranting relief.

       Affirmed.



                                                             /s/ Michael J. Kelly
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Kirsten Frank Kelly




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