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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Title VII retaliation, 42 USC § 2000; Jurisdiction over a defendant’s judicial estoppel appellate claim; Jurisdiction as to the district court’s reinstatement order; 28 USC § 1292(a)(1); Whether the reinstatement order was proper as a matter of law
In this Title VII retaliation case, the court held that a party’s judicial estoppel appellate claim cannot create an exception to the “final order” jurisdictional rule. It also held “that judicial estoppel need not be applied to claims of equitable relief not disclosed in prior bankruptcy proceedings” and that the district court did not abuse its discretion by granting plaintiff-McGruder’s reinstatement. She sued defendant-Metro Nashville after it fired her, alleging it did so in retaliation for her investigation into instances of racial discrimination at one of its schools. After she filed this case, she filed for Chapter 7 bankruptcy, failing to disclose her retaliation suit. A jury awarded her $260,000. and the district court ordered Metro Nashville to reinstate her to her prior position. After it filed its notice of appeal, Metro Nashville argued that the district court should invoke judicial estoppel and dismiss the case with prejudice based on “manifest injustice” and “abuse of the judicial process.” The district court ruled that it could not exercise jurisdiction over the judicial estoppel claim as it had already been divested of jurisdiction. The court first considered whether it could “exercise jurisdiction over Metro Nashville’s judicial estoppel arguments as they relate to non-final orders from the district court.” It determined that “Metro Nashville’s appeal of the reinstatement order falls within one of the few exceptions to” the rule that the court only has jurisdiction over final orders. But that was the only issue over which it had jurisdiction because the other claims Metro Nashville asked it to judicially estop were “not final, appealable orders” before it. The court held that “a party’s judicial estoppel claim cannot create a previously unrecognized exception to the long-standing jurisdictional rule that generally appellate courts have authority to rule only on final orders from district courts.” As to the reinstatement order, the court concluded judicially “estopping McGruder’s reinstatement would not serve the goals of the doctrine.” It noted that such a claim would likely not have been relevant to the bankruptcy court in its disposition of her debts. It further found that the reinstatement order was “proper as a matter of law.” It rejected Metro Nashville’s argument that the order contradicted the factual record, finding no error. As to its assertion “that a district court abuses its discretion in ordering reinstatement where such reinstatement would entail displacement and where there is hostility between the parties[,]” the court noted that it has not established such a categorical rule and concluded that its precedent favored reinstatement here. It affirmed the reinstatement order and otherwise dismissed Metro Nashville’s appeal for lack of jurisdiction.
Validity of a contractual forum-selection clause; Whether a party could be bound by the clause through the “closely related” doctrine even though it was not a signatory to the contract; Whether a forum-selection clause’s applicability is distinct from & antecedent to its enforceability; The “Erie doctrine”
The court reversed the district court’s dismissal of plaintiff-Firexo Inc.’s claims under a forum-selection clause in a contract to which it was not a signatory, an agreement between defendant-Firexo Group Ltd. (FGL) and a nonparty. The court concluded “the applicability of a forum-selection clause is distinct from and antecedent to its enforceability, so courts must use the Erie approach to contract interpretation to determine the clause’s applicability under that appropriate law.” FGL, a British company, contracted with a nonparty (Smith) to sell their fire extinguishers in the U.S. They entered into a Joint Venture Agreement (JVA), wherein Smith purchased 70% of FGL’s wholly owned subsidiary, plaintiff. The JVA contained a forum-selection clause, designating England or Wales as the exclusive forum for settling disputes. Plaintiff later sued FGL in Ohio state court due to problems with FGL’s fire extinguishers, alleging various contract claims. FGL removed the case to federal court and then successfully moved to dismiss based on the forum-selection clause. On appeal, the court addressed the closely related doctrine, which the district court applied here. After considering the doctrine’s history and prior applications, the court expressed concerns about this “federal common law rule” including the lack "of consideration under the objective theory of contracts or the absence of ‘minimum contacts’ under constitutional personal-jurisdiction analysis.” It then addressed plaintiff’s contention that “a forum-selection clause’s applicability is distinct from and antecedent to its enforceability, so the district court had to begin with the ordinary Erie approach to contract interpretation, to determine the governing law and then determine applicability under that law.” The court noted that circuits are split on this issue, and that the Sixth Circuit had yet to formally take a position. It concluded plaintiff’s position on the question was stronger than FGL’s. Applying “English law as the law governing the interpretation of the JVA’s forum-selection clause[,]” the court concluded that under that governing law, “contracts do not apply to non-signatories. Therefore, the JVA does not apply to Firexo and, correspondingly, the JVA’s forum-selection clause does not apply to Firexo.” Remanded.
