
    KAUFMAN & PAYTON, PC v NIKKILA
    Docket No. 133012.
    Submitted December 3, 1992, at Detroit.
    Decided June 21, 1993, at 9:25 a.m.
    The law firm of Kaufman & Payton, P.C., brought an action in the Oakland Circuit Court against Catherine Nikkila, its former billing supervisor, alleging conversion and misappropriation of its files and records. Nikkila filed a counterclaim, alleging retaliatory constructive discharge in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., intentional infliction of emotional distress, and defamation. The court, Alice L. Gilbert, J., summarily dismissed the claim brought under the Whistleblowers’ Protection Act, ruling that there existed no genuine issue with respect to the fact that Nikkila or anyone acting on her behalf had not threatened to report the law firm to the Attorney Grievance Commission for billing irregularities before she tendered the resignation she claimed was a constructive discharge in retaliation for her threatened action. Nikkila appealed.
    The Court of Appeals held:
    
    The trial court correctly concluded that an affidavit by Nikki-la’s attorney, in which the attorney contradicted his earlier deposition testimony that there had been no threat of a report of the law firm’s billing practices to the Attorney Grievance Commission before Nikkila’s resignation, was insufficient to create a genuine issue of fact. A party or its attorney may not contrive factual issues merely by asserting the contrary in an affidavit after giving damaging testimony in a deposition.
    Affirmed.
    Connor, J., dissenting, stated that discharge in retaliation for a feared imminent report to authorities, as opposed to actual knowledge of an imminent report, is sufficient for application of the Whistleblowers’ Protection Act, that the affidavit of Nikkila’s attorney did not contradict his deposition testimony, and that, if the affidavit and deposition can be considered contradictory, the benefit of reasonable doubt concerning the factual question raised by the contradiction should be given to Nikkila and the question decided at trial.
    
      
      Hyman & Lippitt (by Norman L. Lippitt and H. Joel Newman), for the plaintiff.
    
      Temple & Cutler (by Donald M. Cutler), for the defendant.
    Before: Corrigan, P.J., and Weaver and Con-nor, JJ.
   Corrigan, P.J.

Catherine Nikkila appeals as of right the trial court’s summary dismissal of her counterclaim against the law firm of Kaufman & Payton, P.C., under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm.

The circuit court properly granted partial summary disposition pursuant to MCR 2.116(0(10). Nikkila did not raise a genuine issue of material fact concerning her Whistleblowers’ Protection Act claim. The circuit court properly found, considering all the evidence before it, that Nikkila could not prove that either she or her attorney had threatened to report the law firm to the Attorney Grievance Commission before her resignation from the firm.

Catherine Nikkila, the billing supervisor at Kaufman & Payton for IV2 years, was scheduled to testify at a deposition in the law firm’s suit for collection of legal fees against a client in February 1989. As she prepared for her testimony with the law firm’s counsel, she became worried about the legality of certain billing procedures that she had executed. She decided to consult outside counsel, Ronald Prebenda. Prebenda advised Nikkila only about the potential criminal aspects of her conduct.

Prebenda thereafter sent two letters to Kaufman & Payton on Nikkila’s behalf. The first, dated March 15, 1989, questioned the law firm’s billing practices and sought certain assurances from the firm about Nikkila’s future duties. The second, dated March 29, 1989, complained of the lack of response to the March 15 letter and prescribed unilateral changes in Nikkila’s billing duties.

Alan Kaufman, managing partner of the firm, never formally responded to either letter. The evidence on this record is disputed concerning whether Nikkila was reassigned to different duties; in any event, she continued to receive the same salary. On April 19, 1989, Nikkila tendered her letter of resignation to the law firm. Four days later, on April 23, 1989, she sent a request for investigation to the Attorney Grievance Commission (agc) and followed up on May 4, 1989, with a formal complaint. Prebenda assisted her in drafting the formal complaint to the agc.

On May 22, 1989, Kaufman & Payton sued Nikkila for conversion and misappropriation of the firm’s files and records. Nikkila answered and also filed a countercomplaint against the law firm, alleging constructive termination, retaliatory discharge, discharge in violation of the Whistleblowers’ Protection Act, intentional infliction of mental distress, and defamation. She also filed a separate complaint against Alan Kaufman, alleging essentially the same claims.

The Kaufman proceedings were consolidated with this case in the circuit court. However, Nikkila did not file a claim of appeal in the case against Kaufman. This case, accordingly, relates solely to the circuit court’s grant of partial summary disposition of Nikkila’s countercomplaint against Kaufman & Payton concerning the Whistleblowers’ Protection Act claim. The theory alleged in Nikkila’s countercomplaint was that Kaufman & Payton constructively discharged her because she had reported or was about to report an alleged violation of law, rule, or regulation. The central issue is whether Nikkila or anyone acting on her behalf, threatened, mentioned, or otherwise indicated that Nikkila might report Kaufman & Pay-ton or any of its attorneys to any agency before her April 19 resignation.

