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Monday, June 27, 2005

Case Summaries

Today's e-Journal includes summaries of four Michigan Court of Appeals published opinions under Criminal Law, Employment & Labor Law/School Law, Municipal, and Real Property; one Michigan Court of Appeals published-after-release opinion under Civil Rights/Employment & Labor Law; and one Sixth Circuit Court of Appeals opinion under Attorneys/Litigation. Cases appear under the following practice areas:

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Case Summaries

Attorneys
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This summary also appears under Litigation

 

Issues: The timeliness of motions for attorney fees under Fed.R.Civ.P. 54(d)(2)(B); Whether a motion for attorney fees under Rule 54(d)(2)(B) is timely if filed within 14 days of the district court’s denial of a timely filed Rule 59(e) motion for new trial, amendment of judgment; Defining “judgment” (Rule 54 (a)); The effect of the filing of post-judgment motions on the time for appeal; Brown v. Local 58 Int’l Bhd. of Elec. Eng’rs; Fed.R.Civ.P. 6(a) providing the computation for the 10-day period applicable to Rule 50(b), 52(b), or 59 motions; Rule 4(a)(4)(A)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Miltimore Sales, Inc. v. International Rectifier, Inc.

e-Journal Number: 27797

Judge(s): Martin, Rogers, and Forester

 

In an issue of first impression regarding the timeliness of motions for attorney fees under Rule 54(d)(2)(B), the court held because a timely filed Rule 59(e) motion destroys the finality of judgment, a motion for attorney fees filed pursuant to Rule 54(d)(2)(B) is timely if filed within 14 days of the order disposing of the Rule 59(e) motion. After a verdict in favor of plaintiff on December 19, 2001, the district court entered a judgment. On January 2, 2002, defendant timely filed a motion construed to be a Rule 59(e) motion. On February 12, 2003, the district court denied the motion. On February 26, 14 days later, plaintiff filed its only petition for attorney fees and costs. The district court dismissed the motion as untimely. Defendant argued the “judgment” in this case was entered on December 19, 2001 when the district court entered the order on the jury verdict, and the petition for attorney fees must have been filed by January 2, 2002. Plaintiff argued the judgment did not become an “order from which an appeal lies” under Rule 54(a) and was not the “final judgment” until February 12, 2003, when the district court denied defendant’s timely Rule 59(e) motion. Relying on Brown, the court agreed, holding if a timely filed Rule 59(e) motion prevents an appeal of the underlying judgment until the Rule 59(e) motion is disposed of, logically, the judgment cannot be “an order from which an appeal lies” until the disposition of the Rule 59(e) motion. Thus, plaintiff’s attorney fee petition was timely. Reversed and remanded for consideration of plaintiff’s fee application.

 

Full Text Opinion

Civil Rights
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This summary also appears under Employment & Labor Law

 

Issues: Sexual harassment; Whether claims were barred by an agreement to arbitrate; Heurtebise v. Reliable Bus. Computers, Inc.; Rushton v. Meijer, Inc. (On Remand); Whether the arbitration agreement language barred claims over a year old; Whether the one-year limitations period was unreasonable and invalid; Timko v. Oakwood Custom Coating, Inc.; Heightened judicial scrutiny; Whether the waiver of the statutory limitations period was knowing, intelligent, and voluntary

Court: Michigan Court of Appeals (Published After Release)

Case Name: Hicks v. EPI Printers, Inc.

e-Journal Number: 27801

Judge(s): Per Curiam – Cavanagh, Jansen, and Gage

 

[This opinion was previously released as an unpublished opinion on 4/12/05.] Defendant-former employer was properly granted summary disposition of plaintiff’s sexual harassment action on the ground plaintiff’s claims were barred by an agreement to arbitrate. Plaintiff received an employment manual when she became a full-time employee, as well as a receipt form she signed, acknowledging she had received, read, and understood the manual. While plaintiff disputed whether the parties entered into an agreement to arbitrate, the court noted the manual contained no express language stating its terms were not intended to create an enforceable agreement. While the manual did state it would not answer all questions, a fair reading led to the conclusion the responsibilities intended were contractual. As in Rushton, there was an at-will relationship, a manual with contractual terms including mandatory arbitration and the employer’s exclusive right to prospectively alter the terms of the relationship, and the fact the employer made no changes between the beginning and the end of the relationship. The parties had a contract including a detailed arbitration provision, which appeared in bold-faced text. Further, even if the manual itself did not create binding arbitration, which the court held it did, defendant prevailed because plaintiff signed the receipt form including a specific provision for arbitration. Affirmed.

 

Full Text Opinion

 

This summary also appears under Employment & Labor Law

 

Issues: Race discrimination; Allegation the defendant-employer refused to rehire plaintiff after he was released from prison because of his race; Indirect evidence of discrimination; Whether two employees were similarly situated; Legitimate nondiscriminatory reason for the decision; Direct evidence of discriminatory animus; Denial of motion to compel discovery; Sanctions for filing a frivolous motion for summary disposition; Limitation on plaintiff’s argument in response to defendant’s motion for summary disposition

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Ford Visteon Motor Co.

e-Journal Number: 27771

Judge(s): Per Curiam – Sawyer, Markey, and Murray

 

The court upheld summary disposition for the defendant-employer on plaintiff’s claim alleging defendant refused to rehire him after he was released from prison because of his race, concluding plaintiff and another employee who was rehired were not similarly situated. Plaintiff unsuccessfully attempted to get his job back with defendant after he had spent approximately 17-1/2 years in prison for his conviction for murdering his wife. Defendant produced evidence the other employee, who was white, was imprisoned in the county jail for less than a year for a much less serious offense. Further, the individual who declined to rehire plaintiff was not involved in the decision to rehire the other employee. In addition, unlike plaintiff, the other employee retained his union membership during his incarceration and was still a union member when he was rehired. Since the two individuals were not similarly situated, the evidence of the other employee’s reinstatement did not give rise to an inference defendant discriminated against plaintiff based on his race in declining to rehire him. The court further concluded defendant provided a legitimate, nondiscriminatory reason for its decision – plaintiff was convicted of murder and had been incarcerated for more than 17 years. Affirmed.

