Issues: Defendant-ABC's claim the trial court erred in granting summary disposition for defendant-Industrial by misinterpreting the indemnity provision in their subcontract; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Inc.; Triple E. Produce Corp. v. Mastronardi Produce, Ltd.; Industrial's claim its subcontract with ABC and its indemnification provision should be rescinded or voided based on fraud in the inducement or material misrepresentations as to ABC's failure to disclose issues about the quality of the topsoil before the sod installation; Rooyakker & Sitz, PLLC v. Plante & Moran; "Silent" fraud; M & D, Inc. v. McConkey

Court: Michigan Court of Appeals (Unpublished)

Case Name: Langford v. Jenkins Constr., Inc.

e-Journal Number: 43089

Judge(s): Per Curiam - Fitzgerald and Talbot; Concurrence - Shapiro

 

In this contract dispute involving the applicability of an indemnity provision, the court affirmed the trial court's denial of defendant-Industrial's claims of fraud, vacated the trial court's ruling granting summary disposition for Industrial, and remanded to the trial court for further proceedings consistent with its opinion. The litigation arose from an injury incurred by the minor plaintiff while performing as a cheerleader for a high school at a game on the school's football field. She was injured when her hand slipped into a depression in the field resulting in her falling and injuring her arm. Plaintiff sued the school and related entities in addition to the contractors and subcontractors involved in construction of the school and its football field, asserting defects in its construction, design, and inspection. Defendant-Jenkins was the general contractor and construction manager for the construction of the high school project. Jenkins subcontracted construction of the football field to defendant-ABC, which was responsible for laying out the field, placement of topsoil, and installation of sod. ABC subcontracted the sod installation to defendant-Industrial, and it subcontracted the installation of sod to defendant-Quick Green, which subcontracted the job to defendant-B & L. Allegedly defendant-Beckett tested the topsoil used by ABC and decided it was not up to specification. ABC argued there were no soil specifications and contended the dispute with Jenkins as to the quality and placement of the topsoil was resolved before it contracted with Industrial for the sod installation. Industrial challenged whether Jenkins accepted the soil provided by ABC in its fraud claim for failure to disclose. There was a subcontract between Industrial and Quick Green for sod installation, which contained an express indemnification provision. The court concluded there were deficiencies in the content of the lower court record and it could not definitively ascertain whether Quick Green actually performed any work on the sod installation or merely subcontracted the job to B & L. Thus, the court held, inter alia, the trial court's grant of summary disposition for Industrial was premature until a determination was definitively made as to Quick Green's acts in conformance with its subcontract with Industrial giving rise to plaintiff's claims and the implementation of the indemnification provision, which required remand to the trial court.

 

Issues: Defendant-ABC's claim the trial court erred in granting summary disposition for defendant-Industrial by misinterpreting the indemnity provision in their subcontract; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Inc.; Triple E. Produce Corp. v. Mastronardi Produce, Ltd.; Industrial's claim its subcontract with ABC and its indemnification provision should be rescinded or voided based on fraud in the inducement or material misrepresentations as to ABC's failure to disclose issues about the quality of the topsoil before the sod installation; Rooyakker & Sitz, PLLC v. Plante & Moran; "Silent" fraud; M & D, Inc. v. McConkey

Court: Michigan Court of Appeals (Unpublished)

Case Name: Langford v. Jenkins Constr., Inc.

e-Journal Number: 43089

Judge(s): Per Curiam - Fitzgerald and Talbot; Concurrence - Shapiro

 

