Sanctions under FedRCivP 37(d); Due process before ordering sanctions; Order sanctioning individual attorneys; Sanctions against the attorneys’ law firm; Pavelic & LeFlore v Marvel Entm’t Group; Request for reassignment of the case on remand; National Pro Fastpitch League (NPF)

The court affirmed discovery sanctions under Rule 37 against plaintiff-NPF’s individual attorneys. But in an issue of first impression in this circuit, it reversed sanctions against the law firm because Rule 37 did not allow them where the firm was not a party to the lawsuit. NPF sued defendant-SY Dawgs for breach of a franchise agreement and a non-competition and non-disclosure agreement. After multiple discovery disputes and motions for sanctions, NPF voluntarily dismissed its suit. Granting SY Dawgs’s last motion for fees and costs, the district court awarded SY Dawgs $480,546 in attorney fees and costs. It ruled that NPF, the law firm, and the attorneys of record were jointly and severally liable for $287,248.77, plus pre- and post-judgment interest. It referenced the fee-shifting provision in the non-disclosure and non-competition agreement, and Rules 37 and 41(a)(2). As to appellants-firm and attorneys’ due process argument, the court noted that so “long as a party is given notice by an opposing party and has the chance to brief the issue, no procedural due process violation occurs.” It held that the district court gave sufficient notice to the individual attorneys “that sanctions were on the table when it warned them that ‘[f]ailure to comply with this Order will result in sanctions, up to and including dismissal of Plaintiff’s action.’” The court also found the argument that the law firm lacked sufficient notice “meritless,” and that the attorneys and firm were given sufficient opportunity to be heard. As to whether the district court abused its discretion in ordering sanctions under Rule 37(d), the court first determined that, as to the individual attorneys, there was a sufficient factual basis for the award. “The district court was clear about both the discovery misconduct and the prejudice it imposed on SY Dawgs.” The court also rejected the attorneys’ claim the sanctions award was unjust. However, it held that a law firm cannot be held liable for sanctions under Rule 37. When “a failure to comply with a discovery rule or order occurs, the court must require the party failing to act, ‘the attorney advising that party, or both to pay the reasonable expenses.’ . . . Rule 37 makes no mention of a party’s law firm but explicitly lists a party and a party’s attorney. . . . The canon of expressio unius est exclusio alterius—the express mention of one thing excludes others—thus supports the view that Rule 37 does not provide for sanctions against a law firm.” The court noted that its reasoning tracked that of the Supreme Court in Pavelic. Finally, it declined to reassign the case to a different judge on remand.

Bankruptcy appellate procedure; Motion for relief under FedRCivP 60(b); Whether orders were properly before the court on appeal; Effect of a creditor’s failure to cite or attach the order denying its administrative expense or the order sustaining objections to claims; FedRBankrP 8003(a)(3)(B)

The Bankruptcy Appellate Panel affirmed the bankruptcy court, holding that it did not abuse its discretion by denying creditor-Penn Line Service’s motion for reconsideration, and that Penn Line did not appeal the original orders denying its administrative expenses and sustaining objections to its claims. The bankruptcy court denied Penn Line’s motion for administrative expenses and granted the debtors’ objection to certain priority claims. It later also denied Penn Line’s motion for reconsideration. The court held that the Administrative Expense Order and Claims Objection Order were not properly before it on appeal. It noted that an "appeal of a Rule 60(b) order does not automatically raise the merits of the underlying judgment.” In this case, Penn Line’s Notice of Appeal only cited to and attached the Reconsideration Order. It failed to cite or attach “the Administrative Expense Order or Claims Objection Order as required by Bankruptcy Rule 8003(a)(3)(B).” Thus, neither order was properly appealed. Further, since Penn Line did not address Rule 60 in its appeal, it did not satisfy the standards for reconsideration of a final court order. The court also determined that it could not show the bankruptcy court abused its discretion by denying the motion for reconsideration. “A court does not abuse its discretion by denying a Rule 60(b) motion that simply rehashes previously raised arguments.”

