Federal Arbitration Act (9 USC § 1 et seq.); Rent-A-Ctr., W., Inc. v. Jackson; Henry Schein, Inc. v. Archer & White Sales, Inc.; Lamps Plus, Inc. v. Varela; Whether the arbitration agreement gave the arbitrator authority to rule on the issue of arbitrability; First Options of Chicago, Inc. v. Kaplan; West WA Corp. of Seventh-Day Adventists v. Ferrellgas, Inc. (WA App.); Incorporation of the American Arbitration Association National Rules for the Resolution of Employment Disputes (AAA Rules); Preston v. Ferrer; C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of OK; McGee v. Armstrong; In re: Auto. Parts Antitrust Litig.; Cornett v. Cmco Mtg., LLC (ED KY); Awuah v. Coverall N. Am., Inc. (1st Cir.); Contec Corp. v. Remote Solutions Co. (2d Cir.); Richardson v. Coverall N. Am., Inc. (3d Cir.); Simply Wireless, Inc. v. T- Mobile US, Inc. (4th Cir.); Petrofac, Inc. v. DynMcDermott Petrol. Operations Co. (5th Cir.); Fallo v. High-Tech Inst. (8th Cir.); Brennan v. Opus Bank (9th Cir.); Dish Network L.L.C. v. Ray (10th Cir.); Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship (11th Cir.); Qualcomm Inc. v. Nokia Corp. (Fed. Cir.); Chevron Corp. v. Ecuador (DC Cir.); Commonwealth Edison Co. v. Gulf Oil Corp. (7th Cir.); “Including”; Burgess v. United States; Whether the district court denied a plaintiff leave to amend his complaint; D.E.&J. Ltd. P’ship v. Conaway (Unpub. 6th Cir.); PR Diamonds, Inc. v. Chandler (Unpub. 6th Cir.); Fed.R.Civ.P. 7(b); Crosby v. Twitter, Inc.

[This appeal was from the ED-MI.] The court held that the district court properly sent this case to arbitration where the incorporation of the AAA Rules into an arbitration agreement is “‘clear and unmistakable” evidence that the parties agreed to arbitrate the issue of arbitrability, given that the AAA Rules give arbitrators the exclusive authority to decide that issue. Plaintiff-Piersing and a fellow former employee of defendant-Domino’s Pizza sued Domino’s under federal antitrust and state law. Domino’s moved to compel arbitration. Piersing argued that the arbitration agreement he had signed was unenforceable because Domino’s never signed the agreement, only the franchise had signed. The district court granted Domino’s motion and sent the case to the arbitrator. The court discussed the Supreme Court’s heightened standard for arbitrability—“‘clear and unmistakable’ evidence that the parties agreed to have an arbitrator decide such issues.” Piersing’s agreement established that it would be controlled by the AAA Rules, which provide that the arbitrator can rule on “‘any objections with respect to the existence, scope or validity of the arbitration agreement.’” The issue was whether this constituted clear and unmistakable evidence that he “agreed to arbitrate ‘arbitrability.’” The court noted that district courts in this circuit, along with several of its sister circuits, have long ruled that that the incorporation of the AAA Rules into an agreement is “‘clear and unmistakable’ evidence that the parties agreed to arbitrate ‘arbitrability.’” While Piersing offered several arguments why the court “should be the first circuit court in the country to find that the incorporation of the AAA Rules doesn’t provide ‘clear and unmistakable’ evidence that he agreed to arbitrate ‘arbitrability[,]’” the court found none persuasive. It also rejected his claim that the district court improperly denied him leave to amend where he failed to file “a motion for leave to amend—as contemplated by the Federal Rules of Civil Procedure as well as the local rules.” Affirmed.

