Civil law questions - long

[RCD]

Happy New Year Soc!

FACTS

1) ABC sued me in civil court over property awarded to me in divorce judgement

2) Discovery / responsive pleadings took place.

3) Both ABC and I filed motions for SD

4) My original motion did not include a request for fees and costs but were requested in the oral arguments during SD hearing

5) Court tool matter under advisement for the reason that it did not review responsive pleadings prior to hearing

6) Court issued its opinion (see text below) and an order was entered (4/2003) denying ABC's SD motion and granting mine.

7) My answer to the original complaint included the following prayer for releif
          Wherefore Defendant prays: a) That the court dismiss the Plaintiff's Complaint; b) That  
          Defendant be awarded costs attorney fees and damages.

8) My original request for SD included the following prayer for relief:
          Wherefore, based on the foregoing and in reliance upon case law attached in Defendant's
          Memorandum Breif, Defendant prays that Plaintiff's Complaint be dismissed in its entirety
          for its failure to state a valid claim upon which relief can be granted and based on the fact
          that there are no genuine issues of material fact to be decided in the plaintiff's favor.

9) I filed a malicious prosecution complaint against ABC in 12/2003 after prevailing in my defense against her complaint.

10) Case is in michigan

11) ABC has entered the affirmative defense listed below

12) I submitted a motion for SD in the malicious prosecution action and served it with the initial complaint.




OPINION OF THE COURT

     This claim was filed by the plaintiff, seeking to recover the entire amount of an insurance check obtained by defendant, her ex-husband, as compensation for a theft loss, which occurred during the pendency of their divorce.  The loss occurred on or about 7/dd/yyyy when radio controlled cars and related equipment was stolen from the defendant's motor vehicle.  The divorce proceeding had been pending since 4/yyyy.
     
     The plaintiff, at the time worked at an insurance agency and had cancelled a homeowner's policy with AAA and obtained another through Citizen's insurance Company without informing the plaintiff.  At some point before the claim was paid, the plaintiff had caused the defendant's name to be deleted from the insurance policy.  This may have been because the divorce became final on 8/dd/yyy7.

     The pleadings suggest that it is undisputed that the plaintiff had told the defendant directly on or about 7/dd/yyy that she had not interest in his claim for the theft of the cars and equipment and would not assist him in furthering the claim and suggested that he could sign whatever was required to settle the claim.  She also wrote a letter to Citizen's Insurance Company indicating that she had no interest in the claim and did not wish to be involved.  The letter left the impression that the claim belonged solely to the defendant.  Since she referenced the claim number, it had surely been filed.

     The claim had to overcome more obstacles than a normal claim because the defendant's name was removed from the policy before it could be processed to completion.  It appeared strange to the claim processor that the person who was pursuing the claim was not a named insured.  Apparently steps were taken to put the defendant's name back on the policy, at least long enough so that the claim could be paid to both he and the plaintiff.  Ultimately, a draft was issued and sent to the defendant, naming both he and the plaintiff as insured.  The defendant signed both names on the back of the draft and deposited it.

     The plaintiff now disingenuously claims she is entitled to the entire amount of the draft.

     The court has reviewed the parties' judgement for divorce which indicates that they agreed on how they were going to divide up their personal property.  There appears to be agreement that the radio controlled cars and equipment belonged to the defendant and that the plaintiff had no interest in that avocation.  By the terms of the divorce judgement, this property belonged to him.  It is reasonable to conclude that the right to recover the insurance claim for the theft of this property also belonged to him.

     The plaintiff's statement to the defendant on or about7/dd/yyyy indicated that she recognized the insurance claim belonged to him.  Her letter dated 8/dd/yyyy to Citizens Insurance Company also supports this conclusion.  These actions lead to the conclusion that she authorized him as a joint insured to act on her behalf to process the claim so that she would not have to be involved and/or have any contact with him regarding the matter.  This authorization defeats any claim of forgery or conversion.

     The plaintiff has failed to state a claim upon which relief can be granted and her motion for summary disposition is denied.  The defendant's motion for summary disposition is granted.


AFFIRMATIVE DEFENSE (remember I am now the Plaintiff and ABC is Defendant)

1) plaintiff has failed to state a claim upon which relief can be granted

2) The applicable statute of limitations governing the claims of the plaintiff has elapsed and thus the claims of the plaintiff are barred

3) The principles of Res Judicata bar re-litigation of the issues raised in the complaint

4) Failure to file a motion pursuant to MCR2.119(f) with respect to relief granted in the referenced prior action

5) Failure to file a counter claim to the prior referenced action pursuant to MCR 2.203

6) Failure of the plaintiff to pursue costs pursuant to MCR2.625



ADDITIONAL INFORMATION

MCL 600.5805 Pertinent Sections
(5) The period of limitations is 2 years for an action charging malicious prosecution.
(9) The period of limitations is 1 year for an action charging libel or slander.

Rule 2.119 Motion Practice – subpart (F)

(F) Motions for Rehearing or Reconsideration.
(1) Unless another rule provides a different procedure for reconsideration of a decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 14 days after entry of an order disposing of the motion.
(2) No response to the motion may be filed, and there is no oral argument, unless the court otherwise directs.
(3) Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

Rule 2.203 Joinder of Claims, Counterclaims, and Cross-Claims

(A) Compulsory Joinder. In a pleading that states a claim against an opposing party, the pleader must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

(B) Permissive Joinder. A pleader may join as either independent or alternate claims as many claims, legal or equitable, as the pleader has against an opposing party. If a claim is one previously cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court may grant relief only in accordance with the substantive rights of the parties.