Alleged violations of the Persons with Disabilities Civil Rights Acts; Alleged violations of Michigan’s Condominium Act; Collateral estoppel

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals’ judgment (see e-Journal # 73976 in the 10/19/20 edition for the published opinion) and remanded the case to the Court of Appeals to address whether collateral estoppel barred the state court proceedings in this matter. The court previously, while retaining jurisdiction, remanded the case to the circuit court to allow “defendants-appellees to raise the argument that the state court proceedings in this matter are barred by collateral estoppel.” The circuit court subsequently submitted its findings on the issue to the court’s clerk as ordered, but despite the court’s “order retaining jurisdiction and requesting the submission of findings, the circuit court purported to issue an opinion and order granting partial summary disposition to the defendants pursuant to MCR 2.116(C)(7).” That was improper because the court retained jurisdiction. Thus, the court vacated the last paragraph of the circuit court’s 4/29/22 opinion and order. “The remainder of the opinion and order is treated as the submission of findings[,]” which the Court of Appeals is to consider on remand. It denied appellants’ motion for supplemental briefing.

Concurring, Justice Viviano agreed with the vacatur of the Court of Appeals’ judgment and remand for consideration of collateral estoppel. He noted that by vacating the “judgment now, before a determination of mootness is made, we have preempted the usual vacatur analysis. Ordinarily, absent the need for further factual development or findings, I would not favor this course in such circumstances.” But he did not object here because it appeared vacatur would be appropriate “in the event that the lower court determines the case is moot.” He also noted that nothing in the majority’s order took “a position on the Court of Appeals’ prior decision in this case. Thus,” if that court holds on remand that collateral estoppel does not bar these proceedings, it may reinstate its earlier decision.

Employment gender discrimination; Failure-to-hire claim under Title IX (20 USC § 1681); 42 USC § 1983; Subject-matter jurisdiction; FedRCivP 12(b)(6); Whether plaintiff stated a “ripe” claim for employment discrimination; McDonnell Douglas Corp v Green; University of Cincinnati (UC)

The court held that plaintiff-Charlton-Perkins plausibly alleged both a de facto injury sufficient to confer Article III jurisdiction and a ripened gender employment-discrimination claim under Title IX and § 1983 against defendants-UC, a dean, and a department chair where he was denied a professorship and then the job search was canceled without filling the position. Charlton-Perkins, a male research scientist, claimed that he was refused the position based on his gender, and that UC canceled the job search so that he could never obtain the position. The district court dismissed his claim for lack of subject-matter jurisdiction, ruling that since “nobody ever filled the canceled position, . . . Charlton-Perkins’s claims never ripened into an adverse employment action, and thus he suffered no concrete injury cognizable in federal court.” The court held that the district court erred by ruling there was no “completed past act” of alleged discrimination, so there was no “ripe injury” under Article III. The issue was not whether someone else got the job—the de facto injury was “that Charlton-Perkins was denied the spot.” The court held that the district court erred by conflating the Rule 12(b)(6) inquiry and the jurisdictional inquiry. Whether “a plaintiff can get into federal court under Article III—a jurisdictional question—is not determined by whether he can also plausibly plead the elements of a cause of action—a merits question.” It concluded that Charlton-Perkins established a de facto injury (the job denial), its “traceability” to defendants, and that the district court was able to redress it. Thus, he established Article III jurisdiction. The court also held that the district court erred by concluding that he failed to state a claim for employment discrimination. It erred by ruling that, to state as claim, he had to plead a prima facie case under McDonnell Douglas. Rather, it was only necessary that he “plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.” The court noted that cancellation of a position does not bar a discrimination claim if a plaintiff can show that a defendant did so only to unlawfully discriminate against plaintiff. Thus, the court held that “Charlton-Perkins alleged a ripe, de facto injury under Article III,” and also plausibly pled “an adverse employment action on the merits.” Reversed.

Appeal from resentencing; Scoring of OVs 1 & 3; MCL 777.31(1)(a); MCL 777.33(2)(b); Acquitted conduct; People v Brown

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals’ judgment (see e-Journal # 76691 in the 1/6/22 edition) and remanded the case to that court for reconsideration in light of the Court of Appeals’ decision in Brown. It instructed the Court of Appeals to expedite its consideration of the case.

