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March 23, 2026 Get Citation Alerts Download PDF Add Note

Kewadin Casinos Gaming v. Patterson Earnhart Real Bird & Wilson

Michigan Court of Appeals

• Citations: None known
• Docket Number: 371255

• Disposition: Reversed In Part and Remanded

• Opinion

• Authorities (34)

• Cited By (0)

• Summaries (0)

• Similar Cases (85.9K)

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Disposition

Reversed In Part and Remanded

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

KEWADIN CASINOS GAMING AUTHORITY, FOR PUBLICATION
March 23, 2026
Plaintiff-Appellant, 3:22 PM

v No. 371255
Chippewa Circuit Court
PATTERSON EARNHART REAL BIRD & LC No. 2023-017490-NM
WILSON LLP, JEREMY PATTERSON, JEFFREY
S. RASMUSSEN, and JOHNATHON LOERA,

Defendants-Appellees.

Before: KOROBKIN, P.J., and YATES and FEENEY, JJ.

KOROBKIN, P.J.

In this legal malpractice action, plaintiff, Kewadin Casinos Gaming Authority, appeals by
right the trial court’s order granting summary disposition to defendants, Patterson Earnhart Real
Bird & Wilson, LLP (the firm), Jeremy Patterson, Jeffrey S. Rasmussen, and Johnathon Loera.
Plaintiff is a wholly owned instrumentality of the Sault Ste. Marie Tribe of Chippewa Indians (the
Tribe), the firm was the Tribe’s general counsel, and the other defendants were attorneys at the
firm who provided legal services pursuant to the general counsel arrangement. The trial court
ruled that plaintiff’s lawsuit was barred by tribal sovereign immunity because defendants, as
general counsel, were agents of the Tribe. In the alternative, the trial court ruled that a forum-
selection clause in the general counsel agreement between the firm and the Tribe required dismissal
of this action.

For the reasons stated in this opinion, we conclude that plaintiff’s lawsuit is not barred by
tribal sovereign immunity, and further development of the record is required to determine whether
the forum-selection clause requires plaintiff to bring this suit in tribal court. Accordingly, we
reverse the trial court’s judgment in part, vacate it in part, and remand for further proceedings
consistent with this opinion.

I. BACKGROUND AND FACTS

In 2020, the Tribe hired defendant Patterson Earnhart Real Bird & Wilson LLP, a Colorado
law firm, to serve as general counsel for the Tribe. The terms of their arrangement were

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memorialized in a written document, dated June 3, 2020, entitled “General Counsel Contract.”
The agreement, broadly speaking, provided that the firm would provide legal services and lobbying
services as directed by the Tribe, established the rates at which the firm would bill for its services,
and contained various other unremarkable terms and conditions. As relevant here, the agreement
also contained a forum-selection clause as follows: “Upon the demand of any party, any dispute
arising under or in connection with this Contract shall be resolved in the Tribal Courts of the Sault
Ste. Marie Tribe of Chippewa Indians, in accordance with the laws of the Sault Ste. Marie Tribe
of Chippewa Indians.”

The written terms of the contract did not explicitly address the firm’s representation of
tribal entities that were closely related to, but legally distinct from, the Tribe.1 Plaintiff, which
was created by the Tribe to own and operate gaming establishments, is described in the Tribal
Code as: (1) “a governmental instrumentality of the Tribe,” Sault Ste. Marie Tribe of Chippewa
Indians, Tribal Code § 94.101; (2) a “subordinate organization of the Board of Directors of the
Tribe,” id. § 94.105(1); and, (3) “[f]or purposes of taxation, civil jurisdiction and regulatory
jurisdiction, . . . a subordinate arm of the Tribe and . . . entitled to all of the privileges and
immunities of the Tribe,” id. § 94.105(2). The members of the Tribe’s board of directors, which
exercises the sovereign and government authority of the Tribe, are also the members of plaintiff’s
management board; the chair of the Tribe’s board is also the chair of plaintiff’s board. Id.
§ 94.108(2)-(3).

