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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Enforcement of an arbitration provision in a non-compete agreement; Construing together two writings that refer to each other & relate to the same subject matter; Culver v Castro; Argument that fundamental fairness prevents a dispute from being submitted to arbitration; The Uniform Arbitration Act (MCL 691.1681 et seq); MCL 691.1686(3); Claim that the agreement was void ab initio as against public policy based on violations of the Michigan Rules of Professional Conduct (MRPC); Tinsley v Yatooma
The court concluded that plaintiff’s effort to exclude the parties’ compensation dispute from arbitration lacked merit because their compensation commitment agreement (CCA) and non-compete agreement (NCA) related “to the same subject matter and should be construed together.” It also rejected her claim that fundamental fairness prevented the dispute from being submitted to arbitration, finding that this issue fell “within the arbitrator’s statutory authority for resolution.” Finally, in light of Tinsley, it declined to declare the NCA void as against public policy. Thus, it affirmed summary disposition for defendants in this compensation dispute between an attorney and the law firm at which she was previously employed. The “trial court acknowledged that the arbitration provision only appeared in the” NCA and not in the CCA. But it determined that the provision referenced the CCA “and addressed the same subject matter.” Thus, it found that the documents should “be construed together, warranting the application of the arbitration provision to plaintiff’s compensation dispute.” The court held that it did not err in doing so. The NCA “referred to the compensation agreement or offer letter, and the letter was an expansion of the terms of the employment and confidentiality agreement. Specifically, it delineated how plaintiff would be paid because she did not draw a salary or benefits, but rather, addressed her payment in terms of clients that paid an hourly rate as opposed to a contingent or flat fee agreement and the hours billed.” The court also rejected plaintiff’s assertion that the arbitration provision could not be enforced on the basis defendants retained the right to unilaterally modify it, concluding that there was no limit on who may seek modification. As to her fundamental fairness claim, “applying MCL 691.1686(3), it is the arbitrator’s determination regarding ‘whether a contract containing a valid agreement to arbitrate is enforceable.’” Lastly, it noted that while “plaintiff made a blanket assertion that violation of MRPC was contrary to the public policy and rendered the agreement void . . . she failed to correlate the particular rule to an invalidation of the arbitration provision.” In addition, she was a licensed “attorney, the arbitration provision was in all capital letters, and the document expressed that she had the opportunity to consult with counsel.”
Enforceability of a lease’s option to purchase clause; Weight placed on the use of the word “option”; Whether the parties intended the average of three appraisals to set the purchase price; Whether section 6.1(b) created an “escape point”; Whether plaintiff complied with the option clause; Whether the trial court exceeded its authority by adding additional terms to the contract
The court held that the trial court properly granted summary disposition for plaintiff on its claim (and defendant’s counterclaim) for breach of contract, granted plaintiff’s request for specific performance, and declined both parties’ request for declaratory judgment. The parties entered into a commercial lease in which plaintiff leased property from defendant. Defendant argued that the option to purchase clause was unenforceable because there was no fixed price clause. The court disagreed that the amount of consideration must be explicitly fixed in the contract. Rather, it agreed with the trial court that it was “sufficient if the contract has a fixed method of determining the sale price, which the option clause in this case did. Specifically, if the parties could not mutually agree upon a price and rejected each other’s appraisal, a third, neutral appraisal would be obtained and the sale price would be the average of the three.” This method clearly resulted in “a sale price in this case of $478,333,33. Simply put, it was sufficient that the contract provided for a method of fixing the sale price if the parties could not agree on one.” Defendant additionally argued that providing a method was “inadequate because there was not a meeting of the minds on the price for the property. But there was a meeting of the minds on how to establish the price,” which was sufficient. Defendant also contended that “the trial court improperly placed too much weight on the use of the word ‘option’ in section 6, particularly in the header.” Defendant further took “exception to the trial court’s pointing out that it was defendant who drafted the contract.” But the court agreed “with the trial court’s observation that if defendant did not intend to create an option, it would not have used that word several times in the contract.” Defendant complained that the trial court “gave the term ‘option’ its particular legal meaning as opposed to the understanding of the parties to the lease.” Yet defendant failed “to present any persuasive argument that the parties intended, in a legal document, to give the word anything other than its ‘particular legal meaning.’” Affirmed.
