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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Arbitration as a matter of contract; Altobelli v Hartmann; Requirement that a valid agreement exist for arbitration to be binding; Ferndale v Florence Cement Co; Principle that a party cannot be required to arbitrate an issue it has not agreed to submit to arbitration; Lichon v Morse; Principle that the existence of an arbitration agreement & the enforceability of its terms are judicial questions for the trial court, not the arbitrators; Fromm v Meemic Ins Co
The court held that the trial court erred by granting plaintiff’s motion to compel arbitration. Plaintiff filed a demand for arbitration with the American Arbitration Association, then sued defendant alleging breach of contract and claiming it refused to recognize that its disagreement was arbitrable. On appeal, the court agreed with defendant that the trial court erred by finding it was for the arbitrator, not the trial court, to decide whether an enforceable arbitration agreement existed. It found it was undisputed that plaintiff’s rental agreement with defendant-Stansley, which was not part of this appeal, contained an arbitration clause. But the parties disputed whether defendant assumed that rental agreement—and by extension the arbitration clause—when it purchased certain assets of Stansley. Schedule 1.1(a) to the asset purchase agreement “included a list of specific liabilities [defendant] assumed when it purchased” Stansley’s assets, and the “rental agreement is not included in that list.” Defendant continued to receive services from plaintiff under the rental agreement until 1/21, so the issue was whether defendant implicitly assumed liability for the “rental agreement or otherwise became bound by that agreement. Resolution of this issue—whether” defendant was a party to the agreement, “including the arbitration provision—was for the trial court to determine, not the arbitrator.” Reversed and remanded.
The First Amendment’s Free Speech Clause; Whether a county ordinance regulating speech near medical facilities should be enjoined; McCullen v Coakley; Whether the ordinance was "narrowly tailored to serve a significant government interest"
The court held that defendant-County’s ordinance likely violated the First Amendment free-speech rights of plaintiffs-pro-life organizations by creating a “buffer zone” preventing them from “sidewalk counseling” people entering medical facilities. The court found that the ordinance was not “narrowly tailored.” Thus, it reversed the district court’s denial of a preliminary injunction and remanded with instructions for the district court to preliminarily enjoin defendants from enforcing the ordinance. Plaintiffs wanted to offer women pamphlets and other unsolicited information as they entered an abortion clinic in Louisville, Kentucky. They claimed the restrictions the ordinance placed upon them—a 10-foot buffer zone near the clinic’s entrance—violated their First Amendment rights. The ordinance imposed the buffer zone “around the entrance of any ‘healthcare facility’ in the County and forbids any non-exempt individual from ‘knowingly enter[ing]’ or ‘remaining . . . within’ it.” The zone runs from the facilities’ entrances “to the closest adjacent sidewalk curb and 10 feet from side to side” and applies during the facilities’ posted business hours. Plaintiffs alleged the “restriction on sidewalk speech” violated their First Amendment rights and requested that it be enjoined. The district court declined. The court did not address whether the ordinance was content neutral because it concluded that “the ordinance fails narrow tailoring anyway, and at all events some of the claimants” did not argue the ordinance was content based. As to the narrowly tailored issue, the County argued the buffer zone “facilitates safe, unimpeded access to abortion facilities and prohibits obstruction of them.” However, plaintiffs claimed that it imposed “serious burdens” on their speech and compromised “their ‘ability to initiate the close, personal conversations’” they believed were “essential to ‘sidewalk counseling.’” The court held that the buffer zone did not “closely” fit the County’s access interests. It held that the ordinance was too broad, actually imposing restrictions “on all medical facilities in Louisville.” Also, the court held that the County failed to show it had tried less intrusive means to address its concerns, such as more patrols in the area. The court held that under McCullen, the “buffer zone is not narrowly tailored.”
