LEALER JAMES V M TYRONE CUSHMAN
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STATE OF MICHIGAN
COURT OF APPEALS
LEALER JAMES, Personal Representative of the
Estate of SHERITA MICHELLE JAMES,
LEALER JAMES, and KIMBRIA JAMES,
UNPUBLISHED
January 13, 2009
Plaintiffs-Appellants,
v
No. 282110
Washtenaw Circuit Court
LC No. 06-000828-NO
M. TYRONE CUSHMAN,
Defendant-Appellee.
Before: Murray, P.J., and O’Connell and Davis, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(10) and dismissing plaintiffs’ claims of
wrongful death and intentional infliction of emotional distress.1 We affirm.
Sherita Michelle James, a 33-year-old single mother of four living in Ypsilanti, died on
August 13, 2004, after suffering a brain hemorrhage and developing a blood clot. Sherita’s
oldest daughter, Kimbria, was 16 years old when her mother died. Sherita’s mother, Lealer
James, lived in Texas at the time of her daughter’s death.
Defendant Cushman is a 62-year-old ordained pastor and the general overseer of the
National Association of the Church of God. Defendant met Sherita and her daughters in 2000;
he counseled Sherita as she separated from her husband and eventually became a father figure to
her. Defendant and his wife also provided financial assistance to Sherita and her family, and
Sherita and her children regularly visited the Cushmans at their home in Pennsylvania.
1
Plaintiffs do not challenge the trial court’s dismissal of their claims of negligent infliction of
emotional distress, theft and larceny, and unjust enrichment in their questions presented to this
Court. Therefore, we will not address the trial court’s dismissal of these causes of action.
MCR 7.212(C)(5); Joerger v Gordon Food Service, Inc, 224 Mich App 167, 172; 568 NW2d
365 (1997).
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On August 3, 2004, Sherita began experiencing severe headaches and hypertension. She
admitted herself to the University Hospital in Ann Arbor and notified defendant that she was in
the hospital. Defendant and his wife immediately traveled from Pennsylvania to Michigan,
arriving on August 4, 2004. They brought Kimbria to the hospital with them. According to
defendant, when they arrived at the hospital, Sherita was awake and alert. She handed defendant
a durable power of attorney form and said that she wanted him to have the power to make
medical decisions for her if she was incapacitated. Defendant told her that he would take the
form home, review it, and bring it back to the hospital the following day.
Lealer was contacted on August 4. Defendant discussed Sherita’s condition with Lealer
and offered to pay for her to fly to Michigan. Lealer refused. Instead, she drove to Michigan,
arriving on August 8, 2004.
When defendant and his wife returned to the hospital the following morning, they
discovered that Sherita had lost consciousness during the night. Because Sherita could not sign
the power of attorney form, defendant asked Kimbria to sign Sherita’s name to the form and to
witness his signature.2 After Kimbria and defendant executed the form, defendant gave the form
to a doctor. Defendant claimed that he did not know that he could not have Kimbria sign
Sherita’s power of attorney.
The day after defendant and Kimbria executed the power of attorney, Sherita’s doctors
informed them that Sherita had suffered a large, deep basal ganglia hemorrhage and had
developed a blood clot on the left side of her brain. The doctors then discussed two possible
treatment options. First, the doctors could perform surgery on the clot, but they warned that the
operation was risky. There was a chance, they explained, that Sherita might die during the
surgery, and even if she lived, she would likely be brain-damaged and reduced to living in a
vegetative state. Alternatively, the doctors could do nothing. Although there was a chance that
Sherita would die without intervention, a possibility also existed that the blood clot would recede
and that Sherita could then recover.
Defendant told Sherita’s doctors that Sherita had indicated in the past that she would not
want to live in a vegetative state, and he decided that Sherita should not have the surgery.
Kimbria testified that she wanted the doctors to perform an angiogram on Sherita to determine
whether surgery might be helpful, and she claimed that her younger sister, Akeyla N. Dowden,
wanted Sherita to have the surgery.3
Defendant gave Sherita’s doctors permission to inform Lealer about Sherita’s condition,
and the doctors called Lealer to discuss Sherita’s medical situation. Defendant told Lealer that
she could change the course of treatment and opt for surgery when she arrived at the hospital, but
2
According to defendant, Kimbria did not object to signing her mother’s name on the form.
Although Kimbria testified that she was distraught when she signed the power of attorney
document, she did not claim that Cushman forced her to sign the document.