Motion to strike an affidavit & motion in limine to preclude testimony; Interpretation of MCR 2.412; Wilcoxon v. Wayne Cnty. Neighborhood Legal Servs.; Mediation; MCR 2.411(A)(2); Mediation communications; MCR 2.412(B)(2) & (C); Confidentiality; Mediation party; MCR 2.412(B)(3); Mediation participant; MCR 2.412(B)(4); Purpose & duty of a receiver; Band v. Livonia Assoc.; Westgate v. Westgate; Mediation proceedings; MCR 2.411(C)(2); Attorney-client privilege; Herald Co., Inc. v. Ann Arbor Pub. Sch.; McCartney v. Attorney Gen.; Stephenson v. Golden; Motion to amend the complaint; MCR 2.116(I)(5); MCR 2.118(A)(2); Miller v. Chapman Contracting; Anton, Sowerby & Assoc, Inc. v. Mr C’S Lake Orion, LLC; Undue delay; Traver Lakes Cmty. Maint. Ass’n v. Douglas Co.; Futility; Gonyea v. Motor Parts Fed. Credit Union; MCR. 2.118(D); Accrual; MCL 600.5827; Supplemental pleading; MCR 2.118(E); Jawad A Shah, MD, PC v. State Farm Mut. Auto. Ins. Co.; Defamation; Mitan v. Campbell; Ghanam v. Does; Lakin v. Rund; Sarkar v. Doe; Thomas M Cooley Law Sch. v. Doe 1; Summary disposition under MCR 2.116(C)(8); Beaudrie v. Henderson; Lack of specificity; Fraudulent concealment; MCL 600.5855; Doe v. Roman Catholic Archbishop of Archdiocese of Detroit; Mays v. Snyder; Summary disposition under MCR 2.116(C)(10) when discovery was incomplete; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Bellows v. Delaware McDonald’s Corp.; MCR 2.116(H) affidavits; Marilyn Froling Revocable Living Tr. v. Bloomfield Hills Country Club; Personal injury protection (PIP)

In Docket No. 348231, the court held that the trial court abused its discretion in granting defendants’ motion to strike an attorney’s (AW) affidavit and motion in limine to preclude her testimony based on a finding that defendant-Findling’s statements to her were confidential and inadmissible mediation communications. Thus, the order striking her affidavit and ordering her testimony inadmissible evidence was vacated. Also, given this, the court reversed the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(10) and remanded for consideration of her affidavit and testimony. In Docket No. 350126, it affirmed summary disposition to defendants. At the center of the case was plaintiff’s representation of a client in a case against a nonparty law firm for malpractice and conversion of attorney fees. The client allegedly suffered a brain injury as a result of his auto accident(s). AW bought PIP cases on the client's behalf. In Docket No. 348231, when defendant-Findling became aware of the context of the utterances attributed to him, he filed a motion in limine and motion to strike, which the trial court granted. The basis of the trial “court’s decision was that the statements were made within a confidential and privileged environment under MCR 2.412.” Plaintiff argued that the trial court abused its discretion in granting defendants’ motion to strike AW’s affidavit and motion in limine to preclude her testimony. The court agreed. “The expectation of confidentiality belongs to the mediation parties.” Findling attended the “mediation as a Receiver, not a mediation party.” His statements to AW “were also not mediation communications.” The court held that sitting “in a room designated for plaintiff neither made him the party plaintiff nor did his presence in that room start the mediation.” AW and Findling were not going to learn from the mediation whether the client “was involved in drug related activities. Instead, the purpose of the discussion was related to future discovery that needed to be done in the PIP action, and not the mediation.” No evidence supported defendants’ position that Findling’s statements to AW “were protected from disclosure by the attorney-client privilege.”

Right of confrontation; Crawford v. Washington; People v. Chambers; United States v. Owens; Davis v. Washington; California v. Green; Testimonial statements; Ohio v. Clark; Primary purpose of an interrogation; Bryant v. Michigan; Hearsay; MRE 801(c); Admissibility under MRE 803(2) (excited utterance) & (4) (medical treatment or diagnosis); People v. Layher; People v. Smith; People v. McLaughlin; People v. Mahone; People v. Meeboer (After Remand); Harmless error; People v. Shepherd; Admissibility of former testimony under MRE 804(b)(1); People v. Meredith; People v. Farquharson; People v. Johnson; Unavailability; MRE 804(a)(5); People v. Bean; Testimony about other acts of domestic violence against a former girlfriend; MCL 768.27b(1); MRE 403; People v. Cameron; People v. Pattison; People v. Propp; People v. Watkins; The victim’s statements about other acts of domestic violence; MCL 768.27c(1) & (2); People v. Meissner; MCL 768.27c(5)(a)-(b); People v. Nunley; Sentencing; Scoring of OV 13; MCL 777.43(1)(c) & (2)(a); “Felony”; MCL 761.1(f)

