COA 370025 ERNEST L JARRETT V DOMINIC ARCHIBALD Opinion - Per Curiam - Unpublished 11/18/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ERNEST L. JARRETT and ERNEST L. JARRETT
P.C.,
Plaintiffs-Appellants,
UNPUBLISHED
November 18, 2025
3:16 PM
v No. 370025
Wayne Circuit Court
DOMINIC ARCHIBALD, LC No. 22-015292-CZ
Defendant-Appellee.
Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.
PER CURIAM.
In this dispute over attorney fees, plaintiffs appeal the trial court’s order granting summary
disposition to defendant1 under MCR 2.116(I)(2) (opposing party entitled to judgment). We
reverse and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2015, defendant’s son was shot and killed by a sheriff’s deputy in California.
In February 2016, defendant allegedly contacted plaintiff Ernest Jarrett to help her persuade
California officials to pursue criminal charges against the deputy. In accordance with the parties’
purported oral agreement, plaintiffs claimed they devoted about 73.5 hours of work to defendant’s
case at a rate of $350 per hour, totaling about $31,222.46 in costs and attorney fees. Defendant,
however, failed to pay. Nearly six years later, plaintiffs brought suit, alleging claims of breach of
express and implied contract, account stated, and unjust enrichment. Defendant answered, denying
plaintiffs’ allegations and asserting only three affirmative defenses. Relevant to this appeal,
defendant did not assert a statute-of-limitations defense.
Plaintiffs subsequently moved for summary disposition under MCR 2.116(C)(10) (no
genuine issue of material fact), alleging there was no genuine issue of material fact that defendant
1 We note that defendant is the mother of the deceased.

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failed to pay plaintiffs under the terms of the oral agreement. In response, defendant asserted that
plaintiffs’ claims were barred by the six-year statute of limitations. Accordingly, defendant
requested the trial court grant her summary disposition under MCR 2.116(I)(2) and (C)(7) (claim
barred by statute of limitations). Defendant also claimed that she only agreed to pay a contingency
fee if plaintiffs successfully tried a civil case brought in connection with her son’s death, and never
agreed to pay the fees and costs identified by plaintiffs. Because there was a factual dispute on
the issues of the existence of the oral agreement and the actual work done, defendant contended
that summary disposition under MCR 2.116(C)(10) would be improper.
In reply, plaintiffs claimed that they performed under two separate and distinct contracts:
an oral agreement for plaintiff’s efforts to secure a criminal prosecution and a written contingency-
fee agreement for their representation of defendant in the civil case. Plaintiffs also argued that
defendant waived the statute-of-limitations defense because defendant failed to assert it in her
answer to plaintiffs’ complaint. Moreover, plaintiffs asserted that even if defendant’s statute-of-
limitations argument was not waived, the defense lacked merit because plaintiff’s breach-of-
contract claim could not accrue before defendant failed to pay the amount due under the contract
within a reasonable time.
Defendant subsequently filed an amended answer to plaintiffs’ complaint adding a statute-
of-limitations defense while Jarrett was recovering from surgery, but never filed a motion to
amend. The trial court ultimately determined that defendant did not waive the statute-of-
limitations defense. Additionally, it found defendant was entitled to summary disposition under
MCR 2.116(I)(2) and (C)(7), finding that plaintiffs’ claim accrued after they sent defendant their
billing statement in early December 2016, meaning their claim was barred by the statute of
limitations. Alternatively, the trial court held that summary disposition was also proper because
the parol-evidence rule barred plaintiffs from submitting evidence of the oral agreement to alter
the terms of the written contingency-fee agreement. This appeal followed.
II. STANDARDS OF REVIEW
We review de novo the construction and application of court rules. Dextrom v Wexford
Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). “This Court reviews a trial court’s decision
to permit a party to amend its pleadings for an abuse of discretion.” In re Kostin, 278 Mich App
47, 51; 748 NW2d 583 (2008). “[A]n abuse of discretion occurs only when the trial court’s
decision is outside the range of reasonable and principled outcomes.” Id.
A trial court’s decision on a motion for summary disposition is also reviewed de novo. El-
Khalil v Oakwood Healthcare Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “Whether a period
of limitations applies in particular circumstances constitutes a legal question that this Court also
considers de novo.” Armijo v Bronson Methodist Hosp, 345 Mich App 254, 262; 4 NW3d 789
(2023) (quotation marks and citation omitted). “Under MCR 2.116(C)(7), summary disposition is
proper when a claim is barred by the statute of limitations.” Id. (quotation marks and citation
omitted).