In this contract dispute involving the applicability of an indemnity provision, the court affirmed the trial court's denial of defendant-Industrial's claims of fraud, vacated the trial court's ruling granting summary disposition for Industrial, and remanded to the trial court for further proceedings consistent with its opinion. The litigation arose from an injury incurred by the minor plaintiff while performing as a cheerleader for a high school at a game on the school's football field. She was injured when her hand slipped into a depression in the field resulting in her falling and injuring her arm. Plaintiff sued the school and related entities in addition to the contractors and subcontractors involved in construction of the school and its football field, asserting defects in its construction, design, and inspection. Defendant-Jenkins was the general contractor and construction manager for the construction of the high school project. Jenkins subcontracted construction of the football field to defendant-ABC, which was responsible for laying out the field, placement of topsoil, and installation of sod. ABC subcontracted the sod installation to defendant-Industrial, and it subcontracted the installation of sod to defendant-Quick Green, which subcontracted the job to defendant-B & L. Allegedly defendant-Beckett tested the topsoil used by ABC and decided it was not up to specification. ABC argued there were no soil specifications and contended the dispute with Jenkins as to the quality and placement of the topsoil was resolved before it contracted with Industrial for the sod installation. Industrial challenged whether Jenkins accepted the soil provided by ABC in its fraud claim for failure to disclose. There was a subcontract between Industrial and Quick Green for sod installation, which contained an express indemnification provision. The court concluded there were deficiencies in the content of the lower court record and it could not definitively ascertain whether Quick Green actually performed any work on the sod installation or merely subcontracted the job to B & L. Thus, the court held, inter alia, the trial court's grant of summary disposition for Industrial was premature until a determination was definitively made as to Quick Green's acts in conformance with its subcontract with Industrial giving rise to plaintiff's claims and the implementation of the indemnification provision, which required remand to the trial court.

 

Issues: Sufficiency of the evidence to support the defendant's conviction of armed robbery; People v. Nowack; People v. Robinson; Aiding and abetting statute (MCL 767.39); Scoring of OVs 1 and 2; People v. Endres; People v. Morson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Austin

e-Journal Number: 43068

Judge(s): Per Curiam - Markey, Fitzgerald, and Gleicher

 

There was sufficient evidence the defendant aided and abetted the armed robbery of a cell phone from the victim, S. The prosecutor urged the jury to convict defendant of armed robbery on the basis she aided and abetted the commission of the crime. S, who worked at a used car lot, testified he accompanied defendant, a friend and a child on a test drive of a used Cadillac. S recalled during the test drive, defendant conversed on a cell phone, at one point saying "something to the effect of I'll be there when I'm finished test-driving this car." S acquiesced to defendant's request to drive the Cadillac on the freeway. However, en route to the freeway, defendant veered off onto a side street, stopped "in the middle of the block," and unlocked the Cadillac's doors. S recounted a man approached the Cadillac, opened the back door where S was seated, while brandishing a handgun directed S out of the car, and took his cell phone. According to S, defendant did not appear startled or frightened by the gunman's appearance and actions. Defendant then drove off in the Cadillac with the gunman inside. S's testimony, viewed in the light most favorable to the prosecutor, supported a rational jury's reasonable determinations beyond a reasonable doubt an armed robbery occurred, and defendant performed acts or gave encouragement assisting the commission of the crime, namely stopping the Cadillac in the middle of the street, unlocking the doors, and then driving away with the gunman in the car after he ejected S from the Cadillac and took his phone. Defendant maintained because she could not possibly have known S would have a cell phone during the test drive or the gunman would steal it, no rational view of the evidence tended to establish the third aiding and abetting element, she "intended the commission of the [armed robbery] or had knowledge that the principal intended its commission at the time that [she] gave aid and encouragement." However, the Supreme Court reiterated in Robinson the aider and abettor's intent element is satisfied by proof the principal's crime came "fairly within the common enterprise, and . . . might be expected to happen if the occasion should arise for any one to do it." Defendant's convictions of carjacking, armed robbery, and UDAA were affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's larceny in a building and fourth-degree fleeing and eluding a police officer convictions; People v. Odom; Identification procedures; People v. Kern; People v. Thomas A. Davis; Plain error review; People v. Carines; Whether the pretrial identification procedure was so suggestive under the totality of the circumstances it led to a substantial likelihood of misidentification; People v. Williams; People v. Gray; Sentencing; Scoring of OV 3 at 5 points; People v. Endres; People v. Ratkov; People v. Osantowski; "Victim" for purposes of OV 3; People v. Albers; Order requiring defendant to reimburse the county for his court-appointed attorney fees; People v. Trapp (On Remand); People v. Dunbar; MCL 769.1k