 

Full Text Opinion

Construction Law
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This summary also appears under Contracts

 

Issues: Michigan Builders’ Trust Fund Act (MBTFA) (MCL 570.151 et seq.); Judicially created public construction project defense; Waiver of defense by not properly pleading it as required by the court rules and not raising the issue in a pretrial motion or at trial; Whether plaintiff had to prove as part of its prima facie MBTFA case the underlying construction project was private rather than a public works project; Whether a valid contract was formed between the parties for work on a project; Defendants’ motion to amend the judgment, findings of fact, and conclusions of law; Whether the trial court abused its discretion in summarily denying defendants’ motion

Court: Michigan Court of Appeal (Unpublished)

Case Name: Midwest Eng’g v. SWS Eng’g

e-Journal Number: 27772

Judge(s): Per Curiam – O’Connell and Markey; Concurring in part, Dissenting in part – Talbot

 

Concluding the nature of the underlying construction project is not part of a plaintiff’s prima facie MBTFA case, but rather, establishing the judicially created public works exception is a “defense” or an “affirmative defense” subject to waiver if not timely raised, the court held defendants waived the defense by not properly pleading it as required by the court rules and by not raising the issue either in a pretrial motion or at trial. Defendants argued the trial court erred in finding defendant-Stellwagen individually liable to plaintiff for $50,151.95 from two projects under the MBTFA because the MBTFA did not apply to those projects. However, defendants pleaded only a general denial to plaintiff’s MBTFA claim and did not state they were relying on the public works exception to deny liability, as required by MCR 2.111(D). Defendants did not raise the issue until four months after the conclusion of proofs and oral argument, when they submitted written proposed findings of fact and conclusions of law to the trial court. On page 26 of the 34-page document, they proposed the trial court find the two projects involved “public contracts,” and on pages 31-32 proposed the public works exception as one of alternative reasons why the MBTFA claim should be dismissed. The court concluded defendants’ argument was far too late. The court also held the trial court did not err in finding the parties formed a valid contract for work on a third project. Affirmed.

 

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Contracts
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Issues: Breach of contract claim; Whether a clause in the parties’ contract precluded defendant from presenting evidence as to the ways tonnages can be measured; “Usage of the trade”; Cross-examination of a witness; Whether the trial court erred in redacting a copy of the contract given to the jury; Directed verdict on defendant’s counterclaim for fraud

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mark Schaffer Excavating & Trucking, Inc. v. Barrett Paving Materials, Inc.

e-Journal Number: 27776

Judge(s): Per Curiam – Owens, Cavanagh, and Neff

 

Since the parties’ contract was ambiguous regarding how the material was to be weighed, the trial court did not err in concluding extrinsic evidence on the issue of the parties’ intent was admissible and allowing defendant to present evidence as to the ways tonnages can be measured, including counting buckets, certified scales, and surveys, as well as their relative reliabilities and uses in the trade. Plaintiff agreed to crush rock at defendant’s sand and gravel pit, and was to be paid by the ton. The court agreed with the trial court the contract contained no provision specifying or suggesting how the material was to be weighed. Since the material had to be weighed in order to calculate payment, measurement was essential to completion of the contract. Yet the contract was silent on the subject. Plaintiff argued much of the evidence produced concerning the possible methodologies for measuring tonnage constituted “usage of the trade” and such customary practices were specifically excluded by the contract as evidence of the parties’ intent. However, the evidence was presented to resolve an ambiguity created by omission of a term. Thus, even if it was “usage of the trade,” the clause did not preclude use of the evidence to determine the parties’ intent concerning a term not used in the contract. The judgment of no cause of action and the directed verdict in plaintiff’s favor on defendant’s fraud counterclaim were affirmed.

 

Full Text Opinion

 

This summary also appears under Construction Law

 

Issues: Michigan Builders’ Trust Fund Act (MBTFA) (MCL 570.151 et seq.); Judicially created public construction project defense; Waiver of defense by not properly pleading it as required by the court rules and not raising the issue in a pretrial motion or at trial; Whether plaintiff had to prove as part of its prima facie MBTFA case the underlying construction project was private rather than a public works project; Whether a valid contract was formed between the parties for work on a project; Defendants’ motion to amend the judgment, findings of fact, and conclusions of law; Whether the trial court abused its discretion in summarily denying defendants’ motion

Court: Michigan Court of Appeal (Unpublished)

Case Name: Midwest Eng’g v. SWS Eng’g

e-Journal Number: 27772

Judge(s): Per Curiam – O’Connell and Markey; Concurring in part, Dissenting in part – Talbot

 

Concluding the nature of the underlying construction project is not part of a plaintiff’s prima facie MBTFA case, but rather, establishing the judicially created public works exception is a “defense” or an “affirmative defense” subject to waiver if not timely raised, the court held defendants waived the defense by not properly pleading it as required by the court rules and by not raising the issue either in a pretrial motion or at trial. Defendants argued the trial court erred in finding defendant-Stellwagen individually liable to plaintiff for $50,151.95 from two projects under the MBTFA because the MBTFA did not apply to those projects. However, defendants pleaded only a general denial to plaintiff’s MBTFA claim and did not state they were relying on the public works exception to deny liability, as required by MCR 2.111(D). Defendants did not raise the issue until four months after the conclusion of proofs and oral argument, when they submitted written proposed findings of fact and conclusions of law to the trial court. On page 26 of the 34-page document, they proposed the trial court find the two projects involved “public contracts,” and on pages 31-32 proposed the public works exception as one of alternative reasons why the MBTFA claim should be dismissed. The court concluded defendants’ argument was far too late. The court also held the trial court did not err in finding the parties formed a valid contract for work on a third project. Affirmed.