Negligence; Schultz v Consumers Power Co; Res ipsa loquitur; Pugno v Blue Harvest Farms LLC; Principle that a general contractor is typically not liable for a subcontractor’s negligence; Hughes v PMG Bldg, Inc; The common-work-area doctrine; Ormsby v Capital Welding, Inc; Premises liability; Breach of duty owed to an invitee; Hoffner v Lanctoe; “Possession & control”; Orel v Uni-Rak Sales Co, Inc; “Possessor”; “Possession”; Derbabian v S & C Snowplowing, Inc; Expert testimony; MRE 702; MCL 600.2955(1); Indemnification
The court held in one of these appeals that the trial court erred by denying defendant-general contractor (DeMaria) summary disposition of plaintiff’s claims, and that issues involving defendant-subcontractor (Turner-Brooks) were premature. In the other appeal, it held an indemnity issue in abeyance pending remand. Thus, the court reversed in part, vacated in part, and remanded. Plaintiff sued DeMaria alleging negligence, common-work-area liability, and premises liability for injuries he sustained while working for one of DeMaria’s subcontractors. He also sued Turner-Brooks alleging negligence. DeMaria filed a cross-claim against Turner-Brooks seeking contractual indemnification. On appeal, the court agreed with DeMaria that it was entitled to summary disposition of plaintiff’s negligence claim because he failed to offer any evidence that it breached a duty of care or proximately caused the accident. Assuming DeMaria “owed plaintiff some duty to make the premises safe, nothing in the record indicates” it breached this duty. None of its “employees were involved in loading or placing the cart near the column. And there is no evidence” it caused the cart to tip. DeMaria “simply had no involvement with the cart and, thus, cannot be held liable on a direct negligence theory.” In addition, “[e]ven assuming the cart would not tip over in the absence of some negligent act, plaintiff cannot satisfy all the elements necessary for the application of res ipsa loquitur.” The court also agreed with DeMaria that plaintiff failed to establish the elements necessary for his common-work-area claim, finding his claim “necessarily fails under the third element because there was not a high-degree of risk to a significant number of workers.” Further, it agreed with DeMaria that plaintiff failed to state a legally cognizable premises-liability claim against it because it did not have possession and control over the land, finding there was no evidence it “possessed the premises to the exclusion of all others.” The court next found that consideration of Turner-Brooks’ argument was premature because the trial court “failed to consider whether the expert testimony of causation that plaintiff proffered was substantively admissible for summary disposition purposes.” Finally, because there was not yet a finding of Turner-Brooks’ “or another person’s ‘act or omission, negligent or otherwise[,]’” the court held the “indemnity issue in abeyance pending remand of the issue in the cross-appeal for the trial court to make factual findings.” It retained jurisdiction.
Sentencing; Specific performance as to a plea agreement; People v Siebert; Scoring of PRV 2; MCL 777.52; Whether defendant had 4 or more prior low severity felony convictions; MCL 777.52(1)(a); Felonious assault; MCL 750.82(1); Attempted felonious assault; MCL 750.92(3); “Felony”; People v Smith; Scoring of OV 9; MCL 777.39; Whether there were 2 to 9 victims placed in danger of physical injury or death; MCL 777.39(1)(c); Assault with intent to rob while armed (AWIR)
The court held that the trial court did not err by refusing to order specific performance from the prosecution as to defendant’s plea agreement, or in scoring PRV 2 and OV 9. He pled guilty to first-degree home invasion, AWIR, assault with a dangerous weapon, and resisting or obstructing a police officer. The trial court sentenced him as third-offense habitual offender to 15 to 40 years for first-degree home invasion and AWIR, 2 to 8 for assault with a dangerous weapon, and 1 to 4 for resisting or obstructing. On appeal, the court rejected his argument that the trial court erred by refusing to order specific performance from the prosecution as to the plea agreement. “The prosecution fulfilled its obligations under the plea agreement: it lowered [defendant] from a fourth-offense habitual offender to a third-offense habitual offender, sent a memorandum to the probation department with the parties’ calculated guidelines range, and did not recommend consecutive sentencing. As such, there is nothing for the prosecution to specifically perform.” Further, nothing in the record suggested “the plea agreement was a ‘sentencing agreement,’ such that the prosecution and the trial court, in accepting the pleas, were required to adhere to the pleas’ terms or permit” defendant to withdraw them. “Nor is there any indication that, in addition to sending the memorandum to the probation department, the prosecution agreed to argue that the guidelines as calculated by the parties were accurate notwithstanding additional information that showed that they did not account for” his entire criminal history. Thus, “the prosecution did not breach its agreement when it deferred to the probation department’s scoring of the sentencing guidelines, which included additional criminal convictions.” The court also rejected his claim that the trial court erred by refusing to resentence him despite the fact that PRV 2 and OV 9 were improperly scored. First, “attempted felonious assault, under the Michigan Code of Criminal Procedure, is a low severity felony conviction.” Second, the PSIR version of events indicated defendant “continued to hold a pair of scissors to his grandmother’s neck after being offered his cousin’s keys. Under those circumstances, it is not apparent [his] intent to rob his grandmother ended when his cousin offered him the keys to his vehicle.” As such, the trial court did not err by finding both his “grandmother and his cousin were placed in danger of physical injury or death during the commission of the sentencing offense.” Affirmed.