Second-degree child abuse conviction under MCL 750.136b(3)(a); “Omission” theory; MCL 750.136b(1)(c); Failure to obtain medical care; The expressio unius est exclusio alterius doctrine; MCL 722.622(k)(i) (defining child neglect); “Abandonment” theory; People v Krukowski (Unpub); “Wilful”; People v Hegedus

The court held that defendant-Bryant’s “failure to more expeditiously obtain medical care for her son does not constitute second-degree child abuse under an ‘omission’ theory.” Further, adopting the definition of “abandonment” it previously applied in an unpublished opinion construing the second-degree child abuse statute, the court held that her delay in seeking medical care for the child (CB) “did not constitute abandonment under MCL 750.136b(1)(c).” Defendant was convicted of two counts of second-degree child abuse. The “guilty verdict on the second count centered on the ‘omission’ theory: that Bryant failed to check on CB during the night or to seek medical attention for him when he failed to awaken from sleep. But the child abuse statute incorporates a limited definition of the term ‘omission,’ that does not include the failure to obtain medical care: ‘Omission’ means a willful failure to provide food, clothing, or shelter necessary for a child’s welfare or willful abandonment of a child.” The court concluded it had to “assume that the Legislature acted purposefully by excluding medical care as an omission punishable as second-degree child abuse.” The court next considered whether defendant could have been convicted under an abandonment theory. The statute does not define “abandonment.” In Krukowski, the court adopted a dictionary definition – “to give up with the intent of never again claiming a right or interest in; to withdraw protection, support, or help from.” Krukowski determined that failing “to seek a certain type of medical care is not equivalent to withdrawing protection, help, or support from a child, or giving a child up with the intent never to claim an interest in the child.” Adopting this definition and applying it here, the court added that even if it had selected a more expansive definition, no evidence supported “that Bryant ‘willfully’ abandoned her child” under the definitions of “wilful” the Michigan Supreme Court favorably recognized in Hegedus. The court noted that CB did not have any “obvious injuries and although he cried after striking his head, the evidence failed to substantiate that Bryant consciously, deliberately, or intentionally withdrew ‘protection, help or support’ from her son.” It reversed her conviction on the second count, and remanded for entry of a judgment of acquittal on that count and to determine if resentencing is required.

The Sex Offenders Registration Act (SORA); The “recapture” provision of MCL 28.723(1)(e); People v Tucker; Effect of People v Betts

On remand from the Supreme Court, the court held that Tucker’s rationale regarding SORA’s recapture provision (MCL 28.723(1)(e)) is still valid following the Supreme Court’s decision in Betts. After he pled no contest to OWI, third offense, and possession of less than 25 grams of cocaine in 2017, defendant was required, pursuant to the recapture provision, to register under SORA due to a 1983 conviction for attempted CSC. He argued that it was an unconstitutional ex post facto law. The court previously affirmed, relying on Tucker as binding precedent. The Supreme Court remanded for the court to address the continuing validity of Tucker in light of Betts. The court first noted that Betts did not concern the recapture provision. While defendant suggested that Betts overturned the whole 2011 SORA amendatory Act, the court disagreed, finding the Betts holding was “only that the act cannot be applied retroactively to those individuals ‘whose criminal acts subjecting them to registration occurred before the enactment of the 2011 SORA amendments.’” The court then turned “to the question of which criminal act subjected defendant to the registration requirement” – the 1983 CSC conviction or the 2017 OWI-3d conviction. Tucker answered this question. In Tucker, as here, “the defendant was convicted of a listed offense (and discharged from his sentence of probation) before the enactment of SORA, but afterwards committed another felony.” The Tucker court held that it was the latter conviction that subjected defendant to the registration requirement, concluding “the recapture provision did not change the legal consequences of defendant's 1990 conviction. Rather, it attached legal consequences to his 2013 felony conviction.” Thus, the provision did not violate the Ex Post Facto Clauses. The court here found that while “Betts may have affected other portions of the Tucker decision and those portions are no longer valid,” nothing in Betts disturbed Tucker’s conclusion that SORA’s recapture provision “attached legal consequences to the subsequent conviction, not the original conviction. Simply put, had defendant not committed a new felony, he would remain free from the requirements of SORA.” The court again affirmed.