 

Full Text Opinion

Criminal Law
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Issues: Whether assault with intent to do great bodily harm less than murder is an inferior offense of assault with intent to commit murder within the meaning of MCL 768.32; People v. Cornell; People v. Mendoza; People v. Taylor; Prosecutorial misconduct

Court: Michigan Court of Appeals (Published)

Case Name: People v. Brown

e-Journal Number: 27803

Judge(s): Griffin and Bandstra; Concurrence – Hoekstra

 

Deciding an issue of first impression, using the analysis in Cornell and Mendoza the court held assault with intent to do great bodily harm less than murder is a necessarily included lesser offense of assault with intent to commit murder, and an inferior offense within the meaning of MCL 768.32(1). It is impossible to kill someone without intending to seriously injure the person in the process. Thus, it is impossible to commit the offense of assault with intent to commit murder without first committing the offense of assault with intent to do great bodily harm less than murder. Because the lesser mens rea of intent to do great bodily harm is included in the greater mens rea of intent to kill in the context of assault offenses, the elements of assault with intent to do great bodily harm less than murder are completely subsumed in the offense of assault with intent to commit murder. Therefore, the offense of assault with intent to do great bodily harm is a necessarily included lesser offense of assault with intent to commit murder, and is an inferior offense within the meaning of the relevant statute. In this case, the lack of the actual intent to kill was the only element differentiating assault with intent to do great bodily harm from assault with intent to commit murder. A rational view of the evidence supported the charge of assault with intent to commit great bodily harm. The trial court properly denied defendant’s objection to instructing the jury on assault with intent to do great bodily harm less than murder. Affirmed.

 

Full Text Opinion

 

Issues: Whether the trial court erred in instructing the jury on the lesser included offense of second-degree murder; Whether there was sufficient evidence to demonstrate defendant aided and abetted in the victim’s murder; Whether the trial court erred in denying the jury’s request for the “witnesses’ statement”; Sentencing; Whether the trial court erred in scoring OV 14; Whether there was a Blakely v. Washington violation; People v. Claypool

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Daniel

e-Journal Number: 27782

Judge(s): Per Curiam – Sawyer, Markey, and Murray

 

There was sufficient evidence to support the trial court’s instruction of second-degree murder under an aiding and abetting theory. There was evidence Howard caused the death of the victim with malice and without justification. There was ample evidence to demonstrate the defendant aided and abetted in the crime. There was evidence the crime charged was committed by defendant or some other person (Howard). The evidence showed after defendant and Howard went into the bathroom together, Howard went upstairs and quickly exited the residence. At that point, defendant handed a witness a packet of heroin and instructed her not to say anything about what she saw or heard immediately preceding the incident, which were acts assisting in the commission of the crime. Several months after the crime, defendant appeared at the home of the witness wearing the victim’s gold necklace, about which she had joked with the victim. From this evidence, it could be inferred the defendant either had the intent to commit second-degree murder or he knew Howard intended the commission of the crime based on defendant’s comments and later possession of the victim’s necklace. The trial court did not err in instructing the jury on the lesser included offense of second-degree murder on the aiding and abetting theory. Affirmed.

 

Full Text Opinion

 

Issues: Double jeopardy; People v. Bartlett; Ineffective assistance of counsel; Prosecutorial misconduct; People v. Effinger; Sentencing; Whether defendant’s sentence was cruel and unusual; People v. Compeau; Whether there was a Blakely v. Washington issue; People v. Claypool

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Davis

e-Journal Number: 27779

Judge(s): Per Curiam – Gage, Whitbeck, and Saad

 

Since defendant incorrectly argued the jury convicted him of two drug offenses under MCL 333.7403 but he was actually convicted of one offense under § 7401 and one under § 7403, there was no double jeopardy violation. In Bartlett, the court held double jeopardy did not bar two convictions under § 7401 if the facts showed two different deliveries at different times and they were separately negotiated and paid. Defendant’s two possession convictions involved separate and distinct offenses. The jury convicted defendant under § 7401(2)(a)(ii) for his possession of 420.5 grams of cocaine. The evidence indicated when the police seized the cocaine from defendant, he was not in his apartment, but was sitting in the driver’s seat of a car. The police found the cocaine and a loaded handgun, concealed under defendant’s pant leg. The evidence also showed the cocaine, which was in seven separate packets, was packaged in a manner suggesting delivery. The jury also convicted defendant under § 7403(2)(a)(v) based on evidence of his constructive possession of a smaller quantity of cocaine in his apartment, which was found inside a shoe in his bedroom. The police also found two firearms and a digital scale in the apartment. Thus, the evidence showed defendant possessed two separate quantities of cocaine in separate locations, in different contexts, and for different purposes. Affirmed.