In deciding that Nikkila had not made out a genuine issue of material fact with regard to this question, the circuit court analyzed the evidence as follows:

First, Nikkila testified that she could not remember speaking to her employer about threatened action. (Nikkila deposition, pp 109-111). Second, Nikkila’s husband and attorney Prebenda both testified that they did not know about the grievance request until after Nikkila filed it after she left her employment. (Jeffrey Nikkila deposition, pp 41-42; Prebenda deposition, p 92). Next, the deposition testimony of Defendant Alan Kaufman referred to threats made by Prebenda, not Nikkila. (Kaufman deposition, p 93). Finally, the court notes that the affidavit of Prebenda in support of Nikkila’s claim, which states that Prebenda advised Irwin Alterman of Nikkila’s doings prior to her resignation, wholly contradicts Prebenda’s deposition testimony that he did not notify or threaten anyone on Nikkila’s behalf prior to her resignation.

The circuit court did not err in disregarding Prebenda’s affidavit. It is undisputed in the record below that an affidavit dated December 1989 was not filed in this cause until after defendant moved for summary disposition. Prebenda’s later-filed affidavit contradicted his deposition testimony in relevant details.

During his deposition, Prebenda testified:

Q. Did you assist Ms. Nikkila in filing a grievance against Alan Kaufman?
A. Yes, I did.
Q. When did you determine that you would file such a grievance?
A. She told me — first of all, she filed a grievance without my knowledge. She had filed some preliminary documents of some kind that to this day I have never seen.
Q. Did you discuss doing so with her prior to that time?
A. I have no present — prior to what time?
Q. Prior to filing this document to the grievance board to which you were unaware.
A. My understanding was that she had filed something with the grievance commission that I had no knowledge of and there was no discussion of to the best of my knowledge and then at that time she came to me and asked me if I would assist her in filing a complaint, and I read in the rules, and the rules that you must assist a person that request that you file a grievance and I complied with the rule.
Q. Do you recall approximately when you assisted her filing this more formal complaint against Mr. Kaufman?
A. No, I don’t recall. I assisted her as to form only.

Earlier in that deposition, Mr. Prebenda had stated:

Q. Do you recall ever telling anyone that you on behalf of Ms. Nikkila intended to file a State Bar grievance against Mr. Kaufman or his law firm?
A. No. I have no recollection of telling him that. No.
Q. Tell Mr. Kaufman that or anyone else?
A. I never talked to Alan Kaufman after I wrote that letter, he chose never to face me. [Emphasis supplied.]

The lower court also considered Alan Kaufman’s affidavit, in which he amplified his deposition testimony. In it, he referred to threats by Prebenda after Nikkila resigned that he would file a State Bar Grievance on his own behalf and not as a representative of Catherine Nikkila. Further, Kaufman averred that at no time before Nikkila left her position did Prebenda, Nikkila, or anyone else state that Nikkila was contemplating filing a grievance with the State Bar regarding Kaufman or his firm. Similarly, the law firm administrator’s affidavit averred that she had no conversation regarding this subject with Prebenda before Nikki-la’s departure from the firm. These assertions are all fully consistent with Prebenda’s deposition testimony on these points and further demonstrate the absence of a genuine issue of material fact.

Although Prebenda’s deposition testimony in some respects displayed a failure of his memory, on the precise points at issue, his deposition testimony was intelligent, clear, and unequivocal. By contrast, Prebenda’s affidavit averred that he had informed Irwin Alterman, then a partner in the firm, before Nikkila’s resignation that Nikkila had been advised to go to the Attorney Grievance Commission and intended to do so. The circuit court appropriately disregarded Prebenda’s contradictory, later-filed affidavit in deciding whether a genuine issue of material fact existed. In Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), this Court observed that the plaintiffs affidavit contradicted testimony she had previously given in a deposition. Downer recognized the principle that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition, and held that a trial court that disregards such testimony does not err.

The principle, as discussed in Griffith v Brant, 177 Mich App 583; 442 NW2d 652 (1989), and Peterfish v Frantz, 168 Mich App 43; 424 NW2d 25 (1988), is not limited to parties who make contradictory assertions. The principle that contradictory affidavits should be disregarded stands irrespective of the identity of the maker of the conflicting statements. Even if the Griffith-Peterñsh-Downer principle is somehow limited, a party is bound by representative admissions of counsel. Neither a party nor that party’s legal representative may contrive factual issues by relying on an affidavit when unfavorable deposition testimony shows that the assertion in the affidavit is unfounded.