Sufficiency of the evidence to sustain a torture conviction; MCL 750.85; “Severe mental pain or suffering”; MCL 750.85(2)(d)(iii) & (d)(iv); People v Schaw; Intent; People v Quigley; Whether it is cruel or unusual punishment to require a defendant convicted of unlawful imprisonment of a minor to register in accordance with the Sex Offenders Registration Act (SORA); People v Bosca; People v Temelkowski; People v Tucker; People v Snyder; Whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil; People v Earl; People v Betts; The Mendoza-Martinez factors; Kennedy v Mendoza-Martinez; Cruel & unusual punishment; The Bullock factors; People v Bullock

The court held that there was sufficient evidence to support defendant’s torture convictions, but that requiring him to register under SORA based on his unlawful imprisonment of a minor constituted cruel or unusual punishment. Thus, it affirmed his convictions but remanded for entry of an order removing him from the sex offender registry. He was convicted of torture, unlawful imprisonment, felonious assault, and felony-firearm arising out of an incident in which he held his family at gunpoint, claiming his wife (J) had been unfaithful, and threatened to kill them and himself. In addition to his prison sentences, because two of his unlawful imprisonment convictions involved minors, he was placed on the sex offender registry as a Tier I offender under the SORA. On appeal, the court rejected his argument that there was insufficient evidence to sustain his torture convictions. There was “sufficient evidence to support a finding that” J and the children were within his custody or control, that he “inflicted severe mental pain or suffering on” them, and that he intended to do so. He also claimed that because his conviction of unlawful imprisonment of a minor lacked a sexual component, his placement on the SORA violated the prohibition against cruel or unusual punishment. Considering the Mendoza-Martinez factors, the court first found that “the 2021 SORA’s aggregate punitive effect negates the Legislature’s intention to deem it a civil regulation. As a result, requiring an individual to comply with the 2021 SORA imposes a criminal punishment on a registrant.” In addition, defendant established that “the punishment of being required to comply with the 2021 SORA is cruel and/or unusual punishment.” Although his actions were “extremely disturbing, there simply are no facts in this case supporting an inference that there was any sexual component to the offenses he committed. Instead, the record reflects that he unlawfully imprisoned his minor children, not during a sexual assault, but rather while he terrorized and threatened them with a gun.” Considering the Bullock factors (“the gravity of the offense, the harshness of the penalty, and the goal of rehabilitation”), the court concluded that requiring defendant “to register as a sex offender for 15 years is cruel or unusual punishment because it is unjustifiably disproportionate to the offense committed.”

Motion for a new trial; Sufficiency of the evidence; Assaulting, resisting, or obstructing a police officer; MCL 750.81d(1); People v Quinn; Great weight of the evidence; People v Lemmon

The court held that the trial court “did not abuse its discretion by denying defendant’s motion for a new trial because it acted within reasonable and principled outcomes when” there was sufficient evidence “that defendant assaulted, resisted, or opposed a police officer.” His conviction arose out of the execution of a search warrant. The court rejected his argument that the evidence was insufficient to show he knew the people who approached his camper were officers, and that he did not willingly disobey commands to bring his arms out from underneath him. “Even assuming [he] could not tell initially that the people who approached the camper, shined lights on him, and yelled commands were officers, what defendant ignores is that a rational jury could also infer from the evidence that [he] knew that the people outside were officers once the camper door was reopened; yet he still resisted their commands.” Defendant did not claim “he lacked knowledge that it was officers who then ordered him to put up his hands and come out of the camper or who had to pull” him out of the camper. He also did not argue “he lacked knowledge that it was officers who told him to put his hands behind his back, ordered [him] to bring his arms out from underneath him once he was taken to the ground, or had to struggle with defendant to get handcuffs on him even after his arms were free.” Yet, one of the officers (R) testified that defendant “did not comply willingly with any of these commands at any point until defendant was secured in handcuffs.” In addition, R said he kneeled “on defendant’s legs to prevent defendant from kicking.” Another detective stated “he was positioned next to defendant rather than on top of defendant. The surveillance video corroborates the officers’ testimonies[.]” According to R, “even after defendant’s arms were free, [he] continued to pull his arms away and tensed them while [R] tried to place handcuffs on him.” The court also rejected his claim that the verdict was against the great weight of the evidence and that the trial court abused its discretion by denying his motion for a new trial. “Although some testimony conflicted, none was so incredible or implausible that a reasonable juror could not believe it.” Further, the jury “displayed an effort to resolve any uncertainties by reviewing the surveillance footage taken at the scene. The trial court independently assessed the evidence and concluded that the jury’s verdict was not against the great weight of the evidence.” Affirmed.

