Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Delayed motion to compel arbitration; Employee claims under the Americans with Disabilities Act (ADA); Retaliation & discrimination claims under the Michigan Persons with Disabilities Civil Rights Act (PWDCRA); Implicit waiver of the right to compel arbitration through delay; Morgan v Sundance, Inc; Johnson Assocs Corp v HL Operating Corp; Whether the failure to raise the arbitration issue earlier should be excused based on “mistake”; United Wholesale Mortgage (UWM)
[This appeal was from the ED-MI.] The court held for the first time in this circuit that in Morgan, the Supreme Court eliminated the “prejudice” requirement for arbitration waiver. Thus, the court affirmed the district court’s ruling that defendant-employer (UWM) “implicitly waived” its right to compel arbitration where it waited for seven months and participated in litigation through extensive discovery before moving to compel arbitration. Plaintiff-former employee (Schwebke), who is deaf, sued UWM for retaliation and failure to accommodate under the ADA, and retaliation and discrimination under the Michigan PWDCRA. The parties’ employment agreement contained a binding arbitration clause for covered claims. But for months “UWM participated in extensive discovery—producing tens of thousands of pages of documents, taking and defending depositions, and issuing third-party subpoenas—without ever mentioning arbitration. Then, with discovery nearly complete, UWM moved to compel arbitration.” It explained the delay in asserting the right to arbitration was due to UWM’s counsel’s failure to note the arbitration clause in the employment agreement. The court explained that until the Supreme Court’s ruling in Morgan, a party who had extensively participated in litigation was deemed not to have waived its right to arbitrate “unless ‘its conduct has prejudiced the other side.’” Considering Morgan’s effect on this circuit’s prejudice requirement, the court held that Morgan eliminated the requirement. The court rejected UWM’s argument that its conduct did not result in a waiver because the failure to raise arbitration earlier was a mistake where UWM had “imputed knowledge” of the arbitration clause—it produced the employment agreement in its first batch of discovery documents. The court concluded that under its “precedent, UWM implicitly waived its right to compel arbitration because its conduct was completely inconsistent with reliance on its arbitration right.”
Attorney fees under MCL 700.3715 of Estates & Protected Individuals Code; MCL 700.3720; In re Nestorovski Estate; Personal representative (PR)
The court held that the “probate court did not err by determining that there was no genuine issue of material fact that” the former PR of defendant-estate (nonparty-S) “did not act in good faith when he initiated and defended the 2020 cases. [S’s] actions occurred when he was unduly influencing” the decedent (Matthew), “who lacked capacity to modify his estate plan to benefit [S]. Accordingly, [S’s] actions were self-serving, and [plaintiff-law firm] was not entitled to attorney fees from defendant.” Its remedy was to seek such fees from S. Plaintiff argued “that the probate court erred by concluding that the jury’s finding of undue influence necessarily meant that [S] did not act in good faith when pursuing and defending the three probate cases. At the very least, plaintiff contends that the case involving the [investment] account provided some benefit to defendant and that the jury’s verdict had no bearing on that case.” Thus, plaintiff claimed summary disposition was not properly granted. The court concluded “that just as in Nestorovski Estate, the probate court properly determined that [S’s] undue influence necessarily meant that he could not have acted in good faith when he initiated and defended the 2020 cases. To hold otherwise would conflict with the plain language of the statute, which requires [PRs] to initiate or defend litigation in the estate’s best interest, not their own self-interests.” Also, the court was “unpersuaded by plaintiff’s attempts to distinguish the [investment] account litigation from those two cases that went to trial.” The court found that while the jury did not explicitly address the investment “account, it did not need to for purposes of the probate court’s decision.” Plaintiff nonetheless argued that there was “a distinction because [S’s] actions regarding the [investment] account provided some benefit to defendant. Regardless of whether [S] did provide some benefit to defendant, this did not change the fact that he was partially to blame for bringing about and defending improper litigation in the first place because doing so provided an improper benefit to himself.” The court concluded that to “hold otherwise would subject estates to payment of attorney fees for litigation initiated or defended in [PRs’] self-interests, i.e., bad faith, merely because some benefit was provided to the estates. Such an interpretation conflicts with the plain language of the statute.”