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mushatt

e-Journal Number: 43075

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

Concluding the defendant failed to show his pretrial identification was so suggestive there was a substantial likelihood of misidentification and the facts provided a sufficient basis for a proper identification, the court affirmed his convictions. He was convicted of larceny in a building and fourth-degree fleeing and eluding a police officer. Defendant stole a wallet from an employee's purse in an office building, left the building, and got into a vehicle in the parking lot. As he was attempting to leave the lot, he hit a woman on the side of her leg. A police officer followed the suspect vehicle, and at one point it pulled over, but then it continued moving. After traveling about 90 mph with the patrol car lights and sirens activated, the officer eventually caught up with the vehicle and pulled it over. Defendant argued, inter alia, the in-court identification at the preliminary exam was unduly suggestive because he was the only African-American male in the room. The court held he did not show plain error since he did not demonstrate he was actually innocent or the fairness of the trial was affected. There was independent evidence supporting the identification. The record showed the witnesses who positively identified him closely observed him. The two witnesses "had ample prior contact with him and were able to positively identify him at trial." One of the witnesses watched defendant for 10 to 15 seconds when she first noticed him at the time of the theft, she was "face-to-face" with him as he exited her cubicle, and she directly asked him a question, which he answered before walking away. Another witness saw defendant (who had his head up) for 30 seconds as he walked toward the front door and left the building, and also observed him while standing outside the untinted driver's side window of his car for 30 to 45 seconds. The court noted the preliminary exam was only two weeks after the incident. Defendant's convictions were affirmed but the court vacated the order requiring him to repay attorney fees and remanded the case to the trial court with instructions to consider his present and future ability to repay attorney fees.

 

Issues: Sufficiency of the evidence to support the defendant's assault with intent to do great bodily harm less than murder (assault GBH) conviction; People v. Parcha; People v. Robinson; Circumstantial evidence; People v. Lee; Intent; People v. Fetterley; Sentencing; Whether the trial court properly only scored the guidelines for defendant's first-degree home invasion conviction; People v. Mack; Whether the sentences for the three lesser crimes (assault GBH, felonious assault, and obstruction of justice) violated the "principle of proportionality"; People v. Milbourn

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stevens

e-Journal Number: 43076

Judge(s): Per Curiam - Wilder, Meter, and Servitto

 

Noting the injury is not the focus of the offense of assault GBH, the court held the evidence was sufficient to establish defendant's second assault on the victim was an assault GBH and affirmed his convictions. He was convicted of assault GBH, felonious assault, first-degree home invasion, and obstruction of justice. On appeal, defendant conflated the elements of aggravated assault with the elements of assault GBH. The elements of assault GBH are (1) an attempt or threat with force or violence to do corporal harm to another (an assault) and (2) intent to do great bodily harm less than murder. The testimony showed during the first assault, defendant kicked, punched, and stomped on the victim, and attacked him with a portable fan, breaking the fan and the victim's nose. During the second assault, he pinned the victim down, kicked him, and punched him. The court concluded this "established an attempt to violently inflict corporal harm." Further, the jury could infer defendant intended to do great bodily harm by kicking and punching the victim. This finding was supported by evidence the injuries were inflicted on a person who was already suffering significant corporal harm from the prior beatings. Thus, the court held there was sufficient evidence of an assault and the required intent to convict defendant of assault GBH for the second assault. His convictions and sentences were affirmed.

 

Issues: Docket No. 283577 - Sufficiency of the evidence to support the defendant's conviction of delivering narcotics; People v. Lueth; People v. Harmon; People v. Hardiman; People v. Ray; People v. Aldrich; Sentencing; Scoring of OV 3; Docket No. 283724 - Motion for a directed verdict of acquittal on the manslaughter conviction; People v. Gillis; People v. Tims; People v. Albers

