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Polony v. City of Sterling Heights2/20/2001
ns Comm'r v Aageson Thibo Agency, 226 Mich App 336, 340; 573 NW2d 637 (1997). The pleadings and any affidavits, admissions, or documentary evidence submitted by the parties must be considered in ruling on a motion brought under MCR 2.116(C)(7). Horace v City of Pontiac, 456 Mich 744, 749; 575 NW2d 762 (1998). "The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Affidavits and other documentary evidence must be accepted as true and construed in the plaintiff 's favor. Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999). Summary disposition should not be granted if there is a material factual dispute that could provide a basis for recovery upon factual development. Id.
Plaintiff did not preserve the issue whether the release was properly considered a term of the plea agreement. Rather, plaintiff argued below that her claim was not barred by the release because she did not voluntarily enter into the plea agreement and there was evidence of prosecutorial misconduct. Because plaintiff did not preserve this argument below and the court did not address it, the issue is not properly before this Court, and we decline to address it.
II.
Plaintiff also argues that she did not voluntarily enter into the release agreement.
Although a release that relinquishes a criminal defendant's right to file a civil suit in exchange for the dismissal of criminal charges is not invalid per se, the release must be rigorously scrutinized in accordance with standards set forth in Town of Newton v Rumery, 480 US 386; 107 S Ct 1187; 94 L Ed 2d 405 (1987). Stamps v City of Taylor, 218 Mich App 626, 628; 554 NW2d 603 (1996). " efore a court properly may conclude that a particular release- dismissal agreement is enforceable, it must specifically determine that (1) the agreement was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement will not adversely impact relevant public interests." Id. at 632, quoting Coughlen v Coots, 5 F3d 970 (CA 6, 1993) (applying Rumery, supra). A determination of whether the defendant voluntarily entered into the release-dismissal agreement requires the trial court to consider six factors: (1) the sophistication of the defendant; (2) whether the release was signed while the defendant was in custody; (3) whether the defendant was represented by counsel; (4) whether the defendant was given ample time to consider the agreement; (5) whether any unwillingness was expressed by the defendant; and (6) whether the release is clear on its face. . Stamps, supra at 632-633.
Plaintiff argues that a question of fact remained on the issue of her sophistication. Although at deposition plaintiff responded to the question whether she knew that as a condition of the plea agreement she was giving up her right to sue the city or the police officers by saying "Not that I know of," she also testified that her attorney was present when she signed the plea, that she had an opportunity to discuss the plea agreement with her attorney before signing it, that she understood that she had a right to proceed to trial on the underlying charges, and that she initialed the paragraph containing the release. Additionally, the attorney who represented plaintiff in the plea agreement testified that he had discussed the release paragraph with plaintiff before signing the plea agreement, and had explained to her the risks of proceeding to trial.
Although the attorney testified that he did not think plaintiff was overly bright, he also testified that he thought plaintiff had enough sophi
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