Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Legal malpractice; The “last treatment rule”; Levy v Martin; “Investigation” & “indictment”
Holding that questions of fact existed as to when the legal malpractice claims accrued, the court found that the trial court erred by granting summary disposition for defendants-Dykema Gossett, Brady, and Magyar based on the statute of limitations. After learning “that he was being investigated in relation to a ‘nationwide investment fraud scheme,’” plaintiff sought legal counsel from defendants. In 4/13, they sent him an engagement letter outlining “the terms of the retainer agreement.” In 10/18, plaintiff sued alleging “legal malpractice in relation to defendant’s pre-indictment representation. Specifically, plaintiff alleged that he would not have been indicted but for Brady and Magyar’s malpractice and that Dykema was vicariously liable for their malpractice.” On appeal, he argued that the “last treatment rule” outlined in Levy controlled. Given the facts here, the court found “that ‘[i]nvestigation’ and ‘indictment’ are technical terms.” Further, although “the terms are different, they are not fundamentally inconsistent.” While the letter referenced “indictment,” it appeared “that defendants were referencing the term ‘[i]nvestigation’ when attempting to define the scope of ‘the matter.’ The use of the two terms could demonstrate a distinction between the pre- and post-indictment proceedings. It is also noteworthy that the subject of the letter is ‘[i]nvestigation,’ as opposed to a general term such as ‘criminal matter.’ Thus, the term ‘[i]nvestigation’ is subject to more than one interpretation, thereby rendering the contract ambiguous.” Given that the parties’ intent was not clear from the plain language of the 4/13 agreement, there were questions of fact for the trier of fact. The court concluded that “whether the last treatment rule dictates the outcome in this case depends on interpretation of the [4/13] engagement letter.” Reversed and remanded.
Whether defendant-City could be held vicariously liable for its officer’s alleged “failure to accommodate” under Title II of the Americans with Disabilities Act (ADA) & the Rehabilitation Act; Title VI of the Civil Rights Act; Gebser v Lago Vista Indep Sch Dist; Foster v Michigan
[This appeal was from the ED-MI.] The court for the first time held that Title II of the ADA and the Rehabilitation Act do not allow for vicarious liability. Plaintiff-Jones, who is in a wheelchair, was arrested during a protest in Detroit, and was taken to jail in a cargo van. He claimed that this method of transportation was unsafe for someone in a wheelchair, and that this resulted in an exacerbation of prior health problems. Jones sued defendant-City of Detroit, alleging, among other things, that the police officers’ transportation choice constituted a “failure to accommodate” under the ADA and the Rehabilitation Act. The district court ruled that the City could not be held vicariously liable under the Acts. The court first noted that “[t]he remedies available for violations of Title II of the ADA and § 505 of the Rehabilitation Act are ‘coextensive’ with those for Title VI . . . . Whether Title II imposes vicarious liability rises and falls with whether Title VI does.” The court noted that it indicated in Foster “that the claimants ‘likely would not be able to establish Title VI liability . . . under a theory of respondeat superior.’” While the Circuits are conflicted on the issue, the court held that “[b]ecause Title II of the ADA and the Rehabilitation Act import Title VI’s remedial regime, that ends the inquiry. If Title VI does not allow vicarious liability, neither do these provisions of the ADA or the Rehabilitation Act.” Affirmed.
