The Clean Water Act; The Endangered Species Act; The National Environmental Policy Act; The Clean Water Act requirement that oil pipeline operators submit response plans addressing the risk of a potential oil spill; 33 USC § 1321(j)(5)(A)(i); 49 CFR § 194.101(a); § 1321(j)(5)(E)(iii); Sierra Club v. U.S. Forest Serv.; Whether the defendant-Department of Transportation was required to comply with the Endangered Species Act before approving the response plan; 16 USC § 1536(a)(2); 50 CFR § 402.03; National Ass’n of Home Builders v. Defenders of Wildlife; 33 USC § 1342(b); “Discretion” & “judgment”; Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.; Sierra Club v. Federal Energy Regulatory Comm’n (DC Cir.); Florida Key Deer v. Paulison (11th Cir.); Dorris v. Absher; Pittman v. Experian Info. Solutions, Inc.; Rulemaking authority; Manhattan Gen. Equip. Co. v. Commissioner; 49 CFR §§ 194.5 & 194.115(a); “Consistent”; NL Indus., Inc. v. Kaplan (9th Cir.); An annex; §§ 300.210(c)(4)(i) & (ii)(I); Whitman v. American Trucking Ass’ns; Whether defendant was required to prepare an environmental impact statement under the National Environmental Policy Act; 42 USC § 4332(C); Department of Transp. v. Public Citizen; Pacific Legal Found. v. Andrus; Sierra Club v. Babbitt (9th Cir.); Alaska Wilderness League v. Jewell (9th Cir.)

[This appeal was from the ED-MI.] The court reversed summary judgment for plaintiff-National Wildlife Federation on its claims against defendant-Secretary of Transportation (the agency) and intervening defendant-Enbridge Energy arising from the “Line 5” pipeline, holding that neither the Endangered Species Act nor the National Environmental Policy Act required the agency to consider environmental criteria not listed in the Clean Water Act. Enbridge was required to submit plans detailing its prospective response to an oil spill in the Straits of Mackinac. The Secretary approved those plans, but the National Wildlife Federation sued for violations of the Clean Water Act and other statutes. The district court found that Enbridge had satisfied the Clean Water Act’s enumerated criteria for response plans, but granted the Federation summary judgment, ruling that the agency was required to comply with the Endangered Species Act and the National Environmental Policy Act before it could approve the plans. The court considered the Endangered Species Act’s requirement that federal agencies consult with environmental authorities before approving a plan. It held that under Supreme Court precedent, Home Builders, the requirement only applied to “discretionary” agency actions, and that approving a plan was a statutory requirement when the criteria are met. The court rejected the Federation’s attempt to argue that the agency “has ‘discretion’ because it exercises some degree of ‘judgment’ when it evaluates the enumerated criteria.” The court concluded that Home Builders foreclosed this reasoning. Thus, the court held that the agency was not required to comply with the Endangered Species Act’s consultation requirement. It also held that the agency was not required to comply with the National Environmental Policy Act’s requirement for an environmental impact statement, concluding that “like the consultation requirement, the impact-statement requirement does not apply to all major agency actions; it applies only to discretionary ones.” The court found that the agency was not required to consider environmental criteria not listed in the Clean Water statute “simply because the agency exercises some degree of judgment when it considers the statutory criteria.” Remanded.

Confirmation of an arbitration award; Scope of review; TSP Servs., Inc. v. National-Standard, LLC; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass’n; Whether arbitrators exceeded their powers; Detroit Auto. Inter-Ins. Exch. v. Gavin; When an award should be vacated; Collins v. Blue Cross Blue Shield of MI; Comparative fault statutory defense to liability; Lamp v. Reynolds; MCL 600.2957(1); Speculative damages in a tort action; Health Call of Detroit v. Atrium Home & Health Care Servs., Inc.; Limited liability company (LLC)

Concluding that the trial court properly found that the arbitration panel’s decision rested in part on proximate cause and damages issues, which were beyond the scope of judicial review, the court held that it did not err in confirming the arbitration award. After unsuccessfully trying to negotiate a leave of absence from defendant-law firm, plaintiff went ahead with an internship in college football coaching. He “requested an expulsion vote from the firm, but the firm deemed him to have voluntarily withdrawn from his membership and declined to conduct a vote.” He later sued the firm and defendants-managing members on the ground “that he had not been expelled from the firm and had not voluntarily withdrawn . . . .” The case went to arbitration, and the panel concluded that he “was not entitled to relief because he voluntarily withdrew from his membership with the firm and had not sufficiently proved proximate cause or the amount of damages.” He moved to vacate the award, on the basis that it “contained legal errors in its interpretation of former MCL 450.4509” (voluntary withdrawal from a LLC) and in “its proximate cause and damages determinations,” while defendants moved to confirm the award on the basis the panel did not make “an error of statutory construction and its proximate cause and damages decisions were unreviewable.” Agreeing with defendants, the trial court confirmed the award. On appeal, the court likewise concluded that the arbitration panel did not erroneously apply the law in finding that plaintiff did not prove proximate cause and damages, and that “the trial court did not err when it found that the determinations were not reviewable.” The panel ruled that “regardless of whether former MCL 450.4509 applied, plaintiff had not satisfied his burden to prove that the firm’s conduct, rather than his own conduct, damaged him.” The court noted that “the parties’ comparative fault was a defense to all conduct, not merely negligent conduct.” Given that the amount of relative fault is a fact question, the trial court was correct that this determination was not reviewable. Further, a review of the panel’s determination that plaintiff’s damages were speculative would require the trial court to weigh the evidence before the panel. The court also concluded that the panel’s findings on proximate cause and damages resolved the “case regardless of its interpretation of former MCL 450.4509.” Affirmed.

