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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Unemployment insurance benefits; Applicable limitation period; MCL 421.32, MCL 421.32a, & MCL 421.62; Department of Licensing & Regulatory Affairs/Unemployment Ins Agency v Lucente; Notice; Procedural due process; Michigan Compensation Appellate Commission (MCAC); Department of Labor & Economic Opportunity/Unemployment Insurance Agency (the Agency)
Applying the Lucente analysis, the court affirmed the circuit court order affirming a decision by the MCAC, which denied claimant’s challenges to the determinations by appellee-Agency that “claimant had fraudulently received unemployment insurance benefits she was not eligible to receive and that she was required to pay restitution and penalties to the Agency.” On appeal, claimant argued that MCAC and the circuit court erred by holding “that the Agency’s notices of ineligibility, fraud, and restitution were subject to the six-year limitations period prescribed in § 62, and were not subject to the time limitations in § 32 and § 32a.” In Lucente, the court held that “the Agency’s determinations of fraudulent benefit claims, restitution obligations, and fraud penalties, were not determinations or redeterminations subject to the 30-day and one-year limitation periods in § 32 and § 32a, but rather determinations of fraud and restitution subject to the three-year or six-year limitation periods in § 62.” In the companion cases in Lucente, the court “applied this analysis to cases governed by the same versions of § 32 and § 32a at issue in this case, and a version of § 62 that did not materially differ from the version of § 62 at issue” here. Thus, applying the Lucente analysis to this case, the court held that the circuit court properly determined that “the Agency’s determinations of fraud, restitution, and penalties were timely made because they were made within the applicable limitations period prescribed in § 62 as amended by 2013 PA 147.”
Claim for negligence performance of a home inspection; Contract clause limiting the inspector’s liability to the cost of the inspection; Fraud claims against sellers; Effect of an “as is” clause; Lorenzo v Noel; The Seller Disclosure Act (MCL 565.951 et seq); Roberts v Saffell
The court rejected plaintiff-home buyer’s claim that the clause in her contract with defendant-home inspection company (Energetics) limiting its liability should be ruled unenforceable. As to the defendants-sellers (the Benoits), it concluded that “most of the alleged defects in the house were covered by the ‘as is’ clause” in the sales contract. But it found there was a genuine issue of material fact about whether they committed silent fraud via their failure to disclose the allegedly insufficient septic tank covering to plaintiff before the purchase. Thus, it affirmed summary disposition for defendants in all respects except as to the septic-tank-covering claim against the Benoits. It reversed and remanded on that claim. As to Energetics, plaintiff asserted “that the home inspection was negligently performed and missed numerous defects that made the house unsuitable for habitation.” She argued that the liability provision in their contract “did not cover ordinary negligence and was against public policy.” The court disagreed. While plaintiff contended that she needed a home inspection but lacked bargaining power or any alternative for obtaining one, “the mere fact that parties have unequal bargaining power does not preclude enforcement of a contract, especially where the party of lesser power has some options.” The fact she later obtained another inspection from another home inspector undermined her claim “that Energetics was her only option.” In addition, she acknowledged she understood it “did not warrant the condition of any part of the premises.” As to the Benoits, plaintiff did not present evidence that they had knowledge about most of the alleged defects. “In order to overcome the ‘as is’ clause, plaintiff was required to demonstrate an issue of material fact regarding whether the defects were known to the Benoits. She failed to do so.” The court noted that the Seller Disclosure expressly stated that they “had never lived on the property; their knowledge of the house’s conditions was, therefore, greatly limited.” However, as to the septic tank covering, plaintiff presented messages between herself and a former resident of the property, who stated that, while he lived there, “the Benoits were aware of the inappropriate and unsafe wood cover but refused to remedy the situation because doing so would cause ‘the health dept’ to require parts of the septic system to be changed.”