Ineffective assistance of counsel; Decision not to call an expert witness; Prejudice
In an order in lieu of granting leave to appeal, the court reversed the part of the Court of Appeals judgment (see e-Journal # 77682 in the 7/6/22 edition) that ruled defendant’s trial counsel was not ineffective, and remanded the case to the trial court for a new trial. The court noted the trial court determined “that defense counsel’s testimony was not credible and that his decision to not call expert witness [M] was deliberate but unreasonable. The record does not reveal any reasons overcoming the trial court’s superior ability to evaluate witness testimony such that its findings of fact could be called clearly erroneous.” The court further found that, “contrary to the Court of Appeals majority’s conclusion, the defendant has shown a reasonable likelihood of a different trial result but for the failure to call [M] as a witness. The proposed expert’s testimony would not have harmed the defense case in any appreciable way, but rather would have provided a concrete explanation of the decedent’s death as a suicide rather than a homicide.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Ineffective assistance of counsel; Remand for an evidentiary hearing pursuant to People v Ginther
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals judgment (see e-Journal # 80611 in the 12/11/23 edition) concerning defendant’s claim that his trial counsel was ineffective for failing to challenge the jury instructions. The court remanded the case to the trial court for a Ginther hearing as to this claim. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Sentencing; Proportionate & reasonable; Operating while intoxicated (OWI)
The court held that defendant did not demonstrate error warranting resentencing. This case arose out of a hit-and-run resulting in the death of a pedestrian. Defendant was convicted of OWI causing death. He was sentenced as a fourth-offense habitual offender to 200 to 400 months with credit for 345 days served. He argued that his sentence, though within the guidelines range, was disproportionate and unreasonable. He asserted it was “disproportionate because his substance abuse and mental health issues were mitigating factors that the trial court either rejected or treated as aggravating factors.” After reviewing the record, the court concluded that he had “not established that either of these issues were the type of ‘unusual circumstances’ that would render his presumptively proportionate sentence disproportionate.” Il noted that “a trial court is not required to consider a defendant’s mental health or substance abuse history when imposing a sentence.” Further, he overlooked that “trial courts are not required to expressly or explicitly consider mitigating factors at sentencing.” It appeared “that the trial court reviewed the PSIR and considered its contents when imposing defendant’s sentence.” He failed to establish “that the trial court was required to consider his substance abuse history and mental health when imposing his sentence, nor does the record support defendant’s contention that the trial court failed to consider these factors.” Thus, he had “not established that the trial court abused its discretion by failing to consider these factors at sentencing.” Defendant also argued “that his sentence violates the principle of proportionality because it was based on general principles, rather than individualized considerations.” The court held that he “failed to establish that the trial court based his sentence on general principles rather than the individualized circumstances of the offense and the offender.” Defendant finally argued “that the trial court abused its discretion by noting during sentencing that ‘there is an argument for second-degree murder[.]’” He contended that its “comments suggest that it considered the original charge of second-degree murder, rather than the lesser charge of OWI causing death to which defendant pleaded no contest.” Defendant mischaracterized the trial court’s statements. Even if his interpretation of its statement was “correct, however, ‘a sentencing court may consider the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing.’” Defendant pled “no contest to OWI causing death in exchange for the dismissal of the count of second-degree murder. Thus, even if the trial court considered the second-degree murder charge in imposing defendant’s sentence,” he did not show that it “abused its discretion by doing so.” Affirmed.
