Kaufman & Payton, PC v. Nikkila

503 N.W.2d 728, 200 Mich. App. 250

• Court: Michigan Court of Appeals
• Decided: June 21, 1993
• Docket: Docket 133012
• Status: Published

Opinions

Corrigan, P.J.

Catherine Nikkila appeals as of right the trial court’s summary dismissal of her counterclaim against the law firm of Kaufman & Payton, P.C.,¹ under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm.

The circuit court properly granted partial summary disposition pursuant to MCR 2.116(0(10). Nikkila did not raise a genuine issue of material fact concerning her Whistleblowers’ Protection Act claim. The circuit court properly found, considering all the evidence before it, that Nikkila could not prove that either she or her attorney had threatened to report the law firm to the Attorney Grievance Commission before her resignation from the firm.

Catherine Nikkila, the billing supervisor at Kaufman & Payton for IV2 years, was scheduled to testify at a deposition in the law firm’s suit for collection of legal fees against a client in February 1989. As she prepared for her testimony with the law firm’s counsel, she became worried about the legality of certain billing procedures that she had executed. She decided to consult outside counsel, Ronald Prebenda. Prebenda advised Nikkila only about the potential criminal aspects of her conduct.

Prebenda thereafter sent two letters to Kaufman & Payton on Nikkila’s behalf. The first, dated March 15, 1989, questioned the law firm’s billing practices and sought certain assurances from the firm about Nikkila’s future duties. The second, dated March 29, 1989, complained of the lack of response to the March 15 letter and prescribed unilateral changes in Nikkila’s billing duties.

Alan Kaufman, managing partner of the firm, never formally responded to either letter. The evidence on this record is disputed concerning whether Nikkila was reassigned to different duties; in any event, she continued to receive the same salary. On April 19, 1989, Nikkila tendered her letter of resignation to the law firm. Four days later, on April 23, 1989, she sent a request for investigation to the Attorney Grievance Commission (agc) and followed up on May 4, 1989, with a formal complaint. Prebenda assisted her in drafting the formal complaint to the agc.

On May 22, 1989, Kaufman & Payton sued Nikkila for conversion and misappropriation of the firm’s files and records. Nikkila answered and also filed a countercomplaint against the law firm, alleging constructive termination, retaliatory discharge, discharge in violation of the Whistleblowers’ Protection Act, intentional infliction of mental distress, and defamation. She also filed a separate complaint against Alan Kaufman, alleging essentially the same claims.

The Kaufman proceedings were consolidated with this case in the circuit court. However, Nikkila did not file a claim of appeal in the case against Kaufman. This case, accordingly, relates solely to the circuit court’s grant of partial summary disposition of Nikkila’s countercomplaint against Kaufman & Payton concerning the Whistleblowers’ Protection Act claim. The theory alleged in Nikkila’s countercomplaint was that Kaufman & Payton constructively discharged her because she had reported or was about to report an alleged violation of law, rule, or regulation. The central issue is whether Nikkila or anyone acting on her behalf, threatened, mentioned, or otherwise indicated that Nikkila might report Kaufman & Pay-ton or any of its attorneys to any agency before her April 19 resignation.

In deciding that Nikkila had not made out a genuine issue of material fact with regard to this question, the circuit court analyzed the evidence as follows:

First, Nikkila testified that she could not remember speaking to her employer about threatened action. (Nikkila deposition, pp 109-111). Second, Nikkila’s husband and attorney Prebenda both testified that they did not know about the grievance request until after Nikkila filed it after she left her employment. (Jeffrey Nikkila deposition, pp 41-42; Prebenda deposition, p 92). Next, the deposition testimony of Defendant Alan Kaufman referred to threats made by Prebenda, not Nikkila. (Kaufman deposition, p 93). Finally, the court notes that the affidavit of Prebenda in support of Nikkila’s claim, which states that Prebenda advised Irwin Alterman of Nikkila’s doings prior to her resignation, wholly contradicts Prebenda’s deposition testimony that he did not notify or threaten anyone on Nikkila’s behalf prior to her resignation.

The circuit court did not err in disregarding Prebenda’s affidavit. It is undisputed in the record below that an affidavit dated December 1989 was not filed in this cause until after defendant moved for summary disposition. Prebenda’s later-filed affidavit contradicted his deposition testimony in relevant details.

During his deposition, Prebenda testified:

Q. Did you assist Ms. Nikkila in filing a grievance against Alan Kaufman?

A. Yes, I did.

Q. When did you determine that you would file such a grievance?

A. She told me — first of all, she filed a grievance without my knowledge. She had filed some preliminary documents of some kind that to this day I have never seen.

Q. Did you discuss doing so with her prior to that time?

A. I have no present — prior to what time?

Q. Prior to filing this document to the grievance board to which you were unaware.

A. My understanding was that she had filed something with the grievance commission that I had no knowledge of and there was no discussion of to the best of my knowledge and then at that time she came to me and asked me if I would assist her in filing a complaint, and I read in the rules, and the rules that you must assist a person that request that you file a grievance and I complied with the rule.

Q. Do you recall approximately when you assisted her filing this more formal complaint against Mr. Kaufman?

A. No, I don’t recall. I assisted her as to form only.

Earlier in that deposition, Mr. Prebenda had stated:

Q. Do you recall ever telling anyone that you on behalf of Ms. Nikkila intended to file a State Bar grievance against Mr. Kaufman or his law firm?