Sentencing; Drug quantity; Five-year mandatory minimum under 21 USC § 841(b)(1)(B); Eligibility for relief under the “safety-valve” provision (18 USC § 3553(f)(1)); Whether § 3553(f)(1) requires a defendant to show he or she has none of the criminal history set forth in parts (A)-(C) or only to show that he or she lacks the criminal history described in any one of those subsections
The court affirmed the district court’s ruling finding defendant-Haynes ineligible for “safety-valve” relief from the mandatory minimum five-year sentence based on drug quantity. It agreed with the district court that § 3553(f)(1) requires a defendant to show that he or she “has none of the criminal history described in subsections (A)-(C)[.]” Haynes pled guilty to conspiring to possess with intent to distribute 40 grams or more of fentanyl and 100 grams or more of heroin. He was subject to a mandatory minimum five-year sentence based on the drug quantity. He argued he was eligible for relief under the safety valve provision, § 3553(f), which allows a court to sentence below the five-year minimum if a defendant meets certain requirements. The district court ruled that he was ineligible due to a prior conviction for which he had received three points under the Sentencing Guidelines. He did receive a reduction for “his ‘substantial assistance’ in prosecuting other members of the conspiracy.” The district court sentenced him to 32 months. The issue on appeal was whether § 3553(f)(1) “requires the defendant to show that he has none of the criminal history described in subsections (A)-(C); or whether . . . the defendant must show only that he lacks the criminal history described in any one of those subsections.” Focusing on the word “and” in subsection (B), the court agreed with the government’s reading that the “more plausible” meaning, and its meaning to the ordinary reader, required that to obtain relief under the safety-valve, “the defendant must not have any of three disqualifying conditions in his criminal record: first, ‘more than 4 criminal history points,’ itself a fourfold increase over the prior cap; second, a prior offense serious enough to add three points to his criminal record; and third, a prior 2-point ‘violent offense[.]’” The court noted that each condition “on its face is quite plausibly an independent ground to deny a defendant the extraordinary relief afforded by the safety valve—which means this reading is logically coherent.” It found the same could not be said for Haynes’s interpretation.
Child support modification; Deviation from the Michigan Child Support Formula (MCSF); MCL 552.605(2); Burba v Burba (After Remand); 2017 MCSF 1.04(A) & (E); Divorcing parties’ ability to create enforceable contracts; Holmes v Holmes; Parol evidence; Andrusz v Andrusz; Uniform child support order (UCSO)
The court found no clear error in the trial court’s determination “the parties’ stipulated child support amount deviated from the MCSF.” And it rejected defendant-father’s contention plaintiff-mother’s testimony she gave up her interest in his “pension in exchange for enhanced child support” was impermissible parol evidence. But it held that the trial court’s order for a continued $750 a month child support deviation was not supported by the record and that the trial court failed to make adequate findings, as mandated by MCL 552.605(2), to justify this deviation from the MCSF. Thus, it vacated the order “denying defendant’s objections and requiring him to pay monthly child support of $899 and” remanded. It directed the trial court to “either justify the $750 deviation, sufficiently supporting and appropriately applying the criteria listed in MCL 552.605(2), determine a different, appropriate deviation, or enter an order for child support under the MCSF.” As to plaintiff’s challenged testimony, given that “neither the consent judgment nor the UCSO contained the statutorily required information, the trial court could consider both parties’ testimony regarding the reasons and circumstances underlying the stipulated child support amount to fill in the gaps to properly assess whether, and to what extent, the support should be modified in amount or duration.” But the court agreed with defendant’s assertion “that, by its terms, the parties’ initial child support agreement was not intended to be permanent.” The consent judgment provided that he “would pay $1,000 per month for the support of two children, or $750 for the support of one child, until each child attained the age of 18, graduated high school, reached 19½ years of age while still in high school, ‘or until further order of this Court.’” The court concluded “the trial court erred by adopting the referee’s recommendation for a $750 deviation from the $149 support amount calculated under the MCSF.” While a deviation may be appropriate here, the record was “inadequate to explain or justify how the $750 upward deviation is just and appropriate in this case, particularly concerning ‘[t]he value of property or other support awarded instead of the payment of child support,’ MCL 552.605(2)(c).”