Search & seizure; Motion to suppress; Whether defendant’s Miranda rights were violated; Whether the protective sweep of his motel room violated the Fourth Amendment; Whether a witness’s testimony about a firearm was “unfairly prejudicial” under FRE 403; Lack of proper notice the witness would testify; FRE 404(b)(3); Sentencing; Application of the four-level enhancement for using or possessing a firearm in connection with another felony offense (USSG § 2K2.1(b)(6)(B)); Procedural reasonableness of a consecutive sentence imposed for violating the conditions of supervised release
The court held that defendant-Lester was not entitled to Miranda warnings where an officer’s question was not an interrogation and the question was permissible under the “public safety” exception. Further, there was no Fourth Amendment violation. The court also rejected his challenges to admission of a witness’s testimony and to his sentencing. He was convicted of FIP of a firearm. On appeal, he first argued that an officer questioned him without first giving him Miranda warnings. When patting him down, an officer asked Lester if there was “anything else on you, any other drugs, anything that would stick or harm me.” Lester answered that there was only some marijuana in his room. He asserted that all evidence from the search of his motel room should be suppressed, including a .40 caliber pistol. But the court held that Miranda did not apply because there was no interrogation. The question merely asked for information the officer was already entitled to learn in a search incident to Lester’s arrest. While Lester responded to the “question with self-incriminating evidence about something that” was not on his person, “an interaction doesn’t transform into an ‘interrogation’ merely because a suspect voluntarily offers an ‘unexpected and unresponsive’ answer.” The court added that even if the question was an interrogation, it would be covered under the public safety exception. Further, the gun was not subject to suppression where Lester’s answer was voluntary. The court also rejected his claim that the protective sweep of his motel room violated the Fourth Amendment where “there was an independent source for the fruits of the search[.]” Next, Lester objected for the first time that a witness’s testimony about his possession of the gun was unfairly prejudicial. But the court explained that the “temporal proximity” of her observation to his arrest made her testimony more probative than prejudicial. Further, he did not show plain error related to the fact he was not given notice she would testify until right before she took the stand. Lester’s sentencing challenges also failed. The court found that the four-level enhancement under § 2K2.1(b)(6)(B) was supported by the evidence. And it held that the district court’s decision to impose a 17-month consecutive sentence for violating his supervised-release conditions related to his prior ammunition-possession conviction “was procedurally adequate.” Affirmed.
Medical malpractice; Affidavit of merit (AOM) requirement; MCL 600.2912d(1); Ottgen v Katranji
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 80110 in the 9/8/23 edition) and remanded the case to the trial court, holding that the trial court properly denied defendants’ summary disposition motion. Defendants “moved for summary disposition under MCR 2.116(C)(7), arguing only that the plaintiff’s medical malpractice claim was barred by the applicable statute of limitations due to his failure to file a timely and valid” AOM. But pursuant to Ottgen, “‘[f]iling an AOM under MCL 600.2912d(1) is not required to commence a medical malpractice action and toll the statutory limitations period. Instead, the normal tolling rules apply to medical malpractice actions, and tolling occurs upon the filing of a timely served complaint.’” The court noted it was undisputed that “plaintiff filed and served his complaint within the applicable statute of limitations for a medical malpractice action.” Thus, denial of defendants’ motion was proper. In light of the limited basis upon which they sought summary disposition below, the court did not need to address whether they might be entitled to it on any other basis.
Action alleging damage to real property due to flooding caused by bridge modifications; Statute of limitations (SOL); MCL 600.5805(2); Accrual; MCL 600.5827; Analyzing the “gravamen” of the complaint
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 80430 in the 11/9/23 edition) to the extent it ruled that plaintiff’s claims were barred by the applicable SOL, vacated the trial court’s order granting defendants summary disposition, and remanded the case to the trial court. The court held that the trial court and the Court of Appeals “erred by analyzing the gravamen of the plaintiff’s claims collectively.” The court instructed the trial court on remand to reconsider defendants’ motions for summary disposition under MCR 2.116(C)(7) “while individually determining the accrual date for each of the plaintiff’s five pleaded claims for purposes of its” SOL. The court concluded the “lower courts erred by analyzing the ‘gravamen’ of the plaintiff’s complaint rather than each individual claim when determining when the claims accrued. While it is appropriate to determine the gravamen of a legal claim when that cause of action has been filed with a different label to avoid an applicable period of limitations, this analysis should not be used to prevent a plaintiff from bringing multiple different legal claims that are each supported by a viable legal theory and are legally plausible given the facts that have been alleged.” The court noted that with the possible exception of his declaratory relief claim, it appeared undisputed plaintiff’s claims were subject to a three-year limitations period under MCL 600.5805(2). But each of his claims “have distinct legal elements and, if analyzed independently, could result in different accrual dates if the elements of each claim were alleged to have been satisfied at different times.” The court directed the trial court “to individually analyze each pleaded legal claim in relation to the operative facts and determine the earliest date on which all the required legal elements occurred and could have been pleaded in a complaint.” As to the SOL and accrual date for the declaratory judgment count, the trial “court should also determine whether the claim can fairly be read as seeking a declaration of the parties’ rights and obligations under the easement regarding the repair and maintenance of the bridge or whether the claim is actually an independent tort action in disguise.”
