The Michigan Employment Security Act (MESA); Entitlement to the new-employer tax rate under MCL 421.13m(2)(a)(i)(A) & (B); Department of Talent & Econ Dev v Great Oaks Country Club

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 71323 in the 9/16/19 edition for the published opinion) and remanded these cases to the Unemployment Insurance Agency for reconsideration of the claimants-appellants’ entitlement to the new-employer tax rate under MCL 421.13m(2)(a)(i)(A) and (B) of the MESA in light of the court’s decision in Great Oaks Country Club.

Fraud & silent fraud claims arising from the sale of a home; Hi-Way Motor Co v International Harvester Co; Alfieri v Bertorelli; Reasonable reliance; Knowledge; Seller disclosure statement (SDS) under the Sellers Disclosure Act; Breach of warranty claims related to basement waterproofing; Motion for a directed verdict; Damages; JNOV; Waiver

Rejecting plaintiff-buyer’s claim that summary disposition was premature, the court further held that her common-law and silent fraud claims against defendants-seller and her real estate agency (Western Real Estate) were properly dismissed. Plaintiff’s breach of warranty claims against defendant-B-Dry related to three warranties were also properly dismissed where they did not apply. But B-Dry abandoned or waived its claims related to another warranty, on which a jury found for plaintiff. As to the seller, the court concluded that plaintiff did not present any evidence suggesting that “seller had personal knowledge of ongoing structural problems, that seller would have had such knowledge through the exercise of ordinary care, or that seller’s statements on the SDS were otherwise made in bad faith.” Thus, no question of fact existed as to “whether seller had personal knowledge that her statements in the SDS about structural issues were false[.]” The court additionally noted that the SDS stated “there had been evidence of water in the basement,” and plaintiff received “two recent inspection reports that noted the presence of past and likely current water in the basement.” The one prepared by her own inspector “noted that the basement was finished, but that it was in a deteriorated condition because of neglect, moisture, and untimely repairs. The same report noted evidence of prior water leakage, but added that efflorescence on the walls indicated the presence of periodic moisture and that more water seepage may occur in the future. Under these circumstances, in which the presence of periodic moisture was noted, warnings were made to monitor for future leakage, and advice was given to follow up with the company that made the repairs, no reasonable juror could conclude that plaintiff’s belief that the basement was fully waterproofed such that it did not have any ongoing issues with water was reasonable. Rather, the reports in her possession would have put her on notice of the current presence of moisture in the basement and the possibility of future water seepage.” As a result, summary disposition for the seller and Western Real Estate was proper on plaintiff’s fraud claims. Affirmed.

Sufficiency of the evidence; Involuntary manslaughter & felony firearm; Whether the jury instruction accurately defined gross negligence; M Crim JI 16.10 & 16.18; People v Cummings

Holding that there was sufficient evidence to convict defendant of involuntary manslaughter and felony-firearm and, being bound to follow Cummings, the court rejected his argument as to whether the jury instruction accurately defined gross negligence, and affirmed. He argued that he was entitled to a new trial because the model jury instruction defining gross negligence, which was read at his trial, did not comport with Michigan law. As to his involuntary manslaughter conviction, defendant argued that “his actions did not amount to gross negligence because he was unaware of the risk of injury to a human while shooting at the deer.” The court noted that he “told the investigating officer that he had been hunting his entire life. Multiple witnesses testified that the goal when firing a gun while hunting was to kill the target. Further, that hunters should avoid taking quick shots because the goal is to kill whatever is shot. Defendant told the investigating officer that he ‘shot without hesitating.’ Defendant was hunting on private property with no-trespassing signs posted. The shooting occurred on the busiest hunting day of the year. The victim was wearing an orange hat and had several belongings out in the area. Defendant made statements to the investigating officer implying that the victim may not have died if defendant had taken a little bit longer prior to shooting.” The court concluded that from these facts a jury could determine that he “knew that he needed to exercise ordinary care while hunting to avoid injuring a person. Because defendant shot and killed the victim, the jury could have inferred that the victim would not have been killed had the defendant taken more time to identify what he was shooting. Moreover, the jury could also infer that failing to use ordinary care when firing a gun, given the intent to kill the target, could be disastrous to another.”

