EDGARDO L PEREZ-DELEON V DEPT OF SOCIAL SERVAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
EDGARDO L. PEREZ-DELEON,
July 24, 1998
Nos. 195892; 197040
Oakland Circuit Court
LC No. 96-515711 CP
DEPARTMENT OF SOCIAL SERVICES,
Before: Holbrook, Jr., P.J., and Gribbs and R.J. Danhof*, JJ.
In this consolidated appeal, plaintiff appeals as of right in Docket No. 195892 the order of the
trial court granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(6) and
MCR 2.116(C)(8). In Docket No. 197040, plaintiff appeals by leave granted the trial court’s post
final order denying plaintiff’s motions for substitution of defendant and for amendment of the summons.
At one time, plaintiff worked as the business manager for his wife’s medical practice. In 1993,
plaintiff and his wife were convicted of Medicaid and health care fraud in Ingham County. At the
criminal trial, James Groen of the Medical Service Administration of the Michigan Department of Social
Services testified that he believed his department sent a “clarification” document in 1992 (hereinafter the
“Groen document”) to doctors and people who billed for doctors explaining that “you can’t bill for an
office examination unless there was an actual examination in the office between the doctor and the
After his 1993 fraud conviction, plaintiff began to submit numerous Freedom of Information Act
(“FOIA”)1 requests to defendant seeking the release of the Groen document. Unsatisfied with
defendant’s responses to these requests, plaintiff initiated three lawsuits against defendant, one in the
Wayne County Circuit Court,2 and two in the Oakland Circuit Court. This appeal stems from actions
taken by the lower court with respect to one of the two Oakland County lawsuits.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
“This Court reviews . . . decisions on motions for summary disposition de novo to determine if
the moving party was entitled to judgment as a matter of law.” IBM v Dep’t of Treasury, 220 Mich
App 83, 86; 558 NW2d 456 (1996). MCR 2.116(C)(6) states that summary disposition is
appropriate under the subrule if “[a]nother action has been initiated between the same parties involving
the same claim.” The requirement that the two lawsuits involve “the same claim” does not mean that
they must be identical. JD Candler Roofing Co, Inc v Dickson, 149 Mich App 593, 598; 386
NW2d 605 (1986). Rather, what is required is that “the two suits ‘must be based on the same or
substantially the same cause of action.’” Id., quoting Ross v Onyx Oil & Gas Corp, 128 Mich App
660, 666; 341 NW2d 783 (1983).
We hold that the trial court was correct in granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(6). Both Oakland County actions sought release of the requested Groen
document and punitive damages for defendant’s alleged failure to comply with FOIA requests for the
document. Plaintiff’s strained attempt to differentiate the two claims by manufacturing a cause of action
under the Consumer Protection Act is of no consequence. Candler, supra at 601. “Resolution of
either action will require examination of the same operative facts.” Id. Accordingly, the trial court did
not err in considering these actions sufficiently related to justify summary dismissal pursuant to MCR
Plaintiff also contends that the trial court should have granted his motion to amend the summons
to reflect his contention that he did not file an identical action against defendant. Because plaintiff’s
lawsuit was properly disposed of under MCR 2.116(C)(6), whether the trial court should have allowed
amendment of the attendant summons is a moot issue that we decline to address.
/s/ Donald E. Holbrook, Jr.
/s/ Roman S. Gribbs
/s/ Robert J. Danhof
MCL 15.231 et seq.; MSA 4.1801(1) et seq.
The Wayne County lawsuit was dismissed with prejudice before the Oakland County lawsuits were
filed. The Wayne County lawsuit is not a part of this appeal.
Given our conclusion that summary disposition pursuant to MCR 2.116(C)(6) was proper, we need
not set forth an examination on whether MCR 2.116(C)(8) was also properly applied. We choose to
note, however, that summary disposition pursuant to this subrule was justified.