Just days after the Tribe retained the firm as described above, the firm proposed in writing
to the Tribe that, in their capacity as general counsel, they take over defending plaintiff in a federal
lawsuit brought by investors who were seeking compensation after agreements to build and open
casinos in Detroit and Lansing had fallen through. The firm did so, and the federal case against
plaintiff was dismissed for lack of diversity jurisdiction. But the investor-plaintiffs in the
dismissed lawsuit then refiled the action in state court. And according to plaintiff, in the state court
proceedings, defendants as their counsel failed to comply with the Michigan Court Rules and the
Michigan Rules of Evidence and acted negligently, resulting in a substantial judgment being
entered against plaintiff.

Plaintiff then initiated this action against defendants in Chippewa Circuit Court, alleging
legal malpractice and breach of fiduciary duty. Defendants moved for summary disposition under
MCR 2.116(C)(4) and (7), asserting that the circuit court lacked jurisdiction over the matter
because, inter alia, (1) the general counsel agreement specified that disputes were to be addressed
in tribal court and (2) the lawsuit was barred by tribal sovereign immunity.2

After a hearing on the motion, the trial court concluded that (1) defendants had sovereign
immunity because, as general counsel, they were agents of the Tribe, and (2) the forum-selection
clause in the general counsel contract required plaintiff to file the lawsuit in tribal court. At

1
A later version of the general counsel contract, signed in 2022, does explicitly reference the firm’s
work for the Tribe’s gaming authority.
2
Defendants also argued that the federal doctrines of infringement, preemption, and exhaustion of
tribal remedies required dismissal. The trial court did not reach those issues.

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defendants’ request, the trial court dismissed the case with prejudice. Plaintiff moved for
reconsideration, which the trial court denied.

Plaintiff now appeals.

II. STANDARDS OF REVIEW

“This Court reviews de novo the grant or denial of a motion for summary disposition to
determine if the moving party is entitled to judgment as a matter of law.” Glasker-Davis v
Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020) (quotation marks and citation
omitted).

“A motion for summary disposition under MCR 2.116(C)(4) tests the trial court’s subject-
matter jurisdiction.” Mays v Governor, 506 Mich 157, 180; 954 NW2d 139 (2020). “Jurisdictional
questions under MCR 2.116(C)(4) are questions of law that are also reviewed de novo.” Meisner
Law Group PC v Weston Downs Condo Ass’n, 321 Mich App 702, 713-714; 909 NW2d 890 (2017)
(cleaned up). Parties may support or oppose a motion under MCR 2.116(C)(4) with affidavits,
depositions, or other documentary evidence. Id. at 714. When reviewing such a motion, a trial
court “must determine whether the pleadings demonstrate that the defendant is entitled to judgment
as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue
of material fact.” Id. If subject-matter jurisdiction is lacking, the trial court must dismiss the
action. Id.

Under MCR 2.116(C)(7), “dismissal of [an] action . . . is appropriate because of . . .
immunity granted by law [or] agreement to litigate in a different forum . . . .” “The question
whether an entity has immunity is one of law, which we review de novo.” Co Rd Ass’n of Mich v
Governor, 287 Mich App 95, 118; 782 NW2d 784 (2010). Likewise, “a trial court’s dismissal of
an action pursuant to a contractual forum-selection clause is properly reviewed on appeal under a
de novo standard.” Turcheck v Amerifund Fin, Inc, 272 Mich App 341, 351; 725 NW2d 684
(2006). In 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.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). “If
any affidavits, depositions, admissions, or other documentary evidence are submitted, the court
must consider them to determine whether there is a genuine issue of material fact.” Id. at 429. “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.” Id.

III. ANALYSIS

A. TRIBAL SOVEREIGN IMMUNITY

Plaintiff first argues that the trial court erred in holding that plaintiff’s lawsuit is barred by
tribal sovereign immunity. We agree.

