Litigation 

This summary also appears under Employment & Labor Law

 

Issues: Judicial disqualification; Mitchell v. Mitchell; Whether there was "actual bias"; MCR 2.003(C)(1)(a); Whether there was a reasonable perception that the judge had "a serious risk of actual bias"; MCR 2.003(C)(1)(b)(i); Whether there was a reasonable perception that the judge failed to adhere to the "appearance of impropriety" standard of the MI Code of Judicial Conduct; MCR 2.003(C)(1)(b)(ii); Ex parte communications; MI Code of Judicial Conduct Canon 3(A)(4); In re JK; People v. Waterstone; In re MKK; Untimely second motion for disqualification; MCR 2.003(D)(1)(a) & (d); Band v. Livonia Assocs.; Isolated comment; Schellenberg v. Rochester Elks; Bullard-Plawecki Employee Right to Know Act (MCL 423.501 et seq.); MCL 423.503; Whether the investigation records were exempt from disclosure; MCL 423.501(2)(c)(v); MCL 423.509(1); Declaratory judgment regarding whether the defendant had a duty to "defend and indemnify" the plaintiffs in the underlying cases; Michigan's Banking Code (MCL 487.11101 et seq.); MCL 487.11202(g); Schmalfeldt v. North Pointe Ins Co.; Blackwell v. Citizens Ins. Co. of Am.; Malicious prosecution ; MCL 600.2907; Camaj v. SS Kresge Co.; Friedman v. Dozorc; Abuse of process; Davis v. Sequin; Pilette Indus., Inc. v. Alexander; Fraudulent misrepresentation; Roberts v. Saffell; Hi-Way Motor Co. v. International Harvester Co.; MCR 2.112(B)(1); Lawrence M. Clarke, Inc. v. Richco Constr., Inc.; LaMothe v. Auto Club Ins. Ass'n.; Promissory estoppel; Novak v. Nationwide Mut. Ins. Co.; Schmidt v. Bretzlaff; First Sec. Sav. Bank v. Aitken; Smith v. Globe Life Ins. Co.; Exemplary damages; Veselenak v. Smith; Hayes-Albion v. Kuberski

Court: Michigan Court of Appeals (Unpublished)

Case Name: Jordan v. National City Bank

e-Journal Number: 56700

Judge(s): Per Curiam - Jansen, Owens, and Shapiro

 

In these consolidated cases brought against the defendant-bank by two former employees, the trial court properly denied the plaintiffs' motions to disqualify the trial judge because they failed to establish an alleged improper ex parte communication, or that the judge "was actually, or reasonably likely to be, biased or prejudiced against them." The plaintiffs' second motion to disqualify the trial judge was also properly denied. In addition to being untimely, the judge's "isolated comment, made in response to counsel's question, did not create an appearance of impropriety or 'display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" The bank was entitled to summary disposition on plaintiffs' Bullard-Plawecki claims. The plaintiffs essentially argued that "their personnel files must have contained other, unspecified documentation concerning the Bank's investigation into their conduct that was never disclosed to them." The court upheld the trial court's finding that any separate records maintained by defendant's investigator concerning her internal investigation "were properly withheld from the personnel files that were produced." The trial court did not err by dismissing with prejudice the plaintiffs' declaratory judgment and breach of contract claims as to the bank's alleged duty to defend and indemnify them in the underlying litigation. The bank is not a "state-chartered bank," so the bonding and indemnification provisions of Michigan's Banking Code do not apply to it. The plaintiffs were also not third-party beneficiaries of the bank's insurance contract. Their claims for malicious prosecution failed because the statute did not apply, and the plaintiffs were not "ultimately successful in defending the underlying civil litigation," which was necessary for a claim for common-law malicious prosecution. They also "failed to plead and identify any special injury resulting from the underlying civil litigation." Further, the bank was entitled to summary disposition on plaintiffs' claims for abuse of process, fraudulent misrepresentation, promissory estoppel and exemplary damages. They failed to plead and show any irregularity in the bank's use of process, and they did not "identify any particular false representations of past or present fact in their fraud claim." No reasonable person could have concluded that the bank "made a 'definite and firm' promise to defend plaintiffs in the underlying litigation or to refrain from enforcing the default judgments against them." Plaintiffs' counsel "consented on the record to the dismissal with prejudice of plaintiffs' remaining claims of concert of action, civil conspiracy, intentional infliction of emotional distress, and tortious interference with business expectancies." Thus, they could not now argue on appeal that the trial court erred by dismissing the claims with prejudice. The trial court properly dismissed all their claims against the bank with prejudice. Affirmed.

 

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