3
Both defendant and Sherita’s doctor, Hunter Brumblay, claimed that Sherita’s daughters agreed
with defendant’s decision not to authorize the surgery.
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he claimed that Lealer told him that she agreed with his decision. Lealer, however, maintained
that when she was told about Sherita’s medical condition over the phone, she did not clearly
understand the nature of Sherita’s medical condition and the pros and cons of surgery and “did
not agree to anything.”
Lealer arrived at the hospital on August 8. Sherita’s medical records indicate that when
Lealer arrived at the hospital, the doctors discussed Sherita’s condition with her and noted that
Lealer understood the situation. The records do not indicate that Lealer disputed the decision not
to operate. In fact, Sherita’s medical records indicate that Lealer agreed with defendant’s
decision not to operate. Lealer also admitted that she did not try to convince the doctors to do
the surgery when she arrived at the hospital; instead, she claimed that the situation was
“hopeless” because defendant and the doctors had already decided not to have the surgery, and
nobody mentioned surgery to her.
When Lealer arrived at the hospital, she also disputed the validity of defendant’s power
of attorney. The doctors and a social worker reviewed the power of attorney and determined that
because Kimbria, who was underage at the time, had witnessed the document, the power of
attorney was invalid. On August 11, Lealer assumed control over medical decisions affecting
her daughter. Sherita died on August 13, 2004.
Almost two years later, plaintiffs filed a cause of action against defendant alleging,
among other things, wrongful death and intentional infliction of emotional distress. The trial
court dismissed plaintiffs’ claims pursuant to MCR 2.116(C)(10).
First, plaintiffs argue that the trial court should have denied defendant’s motion for
summary disposition because defendant failed to follow the procedural requirements of
MCR 2.116(C). In particular, plaintiffs claim that defendant failed to “specify the grounds on
which” his motion for summary disposition was based, as required by MCR 2.116(C)(10), by
failing to specify in the motion that he sought summary disposition pursuant to
MCR 2.116(C)(10) and by failing to “specifically identify the issues as to which the moving
party believes there is no genuine issue as to any material fact,” as required by
MCR 2.116(G)(4).
In his motion for summary disposition, defendant did not specify the grounds on which
this motion should be granted. However, in the beginning of his argument section of his brief in
support of his motion for summary disposition, which he filed with his motion, defendant
specified that he was bringing his motion under MCR 2.116(C)(10). In particular, under the first
subheading of the argument section labeled “A. Standard of Review,” defendant stated,
“[Defendant] brings this motion under MCR 2.116(C)(10).” Defendant then presented
applicable case law regarding the proper review of a (C)(10) motion for summary disposition.
Defendant clearly and explicitly states, at a logical point in his brief, that he requests that review
of his motion for summary disposition be granted pursuant to MCR 2.116(C)(10). Further,
plaintiffs’ attorney admitted in her brief, “[I]t is fairly obvious that the grounds [sic] intended to
be alleged by defendant is MCR 2.116(C)(10) . . . .” Plaintiffs’ request that this Court reverse
the trial court’s order granting defendant’s motion for summary disposition because defendant
allegedly failed to identify the specific ground on which he requested summary disposition
elevates form over substance, and this Court has been reluctant to deny summary disposition
because the motion exalts form over substance. Johnston v City of Livonia, 177 Mich App 200,
-3-
208; 441 NW2d 41 (1989). Considering that plaintiffs were aware that defendant brought his
summary disposition motion pursuant to MCR 2.116(C)(10), we will not reverse the trial court’s
order granting summary disposition on this ground.
Plaintiffs also claim that defendant failed to identify the issues for which he believed
there was no genuine issue of material fact, as required by MCR 2.116(G)(4). Apparently,
plaintiffs claim that defendant failed to satisfy the requirements of MCR 2.116(G)(4) because he
did not specify the reasons why he moved for summary disposition in either his motion for
summary disposition or in the headnotes of his accompanying brief. However, defendant clearly
argued why he believed that summary disposition was appropriate in the brief accompanying his
motion for summary disposition, and he noted in his motion that his argument could be found in
this accompanying brief. It is common practice for attorneys to argue their motions for summary
disposition by referring to their accompanying briefs, and plaintiffs fail to provide any authority
to support their position that a moving party must identify the issues central to its motion for
summary disposition in the motion and not the accompanying brief. Accordingly, plaintiffs’
claim of error lacks merit and we will not address it further. See Mitcham v Detroit, 355 Mich
182, 203; 94 NW2d 388 (1959).