 

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Issues: Sufficient evidence of specific intent to rob to support conviction of assault with intent to rob while armed; Intoxication as a defense (MCL 768.37); Ineffective assistance of counsel for alleged failure to investigate or call alibi witnesses

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Glover

e-Journal Number: 27777

Judge(s): Per Curiam – Gage, Whitbeck, and Saad

 

Defendant had no valid intoxication defense since he presented no proof his intoxication resulted from the use of a legally obtained and properly used medication or other substance and offered no proof he did not know and reasonably should not have known he would become intoxicated. Examining the evidence, a rational trier of fact could find beyond a reasonable doubt defendant had the required specific intent to rob to support his conviction of assault with intent to rob while armed. Defendant approached the front driver’s side window of the victim’s car with a gun in his hand, tapped the gun on the window, and stated, “give it up, give it up.” The victim, an off-duty Detroit police officer, fired a number of shots through the driver side window from his service revolver at defendant, who was shot and fell to the ground. Defendant contended there was insufficient evidence of specific intent to rob because he was intoxicated and could not form the required intent. MCL 768.37, as amended effective 9/1/02, applied and defendant had no valid intoxication defense under subsection (2) of the statute. Affirmed.

 

Full Text Opinion

 

Issues: Whether the trial court properly dismissed the prosecution’s case on the ground of prearrest delay; People v. Herndon; People v. Crear; Prejudice; The death of a witness; United States v. Rogers

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gonzales

e-Journal Number: 27780

Judge(s): Per Curiam – Owens, Cavanagh, and Neff

 

Since defendant’s claims of prejudice related to the alleged prearrest delay were too indefinite and speculative to satisfy the threshold requirement of “actual and substantial” prejudice, the trial court abused its discretion in dismissing the safe breaking charge. The prosecution argued the trial court erred in dismissing the safe breaking charge, finding defendant suffered actual prejudice, given the trial court admitted it made no finding the delay in defendant’s arrest was intentional. The court agreed the trial court erred in finding defendant suffered actual prejudice, but disagreed the trial court was required to find the delay was intentional. The court held the lapse of time between the alleged crime and the safe breaking charge could not have meaningfully impaired defendant’s ability to defend against the charges and affected the outcome of the proceedings. Defendant knew in June 2003, he was being charged with home invasion. The location and testimony of exculpatory witnesses relevant to that charge could have been secured then, and those witnesses would arguably also be exculpatory for the safe breaking charge, given both charges arose from the same criminal event. Further, the death of a witness is insufficient to show actual and substantial prejudice. Reversed and remanded.

 

Full Text Opinion

 

Issues: Sentencing; The “two-thirds” rule; People v. Tanner; MCL 769.34(2)(b); People v. Powe; Blakely v. Washington challenge; People v. Claypool; Ineffective assistance of counsel; Abandonment of issue on appeal due to conclusory argument and lack of supporting relevant authority

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Janes

e-Journal Number: 27769

Judge(s): Per Curiam – Gage, Whitbeck, and Saad

 

As the prosecution conceded, the trial court committed error requiring reversal when it resentenced defendant on his CSC I convictions, requiring remand for reinstatement of defendant’s original CSC I sentences. Defendant was convicted of three counts of CSC I, one count of CSC II, and one count of fourth-degree child abuse. The trial court originally sentenced him as a second habitual offender to concurrent prison terms of 35 to 45 years for the CSC I convictions, 14-1/2 to 22 years for the CSC II conviction, and to 45 days for the fourth-degree child abuse conviction. The trial court subsequently resentenced defendant to prison terms of 35 to 53 years for the CSC I convictions. Defendant argued the trial court erred in resentencing him according to the “two-thirds” rule, codified in MCL 769.34(2)(b). The Michigan Supreme Court has ruled a violation of MCL 769.34(2)(b) does not occur where, as here, the statutory maximum for the crime is life imprisonment. The court affirmed defendant’s convictions but remanded for reinstatement of his original CSC I sentences.

 

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Employment & Labor Law
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This summary also appears under Civil Rights

 

Issues: Sexual harassment; Whether claims were barred by an agreement to arbitrate; Heurtebise v. Reliable Bus. Computers, Inc.; Rushton v. Meijer, Inc. (On Remand); Whether the arbitration agreement language barred claims over a year old; Whether the one-year limitations period was unreasonable and invalid; Timko v. Oakwood Custom Coating, Inc.; Heightened judicial scrutiny; Whether the waiver of the statutory limitations period was knowing, intelligent, and voluntary

Court: Michigan Court of Appeals (Published After Release)

Case Name: Hicks v. EPI Printers, Inc.

e-Journal Number: 27801

Judge(s): Per Curiam – Cavanagh, Jansen, and Gage

 

[This opinion was previously released as an unpublished opinion on 4/12/05.] Defendant-former employer was properly granted summary disposition of plaintiff’s sexual harassment action on the ground plaintiff’s claims were barred by an agreement to arbitrate. Plaintiff received an employment manual when she became a full-time employee, as well as a receipt form she signed, acknowledging she had received, read, and understood the manual. While plaintiff disputed whether the parties entered into an agreement to arbitrate, the court noted the manual contained no express language stating its terms were not intended to create an enforceable agreement. While the manual did state it would not answer all questions, a fair reading led to the conclusion the responsibilities intended were contractual. As in Rushton, there was an at-will relationship, a manual with contractual terms including mandatory arbitration and the employer’s exclusive right to prospectively alter the terms of the relationship, and the fact the employer made no changes between the beginning and the end of the relationship. The parties had a contract including a detailed arbitration provision, which appeared in bold-faced text. Further, even if the manual itself did not create binding arbitration, which the court held it did, defendant prevailed because plaintiff signed the receipt form including a specific provision for arbitration. Affirmed.