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Sunich

e-Journal Number: 43108

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

In Docket No. 283577, there was sufficient evidence to support the defendant's conviction of delivering narcotics to S. The case arose from defendant's delivery of drugs to S and R and the subsequent death of S in defendant's trailer. During trial, defendant acknowledged he and two friends transferred S's body into S's vehicle and left the vehicle and body in a secluded wooded area. Defendant acknowledged circumstantial evidence may be sufficient to support a conviction, but claimed there was no direct evidence he delivered drugs to S. He contended S stole the narcotics, and noted there was testimony S had stolen narcotics from others, as well. The trial court instructed the jury the prosecution had the burden to prove each element beyond a reasonable doubt separately for each delivery charge. The elements included - (1) defendant delivered a controlled substance, which was outlined in each count, along with the date and to whom it was allegedly delivered, (2) the substance delivered in some counts was morphine and some counts was fentanyl, (3) he knew he was delivering either morphine or fentanyl, (4) he was not legally authorized to deliver this substance, and (5) the delivery took place on or about November or December of 2005 in Cheboygan County. During trial, the prosecution presented evidence defendant was engaged in the practice of selling drugs, including fentanyl and morphine. One of defendant's buyers stated defendant's trailer was "basically a known drug facility" where she could get drugs. Further evidence was presented defendant had a prescription for fentanyl and morphine he filled on December 5, 2005. Shortly before he died in December 2005, S was living with defendant in defendant's trailer. S's autopsy revealed he had extremely high levels of fentanyl and morphine in his body, and this combination of drugs caused his death. S's ex-girlfriend testified years prior to S's death, she and S would get used fentanyl patches from defendant, and one of defendant's previous buyers testified in the past, she saw S get drugs from defendant. His convictions were affirmed, the trial court's grant of directed verdict on the charge of involuntary manslaughter was reversed, and the case was remanded for reinstatement and sentencing on the manslaughter conviction.

 

Issues: Whether the trial court improperly shifted the burden of proof to defendant in this case where he was convicted of armed robbery and felonious assault; People v. Fields; People v. Smith; People v. Darden

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 43118

Judge(s): Memorandum - O'Connell, Bandstra, and Donofrio

 

Since the trial court found defendant introduced the knife and the victim's money was missing and it was apparent the trial court believed the victim on these disputed points, it was obvious to the court which witness the trial court found was credible on disputed points and the court did not make further specific credibility findings. Defendant argued on appeal the trial court improperly shifted the burden of proof and required him to prove his innocence when, in its findings of fact, it focused on the credibility of his testimony and did not discuss the credibility of the victim. The court held although the trial court focused on the perceived lack of credibility of parts of defendant's testimony, there was no basis for concluding the trial court's comments as to the testimony were improper. The trial court's discussion of the weaknesses in defendant's case was comparable to the court's discussion of an asserted defense in Smith. In that case, as here, the trial court did not state the defendant failed to prove his innocence. A trial court's failure to address credibility does not implicate a defendant's constitutional rights. Where findings are inadequate for appellate review, the remedy is to remand the case for additional findings, not reversal as defendant sought here. Affirmed.

 

Issues: Whether the trial court properly granted the defendant-City summary disposition under MCR 2.116(I)(2) on plaintiff's FOIA claim; Taylor v. Lansing Bd. of Water & Light; Whether the city's police department properly denied plaintiff's FOIA request on the basis it was "exempt under MCLA 15.243(1)(D)"; MCR  2.302(A)(3); Central MI Univ. Supervisory-Technical Ass'n MEA/NEA v. Central MI Univ. Bd. of Trs.; Whether the exemption in MCL 15.243(1)(a) was applicable; Information of a "personal nature"; Michigan Fed'n of Teachers & Sch. Related Pers., AFT, AFL-CIO v. University of MI; Detroit Free Press, Inc. v. City of Southfield; Whether the trial court properly held the information sought was exempt under MCL 15.243(1)(b); Alternative basis for the denial (MCL 15.243(1)(s)); Kent County Deputy Sheriffs Ass'n v. Kent County Sheriff; Herald Co. v. Kent County Sheriff's Dep't; Burden of proving exemption; Landry v. City of Dearborn; Whether plaintiff was entitled to reasonable fees, costs, and disbursements pursuant to MCL 15.240(6) and punitive damages pursuant to MCL 15.240(7); Messenger v. Ingham County Prosecutor; Local Area Watch v. City of Grand Rapids; Michigan Council of Trout Unlimited v. Department of Military Affairs

Court: Michigan Court of Appeals (Unpublished)

Case Name: Lawrence v. City of Troy

e-Journal Number: 43091

Judge(s): Per Curiam - Borrello, Meter, and Stephens

 