Employment discrimination investigation by the Equal Employment Opportunity Commission (EEOC); Title VII of the Civil Rights Act; Requests for Information (RFIs); 42 USC §§ 2000e-5(b) & 8(a); Whether the EEOC’s subpoenas to respondent-employer were properly served; The National Labor Relations Act (NLRA); 29 USC § 161; Whether the subpoena was “facially invalid”; Whether respondent forfeited its right to challenge the subpoena for failing to exhaust its administrative remedies; Whether the subpoena was “unduly burdensome”; National Labor Relations Board (NLRB or the Board)
[This appeal was from the ED-MI.] The court held that given the EEOC was instructed to send communications to an entity’s attorney, and its attorney received actual notice of the EEOC’s mailed subpoena, this constituted adequate service of process under § 161(4). It also rejected respondent-Ferrellgas’s claim the subpoena was facially invalid and its claims that the subpoena was “overbroad and unduly burdensome.” Nonparty-W, a Ferrellgas L.P. employee, filed discrimination charges against it. Ferrellgas Partners is a holding entity and limited partner in Ferrellgas, L.P. Ferrellgas, Inc. is the sole general partner in Ferrellgas, L.P. W named Ferrellgas L.P. as her employer but the EEOC sent two RFIs to Ferrellgas, Inc. Although that entity responded with some information, it objected to the requests’ scope. It did not assert that it was the incorrect entity. Not until the second RFI was sent did outside counsel request that any further contact be through his firm. The EEOC sent a subpoena to the firm. Outside counsel continued to object to the scope of the information requested but not to the manner of service. The EEOC eventually successfully applied to the district court for an order to show cause. On appeal, the court first noted that under case law, a reviewing court’s scope in this context is limited, but that it “‘should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome.’” Ferrellgas objected to the way the subpoena was served, alleging that § 161(4) does not allow service to counsel. However, the court rejected this argument, noting that Ferrellgas did not object to service of another subpoena that was served in the same way. Service under the NLRA will be upheld unless prejudice can be established. The court has “endorsed the principle that when ‘[a]ctual notice reached counsel promptly and counsel responded on the merits,’ service not in strict conformity with the NLRB’s regulations does not preclude a district court’s enforcement of a Board subpoena.” It did not see any “reason why similar principles should not apply to the EEOC’s subpoenas.” While the subpoena contained an incorrect response date, this “procedural lapse[]” was insufficient to make it invalid. The court rejected the EEOC’s allegations that Ferrellgas “forfeited its right to challenge the subpoena altogether[,]” declining to apply an administrative-exhaustion requirement under the circumstances. But it rejected Ferrellgas’s substantive argument that the subpoena was overbroad, holding that the information sought was relevant. It also rejected the claim that the subpoena imposed an undue burden. Affirmed.
Title VII; Whether the group of plaintiffs who were still working for defendant when the case was filed had standing to sue for religious discrimination; Injury; Whether some plaintiffs were “constructively discharged”; Whether two plaintiffs stated a claim under Title VII for “failure to accommodate” or “disparate treatment”
In this putative class action, the court affirmed the dismissal of most plaintiffs’ claims for lack of standing. But it held that Plaintiffs 1 and 2 had standing to sue their former employer, defendant-MetroHealth, for religious discrimination where they plausibly alleged they were forced to choose between following their religious beliefs as to receiving the COVID-19 vaccine and keeping their jobs. The court also held that these plaintiffs sufficiently pled claims under Title VII. MetroHealth denied all employees religious exemptions from the COVID vaccine. It later granted some employees exemptions, and eventually granted them to all requesting employees. Plaintiff-Savel resigned shortly after his exemption was denied, citing religious reasons. Other plaintiffs in this action worked for MetroHealth when the case was filed, while some had resigned for reasons related to the exemption issue. On appeal, the court first addressed standing. It upheld the district court’s dismissal of the claims brought by Plaintiffs 10-46, who were still working for MetroHealth when the case was filed, holding that they lacked standing where they could not show that they had suffered an injury. “[N]either the retrospective distress nor the possibility of prospective denial amounts to an injury in fact for standing purposes.” It rejected the claims of some plaintiffs who resigned that they were constructively discharged. As to Plaintiffs 1 and 2, they resigned after MetroHealth denied them exemptions, but before it changed its mind and granted all the religious exemptions. The court found that they were placed “in the difficult position of choosing between following their religion and keeping their jobs. MetroHealth told them that they could not appeal the denial and that their employment would be terminated if they did not get fully vaccinated within” 45 days. The court held that these facts were “adequate to support a theory of forced resignation sufficient to establish standing at this stage.” It further held that they plausibly alleged Title VII claims for failure to accommodate and disparate treatment. They alleged “that MetroHealth failed to give them a reasonable accommodation by denying their requests for a religious exemption to its vaccine mandate. They also” asserted that they were constructively discharged due to their religion. In addition, they “plausibly alleged that MetroHealth treated them differently from other employees by forcing them to resign because of their religion.” Affirmed as to Plaintiffs 3–46, reversed and remanded as to Plaintiffs 1 and 2.