Dispute over attorney fees incurred for a contested guardianship proceeding; Article V, part 3 of the Estates & Protected Individuals Code (MCL 700.5301 et seq.); MCL 700.5305; Indigency determination; MCL 700.5305(3)

The court held that the probate court erred by ordering payment of appellee-attorney’s (Orlando) fees incurred for services at a contested guardianship hearing. However, it held that fees may be imposed for Orlando’s prehearing services because the appointment was proper during that time. The probate court appointed Orlando as appellant-guardian’s (Todd) mother’s (Griffin) attorney for the contested guardianship proceedings. It eventually released her and directed her to bill the estate. Todd objected to the attorney fees, but the probate court rejected his objection. On appeal, the court agreed with Todd that the probate court erred by allowing Orlando to remain as Griffin’s counsel at the contested guardianship hearing. It noted that although the probate court correctly appointed legal counsel, the conditions that necessitated appointed counsel had been resolved. The probate court dismissed the original petition and, “more importantly, Griffin had retained counsel.” Under the circumstances, the probate court “lacked statutory authority to continue Orlando’s appointment.” As such, there was “no basis for requiring Griffin to pay Orlando’s fees for services rendered at the hearing. The statute contemplates that the individual alleged to be incapacitated will pay one attorney, either one she retains or court-appointed counsel.” The court also agreed with Todd that Griffin was entitled to a determination of indigency before the probate court may order payment of the remaining fees. “Ideally, a claim that Griffin could not afford payment of appointed counsel’s fees would have been made earlier in the proceedings. On the other hand, it is understandable that this issue was not raised until after Todd received Orlando’s bill. In any event, the issue was raised before the probate court and the statute is clear that the state must bear the expense of legal counsel if Griffin is indigent.” Thus, Griffin was “entitled to a determination on that matter before she can be compelled to pay Orlando’s fees. The probate court abused its discretion by not addressing Griffin’s ability to pay after Todd raised that issue.” Reversed and remanded for further proceedings.

Relevance; MRE 401 & 402; People v. Mills; People v. Layher; Unfair prejudice; MRE 403; People v. Crawford; Prosecutorial misconduct; People v. Bahoda; People v. Ackerman; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Ericksen; Sufficiency of the evidence; People v. Reese; People v. Oros; First-degree premeditated murder; MCL 750.316(1)(a); People v. Bennett; Identity; People v. Fairey; Felon in possession (FIP)

The court held that the trial court did not abuse its discretion in admitting evidence, that the prosecution did not commit misconduct, that defendant was not denied the effective assistance of counsel, and that the evidence was sufficient to establish his identity. He was convicted of first-degree premeditated murder, FIP, and felony-firearm. The trial court sentenced him to 2 years for felony-firearm, followed by concurrent prison terms of life without parole for first-degree murder and 48 months to 80 months for FIP. On appeal, the court rejected his argument that the trial court abused its discretion by allowing irrelevant evidence about a potential witness (C) who was murdered by defendant’s nephew, noting the evidence was relevant to assist in the evaluation of witness-B’s credibility. “Defendant’s contention that [B’s] testimony—she feared for her life and had been threatened—was irrelevant lacks merit. Such testimony had relevance to assist the jury in evaluating her credibility as a witness.” It also rejected his claim that even if relevant, the trial court should have excluded it because it was substantially more prejudicial than probative by associating him with the murder of C. “[T]he trial court limited the evidence of [C’s] murder and precluded any evidence that defendant had been present when his nephew committed the murder. The evidence that the trial court permitted did not place defendant at the scene of [C’s] murder or suggest that defendant had any involvement in” it. The court next rejected his contention that the prosecutor committed misconduct and violated his right to a fair trial when he deliberately elicited irrelevant and unfairly prejudicial testimony regarding C’s murder and urged the jury to convict him on the basis of their civic duty and fears, and that he was denied the effective assistance of counsel because his counsel failed to object to the misconduct. The prosecutor “referenced the matter to argue why the jury should believe” B and find her trial testimony credible, which did not constitute misconduct, and thus, counsel was not required to make a futile objection. Finally, it rejected his argument that the prosecution presented insufficient evidence to establish that he murdered the victim, finding this argument meritless. Affirmed.

