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### STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH BAYNESAN,

Plaintiff-Appellee, FOR PUBLICATION August 4, 2016

9:05 a.m.

v No. 326132
Court of Claims WAYNE STATE UNIVERSITY, LC No. 14-000262-MZ

Defendant-Appellant.

Before: M ARKEY , P.J., and K. F. K ELLY and O’B RIEN , JJ.

P ER C URIAM

.

Defendant Wayne State University (WSU) appeals by leave grante d an order of the Court
of Claims transferri ng plaintiff Joseph Baynesan’s claim under the Whistleblower’s Protection Act (WPA), MCL 15.361 et seq ., from the Court of Claims back to the Wayne Circuit Court. This Court limited the appeal to the issues raised in the appli cation and supporting brief, “as well as the question whether the construction of the Court of Claims Act as advocated by appellant violates plaintiff’s jury trial right.” Baynesan v Wayne State Univ , unpublished order of the Court of Appeals, entered July 7, 2015 (Docket No. 326132). We affirm the Court of Claims on the limited basis that it did not abuse its discretion by trans ferring this action back to the Wayne Circuit Court in the exercise of its inherent authority to cont rol its docket and sanction litigants.

See Banta v Serban, 370 Mich 367, 368; 121 NW2d 854 (1963).

I. FACTS AND PROCEEDINGS

In December of 2012, plaintiff filed a two-count complaint in the Wayne Circuit Court which alleged a violation of the WPA, seeking money damages and a public policy tort claim seeking equitable relief. Regarding the latter claim, plaintif f sought to be returned to his former position with WSU and an injunction prohibiting WSU from commit ting any further actions of
retaliation or discrimination. D efense counsel then notified p laintiff that the Court of Claims, and not the Wayne Circuit Court, had jurisdiction over his publ ic policy tort claim. Upon stipulation of the parties and by order entered on March 18, 20 13, the circuit court dismissed the public policy tort claim of plaintiff’s complaint.

Plaintiff subsequently filed his tort claim in the Court of Cl aims, then residing in the Ingham Circuit Court. Plaintiff also filed a motion to join th e tort action with the WPA action still pending in Wayne Circuit Court. The Court of Claims, by order of June 19, 2013, granted-2- the motion, directing that plainti ff’s tort claim be joined wit h the WPA action in the Wayne
Circuit Court.

In late 2013, 2013 PA 164 became law. The act amended several statutes pertaining to the Court of Claims to enlarge its jurisdiction and to transfer the Court of Claims to the Michigan Court of Appeals. See Fulicea v State of Michigan , 308 Mich App 230, 231; 863 NW2d 385 (2014); Okrie v State of Michigan , 306 Mich App 445, 449; 857 NW2d 254 (2014). As amended, MCL 600.6419(1)(a) conferred jurisdiction on the Courtof Claims, in part, “[t]o hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of it s departments or officers notwithstanding another law that c onfers jurisdiction of the ca se in the circuit court.” Moreover, the act created a new mechanism for the transfer of cases pendi ng before the circuit court to the
Court of Claims. This mechan ism is codified in MCL 600.6404(3) , and provides in part:

Beginning on the effective date of the amendatory act that add ed this subsection [November 12, 2013], any matter within the jurisdict ion of the court of
claims described in section 6419(1) [MCL 600.6419(1)] pending o r later filed in any court must, upon notice of the state or a department or off icer of the state, be
transferred to the court of cla ims described in subsection (1). The transfer shall be effective upon the filing of the transfer notice. . . .

In December of 2013, 2013 PA 205 became law. This amendatory act preserved the rights of parties to secure jury trials in actions that now cam e within the jurisdiction of the Court of Claims in light of the expa nded jurisdiction conferred on th e Court of Claims by 2013 PA 164. As amended by 2013 PA 205, MCL 600.6421 provides in part:

(1) Nothing in this chapter eli minates or creates any right a party may have to a trial by jury, including any right that existed befor e November 12, 2013. Nothing in this chapter deprives the circuit, district, or prob ate court of jurisdiction to hear and determine a claim for which there is a right to a trial by jury as otherwise provided by law, including a claim against an individual employee of this state for which there is a right to a trial by jury as otherwise provided by law. Except as otherwise provided in this section, if a party has the right to a trial by jury and asserts that right as required by law, the claim may be heard and determined by a circui t, district, or probate court i n the appropriate

venue.