As an initial matter, we address whether defendants’ motion for summary disposition on
grounds of tribal sovereign immunity was properly brought and considered under MCR
2.116(C)(4) (lack of subject-matter jurisdiction), MCR 2.116(C)(7) (immunity granted by law), or

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both. This Court has previously affirmed dismissal of claims against a tribe on sovereign-
immunity grounds under MCR 2.116(C)(7). Huron Potawatomi, Inc v Stinger, 227 Mich App
127; 574 NW2d 706 (1997). Therefore, it is clear that tribal sovereign immunity can be raised and
decided under MCR 2.116(C)(7).

As for whether tribal sovereign immunity also implicates subject-matter jurisdiction, it
appears that no binding Michigan case has squarely addressed the issue. “Generally, subject-
matter jurisdiction is defined as a court’s power to hear and determine a cause or matter.”
O’Connell v Dir of Elections, 316 Mich App 91, 100; 891 NW2d 240 (2016) (quotation marks and
citation omitted). “More specifically, subject-matter jurisdiction is the deciding body’s authority
to try a case of the kind or character pending before it, regardless of the particular facts of the
case.” Id. (quotation marks and citation omitted). Under federal law, some courts treat tribal
sovereign immunity as a limit on their subject-matter jurisdiction, see, e.g., Spurr v Pope, 936 F3d
478, 482 (CA 6, 2019); Miner Electric, Inc v Muscogee (Creek) Nation, 505 F3d 1007, 1009 (CA
10, 2007); Alabama v PCI Gaming Auth, 801 F3d 1278, 1287 (CA 11, 2015), but others have
described the doctrine as only “quasi-jurisdictional” or “jurisdictional in nature,” given that the
immunity—unlike traditional limits on subject-matter jurisdiction—can be waived by consent, see,
e.g., Oneida Indian Nation v Phillips, 981 F3d 157, 170-171 & n 70 (CA 2, 2020); Pistor v Garcia,
791 F3d 1104, 1110 (CA 9, 2015); Ninigret Dev Corp v Narragansett Indian Wetuomuck Housing
Auth, 207 F3d 21, 28 (CA 1, 2000).3 Under the Federal Rules of Civil Procedure, motions to
dismiss on sovereign-immunity grounds are filed under FR Civ P 12(b)(1), which is labeled “lack
of subject-matter jurisdiction”—in essence, the federal equivalent to MCR 2.116(C)(4)—even in
those circuits that have noted differences between sovereign immunity and more traditional limits
on subject-matter jurisdiction. See Pistor, 791 F3d at 1111.

In Michigan, although not directly on point, some cases have spoken to the relationship
between sovereign immunity generally and subject-matter jurisdiction. “From the time of
Michigan’s statehood, this Court’s jurisprudence has recognized that the state, as sovereign, is
immune from suit unless it consents . . . .” Pohutski v City of Allen Park, 465 Mich 675, 681; 641
NW2d 219 (2002). In Greenfield Constr Co, Inc v Mich Dep’t of State Hwys, 402 Mich 172, 194;
261 NW2d 718 (1978), our Supreme Court remarked that “it is well settled that the circuit court is
without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction
shall have been acquired by legislative consent.” Similarly, in Manion v State Hwy Comm’r, 303
Mich 1, 20; 5 NW2d 527 (1942), the Court stated: “The terms of the State’s consent to be sued in
any court define that court’s jurisdiction to entertain the suit.” These cases are instructive, as they
strongly suggest that when an entity with sovereign immunity does not waive it by consenting to
be sued, courts lack subject-matter jurisdiction to entertain such suits. We see no reason to treat
tribal sovereign immunity differently. Therefore, when a party seeks summary disposition on
grounds of tribal sovereign immunity, the motion can be brought and decided under MCR
2.116(C)(4) (lack of subject-matter jurisdiction) in addition or in the alternative to MCR
2.116(C)(7) (immunity granted by law).

3
“Federal caselaw is not binding, but we may consider it persuasive.” Micheli v Michigan Auto
Ins Placement Facility, 340 Mich App 360, 375 n 5; 986 NW2d 451 (2022).