Prosecutorial misconduct; People v Dobek; Admissibility of statements made during a post-polygraph interview; People v Ray; Ineffective assistance of counsel; People v Lockett; Trial strategy; People v Unger; Sentencing; Scoring of 5 points for OV 3; “Bodily injury” not requiring medical treatment; MCL 777.33(1)(e); People v Lampe
The court held that the prosecutor did not commit misconduct, that defendant was not denied the effective assistance of counsel, and that 5 points were properly scored for OV 3. He was convicted of CSC I for sexually assaulting his daughter, and sentenced as a second-offense habitual offender to 25 to 50 years. The court rejected his argument that the prosecutor committed misconduct when she allegedly made an incorrect statement about the prosecution’s DNA evidence before trial. Based on the information in the prosecutor’s affidavit, it was clear that the prosecutor’s statements “did not deprive defendant of a fair trial; defense counsel at the time was given the same lab report as the prosecutor and misinterpreted the report in the same way, so it was not the prosecutor’s statements that led defense counsel to encourage defendant to participate in the polygraph test.” In addition, even ignoring the affidavit, the court could not “conclude that the prosecutor’s alleged misrepresentation of the DNA evidence deprived defendant of a fair trial.” Further, “regardless of whether defense counsel encouraged defendant to participate in the polygraph examination, defendant testified that he decided to participate in” it on his own volition. The court also rejected his claim that the trial court erred when it admitted into evidence the post-polygraph interview and a detective’s testimony allegedly referring to the polygraph exam in the post-polygraph interview. Defendant failed to identify any specific mention of the polygraph exam or the results of the exam “in the record, and all of the things [he] argues could have suggested that [he] underwent a polygraph examination do not actually suggest that.” The court next rejected his contention that he was denied the effective assistance of counsel because his defense counsel allowed him to participate in the polygraph exam and post-polygraph interview, noting he failed to establish that his counsel’s performance was objectively unreasonable. Finally, as to the scoring of OV 3, based on the nurse’s testimony that defendant’s daughter “‘put her butt up in the air and said, look at my butt first where daddy did it,’” that she “had an anal fissure, and that an anal fissure could be consistent with some type of sexual assault,” the court was not convinced that the trial court made a mistake in concluding “that bodily injury not requiring medical treatment occurred to a victim.” Affirmed.
Ineffective assistance of counsel; Waiving any objection to other acts evidence; MCL 768.27a; MRE 403; People v Watkins; Failure to request a hearing under Daubert v Merrell Dow Pharms, Inc to contest the admissibility of an expert’s testimony; Failure to object to the expert’s testimony; Distinguishing People v Thorpe; Prosecutorial misconduct; Vouching for witness’s credibility, Mischaracterizing testimony; Shifting the burden of proof during closing & rebuttal argument; Attorney’s fees; MCL 769.1k; Judgment of sentence (JOS)
Holding that defendant was not denied the effective assistance of counsel, and that there was no merit in his prosecutorial misconduct claim, the court affirmed his convictions and sentences, but vacated the portion of the JOS requiring him to pay attorney’s fees and remanded. He was convicted of CSC II. He argued, among other things, that his counsel was ineffective for failing to object to the admission of his former stepdaughter-J’s testimony about his other acts of CSC II against her and his stepdaughter, victim-K’s testimony as to another act of sexual abuse. J “testified that on one occasion when she was getting out of the shower at the age of 11 or 12 years, defendant touched her genitals.” J also indicated that he “made her put her hand on his penis.” Thus, there was evidence that he committed CSC II against J by “(1) engaging in sexual contact, (2) with a person under 13 years of age.” Further, K testified, “apart from the acts that were charged in this case, that when she was 13 years old, defendant made her touch his penis.” Thus, there was also evidence that he committed CSC II against K by “(1) engaging in sexual contact, (2) with a person at least 13 years of age but less than 16 years of age, and (3) both people are members of the same household.” This evidence was admissible under MCL 768.27a. Further, the evidence that he had sexually assaulted J as well K “in a similar manner, was highly probative and relevant to the offenses with which he was charged, because it tended to show that defendant sexually assaulted” K. The court held that the Watkins factors weighed in favor of admissibility. The other acts and the acts charged were similar. K testified that he sexually abused her while her mother was at work. Although J did not testify that he touched her breasts, he “sexually abused her by touching her vagina while she was in a vulnerable position in the home[.]” The incident with J “occurred in close temporal proximity to when defendant began sexually abusing” K. Further, given that K testified that he “sexually abused her almost every day, the other incident with [K] likely also occurred in close temporal proximity to the acts charged.” The court found that while the other acts “were only alleged as single incidents, there was no suggestion of an intervening act that might have rendered this evidence less relevant.” And given that “there was no physical evidence or eyewitness testimony to directly support or contradict [K’s] testimony, evidence beyond [K’s] testimony was relevant . . . .”