Motion for relief from judgment; MCR 6.502(G)(2); “New evidence”; MCR 6.502(G)(3); People v Stovall; Sentencing; Retroactive change in the law; People v Poole; Alabama v Miller; Applicability of People v Parks; Facial & as-applied challenges to the constitutionality of defendant’s sentence; People v Czarnecki (On Remand); Life without parole (LWOP)
On remand from the Supreme Court, the court held that while defendant met MCR 6.502(G)(2)’s procedural bar, “because he did not establish good cause or actual prejudice to justify relief under MCR 6.508(D)(3), the trial court did not err by denying his motion for relief from judgment.” Further, he was not entitled to resentencing because in Czarnecki, the court “declined to extend Miller and Parks to 19-year-old offenders and” he did not establish any other change in law justifying resentencing. Finally, given that his “facial challenge to the constitutionality of mandatory life sentences imposed on 19-year-old offenders” failed, there was no ground “for retroactively applying any extension of Miller or Parks.” Thus, the court affirmed the trial court’s order denying his third motion for relief from judgment. He was convicted of first-degree felony murder in 1987 and sentenced to mandatory LWOP. In this appeal, the court first concluded that because he “committed his crime at age 19, he is not a juvenile offender and Miller does not apply to him.” His reliance on a Connecticut federal district court decision extending Miller did not establish good cause or actual prejudice because it was not binding law. Since he filed this motion for relief from judgment, the Michigan “Supreme Court in Parks extended Miller protections to 18-year-old offenders.” But given that he was 19 years old when he committed his crime, Parks did not apply. “Because defendant did not establish good cause or actual prejudice to justify relief under MCR 6.508(D)(3), the trial court did not err by denying his motion for relief from judgment.” The court further noted that, in Czarnecki, it “expressly considered whether a defendant, who was convicted of first-degree murder at age 19, was entitled to resentencing on the grounds that a mandatory [LWOP] sentence constituted cruel or unusual punishment under Const 1963, art 1 § 16” and it determined the Parks holding “did not extend to 19-year-old offenders[.]” Thus, his facial constitutional challenge failed given this binding precedent. As to his as-applied challenge, it was “not based on any new evidence or a change in law holding that it is cruel or unusual punishment to sentence a defendant convicted under an aider and abettor theory to a” LWOP sentence. To the contrary, “Michigan law expressly permits defendant’s sentence.”
Motion for a new trial; Hearsay; Principle that extrinsic evidence of a prior inconsistent statement is admissible to impeach a witness; MRE 613(b); People v Kilbourn; People v Stanaway
The court held that the trial court did not err by denying defendant’s motion for a new trial. She was convicted of AWIGBH less than murder or by strangulation arising out of a fight with the victim. The trial court denied her motion for a new trial and sentenced her to 270 days in jail, followed by 3 years of probation. On appeal, the court rejected her argument that she was entitled to a new trial because a phone recording between a witness and an officer was inadmissible hearsay. Defendant argued that this case fell under the narrow Stanaway rule. But the prosecution argued, and the court agreed, that it fell under the general Kilbourn rule. “Defendant’s testimony went beyond the central issue in this case: the identity of who stabbed the victim.” For example, she “testified that the victim invited [her] over to the victim’s house to fight, but the victim denied this allegation.” In addition, “the victim and her mother testified that it was only defendant and the victim involved in the fight. But defendant testified that there was‘another pair of hands’ in the fight.” Further, the victim and her mother “testified that defendant had an object in her hand during the fight, but defendant denied this allegation.” Given these “material factual disputes, defendant’s credibility was pertinent on other grounds and the impeachment evidence was not excludable under Stanaway.” Affirmed.