The court held that the trial court did not abuse its discretion in admitting the victim’s statements to her mother, the 911 dispatcher, a deputy, and an ER doctor, or in admitting the mother’s preliminary exam testimony. Further, it rejected defendant's challenges to the admission of a former girlfriend’s testimony about other acts of domestic violence under MCL 768.27b(1), and the victim’s hearsay statements about other acts of domestic violence under MCL 768.27c(1). Finally, it upheld the 25-point score for OV 13 in sentencing him. Thus, it affirmed his domestic assault (third offense) conviction and his sentence as a fourth offense habitual offender to 3 to 15 years. The court concluded that the victim’s statement to her mother constituted “an excited utterance because it was made approximately five minutes after she was assaulted and defendant drove off with” their child. While it was made in response to a question her mother asked (what happened), “the immediate nature of the exchange qualified as an excited utterance. It was made while she was under the stress of excitement caused by a startling event, there was no time to contrive or misrepresent what had happened, and the statement was relating to the startling event. Additionally, there was no violation of defendant’s confrontation rights because the statement made to her mother, not law enforcement personnel, was nontestimonial in nature. The statement was made approximately five minutes after she had been assaulted and left on the side of the road while defendant drove off with the child over whom she had sole legal and physical custody. These circumstances reflect a statement made during an ongoing emergency, not to assist in a potential prosecution.” It also found that the statements in her 911 call and to a deputy were excited utterances. Further, the circumstances indicated that her “statements to the doctor were for the primary purposes of diagnosing her medical condition and determining appropriate treatment options, not for the purpose of prosecuting a case against defendant.” As to the admission of her mother’s preliminary exam testimony, because she was unavailable, and defendant had “both the ‘opportunity’ and a ‘similar motive’ to develop” her testimony, it was admissible under MRE 804(b)(1).

Sentencing; Reasonableness of an out-of-guidelines sentence; People v. Lampe; People v. Steanhouse; People v. Beck; Larceny; MCL 750.356(2)(a); Carjacking statute; MCL 750.529a; People v. Roberts (On Remand); Judgment of sentence (JOS)

Bound by Beck, the court held that “when the trial court explicitly stated that defendant committed carjacking, contrary to the jury verdict, it relied upon acquitted conduct in violation of” his due-process rights. Thus, it vacated his JOS and remanded. He was convicted of larceny and sentenced to 5 to 10 years. He argued the trial court violated his right to due process by imposing an out-of-guidelines sentence after it determined that he carjacked the victim, even though he was acquitted of carjacking. Defendant contended that it should resentence him on the basis of his larceny conviction alone. When he was acquitted him of carjacking, the jury “determined that the prosecution failed to prove beyond a reasonable doubt that: (1) defendant used force or violence; (2) threatened the use of force or violence; or (3) put the victim in fear, during the commission of the larceny.” Stated otherwise, the consequence of acquittal “was that, while he stole property, the jury did not conclude that he ‘used force or violence, threatened the use of force or violence, or put the victim in fear in stealing his vehicle.’” His minimum recommended guidelines range was 19 to 38 months. During allocution, he “said that he was falsely arrested and denied that he committed the crime. Immediately thereafter, the trial court imposed its sentence of 5 to 10 years’ (60 to 120 months).” Notably, it did not have the benefit of Beck when it opined that he carjacked the victim. In Beck, the court “held that defendant was required to be resentenced because the sentencing court ‘punished the defendant more severely on the basis of the judge’s finding by a preponderance of the evidence that the defendant committed the murder of which the jury had acquitted him,’ in violation of ‘defendant’s due-process protections.’”

Waiver of right to counsel; People v. Russell; People v. Anderson; MCR 6.005(D); Jury selection; Alleged violation of Batson v. Kentucky; People v. Knight; Other acts evidence; MRE 404(b); People v. Denson; People v. Martzke (On Remand); Relevant evidence; MRE 401 & 402; Effect of a defendant’s denial of all the allegations; People v. Sabin (After Remand); Effect of the length of time between the other acts & the charged acts; People v. Yost; Evidence relevant to show defendant was a sexually delinquent person under MCL 750.335a(2)(c); Presumption jurors follow their instructions; People v. Graves; Sentencing; Imposition of two different sentences for aggravated indecent exposure & indecent exposure as a sexually delinquent person; People v. Craig; Sexually delinquent person defined; MCL 750.10a; Scoring of PRV 7; MCL 777.57(1)(a) & (b); Whether defendant was entitled to resentencing; People v. Francisco

The court held that the trial court did not err in finding that defendant’s waiver of the right to counsel was knowing and intelligent, or in later revoking his right to represent himself. It rejected his claim that there was a Batson violation during voir dire, and held that the trial court did not err in admitting other acts evidence under MRE 404(b). But the trial court erred in sentencing him to two different sentences for his aggravated indecent exposure and indecent exposure as a sexually delinquent person convictions, and in scoring 20 points for PRV 7. Thus, while the court affirmed his indecent exposure by a sexually delinquent person and CSC IV convictions and sentences, it vacated his aggravated indecent exposure conviction and sentence, and remanded for correction of the judgment of sentence and sentencing investigation report. Defendant said several times that he wanted to represent himself. The trial court reminded him at least twice that he “was facing a potential minimum of 37 years’ imprisonment with the possibility of life.” It explained that his request “was comparable to electing to perform his own surgery. Defendant acknowledged the risk, but nonetheless expressed that he wished to move forward and represent himself. The trial court then determined that defendant could represent himself with defense counsel as standby counsel.” The court found that “the trial court satisfied all the requirements” of Anderson and MCR 6.005(D). As to revocation of the right, the record showed that his “attempt at self-representation was disruptive to the judicial process.” As to his Batson argument, defendant did not show that the trial court excused the juror in question due to racial discrimination. The court also held that the other acts evidence, which “was highly relevant to show that the alleged instances of indecent exposure occurred and that defendant was a sexually delinquent person under MCL 750.335a(2)(c)[,]” was properly admitted. However, the parties agreed that the jury’s finding that he “was a sexually delinquent person should not have been treated as a separate crime carrying a separate sentence for the purposes of MCL 750.335a.” While the court also found that PRV should have only been scored at 10 points, he was not entitled to resentencing because the change did not alter his guidelines range.