Motion to withdraw a guilty plea after sentencing; MCR 6.310(C)(4); Whether the plea was understanding, voluntary, & accurate; MCR 6.302(A); Registration under the Sex Offenders Registration Act (SORA) (MCL 28.721 et seq.); Lifetime reporting under MCL 28.725(12); Ineffective assistance of counsel in relation to a plea proceeding; People v Haynes; People v Cole; Principle that counsel must advise clients of the clear consequences of their guilty pleas; Padilla v Kentucky
The court held that the trial court did not err by denying defendant’s motion to withdraw his guilty plea. He pled guilty to two counts of CSC III as a third habitual offender. The trial court sentenced him to concurrent terms of 15 to 30 years. He moved to withdraw his plea on the basis that neither his trial counsel nor the trial court advised him that his guilty plea would carry with it the lifetime SORA registration requirement, and thus he did not knowingly and voluntarily plead guilty, entitling him to withdraw his plea. He also claimed that the alleged failure of his trial counsel to advise him of the lifetime SORA registration requirement constituted ineffective assistance of counsel. The trial court denied his motion. On appeal, the court first rejected his ineffective assistance of counsel claim, noting “trial counsel provided an affidavit attesting that he informed defendant of the lifetime reporting requirements if defendant pled guilty.” In addition, defendant “was placed on notice by receipt of the amended felony information that he faced a Tier III SORA offense . . . “ Trial counsel “asserted in his affidavit that he and defendant discussed the implications of this printed notice. Based on these facts, defendant is not entitled to relief on his claim of ineffective assistance of counsel.” The court also rejected his claim that the trial court’s failure to inform him of the requirement of SORA lifetime reporting violated MCR 6.302(A) because it rendered his plea unknowing, involuntary, and inaccurate. Because SORA registration is not punishment, lifetime SORA registration was not part of the punishment of which the trial court was required to advise defendant before accepting his plea. Moreover, “defendant was made aware that as a result of his plea, he would be subjected to lifetime reporting under SORA.” Affirmed.