Second, plaintiffs claim that the trial court erred when it granted summary disposition
dismissing the wrongful death claim pursuant to MCR 2.116(C)(10).4 In particular, plaintiffs
argue that the trial court erroneously determined that there was no causal connection between
defendant’s assumption of power of attorney and Sherita’s death. Plaintiffs claim that
defendant’s decision to assume power of attorney over Sherita and then not to authorize the
surgery was the proximate cause of her death. We disagree.
MCL 600.2922(1), which provides a cause of action for wrongful death, states:
Whenever the death of a person . . . shall be caused by wrongful act, neglect, or
fault of another, and the act, neglect, or fault is such as would, if death had not
ensued, have entitled the party injured to maintain an action and recover damages,
the person who or the corporation that would have been liable, if death had not
ensued, shall be liable to an action for damages . . . .
4
We review de novo the trial court’s grant of summary disposition pursuant to
MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). “A trial
court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary
disposition filed under MCR 2.116(C)(10).” Skinner v Square D Co, 445 Mich 153, 161; 516
NW2d 475 (1994). “The court’s task is to review the record evidence, and all reasonable
inferences therefrom, and determine whether a genuine issue of material fact exists to warrant a
trial.” Harrison v Olde Financial Corp, 225 Mich App 601, 605; 572 NW2d 679 (1997). We
view documentary evidence submitted by the parties in the light most favorable to the
nonmoving party. Greene v A P Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006).
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Therefore, to establish a cause of action for wrongful death, plaintiffs must establish three
elements: (1) a death occurred; (2) the death was caused by a wrongful act, neglect, or fault, and
(3) if the death had not resulted, the injured party would have been able to maintain an action and
recover damages.
The parties do not dispute that defendant’s power of attorney over Sherita was invalid.
However, we agree with the trial court’s conclusion that defendant’s actions were not the
proximate cause of Sherita’s death. Sherita died after suffering a hemorrhage and developing a
blood clot in her brain, and defendant’s actions in no way caused her medical condition. For this
reason alone, defendant’s actions were not the proximate cause of Sherita’s death.
In addition, the evidence presented to the trial court indicates that even if Lealer’s
authority to make medical decisions on Sherita’s behalf had been recognized, Lealer would not
have immediately authorized the surgery.5 Lealer admitted that when Sherita’s doctors called
her, discussed Sherita’s condition with her, and presented surgery as an option, she told them not
to do anything until she arrived in Michigan. Plaintiffs present no evidence indicating that
doctors withheld information from Lealer because they did not think she had power of attorney.
Lealer also admitted that when she arrived at the hospital on August 8, she did not inquire about
surgery or ask Sherita’s doctors to reconsider the decision not to operate on Sherita. Although
Lealer claims that she did not fully understand the nature of Sherita’s medical condition and the
benefits and drawbacks of surgery, her assertions that she would have better understood the
situation and would have chosen to operate if defendant had not held himself out as having
power of attorney over Sherita are mere speculation. Plaintiffs fail to establish that if Lealer’s
authority to make medical decision on Sherita’s behalf had been recognized and defendant did
not act as Sherita’s power of attorney, a different outcome would have resulted.
Furthermore, plaintiffs have failed to establish that if defendant had authorized the
surgery, Sherita would not have died or been reduced to a vegetative state. When Sherita’s
doctors discussed Sherita’s medical situation with defendant and Sherita’s family, they presented
two equally bleak options: either the family could agree to a risky surgery, in which a substantial
possibility existed that Sherita would die or suffer brain damage so great that she would be
reduced to living in a vegetative state, or the family could agree to do nothing and hope that the
blood clot would dislodge itself and Sherita would recover. In both situations, a high possibility
existed that Sherita would either die or be reduced to a vegetative state, and neither option
provided the family with more than a remote hope that Sherita would have a miraculous recovery
and fully regain her health and mental capacity. Plaintiffs present no evidence indicating that
defendant’s decision not to authorize the surgery caused Sherita to receive injuries (namely, a
dramatic reduction of her quality of life and, finally, death) that she would not be equally likely
to experience had the surgery taken place. Therefore, plaintiffs fail to establish the causation
5
Although Sherita’s daughters claimed that they wanted doctors to perform an angiogram and
have the surgery, plaintiffs provide no authority to indicate that they had authority to make
medical decisions on their mother’s behalf, even though they were minors at the time, or that
defendant, Lealer, or the doctors should have given their preferences weight when deciding
whether to operate on Sherita.