Ineffective assistance of counsel; People v. Harmon; Failure to make a futile objection; People v. Crews; Search & seizure; Per se unreasonableness of warrantless searches; People v. Beuschlein; Consent & exigent circumstances exceptions; People v. Davis; People v. Mahdi; People v. Chowdhury

Holding that the police did not obtain the jacket in question in violation of defendant’s Fourth Amendment rights and thus, defense counsel was not ineffective for failing to make a futile objection to its admission into evidence, the court affirmed his unarmed robbery conviction. The case arose from a purse snatching. Both the victim and a man who chased the suspect testified that the suspect was wearing a brown leather jacket and had entered a multi-unit house. After defendant was detained, police conducted a protective sweep of the apartment he had been in and found a brown leather jacket in a closet. They conducted the sweep because he told them “that his cousin had stopped by the apartment and left after defendant would not open the door.” He argued on appeal that the police obtained the jacket in an unconstitutional search and thus, defense counsel was ineffective for failing to object to its admission. The court held that his statements about “his cousin provided the police a specific reason to be concerned that someone else was present in the apartment who posed a potential threat to the officers and the downstairs residents. This was especially true given [a police witness’s] testimony that he did not believe defendant’s story and” thus, did not trust his claim that his cousin had left. “The quick and limited protective sweep of the apartment in this case was reasonable on these facts.” Further, the police witness testified that, while “he believed that the officers had detained the robbery suspect because defendant matched the suspect’s description, a protective sweep was necessary to confirm that no other potential suspect was hiding in the apartment and to prevent an escape. Because preventing the escape of a suspect constitutes an exigent circumstance and an exception to the warrant requirement, the officers’ search of the apartment to prevent the escape of another potential suspect was reasonable under the circumstances.” Further, the later search during which the jacket was collected was conducted with the apartment resident’s consent. Defense counsel was not ineffective for failing to object to properly obtained evidence.

Claim the prosecution presented perjured testimony; People v. Schrauben; Willful false testimony requirement; In re Contempt of Henry; Mere contradictions in a witness’s testimony; People v. Parker; Credibility determinations; People v. Cameron; People v. Perry; Admission of a witness’s recorded conversations with defendant; MCL 750.539c; Eavesdrop or eavesdropping defined; MCL 750.539a(2); Sullivan v. Gray; Lewis v. LeGrow; Ineffective assistance of counsel; People v. Grant; Failure to investigate; People v. Trakhtenberg; People v. Russell; Failure to be present for defendant’s meeting with law enforcement officials; Failure to raise a futile objection; People v. Thomas

The court concluded that defendant failed to show that the prosecution knowingly presented perjured testimony, and held that a witness (G) did not violate MCL 750.539c when he recorded his conversations with defendant. It also rejected defendant’s ineffective assistance of counsel claims. Thus, the court affirmed his second-degree arson conviction. He argued that G’s testimony was contradictory because if he had been working for the company that owned the burned property for just two years as of 10/18, then he could not have been employed by that company in 10/15, when he purportedly worked on the burned home after the fire. But G’s testimony was not necessarily contradictory. It was ambiguous whether he was still working for the company “at the time of trial or whether he was referring to a prior two-year period with the company.” Further, his testimony indicated “that two years was an estimation because his initial answer was ‘[a]bout two years.’ Perjury requires willful false testimony.” In addition, the court noted that “mere contradictions in a witness’s testimony are insufficient to establish that a prosecutor knowingly presented perjured testimony.” There was no evidence the prosecution tried to conceal any discrepancies in G’s testimony, and he could have been impeached by defense counsel. As to the admissibility of G’s recorded conversations with defendant, G did not violate MCL 750.539c when he recorded them because G was a participant in the conversations. Finally, defendant did not establish prejudice due to defense counsel’s alleged error in failing to investigate G’s employment records or show that the alleged failure to investigate the company’s owner constituted ineffective assistance. As to counsel’s failure to attend a meeting defendant had with law enforcement, an officer “testified that defendant came into the police station and asked to speak to him. The police officer informed defendant that his attorney should be present when they speak, and defendant responded that his attorney did not need to be there. Defendant also acknowledged that he initialed an advice of rights form[.]” Finally, as to the failure to object to the recordings on the basis they had missing data, he offered no proof that there were other recordings that were favorable to the defense, and in light of the prosecution’s other evidence, he failed to show that the outcome would have changed.