Quiet title action; Res judicata; Adair v Michigan; MCR 2.504(B); Adversarial parties; Whether the validity of a quitclaim deed could have been litigated in a prior probate court case; The transactional test; Washington v Sinai Hosp of Greater Detroit; Distinguishing Adam v Bell
Holding that the third res judicata factor was not met because plaintiff-Maybee could not have litigated the issue of the validity of a quitclaim deed in a prior probate court case, the court reversed the trial court’s grant of summary disposition to defendant-Breckenridge in this quiet title action. The case arose from a dispute over real property (the Luther property) owned by the parties’ now deceased father, Jones. The probate case was filed by another person who claimed to be one of his heirs. It was dismissed under MCR 2.504(B), which the court found constituted an adjudication on the merits. Further, both parties here were parties to the probate court case and were adversarial in that case. However, as to the third factor (whether this “quiet title action involved claims that were, or could have been, resolved in” that probate case), the court concluded it was not satisfied for three reasons – “(1) the quiet title action and probate case involve different transactions; (2) the probate court dismissed the will and closed the estate before Maybee could seek an order quieting title for the Luther property; and (3) applying res judicata to bar” her quiet title action violated the principles of fairness underpinning res judicata jurisprudence. Noting that a transactional test is typically used to determine if a matter could have been resolved in a prior case, the court compared this case to Adam, a third-party no-fault suit for negligence and uninsured motorists that followed a first-party case for personal protection insurance benefits arising from the same accident. “Unlike the accident in Adam, here, the quiet title action and prior probate case did not even arise out of the same factual transaction. The probate case began and largely ended with the question of the validity of the will, which Jones purportedly executed in [7/18]. The quiet title action involves the question of the validity of a quitclaim deed purportedly executed in 2015. The two documents were not related in time.” In addition, the circumstances and facts of their execution were “significantly different because they were notarized at different times with different witnesses. As a result, Maybee’s action to quiet title to the at-issue property did not arise ‘from the same transaction such that plaintiff in the exercise of reasonable diligence could have raised this’ claim in the prior will matter in probate court.” The court added that the two cases also involved different motivations. Remanded.
Medical malpractice; Whether plaintiff’s claim was time-barred; The two-year limitations period for medical malpractice actions; MCL 600.5805(8); Notice of intent (NOI); MCL 600.2912b(1); The 182-day tolled notice period; MCL 600.5856(c); The mailbox rule; MCL 600.2912b(2); Accrual; MCL 600.5838a(1); Driver v Naini; Effect of administrative orders extending filing deadlines & statutory prerequisites to filing
The court held that the trial court did not err by finding plaintiff’s medical malpractice action was time-barred. Plaintiff sued defendants (doctor, physician group, and hospital) for medical malpractice arising out of an allegedly improperly performed left total knee arthroplasty. The trial court granted summary disposition for defendants on the basis of the statute of limitations. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding her complaint was untimely because Administrative Order No. 2020-3 and Amended Administrative Order No. 2020-3 extended the deadline for filing. “Plaintiff mailed her NOI on [4/21/20] which began the mandatory notice period. Because defendants did not respond to plaintiff’s NOI, plaintiff was entitled to file suit as early as [9/23/20], 154 days after sending notice, plus one day.” However, the notice period continued to toll until 10/20/20, 182 days after she mailed her NOI. “Plaintiff then had 44 days of tolled time under the statute of limitations (the number of days she had left as of [3/10/20]) to file suit, beginning” 10/21/20. Plaintiff’s complaint was therefore due by 12/4/20. Her complaint, filed 12/11/20, was untimely. Affirmed.
Termination under §§ 19b(3)(c)(i) & (c)(ii); Children’s best interests; In re Sanborn; Whether the trial court relied on inadmissible evidence; Consideration of the children’s trauma assessments; MCR 3.977(H)(2); Reasonable reunification efforts; In re Frey; Ineffective assistance of counsel; People v Sabin (On Second Remand); Failure to object & to obtain an expert; Post-traumatic stress disorder (PTSD)
The court held that terminating respondent-mother’s parental rights was proper under §§ (c)(i) and (c)(ii), and that doing so was in her children’s best interests. As to respondent-father, it held that there was no error in the trial court’s consideration of “the children’s trauma assessments during the termination hearing” and that termination under § (c)(i) was proper. Further, the court found that reasonable efforts were made to reunify him with the children and it rejected his ineffective assistance of counsel claims. Thus, the court affirmed the order terminating both respondents’ parental rights. As to the mother, it concluded that §§ (c)(i) and (c)(ii) were established by clear and convincing evidence in light of her “failure to end her relationship with father and acknowledge the trauma that her children experienced while living with her, combined with her failure to obtain appropriate housing, employment, and parenting skills to care for six children[.]” She contended she should have been allowed “more time to participate in intensive services for domestic violence.” But the court noted she participated in such services and that she failed to show “she would participate in any further domestic-violence services in any meaningful way or that more time would have made a difference.” The court also determined that the trial court did not clearly err in finding termination was in the children’s best interests. Testimony showed they “were doing well in their placement with their maternal grandparents who agreed to adopt them. Although both parents participated in services, neither parent rectified the issues that caused the children’s removal—lack of appropriate housing and domestic violence.” As to the father, termination hearing testimony established that he “had inconsistent employment throughout the case and that he failed to provide any proof of income. He also failed to obtain appropriate housing as he lived with friends and there was no room for the children.” Four of the children were diagnosed with PTSD, and he declined to accept that they were afraid of him. While he “participated in services for anger management and domestic violence,” he still exhibited anger issues. As to reasonable reunification efforts, he “was offered multiple services and failed to show benefit from” them.