Employment gender discrimination; Failure-to-hire claim under Title IX (20 USC § 1681); 42 USC § 1983; Subject-matter jurisdiction; FedRCivP 12(b)(6); Whether plaintiff stated a “ripe” claim for employment discrimination; McDonnell Douglas Corp v Green; University of Cincinnati (UC)

The court held that plaintiff-Charlton-Perkins plausibly alleged both a de facto injury sufficient to confer Article III jurisdiction and a ripened gender employment-discrimination claim under Title IX and § 1983 against defendants-UC, a dean, and a department chair where he was denied a professorship and then the job search was canceled without filling the position. Charlton-Perkins, a male research scientist, claimed that he was refused the position based on his gender, and that UC canceled the job search so that he could never obtain the position. The district court dismissed his claim for lack of subject-matter jurisdiction, ruling that since “nobody ever filled the canceled position, . . . Charlton-Perkins’s claims never ripened into an adverse employment action, and thus he suffered no concrete injury cognizable in federal court.” The court held that the district court erred by ruling there was no “completed past act” of alleged discrimination, so there was no “ripe injury” under Article III. The issue was not whether someone else got the job—the de facto injury was “that Charlton-Perkins was denied the spot.” The court held that the district court erred by conflating the Rule 12(b)(6) inquiry and the jurisdictional inquiry. Whether “a plaintiff can get into federal court under Article III—a jurisdictional question—is not determined by whether he can also plausibly plead the elements of a cause of action—a merits question.” It concluded that Charlton-Perkins established a de facto injury (the job denial), its “traceability” to defendants, and that the district court was able to redress it. Thus, he established Article III jurisdiction. The court also held that the district court erred by concluding that he failed to state a claim for employment discrimination. It erred by ruling that, to state as claim, he had to plead a prima facie case under McDonnell Douglas. Rather, it was only necessary that he “plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.” The court noted that cancellation of a position does not bar a discrimination claim if a plaintiff can show that a defendant did so only to unlawfully discriminate against plaintiff. Thus, the court held that “Charlton-Perkins alleged a ripe, de facto injury under Article III,” and also plausibly pled “an adverse employment action on the merits.” Reversed.

Employee Retirement Income Security Act (ERISA); Accidental-death benefits; Policy exclusion for losses due to the “commission of a crime”; Boyer v Schneider Elec Holdings, Inc (8th Cir); Reckless driving

