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### STATE OF MICHIGAN

COURT OF APPEALS

DENNIS COLE,

Plaintiff-Appellant, UNPUBLISHED June 18, 2015

v No. 320684 Wayne Circuit Court DINESH PATEL and VIR PUR INC.,

Defendants,

and

NAGY MICKHAIL, LC No. 12-014480-NO

Defendant-Appellee.

Before: M ETER , P.J., and C AVANAGH and W ILDER , JJ.

P ER C URIAM

.

Plaintiff appeals as of right a n order granting defendant Nagy Mickhail’s motion for partial summary disposition which dismissed and closed this cas e. We affirm.

In September 2010, plaintiff was beaten in the basement of the Bada Bing Club, a business owned by Atlantis Lounge, Inc. The Bada Bing Club was being managed by Henry Ramirez pursuant to an agreement he had with Atlantis Lounge, a nd Ramirez was one of four people who beat plaintiff. 1 In April 2011, plain tiff sued Atlantis L ounge and the Bada Bi ng Club (the “Atlantis Lounge case”) seeking damages for Ramirez’s wron gdoing under direct and vicarious liability theories. A fter the trial court denied pla intiff’s motion to amend his complaint to add claims against Nagy Mickhail, the sole shareholder of At lantis Lounge, this action was

filed.

In this action, plaintiff sued M ickhail individually, as well as the owner-lessor of the building that housed the Bada Bing Club, Vir Pur, Inc., and its sole shareholder, defendant

1 Ramirez and the three other peop le were subsequently convicted of criminal charges related to the beating.-2- Dinesh Patel. 2 In Count I of his complaint, plaintiff alleged a “negligence, gross negligence and recklessness” claim against all three defendants, generally ave rring that defendant Mickhail failed to hire qualified personnel and failed to properly train , manage, and supervise his employees and agents. In Count II, plaintiff alleged a claim o f “negligent and intention [sic]

infliction of emotional distress” against all three defendants.

However, in January 2013, the Atlantis Lounge case was summari ly dismissed after the trial court agreed with the defendants that Ramirez was an inde pendent contractor, not an employee of Atlantis Lounge; thus, it could not be held directl y or vicariously liable for Ramirez’s wrongdoing. The trial court concluded that Ramirez, not Atlantis Lounge, exercised day-to-day control over the operation of the Bada Bing Club at the time plaintiff was assaulted. Plaintiff appealed.

While the Atlantis Lounge appeal was pending, the case against Mickhail proceeded in the trial court. In January 2014, defendant Mickhail filed a m otion for summary disposition arguing that: (1) he owed no duty to protect plaintiff from th e criminal acts of Ramirez and his associates; (2) Ramirez was an independent contractor so Mickha il was not liable under plaintiff’s direct a nd vicarious liability theories; and (3) pl aintiff’s infliction of emotional distress claim must fail because his claim arose from injuries inflicted on him by Ramirez. Defendant Mickhail further argued that the trial court had dismissed the same claims against Atlantis Lounge in the first action on the ground that Ramirez exercised day-to-day control over the operation of the Bada Bing Club and there was no reason for con cluding that Mickhail, the sole shareholder of Atlantis Lounge, e xercised any more control than did Atlantis Lounge.

The trial court agreed with defendant Mickhail and dismissed p laintiff’s claims. The

court held that Ramirez was an i ndependent contractor therefore defendant Mickhail could not be liable under plaintiff’s direct and vicarious liability theorie s. Further, plaintiff’s infliction of

emotional distress claim failed because it was the conduct of R amirez that was outrageous, not the conduct of defendant Mickhail. On February 13, 2014, the t rial court entered an order dismissing plaintiff’s claims. This appeal followed.

On June 2, 2014, plaintiff filed a motion to consolidate this appeal, docket number 320684, with his appeal in the A tlantis Lounge case, docket num ber 315614. By order entered June 16, 2014, the motion was denied.

On September 25, 2014, this Court affirmed the trial court’s d ecision in the Atlantis Lounge case, holding that the co urt “correctly concluded that A tlantis Lounge, Inc. may not be held directly or vicariously liable for the torts at issue.” Cole v Bada Bing Club , unpublished opinion of the Court of Appeals, issued September 25, 2014 (Doc ket No. 315614), slip op at 1. In particular, this Court reviewed the evidence bearing on the question whether Ramirez was an employee or an independent contra ctor and concluded that he was an independent contractor. Thus, this Court held: “[B]ecause Ramirez was an independent c ontractor and Michigan

2 On January 24, 2014, a stipulated o rder of dismissal as to def endants Vir Pur and Patel was entered by the trial court.-3- recognizes no cause of action for the negligent hiring or reten tion of an independent contractor, the trial court did not err in g ranting summary disposition reg arding plaintiff’s allegations involving direct liability.” Cole , unpublished op at 4. And plaintiff’s claims of intentional t orts premised on a theory of vicarious liability were also properly dismissed because “the undisputed facts demonstrate that Ramirez was not an employee, but an inde pendent contractor.” Id . In summary, this Court unequivocally held that Ramirez was an inde pendent contractor, not an employee.

On appeal in this case, plaintiff argues that Ramirez was defe ndant Mickhail’s employee, 3 thus, Mickhail is liable for Ramirez’s conduct and the trial c ourt erred when it

dismissed his claims. 4 It is clear that plaintiff is raising substantially the same issue already decided by this Court in the Atlantis Lounge appeal. While the law of the case doctrine does not technically apply here because thi s is a different case and the named defendant is the sole shareholder of Atlantis Lounge and not Atlantis Lounge, 5 we are nevertheless persuaded that our prior rationale and dec ision on the substantive issue whether R amirez was an employee or an independent contractor is contro lling. The underlying facts th at bear on this legal question are materially the same. The law of the case doctrine operates to prevent a court from deciding a legal question differently than it was decided in an earlier de cision where the facts are materially

the same. See McNees v Cedar Springs Stamping Co (After Remand) , 219 Mich App 217, 222; 555 NW2d 481 (1996). The doctrine, therefore, promotes finalit y of judgments while preventing a court’s modification of prior judgments. Id . While the law of the case doctrine is not technically applicable here, this rationale is particularly per suasive in this case involving substantially the same claims aga inst the sole shareholder of A tlantis Lounge as were made against Atlantis Lounge. 6 Accordingly, as this Court held in the Atlantis Lounge case, Ramirez was an independent contractor, no t an employee of defendant Mic khail. Because Ramirez was

3 Although plaintiff’s statement of Issue I refers to an issue w hether the holder of a special license can enter into an “independent contract with an unlicen sed individual,” pl aintiff did not argue the merits of such an issue; rather, he only argued that Ramirez was an employee, not an independent contractor.

4 We review de novo a trial court’s decision on a motion for sum mary disposition. Maiden v
Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999).

5 See CAF Investment Co v Saginaw Twp , 410 Mich 428, 454; 302 NW2d 164 (1981).

6 We note that plaintiff admitted in his motion for consolidatio n of the appeals that “the cases arise from exactly the same set of facts and turn on exactly th e same legal issue” which was whether Ramirez was an employ ee or an independent contractor.-4- an independent contractor, the tr ial court properly granted def endant Mickhail’s motion for summary disposition.

Affirmed.

/s/ Patrick M. Meter /s/ Mark J. Cavanagh

/s/ Kurtis T. Wilder