(2) For declaratory or equitable relief or a demand for extrao rdinary writ sought by a party within the juris diction of the court of claim s described in section 6419(1) and arising out of the sam e transaction or series of tr ansactions with a matter asserted for which a party has the right to a trial by j ury under subsection (1), unless joined as provided in subsection (3), the court of claims shall retain exclusive jurisdiction over the matter of declaratory or equita ble relief or a demand for extraordinary writ until a final judgment has been e ntered, and the matter asserted for which a party has the right to a trial by j ury under subsection-3- (1) shall be stayed until final judgment on the matter of decla ratory or equitable
relief or a demand for ex traordinary writ.

(3) With the approval of all parties, any matter within the ju risdiction of the court of claims described in section 6419(1) may be joined for trial with cases arising out of the same transact ion or series of transactions t hat are pending in any
of the various trial courts of the state. A case in the court of claims that has been joined with the approval of all parties shall be tried and dete rmined by the judge even though the trial court action with which it may be joined is tried to a jury under the supervision of t he same trial judge.

(4) Except as provided in subsection (5) [1] , the court of claims’ jurisdiction in a matter within its jurisdiction as described in section 641 9(1) and pending in any circuit, district, or p robate court on November 12, 2013 is as follows:

(a) If the matter is not trans ferred under section 6404(3), th e jurisdiction of the court of claims is not exclusive and the circuit, district, or probate court may continue to exercise juris diction over that matter.

(b) If the matter is transferred to the court of claims under section 6404(3), the court of claims has exclusive jurisdiction over the matter, subject to subsection (1).

Despite these late 2013 changes in the law, the parties contin ued to litigate plaintiff’s claims in the Wayne Circuit Court through most of 2014. Then, with a final pretrial conference scheduled for November 5, 2014 and a jury trial scheduled for D ecember 1, 2014, WSU filed a “Notice of Transfer to Court of Claims” on November 3, 2014, no tifying plaintiff and the circuit court that it was transferring the entire case to the Court of Claims “pursuant to MCL 600.6404(3), as amended by 2013 PA 164.”

On November 4, 2014, plaintiff filed an emergency motion in th e Court of Claims to transfer the case back to the Wayne Circuit Court and for sanct ions. The Court of Claims heard oral arguments on the motion on January 12, 2015, and granted p laintiff’s motion for transfer by opinion and order entered on January 30, 2015. After relating the case’s procedural history and the changes in the law by 2013 PA 164 and 2013 PA 205, the Cour t of Claims opined in part:

The parties continued to litigate the matter in the Wayne Circ uit Court until November 3, 2014, when defendant filed a notice of transf er pursuant to MCL 600.6404(3), transferring the matter to this Court. The Co urt finds that doing so was inappropriate and impermissible, for two reasons. First, although the Court recognizes, and plai ntiff concedes, that MCL 600.6404 (3) does not have

1 Subsection 5 refers to the transfer of cases pending in the co urt of claims, pursuant to MCL 600.6404(2), at the time the court of claims was transferred fr om the Ingham circuit court to the Court of Appeals. This provision is not at issue in this case.-4- a time limit, defendant’s act of continuing to litigate the mat ter in the Wayne
Circuit Court for almost a year after the option of transferring to this Court became possible and known constitutes an unequivocal act of app roval to the matter being joined for trial in that court. MCL 600.6421(3) d oes not require any particular manner of expressing approval; under the circumstanc es, the Court finds that such approval was clearly and unambiguously expresse d. That statute therefore provides that the action therefore “shall be tried an d determined by the judge even though the trial court action with which it may be j oined is tried to a jury under the supervision of the same trial judge.” MCL 600.6 421(3).

The Court of Claims continued, making comments on the new legi slation, and noting “that the Legislature could [not ] have intended to permit parti es to have an unrestricted ability to forum-shop at their convenience wi th no regard to the effect th ereof on other par ties, the efficient
administration of the involved c ourts, the pursuit of justice[. ]” The Court of Claims continued:

Having elected to remain in the Wayne Circuit Court for almost a year, defendant committed itself to that venue, and the notice of tra nsfer was untimely and impermissible because by the time it was filed, MCL 600.642 1(3) has already
established that the matter shallbe heard in the Wayne Circuit Court. Therefore, MCL 600.6421(4)(b) never became effective. The Court does not purport to be able to say with certainty “how long is too long” for a party t o wait, but this was clearly beyond the pale. The Court declines, however, to specu late that defendant’s transfer was motivated by any improper purpose unde r MCR 2.114(D)(3) and chooses instead to believe that defendant’s cou nsel believed that
transfer was allowed. The Court will not sanction an honest er ror, although the Court trusts counsel is now fully apprised of the error and wil l not attempt to repeat it.