Lying to a peace officer; MCL 750.479c(1)(b); People v Williams; The “material fact” requirement; Materiality; United States v Gaudin; Kungys v United States
Noting that it had not previously examined the meaning of “material fact” for purposes of MCL 750.479c(1)(b), the court held that a “material fact must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.’” It found there was no evidence supporting that defendant-Klages’s false statement about 1997 conversations was material to a 2018 criminal investigation. Thus, it vacated her lying to a peace officer convictions and remanded for dismissal of the charges. She was charged with making a false statement to an officer investigating MSU’s “knowledge of the sexual abuse perpetrated by Dr. Larry Nassar. Klages made the allegedly false statement in 2018, after Nassar had been convicted, sentenced, and imprisoned. The statement concerned” her memory of conversations with two gymnasts in 1997. Proof that her “statements constituted a felony under MCL 750.479c(1)(b) required” a showing that her denial of taking part in “the conversation constituted a material fact in the peace officer’s criminal investigation.” As there is only one published case construing the statute, Williams, and it did not examine the meaning of “material fact,” the court turned to federal case law on materiality and adopted the reasoning of cases such as Gaudin and Kungys. It held that the prosecution did not show “that Klages’s failure to recall or to admit to the 1997 conversations was a fact material to the investigator’s determination whether someone at MSU other than” Nassar committed CSC or misconduct in office. It emphasized MCL 750.479c(1)(b)’s material fact requirement “requires proof of something more than an investigator’s unsupported and speculative opinion that he may have asked different questions, particularly absent evidence that the ‘material fact’ had any reasonable possibility of influencing the decision that matters—a charging decision. As in Kungys, when presented with the question of whether a false statement constitutes a material fact, materiality is not determined by an investigator’s belief that more investigation would have been helpful.” In the examples in Williams, “misleading statements prevent the police from solving a crime and qualify as material because they deprive the decision makers of the information necessary to make an accurate and informed charging decision. Here, the prosecution never presented evidence of any underlying crime or even suggested that someone ‘got away.’”
Quashing the bindover & dismissing the case; Making a false or misleading statement to a peace officer; MCL 750.479c(1)(b); People v Williams
The court affirmed the circuit court’s decision quashing the bindover on counts of making a false or misleading statement to a peace officer and dismissing defendant’s felony information, holding that “the evidence was insufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that defendant made a false or misleading statement[.]” The prosecution claimed that she knowingly and willfully made false or misleading statements as to whether, before the 2016 media reporting on Larry “Nassar’s misconduct, defendant (1) knew that Nassar was the sports medicine doctor under review in 2014 and (2) knew the nature of the allegation or the substance of the review. These two allegedly false or misleading statements formed the basis for four charged offenses under MCL 750.479c because the officers were investigating both” CSC I and misconduct of a public official. The prosecution maintained that “the evidence and inferences from that evidence show that defendant was informed in 2014 of Nassar’s name and the nature of the allegations against him. However, the prosecution did not introduce any evidence that defendant was actually informed in 2014, or at any time prior to 2016 of Nassar’s name or the details of the allegations against him.” The court held that the prosecution did not present evidence “that defendant was actually apprised of the details of the allegations or complaint against Nassar in 2014 until after Nassar’s misconduct garnered national media attention in 2016.” On this record, it could not “say that defendant’s statements during the 2018 police interview were affirmatively false or misled law enforcement in this regard.” Absent evidence that she “was provided with Nassar’s name or details about the nature and substance of the allegations in 2014, there was no evidence that defendant’s 2018 statements to the police were affirmatively false or misleading as required by the statute.” The prosecution essentially claimed that she “made false or misleading statements because [witness-R] must have provided more details to defendant considering the seriousness of the allegations and the amount of information” R possessed. But that conclusion was not supported by the evidence and instead rested “on mere speculation and suspicion.” Given the evidence presented, “the district court abused its discretion by finding that there was probable cause of this element of the crime and by instead binding defendant over for trial based on mere speculation.”
Sentencing; Scoring of OVs 9, 10, 12, 13, & 19; People v Nelson; People v Stoner; People v Smith; Ineffective assistance of counsel for failing to challenge OV scores
On remand from the Supreme Court, the court held that OVs 13 and 19 were improperly scored, and there was presently insufficient evidence to support the OV 12 score. While it rejected defendant’s challenges to the scoring of OVs 9 and 10, as well as his ineffective assistance of counsel claim, he was entitled to remand for resentencing. He pled guilty to malicious destruction of a building valued at $1,000 or more but less than $20,000 and third-offense attempted domestic violence. The trial court sentenced him as a third-offense habitual offender to concurrent terms of 4 to 10 years for the former and 40 months to 5 years for the latter. In a prior opinion, a majority of the court “limited its analysis to OV 13 and concluded that it was properly scored at 25 points because defendant engaged in a pattern of criminal activity involving three crimes against a person” in a 5-year period. The Supreme Court vacated that judgment and remanded for reconsideration of “defendant’s challenge to OV 13 in light of Nelson and for consideration of the issues” raised in his Standard 4 brief. Pursuant “to the Supreme Court’s order in Nelson, in order for the sentencing offense to be ‘part of a pattern’ of crimes against persons for purposes of scoring OV 13 at 25 points under MCL 777.43(1)(a), it must itself be a crime against a person. In our initial ruling in this case, we counted three crimes against a person by using defendant’s lesser crime class conviction of third-offense attempted domestic violence[.]” However, the offense of the highest crime class here was the malicious destruction offense, a Class E felony, “and a sentencing information report was prepared for that crime only. Therefore, third-offense attempted domestic violence was not the sentencing offense and could not be used as the basis to score OV 13. Rather, the trial court was required to score the guidelines for the malicious destruction of a building offense only.” OV 13 should be scored at 10 points here. Further, “third-offense attempted domestic violence could not be used to score OV 12 because that offense resulted in a separate conviction.” The prosecution’s argument that OV 12 was properly scored at 5 points based on defendant’s felonious conduct toward his girlfriend’s daughter who was present but “not named as a victim in the charging document[,]” was rejected in Stoner. Finally, the court found that OV 19 was improperly scored at 15 points.