Auto negligence; The no-fault threshold of a “serious impairment of body function”; McCormick v Carrier; Patrick v Turkelson; Independent Medication Examination (IME)
Holding that plaintiff did not establish a genuine issue of material fact as to the no-fault “serious impairment of body function” threshold, the court affirmed the trial court’s order granting defendant summary disposition. The court noted that there did not appear to be any “dispute over the extent of plaintiff’s injuries sustained in the” parties’ auto accident. They were detailed in an emergency department physician’s report, and those findings were uncontested. Thus, under McCormick, it was “appropriate to determine whether those injuries reach the threshold for a serious impairment of body function.” Plaintiff pointed to an “IME as evidence of an objectively manifested impairment. But the report provides little support for” his position. While he cited “to a statement in the report that plaintiff’s legs are tender to the touch[,]” the court noted the report did not reflect that this was the doctor’s (H) observation “rather than plaintiff’s complaint to [H]. And, for that matter, the report states that plaintiff is able to ambulate and walks with a normal gait.” The closest the report came “to noting a physical impairment is a ‘slight weakness of his quadriceps mechanism due to the injury of his left knee.’ [H] concluded that there was no need for surgical treatment and the only restriction on plaintiff was a ‘sit/stand option with any kind of work he does.’” As to plaintiff reliance on portions of the report discussing the accident’s effect on his mental health, the court found there were “two reasons why this reliance is misplaced. First, these are not the doctor’s observations but are instead plaintiff’s reports.” Second, H was “an orthopedic surgeon, not a psychiatrist. Any discussion of plaintiff’s mental health condition is simply outside the doctor’s scope of practice.” Noting that guidance could be found in Patrick, the court concluded that what was missing here were “the objective observations that buttress plaintiff’s subjective complaints. At best, the objective evidence plaintiff submitted supports some tenderness remaining in his legs. But the objective evidence of impairment is lacking[.]” Thus, the court held that plaintiff failed to point to any “evidence of an actual impairment to an important body function.” As to the third prong, a “showing that the impairment affects the general ability to lead” his normal life, the court again found the available evidence did not support his claim.
Reasonable reunification efforts; Disability accommodations under the Americans with Disabilities Act; In re Hicks/Brown
The court held that the DHHS reasonably modified respondent-mother’s services to accommodate her disability and that these efforts were reasonable. The trial court found “182 days had elapsed since the initial disposition order, that the conditions that led to adjudication continued to exist, and that there was no reasonable likelihood that the conditions would be rectified in a reasonable amount of time.” It also found termination was in the child’s “best interests because of his special needs, the length of time he spent in foster care, his need for permanency and stability,” respondent’s “ability to care for him, and her prior termination of parental rights.” Finally, it found “DHHS made reasonable efforts to reunify the family including, drug testing, parenting time, resources on different ways to secure transportation, parenting classes, individual counseling, support in obtaining a driver’s license, education as to the child’s condition, oversight, and a psychological evaluation.” On appeal, the court rejected her argument that the DHHS failed to make reasonable reunification efforts because it failed to accommodate her intellectual disability. The record demonstrated that the DHHS assisted her with her comprehension of the child’s “medical conditions, provided her multiple resources, and actively worked to ensure [her] presence at medical appointments.” However, despite the DHHS’s “numerous services and accommodations, respondent[] unfortunately could not demonstrate an understanding of [the child’s] medical condition and needs such that she would be able to safely care for him.” Moreover, she “failed to establish that she would have fared better if other services had been offered.” Affirmed.