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We turn now to the issue of whether defendants were entitled to summary disposition on
grounds of tribal sovereign immunity. The United States Supreme Court has recognized that
“Indian tribes are domestic dependent nations that exercise inherent sovereign authority.”
Michigan v Bay Mills Indian Community, 572 US 782, 788; 134 S Ct 2024; 188 L Ed 2d 1071
(2014) (quotation marks and citations omitted). As part of their sovereignty, tribes are not subject
to suit without their consent or authorization by Congress. Id. at 789. This sovereignty extends to
state courts and to suits involving commercial activity occurring off tribal land. Id. at 789-791.

Here, the trial court held that defendants—the Tribe’s retained attorneys—were protected
by tribal sovereign immunity because they are being sued in their capacity as the Tribe’s agents.
On the surface, there is authority to support the position that sovereign immunity can extend to a
tribe’s legal counsel. See, e.g., Catskill Dev LLC v Park Place Entertainment Corp, 206 FRD 78,
91 (SDNY, 2002) (“As a general proposition, a tribe’s attorney, when acting as a representative of
the tribe and within the scope of his authority, is cloaked in the immunity of the tribe just as a tribal
official is cloaked in that immunity.”); Great Western Casinos, Inc v Morongo Band of Mission
Indians, 74 Cal App 4th 1407; 88 Cal Rptr 2d 828 (1999) (“The non-Indian law firm and general
counsel are similarly immune from suit for actions taken or opinions given in rendering legal
services to the tribe.”).4 But that is not the end of the inquiry because in this instance, defendants
are attempting to assert immunity as tribal agents against claims in litigation brought by plaintiff,
a tribal entity and wholly owned and subordinate instrumentality of the Tribe itself. It would be
peculiar if immunity—“a necessary corollary to Indian sovereignty and self-governance,” Bay
Mills, 572 US at 788 (quotation marks and citation omitted)—could be invoked by a tribe’s agents
where, as here, the agents are being sued by a tribal entity for allegedly violating their duty to the
tribe.

To solve this puzzle, we turn to the United States Supreme Court’s decision in Lewis v
Clarke, 581 US 155; 137 S Ct 1285; 197 L Ed 2d 631 (2017). In that case, the Court considered
“whether an Indian tribe’s sovereign immunity bars individual-capacity damages against tribal
employees for torts committed within the scope of their employment . . . .” Id. at 157. The Court
instructed that we “should look to whether the sovereign is the real party in interest to determine
whether sovereign immunity bars the suit,” which in turn requires determining “whether the
remedy sought is truly against the sovereign.” Id. at 161-162. The Court held that the Indian tribe
was not the real party in interest in a suit against a tribal employee for torts committed within the
scope of his employment, as the suit would “not require action by the sovereign or disturb the
sovereign’s property.” Id. at 163 (cleaned up). Therefore, the Court further held, “tribal sovereign
immunity . . . is simply not in play.” Id.

Applying these principles here, this Court must determine who the “real party in interest”
is to discern whether tribal sovereign immunity bars plaintiff’s suit. If the real party in interest is
indeed the Tribe, then tribal sovereign immunity applies. Id. at 163. But that is clearly not the
case. Plaintiff is not seeking relief from the sovereign but instead from defendants in their

4
“Caselaw from other states is not binding but may be considered for its persuasive value.” Law
Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 347 Mich App 533, 547; 15 NW3d 356
(2023).

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nonsovereign capacities for actions they took or failed to take in the scope of their work as counsel.
If plaintiff succeeds in its suit, the judgment will not operate against the Tribe. Instead, as in Lewis,
the suit by plaintiff against defendants seeks “to recover for [their] personal actions” while serving
as plaintiff’s counsel, which “will not require action by the sovereign or disturb the sovereign’s
property.” Id. (cleaned up). Accordingly, the real parties in interest are defendants, not the Tribe.
Therefore, sovereign immunity does not apply to defendants, and the trial court erred by
concluding otherwise. See id.

B. FORUM-SELECTION CLAUSE

Next, plaintiff contends that the trial court erred in holding that the forum-selection clause
in the general counsel contract required plaintiff to litigate its claims in tribal court. We conclude
that further development of the record is needed to determine whether plaintiff’s case may be
properly dismissed on forum-selection grounds.