Right to present a defense; Exclusion of evidence related to a previous civil lawsuit; People v Zitka; Relevancy of the civil lawsuit to a gambling operation charge; MRE 401-402; MCL 432.218(1)(a); The law of the case doctrine; “Board”; MCL 432.202(f); “Gambling operation” or “casino gambling operation”; MCL 432.202(w); “Gambling”; MCL 432.202(v); Relevancy of the evidence to unlawful use of a computer charges; MCL 752.796; Ineffective assistance of counsel; People v Vaughn; Strickland v Washington; Failure to advance a meritless argument; People v Ericksen; Trial strategy; People v Trakhtenberg; Character witnesses; MRE 404(a)(1); Res judicata & entrapment by estoppel; Dart v Dart; Opinion testimony; MRE 701, 702 & 704; People v McFarlane; People v Drossart
[This opinion was previously released as an unpublished opinion on 12/10/20.] The court held that its decision in a prior opinion in this case, Zitka (that conducting a gambling operation without a license is a general-intent crime) established “that the challenged evidence was not relevant,” and thus, the trial court did not abuse its discretion by excluding it. The court also rejected defendants’ ineffective assistance of counsel claims, and found that defendant-Hernandez-Zitka was not entitled to relief on the basis of res judicata or entrapment by estoppel. Her challenges to opinion testimony also failed. Defendants argued that “the trial court abused its discretion and violated their constitutional right to present a defense by excluding evidence related to” a prior civil lawsuit at their criminal trial. In particular, they argued that “the dismissal order in the civil lawsuit was admissible to show that they believed they were acting in compliance with the law.” The threshold question was “whether the circumstances or outcome of the Norton Shores civil litigation was probative of any fact that was of consequence to the determination of the criminal action.” The court’s analysis in Zitka showed “that the trial court did not abuse its discretion by not allowing defendants to present evidence of the Norton Shores civil litigation at their criminal trial. We are bound by the earlier decision in Zitka under both the law-of-the-case doctrine and because this Court’s prior decision is published.” Defendants essentially took “the position that the prosecutor needed to prove that they specifically intended to operate an illegal gambling operation, or to prove that they were operating a gambling operation knowing that it was illegal.” This position was not supported by Zitka. Thus, while evidence as to “whether defendants’ operation met the statutory requirements for a gambling operation involving ‘gambling games’ was relevant, evidence of whether defendants specifically intended their operation to be an unlicensed gambling operation or specifically intended to violate MCL 432.218(1)(a) was not relevant.” Excluding the evidence was not an abuse of discretion. “Further, because the evidence was not relevant, the trial court’s exclusion of this evidence did not violate defendants’ right to present a defense.”