Child custody; MCL 722.28; Motion to designate a school; The best-interest factors; MCL 722.23; Effect of joint legal custody; MCL 722.26a(7)(b); Pierron v. Pierron (Pierron I & II); Remand before a different judge; Bayati v. Bayati

The court held that the trial court erred by treating defendant-father’s motion to designate a school for the parties’ child as a motion for change of custody. Thus, it vacated the order and remanded for proceedings before a different judge. He filed his motion to designate the school because the parties could not agree on where the child should attend elementary school. The trial court subsequently awarded defendant sole physical custody, modified plaintiff-mother’s parenting time to alternate weekends, designated the school, terminated defendant’s child support obligation, and ordered investigation and modification of the parties’ child support obligations. On appeal, the court agreed with plaintiff that the trial court erred when it treated defendant’s motion to designate a school as a motion for change of physical custody and granted him sole physical custody instead of designating a school. “Assuming that the trial court’s designation of [the school] was in [the child’s] best interests, such a designation would most likely effectuate a de facto change of physical custody in favor of defendant because of the close proximity of” the school to his home, “as well as his parents, but was a farther distance from plaintiff. ‘Such an effective change of custody would necessitate an additional review of the statutory best-interest factors . . . to determine whether [the proponent] could prove, by clear and convincing evidence, that the change of custody would be in the child[’s] best interests.’” Although the trial court “may eventually determine which parent would have sole custody of [the child], Pierron I mandates an additional review of the best-interest factors separate from the trial court’s review of those factors as it relates to the disputed issue, which here was school designation.” However, the trial court “only conducted a change of custody analysis,” and “erred by treating defendant’s motion to designate a school . . . as a motion for change of custody.” The court also agreed with plaintiff that remand before a different judge was advisable “to preserve the appearance of justice and that doing so will not entail excessive waste or duplication.”

Action seeking personal protection insurance (PIP) under the No-Fault Act; Submission to an independent medical exam (IME); MCL 500.3151(1); MCL 500.3153; Dismissal of an action for failure to comply with discovery; MCR 2.313(B)(2)(c); Maldonado v. Ford Motor Co.; Vicencio v. Ramirez; Kalamazoo Oil Co. v. Boerman; Dismissal for failure to comply with the Michigan Court Rules or a trial court order; MCR 2.504(B)(1); The trial court’s role in discovery; MCR 2.306(A)(1); Davis v. O’Brien; Domako v. Rowe

The court held that the trial court abused its discretion by dismissing plaintiff’s case without placing its reasoning and consideration of alternative sanctions on the record. Plaintiff sued defendant-insurer claiming it failed to pay PIP benefits for injuries he sustained when he was hit by its insured’s vehicle. Defendant eventually successfuly moved to dismiss the case due to plaintiff’s failures to attend IMEs and general lack of cooperation with discovery. On appeal, the court agreed with plaintiff that the trial court abused its discretion by dismissing the case without conducting the requisite legal analysis or evaluating alternative sanctions on the record. It acknowledged that the record amply supported “the trial court’s conclusion that plaintiff did, in fact, have a pattern of failing to comply with discovery requests until directly ordered to respond.” However, it “did not evaluate any of [the] possibilities on the record beyond bare mention of alternatively dismissing without prejudice but with costs.” In addition, the trial court’s apparent conclusion that plaintiff’s failure to attend the IME was willful was “not implausible, given his pattern of discovery violations and apparent knowledge of the various discovery notices.” However, “again, no such analysis was made on the record.” As such, it abused its discretion. “Dismissal may ultimately prove to be appropriate, but we cannot affirm a dismissal made in such a summary and unexamined manner.” Vacated and remanded.