1. CLOSELY-RELATED DOCTRINE

Plaintiff argues that it is not bound by the forum-selection clause because the Tribe, not
plaintiff, signed the general counsel contract, and plaintiff cannot be bound by a clause in a contract
it did not sign. Noting the apparent lack of Michigan authority on this issue, we turn to other
jurisdictions for guidance. A majority of circuits of the United States Courts of Appeals recognize
and use the “closely-related doctrine” to determine whether a nonsignatory party can be bound by
a contract’s forum-selection clause. See Franlink Inc v BACE Servs, Inc, 50 F4th 432, 439 (CA
5, 2022); Fasano v Li, 47 F4th 91, 103-104 (CA 2, 2022); In re McGraw-Hill Global Ed Holdings
LLC, 909 F3d 48, 63 (CA 3, 2018); Marano Enterprises of Kansas v Z-Teca Restaurants, LP, 254
F3d 753, 757-758 (CA 8, 2001); Lipcon v Underwriters at Lloyd’s, London, 148 F3d 1285, 1299
(CA 11, 1998); Baker v LeBoeuf, Lamb, Leiby & Macrae, 105 F3d 1102, 1106 (CA 6, 1997);
Hugel v Corp of Lloyd’s, 999 F2d 206, 209-210 (CA 7, 1993); Manetti-Farrow, Inc v Gucci
America, Inc, 858 F2d 509, 514 n 5 (CA 9, 1988). Many state courts have recognized and
employed the doctrine as well. See Highland Crusader Offshore Partners, LP v Targeted Delivery
Technologies Holdings, Ltd, 184 App Div 3d 116, 122; 124 NYS3d 346 (2020); Ex parte Killian
Constr Co, 276 So 3d 201, 209 (Ala, 2018); Peterson v Evapco, Inc, 238 Md App 1, 33; 188 A3d
210 (2018); Pinto Tech Ventures, LP v Sheldon, 526 SW3d 428, 444 (Tex, 2017); Keehan Tenn
Investment, LLC v Praetorium Secured Fund I, LP, 71 NE3d 325, 333-334 (Ohio App, 2016);
Solargenix Energy, LLC v Acciona, SA, 17 NE3d 171, 188 (Ill App, 2014); Caperton v AT Massey
Coal Co, Inc, 225 W Va 128, 153; 690 SE2d 322 (2009); CH Robinson Worldwide, Inc v FLS
Transp, Inc, 772 NW2d 528, 534 (Minn App, 2009); Deloitte & Touche v Gencor Indus, Inc, 929
So 2d 678, 684 (Fla App, 2006); Titan Indemnity Co v Hood, 895 So2d 138, 148 (Miss, 2004);
Net2Phone, Inc v Superior Court, 109 Cal App 4th 583, 588; 135 Cal Rptr 2d 149 (2003); Grott v
Jim Barna Log Sys-Midwest, Inc, 794 NE2d 1098, 1104-1105 (Ind App, 2003); Brinson v Martin,
220 Ga App 638, 640; 469 SE2d 537 (Ga App, 1996).

Under this doctrine, nonsignatories to an agreement may be bound by, and enforce, forum-
selection clauses where, under the circumstances, the nonsignatories enjoyed a “sufficiently close
nexus to the dispute or to another signatory such that it was foreseeable that they would be bound.”
Franlink, 50 F4th at 439 (quotation marks and citation omitted). In applying this standard, courts

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consider various factors, including “(1) common ownership between the signatory and the non-
signatory, (2) direct benefits obtained from the contract at issue, (3) knowledge of the agreement
generally[,] and (4) awareness of the forum selection clause particularly.” Id. at 442. That said,
these factors are not exclusive; “the closely-related doctrine is context specific and is determined
only after weighing the significance of the facts relevant to the particular case at hand” rather than
being subject to a “rigid test.” Id.