Sufficiency of the evidence; Delivery of a controlled substance causing death; MCL 750.317a; People v Dumback; Delivery of less than 50 grams of a controlled substance; MCL 333.7401(2)(a)(iv); People v Dickinson; Double jeopardy; People v Nutt; People v Miller; The abstract legal elements test; People v Ream; Evidence of a witness’s past conviction; MRE 609; Sentencing; Reasonableness & proportionality; People v Lockridge; People v Steanhouse; Restitution under the Crime Victim’s Rights Act (MCL 780.751 et seq); MCL 780.766(2), (4)(f), & (7); MCL 780.767(1); People v Gubachy; People v Orweller
The court held that there was sufficient evidence to support defendant’s convictions, that there was no double jeopardy violation, and that the trial court did not err by not allowing evidence of a prosecution witness’s prior conviction. It also held that his sentences and the restitution order were appropriate. He was convicted of delivery of a controlled substance causing death, and delivery of less than 50 grams of a controlled substance, arising out of the victim’s heroin overdose. The trial court sentenced him to concurrent terms of 11 to 30 years for the former, and 4 to 10 years for the latter. It also ordered him to pay $12,104.72 in restitution. On appeal, the court rejected defendant’s challenge to the sufficiency of the evidence. “Evidence established that 0.93 grams of heroin and fentanyl were found in the victim’s nightstand after he had died,” and the ME discovered both substances in his body. Thus, the prosecution “presented sufficient evidence to establish that defendant delivered less than 50 grams of a controlled substance to the victim.” There was also sufficient evidence linking “the drugs that were used by and killed the victim with” drugs defendant delivered. The court also rejected his claim that his convictions violated double jeopardy, noting each of his convictions “required an element which the other did not . . . .” It next rejected his contention that the trial court abused its discretion by refusing to allow admission of evidence of a prosecution witness’s prior conviction. “The 21-year-old conviction in this instance for an armed robbery fell within the class of theft crimes primarily assaultive and less indicative of veracity. The trial court, therefore, in the exercise of its discretion could exclude such evidence.” As to his sentences, the “record reflects the trial court adequately explained how defendant’s abuse of substances did not weigh in favor of a more lenient sentence here.” And defendant ignored “the many aggravating characteristics of his crime.” Finally, as to the restitution order, the record showed “the trial court considered the testimony and receipts provided” regarding the victim’s funeral expenses “and set restitution at an amount supported by the evidence.” Affirmed.
Motion to disqualify the prosecutor’s office from trying defendant’s case based on a conflict of interest or the appearance of impropriety; People v Mayhew; People v Doyle; People v Cline; Whether the separation-of-powers doctrine (Const. 1963, art. 3, § 2) prevents trial courts from ruling on such a motion; MCL 49.160; Principle that a prosecutor is a constitutional officer; Const. 1963, art. 7, § 4; People v Morrow; People v Muniz; The trial court’s authority to appoint a special prosecutor; People v Herri
Holding that the trial court possessed the authority to determine whether plaintiff-prosecutor’s office should be disqualified from handling defendant’s case, but erred by finding that a conflict of interest required disqualification of the entire prosecutor’s office, the court affirmed in part, reversed in part, and remanded. Defendant was charged with open murder for shooting and killing the victim during a physical altercation. The trial court granted his motion to disqualify the prosecutor’s office based on separate conversations defendant had with an assistant prosecutor and a legal secretary prior to the shooting. On appeal, the court rejected the prosecution’s argument that the separation-of-powers doctrine prevents trial courts from ruling on motions to disqualify prosecutors from trying cases. It noted that “a trial court’s ‘inherent power is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” In addition, “trial courts have the ‘authority to direct and control the proceedings before them.’” However, the court agreed with the prosecution that the trial court erred by finding a conflict of interest required disqualification of the entire prosecutor’s office. It noted that neither the legal secretary nor the assistant prosecutor were involved in prosecuting the case, and that even assuming the assistant prosecutor “had ‘a personal, financial, or emotional interest in the litigation or a personal relationship with the accused’ on the basis of his phone call with defendant, caselaw does not support the disqualification of the” entire office.
Other acts evidence; MRE 404(b); People v Denson; People v VanderVliet; Unfair prejudice; MRE 403; Identity; People v Yost; People v Golochowicz; People v McMillan; A common plan, scheme, or system; People v Sabin (After Remand)
The court held that the trial court did not err by granting defendant’s motion to exclude other acts evidence. He was charged with first-degree premeditated murder. The trial court granted his motion to exclude the other acts evidence, finding the circumstances of his assault on another woman were too dissimilar to his alleged acts in this case to establish any nonpropensity purpose for admission. On appeal, the court rejected the prosecution’s argument that evidence of defendant’s prior assault on a victim bearing a striking resemblance to the victim in this case three months before this victim disappeared was admissible for the proper purposes of showing defendant’s motive, intent, lack of accident, identity, and common scheme, plan, or system. It noted that the trial court applied the correct law to the facts of this case. In addition, “there is no intermediate fact linking the charged and uncharged acts.” Further, the “abstractly-stated physical similarity between the victims, by itself, is insufficient to identify defendant in any manner not incorporating the inferential chain that because defendant assaulted” the prior victim, he has a “propensity to assault dark-haired white women, and therefore, he murdered” this victim. Moreover, “the trial court did not abuse its discretion in determining that those abstract physical similarities between [the victims] did not persuasively establish a common scheme or plan.” It also did not abuse its discretion in determining that “the probative value of defendant’s assault of [the first victim] on any material issue in this case is substantially outweighed by the risk of unfair prejudice.” Affirmed.