Motion to strike the victim’s trial testimony; Nonresponsive testimony & the right of confrontation; Judicial misconduct claim based on the trial’s court role in questioning the victim; MRE 614(b); People v Stevens; Admission of text messages between the victim & her half-sister; Hearsay; Admission of the victim’s medical records; MRE 803(4) & (6)

The court held that the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial and did not engage in any impropriety. Also, the trial court did not err in admitting the text messages between the victim (M) and her half-sister. Finally, the victim’s medical records were generally admissible under MRE 803(4) “and any alleged error in failing to redact a brief reference to defendant as the alleged perpetrator of the abuse does not constitute reversible error.” He was convicted of CSC I and sentenced to 25 to 40 years. The case arose from sexual abuse allegations by M against defendant, her biological father. The court first rejected his claim that M’s testimony should have been stricken for being unresponsive and thus, infringing on his right of confrontation. It concluded that the record showed the Confrontation Clause’s requirements were met as “the victim was present with defendant in the courtroom, she was questioned under oath before the trier of fact, and defense counsel cross-examined her.” While she was at times unresponsive during “her two-day testimony, such unresponsiveness did not impair defendant’s ability to get a fair trial.” As to the trial court’s questioning M, the court found that considering the totality of the circumstances, it was “evident the trial court played an active role in eliciting the victim’s testimony. However, the trial court’s conduct did not show any bias against defendant, or deprive defendant of his right to confront the victim. Instead, the questioning and other methods used by the trial court helped the parties obtain additional information from the victim and proceed through the trial. Further, the trial court’s even-handed participation in defendant’s bench trial, did not deprive” him of a fair trial. While the court determined that defendant arguably raised “a legitimate concern that his identification as the perpetrator of abuse of the victim in the medical records should have been omitted or redacted[,]” the court noted that the “records indicated an inability to confirm the abuse allegations,” and that the trial court indicated it did not rely on the medical records in convicting him. Affirmed.

Whether a remand was “general” or “limited”; United States v Richardson; Sentencing as a career offender; USSG § 4B1.1(a); United States v. Havis

The court held that its prior remand in this case was a “limited remand,” only entitling defendant-Johnson to reconsideration of his career offender status, and was not a “general remand” permitting de novo resentencing. It remanded to the district court for reconsideration of Johnson’s career offender status in light of Havis, “which held that attempt crimes—including conspiracies—did not qualify as controlled-substance offenses for the purpose of § 4B1.1.” The district court determined that he no longer qualified as a career criminal and resentenced him, but he argued that he was entitled to a de novo resentencing rather than simply reconsideration of his career offender status. Discussing the differences between a “limited” and “general” remand, the court explained that to determine which it issued, it looks “‘to any “limiting language” in the instructions on remand and the broader context of the opinion.’” It then considered the “penultimate sentence” in its remand order here: “‘Accordingly, Johnson should be resentenced in light of Havis[,]’” and held that the order remanded only for the limited purpose of determining whether he qualified as a career offender under Havis. Although the order stated “the case would be ‘remanded for resentencing,’ without any further limiting language, the broader context of the order” supported the determination that the court issued a limited remand. The order exclusively discussed Havis’s impact on Johnson’s sentence. It did “not discuss the procedural or substantive reasonableness of the sentence, nor did it identify any other alleged errors to be considered on remand.” Affirmed.

The Michigan Employment Security Act (MESA); Entitlement to the new-employer tax rate under MCL 421.13m(2)(a)(i)(A) & (B); Department of Talent & Econ Dev v Great Oaks Country Club

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 71323 in the 9/16/19 edition for the published opinion) and remanded these cases to the Unemployment Insurance Agency for reconsideration of the claimants-appellants’ entitlement to the new-employer tax rate under MCL 421.13m(2)(a)(i)(A) and (B) of the MESA in light of the court’s decision in Great Oaks Country Club.

Modification of child custody; Whether proper cause or a change of circumstances (COC) existed to justify revisiting the original custody order; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Whether an established custodial environment (ECE) existed; Bofysil v Bofysil; The best-interest factors; MCL 722.23; Rains v Rains

The court held that the trial court did not err by modifying custody of the parties’ children and granting plaintiff-mother sole physical custody. The parties’ original custody schedule provided that defendant-father would have the kids during the school year and plaintiff would have them during the summer, but they later agreed to “flip” this arrangement. When defendant later attempted to flip the schedule back, claiming it was temporary, plaintiff refused and filed a motion to modify custody. Meanwhile, defendant took the kids out of school, flew them back to his home in California, and enrolled them in school. The trial court then found that proper cause and a COC justified review of the original custody order, that an ECE existed solely with plaintiff, and that modification of the child custody order was in the children’s best interests. As such, it awarded her sole physical custody. In a prior appeal, the court found that the trial court erred by finding proper cause or a COC to warrant revisiting the initial custody order. On remand, the trial court again found for plaintiff and granted her sole physical custody of the children. In the present appeal, the court first found that the trial court correctly interpreted the remand order and properly held further proceedings by considering updated information as directed. It next rejected defendant’s argument that the trial court erred by finding plaintiff met her burden of establishing proper cause or a COC. The trial court found that “the children had lived in Michigan for approximately four years in an established stable and satisfactory family and community environment that provided the children permanency, education and extracurricular opportunities. The record reflects that the children had not established the same in California." As such, it “properly concluded that these concerns constituted proper cause.” The court also rejected his claim that the trial court erred by finding that the children’s ECE was solely with plaintiff. “The great weight of the evidence supports the trial court’s conclusion that the children did not have an” ECE with defendant but had an ECE with plaintiff. Finally, the court rejected his contention that trial court erred by improperly weighing several of the best-interest factors, noting it “articulated its reasoning and based its decision on evidence in the record, and the great weight of the evidence supported its determinations of each of the best-interest factors.” Affirmed.