Divorce; Sole physical custody; Proper cause or a change in circumstances; Child’s best interests; MCL 722.23; Factors (b), (d), (e), & (f); Whether a party was entitled to equitable division of the marital home purchased by the other party before the marriage; MCL 552.401
The court held that the trial court did not err by determining that granting plaintiff-mother sole physical custody of the parties’ child was in the child’s best interests. Also, it was “not left with a firm conviction that the trial court’s determination not to divide the appreciation of the home was inequitable.” As to the best interest factors, the trial court concluded that “factors (b), (d), (e), (f), and (h) favored plaintiff, and that factors (a), (c), (g), (j), and (k) did not favor either party.” Defendant-father did not challenge the determination as to factor (h), but he argued that the trial court erred by holding that factors (b), (d), (e), and (f) favored plaintiff. As to factor (b), even “though there was evidence supporting that defendant loved the minor child, gave affection to the minor child, and would perhaps continue to raise the minor child in his religion or creed, there was also evidence that plaintiff actively disciplined the minor child, attended parent-teacher conferences, was engaged in the minor child’s progress in school, and took him to church with her.” Thus, the trial court’s finding as to this factor was not against the great weight of the evidence. As to factors (d) and (e), the record evidence showed that the “child had a stable, satisfactory environment with plaintiff more than defendant, and plaintiff’s living arrangements with her daughter presented more permanence of the family unit than defendant’s lack of living arrangements did. The trial court’s finding regarding these factors was not against the great weight of the evidence.” Further, the “trial court’s decision to weigh defendant’s alcohol consumption in its factor (f) analysis was not an abuse of discretion.” As to the home, which plaintiff purchased before the marriage, the court rejected defendant’s argument that MCL 552.401 applied. Affirmed.
Discovery sanction of dismissal; Vicencio v Ramirez; Failure to comply with a court order; MCR 2.504(B)(1); Inherent authority to sanction litigants & their counsel; Swain v Morse; Requirement that a plaintiff claiming no-fault benefits provide certain initial disclosures to the other parties; MCR 2.302(A)(2)(b), (3), & (5); MCR 2.313(C)(1); MCR 2.313(B)(2)(a)-(c); Uninsured & underinsured motorist (UM/UIM) benefits
Holding that the trial court did not abuse its discretion in dismissing plaintiff’s claims as a discovery sanction, and that it was also correct in dismissing her claims under MCR 2.116(C)(10) because she did not provide any supporting evidence for them, the court affirmed. The case arose from an alleged auto accident involving a vehicle driven by defendant-Al-Qassab in which plaintiff was a passenger. She sued defendant-State Farm for PIP benefits and for UM/UIM benefits. She also sued defendant-LM General Insurance (Liberty Mutual) “for UM/UIM benefits and Al-Qassab for third-party economic damages in excess of the no-fault threshold.” On appeal, she suggested “the trial court lacked authority to sanction her because she did not violate a court order.” The court disagreed, first noting she “failed to establish that she complied with the scheduling order.” In addition, even if she “had not violated a court order, the trial court still had authority to dismiss plaintiff’s claims as a discovery sanction[,]” and the court held that the trial court did not abuse its discretion in exercising that authority. While “the trial court did not verbatim recite” the relevant factors or discuss other possible sanctions, its “reasoning implies it considered both. Perhaps weighing most heavily in the trial court’s calculus was plaintiff’s history of deliberate delay.” It also noted that the prior dismissal without prejudice due to her failure to cooperate with discovery “had not worked to remedy plaintiff’s recalcitrant conduct, implying that a sanction lesser than dismissal with prejudice would not be justified.” As to her contention that all the Vicencio factors weighed in her favor, the court found that few of her arguments were “factually accurate” and that even those with factual support were unavailing. Among other things, while she “did respond to some discovery requests, this does not mean the rest of plaintiff’s violations were inadvertent—especially considering that her answers were incomplete, evasive, and untimely.” And the fact she “eventually responded to some of State Farm’s and Liberty Mutual’s discovery requests and untimely provided her initial disclosures to all three defendants did nothing to cure any prejudice to them.” In addition, she presented no evidence she was entitled PIP or UM/UIM benefits or in support of her claim against Al-Qassab.
