Action to collect unpaid attorney fees; Counterclaim alleging legal malpractice, breach of contract, & negligent infliction of emotional distress (NIED); Statute of limitations (SOL) for legal malpractice claims; MCL 600.5838b; MCL 600.5805(6); Sam v. Balardo; Kloian v. Schwartz; Distinguishing a SOL from a statute of repose; Frank v. Linkner; Whether all of the counterclaims (based entirely on the plaintiff-law firm’s alleged failure to adequately represent defendant) were legal malpractice claims; Aldred v. O’Hara-Bruce; Brownell v. Garber; Seebacher v. Fitzgerald, Hodgman, Cawthorne & King, PC; Whether the trial court should have dismissed the case under the doctrine of forum non conveniens; Hernandez v. Ford Motor Co.; Cray v. General Motors Corp.; Lease Acceptance Corp. v. Adams

Concluding that the defendant’s legal malpractice counterclaim was barred by the SOL, and that his breach of contract and NIED claims were no different than his malpractice claim, the court affirmed the trial court’s order granting the plaintiff-law firm summary disposition on his counterclaims. The trial court also properly considered and denied his dismissal request under the doctrine of forum non conveniens. Plaintiff represented defendant in post-judgment proceedings following his divorce before successfully moving to withdraw as counsel in 2012. Two years later, it filed this action for unpaid attorney fees. Defendant filed counterclaims alleging legal malpractice, breach of contract, and NIED. The trial court agreed with plaintiff that the counterclaims all constituted a legal malpractice claim that was time-barred. While defendant argued on appeal that the legal malpractice SOL was six years, consistent with MCL 600.5838b and MCL 600.5805(6), the court and the Supreme Court have ruled that the SOL for legal malpractice claims is two years. Given that defendant filed his legal malpractice counterclaim after the two-year period expired, it was barred by the SOL. While he was correct that the SOL for a general breach of contract claim is six years, because his counterclaims, all of which were based on plaintiff’s alleged failure to adequately represent him, constituted legal malpractice claims, the two-year SOL applied. His breach of contract counterclaim was indistinguishable from his malpractice claim. His NIED counterclaim was no different than his malpractice or breach of contract counterclaims. Because it is the type of interest harmed, and not the label given a claim, that determines the applicable SOL, the trial court also correctly applied the two-year legal malpractice SOL to his NIED claim. Finally, the court concluded that the trial court’s analysis of his forum non conveniens argument was sufficient. The parties’ contract was executed in Michigan, all of plaintiff’s legal representation performed on defendant’s behalf was in Michigan, and all anticipated witnesses were here.

Claim for termination in violation of the Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); MCL 37.1602(a); Construing the PWDCRA’s retaliation provision in accord with the retaliation provision of the Elliott-Larsen Civil Rights Act; MCL 37.2701(a); Mitan v. Neiman Marcus; Prima facie case; Aho v. Department of Corrs.; Burden-shifting analysis under McDonnell Douglas v. Green; Bachman v. Swan Harbour Ass’n; Adverse employment action; Chen v. Wayne State Univ.; Peña v. Ingham Cnty. Rd. Comm’n; Causal connection; West v. General Motors Corp.; Shaw v. Ecorse; Pretext; Campbell v. Department of Human Servs.; Fuller v. Michigan Dep’t of Transp.

Holding that the plaintiff-former police officer established a prima facie case under the PWDCRA, and produced sufficient evidence for a rational trier of fact to find that defendant’s non-retaliatory reason for discharging him was pretextual, the court reversed the trial court’s order granting the defendant summary disposition, and remanded for further proceedings. The first two elements of a prima facie case were not in dispute. The trial court assumed without deciding that all of the complained-of actions were adverse employment actions, and the court did likewise. As to the fourth element, unlike the trial court, the court concluded that plaintiff produced sufficient evidence to create a genuine issue of material fact whether his protected activity (testifying in another PWDCRA civil suit against defendant) “was a significant factor in defendant’s decision to terminate him.” It found most compelling evidence about “inaccuracies—perhaps outright deceptions—in” the police chief’s report explaining his rationale for opening an investigation of plaintiff. According to the report, the chief received an anonymous letter alleging that plaintiff slept on duty, arrived late, used a personal laptop and tablet on duty, and did not respond to calls for service or back up. The chief stated in the report he was able to determine that Officer G wrote the letter. G stated at deposition that he wrote the letter because the chief and township manager “pressured” him to do so, that the chief verbally instructed him where to place the envelope, and that he believed he would have faced “trouble at work” if he refused to write the letter. The report also cataloged negative comments about plaintiff from other officers who, when deposed, denied making them. Finally, it indicated that other officers proposed a union vote of “no confidence” against plaintiff, and the chief testified that the vote was not his idea. However, plaintiff presented testimony from several officers indicating that it was “the chief who induced the union vote against plaintiff.” A rational fact-finder could reasonably infer that his protected activity was a significant factor in the termination decision.