Refusal to bind defendant over on the operating a vehicle while intoxicated (OWI) charge & dismissal of the charge; Fourth Amendment right to be secure against unreasonable searches & seizures; Denial of the interlocutory application for leave to appeal; Operating a motor vehicle while license suspended or revoked (DWLS)
The court concluded that because a Fourth Amendment violation did not occur, the district court erred in excluding evidence from the preliminary exam and by ruling “that the evidence produced by investigatory stop and arrest would be excluded from future proceedings” as to defendant-Lucynski’s DWLS and open intoxicant charges. It further held that the district court abused its discretion by denying the prosecution’s motion for bindover on the OWI charge and by dismissing the charge. Thus, it reversed the district court’s 3/27/20 order, reversed the circuit court’s 5/6/20 order, and remanded “to the district court for reinstatement of the OWI charge and for entry of an order reflecting that the matter was bound over to the circuit court for further proceedings.” The district court excluded the evidence based on its conclusion that a Fourth Amendment violation occurred. The court held that Deputy R’s “initial interaction with Lucynski did not amount to a seizure implicating the Fourth Amendment.” Based on Lucynski’s statements, R’s observations, and Lucynski’s performance during the field sobriety tests, R found probable cause to arrest him for OWI. Thereafter, he “consented to his blood being drawn, and the results revealed the presence of THC in his system. In the time preceding the seizure, Lucynski’s body language was relaxed, he did not attempt to leave, and he did not demonstrate an unwillingness to answer questions.” Rather, he was entirely cooperative. Thus, the district court erred by analyzing the initial conversation between them as if the protections of the Fourth Amendment were implicated. Considering the totality of the circumstances, R “had a reasonable suspicion sufficient to warrant transforming the consensual encounter into an investigatory stop and eventually into a lawful arrest. Because the seizures were lawful under the Fourth Amendment, the district court erred by excluding the evidence produced by the investigatory stop and arrest when deciding whether probable cause existed to support the bindover and erred by suppressing the evidence in future hearings concerning the remaining misdemeanor charges.” As to its denial of the prosecution’s motion for bindover on the OWI charge, Lucynski did “not argue that probable cause did not exist to support the bindover when considering the improperly excluded evidence.” Further, upon review of the evidence presented at the preliminary exam, it was clear that probable cause existed to support that he committed the crime of OWI. Thus, the district court abused its discretion by refusing to bind him over for trial and by dismissing the OWI charge.
Double jeopardy; People v Lett; Whether a mistrial was manifestly necessary; Continuance alternative
Concluding that the trial court properly exercised its discretion and that its reasoning was sound, the court affirmed its denial of defendant’s motion to dismiss on double jeopardy grounds and remanded for retrial. He was charged with CSC I and II. The trial court declared a mistrial after an amended offer of proof as to a defense expert’s (Dr. T) testimony, which the prosecution asserted went far beyond the scope of its expert’s (Dr. S) expected testimony and addressed topics on which she was not qualified to testify. While it was undisputed jeopardy had attached, the closer question was whether the mistrial “was manifestly necessary.” The court determined that given “defendant’s late disclosure of [T’s] expected testimony, the trial court should be afforded at least a minimum amount of deference in this case. In fact, it is at least arguable that a significant amount of deference should be afforded to the trial court’s decision for the simple fact that neither it nor the prosecution were to blame for the mistrial in this case.” While defendant characterized “his last-minute motion to amend his witness list and offer of proof as a ‘mere formality[,]’” the record did not support this. Both the prosecution and the trial court were surprised at the contents of his “offer of proof, and both were openly convinced that it went far beyond the scope of [S’s] anticipated testimony as well as her areas of expertise. Perhaps most obviously, the prosecution clearly did not anticipate [T] providing expert testimony on the topic of forensic interviewing because it did not have an expert ready to address that topic.” The court also rejected defendant’s argument as to the trial court’s consideration of alternatives. The trial court considered (1) limiting T’s testimony to the topics discussed by S, “which could create the risk of him touching on something impermissible; (2)” excluding T’s testimony entirely, “which could drastically impair defendant’s case and prevent him from presenting a viable defense; (3) continue the trial, resuming in several weeks, which could result in the jurors ‘be[ing] inappropriately influenced by the outside world’ and potentially unavailable when trial resumed;” and (4) declaring a mistrial. After thoroughly analyzing the alternatives, it concluded that “a mistrial was the only viable option in the ‘interest [of] justice’[.]”