Sentencing; Jurisdiction; 28 USC § 1291; Whether 18 USC § 3742 applies to cases seeking a sentence reduction under the First Step Act (the Act); § 3582(c)(1)(B); § 3742(a); United States v. Bowers; United States v. Marshall; Dorszynski v. United States; United States v. Booker; United States v. Foreman; Procedural reasonableness; United States v. Rayyan; United States v. Garner (Unpub. 6th Cir.); Substantive reasonableness; § 3553(a)

The court held that it had jurisdiction to review the denial of defendant-Richardson’s motion under the First Step Act for a reduction on his revocation sentence under § 1291. It then held that his claim failed on the merits. He pled guilty to several charges involving crack cocaine, and the district court sentenced him to five years in prison and a term of supervised release. During his term of supervised release, he was convicted in state court of first-degree assault, and the district court revoked his supervised release. It later denied his motion to reduce his revocation sentence under the First Step Act. The court first considered the issue of jurisdiction. It held that it had jurisdiction under § 1291, and that §3742(a), which limits the sorts of claims that a defendant may bring on appeal, did “not provide the basis or the criteria for reviewing the denial of Richardson’s request for a lower sentence.” Turning to his appeal on the merits, the court rejected his claim that the district court denied his eligibility for a reduction under the Act where the record clearly showed the contrary. He next argued that his sentence was procedurally unreasonable because the district court “ignored his post-sentencing conduct.” However, the court held that the district court adequately explained its bases for denying the motion, noting case precedent providing that “‘a district court generally need not expressly mention a sentencing argument or alternative, so long as the record as a whole shows that it considered the issue.’” He then argued that his sentence was not substantively reasonable because the district court focused too closely on his past criminal record. Although this can be a basis for reversal, the court held that the district court adequately considered the other § 3553(a) factors. Thus, the appeal failed on the merits. Affirmed.

Whether defendant’s Affidavit of Identity (AOI) was facially proper; The Michigan Election Law (MCL 168.1 et seq.); Stand Up For Democracy v. Secretary of State; Berry v. Garret; Attestation requirements; MCL 168.31; Whether the AOI was defective where the signature date differed from the notarization date; MCL 168.558(1), (2), & (4); MCL 55.285; People v. Sloan; Rataj v. City of Romulus; Holmes v. Michigan Capital Med. Ctr.; Delegation of authority to the Secretary of State to issue instructions for the conduct of elections & prescribe uniform forms; Coalition to Defend Affirmative Action & Integration v. Board of State Canvassers

The court held that defendant’s AOI was not defective even though the signature date differed from the notarization date. Thus, it reversed and vacated the trial court’s ruling and remanded for entry of an order directing that her candidacy be certified to the board of election commissioners. The trial court disqualified defendant from placement on the 8/4/20 primary election ballot for the office of Ypsilanti Township Clerk, finding her AOI was facially defective because she failed to strictly comply with the Secretary of State’s attestation instructions. On appeal, the court held that “as long as the AOI has been signed by the candidate and notarized in a manner allowed under MCL 168.31, the AOI strictly complies with the attestation requirements implicit in MCL 168.558 and the clerk has a legal duty to certify the affiant to the board of election commissioners for placement on the ballot.” Here, there was “no question that [defendant] signed her” AOI, and “no question that the notarization on the AOI is facially compliant with MCL 55.285(1)(b), (4), (6)(c), which authorizes a notary to witness and attest to a signature made in the presence of the notary.” The notary attested in that notarization that she signed her AOI before him on 4/21/20. As such, she “strictly complied with the attestation requirement” and the trial court “erred in reaching a contrary conclusion.” The court noted that the Secretary of State’s instructions “do not have the force of law.” Moreover, under the instructions, “the entry of a date by the affiant candidate is not an express impediment to rendering the writing a proper and valid affidavit, as while they instruct the person to ‘read, sign, and date’ the attestation, they also provide that the affidavit is not complete until it has been ‘signed and notarized,’ with no mention of the affiant candidate’s entry of a date. And MCL 55.285 does not require a notary to attest to the accuracy of the date affixed to the writing by the affiant. Although the Secretary of State may advise a candidate to date the AOI at the time of signing,” the court could not “conclude that the Secretary of State may create an impediment to the ballot by imposing a date requirement not sanctioned by the Legislature or necessary to the establishment of a proper and valid affidavit.” Holding defendant “to strict compliance with the requirements of MCL 168.558,” the court concluded that she “filed a facially-compliant AOI for purposes of MCL 168.558.”