Assessment of court costs

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 58641 in the 12/18/14 edition), the court remanded the case to the trial court for consideration of defendant’s issue as to the assessment of court costs. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Sentencing; People v. Lockridge

In an order in lieu of granting leave to appeal, the court reversed in part the Court of Appeals judgment (see e-Journal # 61440 in the 12/23/15 edition) and remanded the case to the trial court to determine whether it “would have imposed a materially different sentence under” the procedure set forth in Lockridge. The court directed the trial court on remand to follow the procedure described in Part VI of Lockridge. “If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence.” However, if it “determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Whether the alleged failure to properly swear the jury required reversal of the defendant’s convictions; MCL 768.14; MCR 2.511(H)(1)

In an order, the court granted in part the prosecution’s motion for reconsideration of its prior order in the case and vacated its prior order. After considering the application for leave to appeal the Court of Appeals judgment (see e-Journal # 60957 in the 10/21/15 edition), the court remanded the case to the same panel of the Court of Appeals. The court noted that the original transcript of proceedings on 11/26/13 did not reflect any jury oath being administered in this case. However, an amended transcript of proceedings on that date indicated that an oath was administered to the jury before testimony was taken. “Because this information was known to the Court of Appeals panel before its opinion was issued, but the opinion describes the transcript as not showing that a jury oath was administered,” the court remanded for further consideration of the defendant’s claim “that the jury was not sworn and for an explanation why it failed to consider the amended transcript in concluding that no oath was administered.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Search & seizure; U.S. Const. amend. IV; Const. 1963, art. 1, § 11; The “knock and talk” procedure; Florida v. Jardines

In an order, the court vacated its prior order granting leave to appeal and denied leave to appeal the Court of Appeals judgment (see e-Journal # 58731 in the 1/9/15 edition) because it was no longer persuaded that it should review the questions presented.

The dissent disagreed with the majority’s conclusion that leave to appeal was improvidently granted, finding that the Court of Appeals majority’s analysis was “flawed in several critical ways,” and noting that the court had “yet to provide guidance to the lower courts on the framework for analyzing a ‘knock and talk’ procedure since” the U.S. Supreme Court’s decision in Jardines.

Prosecutorial error; People v. Dobek; People v. Roscoe; People v. Meissner; Good-faith effort to admit evidence; People v. Noble; Relevance of evidence of a witness’s bias; People v. Layher; Failure to request a curative instruction; People v. Johnigan; Sentencing; Retroactivity of People v. Lockridge; People v. Lonsby; United States v. Crosby (2d Cir.); Carrying a concealed weapon (CCW); Offense variables (OVs)

While the court rejected the defendant’s claims of prosecutorial error and affirmed his convictions, it concluded that remand for a Crosby hearing pursuant to Lockridge was necessary as to his sentencing. He was convicted of second-degree murder and felony-firearm, and sentenced to 30 to 50 years in prison for the second-degree murder conviction as well as 2 years for the felony-firearm conviction. He argued that the prosecutor improperly elicited testimony from the arresting officer (J) about the weapon defendant was carrying when he was arrested. The court disagreed. Although the trial court excluded evidence about his pending CCW charge, it did not exclude evidence of the firearm found on him or any other circumstances surrounding his arrest. A prosecutor’s good-faith effort to admit evidence does not constitute prosecutorial error. Further, he could not establish prejudice. Two eyewitnesses directly identified him as the person who shot and killed the victim. Another witness testified that defendant was the only one brandishing a weapon at the time of the shooting. Given the overwhelming direct evidence against him, it could not be said that the prosecutor’s introduction of evidence that a gun was found on defendant’s person affected the outcome of the trial. The prosecutor also did not err in eliciting testimony from J that he stopped a car in 2010 driven by defendant in which witness-H, a friend of defendant, was a passenger. Defendant and H both testified they did not meet until 2014. J’s testimony was offered to rebut H’s testimony that he and defendant only met just before the shooting, revealing H’s “potential bias towards defendant, his friend of at least four years at the time of trial. It is well settled that evidence of a witness’s bias is always relevant.” However, while the court rejected his claim that he was entitled to resentencing under Lockridge because several OVs were scored based on impermissible judicial fact-finding, it concluded that he was entitled to a Crosby remand.