Even if Prebenda’s contradictory assertions would somehow create a genuine issue of material fact as to Kaufman & Payton, they are totally insufficient to make a case against Alan Kaufman personally. At best, Prebenda told Irwin Alterman, a partner in Kaufman & Payton, of Ms. Nikkila’s threat before her resignation. Prebenda concededly never spoke directly to Kaufman. We see no proof in this record that Alterman ever relayed the substance of his discussions with Prebenda to Kaufman. Further, Kaufman acknowledges that he spoke to Prebenda only after Nikkila had already resigned.

Finally, we disagree with the dissent’s advocacy of a reduction in the burden of proof in claims under the Whistleblowers’ Protection Act. An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. Plaintiff did not present adequate evidence that a record might be developed upon which reasonable minds could differ with regard to the whistleblower claim.

Affirmed.

Weaver, J., concurred.

Connor, J.

(dissenting). I dissent. I believe the trial court erred in granting Kaufman & Payton, P.C., and Alan J. Kaufman summary disposition. I would reverse and remand for further proceedings.

A motion for summary disposition brought pursuant to MCR 2.116(0(10) tests whether there is factual support for a claim. Giving the benefit of reasonable doubt to the opponent, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990).

In this case, the motion tested whether Nikkila could establish retaliation. Kaufman & Payton and Alan J. Kaufman argued below that what they did could not have been retaliation because they did not know Nikkila was going to file a grievance with the Attorney Grievance Commission.

I disagree with the majority’s conclusion that showing actual knowledge of an imminent report is required to establish retaliation. The Whistle-blowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., makes it unlawful for an employer to discriminate against an employee because the employee is about to report a suspected violation of law. MCL 15.362; MSA 17.428(2). Employers do not always wait to discriminate until they have proof that an employee is going to blow the whistle. They may discriminate against an employee they fear may blow the whistle either to nip the problem in the bud, or to give the employee a taste of things to come should the employee actually blow the whistle. If an employer actually discriminates against an employee, it should not matter whether that discrimination is motivated by knowledge or fear. Employers should not be allowed to peremptorily retaliate against employees with impunity. See McLemore v Detroit Receiving Hosp, 196 Mich App 391, 396; 493 NW2d 441 (1992). Both Kaufman & Payton and Alan J. Kaufman, Nikkila’s supervisor, knew that Nikkila thought Alan J. Kaufman’s billing practices were illegal, and both knew that she was very unhappy about being asked to participate in those practices. Giving Nikkila the benefit of reasonable doubt, I believe a reasonable factfinder could decide that Kaufman & Payton and Alan J. Kaufman suspected Nikkila was going to report those billing practices and made Nikkila’s work environment intolerable as a result.

Moreover, even if a showing of actual knowledge is required, I would find that Nikkila made such a showing through the affidavit of her former attorney, Ronald Prebenda. Prebenda swore that, before Nikkila left Kaufman & Payton’s employ, he had told a member of Kaufman & Payton that Nikkila intended to file a complaint with the Attorney Grievance Commission. This conclusively demonstrates that Kaufman & Payton knew that she was going to report the billing practices. Considering that Alan J. Kaufman was an officer of Kaufman & Payton, the object of the complaint, and Nikkila’s supervisor, I think a reasonable factfinder could infer that this information would have been passed on to Alan J. Kaufman.

I also disagree with the majority that Prebenda’s affidavit is contradicted by his deposition testimony. Prebenda was deposed by Kaufman & Pay-ton and Alan J. Kaufman over his own strong objections based on attorney-client privilege. He answered many questions by saying he had "no present recollection,” and gave responses so unsatisfactory that the trial court later ordered him to be redeposed. Regardless, a careful reading of his testimony shows no direct contradiction with his affidavit.

Finally, even if Prebenda’s December 18, 1989, affidavit and his March 15, 1990, deposition testimony were contradictory, I disagree with the majority that the result should be to reject the evidence most favorable to Nikkila and accept the evidence most favorable to Kaufman & Payton and Alan J. Kaufman. When reviewing the supporting materials to determine whether a question of material fact exists, courts are supposed to give the benefit of reasonable doubt to the party opposing a motion for summary disposition, not to the party making the motion. See Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).

There is a longstanding rule, followed in Griffith v Brant, 177 Mich App 583, 587-588; 442 NW2d 652 (1989), that a party, having testified to facts in a deposition in a clear, intelligent, and unequivocal manner is bound by those statements and cannot avoid summary disposition by later swearing in an affidavit that testimony at trial would be different. See Barlow v John Crane-Houdaille, Inc, 191 Mich App 244, 250; 477 NW2d 133 (1991); Gamet v Jenks, 38 Mich App 719, 726; 197 NW2d 160 (1972). However, in this case Prebenda is not a party, his deposition testimony was not clear and unequivocal, and his affidavit was prepared months before he was deposed.