Holding that reckless driving was a “crime” prohibiting recovery under a policy exclusion for losses due to the “commission of a crime[,]” the court reversed in part the district court’s judgment requiring defendant-Unum Life Insurance Company to pay plaintiff-Fulkerson accidental-death benefits under her son’s employer’s ERISA plan. Plaintiff’s son was “speeding and driving recklessly” when he was killed in an auto accident. Unum approved a $100,000 payment of group life insurance benefits but denied her the accidental death benefits, citing a policy exclusion for “losses caused by, contributed to by, or resulting from . . . commission of a crime.” Fulkerson sued under ERISA challenging the denial. The district court found in her favor, awarding her the $100,000 accidental death benefits. On Unum’s appeal, interpreting the “crime exclusion,” the court found that an Eighth Circuit decision, Boyer, supported the conclusion that reckless driving qualifies as a “crime” within the meaning of the exclusion. Since the term was not defined in the policy, it looked to the common dictionary definitions and held that “the plain meaning of ‘crime’ is ‘an illegal act for which someone can be punished by the government.’” It also noted that the reckless driving here “would constitute a crime in every state in the Union.” The court rejected Fulkerson’s argument that the word crime in the exclusion “reasonably could be understood to mean only serious offenses, such as felonies[,]” and that reckless driving was “merely [a] ‘traffic infraction . . . .’” The court concluded that there was no ambiguity and that “the plain and ordinary meaning of crime includes reckless driving.” Unum was entitled to judgment as to the applicability of the crime exclusion.

Award of damages in a default judgment; Motion for reconsideration; MCL 600.2919a(1)

Holding that because the trial court acted properly in setting the amount of damages in the first instance and then denying relief on reconsideration, the court affirmed. Plaintiffs “obtained a default against each defendant, thereby establishing liability on plaintiffs’ claims for breach of contract and statutory conversion. But the trial court was unimpressed by the evidence that plaintiffs presented on damages, so [it] awarded plaintiffs only a small fraction of the damages they requested. Plaintiffs moved for reconsideration, offering additional evidence of damages, but the trial court denied that motion.” Turning first to the trial court’s determination of damages in the default judgment, the court found no clear error in its award of $207,587.14 for plaintiffs. It gave them “the full measure of damages they requested for the first earn-out payment, i.e., $180,000, augmented by their reasonable attorney fees of $27,036.50 and their court costs of $550.64.” The trial court only disallowed their “request for $317,987.16 for a loan in the forms of cash and accounts receivable as well as plaintiffs’ demand to treble that amount under MCL 600.2919a(1).” The court held that even “plaintiffs understood that their original submission of evidence to support the claim for damages arising from the purported loan was insufficient for the trial court to render an award in their favor.” Thus, the award of damages in the default judgment could not possibly be characterized as clearly erroneous. Also, the court found “‘no abuse of discretion in denying a motion resting on a legal theory and facts which could have been pled or argued prior to the trial court’s original order.’” In addition, it concluded that the trial court was correct on the merits. The trial court “appropriately refused to award any damages to plaintiffs for breach of contract stemming from the purported loan of cash and accounts receivable.” As to the motion for reconsideration, the court did not find any evidence in the record that supported “an award of $317,987.16 in damages, and the lack of evidence to support such an award is fatal.” Nor could it find fault with the trial court’s refusal to treble any such damage award under MCL 600.2919a(1).

Sanctions under FedRCivP 37(d); Due process before ordering sanctions; Order sanctioning individual attorneys; Sanctions against the attorneys’ law firm; Pavelic & LeFlore v Marvel Entm’t Group; Request for reassignment of the case on remand; National Pro Fastpitch League (NPF)