Claim for termination in violation of the Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); MCL 37.1602(a); Construing the PWDCRA’s retaliation provision in accord with the retaliation provision of the Elliott-Larsen Civil Rights Act; MCL 37.2701(a); Mitan v. Neiman Marcus; Prima facie case; Aho v. Department of Corrs.; Burden-shifting analysis under McDonnell Douglas v. Green; Bachman v. Swan Harbour Ass’n; Adverse employment action; Chen v. Wayne State Univ.; Peña v. Ingham Cnty. Rd. Comm’n; Causal connection; West v. General Motors Corp.; Shaw v. Ecorse; Pretext; Campbell v. Department of Human Servs.; Fuller v. Michigan Dep’t of Transp.

Holding that the plaintiff-former police officer established a prima facie case under the PWDCRA, and produced sufficient evidence for a rational trier of fact to find that defendant’s non-retaliatory reason for discharging him was pretextual, the court reversed the trial court’s order granting the defendant summary disposition, and remanded for further proceedings. The first two elements of a prima facie case were not in dispute. The trial court assumed without deciding that all of the complained-of actions were adverse employment actions, and the court did likewise. As to the fourth element, unlike the trial court, the court concluded that plaintiff produced sufficient evidence to create a genuine issue of material fact whether his protected activity (testifying in another PWDCRA civil suit against defendant) “was a significant factor in defendant’s decision to terminate him.” It found most compelling evidence about “inaccuracies—perhaps outright deceptions—in” the police chief’s report explaining his rationale for opening an investigation of plaintiff. According to the report, the chief received an anonymous letter alleging that plaintiff slept on duty, arrived late, used a personal laptop and tablet on duty, and did not respond to calls for service or back up. The chief stated in the report he was able to determine that Officer G wrote the letter. G stated at deposition that he wrote the letter because the chief and township manager “pressured” him to do so, that the chief verbally instructed him where to place the envelope, and that he believed he would have faced “trouble at work” if he refused to write the letter. The report also cataloged negative comments about plaintiff from other officers who, when deposed, denied making them. Finally, it indicated that other officers proposed a union vote of “no confidence” against plaintiff, and the chief testified that the vote was not his idea. However, plaintiff presented testimony from several officers indicating that it was “the chief who induced the union vote against plaintiff.” A rational fact-finder could reasonably infer that his protected activity was a significant factor in the termination decision.

Claim for replacement services; Fraud; Bahri v. IDS Prop. Cas. Ins. Co.

The court held that the trial court did not err by denying the defendant-insurer’s motion for summary disposition in the plaintiff’s action seeking payment for replacement services. Plaintiff sought coverage for replacement services for 3/13, such as driving and running errands, after he was injured in a car accident. Defendant denied his claim, noting surveillance video showed him driving, lifting objects, and running errands. It argued that this behavior barred coverage under the fraud provision. The trial court agreed with plaintiff that the videotape evidence “did not prove that he did not require and receive assistance at other times during those days based on his fluctuating pain levels” and that this was “an issue of fact for a jury to decide.” On appeal, the court rejected defendant’s argument that the trial court erred in denying its motion for summary disposition. It held that there was a genuine issue of material fact as to whether plaintiff’s conduct constituted fraud, finding the surveillance tape recordings did not establish that the 3/13 household services statement he submitted was false. The court noted that the videotapes only depicted plaintiff at several points during the day on 3/6/13 and 3/9/13, and did not depict his conduct during every hour of the relevant days. It also distinguished Bahri, noting plaintiff did not seek compensation for replacement services provided before his accident, and he was not observed doing anything inconsistent with his limitations or injuries. “Instead, plaintiff was observed running errands, driving, and lifting objects of unknown weight during limited periods, which is consistent with his limitations and his testimony that he performed certain tasks when he was not in pain or on pain medication.” Affirmed.