I believe that by extending the rule in Griffith to this case, the majority is engaging in impermissible fact finding. As already noted, both the trial court and this Court must give the party opposing a motion for summary disposition the benefit of reasonable doubt, and determine whether a record might be developed that would create an issue of material fact. If Prebenda has testified one way, but in an earlier affidavit swore the facts were otherwise, I believe there is a reasonable doubt regarding how he would testify at trial. The majority fails to give Nikkila the benefit of that doubt as is her due.

1 would reverse._ 
      
       The trial court’s summary disposition left Nikkila with two remaining counterclaims. However, after a hearing, the trial court made an express determination that there was no reason for delay, and made the partial summary judgment a final order pursuant to MCR 2.604(A).
      We question the circuit court’s certification of this order because the Whistleblowers’ Protection Act claim was but one of several theories upon which Catherine Nikkila sought recovery below. Where only one of several theories has been resolved, certification of a final judgment pursuant to MCR 2.604(A) is improper. Derbeck v Ward, 178 Mich App 38, 41; 443 NW2d 812 (1989), quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, p 417, observed:
      [I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A).
      The plaintiffs only liability claim against the defendant was for personal injuries. Although several theories of negligence were alleged, partial summary disposition of one, but not all, of the theories was not sufficient to qualify this order as a final judgment under MCR 2.604(A). To warrant certification, the undecided claims should be sufficiently independent of the decided claims to justify splitting the case. The theory disposed of here was not sufficiently independent of the remaining theories. The retaliatory discharge, constructive termination, and wrongful discharge claims seem to be interdependent. Moreover, the parties have apparently stipulated to stay further proceedings until the outcome of this appeal. The only reason justifying this stay is that the remaining theories depend on our ruling.
      
        More fundamentally, we question the continuing viability of any trial court certifications under MCR 2.604(A). The court below, applying MCR 2.604(A), found "no just reason for delay.” Such pro forma invocation of magic words in reality condemns litigants in this state to years of delay.
      We urge circuit judges to deny certifications under MCR 2.604(A) as long as the enormous docket backlog of this Court continues to persist. Such certifications are luxuries that the bench and bar of this state can no longer afford. In the early days of this Court, when the backlog was nonexistent, the judges of this Court could usually render a decision well before the trial court could finally render judgment. MCR 2.604(A) certifications served an important and helpful purpose in providing quick and definitive appellate resolutions. Now the situation is reversed. The circuit courts are relatively current, but this Court is buried in cases. The parties here have waited since mid-1990 to learn of this Court’s disposition of but one small aspect in ongoing litigation.
      The Supreme Court should either act to abolish jurisdiction under MCR 2.604(A), or authorize this Court to decline certification whenever this Court’s backlog precludes speedy disposition of piecemeal claims — a situation that we believe will persist well into the future.
     
      
       As a preliminary matter, I must discuss which parties and claims are before this Court. Kaufman & Payton filed an action against Nikkila. Nikkila then filed several counterclaims against Kaufman & Payton. She also filed claims against Alan J. Kaufman in a separate action. The trial court ordered the two cases to be "joined and consolidated.” Thus, there was only one case in the trial court, albeit with several parties and many claims.
      The caption of the trial court order from which Nikkila appeals lists only Kaufman & Payton and Nikkila as parties. However, the order expressly grants summary disposition both to Kaufman & Payton and Alan Kaufman with regard to Nikkila’s whistleblower claims against each. Nikkila’s claim of appeal likewise does not list Alan Kaufman as a party or appellee.
      By not listing Alan Kaufman as a party or an appellee, Nikkila’s claim of appeal failed to conform to the requirements of MCR 7.204(D)(1). However, Alan Kaufman was represented by the same attorneys who represented Kaufman & Payton. Those attorneys filed an appeal brief on behalf of both Kaufman & Payton and Alan Kaufman that listed Alan Kaufman as an appellee. I would conclude that, because Nikkila filed a claim of appeal from the order dismissing her whistleblower claim against Alan Kaufman, because she raised the issue of the dismissal of that claim on appeal, and because Alan Kaufman had actual notice of the appeal and filed an appellee brief, the dismissal of Nikkila’s whistleblower claim against him is properly before this Court. Pursuant to MCR 7.216(A)(1) and (2), I would amend the caption of this opinion to conform it to the actual parties before this Court and their respective relationships.
     
      
       And contrary to the majority’s assertion, there is nothing in the record to indicate that, either at the time of Prebenda’s affidavit or his deposition, he was still acting as Nikkila’s attorney.
     