The Court of Claims went on to discuss the effect of a hypothe tically timely filed request for a transfer to the Court of Claims, which we decline to addr ess as a court should not decide hypothetical issues. See Huntington Woods v Detroit , 279 Mich App 603, 616; 761 NW2d 127 (2008). We address only the Court of Claims’ determination tha t on the facts and circumstances of this case, WSU’s request for transfer was untimely and ineff ective.

II. STANDARDS OF REVIEW

Both jurisdictional issues and matters of statutory interpreta tion are reviewed de novo.

Fulicea , 308 Mich App at 232. The Court also reviews constitutional i ssues de novo. Bonner v City of Brighton , 495 Mich 209, 221; 848 NW2d 380 (2014).

The goal of construction and in terpretation of a statute is to discern and give effect to the intent of the Legislature. Id . at 222. “ ‘[O]ur obligation is to ascertain the legislative intent that may reasonably be inferred from the words expressed in the stat ute. When the Legislature has unambiguously conveyed its intent in a statute, the statute spe aks for itself, and judicial construction is not permitted.’ ” Fulicea , 308 Mich App at 232, quoting Koontz v Ameritech Servs, Inc , 466 Mich 304, 312; 645 NW2d 34 (2002).-5- In this case, the Court of Claims was acting as a trial court. A trial court has the inherent authority to control its own docket. Maldonado v Ford Motor Co , 476 Mich 372, 376; 719 NW2d 809 (2006) (“trial courts po ssess the inherent authority . . . to manage their own affairs so as to achieve the orderly and expeditious disposition of cases” ); see also Brenner v Kolk , 226 Mich App 149, 158-160, n 5; 573 NW2d 65 (1997). “An exercise o f the court’s ‘inherent power’ may be disturbed only upon a finding that there has been a clea r abuse of discretion.” Brenner

, 226 Mich App at 160. An abuse of discretion occurs when a cour t chooses an outcome outside the range of principled outcomes. Maldonado , 476 Mich at 376.

A trial court’s findings of f act are reviewed for clear error. MCR 2.613(C). “A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm
conviction that a mistake was made.” Loutts v Loutts , 298 Mich App 21, 26; 826 NW2d 152 (2012).

III. DISCUSSION

Pursuant to the plain terms of the amended § 6419(1)(a), the C ourt of Claims has jurisdiction of both plaintiff’s statutory WPA claim for money damages and his claim for equitable relief. In analyzing the jurisdictional issues of th is case, we note that our Supreme Court has held that a plaintiff has a right to a jury trial reg arding a WPA money damages claim, but no such right exists with res pect to a claim for equitable relief. Anzaldua v Band , 457 Mich 530, 538 n 6, 541-543, 553-554; 578 NW2d 306 (1998). This is i mportant because § 6419(1) provides that “[e]xcept as provided in sections 6421 and 6440, the jurisdiction of the Court of Claims, as conferred upon it by t his chapter, is exclusive.” B ut as noted already, § 6421 provides, “if a party has the right to a trial by jury and asse rts that right as required by law, the claim may be heard and determined by a circuit, district, or pr obate court in the appropriate venue.” MCL 600.6421(1). Furthermore, “[w]ith the approval of all parties, any matter within the jurisdiction of the Court of Claims described in section 64 19(1) may be joined for trial with cases arising out of the same transaction or series of transact ions that are pending in any of the various trial courts of the state.” MCL 600.6421(3). Thus, un der these statutory provisions, the Court of Claims and the Wayne Circuit Court had concurrent juri sdiction of both plaintiff’s WPA damages claim and his claim fo r equitable relief “[w]ith th e approval of all parties[.]” Id

.

We agree with the Court of Claims that no formalistic approval is required to invoke joinder under § 6421(3), and that by continuing in the Wayne Ci rcuit Court for almost year with pretrial proceedings after the s tatutory right of removal under § 6404(3) came into existence, WSU tacitly and via its conduct approved of the continuing juri sdiction of the Wayne Circuit Court for a trial of both plaintiff’s jury claim for money dama ges and his claim for equitable relief. This joinder under § 6404( 3) defeated the exclusive ju risdiction of the Court of Claims as to plaintiff’s claim for e quitable relief. MCL 600.6419(1); MC L 600.6421(2).