Sentencing; Resentencing a defendant convicted of a murder committed when he was a juvenile; Miller v Alabama; People v Snow; Ineffective assistance at resentencing
The court held that the trial court properly analyzed the considerations for sentencing a juvenile based on MCL 769.25, as discussed in Miller and Snow. Defendant-Wilson did not show that any of the findings of fact were clearly erroneous, and the sentence was not an abuse of discretion. Also, counsel’s decision not to orally argue the contents of the sentencing memo did not constitute ineffective assistance. He was convicted of felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm for crimes committed when he was 17. He appealed his convictions and his sentence. The court affirmed his “convictions, but remanded for resentencing because the trial court failed to consider age-related factors before sentencing Wilson.” On remand, he was resentenced to concurrent terms of 35 to 60 years for felony murder, 225 to 600 months for armed robbery and conspiracy to commit armed robbery, and 2-year terms for his “felony-firearm convictions, to be served consecutively to the other convictions.” He argued that the trial court abused its discretion by resentencing him to the same minimum 35-year minimum term for felony murder it had imposed before remand. He asserted that it did not comprehensively consider distinctive factors related to his youth, arguing that it “failed to grapple with the question of ‘whether the [his] actions represented "transient immaturity" or "irreparable corruption,"’ and that the court should have considered his psychological state in addressing this question.” But he did not argue that its “factual findings were erroneous. The actions cited by the trial court indicated Wilson’s active and calculated involvement—ensuring that [the victim] had money, ensuring that [a codefendant] was armed and his appearance obscured, and offering encouragement. The trial court distinguished impulsiveness and the failure to appreciate risk and consequences associated with youth, noting that Wilson’s actions were ‘well thought out’ and evidenced a ‘disregard’ for life and consequences.” Thus, the trial court properly considered the first Miller factor, “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” The court also found no error in the trial court’s “analysis of Wilson’s family and home environment in relationship to his youth[,]” or in its findings related to the circumstances of the homicide offense. The trial court also properly considered “whether the defendant might have been charged and convicted of a lesser offense if not for incompetencies associated with youth[.]” Finally, it discussed the final Miller factor, “the possibility of rehabilitation.” Affirmed.
