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Wilcoxon v. Wayne County Neighborhood Legal Services8/23/2002
FOR PUBLICATION
Defendant Wayne County Neighborhood Legal Services (WLNCS) appeals by leave granted from an order of the circuit court denying its motion for mandatory dismissal of plaintiff's lawsuit for failure to follow the procedures set forth in MCR 2.403(N). We affirm.
In her eight-count first amended complaint, plaintiff alleges that she was initially hired by WLNCS as an administrative assistant. Plaintiff asserts that sometime later, defendant altered plaintiff's employment by expanding her duties to include the writing of grant proposals. Plaintiff alleges that the terms of her compensation were also changed to include a ten-percent commission on any grant monies received as a result of her efforts. Plaintiff further alleged that in 1995, defendant was awarded $671,500 in grants from proposals written by plaintiff. Plaintiff asserts that pursuant to the terms of her employment, she was due $67,500 in commission for 1995. Plaintiff alleges, however, that she was constructively discharged in order to avoid the payment of this commission.
On motion by defendant, the circuit court summarily dismissed three of plaintiff's eight claims. The remaining five claims were for fraudulent and innocent misrepresentation, breach of oral and/or implied in fact contract, promissory estoppel, and unjust enrichment.
On April 12, 1999, a mediation hearing was held. The mediation panel unanimously found that plaintiff's complete cause of action was frivolous. In so doing, the panel referenced MCR 2.403(K)(4)(b) as support for their determination. Plaintiff did not file a motion asking for the circuit court to review de novo the panel's finding, but did file a motion to remediate, which was denied, by the court. The court also denied defendant's motion for summary disposition. Defendant had argued that the remaining claims should be summarily dismissed under MCR 2.116(C)(10), because plaintiff's employment contract did not permit oral modification of its terms, thereby precluding plaintiff's claim for a ten-percent commission.
After receiving plaintiff's rejection of the mediation evaluation, defendant moved to dismiss plaintiff's case, arguing that MCR 2.403(N)(3) mandates dismissal because plaintiff failed to post the bond required by the court rule. The circuit court denied defendant's motion.
Defendant argues on appeal that the circuit court erred in denying its motion to dismiss under MCR 2.402(N)(3), because plaintiff did not follow the mandates of the court rule by both moving for review of the mediation evaluation within fourteen days after the ADR clerk sent notification of the case evaluation, and by posting the required cash or surety bond. We reject this argument. MCR 2.403(K)(4) states in pertinent part: "In a tort case to which MCL 600.4915(2) . . . or MCL 600.4963(2) . . . applies, if the panel unanimously finds that a party's action . . . as to any other party is frivolous, the panel shall so indicate on the evaluation." MCL 600.4915 and MCL 600.4963 set forth procedures to be followed in medical malpractice and tort action mediation. In identical language, subsection 2 of each of these statutes indicates that " f the action proceeds to trial, the party who has been determined to have a frivolous action or defense shall post a cash or surety bond, approved by the court, in the amount of $5,000.00 for each party against whom the action or defense was determined to be frivolous." MCL 600.4915(2); MCL 600.4963(2).
This statutory language is mirrored in MCR 2.403(N)(3), which at the time this action was mediated stated that " xcept as provided in sub rule (2), if a party's claim . . . was found to be frivolous under sub
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