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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Violation of MCL 333.16221(a) (negligence or failure to exercise due care); Respondent-social worker’s duty to a patient; A hospital’s duty owed to a patient; Chelik v Capitol Transp, LLC; Distinguishing Oja v Kin; Whether the Board of Social Work Disciplinary Subcommittee (DSC) exceeded the scope of the complaint allegation; Due process; “Intervene”; Substantial evidence; Credibility determinations in an administrative action; Administrative law judge (ALJ)
The court concluded that the ALJ properly determined that respondent-social worker had a duty to the patient in question because respondent was working at the crisis center when the patient was assaulted by another hospital employee, and that the “DSC did not exceed the scope of the allegation in the complaint.” It further held that substantial evidence supported the DSC’s conclusion that he failed to adequately intervene in the assault on the patient. Thus, the court affirmed the DSC’s final order, which found that he violated MCL 333.16221(a) and placed him “on probation for one day to six months, contingent on the successful completion of certain continuing education requirements.” He raised several challenges to the determination as to his duty to the patient. He asserted “he did not have a ‘free-standing duty’ to protect the patient from the assault, noting that the ALJ correctly concluded that social workers do not have a broad duty to help anyone in danger. Respondent” appeared to base this argument in response to an expert’s (G) “testimony that a social worker has a duty to intervene when someone is generally in danger, such as at a grocery store. [G] later testified that respondent’s duty to intervene on the patient’s behalf arose from his employment at the hospital and from the Public Health Code. In response to this testimony, the ALJ determined that [G] ultimately arrived at ‘the correct conclusion’ that respondent’s duty to the patient arose from his employment at the hospital and from being on duty when the incident occurred. Neither the ALJ nor the DSC, which did not amend the ALJ’s description of the source of respondent’s duty, concluded that” he owed the patient a “free-standing duty.” Thus, respondent challenged “reasoning that did not form the basis of the disciplinary order.” The court also rejected his claim that substantial evidence did “not support the DSC’s conclusion that he failed to intervene adequately.” While he asserted that he successfully calmed the other employee down, it was “not accurate to say that the technician calmed down and resumed interacting normally with the patient.” The court also noted that “the disagreement between the ALJ and the DSC was not whether verbal de-escalation was sufficient, but whether respondent used verbal de-escalation.” His challenge to the DSC’s credibility determination did not provide a ground for reversal.
Age Discrimination in Employment Act (ADEA); 29 USC § 623(a)(1); A prima facie case; Gross v. FBL Fin. Servs., Inc.; Scheick v. Tecumseh Pub. Schs.; Effect of Bostock v. Clayton Cnty.; Direct evidence; Materiality; Diebel v. L & H Res., LLC (Unpub. 6th Cir.); Scott v. Potter (Unpub. 6th Cir.); Indirect evidence; McDonnell Douglas Corp. v. Green; Miles v. South Cent. Human Res. Agency, Inc.; Insubordination as a non-discriminatory reason for termination; Pretext; Chen v. Dow Chem. Co.; Shifting rationales; Cicero v. Borg-Warner Auto., Inc.; Disparate treatment; Ercegovich v. Goodyear Tire & Rubber Co.; Failure to follow self-imposed procedures; White v. Columbus Metro. Hous. Auth.
Rejecting plaintiff-Pelcha’s argument that Bostock’s reasoning “should be extended to change the meaning of ‘because of’ under the ADEA[,]” the court reaffirmed that in ADEA cases, a plaintiff must show that “age was the reason why they were terminated, not that age was one of multiple reasons.” It affirmed summary judgment for defendants on the basis that Pelcha failed to show the stated reason for her termination was a pretext for age discrimination. The stated reason for her termination was insubordination. She sued for age discrimination under the ADEA. On appeal, Pelcha first argued that the Supreme Court in Bostock (which held that Title VII sex-discrimination cases could include “terminations with multiple motivations”) changed the requirement under Gross and Scheick “that age was the ‘but-for’ cause of the challenged employer decision.” She contended that Bostock should be applied to age-discrimination cases. But the court disagreed, holding that Bostock’s interpretation was limited to Title VII sex discrimination. Further, even if it were not, the court was required to follow the case that “directly controls” (Gross) and allow the Supreme Court “‘the prerogative of overruling its own decisions.’” The court then held that the statements Pelcha offered as direct evidence of discrimination were “infrequent” and “vague,” and were “temporally distant” from her termination. Although she offered sufficient indirect evidence to establish a prima facie case under the McDonnell Douglas burden-shifting framework, defendants offered a sufficient non-discriminatory reason for firing her—insubordination—and she failed to show that this was a pretext for discrimination. Considering all of the “evidence together, we find that Pelcha has failed to create a genuine dispute of material fact as to whether her termination was motivated by her age.”