The Public Employment Relations Act (PERA) (MCL 423.201 et seq); Whether a union’s pay-for-services procedure violates its duty of fair representation; Goolsby v City of Detroit; Janus v American Fed’n of State, Cnty, & Mun Employees; Public employees’ freedom to organize or join collective bargaining units or refrain from doing so; Saginaw Educ Ass’n v Eady-Miskiewicz; Prohibition on a public employer interfering with, restraining, or coercing public employees in the exercise of their rights; MCL 423.210(1)(a); Prohibition on labor organizations restraining or coercing public employees in the exercise of their § 9 rights; MCL 423.210(2)(a); Ability of labor organizations to prescribe their own membership rules; Grievances & disciplinary procedures as mandatory subjects of collective bargaining; St Clair Intermediate Sch Dist v Intermediate Educ Ass’n; Freedom of association; Boy Scouts of Am v Dale; Michigan Employment Relations Commission (MERC)
The court held that MERC’s findings of fact were supported by competent, material, and substantial evidence on the record considered as a whole, and that its decision that respondent-union’s pay-for-services procedure violated PERA § 10(2)(a) did not violate a constitutional or statutory provision or constitute a substantial and material error of law. Thus, the court affirmed its ruling. Charging-party-municipal employee (Renner) filed a PERA charge with MERC alleging respondent violated its duty of fair representation by refusing to represent him in a disciplinary dispute with the employer unless he paid a fee for its services. MERC found that respondent’s pay-for-services procedure violated § 10(2)(a) by discriminating against nonunion employees and restrained them from exercising their § 9 statutory rights to refrain from joining or assisting a labor organization, and that respondent breached its duty of fair representation by refusing to file or process Renner’s grievance unless he paid the fee. The court rejected respondent’s argument that MERC erred by finding its pay-for-services procedure violates PERA, noting the procedure “applies only to nonunion employees and has no connection to the admission of a member to the union or expulsion of a member from the union.” It explained that ¶ 9 of the procedure “when read in the context of the entire operating procedure furthers the union’s purpose by preventing a nonmember from avoiding payment for requested services by joining the union when the need for direct representation services arises. In so doing, it advances the purpose of restraining or coercing nonmember employees in the exercise of their statutory rights.” MERC correctly concluded that the procedure “violated § 10(2)(a) by discriminating against nonmembers by restraining them from exercising their § 9 rights by refusing to do anything respecting nonmembers’ grievances and thereby making it impossible for a nonmember to pursue a grievance unless fees for services are paid.” And given the effect of the procedure, “MERC’s decision and order did not involve a substantial and material error of law. MERC’s decision properly interpreted and applied applicable law.” In addition, “MERC correctly understood and properly interpreted Janus by recognizing that the case did not involve allegation of a breach of the union’s duty of fair representation or restrain of a nonunion employee’s statutory rights.” Finally, it found no merit in respondent’s contention that MERC’s decision violated respondent’s First Amendment right to freedom of association.
Alleged violation of state minimum wage laws; Michigan Improved Workforce Opportunity Wage Act (WOWA); MCL 408.934 & 408.934a; Exception for professional & administrative employees; MCL 408.934a(4); 29 CFR § 541.300(a); MI Admin Code R 408.701(b); “Matters of significance”; “Professional capacity”
Holding that the exception for professional and administrative employees in MCL 408.934a(4) does not apply to MCL 408.934(1)’s minimum wage requirement, the court vacated the part of the trial court’s order dismissing plaintiff-Ahmed’s claim that defendant-Halo Medical Group failed to pay her a minimum wage for all hours worked. It also found that the trial court erred in dismissing her overtime claim under the WOWA, concluding that summary disposition was not supportable on the basis that she served in an administrative capacity or based on her “serving in a ‘professional capacity.’” Before her termination, she worked for Halo “as ‘Technical Director of Cardiovascular Sonography.’ Ahmed scanned patients’ hearts and prepared reports.” She asserted that Halo violated MCL 408.934 and 408.934a “by failing to pay her overtime compensation for hours worked beyond 40, failing to pay her during ‘breaks’ actually worked, and failing to pay her for any hours worked beyond her 40-hour schedule.” As to the minimum wage requirement in MCL 408.934(1), MCL 408.934a(4)’s exceptions “apply only to the requirements outlined in MCL 408.934a(1)-(3) pursuant to the plain language of the statute.” Thus, neither Halo nor the trial “court could rely on Ahmed’s purported professional or administrative employment to excuse” a failure to pay her a minimum wage for all hours worked. As to overtime, the trial court did not consider any of the relevant factors on the third required element to qualify as an administrative employee – use of “discretion and independent judgment in matters of significance” – in rendering its judgment. Halo did not raise this exemption until its reply brief, and the only information from which the trial court could find that Ahmed acted with independence was an affidavit that it asserted it did not rely upon. The only relevant condition as to the professional capacity exemption was whether she “performed ‘[w]ork in a field of science or learning that requires knowledge acquired by a prolonged course of specialized instruction.’” In its summary disposition motion, Halo relied only on her title to support applicability of this exemption. While the court concluded it “may very well be true that Ahmed’s position is professional in nature,” the trial court could not reach “this conclusion as a matter of law on the record before it.” Vacated and remanded.