The court affirmed discovery sanctions under Rule 37 against plaintiff-NPF’s individual attorneys. But in an issue of first impression in this circuit, it reversed sanctions against the law firm because Rule 37 did not allow them where the firm was not a party to the lawsuit. NPF sued defendant-SY Dawgs for breach of a franchise agreement and a non-competition and non-disclosure agreement. After multiple discovery disputes and motions for sanctions, NPF voluntarily dismissed its suit. Granting SY Dawgs’s last motion for fees and costs, the district court awarded SY Dawgs $480,546 in attorney fees and costs. It ruled that NPF, the law firm, and the attorneys of record were jointly and severally liable for $287,248.77, plus pre- and post-judgment interest. It referenced the fee-shifting provision in the non-disclosure and non-competition agreement, and Rules 37 and 41(a)(2). As to appellants-firm and attorneys’ due process argument, the court noted that so “long as a party is given notice by an opposing party and has the chance to brief the issue, no procedural due process violation occurs.” It held that the district court gave sufficient notice to the individual attorneys “that sanctions were on the table when it warned them that ‘[f]ailure to comply with this Order will result in sanctions, up to and including dismissal of Plaintiff’s action.’” The court also found the argument that the law firm lacked sufficient notice “meritless,” and that the attorneys and firm were given sufficient opportunity to be heard. As to whether the district court abused its discretion in ordering sanctions under Rule 37(d), the court first determined that, as to the individual attorneys, there was a sufficient factual basis for the award. “The district court was clear about both the discovery misconduct and the prejudice it imposed on SY Dawgs.” The court also rejected the attorneys’ claim the sanctions award was unjust. However, it held that a law firm cannot be held liable for sanctions under Rule 37. When “a failure to comply with a discovery rule or order occurs, the court must require the party failing to act, ‘the attorney advising that party, or both to pay the reasonable expenses.’ . . . Rule 37 makes no mention of a party’s law firm but explicitly lists a party and a party’s attorney. . . . The canon of expressio unius est exclusio alterius—the express mention of one thing excludes others—thus supports the view that Rule 37 does not provide for sanctions against a law firm.” The court noted that its reasoning tracked that of the Supreme Court in Pavelic. Finally, it declined to reassign the case to a different judge on remand.

Alleged violations of the Persons with Disabilities Civil Rights Acts; Alleged violations of Michigan’s Condominium Act; Collateral estoppel

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals’ judgment (see e-Journal # 73976 in the 10/19/20 edition for the published opinion) and remanded the case to the Court of Appeals to address whether collateral estoppel barred the state court proceedings in this matter. The court previously, while retaining jurisdiction, remanded the case to the circuit court to allow “defendants-appellees to raise the argument that the state court proceedings in this matter are barred by collateral estoppel.” The circuit court subsequently submitted its findings on the issue to the court’s clerk as ordered, but despite the court’s “order retaining jurisdiction and requesting the submission of findings, the circuit court purported to issue an opinion and order granting partial summary disposition to the defendants pursuant to MCR 2.116(C)(7).” That was improper because the court retained jurisdiction. Thus, the court vacated the last paragraph of the circuit court’s 4/29/22 opinion and order. “The remainder of the opinion and order is treated as the submission of findings[,]” which the Court of Appeals is to consider on remand. It denied appellants’ motion for supplemental briefing.

Concurring, Justice Viviano agreed with the vacatur of the Court of Appeals’ judgment and remand for consideration of collateral estoppel. He noted that by vacating the “judgment now, before a determination of mootness is made, we have preempted the usual vacatur analysis. Ordinarily, absent the need for further factual development or findings, I would not favor this course in such circumstances.” But he did not object here because it appeared vacatur would be appropriate “in the event that the lower court determines the case is moot.” He also noted that nothing in the majority’s order took “a position on the Court of Appeals’ prior decision in this case. Thus,” if that court holds on remand that collateral estoppel does not bar these proceedings, it may reinstate its earlier decision.

Reasonable reunification efforts; Failure to offer one-on-one parenting classes; Failure to offer additional visits with the child; Failure to communicate with respondent’s doctors to alter her medication schedule; Failure to communicate with respondent after an incident; Failure to transport respondent to visits with the child

Holding that the trial court properly found petitioner-DHHS made reasonable efforts at reunification before it terminated respondent-mother’s parental rights to the child (KC), the court affirmed. She argued DHHS failed to make the following reasonable efforts to reunify her with KC: failed to offer respondent one-on-one parenting classes, failed to offer her additional visits with KC, failed to communicate with her doctors to alter her medication schedule, failed to communicate with her after an incident in 1/21, and failed to transport her to her visits with KC. The court held that DHHS “made reasonable efforts at reunification by developing and implementing a case service plan that outlined the steps that respondent should take to rectify the issues that led to court involvement. Petitioner provided respondent with infant mental health services, psychological and psychiatric evaluations, mental-health counseling, a clinical evaluation, one-on-one parenting classes, bus tickets, and specialized supportive visitation. This plan recognized and accommodated respondent’s disabilities, but respondent failed to make necessary adjustments in her life to sufficiently participate in or benefit from the targeted services.”