Action to collect attorney fees under a land contract; Merger in relation to summary proceedings; MCL 600.5750; Summary proceedings; JAM Corp v AARO Disposal, Inc; 1300 LaFayette E Coop, Inc v Savoy
The court held that the trial court erred by granting defendant summary disposition of plaintiff’s action for attorney fees under a land contract. Plaintiff-seller sued defendant-buyer for breach of contract, alleging she incurred substantial attorney fees enforcing her rights under a land contract, triggering her right to collect reasonable attorney fees. The trial court granted summary disposition for defendant, finding the language of the attorney-fee provision “established that it ‘appl[ied] to bankruptcy only’ and that the ‘issue of merger’” was moot. On appeal, the court found that the trial court incorrectly interpreted the land contract. Rather, it concluded that “if a party hires an attorney to pursue his or her rights or files suit to enforce the provisions of the land contract, he or she is entitled to the payment of costs and attorney fees.” However, it held that resolution of the current dispute “should be put on hold until the summary proceedings come to a certain end.” The court also found that, “[g]iven the language of MCL 600.5750, [plaintiff’s] attorney-fee claim was not merged into the prior summary proceeding judgment and is not barred.” As plaintiff was “not seeking payment of any balance due on the land contract . . . the doctrine of merger does not preclude the current action.” Vacated and remanded.
Quantum meruit; Existence of an express contract covering the same subject matter; Effect of City Charter provisions; Black v Common Council of City of Detroit; Troubled Asset Relief Program (TARP)
On remand from the Supreme Court, the court held that although the trial court erred in granting defendant-city summary disposition of plaintiff’s quantum meruit claim under MCR 2.116(C)(8), there were two distinct bases to grant it summary disposition under MCR 2.116(C)(10). The case involved blight demolition efforts in the Saginaw area under the TARP. Plaintiff won the bidding process and demolished several buildings. The issue here was whether defendant was entitled to summary disposition on his quantum meruit claim under MCR 2.116(C)(10). The court held that because the relevant contents of the parties’ contract were undisputed, there was no genuine issue of material fact for resolution at trial. “As a matter of law, because the parties had a written agreement expressly governing the compensation to which plaintiff was entitled for the demolition work that is the subject of this lawsuit, plaintiff cannot seek additional compensation for such work under a quantum meruit theory.” The City Charter also prevented him from recovering under this theory. Plaintiff argued that Black was not dispositive because here, defendant “wasn’t going to pay any amount of money for demolition services—instead, it was going to procure and contract for such services with the attendant costs being paid wholly by the [Saginaw County] Land Bank,” via TARP grants. In other words, because the alleged extracontractual work here “did not require the expenditure of any City funds, whether raised by tax, grant, or otherwise,” plaintiff asserted that the claim was not contrary to Charter § 33, unlike the claim in Black. The trial court rejected that argument, and the court concurred fully with its analysis. Section 33 “expressly applies to ‘all transactions involving the expenditure of two thousand dollars ($2,000) or more[.]’ Because nothing in” this language was ambiguous, it must be applied as written. Further, § 33 did not specify that it does not apply “when defendant anticipates that a given expenditure will be paid for by grant funding or any other source of noncity funds. Therefore, it would be inappropriate to construe the Charter as if it did, in fact, contain such language.” Finally, plaintiff did not sue the Land Bank in this case—he asserted his claims against the city. As he sought a judgment that the city—not the Land Bank—was “liable to him in quantum meruit for in excess of $2,000[,]” the court held that Charter § 33 barred him from recovering under a quantum meruit theory. Affirmed.