Action seeking personal protection insurance (PIP) under the No-Fault Act; Submission to an independent medical exam (IME); MCL 500.3151(1); MCL 500.3153; Dismissal of an action for failure to comply with discovery; MCR 2.313(B)(2)(c); Maldonado v. Ford Motor Co.; Vicencio v. Ramirez; Kalamazoo Oil Co. v. Boerman; Dismissal for failure to comply with the Michigan Court Rules or a trial court order; MCR 2.504(B)(1); The trial court’s role in discovery; MCR 2.306(A)(1); Davis v. O’Brien; Domako v. Rowe

The court held that the trial court abused its discretion by dismissing plaintiff’s case without placing its reasoning and consideration of alternative sanctions on the record. Plaintiff sued defendant-insurer claiming it failed to pay PIP benefits for injuries he sustained when he was hit by its insured’s vehicle. Defendant eventually successfuly moved to dismiss the case due to plaintiff’s failures to attend IMEs and general lack of cooperation with discovery. On appeal, the court agreed with plaintiff that the trial court abused its discretion by dismissing the case without conducting the requisite legal analysis or evaluating alternative sanctions on the record. It acknowledged that the record amply supported “the trial court’s conclusion that plaintiff did, in fact, have a pattern of failing to comply with discovery requests until directly ordered to respond.” However, it “did not evaluate any of [the] possibilities on the record beyond bare mention of alternatively dismissing without prejudice but with costs.” In addition, the trial court’s apparent conclusion that plaintiff’s failure to attend the IME was willful was “not implausible, given his pattern of discovery violations and apparent knowledge of the various discovery notices.” However, “again, no such analysis was made on the record.” As such, it abused its discretion. “Dismissal may ultimately prove to be appropriate, but we cannot affirm a dismissal made in such a summary and unexamined manner.” Vacated and remanded.

Motion to strike an affidavit & motion in limine to preclude testimony; Interpretation of MCR 2.412; Wilcoxon v. Wayne Cnty. Neighborhood Legal Servs.; Mediation; MCR 2.411(A)(2); Mediation communications; MCR 2.412(B)(2) & (C); Confidentiality; Mediation party; MCR 2.412(B)(3); Mediation participant; MCR 2.412(B)(4); Purpose & duty of a receiver; Band v. Livonia Assoc.; Westgate v. Westgate; Mediation proceedings; MCR 2.411(C)(2); Attorney-client privilege; Herald Co., Inc. v. Ann Arbor Pub. Sch.; McCartney v. Attorney Gen.; Stephenson v. Golden; Motion to amend the complaint; MCR 2.116(I)(5); MCR 2.118(A)(2); Miller v. Chapman Contracting; Anton, Sowerby & Assoc, Inc. v. Mr C’S Lake Orion, LLC; Undue delay; Traver Lakes Cmty. Maint. Ass’n v. Douglas Co.; Futility; Gonyea v. Motor Parts Fed. Credit Union; MCR. 2.118(D); Accrual; MCL 600.5827; Supplemental pleading; MCR 2.118(E); Jawad A Shah, MD, PC v. State Farm Mut. Auto. Ins. Co.; Defamation; Mitan v. Campbell; Ghanam v. Does; Lakin v. Rund; Sarkar v. Doe; Thomas M Cooley Law Sch. v. Doe 1; Summary disposition under MCR 2.116(C)(8); Beaudrie v. Henderson; Lack of specificity; Fraudulent concealment; MCL 600.5855; Doe v. Roman Catholic Archbishop of Archdiocese of Detroit; Mays v. Snyder; Summary disposition under MCR 2.116(C)(10) when discovery was incomplete; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Bellows v. Delaware McDonald’s Corp.; MCR 2.116(H) affidavits; Marilyn Froling Revocable Living Tr. v. Bloomfield Hills Country Club; Personal injury protection (PIP)

In Docket No. 348231, the court held that the trial court abused its discretion in granting defendants’ motion to strike an attorney’s (AW) affidavit and motion in limine to preclude her testimony based on a finding that defendant-Findling’s statements to her were confidential and inadmissible mediation communications. Thus, the order striking her affidavit and ordering her testimony inadmissible evidence was vacated. Also, given this, the court reversed the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(10) and remanded for consideration of her affidavit and testimony. In Docket No. 350126, it affirmed summary disposition to defendants. At the center of the case was plaintiff’s representation of a client in a case against a nonparty law firm for malpractice and conversion of attorney fees. The client allegedly suffered a brain injury as a result of his auto accident(s). AW bought PIP cases on the client's behalf. In Docket No. 348231, when defendant-Findling became aware of the context of the utterances attributed to him, he filed a motion in limine and motion to strike, which the trial court granted. The basis of the trial “court’s decision was that the statements were made within a confidential and privileged environment under MCR 2.412.” Plaintiff argued that the trial court abused its discretion in granting defendants’ motion to strike AW’s affidavit and motion in limine to preclude her testimony. The court agreed. “The expectation of confidentiality belongs to the mediation parties.” Findling attended the “mediation as a Receiver, not a mediation party.” His statements to AW “were also not mediation communications.” The court held that sitting “in a room designated for plaintiff neither made him the party plaintiff nor did his presence in that room start the mediation.” AW and Findling were not going to learn from the mediation whether the client “was involved in drug related activities. Instead, the purpose of the discussion was related to future discovery that needed to be done in the PIP action, and not the mediation.” No evidence supported defendants’ position that Findling’s statements to AW “were protected from disclosure by the attorney-client privilege.”