When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-
pleaded factual allegations as true and construe them in favor of the plaintiff, unless
other evidence contradicts them. If any affidavits, depositions, admissions, or other

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documentary evidence are submitted, the court must consider them to determine
whether there is a genuine issue of material fact. If no facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of those facts, the
question whether the claim is barred is an issue of law for the court. However, if a
question of fact exists to the extent that factual development could provide a basis
for recovery, dismissal is inappropriate. [Dextrom, 287 Mich App at 428-429
(citations omitted).]
A motion under MCR 2.116(C)(10) examines the factual sufficiency of a claim. El-Khalil,
504 Mich at 160. “In reviewing a motion for summary disposition brought under MCR
2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and
documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion.” Quinto v Cross & Peters Co, 451 Mich
358, 362; 547 NW2d 314 (1996). The motion may only be granted if there is no genuine issue of
material fact. El-Khalil, 504 Mich at 160. A genuine issue of material fact exists when “the record
leaves open an issue upon which reasonable minds might differ.” Id. (quotation marks and citation
omitted).
III. WAIVER OF AFFIRMATIVE DEFENSES
Plaintiffs first claim that the trial court erred by disregarding the applicable court rules and
considering defendant’s motion for summary disposition. We disagree.
“Affirmative defenses must be stated in a party’s responsive pleading, either as originally
filed or as amended in accordance with MCR 2.118.” MCR 2.111(F)(3). “A party that fails to
raise an affirmative defense as required by MCR 2.111(F) waives the defense.” Harris v Vernier,
242 Mich App 306, 312; 617 NW2d 764 (2000); see also MCR 2.111(F)(2). A party may amend
its pleading by leave of the court, and “leave shall be freely given when justice so requires.”
MCR 2.118(A)(2). “Leave to amend should be denied only for particularized reasons, such as
undue delay, bad faith or dilatory motive on the movant’s part, repeated failure to cure deficiencies
by amendment previously allowed, undue prejudice to the opposing party, or where amendment
would be futile.” Miller v Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007).
In Cole v Ladbroke Racing Mich Inc, 241 Mich App 1, 8-10; 614 NW2d 169 (2000), this
Court addressed whether the defendant waived an affirmative defense after failing to raise it in its
first responsive pleading and failing to move to amend the pleading to add the defense later. This
Court opined:
Ordinarily, we would deem the . . . defense waived. However, at the
hearing concerning defendant’s second motion for summary disposition, the trial
court recognized that defendant needed the court’s permission to assert the
affirmative defense, and then stated, “Let’s go ahead.” The trial court proceeded
to hear the parties’ arguments regarding the immunity issue and rendered its ruling
based on immunity.
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Although no motion to amend was filed until after the court ruled, it is clear
to this Court that the trial court constructively granted leave to amend by allowing
argument and, ultimately, dismissing the action . . . . Because plaintiff briefed the
issue and was afforded an opportunity for oral argument in response to defendant’s
second motion for summary disposition, we find no prejudice. [Id. at 9-10.]
In this case, the trial court acknowledged that defendant was required by the court rules to
seek leave to amend her answer. But it constructively granted defendant leave to amend when it
stated that it would have granted a motion to amend had one been filed, and that there was no
surprise to plaintiffs. The trial court’s ruling was largely predicated on the statute-of-limitations
defense. Moreover, not only did defense counsel state that he e-mailed plaintiffs regarding his
intent to file an amended answer, plaintiffs also had the opportunity to brief the statute-of-
limitations argument, and were afforded the opportunity to argue their position. Thus, defendant’s
amendment was properly accepted by the trial court, meaning the statute-of-limitations defense
was not waived, and the trial court did not err by considering defendant’s motion for summary
disposition.
IV. SUMMARY DISPOSITION
Plaintiffs additionally claim that the trial court erred by finding their case was time-barred
by the statute of limitations, dismissing their equitable claims, granting summary disposition on
the basis of the parol-evidence rule, and not granting their motion for summary disposition. We
agree that the trial court erred by granting summary disposition to defendant, but plaintiffs are not
entitled to summary disposition.
A. STATUTE OF LIMITATIONS
The statute of limitations for a breach-of-contract claim is six years. MCL 600.5807(9).
An unjust-enrichment claim is the “equitable counterpart of a legal claim for breach of contract,”
AFT Mich v Michigan, 303 Mich App 651, 677; 846 NW2d 583 (2014), as such, the statute of
limitations for a breach-of-contract claim applies to a claim for unjust enrichment, see Taxpayers
Allied for Constitutional Taxation v Wayne Co, 450 Mich 119, 127 n 9; 537 NW2d 596 (1995);
MCL 600.5815. A breach-of-contract claim accrues “at the time the wrong upon which the claim
is based was done regardless of the time when damage results.” MCL 600.5827. “For a breach of
contract action, the limitations period generally begins to run on the date that the breach occurs.”
Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi, 483 Mich 345, 355; 771 NW2d 411
(2009). But, “[w]hen a contract does not identify a time for performance, . . . ‘the law will presume
a reasonable time.’ ” In re Prichard Estate, 410 Mich 587, 592; 302 NW2d 554 (1981), quoting
Duke v Miller, 355 Mich 540, 543; 94 NW2d 819 (1959). A reasonable time for performance
depends upon the nature of the contract and the facts and circumstances of each case. Jackson v
Estate of Green, 484 Mich 209, 217; 771 NW2d 675 (2009). “Determining what constitutes a
reasonable amount of time . . . is necessarily a factual question properly decided by the jury.” Id.
Here, plaintiffs’ billing statement and letter to defendant did not specify a specific payment
due date. With no set date of performance, plaintiffs’ claims would have accrued only after a
reasonable time had passed. Because such a determination is necessarily a factual question for a
jury, Jackson, 484 Mich at 217, the trial court erred by granting summary disposition to defendant

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on these grounds. Similarly, the trial court impliedly ruled that plaintiffs’ unjust-enrichment claim
was barred by the six-year statute of limitations. Because this ruling was also based on its
erroneous determination of the reasonable time for performance in this case, Jackson, 484 Mich
at 217, the trial court necessarily erred in dismissing this claim as well.
We note that defendant relies on Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi,
483 Mich 345; 771 NW2d 411 (2009), to support her contention that plaintiffs’ breach-of-contract
claim is barred by the statute of limitations because their claim accrued when “the attorney-client
relationship was terminated in September, with confirmation in October.” In Seyburn, the
defendant retained the plaintiff law firm to represent him in a civil litigation action. Id. at 349.
Contrary to the parties’ agreement, in late 1992, the defendant stopped paying the plaintiff for their
services while the appeal in the underlying litigation was pending. Id. The defendant, however,
never terminated the attorney-client relationship. Id. at 359. It was not until September 1993, after
plaintiff moved to withdraw with this Court, that the attorney-client relationship was terminated.
Id. at 359-360. Because the plaintiff’s representation continued until this Court terminated the
relationship, the Seyburn Court held that the plaintiff’s “cause of action to recover attorney fees
accrued on the date that the attorney-client relationship was terminated” in September 1993, not
when the defendant ceased payment in late 1992. Id. at 360. In doing so, Seyburn created an
exception to the general rule that “an attorney’s cause of action to recover attorney fees would
accrue on the date the client breached the parties’ agreement by failing to pay in accordance with
its terms,” concluding that:
[I]n the context of litigation, the special features of the attorney-client relationship
necessitate an exception to the general rule where the client breaches the agreement
during the representation. Once litigation has commenced, an attorney cannot
discontinue serving his or her client without an order of the court because an
attorney’s ability to terminate the representation may be limited by his or her
responsibilities to the client. Although the client may have ceased making
payments to the attorney, the attorney’s representation of the client continues until
the court has permitted the termination. [Id. at 359.]
Seyburn’s holding is distinguishable from this case. The oral agreement under which
plaintiffs seek to recover was not an attorney-client relationship that required judicial approval
before it could be terminated; the oral agreement solely governed plaintiffs’ efforts to secure a
criminal prosecution of the deputy who shot defendant’s son. Indeed, in a December 1, 2016 letter
sent to defendant, plaintiffs explained:
As you, no doubt will recall, I simultaneously served as your lawyer in
connection with the civil action which is currently pending, as well as your efforts
to have [the deputy] and his companion prosecuted for their criminal conduct which
resulted in your son’s death. Pursuant to the contingent fee agreement you entered
into with me, I look to any recovery you may obtain in the civil action as the fund
from which my fees for services I performed in connection with that case will come.
The amount to which I am entitled will be determined at that time. If you do not
recover in your lawsuit, then you will not be obligated to me for attorney fees. The
notice of lien relates to fees to which I will become entitled in the event of a
recovery in that suit.

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The lien does not, however, cover your obligation to compensate me for my
services which were provided exclusively in connection with your efforts to secure
a criminal prosecution of [the deputy] and his companion. As the services I
provided for these purposes were not in furtherance of the lawsuit, I cannot look to
any recovery you may obtain in that suit as the fund for payment for those services.
Furthermore, unlike fees for my work on the civil suit, fees for my services which
assisted you in your efforts to cause a criminal prosecution are not contingent or
dependent in any way on the outcome of the civil case. Accordingly, I am billing
you separately for my time in these undertakings, and request your payment for
these services forthwith.