Accounting malpractice; Statute of limitations; Accrual; MCL 600.5838(1); Effect of sending a bill for services rendered; Bauer v Ferriby & Houston, PC; Offer in Compromise (OIC)

In this accounting malpractice case, the court concluded that reasonable minds could differ as to whether defendant-UHY’s activities in 6/18 could be considered “attending to otherwise completed matters” or constituted “a continuation of professional services” related to an ongoing tax dispute. Thus, it reversed summary disposition for UHY and remanded. Plaintiff filed suit on 6/5/20, asserting that UHY discontinued providing professional services when it allegedly discharged UHY on 6/18/18. UHY asserted that it discontinued its professional services on 11/27/17, the last date on which it provided plaintiff with billed services. The court noted that “the failure to bill for professional services actually provided to a client” does not establish that the “services are not to be considered for purposes of accrual under MCL 600.5838.” While plaintiff was not billed “for services performed after [11/27/17], there was evidence that could be construed as reflecting that UHY continued serving plaintiff in a professional capacity thereafter and did not discontinue rendering services until sometime after” 6/5/18. A cover letter from a UHY employee (W) to the Michigan Department of Treasury on plaintiff’s behalf, which accompanied a 10/30/17 OIC, “indicated or suggested that UHY would continue servicing plaintiff in a professional capacity during the period in which the Department was processing the OIC.” The Department did not formally reject the OIC until 6/8/18, in a “letter to plaintiff, with a copy going to UHY.” A letter from plaintiff’s CEO (S) on 5/30/18 “reflected that plaintiff still looked to UHY to provide guidance, explanations, and answers, and” S noted contacting W days earlier “to discuss issues. While the letter was very critical of UHY, [S] only threatened ‘to engage another firm’ if a viable plan to go forward was not offered, which revealed that plaintiff still believed that UHY was continuing to provide” it professional services. A “flurry of emails from” 6/14 through 6/18/18 “could reasonably be interpreted as showing that UHY was continuing to render professional services for plaintiff by offering a plan or ideas on how to keep the battle against the Department afloat.” Thus, a question of fact existed as to whether the action accrued on 11/27/17, making the complaint untimely, or whether it accrued after 6/5/18, making it timely.

Motorcycle accident claim alleging a road defect; Pre-suit notice requirements; The Governmental Tort Liability Act; The County Road Law; Pearce v Eaton Cnty Rd Comm’n; Brugger v Midland Cnty Bd of Rd Comm’rs

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 73808 in the 9/17/20 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s opinion in Pearce and Brugger.

Action for injuries caused by an alleged road defect; Governmental immunity under the Governmental Tort Liability Act; Notice; MCL 691.1404(1); MCL 224.21; Pearce v Eaton Cnty Rd Comm’n; Brugger v Midland Cnty Bd of Rd Comm’rs

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 72898 in the 5/6/20 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decision in Pearce and Brugger. It denied the motion to set aside the earlier order holding the application for leave to appeal in abeyance, to vacate the Court of Appeals’ decision, and for remand to the trial court.

Governmental immunity; The motor-vehicle exception; MCL 691.1405; Negligence; Latham by Perry v National Car Rental Sys, Inc; A motorist’s duty; Zarzecki v Hatch; Noneconomic damages; Comparative fault; MCL 500.3135(2)(b); Pedestrian’s duty; MCL 257.655; Heger v Meissner

The court held that the trial court erred by granting defendant-public transit provider (CCPT) summary disposition of plaintiff-child pedestrian’s claims. Plaintiff, through his mother, sued CCPT and its bus driver for injuries he sustained when he was struck by a public bus. The trial court determined “plaintiff was in the road when he was struck by the bus” and the bus driver had not operated the bus negligently. On appeal, the court agreed with plaintiff that the trial court erred by granting CCPT summary disposition because genuine issues of material fact remained as to whether the bus driver “was operating the bus with reasonable care and caution at the time of the collision.” There was evidence in the record that the bus driver “was aware of plaintiff and his friends at the side of the road, [she] at least should have been aware that children not-uncommonly crossed the road in that general area, and that [she] was exceeding the posted speed limit at the time of impact and had available ways to avoid the accident.” At this procedural stage, the court “may not determine the credibility or weight to be given any particular evidence. The jury could choose to believe a constellation of evidence from which it could be reasonably inferred that [the bus driver] was driving negligently at the time of the accident.” As such, CCPT “was not definitively entitled to governmental immunity because there is a genuine issue of material fact regarding whether the motor-vehicle exception was applicable.” Reversed and remanded.