Medical malpractice; Expert testimony; Claim that all the factors under MCL 600.2955 were not met; Elher v. Misra

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 61661 in the 1/27/16 edition) and remanded the case to the Court of Appeals for reconsideration in light Elher.

Action to collect unpaid attorney fees; Counterclaim alleging legal malpractice, breach of contract, & negligent infliction of emotional distress (NIED); Statute of limitations (SOL) for legal malpractice claims; MCL 600.5838b; MCL 600.5805(6); Sam v. Balardo; Kloian v. Schwartz; Distinguishing a SOL from a statute of repose; Frank v. Linkner; Whether all of the counterclaims (based entirely on the plaintiff-law firm’s alleged failure to adequately represent defendant) were legal malpractice claims; Aldred v. O’Hara-Bruce; Brownell v. Garber; Seebacher v. Fitzgerald, Hodgman, Cawthorne & King, PC; Whether the trial court should have dismissed the case under the doctrine of forum non conveniens; Hernandez v. Ford Motor Co.; Cray v. General Motors Corp.; Lease Acceptance Corp. v. Adams

Concluding that the defendant’s legal malpractice counterclaim was barred by the SOL, and that his breach of contract and NIED claims were no different than his malpractice claim, the court affirmed the trial court’s order granting the plaintiff-law firm summary disposition on his counterclaims. The trial court also properly considered and denied his dismissal request under the doctrine of forum non conveniens. Plaintiff represented defendant in post-judgment proceedings following his divorce before successfully moving to withdraw as counsel in 2012. Two years later, it filed this action for unpaid attorney fees. Defendant filed counterclaims alleging legal malpractice, breach of contract, and NIED. The trial court agreed with plaintiff that the counterclaims all constituted a legal malpractice claim that was time-barred. While defendant argued on appeal that the legal malpractice SOL was six years, consistent with MCL 600.5838b and MCL 600.5805(6), the court and the Supreme Court have ruled that the SOL for legal malpractice claims is two years. Given that defendant filed his legal malpractice counterclaim after the two-year period expired, it was barred by the SOL. While he was correct that the SOL for a general breach of contract claim is six years, because his counterclaims, all of which were based on plaintiff’s alleged failure to adequately represent him, constituted legal malpractice claims, the two-year SOL applied. His breach of contract counterclaim was indistinguishable from his malpractice claim. His NIED counterclaim was no different than his malpractice or breach of contract counterclaims. Because it is the type of interest harmed, and not the label given a claim, that determines the applicable SOL, the trial court also correctly applied the two-year legal malpractice SOL to his NIED claim. Finally, the court concluded that the trial court’s analysis of his forum non conveniens argument was sufficient. The parties’ contract was executed in Michigan, all of plaintiff’s legal representation performed on defendant’s behalf was in Michigan, and all anticipated witnesses were here.

Challenge to a township planning commission’s decision to permit a church to erect an outdoor electronic sign; Whether the circuit court had subject-matter jurisdiction; MCL 125.3606(3); Schlega v. Detroit Bd. of Zoning Appeals; MCR 7.122(A)(3) & (B); MCR 7.122(C)(4); Claim that the township deliberately delayed the release of the certified meeting minutes; MCL 125.3606(3)(b); Whether the plaintiff had the ability to file a late application for leave to appeal under MCR 7.105(G); Zoning Board of Appeals (ZBA)