Specific unanimity jury instruction; People v Cooks; Other acts evidence; “Domestic violence” under MCL 768.27b; People v Railer; Admission of a party-opponent; MRE 801(d)(2); Relevance; MRE 401; People v Brooks; Unfair prejudice; MRE 403; People v Blackston; Evidence of other break-ins where defendant was charged with first-degree home invasion; MRE 104(b); People v Delgado; The doctrine of chances; People v Mardlin; Ineffective assistance of counsel; Failure to raise a futile objection; Prejudice; Cumulative error
The court held that the trial court did not commit plain error in giving a general unanimity jury instruction or in admitting other acts evidence. The court rejected defendant's ineffective assistance of counsel claims, and because no errors were found, his cumulative error claim also failed. Thus, it affirmed his first-degree home invasion conviction. The case arose after he broke into his ex-girlfriend’s home and stole property. As to his claim he was entitled to a specific unanimity instruction, the court concluded the “acts presented as evidence of the underlying felony for defendant’s first-degree home invasion charge were not ‘conceptually distinct,’ and ‘distinct proofs’ were not provided for each alternative charge. Rather, materially identical evidence was presented with respect to each act, and therefore, the general unanimity instruction provided by the trial court was sufficient.” Turning to his other acts evidence challenges, the court first found that the evidence “admitted under MCL 768.27b, and discussed in the prosecutor’s closing argument as ‘gaslighting,’ were statements admissible as an admission of a party-opponent because they were statements made by defendant to the victim.” In addition, his statements were “relevant because they were of consequence to the jury’s determination of the nature of the relationship between defendant and the victim, which was related to the determination of the victim’s credibility as a witness and whether defendant was guilty as charged.” As to evidence of his other break-ins, the “victim’s testimony that it was defendant who broke into her home and left a condom wrapper and ring on her couch was admissible because sufficient evidence was introduced to support the finding that defendant committed that act.” There was sufficient evidence connecting him “to the break-in, including the ring left behind, [his] response when confronted about the incident, and the fact that the victim and defendant were in a dating relationship at the time.” The court further found that her testimony that on the evening of “the same day as the charged incident, she returned home to another break-in, was” likewise admissible. And the court held that her testimony about returning home days later “to another break-in was admissible under the doctrine of chances.”
Sentencing; Proportionality; People v Posey
On remand, the court again affirmed defendant’s convictions and sentences. He was convicted of delivery of a controlled substance causing death, arising from the death of one of the victims, and delivery of a controlled substance causing death arising from the death of the other victim. The trial court sentenced him to concurrent terms of 225 months to 80 years. In a prior appeal, the court affirmed. The Supreme Court later vacated pursuant to Posey, but denied leave in all other respects. On remand, the court again affirmed. “Defendant’s convictions arise from selling what was supposed to be cocaine; four men snorted it and two died from a heroin overdose and two became ill but survived.” Defendant argued that his sentences were unreasonable and disproportionate because they “were ‘not serious in the scheme of offenses of this nature’ and he has potential for rehabilitation because he has a high school diploma.” However, he “failed to carry his burden of overcoming the presumption that his within-guidelines minimum sentences were disproportionate and unreasonable.” The trial court “did not abuse its discretion by violating the principle of proportionality in rendering its 225-month minimum sentences for defendant’s convictions.” That is, his “sentences are ‘proportionate to the seriousness of the circumstances surrounding the offense and the offender.’ Defendant bore the burden of demonstrating that his within-guidelines sentences were disproportionate but he failed to carry his burden. The sentences appropriately take into consideration ‘the reformation of the offender, the protection of society, the discipline of the offender, and the deterrence of others from committing the same offense.’”