A. No. I have no recollection of telling him that. No.

Q. Tell Mr. Kaufman that or anyone else?

A. I never talked to Alan Kaufman after I wrote that letter, he chose never to face me. [Emphasis supplied.]

The lower court also considered Alan Kaufman’s affidavit, in which he amplified his deposition testimony. In it, he referred to threats by Prebenda after Nikkila resigned that he would file a State Bar Grievance on his own behalf and not as a representative of Catherine Nikkila. Further, Kaufman averred that at no time before Nikkila left her position did Prebenda, Nikkila, or anyone else state that Nikkila was contemplating filing a grievance with the State Bar regarding Kaufman or his firm. Similarly, the law firm administrator’s affidavit averred that she had no conversation regarding this subject with Prebenda before Nikki-la’s departure from the firm. These assertions are all fully consistent with Prebenda’s deposition testimony on these points and further demonstrate the absence of a genuine issue of material fact.

Although Prebenda’s deposition testimony in some respects displayed a failure of his memory, on the precise points at issue, his deposition testimony was intelligent, clear, and unequivocal. By contrast, Prebenda’s affidavit averred that he had informed Irwin Alterman, then a partner in the firm, before Nikkila’s resignation that Nikkila had been advised to go to the Attorney Grievance Commission and intended to do so. The circuit court appropriately disregarded Prebenda’s contradictory, later-filed affidavit in deciding whether a genuine issue of material fact existed. In Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), this Court observed that the plaintiffs affidavit contradicted testimony she had previously given in a deposition. Downer recognized the principle that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition, and held that a trial court that disregards such testimony does not err.

The principle, as discussed in Griffith v Brant, 177 Mich App 583; 442 NW2d 652 (1989), and Peterfish v Frantz, 168 Mich App 43; 424 NW2d 25 (1988), is not limited to parties who make contradictory assertions. The principle that contradictory affidavits should be disregarded stands irrespective of the identity of the maker of the conflicting statements. Even if the Griffith-Peterñsh-Downer principle is somehow limited, a party is bound by representative admissions of counsel. Neither a party nor that party’s legal representative may contrive factual issues by relying on an affidavit when unfavorable deposition testimony shows that the assertion in the affidavit is unfounded.

Even if Prebenda’s contradictory assertions would somehow create a genuine issue of material fact as to Kaufman & Payton, they are totally insufficient to make a case against Alan Kaufman personally. At best, Prebenda told Irwin Alterman, a partner in Kaufman & Payton, of Ms. Nikkila’s threat before her resignation. Prebenda concededly never spoke directly to Kaufman. We see no proof in this record that Alterman ever relayed the substance of his discussions with Prebenda to Kaufman. Further, Kaufman acknowledges that he spoke to Prebenda only after Nikkila had already resigned.

Finally, we disagree with the dissent’s advocacy of a reduction in the burden of proof in claims under the Whistleblowers’ Protection Act. An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. Plaintiff did not present adequate evidence that a record might be developed upon which reasonable minds could differ with regard to the whistleblower claim.

Affirmed.

Weaver, J., concurred.

1 The trial court’s summary disposition left Nikkila with two remaining counterclaims. However, after a hearing, the trial court made an express determination that there was no reason for delay, and made the partial summary judgment a final order pursuant to MCR 2.604(A).

We question the circuit court’s certification of this order because the Whistleblowers’ Protection Act claim was but one of several theories upon which Catherine Nikkila sought recovery below. Where only one of several theories has been resolved, certification of a final judgment pursuant to MCR 2.604(A) is improper. Derbeck v Ward, 178 Mich App 38, 41; 443 NW2d 812 (1989), quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, p 417, observed:

[I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A).

The plaintiffs only liability claim against the defendant was for personal injuries. Although several theories of negligence were alleged, partial summary disposition of one, but not all, of the theories was not sufficient to qualify this order as a final judgment under MCR 2.604(A). To warrant certification, the undecided claims should be sufficiently independent of the decided claims to justify splitting the case. The theory disposed of here was not sufficiently independent of the remaining theories. The retaliatory discharge, constructive termination, and wrongful discharge claims seem to be interdependent. Moreover, the parties have apparently stipulated to stay further proceedings until the outcome of this appeal. The only reason justifying this stay is that the remaining theories depend on our ruling.

More fundamentally, we question the continuing viability of any trial court certifications under MCR 2.604(A). The court below, applying MCR 2.604(A), found "no just reason for delay.” Such pro forma invocation of magic words in reality condemns litigants in this state to years of delay.

We urge circuit judges to deny certifications under MCR 2.604(A) as long as the enormous docket backlog of this Court continues to persist. Such certifications are luxuries that the bench and bar of this state can no longer afford. In the early days of this Court, when the backlog was nonexistent, the judges of this Court could usually render a decision well before the trial court could finally render judgment. MCR 2.604(A) certifications served an important and helpful purpose in providing quick and definitive appellate resolutions. Now the situation is reversed. The circuit courts are relatively current, but this Court is buried in cases. The parties here have waited since mid-1990 to learn of this Court’s disposition of but one small aspect in ongoing litigation.

The Supreme Court should either act to abolish jurisdiction under MCR 2.604(A), or authorize this Court to decline certification whenever this Court’s backlog precludes speedy disposition of piecemeal claims — a situation that we believe will persist well into the future.