Because, unlike Seyburn, there was no attorney-client relationship under the oral agreement that
necessitated discharge by the trial court, the general rules governing the accrual of a breach-of-
contract claim apply, and the trial court erred by granting summary disposition to defendant.
B. PAROL-EVIDENCE RULE
“The parol evidence rule may be summarized as follows: [p]arol evidence of contract
negotiations, or of prior or contemporaneous agreements that contradict or vary the written
contract, is not admissible to vary the terms of a contract which is clear and unambiguous.”
Hamade v Sunoco, Inc, 271 Mich App 145, 166; 721 NW2d 233 (2006) (quotation marks and
citation omitted). In order for the parol-evidence rule to apply, there must be “a finding that the
parties intended the written instrument to be a complete expression of their agreement with regard
to the matters covered.” Id. at 167. As such, “extrinsic evidence of prior or contemporaneous
agreements or negotiations is admissible as it bears on this threshold question of whether the
written instrument is such an integrated agreement.” Id. (quotation marks, brackets, and citation
omitted).
Here, plaintiffs alleged that the oral agreement and written contingency-fee agreement
were two separate and distinct contracts. According to plaintiffs, under the terms of the oral
agreement, they would represent defendant in her efforts to have the sheriff’s deputy criminally
prosecuted for the death of her son. The contingency-fee agreement, on the other hand, concerned
defendant’s civil case to collect damages arising from the wrongful death of her son. Although
plaintiffs admitted that some aspects of the work performed for these cases overlapped, evidence
of the oral agreement was not introduced to alter the terms of the written contingency-fee
agreement. Rather, plaintiffs were attempting to collect under the terms of entirely different
agreement. The trial court, therefore, erred by finding that the parol-evidence rule barred
plaintiffs’ breach-of-contract claim.
C. GENUINE ISSUE OF MATERIAL FACT
As noted above, “[i]n reviewing a motion for summary disposition brought under
MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and
documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion.” Quinto, 451 Mich at 362. In her affidavit,
defendant denied that any other fee agreement existed other than the contingency-fee agreement.

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Defendant claimed that she did not agree to pay plaintiffs $350 per hour for the work identified in
their billing statement, rather, plaintiffs incurred those expenses “as part of [their] initial efforts to
strengthen [their] bond with [her] and perhaps to strengthen the civil case. Moreover, Plaintiff[s’]
billing records [did] not reliably track [Jarrett’s] time.” Reading this evidence in the light most
favorable to defendant, there remains a question of fact regarding the existence, and, by extension,
the enforceability, of the alleged oral agreement. Accordingly, plaintiffs are not entitled to
summary disposition.
V. REMAND TO A DIFFERENT JUDGE
Finally, plaintiffs contend that the case should be remanded to a different trial court judge.
We disagree.
“The general concern when deciding whether to remand to a different trial judge is whether
the appearance of justice will be better served if another judge presides over the case.” Bayati v
Bayati, 264 Mich App 595, 602; 691 NW2d 812 (2004). This Court “may remand to a different
judge if the original judge would have difficulty in putting aside previously expressed views or
findings, if reassignment is advisable to preserve the appearance of justice, and if reassignment
will not entail excessive waste or duplication.” Id. at 602-603. “However, we will not remand to
a different judge merely because the judge came to the wrong legal conclusion. Repeated rulings
against a party, no matter how erroneous, or vigorously or consistently expressed, are not
disqualifying.” Id. at 603. “Rather, [a] plaintiff must demonstrate that the judge would be unable
to rule fairly on remand given his past comments or expressed views.” Id.
Plaintiffs contend that the trial court exhibited bias against them because it allowed
defendant—the opposing party—to speak first during a hearing, permitted her to discuss the
implication of the civil case, interrupted plaintiffs during their argument, and seemingly challenged
the “propriety and/or ethics” of plaintiffs’ work in attempting to secure a criminal prosecution.
Plaintiffs, however, fail to explain how any of these circumstances demonstrate that “the judge
would be unable to rule fairly on remand given his past comments or expressed views.” Bayati,
264 Mich App at 603. Plaintiffs also take issue with the fact that the trial court considered
defendant’s motion for summary disposition even though defendant “waived” the defense. But,
as discussed above, it was within the trial court’s discretion to consider defendant’s motion for
summary disposition. Although the trial court erred by finding that the parol-evidence rule barred
plaintiffs’ breach-of-contract claim, “we will not remand to a different judge merely because the
judge came to the wrong legal conclusion.” Id. Accordingly, remand to a different judge is not
warranted.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Thomas C. Cameron

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