 

Full Text Opinion

 

This summary also appears under School Law

 

Issues: Whether plaintiffs were entitled to the benefits provided under MCL

380.1236(1) to regular teachers; Whether plaintiffs were employed as substitute teachers; The state board’s administrative rule for substitute permits

Court: Michigan Court of Appeals (Published)

Case Name: Wolfe v. Wayne-Westland Cmty. Schs.

e-Journal Number: 27800

Judge(s): Talbot, Zahra, and Donofrio

 

The trial court properly granted defendant’s motion for summary disposition and dismissed the case because plaintiffs were not employed as substitute teachers within the meaning of MCL 380.1236(1) and MCL 380.1236 was the only statutory provision under which plaintiffs claimed entitlement to benefits. Plaintiff-Wolfe filed the instant action on behalf of himself and other similarly situated In School Suspension (ISS) employees. Plaintiffs claimed they were entitled to the benefits provided under MCL 380.1236(1) because (1) they were employed in the same assignments for more than 60 days and (2) they were employed as substitute teachers. The court held the trial court erred in determining plaintiffs were employed as substitute teachers. The court further held the issue was dispositive in determining whether plaintiffs were entitled to benefits pursuant to MCL 380.1236(1). Even assuming ISS positions were “specific teaching positions,” ISS employees were plainly not assigned to the position of “substitute teachers” as the term is commonly understood because they did not serve in place of anyone. Neither the ISS program nor its employees replaced any specific teaching position. Rather, it was the suspended student, not the teacher, who was absent from the classroom. Affirmed.

 

Full Text Opinion

 

This summary also appears under Civil Rights

 

Issues: Race discrimination; Allegation the defendant-employer refused to rehire plaintiff after he was released from prison because of his race; Indirect evidence of discrimination; Whether two employees were similarly situated; Legitimate nondiscriminatory reason for the decision; Direct evidence of discriminatory animus; Denial of motion to compel discovery; Sanctions for filing a frivolous motion for summary disposition; Limitation on plaintiff’s argument in response to defendant’s motion for summary disposition

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Ford Visteon Motor Co.

e-Journal Number: 27771

Judge(s): Per Curiam – Sawyer, Markey, and Murray

 

The court upheld summary disposition for the defendant-employer on plaintiff’s claim alleging defendant refused to rehire him after he was released from prison because of his race, concluding plaintiff and another employee who was rehired were not similarly situated. Plaintiff unsuccessfully attempted to get his job back with defendant after he had spent approximately 17-1/2 years in prison for his conviction for murdering his wife. Defendant produced evidence the other employee, who was white, was imprisoned in the county jail for less than a year for a much less serious offense. Further, the individual who declined to rehire plaintiff was not involved in the decision to rehire the other employee. In addition, unlike plaintiff, the other employee retained his union membership during his incarceration and was still a union member when he was rehired. Since the two individuals were not similarly situated, the evidence of the other employee’s reinstatement did not give rise to an inference defendant discriminated against plaintiff based on his race in declining to rehire him. The court further concluded defendant provided a legitimate, nondiscriminatory reason for its decision – plaintiff was convicted of murder and had been incarcerated for more than 17 years. Affirmed.

 

Full Text Opinion

Family Law
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Issues: Divorce; Child custody; Whether the trial court properly awarded the plaintiff-father sole physical and legal custody of the parties’ two minor children; Whether the trial court erred in its findings of fact and the weight it accorded statutory best interest factors MCL 722.23(a), (b), (e), (i), and (j); Foskett v. Foskett

Court: Michigan Court of Appeals (Unpublished)

Case Name: Callico v. Callico

e-Journal Number: 27784

Judge(s): Per Curiam – Gage, Whitbeck, and Saad

 

The court’s review of the entire record and the trial court’s findings of fact and rulings on the statutory best interest factors supported the trial court’s custody ruling awarding the plaintiff-father sole legal and physical custody of the parties’ two minor children. The defendant-mother argued the trial court erred in its findings of fact and the weight it accorded best interest factors (a), (b), (e), (i), and (j). The trial court correctly determined neither party was favored under factor (a), which examines the “love, affection, and other emotional ties existing between the parties and the child.” Similarly, the trial court also properly concluded neither party was favored under factor (b), which considered the “capacity and disposition of the parties involved to give the child love, affection, and to continue the education and raising of the child in his or her religion or creed, if any.” The court concluded the trial court’s decision on factor (e) focusing on the “permanence of the family unit” favoring plaintiff was clearly supported by the record. Although the trial court interviewed the children to determine their ability to state a preference as to factor (i), the trial court did not reveal their statements, but did state it found the oldest child to be of “barely sufficient age and maturity to express a preference.” The trial court noted the importance of factor (j) dealing with the promotion of a parent-child relationship between the child and the other parent, and determined both parties were deficient. The record supported the trial court’s ruling on this factor. Affirmed.

 

Full Text Opinion

Insurance
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This summary also appears under Negligence & Intentional Tort

 

Issues: Claims related to injuries plaintiff suffered in a motorcycle accident; Whether plaintiff’s injures affected his ability to lead his normal life pursuant to MCL 500.3135; Kreiner v. Fischer

Court: Michigan Court of Appeals (Unpublished)

Case Name: Karachy v. Buuly

e-Journal Number: 27793

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

Although the case was close as to whether plaintiff’s injuries sustained in a motorcycle accident affected his ability to lead his normal life, the court held the trial court did not err in granting defendant summary disposition because under the Kreiner standard, the plaintiff did not satisfy the “serious impairment of body function” threshold for the recovery of non-economic damages. Plaintiff was injured in the motorcycle accident on November 20, 2003 when defendant failed to yield the right-of-way and turned in front of him. As a result of the accident, plaintiff suffered an avulsion fracture of his right tibia, and a “first-degree” dislocated shoulder. He underwent arthroscopic surgery and his leg was placed in a cast. Plaintiff wore a sling for his shoulder injury for about six weeks. He used a wheelchair for that period because his shoulder injury prevented him from using crutches. His physician’s notes indicated he had fully recovered by March 4, 2004. Before the accident, plaintiff was a construction worker, but did not work after the accident for 14 weeks. Plaintiff never returned to his prior position and instead began a motorcycle customizing business in July 2004. At the time of his deposition, plaintiff had resumed riding motorcycles and worked 60 to 65 hours per week. He claimed pushing motorcycles up his shop ramp was sometimes hard and his knee continued to crack and sometimes buckled. The court held plaintiff failed to show his injuries coupled with any residual effects, affected a significant change in his normal life. Affirmed.