As a matter of first impression, we adopt the closely-related doctrine; we are persuaded by
the weight of federal and state authority on this issue. But recognizing that the trial court had
neither the benefit of our decision that the doctrine applies in Michigan nor complete briefing from
the parties to properly situate the facts of the case within the closely-related doctrine’s framework,
we conclude that a remand is appropriate for the trial court to apply the doctrine in the first instance
and determine whether plaintiff is bound by the forum-selection clause at issue. The trial court
should provide the parties an opportunity to supplement the record and may, in its discretion, allow
discovery to develop the record as needed.

Applying the closely-related doctrine to these circumstances, the trial court’s analytical
focus will be whether plaintiff had a sufficiently close nexus to the Tribe in this particular context
such that it was foreseeable that plaintiff would be bound by the general counsel contract and
therefore the forum-selection clause. Without constraining the trial court or the parties in how
they ultimately develop and analyze the issue, we offer the following commentary based on the
record now before us and the equitable factors delineated in Franlink, 50 F4th at 442.

First, considering common ownership, see id., plaintiff describes itself in its complaint as
a “wholly owned entity of the Tribe.” Under the Tribal Code, plaintiff is an “instrumentality of
the Tribe,” Sault Ste. Marie Tribe of Chippewa Indians, Tribal Code § 94.101, a “subordinate
organization of the Board of Directors of the Tribe,” id. § 94.105(1), and, “[f]or purposes of
taxation, civil jurisdiction and regulatory jurisdiction, . . . a subordinate arm of the Tribe and . . .
entitled to all of the privileges and immunities of the Tribe,” id. § 94.105(2). Additionally, the
members of the Tribe’s board of directors are also the members of plaintiff’s management board
and the chair of the Tribe’s board is also the chair of plaintiff’s board. Id. § 94.108(2)-(3). On
these facts, the common-ownership factor weighs in favor of plaintiff being bound. See Franlink,
50 F4th at 443.

Second, we consider direct benefits obtained from the contract. See id. at 442. Here, the
record is somewhat unclear as to whether plaintiff directly benefited from the contract by using
legal services provided per the agreement. The June 2020 general counsel contract states that the
firm would provide legal services as directed by the Tribe, and shortly after the contract was signed
the firm proposed in writing to the Tribe that “as General Counsel we can take on this case,”
referring to the federal lawsuit in which Kewadin was a defendant. But plaintiff’s complaint also
alleges that plaintiff’s management board (i.e., not the Tribe) “engaged” defendants to represent
plaintiff. Although it is entirely possible that the parties reasonably understood and accepted that
engagement to be under the auspices of the firm’s general counsel arrangement with the Tribe, the
parties should have an opportunity to fill any gaps in the record on this question for the trial court’s
informed consideration.

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Third, we consider knowledge of the agreement generally and fourth, we consider
awareness of the forum-selection clause particularly. See Franlink, 50 F4th at 442. The record
appears to demonstrate that plaintiff was aware of both because, again, the members of the Tribe’s
board of directors, which entered into the general counsel contract with defendants, are also the
members of plaintiff’s management board, which, according to plaintiff’s complaint, engaged
defendants to represent plaintiff. The record also shows that the chair of the Tribe’s board, who
was also the chair of plaintiff’s board, personally signed the general counsel contract. Insofar as
the record demonstrates that plaintiff knew of the general counsel contract generally and its forum-
selection clause in particular, these factors also weigh in favor of plaintiff being bound.

Finally, we reiterate that the above factors are not exclusive, the closely-related doctrine is
context-specific, and the trial court must “weigh[] the significance of the facts relevant to the
particular case at hand.” Id. The ultimate question for the trial court on remand is whether plaintiff,
under these particular circumstances, had a sufficiently close nexus to the Tribe such that it was
foreseeable that plaintiff would be bound by the forum-selection clause in the general counsel
contract. See id. at 439.
2. ENFORCEABILITY UNDER MICHIGAN LAW

Plaintiff’s only other argument on appeal regarding the forum-selection clause is that it is
unenforceable under Michigan law. “In general, Michigan courts enforce forum-selection clauses,
and Michigan’s public policy favors the enforcement of contractual forum-selection clauses and
choice-of-law provisions.” Superior Roll, LLC v Mach Mktg Int’l, LLC, ___ Mich App __, _;
__ NW3d ___ (2024) (Docket No. 369279); slip op at 4. “A party seeking to avoid a contractual
forum-selection clause bears a heavy burden of showing that the clause should not be enforced.”
Turcheck, 272 Mich App at 348. But plaintiff argues that under MCL 600.745,5 which requires

5
MCL 600.745 provides, in relevant part:

(1) As used in this section, “state” means any foreign nation, and any state,
district, commonwealth, territory, or insular possession of the United States.