Premises liability; Kennedy v. Great Atl. & Pac. Tea Co.; Lowrey v. LMPS & LMPJ, Inc.; Reardon v. Department of Mental Health; Hickey v. Zezulka; Wrongful-death; Ballard v. Southwest Detroit Hosp.; Hawkins v. Regional Med. Labs, PC; Fox v. Roethlisberger; Personal representative (PR)

The court held that, regardless of whether the door actually was dangerous or actually did malfunction, the evidence failed to show that defendant was on notice of any such possible defect or danger. Thus, the trial court correctly granted defendant summary disposition on plaintiff-PR’s premises liability claim. Also, as plaintiff had not articulated any alternative theory of liability, plaintiff necessarily could not maintain a wrongful death claim. The decedent “was struck by an automatic sliding door while exiting defendant’s healthcare facility.” She broke her hip, underwent surgery, and received a laceration to her head. The decedent, who was 88 years of age, died the next year due to cardiorespiratory arrest resulting from congestive heart failure. The evidence established “a question of fact whether defendant was aware that the sensor equipment installed on its door was no longer state-of-the-art, and that newer sensors had better safety features.” However, the evidence did “not establish any question of fact whether defendant was, or should have been, aware that the door was actually defective or dangerous.” Thus, the court declined “to hold that simple noncompliance with a ‘best practices’ guideline or a mere recommendation from a standards-promulgation organization such as ANSI is sufficient to communicate the presence of a defect or danger.” Plaintiff relied “on a single, vague, and out-of-context statement by one of the service technicians for the proposition that defendant knew the door was dangerous. The technician explained that his employer required him to sell upgrades, so those upgrades were almost always recommended, but the upgrades were seldom purchased due to their costs. The technician also explained that part of his service involved performing tests on the doors, and if the door was actually unsafe, he was required to shut the door down and turn it off completely.” Also, he “agreed that a door was not out of compliance just because there was a recommended upgrade.” Therefore, the only evidence defendant was on notice that the doors might be unsafe was “a vague assertion that defendant was informed that the doors could have been made safer. This in and of itself did nothing to indicate to defendant that the door was a dangerous condition.” The sensors continue to be widely used. Several worksheets explicitly provided “that the door was working properly. Moreover,” the worksheet of a technician called out to examine the door after the accident provided that it “was working properly and ‘met code.’” Also, “plaintiff’s expert appeared to agree that the newer sensor technology did not necessarily make the older sensor technology defective or dangerous.” Affirmed.

Defamation; Whether defendants’ challenged statements were capable of defamatory meaning & thus actionable; Ireland v. Edwards; Smith v. Anonymous Joint Enter.; False light invasion of privacy; Derderian v. Genesys Health Care Sys.; Rouch v. Enquirer & News of Battle Creek (After Remand); Challenges to statements made by defendants-Jatczak, Clohessy, & Survivors Network of Those Abused by Priests (SNAP); Milkovich v. Lorain Journal Co.; Philadelphia Newspapers v. Hepps; Ghanam v. Does; Kevorkian v. American Med. Ass’n

Holding that the statements in defendants’ publications were either substantially true or nonactionable opinions, the court affirmed. Plaintiff became an ordained priest in 1976. In 2009, “the Archdiocese of Detroit issued a press release announcing that allegations of sexual misconduct, dating back to the early years of his ministry, were made against plaintiff by a former parishioner at his former parish . . . .” One of the defendants-reporters wrote an article for defendant-Macomb Daily concerning plaintiff. He quoted defendant-Jatczak, of the Michigan chapter of defendant-SNAP. Defendant-Clohessy, the Executive Director of SNAP, issued a press release about plaintiff. Defendant-Free Press also published articles about plaintiff. Plaintiff argued that the trial court erred in deciding that defendants’ communications about him were not actionable. To “establish either a claim for defamation or a claim for false light invasion of privacy, the plaintiff must show that what the defendant stated was false.” Thus, the court began by addressing whether the statements and information in the articles were false. The Rouch court held that a “minor inaccuracy about which individuals identified him, as well as the technically incorrect use of legal terminology with respect to the word ‘charged,’ did not impact the substantial truth of the article.” The court concluded that the trial court did not err by ruling that there was no genuine issue of material fact as to whether the statements in the Macomb Daily and the Detroit Free Press publications “were materially false.” As to the other defendants, because the challenged statements were “not defamatory as a matter of law, the trial court did not err” in granting them summary disposition.