 

Full Text Opinion

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Whether the plaintiff’s accident injuries met the serious impairment of body function threshold; Kreiner v. Fischer; Constitutionality of the No-Fault Act; Shavers v. Attorney Gen.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Tewell v. Latchaw

e-Journal Number: 27792

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

The trial court correctly applied Kreiner and granted summary disposition to defendant in this case were plaintiff alleged her injuries in an accident met the serious impairment of body function threshold. Plaintiff, a passenger in a truck owned by defendant-Laura Latchaw, suffered various injuries when she was thrown from the truck after it rolled over several times. Plaintiff had her arm in a sling for two weeks and missed a month’s work as a grocery bagger. Continuing back pain led to a diagnosis of scoliosis at the thoracic spine. Plaintiff continued to suffer back and neck pain. She asserted riding a bicycle and sitting for prolonged periods of time aggravated her back and neck pains, and she cannot do heavy lifting. Even after the initial disability disappeared, plaintiff was left with continuing, and possibly permanent, back and neck pain, affecting almost every thing she does. However, Kreiner also involved plaintiffs who had long discontinued medical treatments for their injuries, and complained their lingering discomforts prevented only a few of the activities previously performed and hindered others. The court concluded, if the plaintiffs in Kreiner could not show a serious impairment in their general ability to lead normal lives, neither could plaintiff. Affirmed.

 

Full Text Opinion

Litigation
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This summary also appears under Attorneys

 

Issues: The timeliness of motions for attorney fees under Fed.R.Civ.P. 54(d)(2)(B); Whether a motion for attorney fees under Rule 54(d)(2)(B) is timely if filed within 14 days of the district court’s denial of a timely filed Rule 59(e) motion for new trial, amendment of judgment; Defining “judgment” (Rule 54 (a)); The effect of the filing of post-judgment motions on the time for appeal; Brown v. Local 58 Int’l Bhd. of Elec. Eng’rs; Fed.R.Civ.P. 6(a) providing the computation for the 10-day period applicable to Rule 50(b), 52(b), or 59 motions; Rule 4(a)(4)(A)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Miltimore Sales, Inc. v. International Rectifier, Inc.

e-Journal Number: 27797

Judge(s): Martin, Rogers, and Forester

 

In an issue of first impression regarding the timeliness of motions for attorney fees under Rule 54(d)(2)(B), the court held because a timely filed Rule 59(e) motion destroys the finality of judgment, a motion for attorney fees filed pursuant to Rule 54(d)(2)(B) is timely if filed within 14 days of the order disposing of the Rule 59(e) motion. After a verdict in favor of plaintiff on December 19, 2001, the district court entered a judgment. On January 2, 2002, defendant timely filed a motion construed to be a Rule 59(e) motion. On February 12, 2003, the district court denied the motion. On February 26, 14 days later, plaintiff filed its only petition for attorney fees and costs. The district court dismissed the motion as untimely. Defendant argued the “judgment” in this case was entered on December 19, 2001 when the district court entered the order on the jury verdict, and the petition for attorney fees must have been filed by January 2, 2002. Plaintiff argued the judgment did not become an “order from which an appeal lies” under Rule 54(a) and was not the “final judgment” until February 12, 2003, when the district court denied defendant’s timely Rule 59(e) motion. Relying on Brown, the court agreed, holding if a timely filed Rule 59(e) motion prevents an appeal of the underlying judgment until the Rule 59(e) motion is disposed of, logically, the judgment cannot be “an order from which an appeal lies” until the disposition of the Rule 59(e) motion. Thus, plaintiff’s attorney fee petition was timely. Reversed and remanded for consideration of plaintiff’s fee application.

 

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Municipal
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This summary also appears under Real Property

 

Issues: Right to Farm Act (RTFA) (MCL 284.471 et seq.); Whether defendants’ poultry operations constituted a “farm” under the RTFA; Whether the RTFA preempted enforcement of the plaintiff-township’s zoning ordinance; Generally Accepted Agricultural and Management Practices (GAAMPs) of the RTFA; Nuisance per se; Whether the defendants’ affidavits should be disregarded due to conflict with one of the defendant’s statements in a prior letter; Laches; Failure to exhaust administrative remedies under the RTFA; Whether plaintiff failed to state a claim on which relief could be granted

Court: Michigan Court of Appeals (Published)

Case Name: Charter Twp. of Shelby v. Papesh

e-Journal Number: 27804

Judge(s): Per Curiam – Kelly, Sawyer, and Wilder

 

The trial court erred in granting the plaintiff-township summary disposition because genuine issues of material fact existed regarding whether the defendants’ poultry operations were commercial in nature or in compliance with the applicable GAAMPs, and the RTFA preempts enforcement of zoning ordinances conflicting with it. Defendants bought 1.074 acres of property in the township in 1995. The property had a farmhouse and two chicken coops on it. Defendants bought and began raising a flock of chickens using the preexisting chicken coops. Following development in the area, neighbors began to complain about defendants’ poultry operation. The court held according to the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to GAAMPs. It was clear the poultry raised on defendants’ property were “farm products” since they were useful to human beings and produced by agriculture. The raising of poultry on defendants’ property constituted a “farm operation” since it involved the “harvesting of farm products.” Defendants’ evidence could support a finding the poultry operation was at least partially commercial in nature. If defendants’ farm is commercial in nature and in compliance with the GAAMPs, it is a farm operation protected by the RTFA. Plaintiff’s ordinance conflicted with the RTFA to the extent it permitted plaintiff to preclude a protected farm operation by limiting the size of a farm. Reversed in part, affirmed in part, and remanded.