Unlawful reentry of a removed alien; 8 USC § 1326(a); Collateral challenge to the validity of the removal order; § 1326(d); United States v. Estrada; Due process; Ashki v. INS; Liberty interest; What process was due; Mathews v. Eldridge; Entitlement to representation in removal proceedings; § 1229a(b)(4)(A); 8 CFR §§ 1240.10(a)(1) & (2); Al-Saka v. Sessions; Lassiter v. Department of Soc. Servs.; Mendoza-Garcia v. Barr; Aguilera-Enriquez v. INS; Alien juveniles; Reno v. Flores; Jimenez-Castro v. Sessions (Unpub. 6th Cir.); Failure to inform defendant of the ability to seek voluntary departure; § 1229c(b)(1)(A)
The court affirmed the district court’s denial of defendant-Silvestre-Gregorio’s motion to dismiss his indictment for unlawful reentry based on his collateral attack on the underlying removal order, noting that it has held there is no constitutional right to government-provided counsel at civil removal proceedings, and concluding that this holding also applies to juveniles. He was 16 years old at the time of the removal hearing in 2001. He was accompanied by a social worker and assisted by an interpreter at that hearing. The record showed he declined the assistance of an attorney. The immigration judge (IJ) ordered that he be removed. He returned to the U.S. in 2002, and was convicted of several criminal offenses. When he was indicted for illegal reentry, he collaterally attacked his removal, alleging that in 2001, his due-process rights were violated where, as a juvenile, he was not provided with legal representation at the removal proceeding. The court found that the issue was whether he established that the removal order was “fundamentally unfair.” The court agreed that he established a liberty interest, but held that he failed to establish a due-process violation. It acknowledged that in removal proceedings, aliens are entitled under § 1229a(b)(4)(A) to be “‘represented, at no expense to the Government, by counsel of the alien’s choosing.’” However, it noted that Silvestre-Gregorio had been informed of this right three times, but he refused and said that he wanted the hearing finished “that day.” Further, under Al-Saka, “‘[t]he Fifth Amendment simply does not guarantee the right to counsel’ for aliens at civil removal hearings.” The court rejected the suggestion that this holding might be dicta, and saw no reason to make an exception for a juvenile. It opined that “[t]he procedures used in immigration proceedings are sufficient to satisfy due process even in light of any increased risk of erroneous deprivation that stems from juveniles’ relative difficulty in understanding immigration law.” The court also rejected his claim based on the IJ’s failure to inform him that voluntary departure was available/ He was not eligible for that form of relief, and the court has held that “an individual ‘has no constitutionally-protected liberty interest in obtaining discretionary relief from deportation.’”
Modification of child support; MCL 552.519(3)(a)(vi); Clarke v Clarke; Imputation of income; MCSF 2.01(G)(2); Berger v Berger
The court held that the trial court erred by imputing income to defendant-father and increasing the amount of child support he pays to plaintiff-mother. The trial court ordered him to pay $500 per month in child support, which it based in part on imputing income to him. On appeal, he argued that the trial court erred when it imputed income to him without sufficient factual findings on the applicable criteria. The court found that “the trial court failed to articulate information about how each factor in” the MCSF applied to him “for purposes of finding an actual ability and a reasonable likelihood of earning the imputed potential income, nor did [it] state whether a specific factor did not apply. The trial court did not make findings under the imputation factors.” In fact, it “did not even reference the factors.” Instead, it “apparently inferred based on a generalized assumption that [he] should be earning an income premised on a standardized calculation rather than on his actual ability and likelihood to earn the imputed amount. The trial court did not address and give a basis for rejecting the reasons [he] proffered in regard to why his income had diminished so significantly.” It referred to “the ‘historical context of the case’ when it imputed income and modified child support.” However, the court could not ascertain what the trial court meant by this reference, “and it did not connect the reference to the imputation factors. There was a wholesale failure to comply with the MCSF, and the trial court did not indicate the evidentiary basis for the ‘normative hourly wage.’” Indeed, the trial court “did not even expressly identify the dollar amount that constituted the purported ‘normative hourly wage.’” Under these circumstances, the court was “compelled to reverse the [trial] court’s child support order and remand for compliance with the imputation provisions in the MCSF.” Reversed and remanded.