Personal protection order (PPO) based on stalking; MCL 600.2950a(1); Whether adequate facts were alleged; MCL 750.411h(1)(d) & (e); “Stalking”; MCL 750.411h, i, & s; “Harassment”; MCL 750.411h(1)(c) & (d); “Unconsented contact”; MCL 750.411h(1)(e)(i)-(ii); MCL 750.411i(1)(d)(i)-(ii); Credibility; McGonegal v. McGonegal; Anderson v. City of Bessemer City, NC; In re Loyd; People v. Lemmon; Scott v. Harris; Freedom of speech; TM v. MZ; New Prods. Corp. v. Harbor Shores BHBT Land Dev.; “Fighting words”; Virginia v. Black; “Insults, epithets, & personal abuse”; Chaplinski v. State of NH; “Abusive, vicious, hostile, or otherwise colorful invective speech”; RAV v. City of St. Paul, MN; Pure harassment; Saxe v. State Coll. Area Sch. Dist. (3rd Cir.)

The court held that the trial court did not err by ordering that the PPOs against respondent would remain in effect. The trial court initially granted petitioners’ requested PPOs ex parte on the basis of allegations of vehicular assault. After a subsequent hearing, it ordered that they would remain in effect. On appeal, the court first noted that the initial order was appropriate as the petitions “unambiguously allege[d] a pattern of respondent following and confronting petitioners in manners that would cause any reasonable person to feel fearful or distressed.” On their face, the petitions did not appear implausible. It next rejected respondent’s argument that the trial court abused its discretion by refusing to terminate the PPOs because she and her mother were more credible than petitioners, noting she provided “no basis for undermining the trial court’s credibility assessment here, and in fact, the objective evidence amply support[ed] it.” The evidence showed that the trial court “had ample basis for concluding that not only did respondent assault petitioners with her vehicle, but she waged a stalking campaign against them and other neighbors.” And it “appears to have exercised exemplary patience with all parties.” The court next found that respondent failed to establish any error or misconduct by the trial court, or any reason why it should “interfere with the trial court’s clearly well-supported credibility assessment.” Finally, it rejected her claim that the PPOs violate her constitutional rights. It noted that although she “would not be entitled to expand the record on appeal, she does not even make the effort to provide any evidence showing that the prohibition is in any way practically damaging to her.” Moreover, she “clearly cannot be trusted not to use access to her property as a pretext, and she does not seek any kind of compromise, such as conditioning the use of her property on not possessing or using any photo, video, or audio equipment while within range of petitioners’ property.” Affirmed.

Defamation; Whether defendants’ challenged statements were capable of defamatory meaning & thus actionable; Ireland v. Edwards; Smith v. Anonymous Joint Enter.; False light invasion of privacy; Derderian v. Genesys Health Care Sys.; Rouch v. Enquirer & News of Battle Creek (After Remand); Challenges to statements made by defendants-Jatczak, Clohessy, & Survivors Network of Those Abused by Priests (SNAP); Milkovich v. Lorain Journal Co.; Philadelphia Newspapers v. Hepps; Ghanam v. Does; Kevorkian v. American Med. Ass’n

Holding that the statements in defendants’ publications were either substantially true or nonactionable opinions, the court affirmed. Plaintiff became an ordained priest in 1976. In 2009, “the Archdiocese of Detroit issued a press release announcing that allegations of sexual misconduct, dating back to the early years of his ministry, were made against plaintiff by a former parishioner at his former parish . . . .” One of the defendants-reporters wrote an article for defendant-Macomb Daily concerning plaintiff. He quoted defendant-Jatczak, of the Michigan chapter of defendant-SNAP. Defendant-Clohessy, the Executive Director of SNAP, issued a press release about plaintiff. Defendant-Free Press also published articles about plaintiff. Plaintiff argued that the trial court erred in deciding that defendants’ communications about him were not actionable. To “establish either a claim for defamation or a claim for false light invasion of privacy, the plaintiff must show that what the defendant stated was false.” Thus, the court began by addressing whether the statements and information in the articles were false. The Rouch court held that a “minor inaccuracy about which individuals identified him, as well as the technically incorrect use of legal terminology with respect to the word ‘charged,’ did not impact the substantial truth of the article.” The court concluded that the trial court did not err by ruling that there was no genuine issue of material fact as to whether the statements in the Macomb Daily and the Detroit Free Press publications “were materially false.” As to the other defendants, because the challenged statements were “not defamatory as a matter of law, the trial court did not err” in granting them summary disposition.