Dismissal without prejudice; Requirements for filing a lawsuit; MCR 2.111; Motion for a more definite statement; MCR 2.115(A)
Concluding that plaintiff (acting in propria persona) did not comply with the pleading requirements and applicable MCRs, the court affirmed the order dismissing her case without prejudice. It also noted that defendant-Common Ground was within its rights to request clarification of her allegations, and despite the opportunity to amend her complaint and guidance on how to file a conforming pleading, she failed to state a cause of action. The case arose “from an alleged ‘non-contractual money obligation’ between plaintiff and Common Ground.” The court noted that her original complaint did not meet MCR 2.111(B)(1)’s requirements as “it did not contain ‘specific allegations necessary reasonably to inform the adverse party of the nature of the claims[.]’ Instead, the facts plaintiff relied on were intertwined with her legal allegations and legal jargon, making it difficult to comprehend.” In addition, it “did not contain counts or reasonably inform Common Ground of the nature of the claims against it. Plaintiff also failed to state in an understandable manner what she was alleging or how she supported her claims.” The trial court ordered her “to file an amended complaint or appear at a show cause hearing to show why her complaint should not be dismissed. Plaintiff filed an amended complaint a couple days later, but” it likewise failed to comply with the MCRs “and was still unintelligible.” The court concluded that her claims in her “complaints and at the hearing were broad generalizations of alleged mistreatment by Common Ground and Star and were not expanded upon or supported by fact or law.” Although she presented an invoice from defendant-Star EMS and banking information to show that she purportedly paid it, she did not “allege how Common Ground was related to her claim or liable for emergency services provided by Star. Instead, plaintiff’s limited recitation of the facts is repetitive, vague, and disorganized.” As a result, Common Ground was “not informed of the nature of the claim plaintiff is alleging against it.”
Request for a PPO under MCL 600.2950a(1); Stalking; MCL 750.411h(1)(d); “Course of conduct”; MCL 750.411h(1)(a); Harassment; MCL 750.411h(1)(c); “Unconsented contact”; MCL 750.411h(1)(e)
Holding that neither the referee nor the trial court made sufficient factual findings on the record for the court to review their continuance of the PPO, the court vacated and remanded. Petitioner, who is dating respondent’s ex-wife, sought an ex parte PPO against respondent, claiming he “assaulted him, made threats against him, and interfered with his business.” The trial court granted his request “by checking the prepared options on the motion form and without identifying any particular ‘acts of willful, unconsented contact’ in the space provided on the form.” The referee denied respondent’s motion to terminate or modify the PPO, and the trial court affirmed. On appeal, the court noted that the referee and the trial court “continued the PPO without resolving the credibility dispute between the parties and without making sufficient factual findings of record for” its review. While “the parties were present at the court hearing, they were not sworn in and their statements were argument, not evidence. Absent testimony and the police report regarding [a] roadside incident, no evidence supported that an unconsented contact occurred.” Rather, the record consisted “of bare allegations contained in a petition, and no factual findings by a judicial officer.” The court also found that the referee “erred by relying on [respondent’s] emails to the township supervisor to establish a second instance of stalking under MCL 750.411h. . . . The referee looked no further than to the emails to find that respondent targeted petitioner. However, there was no conduct directed toward petitioner. The emails were sent to the township supervisor, not petitioner.” The emails also did not constitute “unconsented contact” under MCL 750.411(1)(e). As the record now stood, it appeared that both parties “presented a slew of unsupported allegations and accusations.” The court was “highly skeptical that even with the benefit of testimony petitioner will be able to establish ‘stalking’ as the term is statutorily defined. In any case, evidence must be presented and sworn testimony received to determine whether” he was entitled to a PPO.