The Clean Water Act; The Endangered Species Act; The National Environmental Policy Act; The Clean Water Act requirement that oil pipeline operators submit response plans addressing the risk of a potential oil spill; 33 USC § 1321(j)(5)(A)(i); 49 CFR § 194.101(a); § 1321(j)(5)(E)(iii); Sierra Club v. U.S. Forest Serv.; Whether the defendant-Department of Transportation was required to comply with the Endangered Species Act before approving the response plan; 16 USC § 1536(a)(2); 50 CFR § 402.03; National Ass’n of Home Builders v. Defenders of Wildlife; 33 USC § 1342(b); “Discretion” & “judgment”; Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.; Sierra Club v. Federal Energy Regulatory Comm’n (DC Cir.); Florida Key Deer v. Paulison (11th Cir.); Dorris v. Absher; Pittman v. Experian Info. Solutions, Inc.; Rulemaking authority; Manhattan Gen. Equip. Co. v. Commissioner; 49 CFR §§ 194.5 & 194.115(a); “Consistent”; NL Indus., Inc. v. Kaplan (9th Cir.); An annex; §§ 300.210(c)(4)(i) & (ii)(I); Whitman v. American Trucking Ass’ns; Whether defendant was required to prepare an environmental impact statement under the National Environmental Policy Act; 42 USC § 4332(C); Department of Transp. v. Public Citizen; Pacific Legal Found. v. Andrus; Sierra Club v. Babbitt (9th Cir.); Alaska Wilderness League v. Jewell (9th Cir.)

[This appeal was from the ED-MI.] The court reversed summary judgment for plaintiff-National Wildlife Federation on its claims against defendant-Secretary of Transportation (the agency) and intervening defendant-Enbridge Energy arising from the “Line 5” pipeline, holding that neither the Endangered Species Act nor the National Environmental Policy Act required the agency to consider environmental criteria not listed in the Clean Water Act. Enbridge was required to submit plans detailing its prospective response to an oil spill in the Straits of Mackinac. The Secretary approved those plans, but the National Wildlife Federation sued for violations of the Clean Water Act and other statutes. The district court found that Enbridge had satisfied the Clean Water Act’s enumerated criteria for response plans, but granted the Federation summary judgment, ruling that the agency was required to comply with the Endangered Species Act and the National Environmental Policy Act before it could approve the plans. The court considered the Endangered Species Act’s requirement that federal agencies consult with environmental authorities before approving a plan. It held that under Supreme Court precedent, Home Builders, the requirement only applied to “discretionary” agency actions, and that approving a plan was a statutory requirement when the criteria are met. The court rejected the Federation’s attempt to argue that the agency “has ‘discretion’ because it exercises some degree of ‘judgment’ when it evaluates the enumerated criteria.” The court concluded that Home Builders foreclosed this reasoning. Thus, the court held that the agency was not required to comply with the Endangered Species Act’s consultation requirement. It also held that the agency was not required to comply with the National Environmental Policy Act’s requirement for an environmental impact statement, concluding that “like the consultation requirement, the impact-statement requirement does not apply to all major agency actions; it applies only to discretionary ones.” The court found that the agency was not required to consider environmental criteria not listed in the Clean Water statute “simply because the agency exercises some degree of judgment when it considers the statutory criteria.” Remanded.

 Whether the policy’s fraud-exclusion clause governed plaintiff-pedestrian’s claim for no-fault benefits; Shelton v. Auto-Owners Ins. Co.; No-fault priority statute; MCL 500.3114(4); Fraud; Bahri v. IDS Prop. Cas. Ins. Co.; Mina v. General Star Indem. Co.

In this case involving a pedestrian’s claim for no-fault benefits, the court reversed the trial court order granting defendant-Progressive summary disposition, and remanded. Plaintiff-Hoeft was stuck by a vehicle driven by Progressive’s insured, T. Progressive argued that the language in the policy’s fraud-exclusion clause was “clear, unambiguous and enforceable against” Hoeft and his mother, also a plaintiff. However, Hoeft’s claim was “governed by the statute, not the no-fault policy, and the parties did not address the source of his no-fault benefits in the proceeding below.” Resolution of this case was governed by Shelton, where the court “held that an insured who is not a party to the no-fault policy, but who is eligible for benefits pursuant to the no-fault statutory priority provision, MCL 500.3114, is not subject to the policy's fraud exclusion.” In this case, “Hoeft was injured while a pedestrian, and because neither he nor his spouse or resident relative had a no-fault policy, Progressive was required to pay him no-fault benefits pursuant to MCL 500.3114(4), not pursuant to Progressive’s contractual agreement with its insured.” And as a result, he was not subject to the fraud-exclusion clause included in T’s no-fault policy. But, as noted in Shelton, “a no-fault insurer may deny a claim that it believes to be fraudulent.” Nonetheless, the court noted that a unilateral denial is “not the end of the matter, but rather merely the initiation of a disagreement that, if suit is brought, must ultimately be resolved by a court.” Thus, it reviewed whether there was a question of fact as “to whether Hoeft and his mother committed fraud in connection with the attendant-care claim.” As to the allegation of fraud based on Hoeft’s mother’s statement about the number of hours of attendant care, Progressive contended that this statement was false. The court held that to the extent that the trial court found no question of fact relating to the alleged fraud, it “erred because it did not properly view the evidence in the light most favorable to Hoeft and his mother.” The court found that a reasonable jury could determine that they were “attempting to accurately account for the time she spent providing attendant care and the time that Hoeft’s stepfather provided attendant care.” Also, a jury could decide “that, although the attendant-care forms contained discrepancies, when Hoeft’s mother completed them she did so based on her belief that the forms were accurate and so she did not intend to defraud Progressive.” Finally, the surveillance records were “insufficient to establish clear evidence of fraud and the absence of a disputed question of material fact.”