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element of their wrongful death claim, and the trial court did not err when it dismissed plaintiffs’
wrongful death claim pursuant to MCR 2.116(C)(10).
Finally, plaintiffs argue that the trial court erred when it dismissed Lealer’s and
Kimbria’s individual causes of action for intentional infliction of emotional distress pursuant to
MCR 2.116(C)(10). In particular, they argue that defendant’s actions, namely, asking Kimbria to
forge Sherita’s name on the power of attorney form and preventing Lealer from making
decisions regarding Sherita’s medical care, constituted extreme and outrageous conduct. Again,
we disagree. Assuming, without deciding, that Michigan recognizes the tort of intentional
infliction of emotional distress, see VanVorous v Burmeister, 262 Mich App 467, 481; 687
NW2d 132 (2004), we conclude that plaintiffs have failed to establish that defendant’s conduct
was extreme and outrageous.
[T]his Court has adopted the definition of intentional infliction of
emotional distress found in 1 Restatement Torts, 2d, § 46, p 71, which provides
that “[o]ne who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily
harm.’” [Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618,
625; 403 NW2d 830 (1986).]
The tort of intentional infliction of emotional distress contains four elements: “(1) ‘extreme and
outrageous conduct’; (2) intent or recklessness; (3) causation; and (4) ‘severe emotional
distress.’” Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905(1985). The
Roberts Court adopted the following explanation of what constitutes extreme and outrageous
conduct:
“Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’” [Id. at 603, quoting Restatement Torts,
2d, § 46, comment d, pp 72-73.]
Plaintiffs have failed to establish that defendant’s actions meet the standard of “extreme
and outrageous” conduct necessary to establish a claim for intentional infliction of emotional
distress. First, defendant’s decision to ask Kimbria to sign her mother’s name to the power of
attorney form and to witness the document did not constitute extreme and outrageous conduct.
Plaintiffs did not present any evidence indicating that defendant directly forced Kimbria to forge
her mother’s name on the document. Defendant made no threats, he did not raise his voice or
threaten violence, and by all accounts he asked Kimbria to sign the document in a respectful and
civilized manner. Although defendant should not have asked Kimbria to forge her mother’s
name on a legal document and should have taken more precautions to determine the
circumstances under which a power of attorney could be properly executed, he stated that he did
not know that his actions were illegal and that he asked Kimbria to sign her mother’s name
because he wanted to execute Sherita’s wishes. Even if defendant’s actions were not technically
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correct, they are not so outrageous that they establish this element of intentional infliction of
emotional distress.6
Next, plaintiffs fail to establish that defendant’s usurpation of Lealer’s right to make
medical decisions on Sherita’s behalf by acquiring power of attorney was extreme and
outrageous under the circumstances. The evidence presented to the trial court indicates that
defendant was a father figure to Sherita and provided significant financial and emotional support.
Plaintiffs do not present any evidence to directly contradict defendant’s claim that Sherita asked
him on August 4 to accept the responsibility of power of attorney over her in the event that she
was no longer able to make medical decisions and that she handed him the forms necessary to
execute the power of attorney. Defendant did not properly execute the power of attorney, but the
evidence presented to the trial court indicates that this improper execution was the result of
defendant’s attempt to execute Sherita’s wishes and his failure to recognize his legal missteps.
Further, although plaintiffs allege that defendant wanted Sherita to die so he could collect from
her life insurance policy, plaintiffs provide no evidence to support their claims; instead, the
evidence presented to the trial court indicates that defendant knew that Sherita’s life insurance
policy had expired. Plaintiffs present no evidence indicating that defendant had a malicious
intent in acquiring power of attorney over Sherita. Although defendant’s attempts to acquire
power of attorney over Sherita were misguided at times, these attempts did not rise to the level of
extreme or outrageous conduct necessary to establish this element of the offense.
Affirmed.
/s/ Christopher M. Murray
/s/ Peter D. O’Connell
/s/ Alton T. Davis
6
In addition, Kimbria does not indicate in her affidavit that she suffered severe emotional
distress because defendant had her sign the power of attorney. Instead, Kimbria merely
maintained that she was young, “under a lot of pressure,” and worried about her mother when
she signed the document, and noted that she “fe[lt] that [defendant] was wrong to have asked
[her] to do this. As a minister and adult he should have know [sic] better.”
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