Motorcycle accident claim alleging a road defect; Pre-suit notice requirements; The Governmental Tort Liability Act; The County Road Law; Pearce v Eaton Cnty Rd Comm’n; Brugger v Midland Cnty Bd of Rd Comm’rs

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 73808 in the 9/17/20 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s opinion in Pearce and Brugger.

Action for injuries caused by an alleged road defect; Governmental immunity under the Governmental Tort Liability Act; Notice; MCL 691.1404(1); MCL 224.21; Pearce v Eaton Cnty Rd Comm’n; Brugger v Midland Cnty Bd of Rd Comm’rs

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 72898 in the 5/6/20 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decision in Pearce and Brugger. It denied the motion to set aside the earlier order holding the application for leave to appeal in abeyance, to vacate the Court of Appeals’ decision, and for remand to the trial court.

Governmental immunity; The motor-vehicle exception; MCL 691.1405; Negligence; Latham by Perry v National Car Rental Sys, Inc; A motorist’s duty; Zarzecki v Hatch; Noneconomic damages; Comparative fault; MCL 500.3135(2)(b); Pedestrian’s duty; MCL 257.655; Heger v Meissner

The court held that the trial court erred by granting defendant-public transit provider (CCPT) summary disposition of plaintiff-child pedestrian’s claims. Plaintiff, through his mother, sued CCPT and its bus driver for injuries he sustained when he was struck by a public bus. The trial court determined “plaintiff was in the road when he was struck by the bus” and the bus driver had not operated the bus negligently. On appeal, the court agreed with plaintiff that the trial court erred by granting CCPT summary disposition because genuine issues of material fact remained as to whether the bus driver “was operating the bus with reasonable care and caution at the time of the collision.” There was evidence in the record that the bus driver “was aware of plaintiff and his friends at the side of the road, [she] at least should have been aware that children not-uncommonly crossed the road in that general area, and that [she] was exceeding the posted speed limit at the time of impact and had available ways to avoid the accident.” At this procedural stage, the court “may not determine the credibility or weight to be given any particular evidence. The jury could choose to believe a constellation of evidence from which it could be reasonably inferred that [the bus driver] was driving negligently at the time of the accident.” As such, CCPT “was not definitively entitled to governmental immunity because there is a genuine issue of material fact regarding whether the motor-vehicle exception was applicable.” Reversed and remanded.

Fraud & silent fraud claims arising from the sale of a home; Hi-Way Motor Co v International Harvester Co; Alfieri v Bertorelli; Reasonable reliance; Knowledge; Seller disclosure statement (SDS) under the Sellers Disclosure Act; Breach of warranty claims related to basement waterproofing; Motion for a directed verdict; Damages; JNOV; Waiver

Rejecting plaintiff-buyer’s claim that summary disposition was premature, the court further held that her common-law and silent fraud claims against defendants-seller and her real estate agency (Western Real Estate) were properly dismissed. Plaintiff’s breach of warranty claims against defendant-B-Dry related to three warranties were also properly dismissed where they did not apply. But B-Dry abandoned or waived its claims related to another warranty, on which a jury found for plaintiff. As to the seller, the court concluded that plaintiff did not present any evidence suggesting that “seller had personal knowledge of ongoing structural problems, that seller would have had such knowledge through the exercise of ordinary care, or that seller’s statements on the SDS were otherwise made in bad faith.” Thus, no question of fact existed as to “whether seller had personal knowledge that her statements in the SDS about structural issues were false[.]” The court additionally noted that the SDS stated “there had been evidence of water in the basement,” and plaintiff received “two recent inspection reports that noted the presence of past and likely current water in the basement.” The one prepared by her own inspector “noted that the basement was finished, but that it was in a deteriorated condition because of neglect, moisture, and untimely repairs. The same report noted evidence of prior water leakage, but added that efflorescence on the walls indicated the presence of periodic moisture and that more water seepage may occur in the future. Under these circumstances, in which the presence of periodic moisture was noted, warnings were made to monitor for future leakage, and advice was given to follow up with the company that made the repairs, no reasonable juror could conclude that plaintiff’s belief that the basement was fully waterproofed such that it did not have any ongoing issues with water was reasonable. Rather, the reports in her possession would have put her on notice of the current presence of moisture in the basement and the possibility of future water seepage.” As a result, summary disposition for the seller and Western Real Estate was proper on plaintiff’s fraud claims. Affirmed.