Divorce; Modification of custody; Vodvarka v Grasmeyer; Proper cause or change of circumstances (COC)
The court vacated the order denying defendant-mother’s motion for modification of custody as to the parties’ children and remanded for an evidentiary hearing, concluding that her offer of proof and other information in the record warranted one. She argued that the trial court should have held an evidentiary hearing before determining that she failed to meet the threshold issue of proper cause or COC. The court found that the trial court “failed to consider whether an evidentiary hearing was required to resolve contested factual issues in the case.” Based on the record, the court held that “there was a contested factual issue, i.e., whether plaintiff committed physical abuse of any of the children, that needed to be resolved for the trial court to make an informed decision on defendant’s motion to modify custody. Furthermore, there was a contested factual issue regarding whether defendant was coaching the children to make false accusations against plaintiff." Several best-interest factors, including MCL 722.23(k), (h), (i), and (j) were impicated by her motion. Defense counsel “made an offer of proof that if an evidentiary hearing were held, multiple witnesses would testify that they did not see defendant coaching the children and that the children were nervous and unwilling to go with plaintiff.” In addition, defense counsel “stated that the child’s school counselor would testify that the child kept a journal about plaintiff’s alleged physical abuse. Assuming that defendant could have authenticated the journal at the hearing,” it would be admissible under MRE 401 and 402.
Medical malpractice; Striking witnesses due to failure to comply with an order compelling plaintiff to produce them for depositions; MCR 2.313(B)(2)(c); Dean v Tucker; Striking plaintiff’s damage claims; Assertion of a privilege; Applicability of MCR 2.314(B); “Must”; Waiver of the privilege by initially allowing discovery of medical information; Domako v Rowe
The court affirmed the trial court’s order striking some of plaintiff's witnesses due to her failure to comply with an order compelling her to produce them for depositions. But it held that the trial court erred by striking her damage claims on the basis of MCR 2.314(B)(2) and granting defendants summary disposition. Plaintiff filed this medical malpractice action “after she suffered a stroke following what she described as an abrupt, excessive, and forceful chiropractic adjustment.” The court first concluded that the Dean factors weighed in favor of striking her additional witnesses. The trial court ordered her “to produce all witnesses for deposition, and plaintiff chose not to do so.” She contended that she did not willfully violate the “order because ‘defendants simply waited for plaintiff to “produce” the witnesses without taking any steps of its own.’ But the order clearly placed the onus of producing the witnesses on plaintiff; it required no action from defendants.” Further, they requested that she produce the witnesses for deposition several times, “and despite the stipulated court order, plaintiff failed to produce all but two witnesses.” Thus, the court found that she showed “an extended history of failing to comply with court orders and a lack of effort to cure the defect. This prejudiced defendants because it pushed discovery well past the initial closing date” and prevented them from completely developing a defense strategy. However, the trial court abused its discretion in ruling that she “could not introduce evidence related to her medical history or mental or physical condition pursuant to MCR 2.314(B).” The court held that MCR 2.314(B)(2) did not apply because she “did not invoke privilege in one of the four ways required by MCR 2.314(B)(1)[.]” Defendants asserted that her “revocation of her authorization was a ‘written response to a request for production of documents under MCR 2.310.’” However, in response to their request for production of documents, she “initially signed the medical authorization. Her revocation of that authorization nearly a year later cannot reasonably be considered a ‘response to a request for production of documents under MCR 2.310.’” And even if it could be deemed “an assertion of privilege (which it was not), the privilege was not timely asserted.” Affirmed in part, reversed in part, and remanded.