Confirmation of an arbitration award; Scope of review; TSP Servs., Inc. v. National-Standard, LLC; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass’n; Whether arbitrators exceeded their powers; Detroit Auto. Inter-Ins. Exch. v. Gavin; When an award should be vacated; Collins v. Blue Cross Blue Shield of MI; Comparative fault statutory defense to liability; Lamp v. Reynolds; MCL 600.2957(1); Speculative damages in a tort action; Health Call of Detroit v. Atrium Home & Health Care Servs., Inc.; Limited liability company (LLC)

Concluding that the trial court properly found that the arbitration panel’s decision rested in part on proximate cause and damages issues, which were beyond the scope of judicial review, the court held that it did not err in confirming the arbitration award. After unsuccessfully trying to negotiate a leave of absence from defendant-law firm, plaintiff went ahead with an internship in college football coaching. He “requested an expulsion vote from the firm, but the firm deemed him to have voluntarily withdrawn from his membership and declined to conduct a vote.” He later sued the firm and defendants-managing members on the ground “that he had not been expelled from the firm and had not voluntarily withdrawn . . . .” The case went to arbitration, and the panel concluded that he “was not entitled to relief because he voluntarily withdrew from his membership with the firm and had not sufficiently proved proximate cause or the amount of damages.” He moved to vacate the award, on the basis that it “contained legal errors in its interpretation of former MCL 450.4509” (voluntary withdrawal from a LLC) and in “its proximate cause and damages determinations,” while defendants moved to confirm the award on the basis the panel did not make “an error of statutory construction and its proximate cause and damages decisions were unreviewable.” Agreeing with defendants, the trial court confirmed the award. On appeal, the court likewise concluded that the arbitration panel did not erroneously apply the law in finding that plaintiff did not prove proximate cause and damages, and that “the trial court did not err when it found that the determinations were not reviewable.” The panel ruled that “regardless of whether former MCL 450.4509 applied, plaintiff had not satisfied his burden to prove that the firm’s conduct, rather than his own conduct, damaged him.” The court noted that “the parties’ comparative fault was a defense to all conduct, not merely negligent conduct.” Given that the amount of relative fault is a fact question, the trial court was correct that this determination was not reviewable. Further, a review of the panel’s determination that plaintiff’s damages were speculative would require the trial court to weigh the evidence before the panel. The court also concluded that the panel’s findings on proximate cause and damages resolved the “case regardless of its interpretation of former MCL 450.4509.” Affirmed.

Governmental immunity; The Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq.); Disparate-impact & disparate-treatment claims under the Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); Principle that the GTLA does not grant immunity from ELCRA claims; Does 11-18 v. Department of Corr.; Whether the gravamen of the claims sounded in tort; Diamond v. Witherspoon; Distinguishing Robinson v. City of Detroit; Whether the cases should be transferred to the Court of Claims; Doe v. Department of Transp.

Given that plaintiffs did not expressly allege an ordinary tort claim, but rather asserted disparate-impact and disparate-treatment claims under the ELCRA, the court rejected the argument by defendants-State of Michigan and Michigan State Police that they were entitled to immunity under the GTLA. It also declined their request to have the case transferred to the Court of Claims. It affirmed the trial court’s denial of their motion for summary disposition under MCR 2.116(C)(7). These consolidated appeals arose from auto accidents involving “MSP patrol cars engaged in high-speed chases. As alleged, plaintiffs were bystanders who were injured or killed as a result of the chases, and plaintiffs sued defendants.” Their complaints did “not allege that defendants owe them no-fault benefits or any ordinary tort-related relief.” Instead, they asserted claims under the ELCRA. The GTLA does not “grant immunity for civil-rights claims under the ELCRA.” Defendants contended that the gravamen of plaintiffs’ allegations sounded “in tort, not disparate impact or treatment.” The court noted that it considered a similar issue in Diamond, where it permitted plaintiffs to pursue ELCRA claims “based on alleged sexual assaults committed by a police officer. The plaintiffs in that case could have brought ordinary tort claims, but they did not, and this Court declined the invitation to rewrite the complaints.” The court also found defendants’ reliance on Robinson unpersuasive, noting that the plaintiff there did not raise an ELCRA claim. Here, the court concluded that “plaintiffs are masters of their complaints, and they did not expressly allege an ordinary tort claim.” It did not have to decide “whether the gravamen of the allegations could support an ordinary tort claim, because plaintiffs have made plain that they are not pursuing such a claim.” In addition, given that defendants did not raise the issue of whether the gravamen of the allegations supported a viable ELCRA claim in their motions, this was not before the court. Relatedly, given that “the trial court has concurrent jurisdiction over ELCRA claims against state defendants,” the court declined to transfer the cases to the Court of Claims.