Termination under § (i); Abandoned claim; In the Matter of Toler; Plain error review; In re Utrera; Judicial notice of facts contained in the transcript; MRE 201; Principle that only one statutory ground is required; In re Frey; Child’s best interests; In re Schadler; In re Olive/Metts Minors

Holding that the trial court did not clearly err in finding that § (i) supported termination, and that it was in the child’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. It found “no clear error in the trial court’s conclusion that respondent continued to choose drugs over her child. This alone was sufficient to terminate” her parental rights under § (i). Officers responding to a 911 call of a heroin overdose found her “unconscious with an empty bottle of Narcan near her and a tourniquet on her left arm.” They also discovered suspected meth in her backpack, and while she denied that it was hers, she admitted she had used meth in the last four days. The officers “testified that when she regained consciousness, her behavior was consistent with someone who was under the influence of narcotics. Their testimony provided clear and convincing evidence of respondent’s continued drug use. And, despite respondent’s testimony that she was seeking substance abuse treatment, there was no evidence” that she had actually addressed her issues. As to her contention that the trial court relied mostly on “second-hand information” and assumptions, even if a DHHS worker’s testimony about the prior termination proceedings was inadmissible, the trial court “personally reviewed the transcript from the prior termination hearing, revealing the same facts as testified to by the DHHS worker. Because the trial court could properly take judicial notice of the facts contained in the transcript, MRE 201, and the transcript of the prior termination hearing was provided as an exhibit,” there was no merit to respondent’s argument. The evidence showed that she had not rectified the conditions that led to the 2017 termination. “Given the current evidence of respondent’s continuing drug use, incarceration, and lack of housing, the trial court did not clearly err in terminating” her rights. As to the child’s best interests, it acknowledged there may have been a bond between respondent and the child, but “also properly emphasized that respondent could not care for the child because she was continually incarcerated and she was unable to take care of herself.”

Termination under §§ 19b(3)(a)(ii), (c)(i), (c)(ii), (g), & (j); Reasonable reunification efforts; MCL 712A.19a(2); In re Rood; Accommodation of known cognitive disabilities; In re Terry; In re Hicks/Brown; A respondent’s responsibility to participate in & benefit from services; In re TK; Due process; Entry of an interim dispositional order in one parent’s absence; In re Juvenile Commitment Costs; Plain error review; In re Utrera; Waiver; Holmes v. Holmes; Harboring error as an appellate parachute; In re Hudson; Children’s best interests; MCL 712A.19b(5); In re Olive/Metts Minors; In re Jones; In re Moss Minors; In re White

While the court held that the trial court erred in terminating respondent-mother’s (Lee) parental rights under § (a)(ii), the error was harmless because termination was supported by §§ (c)(i), (c)(ii), (g), and (j). It rejected both respondents’ claims that the DHHS did not reasonably accommodate their cognitive disabilities, and found that respondent-father (Williams) waived his claim of error as to entry of the interim disposition order in his absence. Finally, the court found that terminating Lee’s parental rights was in the children’s best interests. Thus, it affirmed the order terminating respondents’ parental rights. As to reasonable reunification efforts, the record showed that they “were offered a multitude of services to remove the barriers to reunification. Moreover, and more importantly,” the DHHS modified its practices to give them “the best opportunity to benefit from the services offered.” It did not fail to accommodate their disabilities. Rather, “respondents failed to take advantage of the services offered.” As to statutory grounds, the court agreed with Lee that the trial court erred in finding that § (a)(ii) was established. But because the trial court did not err in determining that §§ (c)(i), (c)(ii), (g), and (j) existed, the error was harmless. The evidence revealed “that at the time of termination, Lee had yet to address, in a meaningful way, any of the conditions that caused her children to come into care.” Further, she failed to “successfully participate in or complete any of the services. A parent’s failure to comply with a court-ordered treatment plan is indicative of neglect and evidence that return of the child to the parent may cause a substantial risk of harm to the child’s life, physical health, or mental well-being.” There was also evidence that she would not be able “to remove the barriers to reunification anytime soon. The children had been in care for approximately two years. Lee was in no better position to” show that she could parent them than at the time of their removal. As to their best interests, the evidence overwhelmingly established that she could not safely parent the children. It was questionable whether there was a parent-child bond, they had special needs she “did not fully appreciate or understand,” and by contrast, they “were thriving in their foster care placement and the foster parents had expressed a willingness to adopt” them.