The court held that the circuit court lacked jurisdiction over the plaintiff’s untimely appeal, and that the circuit court erred in finding that the defendant-township was estopped from claiming the appeal was untimely. Thus, it reversed the circuit court’s order reversing the ZBA’s decision that rejected plaintiff’s challenge to the planning commission’s decision to permit a church to erect an outdoor electronic sign. The parties did not dispute that the ZBA meeting took place on 3/10/14, and that the meeting minutes were approved on 5/12/14. The ZBA record contained no decision in writing signed by the chairperson or the ZBA’s members. Thus, plaintiff was required to file her claim of appeal within 21 days after the ZBA approved the meeting minutes. She filed a claim of appeal in the circuit court on 8/20/14, well after the 21 days expired. As a result, she did not timely file her claim of appeal in violation of MCL 125.3606(3). She argued that the defendant-township “deliberately delayed the release of the certified meeting minutes” until 8/12/14. “However, the statute does not require that a plaintiff be provided with a copy of the official meeting minutes in order to file a claim of appeal. Instead, the period to file a claim of appeal begins to run when the ZBA approves the minutes of its decision, regardless of whether the plaintiff has a copy of the minutes.” Further, MCR 7.122(C)(4) simply requires an appellant to attach a copy of the meeting minutes to the claim of appeal – it does not require the copy to be certified or signed. There was no dispute that plaintiff had an unofficial copy of the meeting minutes before the time to file a claim of appeal expired. While she also asserted that she had the ability to file a late application for leave to appeal under MCR 7.105(G), the court concluded that the “applicable statute does not authorize an appeal by leave granted or a late appeal.”

Termination under §§ 19b(3)(c)(i), (g), & (j); Requirement that the trial court hold the hearing on the supplemental petition for termination within 42 days after the petition is filed; MCR 3.977(F)(2); 21-day extension for good cause; MCR 3.977(H)(1)(b); In re Utrera; Waiver; People v. Kowalski; People v. Carter; Best interests of the children; In re Olive/Metts Minors; In re Moss Minors

The court held that the trial court properly terminated the respondent-mother’s parental rights to the children where at least one statutory ground for termination existed and it was in the children’s best interests. On appeal, the court rejected her argument that the trial court erred by failing to conduct the hearing on the supplemental petition for termination within the 42-day period required by MCR 3.977(F)(2), finding that because she agreed to have the first petition dismissed and refiled, and agreed to a new, later hearing date, she waived any error. Moreover, “even assuming respondent had not waived this issue, she would not be entitled to relief. It is well-established that the failure to hold a termination hearing within time limits established by the court rule is not grounds for reversal or dismissal of the termination order.” The court also rejected her claim that the trial court erred by finding it was in the children’s best interests to terminate her parental rights. It noted that although she visited the children, she had not completed services and could not provide suitable housing and child care. Further, the children needed permanency and were doing well with a relative who wanted to adopt them. Affirmed.

Challenge to a township planning commission’s decision to permit a church to erect an outdoor electronic sign; Whether the circuit court had subject-matter jurisdiction; MCL 125.3606(3); Schlega v. Detroit Bd. of Zoning Appeals; MCR 7.122(A)(3) & (B); MCR 7.122(C)(4); Claim that the township deliberately delayed the release of the certified meeting minutes; MCL 125.3606(3)(b); Whether the plaintiff had the ability to file a late application for leave to appeal under MCR 7.105(G); Zoning Board of Appeals (ZBA)

The court held that the circuit court lacked jurisdiction over the plaintiff’s untimely appeal, and that the circuit court erred in finding that the defendant-township was estopped from claiming the appeal was untimely. Thus, it reversed the circuit court’s order reversing the ZBA’s decision that rejected plaintiff’s challenge to the planning commission’s decision to permit a church to erect an outdoor electronic sign. The parties did not dispute that the ZBA meeting took place on 3/10/14, and that the meeting minutes were approved on 5/12/14. The ZBA record contained no decision in writing signed by the chairperson or the ZBA’s members. Thus, plaintiff was required to file her claim of appeal within 21 days after the ZBA approved the meeting minutes. She filed a claim of appeal in the circuit court on 8/20/14, well after the 21 days expired. As a result, she did not timely file her claim of appeal in violation of MCL 125.3606(3). She argued that the defendant-township “deliberately delayed the release of the certified meeting minutes” until 8/12/14. “However, the statute does not require that a plaintiff be provided with a copy of the official meeting minutes in order to file a claim of appeal. Instead, the period to file a claim of appeal begins to run when the ZBA approves the minutes of its decision, regardless of whether the plaintiff has a copy of the minutes.” Further, MCR 7.122(C)(4) simply requires an appellant to attach a copy of the meeting minutes to the claim of appeal – it does not require the copy to be certified or signed. There was no dispute that plaintiff had an unofficial copy of the meeting minutes before the time to file a claim of appeal expired. While she also asserted that she had the ability to file a late application for leave to appeal under MCR 7.105(G), the court concluded that the “applicable statute does not authorize an appeal by leave granted or a late appeal.”