957 N.W.2d 396
Mich. Ct. App.2020Background
- Swain alleges that on April 6, 2017, Michael Morse grabbed and squeezed her left breast through clothing at Lellis On the Green; Morse denies the touching. Swain reported the incident to police, met with Morse (a recorded May 6 meeting), and prosecutors declined charges. Swain filed a verified civil complaint (May 15, 2017) asserting sexual assault/battery, IIED, civil conspiracy, negligence/gross negligence, and premises-liability claims (defendants: Morse; Mark Zarkin and Lellis On the Green, LLC).
- Discovery dispute arose over MRE 404(b) evidence (other-acts). The trial court initially issued a protective order; this Court later reversed and vacated that order on interlocutory appeal and remanded for further proceedings.
- On remand the trial court granted summary disposition to Zarkin and Lellis (all counts) and granted Morse summary disposition as to IIED, civil conspiracy, and negligence while allowing the sexual-assault claim to proceed; gross-negligence claims remained for exemplary damages.
- After plaintiff’s deposition, the court found Swain gave materially false testimony about the amount and duration of financial support from Ken Koza (conflicting bank records) and, as a discovery sanction, dismissed Swain’s entire complaint against Morse.
- The Court of Appeals affirmed summary disposition for Zarkin and Lellis, reversed the dismissal sanction against Morse, and reversed the grant of summary disposition to Morse on the IIED claim; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal as discovery sanction for allegedly false deposition testimony | Trial court abused discretion; deposition misstatements did not violate a court order and lesser sanctions available | Swain lied at deposition about Koza payments; false testimony was material and prejudiced defense, warranting dismissal | Reversed — dismissal was an abuse of discretion: no rule/order violation, impeachment and perjury/cost remedies exist, and prejudice was not substantial |
| Summary disposition vs. Zarkin & Lellis (premises liability; IIED failure-to-supervise) | Zarkin had duty to supervise; conduct at meeting (apology, offers) supports IIED/conspiracy | No duty to supervise; meeting conduct (apology, free dinners) not extreme or unlawful | Affirmed — no duty shown and meeting conduct not extreme/outrageous or unlawful under statute |
| Civil conspiracy (to coerce withdrawal of complaint; violation of MCL 750.122) | Morse and Zarkin conspired to coerce withdrawal and discouraged legal process (offered dinners, moral pressure) | No unlawful agreement; offers/dissuasion do not constitute criminal tampering/encouraging avoidance of legal process | Affirmed — plaintiff failed to show concerted unlawful purpose or statutory violation |
| IIED claim against Morse (single breast touch) | Single, unwanted sexual touching is extreme/outrageous, causing severe emotional distress | A one-time outside-the-clothing touch in public is not extreme and outrageous as a matter of law | Reversed as to Morse — reasonable minds may differ; IIED claim survives summary disposition |
| Motion to reassign judge on remand | Trial judge statements show bias; reassignment needed to preserve appearance of justice | No disqualifying bias; reassignment would cause waste/duplication | Denied — judge presumed impartial; reassignment not warranted |
Key Cases Cited
- Brenner v. Kolk, 226 Mich. App. 149 (Mich. Ct. App. 1997) (dismissal is a drastic sanction to be used cautiously)
- Maldonado v. Ford Motor Co., 476 Mich. 372 (Mich. 2006) (trial courts have inherent authority to sanction but must exercise restraint)
- Cummings v. Wayne County, 210 Mich. App. 249 (Mich. Ct. App. 1995) (dismissal affirmed for witness intimidation and vandalism undermining fair trial)
- Kalamazoo Oil Co. v. Boerman, 242 Mich. App. 75 (Mich. Ct. App. 2000) (default may be proper for deliberate noncompliance with discovery orders)
- LaCourse v. Gupta, 181 Mich. App. 293 (Mich. Ct. App. 1989) (dismissal for repeated failure to comply with discovery rules/orders)
- Bank of Am., N.A. v. Fidelity Nat’l Title Ins. Co., 316 Mich. App. 480 (Mich. Ct. App. 2016) (credibility determinations belong to the trier of fact)
- Hayley v. Allstate Ins. Co., 262 Mich. App. 571 (Mich. Ct. App. 2004) (elements of intentional infliction of emotional distress)
- Lewis v. LeGrow, 258 Mich. App. 175 (Mich. Ct. App. 2003) (IIED requires conduct beyond bounds of decency)
- Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335 (Mich. Ct. App. 1993) (sexualized conduct may, in some circumstances, be sufficiently outrageous for IIED)