Concluding, inter alia, the trial court erred in determining plaintiff's FOIA request was properly denied by the defendant-City's police department because the information sought was not obtainable through discovery pursuant to MCR 2.302(A)(3), disclosure of the information would not constitute a clearly unwarranted invasion of an individual's privacy and was not exempt under MCL 15.243(1)(a), and the trial court erred in relying on MCL 15.243(1)(b) to deny the FOIA request, the court reversed and remanded to the trial court to determine whether the "public interest in disclosure outweighs the public interest in nondisclosure in the particular instance" as to the information he requested in paragraphs one, five, and six of his FOIA request. Plaintiff filed the request to the defendant's police department stemming from a traffic citation issued to his brother for failing to provide proof of insurance and failing to change the address on his driver's license. Two days later, the request was denied because it was "exempt under MCLA 15.243(1)(D)." Plaintiff filed this case alleging defendant improperly denied his FOIA request. The trial court granted defendant summary disposition based on MCR 2.302(A)(3) opining plaintiff's request appeared to be an attempt to circumvent the discovery preclusion in civil infractions. The court concluded the information plaintiff sought could not fairly be characterized as "[i]nvestigating records compiled for law enforcement purposes," as stated in § 243(1)(b) where he requested the full names of the police officers, records indicating whether they were subject to a citation "quota," records indicating whether they accessed the Secretary of State database to determine whether the vehicle was insured, records pertaining to whether they had ever been subject to discipline, a disciplinary proceeding, or sued for official misconduct, and voice, video, text, radio, or cellular transmissions or recording occurring immediately before, during, or after the traffic stop. The court held this information did not constitute "investigating records compiled for law enforcement purposes." The court also directed the trial court to address the issues of plaintiff's request for attorney fees, costs, disbursements, and punitive damages on remand.

 

Issues: Objections to the proposed judgment for sanctions under MCR 2.114(E); MCR 2.119(F)(3); Kokx v. Bylenga; Williams v. Williams; The "abuse of discretion" standard; Woodard v. Custer; Interpretation of a court rule; People v. Kimble; Notice; Maxwell v. Department of Envtl. Quality; Service of filed papers by first-class mail; MCR 2.107(C)(3); Woods v. SLB Prop. Mgmt., LLC; MCR 2.613(A); Amorello v. Monsanto Corp.; Challenge to the trial court's decision to award an additional sanction; Reed v. Reed; Maryland Cas. Co. v. Allen

Court: Michigan Court of Appeals (Unpublished)

Case Name: Burgess v. Troy West LLC

e-Journal Number: 43071

Judge(s): Per Curiam - Borrello, Meter, and Stephens

 

In these consolidated cases, the trial court did not err in denying plaintiff-Douglas Burgess‘s objections to the judgment for sanctions in the amount of $62,000 in favor of plaintiffs-Wilfriede Burgess and the Wilfriede Burgess Trust because, considering Douglas did not file any affidavit to support his claim or otherwise offer evidence calling into question his receipt of notice of the December 20, 2007, hearing, it could not be said the trial court's decision constituted an abuse of discretion. The trial court assessed the sanctions against Douglas after an evidentiary hearing in which evidence was presented he filed a suit in 2004 concerning real property owned by the Trust for which his mother, Wilfriede, was the sole trustee. The case was filed in the name of the Trust, but Wilfriede, who resided on the property, denied authorizing or knowing about the case and denied signing the complaint. The attorney who prepared the complaint testified he consulted only with Douglas and asked him to have Wilfriede sign the complaint. Counsel filed the suit after Douglas returned the complaint with Wilfriede's forged signature. After Wilfriede learned about the lawsuit in 2006, and retained counsel to represent her interests in the case, the trial court dismissed the 2004 case, along with a related case filed in the name of the Trust. The parties involved in the two cases filed motions for sanctions. After an evidentiary hearing on December 20, 2007, the trial court assessed sanctions against Douglas, in favor of Wilfriede and her trust, under MCR 2.114(E) in the amount of $62,000. Douglas made his objections under the 7-day rule in MCR 2.602(B)(3), after the evidentiary hearing. He argued the judgment should be set aside because proper notice of the evidentiary hearing was not provided. The court rejected Douglas's argument on appeal the standards for setting aside default judgments applied to his objections to the proposed judgment, where the matter before the court did not involve a default entered under MCR 2.603, but rather the trial court's award of sanctions under MCR 2.114(E), after an evidentiary hearing. Douglas's claim of deficient notice more properly fell within the scope of a trial court's authority to grant rehearing or reconsideration, although he prematurely filed his claim because the trial court had not yet entered the judgment. Examined in this context, the court found no basis for disturbing the trial court's decision to deny his objections. To the extent he argued he was denied due process arising from a lack of proper notice, limiting the review to the record presented to the trial court it was apparent Douglas's proofs somewhat contradicted his position the use of the street address "Auburn Rd." rather than "W. Auburn Rd." materially affected the delivery of mail to his home by the post office. It could logically be inferred from his possession of the postmarked envelopes he submitted in support of his objections he received mail containing both addresses. Although he asserted on appeal he found notice of the hearing "in the front door" of his house, not in his mailbox, after the December 20, 2007, evidentiary hearing, he did not cite any factual support for this claim as required by MCR 7.212(C)(7), and there was no indication in the record he raised it in the trial court. Affirmed.