Applicability of the one-year-back rule (MCL 500.3145) in an action by an insurer seeking reimbursement from another insurer; “Claimant”; Allstate Ins Co v State Farm Mut Auto Ins Co; “Subrogee”
Holding that the one-year-back rule did not apply because plaintiff-LM General was not a claimant under the No-Fault Act and the underlying claim was timely under the rule, the court reversed summary disposition for defendant-Trumbull Insurance and remanded. It noted that this was “the second chapter of an ongoing dispute between two insurance companies. The first chapter arose” when the injured person (H) sought payment of first-party no-fault benefits. H sued both LM General “and the Hartford Insurance Company, known here as Trumbull Insurance Company.” LM General paid benefits under protest. The only dispute in the first case was which company was first in priority. “Trumbull admitted liability after LM General” moved for summary disposition and Trumbull failed to respond. Trumbull “agreed to an order, and the case was dismissed. But Trumbull” did not reimburse LM General, which then filed this action for reimbursement. The court found that Allstate was analogous. “Under the circumstances presented in this case, LM General, an insurance company, is not a ‘claimant.’” H was the claimant in the prior “action, and her claim for benefits was timely under the one-year-back rule. Because LM General” was not a claimant under the No-Fault Act and timely made payments to H, “Allstate counsels that the one-year-back rule does not apply, despite that some of LM General’s timely payments to the claimant . . . were made more than a year before it was forced to file this suit.” Trumbull contended that as H’s “‘subrogee,’ LM General acquired only the same rights as [H] would have had” and it reasoned that H could not have recovered benefits had she sued in 2019 when LM General did. The court noted that whether LM General was her subrogees was “not entirely straightforward.” LM General was “not suing to enforce a right, duty, or claim owed to [H]; her claim for benefits has been paid and liability decided. Rather,” it alleged that Trumbull violated a “separate and distinct agreement to reimburse LM General for the payments that LM General had made.” Because the issue here was “whether Trumbull’s promise to pay is legally enforceable[,]” the one-year-back rule did not apply. And even assuming LM General was H’s subrogee, “her claim was timely under the one-year-back rule. Standing in [H’s] shoes, so is LM General’s.”
Jurisdiction; MCL 712A.2(b)(2); Child’s best interests; Ineffective assistance of counsel for waiving the probable cause determination at the preliminary hearing
In these consolidated child-welfare appeals, the court affirmed the trial court’s order taking jurisdiction over the children (IG and MK). Respondents-parents argued that the trial court’s determination “to take jurisdiction over the children was not supported by a preponderance of the evidence.” The trial court acknowledged that DHHS “did not present any evidence that the safety plan was violated or that it was a crime for” a registered sex offender (L) to be in the home, “but still found that the children were at risk when in the home, not just because of criminality, but also because of depravity.” It expressed concern that the DHHS permitted L “to be in the home in the first place and viewed the conduct of mother and father allowing [L] to enter the home repeatedly while IG was present as ‘indefensible.’” The trial court additionally noted the father “was previously accused of physical and sexual abuse. The trial court expressed that it was ‘very concerned’ about MK’s sexually acting out when she was younger. And it was further concerned that, after these incidents, father took MK on work trips in his truck, and there had been past allegations of inappropriate touching by father.” The trial court determined “that it was ‘clear that these children are living in chaotic situations. Where it’s neglect or it’s criminality, it’s not a safe environment for either one.’” Based on its review of the record, the court found no error in the trial court’s decision to take jurisdiction.