 

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Negligence & Intentional Tort
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Issues: Claims related to injuries plaintiff suffered in a motorcycle accident; Whether plaintiff’s injures affected his ability to lead his normal life pursuant to MCL 500.3135; Kreiner v. Fischer

Court: Michigan Court of Appeals (Unpublished)

Case Name: Karachy v. Buuly

e-Journal Number: 27793

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

Although the case was close as to whether plaintiff’s injuries sustained in a motorcycle accident affected his ability to lead his normal life, the court held the trial court did not err in granting defendant summary disposition because under the Kreiner standard, the plaintiff did not satisfy the “serious impairment of body function” threshold for the recovery of non-economic damages. Plaintiff was injured in the motorcycle accident on November 20, 2003 when defendant failed to yield the right-of-way and turned in front of him. As a result of the accident, plaintiff suffered an avulsion fracture of his right tibia, and a “first-degree” dislocated shoulder. He underwent arthroscopic surgery and his leg was placed in a cast. Plaintiff wore a sling for his shoulder injury for about six weeks. He used a wheelchair for that period because his shoulder injury prevented him from using crutches. His physician’s notes indicated he had fully recovered by March 4, 2004. Before the accident, plaintiff was a construction worker, but did not work after the accident for 14 weeks. Plaintiff never returned to his prior position and instead began a motorcycle customizing business in July 2004. At the time of his deposition, plaintiff had resumed riding motorcycles and worked 60 to 65 hours per week. He claimed pushing motorcycles up his shop ramp was sometimes hard and his knee continued to crack and sometimes buckled. The court held plaintiff failed to show his injuries coupled with any residual effects, affected a significant change in his normal life. Affirmed.

 

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Issues: Premises liability; Slip and fall on ice or snow in a parking lot; Whether the condition had a special aspect making it unavoidable and unreasonably dangerous; Lugo v. Ameritech Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: McCraw v. Blue Goose Inn

e-Journal Number: 27791

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

The trial court properly granted the defendant-premises owner summary disposition because plaintiff failed to present evidence creating a genuine issue of material fact establishing the hazard was effectively unavoidable and thus, unreasonably dangerous. Plaintiff slipped and fell on snow or ice as she walked to her car in an alley used by employees for parking next to defendant’s building. Plaintiff acknowledged the condition was open and obvious, but claimed it was effectively unavoidable—a special aspect making it unreasonably dangerous. Plaintiff contended the hazard was essentially unavoidable and analogous to the first “special aspect” in Lugo. However, plaintiff’s deposition testimony and the other evidence presented did not indicate there was only one way for plaintiff to access her car. Her claim a snow mound blocked her path conflicted with her testimony indicating when she left the car, she was able to avoid the mound by walking on the pavement between the car and the mound. The mound was only on the driver’s side. Plaintiff did not testify about her ability to access the car from the passenger side. Affirmed.

 

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This summary also appears under Insurance

 

Issues: Automobile negligence; Whether the plaintiff’s accident injuries met the serious impairment of body function threshold; Kreiner v. Fischer; Constitutionality of the No-Fault Act; Shavers v. Attorney Gen.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Tewell v. Latchaw

e-Journal Number: 27792

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

The trial court correctly applied Kreiner and granted summary disposition to defendant in this case were plaintiff alleged her injuries in an accident met the serious impairment of body function threshold. Plaintiff, a passenger in a truck owned by defendant-Laura Latchaw, suffered various injuries when she was thrown from the truck after it rolled over several times. Plaintiff had her arm in a sling for two weeks and missed a month’s work as a grocery bagger. Continuing back pain led to a diagnosis of scoliosis at the thoracic spine. Plaintiff continued to suffer back and neck pain. She asserted riding a bicycle and sitting for prolonged periods of time aggravated her back and neck pains, and she cannot do heavy lifting. Even after the initial disability disappeared, plaintiff was left with continuing, and possibly permanent, back and neck pain, affecting almost every thing she does. However, Kreiner also involved plaintiffs who had long discontinued medical treatments for their injuries, and complained their lingering discomforts prevented only a few of the activities previously performed and hindered others. The court concluded, if the plaintiffs in Kreiner could not show a serious impairment in their general ability to lead normal lives, neither could plaintiff. Affirmed.