 

Issues: Request by the plaintiff-tribe for a broad declaration about its tax immunities under federal law and for injunctive relief from Michigan's policy of taxing transactions involving plaintiff and use of an informal refund process to sort out those immunities; Washington v. Confederated Tribes of the Colville Indian Reservation; Oklahoma Tax Comm'n v. Chickasaw Nation; The Declaratory Judgment Act (28 USC § 2201); Whether the issues were justiciable in the absence of a factual context; United Pub. Workers of Am. v. Mitchell; Grand Trunk W. R.R. Co. v. Consolidated Rail Co.; Issue regarding the effect of an 1842 treaty; Keweenaw Bay Indian Cmty. v. Rising (Rising I); Whether the plaintiff qualified as a "person" under 42 USC § 1983; Inyo County v. Paiute-Shoshone Indians; Pfizer, Inc. v. Government of India; Georgia v. Evans

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Keweenaw Bay Indian Cmty. v. Rising

e-Journal Number: 43135

Judge(s): Merritt, Griffin, and Kethledge

 

Concluding the issues presented covered many hypothetical transactions and were "too broad, too abstract, and unsupported by specific facts," the court held the declaratory and injunctive relief the plaintiff-tribe requested could not be granted at this time. However, the court vacated in part the district court's judgment for the defendants and remanded for further proceedings on the issue of whether plaintiff qualified as a "person" under § 1983 for purposes of its suit against members of the Michigan Treasury Department. Plaintiff sought a broad declaration about its tax immunities under federal law, and injunctive relief from Michigan's policy of taxing transactions involving it and from Michigan's use of an informal refund process to sort those immunities out on a case-by-case, transaction-by-transaction basis. The court held the issues were not justiciable because they lacked a specific factual context. As the district court noted, plaintiff did not point to a single example of the State refusing to refund a tax it was prohibited by federal law from collecting. Until plaintiff did so, the court's attempted clarification of the relevant law and "the exposition of a ‘categorical' legislative-type set of rules would be purely academic." The absence of factual development in the record also prevented the court from declaring invalid the State's alleged policy of taxing all transactions and then using an informal process to determine which taxes could validly be collected. The court concluded an abstract decision in the case would not meet the test for declaratory judgments since it would not "settle the controversy" or "serve a useful purpose in clarifying the legal relations" involved in the particular circumstances. Thus, plaintiff was not entitled to the declaratory and injunctive relief it sought, although it was possible the relief "may ultimately be attained through appropriately fact-specific litigation." As to plaintiff's § 1983 claim against State officials for offsetting federal funds the State was obligated to transfer to plaintiff, the court remanded the case to the district court to determine if plaintiff was entitled to the federal funds only as a result of its sovereignty or because it provided certain social services. If it was the latter, plaintiff's § 1983 claim would not be in any way dependent on its sovereign status and it should be considered a "person" within the meaning of § 1983. Affirmed in part, vacated in part, and remanded.

