Connie Cross v. Earl Burhans Do
328598
| Mich. Ct. App. | Dec 13, 2016Background
- Plaintiff (Connie Cross), a migraine patient, alleged Dr. Earl Burhans (employed by Westside Family Medical Center) engaged in a sexual relationship beginning with unwanted contact in 2007 and continuing through repeated intercourse tied to care and prescription access.
- Plaintiff filed Chapter 7 bankruptcy in March 2009, received a discharge in July 2009, and did not disclose causes of action against defendants on her schedules.
- Plaintiff sued defendants in December 2012. Defendants moved for summary disposition arguing lack of standing, judicial estoppel, and statute-of-limitations defenses based on the nondisclosure in bankruptcy; Westside concurred.
- Plaintiff reopened her bankruptcy case, amended schedules to list the claims, and the bankruptcy trustee later abandoned the claims in March 2015.
- The trial court denied defendants’ summary-disposition motions; defendants appealed. The Court of Appeals affirmed, holding (1) defendants had not waived affirmative defenses because leave to amend should have been allowed, (2) plaintiff’s standing was restored by trustee abandonment (nunc pro tunc reversion), and (3) summary disposition on judicial estoppel was improper because material facts (bad faith/motive) remained in dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived affirmative defenses (standing, judicial estoppel) | Defendants failed to plead factual bases and thus waived these defenses | Defendants argued they preserved defenses and sought leave to amend after discovery | Court: Defenses not waived; defendants should have been allowed to amend (no particularized reason to deny) |
| Whether plaintiff lacked standing because nondisclosed claims were estate property when suit was filed | Cross argued reopening and trustee abandonment restored her standing; dismissal improper | Defendants: plaintiff lost standing by not listing claims in bankruptcy; trustee controlled claims when suit filed, so suit was premature | Court: Standing restored by trustee abandonment (reversion nunc pro tunc); denying dismissal was correct (relation-back inapplicable but reversion applies) |
| Whether plaintiff is judicially estopped from pursuing claims due to bankruptcy omission | Cross: she later amended schedules and reopened case; omission may be excused by fear and mental-state evidence | Defendants: omission of claims in bankruptcy is inconsistent and warrants estoppel | Court: Judicial estoppel inappropriate at summary stage because disputed factual issues (motive, bad faith, plaintiff’s mental state) preclude resolution on the record |
| Whether statute of limitations bars the claims | Cross: trustee abandonment and reversion allow suit to proceed despite timing | Defendants: lack of standing at filing means claims are time-barred because abandonment occurred after limitations ran | Court: Denied summary disposition on limitations ground because standing was resolved by abandonment/reversion and factual issues remain; defendants’ relation-back argument was misplaced |
Key Cases Cited
- Young v. Independent Bank, 294 Mich. App. 141 (discusses debtor’s duty to list causes of action and trustee control)
- Spohn v. Van Dyke Pub. Sch., 296 Mich. App. 470 (judicial estoppel analysis for bankruptcy omissions)
- Weymers v. Khera, 454 Mich. 639 (leave to amend affirmative defenses; standards for denial)
- Maiden v. Rozwood, 461 Mich. 109 (summary-disposition evidence review under MCR 2.116)
- Wallace v. Lawrence Warehouse Co., 338 F.2d 392 (nunc pro tunc reversion when trustee abandons property)
- White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (federal appellate discussion of judicial estoppel factors)