Jury instructions; Specific unanimity instruction; People v Chelmicki; Comparing People v Albers; Principle that parents owe a legal duty of care to their child; Goodwin v Northwest MI Fair Ass’n; Ineffective assistance of counsel for 1) failure to request a specific unanimity instruction & 2) failure to consult an expert & to call an expert witness at trial to refute testimony by the prosecution’s expert; Trial strategy; Prejudice; Distinguishing People v Grant; Sentencing; Jail credit; MCL 769.11b; Mootness; People v Billings
The court held that defendant was not denied his right to a unanimous verdict or his right to the effective assistance of counsel. He was convicted of involuntary manslaughter, second-degree child abuse, possession of a controlled substance, and maintaining a drug house after the death of his two-month-old infant son, who died while sleeping in a bed with him. The trial court sentenced him as a second-offense habitual offender to concurrent prison terms of 7 to 22½ years for the manslaughter conviction, 10 to 15 years for the child abuse conviction, and 365 days each for the convictions of possession of a controlled substance and maintaining a drug house, with credit ultimately for 390 days served. On appeal, the court rejected his argument that he was denied his right to a unanimous jury verdict because the prosecution argued two alternative theories of his guilt of involuntary manslaughter and failed to provide a specific unanimity instruction advising the jury it was required to unanimously agree on one of the two theories. “[I]n convicting defendant, the jury ‘would have had to have effectively made findings of fact that meant defendant was guilty under the first theory even if some or all jurors based their votes to convict on the second theory.’” Under these circumstances, the failure to provide a specific unanimity instruction was not erroneous. The court also rejected his claim that trial counsel was ineffective by (1) failing to request a specific unanimity instruction and (2) failing to consult an expert and to call an expert witness at trial to refute testimony by the prosecution’s expert regarding the cause of the child’s death. It noted he did not establish “that counsel’s failure to request a specific unanimity instruction was objectively unreasonable.” And he could not show he was prejudiced by it. In addition, “[u]nlike in Grant, the record in this case reflect[ed] that trial counsel investigated the possibility of presenting expert testimony regarding the cause of the child’s death, but reasonably determined, after consulting a qualified expert and considering the medical examiner’s equivocal preliminary examination testimony, that he would be able to establish on cross-examination that the effect of the meth[] exposure on the child was uncertain and that it could not be determined to a reasonable degree of medical certainty that the meth[] exposure was a cause of the child’s death, and that any testimony by a defense expert would likely be consistent with such testimony.” Finally, the court found that because he already received the relief he requested as to additional days of jail credit, the issue was moot and did not need to be considered further. Affirmed.
Motion for proceedings supplementary to judgment; Michigan’s Uniform Voidable Transactions Act (UVTA); Dillard v Schlussel; “Constructive fraud”; MCL 566.35; “Reasonably equivalent value”; MCL 566.33
Concluding that the trial court erred by failing to apply the proper analysis when denying plaintiff’s motion for proceedings supplementary to judgment, the court vacated and remanded. The case arose out of a nearly $54 million loan that plaintiff made to defendant-Schubiner’s company, Packard Square, in 2014 to finance the construction of a luxury retail and residential development project. Plaintiff moved for post-judgment supplementary proceedings seeking to set aside defendant’s conveyances of property to intervening defendant-305 under Michigan’s UVTA. The parties did “not dispute that plaintiff demonstrated the first element, that its claim arose before the transfer. The trial court found, and the record demonstrates, that plaintiff obtained a judgment against defendant on [12/17/19], for approximately $14 million. Defendant testified that on [1/16/20], he transferred the property from 305 to himself, then incurred the debt of $1.5 million, used the money to eliminate the existing debt owed on the property, then transferred the property from himself back to 305 on [1/20/20].” However, the trial court determined that plaintiff failed to establish the second or third elements. The trial court “erred in its analysis of whether defendant received reasonably equivalent value in exchange for the transfer.” The court noted that the “purpose of the UVTA is to prevent debtors from transferring their assets in bad faith before creditors can reach them.” In this case, “the trial court denied relief to plaintiff without properly considering the statutory factors for constructive fraud.”