Motion to terminate the PPO; Pickering v. Pickering; Hayford v. Hayford; Pirgu v. United Servs. Auto Ass’n; Ross v. Auto Club Group; Berryman v. Mackey; MCL 600.2950a(1); Stalking; MCL 750.411h; MCL 750.411h(1)(d); MCL 750.411s(1); Aggravated stalking; MCL 750.411i

Given the trial court’s lack of record findings supporting the entry of a PPO under the statutes, the court vacated the order denying respondent’s motion to terminate the PPO and remanded to allow the trial court to make reviewable findings. The parties each have a child with the same man—M. They accused each other of “harassment and other misdeeds.” The trial court stated that it “could not discern ‘what the truth is,’ but declined to terminate an ex parte PPO because it was ‘concerned about the level of animosity that’s going on.’” It decided “to continue the PPO without resolving the credibility dispute between the parties, without making sufficient findings of fact on the record, and based on hearsay. The parties gave conflicting testimony and directly contradicted each other’s allegations.” The trial court was required to find that one side was “more credible than the other.” Had it done so, the court would be required to defer to its assessment. But it did not resolve the credibility dispute; it stated, “I don’t know what the truth is.” If the trial “court could not gauge the truth, it could not conclude that the PPO was properly entered.” Further, it “failed to make findings of fact supporting the entry of a PPO.” It cited its “concern[] about the level of animosity that’s going on.” However, the court held that “animosity does not equate with a ‘willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.’” And although the trial court could not determine how respondent knew where petitioner and M lived, it “did not find that respondent used her knowledge of petitioner’s address to engage in activity that amounted to stalking. [It] found that petitioner had blocked respondent on social media but that respondent had contacted petitioner and her sister in the past. [It] further found that respondent had ‘no need . . . to talk to [petitioner] or contact her anyway.’” The court held that this did not amount to a violation of MCL 750.411s. “Petitioner alleged that respondent had created fake Facebook profiles in an attempt to contact petitioner after she had been blocked on social media. This might amount to repetitive unconsented contact. However, petitioner presented no evidence tracing the false accounts back to respondent. And the trial court did not resolve the parties’ contradictory testimony in that regard.”

Dispute over attorney fees incurred for a contested guardianship proceeding; Article V, part 3 of the Estates & Protected Individuals Code (MCL 700.5301 et seq.); MCL 700.5305; Indigency determination; MCL 700.5305(3)

The court held that the probate court erred by ordering payment of appellee-attorney’s (Orlando) fees incurred for services at a contested guardianship hearing. However, it held that fees may be imposed for Orlando’s prehearing services because the appointment was proper during that time. The probate court appointed Orlando as appellant-guardian’s (Todd) mother’s (Griffin) attorney for the contested guardianship proceedings. It eventually released her and directed her to bill the estate. Todd objected to the attorney fees, but the probate court rejected his objection. On appeal, the court agreed with Todd that the probate court erred by allowing Orlando to remain as Griffin’s counsel at the contested guardianship hearing. It noted that although the probate court correctly appointed legal counsel, the conditions that necessitated appointed counsel had been resolved. The probate court dismissed the original petition and, “more importantly, Griffin had retained counsel.” Under the circumstances, the probate court “lacked statutory authority to continue Orlando’s appointment.” As such, there was “no basis for requiring Griffin to pay Orlando’s fees for services rendered at the hearing. The statute contemplates that the individual alleged to be incapacitated will pay one attorney, either one she retains or court-appointed counsel.” The court also agreed with Todd that Griffin was entitled to a determination of indigency before the probate court may order payment of the remaining fees. “Ideally, a claim that Griffin could not afford payment of appointed counsel’s fees would have been made earlier in the proceedings. On the other hand, it is understandable that this issue was not raised until after Todd received Orlando’s bill. In any event, the issue was raised before the probate court and the statute is clear that the state must bear the expense of legal counsel if Griffin is indigent.” Thus, Griffin was “entitled to a determination on that matter before she can be compelled to pay Orlando’s fees. The probate court abused its discretion by not addressing Griffin’s ability to pay after Todd raised that issue.” Reversed and remanded for further proceedings.