---

(3) If the parties agreed in writing that an action on a controversy shall be
brought only in another state and it is brought in a court of this state, the court shall
dismiss or stay the action, as appropriate, unless any of the following occur:

(a) The court is required by statute to entertain the action.

(b) The plaintiff cannot secure effective relief in the other state for reasons
other than delay in bringing the action.

(c) The other state would be a substantially less convenient place for the
trial of the action than this state.

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courts to dismiss or stay an action under certain circumstances “[i]f the parties agreed in writing
that an action on a controversy shall be brought only in another state,” MCL 600.745(3), the word
“state” is defined as “any foreign nation, and any state, district, commonwealth, territory, or insular
possession of the United States,” MCL 600.745(1)—a list of jurisdictions that does not expressly
include Indian tribes. Therefore, plaintiff argues, the forum-selection clause at issue here cannot
be enforced.

We reject plaintiff’s argument. As an initial matter, plaintiff did not raise this objection in
the trial court proceedings.

In civil cases, Michigan follows the “raise or waive” rule of appellate review.
Under that rule, litigants must preserve an issue for appellate review. To preserve
an issue, the party asserting error must demonstrate that the issue was raised in the
trial court. Moreover, the moving party must show that the same basis for the error
claimed on appeal was brought to the trial court’s attention. If a litigant does not
raise an issue in the trial court, this Court has no obligation to consider the issue.
However, this Court may overlook preservation requirements if the failure to
consider the issue would result in manifest injustice, if consideration is necessary
for a proper determination of the case, or if the issue involves a question of law and
the facts necessary for its resolution have been presented. [Tolas Oil & Gas
Exploration Co v Bach Servs & Mfg, LLC, 347 Mich App 280, 289-290; 14 NW3d
472 (2023) (quotation marks and citations omitted).]

Here, plaintiff acknowledges that in the trial court it did not raise the point that tribal jurisdictions
are not “states” under MCL 600.745. We therefore can consider the issue waived. However, this
Court may address an unpreserved issue if it raises a question of law and the necessary facts have
been presented. Tolas, 347 Mich App at 289-290. Because those circumstances are present here,
we choose to address the issue.

Plaintiff is correct that MCL 600.745 does not expressly define “state” as including tribal
nations. But nor does MCL 600.745 explicitly prohibit courts from enforcing a forum-selection
clause that requires parties to litigate in a forum that is not expressly included in the statute’s scope.
And MCR 2.116(C)(7) provides for dismissal on grounds of “an agreement . . . to litigate in a
different forum,” without specifying that the forum must be independently designated or approved
by statute. Significantly, Indian tribes have long been “recognized . . . as distinct, independent
political communities qualified to exercise many of the powers and prerogatives of self-
government,” Plains Commerce Bank v Long Family Land & Cattle Co, 554 US 316, 327; 128 S
Ct 2709; 171 L Ed 2d 457 (2008) (quotation marks and citation omitted), and “[t]ribal courts play

(d) The agreement as to the place of the action is obtained by
misrepresentation, duress, the abuse of economic power, or other unconscionable
means.

(e) It would for some other reason be unfair or unreasonable to enforce the
agreement.