(C) Counterclaim Exceeding Opposing Claim. A counterclaim may, but need not, diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(D) Cross-Claim Against Co-Party. A pleading may state as a cross-claim a claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or that relates to property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(E) Time for Filing Counterclaim or Cross-Claim. A counterclaim or cross-claim must be filed with the answer or filed as an amendment in the manner provided by MCR 2.118. If a motion to amend to state a counterclaim or cross-claim is denied, the litigation of that claim in another action is not precluded unless the court specifies otherwise.

(F) Separate Trials; Separate Judgment. If the court orders separate trials as provided in MCR 2.505(B), judgment on a claim, counterclaim, or cross-claim may be rendered in accordance with the terms of MCR 2.604 when the court has jurisdiction to do so. The judgment may be rendered even if the claims of the opposing party have been dismissed or otherwise disposed o


MCR 2.625 – please use this link  http://courtofappeals.mijud.net/rules/public/default.asp


QUESTIONS

1) Based on my understanding, by advancing an affirmative defense, the plaintiff ABC effectively admits that my allegations are true and that she even admits that I have established my prima facie case, however, she denies that I am able to recover on my claim for other reasons.  Is this understanding correct?


2) Isn't an affirmative defense and point #1 listed in the affirmative defenses above mutually exclusive?

3) I have quoted state statutes on statutes of limitations and I am well within the time alloted.  What is defendant referring to in her #2 point

4) Affirmative Defense points #4 through #6 all refer to actions associated with the initial case against me.  How do they / can they apply as a defense in My complaint for malicious prosecution against her.  

[socrateaser]

>QUESTIONS
>
>1) Based on my understanding, by advancing an affirmative
>defense, the plaintiff ABC effectively admits that my
>allegations are true and that she even admits that I have
>established my prima facie case, however, she denies that I am
>able to recover on my claim for other reasons.  Is this
>understanding correct?

Not correct. A defendant can advance multiple contrary theories and defenses in an answer. To each actual allegation in the complaint, or counterclaim, the defendant or counterclaimdefendant must admit, deny or state that he/she has insufficient information with which to answer the allegation, which is the equivalent of a denial. Any allegation not denied, is admitted.


>2) Isn't an affirmative defense and point #1 listed in the
>affirmative defenses above mutually exclusive?

No, see above.
>
>3) I have quoted state statutes on statutes of limitations and
>I am well within the time alloted.  What is defendant
>referring to in her #2 point

It is routine to claim every possible defense, whether valid or not, so as to not miss any.

>
>4) Affirmative Defense points #4 through #6 all refer to
>actions associated with the initial case against me.  How do
>they / can they apply as a defense in My complaint for
>malicious prosecution against her.

You probably should have alleged a wrongful institution of civil action (malicious prosecution) counterclaim at the time you moved for SD. By failing to do so in the original action, you have fallen on the possibility that the court will find your new claim barred, as you have an obligation to raise any counterclaim reasonably based on the transaction between the parties, that can be raised, at the time of the original action.

There may be specific case law in your jurisdiction on this issue, as generally, you must prevail in a defense prior to raising a wrongful institution of civil action claim, because prevailing is an element of the claim, which could not reasonably be proven at the time that you were the defendant in the original action.

Find this case law argument and you will prevail. You may prevail anyway, but if you find the case law you will win for sure.

Realize that the court will bend over backwards to rid itself of this action -- courts hate to deal with the after effects of divorce, so you will need a rock solid argument to stay in the game.

[RCD]

I have the case law that states that I must prevail b4 starting a malicious prosecution suit.  Thank you.  

QUESTION

Can the defendant in the current case raise additional affirmative defenses at the time of the SD hearing?  In other words, If there was another affirmative  defense that was not raised in the answer to my coimplaint, is she barred from raising it at the hearing?

[socrateaser]

A new issue may be raised at any time, and if facts prove a claim of action that wasn't actually pled, the aggrieved party can move for leave to amend the pleadings to conform to the facts, and the court will grant leave freely. However, if a new issue is raised, you may object on grounds that you are not prepared to fairly meet the new claim and evidence (unfair surprise), and move for a continuance so as to permit you time to obtain discovery from the other party and to mount an adequate defense on the new issue.

The court should either grant such a request or refuse to consider the new issue on grounds that it was not pled in advance.

You must have some issue in mind that you believe will be raised at the last moment. Have your counterargument ready, in case the judge rules against you completely.

[RCD]

The issue I am concerned with is the reliance on counsel.  In my jurisdiction this is an affirmative defense and the plaintiff has the burden of proving that all facts available to her were disclosed to counsel prior to comencing action.  

Plaintiff has retained new counsel to defend herself against the malicious prosection complaint.  If her new counsel raises this defense I am uncertain what to do.  

Plaintiff wrote a letter which clearly stated she didn't want to be involved and I was the person to contact and deal with.  She also told me to sign whatever was required to settle the claim.  These statements were witnessed.


She filed a forgery complaint against me with the bank and after reviewing the letter they said she had no claim.  She then went to the police and made the same complaint.  After they saw the letter they closed the complaint and didn't persue.  

This all happened Prior to initiating action.  I find it hard to believe that a compentent attny would take action knowing all these facts in advance.

Can you offer and advice?

[socrateaser]

>Can you offer and advice?

If she raises the defense that "my attorney advised me to undertake a frivolous action," then she will have put her attorney's advice "at issue" in the current matter, and waived her attorney-client privilege.

What follows is that you will be entitled to discover ALL of the correspondece between her and her attorney made during the divorce, and you will be able to examine her attorney under oath and he/she will be forced to answer your questions.

Do you think her attorney will agree that he advised to undertake a frivolous action, thereby placing himself at risk of disbarment.

I don't think so. In short, PRAY that she raises this defense, because it will be all downhill after that.

[RCD]

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