Termination under § 19b(3)(g); In re White; In re Schadler; In re Mason; In re Medina; In re Frey; Children’s best interests; In re Olive/Metts Minors

Holding that § (g) existed and termination of respondent-mother’s parental rights was in the children’s best interests, the court affirmed. She had the financial ability to provide proper care and custody of her children. The record reflected that she generally maintained employment during the pendency of the case. However, she failed to provide proper care and custody for her children. G “suffered severe, life-threatening physical abuse that likely occurred before, during, and after his stay with respondent’s mother in” 12/15. She also failed to provide proper care and custody of T. The DHHS removed T “from respondent’s care after multiple individuals reported that, with T present, respondent continued having contact with T’s father, who had a history of violence. Further, during an unannounced home visit, a caseworker found that respondent had left T in the care of a babysitter who did not know his name.” The record also indicated that she “failed to abide by safe sleep practices.” A caseworker observed T “sleeping on the couch close to a space heater that could have fallen on him.” Respondent argued “that she benefited from therapy because she realized why her relationships were dangerous to” her children. The record, however, reflected that she “failed to consistently participate in and benefit from services. She stopped attending her therapy which limited her progress.” The record reflected that the trial court found that during the pendency of the case, “respondent failed to be truthful about many things.” The record indicated that the “children were removed from respondent’s care and placed in the care of others. Respondent failed to attend all parenting time visits. Respondent also failed to show that she had fully addressed her history of being in abusive relationships.” The record further reflected that she failed to maintain stable housing. The record showed that the DHHS “presented sufficient evidence from which the trial court properly found that clear and convincing evidence established that respondent, although financially able to do so, failed to provide the children proper care and custody, and no reasonable expectation existed that respondent would be able to provide proper care and custody within a reasonable time considering the children’s ages.”

Termination under § 19b(3)(c)(i); Principle that the mere present inability to personally care for one’s children due to imprisonment is not sufficient to support termination; In re Mason; Appropriateness of termination when the respondent has not accomplished any meaningful change in the conditions existing at the time of adjudication; In re Williams; Appropriateness of termination when the parent’s parenting skills improved, but the parent continued to expose the child to dangerous individuals. In re White; Principle that only one statutory ground must be proven; In re Ellis; Adjudication; In re Kanjia; Best interests of the children; In re Olive/Metts Minors

Holding that § (c)(i) was proven, and that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her parental rights were terminated based on her substance abuse and related incarceration, and her refusal to provide the children with proper care and support. On appeal, the court first noted that the jury’s finding that adjudication was appropriate was supported by a preponderance of the evidence. It next rejected respondent’s argument that the DHHS failed to prove a statutory ground for termination. “The conditions that led to adjudication included housing, employment, and drug use.” Her housing situation “remained unresolved, she remained unemployed, and she continued to use drugs and associate with drug users.” While she was released on bond, it was revoked because she incurred other meth-related charges. Finally, the court rejected her claim that termination was not in the children’s best interests. Although the trial court properly considered her bond with the children and their placement with relatives, “the evidence also indicated that the children needed permanency and finality. The trial court heard testimony that the children were adoptable.” It could also properly consider her “failure to comply with her service plan when it determined whether termination was in the children’s best interests.” Finally, while their “paternal grandparents were willing to continue to care for the children, they sought a long-term placement and they were concerned about their ability to continue caring for the children.”

Termination under § 19b(3)(c)(i); In re VanDalen; In re Moss Minors; In re Foster; In re Williams; Child’s best interests; In re Olive/Metts Minors; In re White; In re Medina; Reasonable reunification efforts; In re Fried; In re Mason; In re Rood; In re Frey; The Americans with Disabilities Act; In re Hicks/Brown; In re Terry

Holding that § (c)(i) existed, termination of respondent-mother’s parental rights was in the child-I’s best interests, and the DHHS made reasonable efforts towards reunification, the court affirmed. The DHHS submitted to the trial court a complaint and requested to place I in temporary custody just over one month after her birth. It “alleged that respondent used marijuana during her pregnancy and that [I] was born positive for marijuana.” Further, the pediatrician diagnosed I “with failure to thrive one month after her birth because she was not gaining the appropriate amount of weight. The pediatrician gave respondent a special bottle nipple to feed [I], but respondent threw it away because it was blue and [I] was a girl. The pediatrician instructed respondent to chart [I’s] feedings, yet respondent refused to do so.” Also, the DHHS “alleged that respondent was offered Maternal Infant Health and Early On services on multiple occasions throughout her pregnancy and after giving birth, but” she refused to accept a referral. Respondent had a long history of being involved in relationships with men who were registered sex offenders, and was also allowing her boyfriend, a registered sex offender, to do I’s night feedings. The court held that the “trial court record supported that, at the time of termination, a condition or conditions that led to adjudication continued to exist, despite the reasonable efforts of DHHS to reunify respondent and” I. Given these circumstances, it did not clearly err by holding “that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering” I’s age, and that termination was proper under § (c)(i).