Divorce; Equitable division of marital assets; Berger v Berger; The trial court’s discretion in setting the value of marital assets; Thompson v Thompson; Reopening the proofs; Child support under the Michigan Child Support Formula (MCSF); Imputed income; 2021 MCSF 2.01(G)(1); Stallworth v Stallworth; Effect of an arbitration agreement as to the division of personal property; Whether a written agreement was necessary; MCL 600.5071; Bayati v Bayati
The court held that the trial court did not err in its division of the parties’ marital property. After the parties’ divorce, the trial court found they were each entitled to half the value of their joint investment account. It also imputed $200,000 in income to defendant-ex-husband as to his child-support obligations and allocated the entirety of a loan he made to a friend against his share of the marital estate. On appeal, the court rejected his argument that the trial court’s award of the investment account was disproportionate because by the time it was divided it had lost significant market value from the trial court’s valuation date. Because the trial court’s valuation of the account was on the basis of unchallenged evidence, it was within the trial court’s discretion to set it. And he made “no argument on appeal that the trial court erred in declining to reopen proofs to address this issue.” The court also rejected his claim that the trial court erred when it failed to account for plaintiff-ex-wife’s spending out of the account after the valuation date. “[T]he trial court’s decision to reject husband’s request to consider [plaintiff’s] spending was not an abuse of discretion, because [defendant] (1) failed to timely offer evidence of [such] spending, and (2) did not make any argument explaining why the reopening of proofs was appropriate in this case.” The court next rejected plaintiff’s contention on cross-appeal that the trial court erred by imputing only $200,000 towards defendant’s child support obligation because the evidence showed he could have earned more money. The trial court explicitly considered his historical earnings and her argument to the contrary failed to explain why its consideration of the remaining factors was erroneous. The court further rejected defendant’s argument that the trial court erred by rejecting the parties’ oral agreement to arbitrate any contested issues involving the distribution of their personal property. “Bayati did involve a written arbitration agreement; the dispute was the interpretation of that agreement. Thus, [defendants’] assertion that a written agreement is unnecessary is meritless.” Finally, it rejected his claim that the trial court imposed an inequitable ruling when it attributed the loan to his friend as completely against his share of the marital estate. “While the ultimate disposition of the . . . loan was not ‘equal,’ [his] arguments on appeal do not explain why the trial court’s decision to attribute [it to him] was ‘inequitable.’ In the absence of such an argument,” the court could not conclude the distribution of the marital estate was inequitable. Affirmed.
Asylum; “Refugee” status; 8 USC § 1158(b); Membership in a “particular social group” subject to persecution; § 1101(a)(42); “Nexus” between the protected characteristic & the persecution; Withholding of removal; Convention Against Torture (CAT); Effect of failing to report the harassment to government authorities; 8 CFR § 1208.18(a)(1); Board of Immigration Appeals (BIA); Immigration judge (IJ)
On petition for review of the BIA’s decision affirming the IJ’s denial of asylum, withholding of removal, and CAT protection, the court denied petitioner-Sabastian-Andres’s (a Mayan Akateko woman from Guatemala) petition, agreeing with the BIA that she failed to show a “nexus” between her intimidator’s threats and her identity as an indigenous woman. The IJ denied all her claims for relief, and the BIA agreed with the IJ “that there was no nexus between the threats made to her and her particular social group”—indigenous Maya women. The court agreed, citing petitioner’s own testimony that the individual (Pedro) threatened her because he “wanted her to be his wife and join his gang[.]” She replied affirmatively when the IJ asked her if it were true that she was not threatened because she was indigenous. The court noted that the fact Pedro was “also Mayan Akateko does not automatically doom Sabastian-Andres’s asylum claim.” The court could “imagine scenarios where a member of some disfavored group mistreats another member of that same disfavored group because of their group membership. But the fact remains that Sabastian-Andres did not offer up any of these scenarios when asked. Instead, she confirmed that her Mayan Akateko identity had nothing to do with Pedro’s threats.” The court concluded her testimony undermined the academic evidence she presented about the prejudice in Guatemala toward indigenous women. Thus, the court held that it could not say that the IJ and the BIA lacked substantial evidence to conclude that petitioner failed to provide the requisite nexus. This lack of nexus was also fatal to her request for withholding of removal. As to protection under the CAT, she never reported the threats to the police, and there was evidence that Guatemalan authorities are making efforts to address the problems.