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a vital role in tribal self-government,” Iowa Mut Ins Co v LaPlante, 480 US 9, 14; 107 S Ct 971;
94 L Ed 2d 10 (1987). Consequently, interests of comity weigh in favor of treating such
jurisdictions comparably to other states and foreign nations for purposes of interpreting and
enforcing a contract’s forum-selection clause—particularly where, as here, a tribe itself has agreed
by contract that its court is the proper forum. See Bird v Glacier Electric Coop, Inc, 255 F3d 1136,
1142 (CA 9, 2001) (“The importance of tribal courts and the dignity we accord their decisions will
weigh in favor of comity . . . .”); Burrell v Armijo, 456 F3d 1159, 1173 (CA 10, 2006) (recognizing
that federal policies instruct courts “to provide great deference to tribal court systems”).

Plaintiff makes no argument that the tribal court named in the contract would be incapable
of resolving the dispute. See Sault Ste. Marie Tribe of Chippewa Indians, Tribal Code § 81.103
(providing for tribal court jurisdiction “[w]here the Plaintiff is the Tribe or a Tribal entity”). Nor
does plaintiff contend that any of the equitable exceptions enumerated in MCL 600.745(3)
precludes or weighs against enforcement of the clause. Absent a compelling reason grounded in
law or equity, failing to enforce a forum-selection clause “would unduly interfere with the parties’
freedom to contract and should generally be avoided.” Turcheck, 272 Mich App at 350. Thus,
plaintiff’s argument under MCL 600.745, without more, is inadequate to meet its “heavy burden
of showing that the clause should not be enforced.” Id. at 348.

C. DISMISSAL WITH OR WITHOUT PREJUDICE

Finally, plaintiff contends that even if dismissal were appropriate, the trial court erred by
dismissing the case with prejudice as opposed to without prejudice. We agree.

“The decision whether to grant dismissal with or without prejudice, by definition,
determines whether a party may refile a claim or whether the claim is permanently barred. Thus,
in deciding whether dismissal should be with or without prejudice, the trial court should consider
whether the doctrine of res judicata would bar subsequent actions involving the same claim.” ABB
Paint Finishing, Inc v Nat’l Union Fire Ins Co of Pittsburgh, 223 Mich App 559, 562-563; 567
NW2d 456 (1997). An action can be barred under the doctrine of res judicata only when the prior
action was adjudicated “on the merits.” Richards v Tibaldi, 272 Mich App 522, 531; 726 NW2d
770 (2006).

As we have determined that the trial court erred by dismissing this case on grounds of tribal
sovereign immunity, that leaves the forum-selection clause as a potentially proper basis for
dismissal, should the trial court conclude on remand that plaintiff is bound by that clause under
the closely-related doctrine. Our caselaw is clear: “A dismissal based on a contractual forum-
selection clause is not an adjudication on the merits.” Turcheck, 272 Mich App at 351.
Accordingly, such dismissal would not, under the doctrine of res judicata, bar plaintiff from
refiling the action in tribal court. Therefore, if on remand the trial court agrees with defendants
that plaintiff is bound by the forum-selection clause, dismissal of plaintiff’s claims on such grounds
would be “properly characterized as a dismissal without prejudice,” id., and the trial court’s entry
of judgment should so state.

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IV. CONCLUSION

In sum, and for the reasons stated, plaintiff’s claims are not barred by tribal sovereign
immunity, and we remand for the trial court to apply the “closely related” doctrine in the first
instance to determine whether plaintiff is bound by the forum-selection clause.6 Because dismissal
based on a forum-selection clause is not an adjudication on the merits, should the trial court
conclude on remand that plaintiff is bound by the forum-selection clause, dismissal must be
characterized as without prejudice.

Accordingly, the trial court’s order is reversed in part and vacated in part, and we remand
for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff, as
the prevailing party, may tax costs. MCR 7.219(A).

/s/ Daniel S. Korobkin
/s/ Christopher P. Yates
/s/ Kathleen A. Feeney

6
Because we are remanding for further proceedings on the forum-selection issue, we decline to
reach defendants’ arguments (which the trial court also did not reach) that dismissal was required
under the doctrines of infringement, preemption, and exhaustion of tribal remedies. Should the
trial court determine on remand that dismissal is not warranted on forum-selection grounds,
defendants are free to renew their request for summary disposition on these remaining issues.

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