 

Issues: Whether the district court properly dismissed plaintiff's intentional infliction of emotional distress (IIED) claim under the Feres doctrine; Fleming v. United States Postal Serv.; Howard v. Whitbeck; Major v. United States; United States v. Johnson; Whether the plaintiff's inactive status as an ROTC cadet precluded his claims from being subject to the Feres doctrine; Sidley v. United States; Brown v. United States (Brown I) (8th Cir.); Wake v. United States (2nd Cir.); Whether the injury arose from an activity incident to military service; The Privacy Act (5 USC § 552a); Federal Tort Claims Act (FTCA); University of Dayton (UD)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Lovely v. United States

e-Journal Number: 43134

Judge(s): Moore, Gilman, and Phillips

 

In an issue of first impression, the court held the plaintiff's inactive status as an ROTC cadet did not preclude his claims from being subject to the Feres doctrine and the district court properly dismissed his IIED claim as barred by the Feres doctrine because the injuries underlying his claim arose from activity incident to his military service. Plaintiff, a former student at the UD and member of the ROTC, brought claims against defendant and its agency, the United States Army ROTC Battalion at UD, for violation of his rights under the Privacy Act and for IIED under the FTCA. His complaint alleged he suffered economic as well as mental, emotional, and psychological injuries when his commander released to a fellow cadet an e-mail from a professor stating plaintiff had plagiarized a research paper, made false statements about plaintiff to other UD students, wrongfully interfered with the UD disciplinary board and the ROTC disenrollment proceedings, and intimidated his witness before the UD proceedings. The district court dismissed his IIED claim under the Feres doctrine, which precludes claims brought under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Plaintiff claimed the district court erred by dismissing his IIED claim as barred by the Feres doctrine because he was a UD student and not involved in any military activity at the time of his injury. However, as an ROTC cadet, plaintiff was enlisted in the Army and was a member of the armed forces, even if not on active duty. Although the court had not yet considered the Feres doctrine as applied to claims brought by ROTC cadets, both the Eighth and the Second Circuits had done so, concluding the doctrine applied when the ROTC cadet's injuries occurred in the course of activity incident to military service. Plaintiff argued his injury did not arise from an activity incident to military service but instead from his activities as a UD student attending a UD disciplinary proceeding, activities he claimed were "distinctly non-military." The court held application of the Feres doctrine to his claim was supported by the third rationale stated in Johnson, because plaintiff's injuries "stemmed from the manner in which his commanding officer chose to conduct the affairs and discipline of his ROTC battalion." His injuries, such as loss of his college funding and loss of his reputation, would not have occurred if he had not been an ROTC cadet and thus, arose "because of his military relationship with the Government." Affirmed.

 

Issues: Request by the plaintiff-tribe for a broad declaration about its tax immunities under federal law and for injunctive relief from Michigan's policy of taxing transactions involving plaintiff and use of an informal refund process to sort out those immunities; Washington v. Confederated Tribes of the Colville Indian Reservation; Oklahoma Tax Comm'n v. Chickasaw Nation; The Declaratory Judgment Act (28 USC § 2201); Whether the issues were justiciable in the absence of a factual context; United Pub. Workers of Am. v. Mitchell; Grand Trunk W. R.R. Co. v. Consolidated Rail Co.; Issue regarding the effect of an 1842 treaty; Keweenaw Bay Indian Cmty. v. Rising (Rising I); Whether the plaintiff qualified as a "person" under 42 USC § 1983; Inyo County v. Paiute-Shoshone Indians; Pfizer, Inc. v. Government of India; Georgia v. Evans

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Keweenaw Bay Indian Cmty. v. Rising

e-Journal Number: 43135

Judge(s): Merritt, Griffin, and Kethledge

 