Dismissal for failure to strictly comply with the requirements of MCL 600.6431(1) (a plaintiff must file a written claim or written notice of intent to file a claim within one year after a claim accrues against a state instrumentality); Mays v Governor; Motion for leave to file an amended complaint; MCR 2.116(I)(5); Futility; Yudashkin v Holden
Holding that plaintiff-student’s claim was properly dismissed as untimely for failing to comply with MCL 600.6431(1) and that his proposed amended complaint would have been futile, the court affirmed summary disposition for defendant-U of M and the denial of his motion for leave to file an amended complaint. Plaintiff filed a three-count verified complaint in the Court of Claims in 2019 arising from events in the fall of 2017. In granting U of M summary disposition under MCR 2.116(C)(7) and (C)(8), the Court of Claims noted that he filed his notice of intent on 9/7/18, and listed the accrual date as 9/2/17. “Thus, ‘[b]y plaintiff’s own admission in his responsive briefing, his [notice of intent] was filed outside the one-year time period’” in MCL 600.6431(1). His verified complaint also indicated his claim arose on 9/2/17. As a result, it was clear that his “notice of intent was untimely, as it was filed three days after the one-year deadline outlined in MCL 600.6431(1). Indeed, plaintiff conceded in his response brief to defendant’s motion for summary disposition that his notice of intent was untimely. Thus, where plaintiff failed to strictly comply with the notice requirement found in MCL 600.6431(1), plaintiff could not maintain this suit” and dismissal was required. He argued in his responsive briefing and on appeal that “his post-deprivation due process claim actually accrued on” 10/4/17, when U of M’s police chief told plaintiff’s mother “that the only way to appeal the library ban was to write a letter of apology. Admittedly, this information was inconsistent with the clearly stated appeal process found on the trespass warning issued to plaintiff on” 9/2/17. But the court concluded that even if his “argument were to have merit, his failure to comply with the strict requirements of MCL 600.6431(1) preclude his claim.” The 10/4/17 date did not appear in his 9/7/18 notice of intent, and he did not cite it “as a date of accrual anywhere in his verified complaint.” Thus, as to that date, he did not “provide defendant, within one year of that date, specific information regarding the ‘time when and the place where’ his claim arose.” Any amendment to the complaint to include this “date as the date of accrual would have been futile, as plaintiff would have still failed to comply with the notice requirements under MCL 600.6431(1).”
Collapse of a publicly operated outdoor deck; The public building exception to governmental immunity (MCL 691.1406); Maskery v University of MI Bd of Regents; Design defect claims; Renny v Department of Transp; Distinction between a design defect & a failure to repair & maintain; Tellin v Forsyth Twp; Constructive knowledge of the dangerous or defective condition; Echelon Homes, LLC v Carter Lumber Co
The court concluded that plaintiffs in these consolidated cases sufficiently alleged that the publicly operated outdoor deck at issue collapsed due to a failure to maintain and repair, and that there was a genuine issue of material fact whether defendants-county and its parks and recreation department had constructive knowledge of the defective condition. Thus, it reversed summary disposition for defendants and remanded. “The trial court reasoned that the deck failed because LVL lumber was used in its design and construction, even though experts for plaintiffs and defendants opined that LVL was not fit for outdoor use.” But the court determined that while “the use of the LVL beam was a design defect, plaintiffs’ claims also arose out of defendants’ failure to repair and maintain the deck.” They offered evidence that it collapsed due to defendants’ failure to maintain and repair it. The Supreme Court in Renny “implied that a case can involve both a design defect and a failure to repair and maintain.” The evidence here suggested that “in normal conditions—or, in its initial condition—the LVL beam would have supported a normal weight load for a deck. However, when the LVL beam failed, it was only carrying a small fraction of that load.” The conclusion of the person (J) defendants hired to investigate the collapse reflected “that, but-for the rot in the LVL beam, the deck would not have collapsed.” The court further noted that the deck did not collapse for the first 12 years of its existence. “It only did so when the LVL beam failed because of rot.” Thus, the evidence showed it collapsed due to “deterioration, transforming a design defect into a failure to repair or maintain.” As to the issue of constructive knowledge, plaintiffs produced evidence showing “that if defendants had been reasonably diligent when they made repairs to the deck and discovered that some of sections of the deck had become rotted, they should have also discovered the rotted LVL beam.” A maintenance worker (D) testified that he made “repairs to areas of the deck that were rotted” and admitted he failed to “diligently inspect the LVL beam that supported the entire weight of the deck. If [D] had diligently inspected the LVL beam, the evidence, including an affidavit from plaintiffs’ expert, suggests that he would have discovered its rotted condition.”