 

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Real Property
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This summary also appears under Municipal

 

Issues: Right to Farm Act (RTFA) (MCL 284.471 et seq.); Whether defendants’ poultry operations constituted a “farm” under the RTFA; Whether the RTFA preempted enforcement of the plaintiff-township’s zoning ordinance; Generally Accepted Agricultural and Management Practices (GAAMPs) of the RTFA; Nuisance per se; Whether the defendants’ affidavits should be disregarded due to conflict with one of the defendant’s statements in a prior letter; Laches; Failure to exhaust administrative remedies under the RTFA; Whether plaintiff failed to state a claim on which relief could be granted

Court: Michigan Court of Appeals (Published)

Case Name: Charter Twp. of Shelby v. Papesh

e-Journal Number: 27804

Judge(s): Per Curiam – Kelly, Sawyer, and Wilder

 

The trial court erred in granting the plaintiff-township summary disposition because genuine issues of material fact existed regarding whether the defendants’ poultry operations were commercial in nature or in compliance with the applicable GAAMPs, and the RTFA preempts enforcement of zoning ordinances conflicting with it. Defendants bought 1.074 acres of property in the township in 1995. The property had a farmhouse and two chicken coops on it. Defendants bought and began raising a flock of chickens using the preexisting chicken coops. Following development in the area, neighbors began to complain about defendants’ poultry operation. The court held according to the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to GAAMPs. It was clear the poultry raised on defendants’ property were “farm products” since they were useful to human beings and produced by agriculture. The raising of poultry on defendants’ property constituted a “farm operation” since it involved the “harvesting of farm products.” Defendants’ evidence could support a finding the poultry operation was at least partially commercial in nature. If defendants’ farm is commercial in nature and in compliance with the GAAMPs, it is a farm operation protected by the RTFA. Plaintiff’s ordinance conflicted with the RTFA to the extent it permitted plaintiff to preclude a protected farm operation by limiting the size of a farm. Reversed in part, affirmed in part, and remanded.

 

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Issues: Doctrine of equitable subrogation; Whether plaintiff was properly categorized as a “mere volunteer”; Lentz v. Stoflet; Brown v. Genessee County Bd. of Comm’rs (On Remand); Whether equitable subrogation should have applied because the mortgage was allegedly obtained through fraud; Mistake of fact; Smith v. Sprague; Unjust enrichment; Schanhite v. Plymouth United Sav. Bank

Court: Michigan Court of Appeals (Published)

Case Name: Washington Mut. Bank, F.A. v. Shorebank Corp.

e-Journal Number: 27802

Judge(s): Sawyer, Markey, and Murray

 

The trial court properly granted summary disposition to defendants on plaintiff’s complaint seeking recovery on a loan secured by a mortgage. Plaintiff alleged it made a loan to the defendants-Shinas in the amount secured by a mortgage. Almost all of the loan proceeds were used to satisfy and discharge a prior first mortgage on the property. According to plaintiff, it was unaware of the fact at the time it made the loan to the Shinas, there were two other mortgages recorded against the property. The trial court held plaintiff had no legal obligation to pay off the mortgage and thus, plaintiff was a volunteer not entitled to equitable subrogation. Under Brown, the court held the doctrine of equitable subrogation does not allow a new mortgagee to take the priority of the older mortgagee merely because the proceeds of the new mortgage were used to pay off the indebtedness secured by the old mortgage. The court further held under Lentz, plaintiff was a mere volunteer and was not entitled to equitable subrogation. Affirmed.

 

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Issues: Quiet title action; Whether the trial court erred in granting plaintiff summary disposition; Whether plaintiff was a good faith purchaser for value and entitled to the protection of MCL 565.29; Kastle v. Clemons; Royce v. Duthler; MCL 566.106

Court: Michigan Court of Appeals (Unpublished)

Case Name: Flournoy v. Sears

e-Journal Number: 27789

Judge(s): Per Curiam – O’Connell, Schuette, and Borrello

 

The trial court did not err in granting summary disposition to plaintiff and in granting a writ of possession in plaintiff’s favor against defendant in this case involving a dispute over which party had lawful possession of the property. Defendant consistently maintained the deed to her son, Sears, was validly executed in 1995, and the later deed to her was executed as a “replacement deed” (recorded on September 18, 2003) for this earlier conveyance. Defendant was bound by this admission. Therefore, she could not prevail. Milhouse (the prior owner) could not transfer interest in the property to defendant when she had already disposed of her entire interest in the property to Sears. Defendant did not claim the protection of § 29 for herself. Defendant admitted in her deposition she paid no consideration for the transfer from Milhouse and she knew of the earlier conveyance. This precluded her from acquiring protection as a good faith purchaser under the statute. Further, defendant did not present any written evidence to show Sears transferred an interest in the property to her. Thus, it was irrelevant whether or not plaintiff had notice of the Milhouse’s 2002 transfer to defendant or of the 1995 transfer to Sears. The defendant had no interest in the property. Affirmed.

 

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School Law

This summary also appears under Employment & Labor Law

 

Issues: Whether plaintiffs were entitled to the benefits provided under MCL

380.1236(1) to regular teachers; Whether plaintiffs were employed as substitute teachers; The state board’s administrative rule for substitute permits

Court: Michigan Court of Appeals (Published)

Case Name: Wolfe v. Wayne-Westland Cmty. Schs.

e-Journal Number: 27800

Judge(s): Talbot, Zahra, and Donofrio

 

The trial court properly granted defendant’s motion for summary disposition and dismissed the case because plaintiffs were not employed as substitute teachers within the meaning of MCL 380.1236(1) and MCL 380.1236 was the only statutory provision under which plaintiffs claimed entitlement to benefits. Plaintiff-Wolfe filed the instant action on behalf of himself and other similarly situated In School Suspension (ISS) employees. Plaintiffs claimed they were entitled to the benefits provided under MCL 380.1236(1) because (1) they were employed in the same assignments for more than 60 days and (2) they were employed as substitute teachers. The court held the trial court erred in determining plaintiffs were employed as substitute teachers. The court further held the issue was dispositive in determining whether plaintiffs were entitled to benefits pursuant to MCL 380.1236(1). Even assuming ISS positions were “specific teaching positions,” ISS employees were plainly not assigned to the position of “substitute teachers” as the term is commonly understood because they did not serve in place of anyone. Neither the ISS program nor its employees replaced any specific teaching position. Rather, it was the suspended student, not the teacher, who was absent from the classroom. Affirmed.

 

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