Concluding the issues presented covered many hypothetical transactions and were "too broad, too abstract, and unsupported by specific facts," the court held the declaratory and injunctive relief the plaintiff-tribe requested could not be granted at this time. However, the court vacated in part the district court's judgment for the defendants and remanded for further proceedings on the issue of whether plaintiff qualified as a "person" under § 1983 for purposes of its suit against members of the Michigan Treasury Department. Plaintiff sought a broad declaration about its tax immunities under federal law, and injunctive relief from Michigan's policy of taxing transactions involving it and from Michigan's use of an informal refund process to sort those immunities out on a case-by-case, transaction-by-transaction basis. The court held the issues were not justiciable because they lacked a specific factual context. As the district court noted, plaintiff did not point to a single example of the State refusing to refund a tax it was prohibited by federal law from collecting. Until plaintiff did so, the court's attempted clarification of the relevant law and "the exposition of a ‘categorical' legislative-type set of rules would be purely academic." The absence of factual development in the record also prevented the court from declaring invalid the State's alleged policy of taxing all transactions and then using an informal process to determine which taxes could validly be collected. The court concluded an abstract decision in the case would not meet the test for declaratory judgments since it would not "settle the controversy" or "serve a useful purpose in clarifying the legal relations" involved in the particular circumstances. Thus, plaintiff was not entitled to the declaratory and injunctive relief it sought, although it was possible the relief "may ultimately be attained through appropriately fact-specific litigation." As to plaintiff's § 1983 claim against State officials for offsetting federal funds the State was obligated to transfer to plaintiff, the court remanded the case to the district court to determine if plaintiff was entitled to the federal funds only as a result of its sovereignty or because it provided certain social services. If it was the latter, plaintiff's § 1983 claim would not be in any way dependent on its sovereign status and it should be considered a "person" within the meaning of § 1983. Affirmed in part, vacated in part, and remanded.

 

Issues: Whether the district court properly dismissed plaintiff's intentional infliction of emotional distress (IIED) claim under the Feres doctrine; Fleming v. United States Postal Serv.; Howard v. Whitbeck; Major v. United States; United States v. Johnson; Whether the plaintiff's inactive status as an ROTC cadet precluded his claims from being subject to the Feres doctrine; Sidley v. United States; Brown v. United States (Brown I) (8th Cir.); Wake v. United States (2nd Cir.); Whether the injury arose from an activity incident to military service; The Privacy Act (5 USC § 552a); Federal Tort Claims Act (FTCA); University of Dayton (UD)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Lovely v. United States

e-Journal Number: 43134

Judge(s): Moore, Gilman, and Phillips

 

In an issue of first impression, the court held the plaintiff's inactive status as an ROTC cadet did not preclude his claims from being subject to the Feres doctrine and the district court properly dismissed his IIED claim as barred by the Feres doctrine because the injuries underlying his claim arose from activity incident to his military service. Plaintiff, a former student at the UD and member of the ROTC, brought claims against defendant and its agency, the United States Army ROTC Battalion at UD, for violation of his rights under the Privacy Act and for IIED under the FTCA. His complaint alleged he suffered economic as well as mental, emotional, and psychological injuries when his commander released to a fellow cadet an e-mail from a professor stating plaintiff had plagiarized a research paper, made false statements about plaintiff to other UD students, wrongfully interfered with the UD disciplinary board and the ROTC disenrollment proceedings, and intimidated his witness before the UD proceedings. The district court dismissed his IIED claim under the Feres doctrine, which precludes claims brought under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Plaintiff claimed the district court erred by dismissing his IIED claim as barred by the Feres doctrine because he was a UD student and not involved in any military activity at the time of his injury. However, as an ROTC cadet, plaintiff was enlisted in the Army and was a member of the armed forces, even if not on active duty. Although the court had not yet considered the Feres doctrine as applied to claims brought by ROTC cadets, both the Eighth and the Second Circuits had done so, concluding the doctrine applied when the ROTC cadet's injuries occurred in the course of activity incident to military service. Plaintiff argued his injury did not arise from an activity incident to military service but instead from his activities as a UD student attending a UD disciplinary proceeding, activities he claimed were "distinctly non-military." The court held application of the Feres doctrine to his claim was supported by the third rationale stated in Johnson, because plaintiff's injuries "stemmed from the manner in which his commanding officer chose to conduct the affairs and discipline of his ROTC battalion." His injuries, such as loss of his college funding and loss of his reputation, would not have occurred if he had not been an ROTC cadet and thus, arose "because of his military relationship with the Government." Affirmed.