Personal-injury action; Whether the Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq) was plaintiff’s exclusive remedy; Intentional tort exception; MCL 418.131(1); Travis v Dries & Krump Mfg Co; Palazzola v Karmazin Prod Corp; Whether the trial court’s failure to consider evidence was inconsistent with substantial justice; MCR 2.613(A); Leave to amend; MCR 2.118(A)(2); Futility; PT Today, Inc v Commissioner of Office of Fin & Ins Servs
The court held that the trial court did not err by finding that the WDCA was plaintiff’s exclusive remedy, or by denying him leave to amend his complaint. Plaintiff sued defendant for injuries he sustained when he was struck by another employee’s car in the parking lot. He claimed defendant had knowledge of the dangerous interplay of pedestrians and vehicles in its parking lot, but failed to take measures to warn employees of the dangers or prevent accidents. The trial court granted defendant’s motion for summary disposition, holding that the WDCA provided the exclusive remedy for plaintiff’s claim. It also denied him leave to amend, finding any amendment would be futile. On appeal, the court rejected his argument that the trial court erred by holding that the WDCA was his exclusive remedy, noting the intentional tort exception did not apply because plaintiff “presented nothing to establish that defendant had actual knowledge that injury ‘was certain to occur’ due to pedestrian-vehicle interaction” in the parking lot. In addition, “[i]t does not appear that the trial court ignored any evidence, but even if it did, reversal would only be required if the trial court’s failure to consider the evidence appears ‘inconsistent with substantial justice.’” Finally, the court rejected his claim that the trial court erred by denying leave to amend the complaint. He did not articulate how he could amend the "complaint to allege sufficient facts such that amendment would not be futile, and therefore" did not establish that the trial court’s ruling required reversal. Affirmed.
Governmental employee immunity; MCL 691.1407(2); Odom v Wayne Cnty; Gross negligence; MCL 691.1407(8)(a); Tarlea v Crabtree; Argument that gross negligence can be inferred from the results; Maiden v Rozwood
Holding that reasonable minds could not find that the conduct of defendants (Green and Merriweather) constituted gross negligence, the court reversed the denial of their motion for summary disposition based on governmental immunity. The case arose from the death of plaintiff-estate’s decedent, Michael, a 19-year-old developmentally disabled student at the high school where defendants worked. They contended that plaintiff could not “prove that they acted in any manner that could be considered grossly negligent with regard to the food they gave to Michael or their supervision of Michael while he was eating.” Rather, plaintiff simply speculated that they left him “alone with improperly prepared food on which he gorged himself to the point of choking. But such speculation is insufficient to establish a question of fact for the jury.” The court agreed. The unrefuted evidence showed “that Merriweather cut up Michael’s sandwich into four pieces—as was her routine.” Given the lack of evidence of the size of the sandwich, one could only speculate as to the size of each piece. Further, the evidence was “unrefuted that Michael had absolutely no food restrictions that the school or its employees were to enforce. Michael ate solid food. There was no evidence of a physician mandate or family request that defendants were defying by providing Michael a chicken sandwich, either cut up or whole.” In addition, there was no evidence he “had any history of choking on his food while at school. Under these circumstances, no reasonable person could conclude that Merriweather and Green were grossly negligent for providing or feeding Michael the chicken sandwich.” Plaintiff also did not offer any evidence that Merriweather and Green allowed him “unsupervised access to his lunch tray of food. In fact, the unrefuted evidence is that Green was sitting next to and assisting Michael from the time Merriweather delivered the food tray to the time of the incident.” Plaintiff essentially contended that gross negligence could “be inferred from the results— that Michael choked to death.” However, the Supreme Court rejected a similar argument in Maiden. The “fact that Michael had large chunks of food in his trachea and esophagus, as well as unchewed food in his stomach, does not prove that defendants left Michael alone with food that he gorged on in their absence.” Remanded for entry of an order granting defendants summary disposition.