When, on November 3, 2014, WSU filed a “Notice of Transfer to Court of Claims,” under the plain terms of MCL 600.6404(3), as amended by 2013 PA164, the transfer of plaintiff’s case became “effectiv e upon the filing of the trans fer notice.” A transfer of a matter to the Court of Claims is mandated under the statute if (1) the ma tter is within the jur isdiction of the Court of Claims; (2) the matter was pending on or is filed afte r the effective date of the amendatory act, and (3) a noti ce of transfer is filed. With re gard to the first requirement, we note-6- that § 6404(3) requires only that the matter subject to transfe r be within the “jurisdiction of the court of claims,” as opposed to within the “exclusive jurisdict ion” of the Court of Claims, the latter phrase being employed in other sections of the Court of Claims Act but not in § 6404(3). Thus, the first requirement maybe satisfied so long as the mat ter is subject to the Court of Claims concurrent jurisdiction, i.e., it is a matter subject to the Court of Claims’ jurisdiction but also subject to a jury trial rig ht. In this case, there is no dispute that plaintiff’s claims were pending in the Wayne Circuit Court at the time the amendatory a ct became effective on November 12, 2013. There also can be no dispute that plaintiff ’s claims fall within the expanded jurisdiction of the Court of Claims as provided in the amended MCL 600.6419(1)(a), “[t]o hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary

, equitable or declaratory relief . . . against the state or any of its departments or officers.” (Emphasis ad ded). Thus, pursuant to the clear and unambiguous terms of § 6404(3), WSU’s filing of its notice under that section transferred plaintiff’s entire case to the Court of Claims, which then had jurisdiction over plaintiff’s emergency motion to return the cas e to the Wayne Circuit Court.

If the notice of transfer were indeed valid, then the Court of Claims obtained “exclusive jurisdiction over the matter, subject to subsection (1).” MCL 600.6421(4)(b). Subsection (1) of § 6421, MCL 600.6421(1), preserves the existing right to a jurytrial that accompanies any claim now under the expanded jurisdiction of the Court of Claims, as well as the right of another court, such as the circuit court, to hear and determine those claims f or which the right to a jury trial is required by law. Thus, when a matter is transferred to the Cou rt of Claims under§ 6404(3), the otherwise exclusive jurisdicti on of the Court of Claims, see § 6419(1) and § 6421(4)(b), becomes concurrent with the circuit court, among other courts, with res pect to matters to which “a party has the right to a trial by jury and asserts that right as requ ired by law[.]” MCL 600.6421(1). Because plaintiff’s WPA claim for damages is subject to the rig ht of trial by jury, Anzaldua , 457 Mich at 554, which right plaintiff asserted, the circuit court would retain concurrent jurisdiction over that part of plaintiff’s claim. But plaintiff’s claim for equitable relief would remain in the exclusive jurisdiction of the Court of Claims pursuant to MCL 6 00.6421(2). Furthermore, the claim for equitable relief in the Court of Claims must be resol ved first. Until the equitable claim is resolved, the claim for damages pending a jury trial in the court of concurrent jurisdiction is stayed. Id . (“[T]he matter asserted for which a party has the right to a trial by jury . . . shall be stayed until final judgment on the matter of declaratory or equ itable relief . . . .”).

On the other hand, if WSU’s notice of transfer pursuant to § 6 404(3) is ineffective, then, as already discussed, pursuant to MCL 600.6421(1) and (3), plai ntiff’s WPA claim for money damages and his claim for equita ble relief remain joined and wi thin the concurrent jurisdiction of the circuit court. Indeed, MC L 600.6421(4)(b) specifically pro vides: “If the matter is not transferred under section 6404(3) , the jurisdiction of the cour t of claims is not exclusive and the circuit, district, or probate c ourt may continue to exercise ju risdiction over that matter.”

The Court of Claims ruled that WSU’s notice was ineffective be cause it was not timely filed and would, if allowed to stand, foster gamesmanship and f orum-shopping detrimental to the administration of justice. To the extent these findings are fa ctual, we see they are supported by the record. Consequently, on a ppeal we are not l eft with the d efinite and firm conviction that a
mistake was made. Loutts , 298 Mich App at 26. The Court of Claims’ findings are thus n ot clearly erroneous. MCR 2.613(C).-7- We also conclude that the Court of Claims’ determination that the transfer notice was ineffective was within the inherent authority of a court to “im pose sanctions appropriate to contain and prevent abuses so as to ensure the orderly operatio n of justice.” Maldonado , 476 Mich at 375. “This power is no t governed so much by rule or st atute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id . at 376. While such cases often involve the dismissal of an action, see id .; Banta , 370 Mich at 368; Brenner , 226 Mich App at 154-155, in this case, there was no drastic sanction; the court merely ordered the case retu rned to the court that WSU had already, by its conduct, consented to the litigation of all iss ues presented by plaintiff’s complaint. MCL 600.6404(3). Under these circumstances, we cannot conclude that the Court of Claims
abused its discretion because the court’s decision was within t he range of principled outcomes.

Maldonado , 476 Mich at 376.

We affirm.

/s/ Jane E. Markey /s/ Kirsten Frank Kelly
/s/ Colleen A. O'Brien