Auto negligence; Motion for a new trial based on the trial court’s jury instructions; Weller v Mancha; Fordon v Bender; Moseley v Dati; MCR 2.661(A)(1); Motions for additur or remittitur; MCR 2.611(E); Inquiry into a jury’s damages verdict; Palenkas v Beaumont Hosp
The court concluded that “affirming the jury’s verdict was not outside the range of principled and reasonable outcomes given the evidence that was presented at trial, and the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial or additur.” Plaintiff was injured when she was walking and defendant hit her while driving. Plaintiff first argued “that the trial court erred by denying her motion for a new trial because the trial court’s instructions, concerning” two questions from the jury “were an error of law.” While she relied on Weller, Fordon, and Moseley, the court noted that the Michigan Supreme Court has ruled these cases are no longer relevant given that MCR 2.661(A)(1) was codified. “Further, the jury did award damages in this case.” Plaintiff’s claim that its “award was lowered because the trial court provided improper instructions in answering the questions, is better expressed in her argument that the jury award was too low and, thus, the trial court erred by denying her motion for additur.” The parties agreed that the Supreme Court, in Palenkas, “held that the inquiry into a jury’s verdict for damages should be limited to objective considerations, but a comparison of jury awards in analogous cases can provide an objective means of determining the range of appropriate awards even though they are not exact indicators. Plaintiff presented two similarly situated cases in which the plaintiff suffered an ankle fracture as a result of a vehicle collision and was awarded over $300,000 in noneconomic damages. Thus, according to plaintiff, the jury’s award in this case was unreasonably low.” However, she ignored “that the jury was presented with testimony concerning plaintiff’s injuries at the time of trial and the likelihood that her injuries would persist into the future. Accordingly, the jury awarded plaintiff damages consistent with that evidence. Even though the other cases presented by plaintiff suggest a range of appropriate awards in this case, the jury’s verdict was reasonable when considering the facts presented at trial.”
Termination under § 19b(3)(j); In re Hudson; Admission of a child’s statements into evidence at the adjudication phase; In re Archer; MCR 3.972(C)(2); Witness credibility; Children’s best interests; In re White; Effect of relative placement
The court held that the trial court did not abuse its discretion in ruling that hearsay statements made by one of respondent-father’s children (R) were admissible at trial under MCR 3.972(C)(2)(a). It also held that the trial court did not clearly err in finding that terminating respondent’s rights under § (j) was proper and that doing so was in the children’s best interests. Thus, it affirmed the termination order. The court first determined that the “circumstances surrounding [R’s] statements provided adequate indicia of trustworthiness.” Witness-S, who conducted R’s forensic interview, “was qualified as a trained forensic interviewer of children, and the trial court found [S’s] testimony to be ‘very credible,’ ‘thoughtful and earnest.’ [S] testified she followed the forensic interviewing protocol which is designed to obtain information in a ‘nonleading, non-bias forensically sound manner.’ [S] interviewed [R] in a room that was suitable for a child of his age; [R] was four years old at the time. The room included things like Play-Doh and ‘fidget toys,’ and [S] testified it is common for children to play with objects while being interviewed. During the forensic interview, [R] reported to [S] that respondent digitally penetrated his anus on two occasions in” the city where respondent lived at the relevant times. According to S, R “described the assaults using age-appropriate terminology.” As to a statutory ground for termination, “the trial court found that respondent sexually abused [R] and refused to take responsibility for his actions. Respondent also subjected the children to domestic violence early in their lives.” The trial court further concluded it was “likely the children would be subjected to neglect if placed in respondent’s care because [he] elected not to work at times and had unstable housing. Respondent acknowledged he is not and was not involved in” the other child’s (E) education. R “will likely require specialized services because of his autism diagnosis, and there is no indication respondent will provide for these needs. Indeed, [he] did not participate in” R’s therapy before the proceedings began. Further, he did not have a relationship with E “because he stopped attending supervised parenting times years earlier, and [he] has an unhealthy, inappropriate relationship with” R given that he “subjected him to sexual abuse.”