Intentional & negligent infliction of emotional distress; Lucas v Awaad; Teadt v Lutheran Church MO Synod; Opportunity to file an amended complaint; MCR 2.119(A)(1); MCR 2.116(I)(5); Grayling Twp v Berry
The court affirmed the summary dismissal of plaintiffs’ (the Jensens) intentional and negligent infliction of emotional distress counts, but reversed that portion of the order making the dismissal with prejudice. It remanded to allow plaintiffs an opportunity to file an amended complaint raising potentially viable claims. As to the negligent and intentional infliction of emotional distress claims, the record established that “they waited two years to ask their landlord for assistance with a bug infestation. As soon as the landlord learned that his tenants found a ‘white bug’ in the home, he secured the services of exterminators to identify and kill the bugs. The landlord spent several thousand dollars for the exterminators to undertake four treatments of the home. This responsive action cannot be characterized as extreme, outrageous, or outside the bounds of decency. Moreover, intentional infliction of emotional distress, as stated in its name, is an intentional tort. It requires proof that the defendant possessed ‘a specific intent . . . to inflict the alleged injury of emotional distress on plaintiffs.’” The court concluded that plaintiffs could not establish that defendant-Hadden “specifically intended to cause them emotional distress where Hadden so quickly responded to their concerns. And although Ms. Jensen testified that an agent” of a non-party pest control company “informed her that the bedbugs were in the home before the Jensens moved in, there is no record evidence that Hadden had any notice of their presence.” Thus, the trial court properly dismissed the Jensens’ intentional tort claim. As to the negligent infliction of emotional distress count, in the absence of “a serious injury inflicted upon a third party and negligent conduct by the defendant,” the trial court properly dismissed this count as well. But the court held that it erred in denying them an opportunity to amend their complaint, concluding that there did not appear to be any “valid ground to deny a motion to amend in this case.”
Quiet title; MCL 600.2932(1); Whether the land could be divided without the approval of the township; Equity jurisdiction; Alleged forgery of documents
The court held that the record supported the trial court’s determination that there was no genuine issue of material fact and that plaintiffs were entitled to judgment as a matter of law in this real property dispute. Thus, it affirmed the order quieting title to the property in their favor. The parties disputed the ownership of 10.099 acres of vacant land located in Dryden Township. The record showed that, on 10/11/91, plaintiffs acquired ownership of a combined 28.809 acres of land through a warranty deed. This land consisted of the 18.71 acres of land that now has an address of 4526 C Road and the 10.099 acres of vacant land at issue, which is now parcel 30. On 5/28/15, plaintiffs entered into a purchase agreement with nonparty-M to sell him the 18.71 acres of land identified as 4526 C Road. Plaintiffs submitted a parcel division application to the township, “seeking approval for the division of the property into two separate parcels of 18.71 acres and 10.099 acres (which was a reconfiguration of an earlier division of the 28.809 acres into two differently configured parcels),” and the township approved the application. Days later, plaintiffs closed on the sale of the 18.71 acres of land. They retained ownership of parcel 30, i.e., the 10.099 acres of land at issue. Although defendant recorded a quit claim deed executed on 12/6/17, “purporting to convey parcel 30 to defendant from a successor in interest of [M], plaintiffs had never conveyed to [M] the 10.099 acres that became parcel 30.” As a result, a successor in interest of M “could not convey parcel 30 to defendant in light of plaintiffs retained ownership of that land.” Thus, the trial court correctly granted them summary disposition and quieted title in their favor as to parcel 30. While defendant made various arguments attempting to challenge this decision, the court noted that his “arguments are generally cursory, difficult to follow, and unsupported by adequate citation of pertinent authority.” He asserted, among other things, that M did not really sign the purchase agreement attached to plaintiffs’ complaint, claiming that M’s signature on other documents looked “different from his purported signature on the purchase agreement.” But defendant did not offer any supporting evidence, such as an affidavit from a qualified handwriting expert.