Admission of a photo; People v Anderson; MRE 403; People v Head; Attorney-client privilege; Swidler & Berlin v United States; Sufficiency of the evidence for first-degree premeditated murder & first-degree arson convictions; Identity of the perpetrator; Fingerprint evidence; Failure to timely disclose the evidence; Posing a juror-submitted question to a witness; MCR 2.513(I)
Concluding that the challenged autopsy photo was not shocking or otherwise inherently prejudicial, the court held that there was no error in its admission. The trial court also did not err in allowing a victim’s (C) attorney to invoke the attorney-client privilege on C’s behalf and thus, not testify about an altercation between C and C’s former wife. The court held that there was sufficient evidence of defendant’s identity to support his first-degree premeditated murder and arson convictions. Further, the disclosure of fingerprint evidence a week before trial “did not constitute an ‘egregious circumstance’ requiring” its exclusion. Finally, the trial court did not err in posing a juror question to a witness. Thus, the court affirmed all of defendant’s convictions. During “the testimony of the forensic pathologist who performed autopsies on the bodies of the three victims, defense counsel” unsuccessfully objected to introduction of a photo depicting victim-L’s face. The expert wished to use it “to assist him in explaining how that victim was both shot in the head and then exposed to the house fire.” The court found that it was useful to the expert and probative “of both the shooter’s intent and the victim’s exposure to a house fire.” Further, given that “the evidence reflected the plain realities of the situation, the risk of ‘unfair prejudice’ was slight and thus did not ‘substantially outweigh[]’ the probative value of the evidence[.]” One of the defense strategies was to suggest that someone else killed the victims. “In hopes of showing that a severe state of animosity existed between” C and his former wife “and her intimate companion” (B), defense counsel sought to call an attorney who represented C “in an unrelated matter to offer information gleaned from that representation.” The court noted that the non-admission of this evidence did not prejudice defendant because he had an opportunity to cross-examine C’s former wife and B at trial. Defense counsel took advantage of it to ask her “about the violence between herself and [C], and to ask [B] about his low opinion of” C. The court also held that in light of the evidence of his “motive, and his association with items used in the murders and arson, there was more than sufficient evidence for a jury to find, beyond a reasonable doubt, that defendant was guilty of those offenses.”
Mental health court eligibility; MCL 600.1093; MCL 600.1068(2); MCL 600.1091(1); People v Rydzewski; Whether the prosecution had veto power; Michigan Gun Owners, Inc v Ann Arbor Public Schs; Memorandum of understanding (MOU)
The court held that the trial court erred by failing to properly evaluate defendant for participation in the mental health court. He pled nolo contendere to three counts of breaking and entering (B & E), possession of burglar’s tools, two counts of malicious destruction of police or fire department property, felonious assault, and assaulting, resisting, or obstructing a police officer. The trial court sentenced him as a fourth habitual offender to 76 to 300 months for each B & E conviction and for possession of burglar’s tools, and to 76 to 180 months for each of his other convictions. On appeal, the court agreed with defendant “that the trial court’s preemption of a ‘preadmission screening and evaluation assessment’ to determine his eligibility for participation in the mental health court because of the prosecuting attorney’s refusal to consent to defendant’s participation in the mental health court” violated MCL 600.1093. It also agreed that, had the trial court properly evaluated him for participation, he would have been eligible. “The trial court’s policy of preempting a defendant’s preadmission evaluation for the mental health court because of the prosecuting attorney’s refusal to approve defendant’s participation violates the explicit language of MCL 600.1093, a point conceded by the prosecutor at oral argument before this Court.” Given that MCL 600.1093(1) provides sole discretion to the trial court “regarding defendant’s admission to the mental health court, and the MOU does not give the prosecuting attorney’s office a unilateral power to block defendant’s admission to the mental health court, the trial court had the discretion to conduct the preadmission screening and evaluation assessment before considering defendant’s application to participate in the mental health court.” The court vacated his sentences and remanded.
Testimony about information obtained from the Law Enforcement Information Network (LEIN); MRE 803(6); Jury instructions including an assault theory for a home invasion charge; Waiver; Ineffective assistance of counsel; Failure to raise a futile objection; Sufficiency of the evidence for first-degree home invasion & lying to a peace officer convictions; People v Wilder; MCL 750.479c(1); Sentencing; Scoring of OV 19; MCL 777.49(b); People v Smith; Whether the PSIR contained a probation officer’s subjective statements that should be stricken; MCL 771.14(2)(c); MCR 6.425(A)(1); Reasonableness challenge to a within guidelines sentence
Holding that the prosecution failed to show that the LEIN records were admissible under MRE 803(6), the court vacated defendant’s receiving and concealing conviction given that they were the only evidence establishing he possessed a stolen vehicle. However, he waived his jury instruction challenge and the court rejected his related ineffective assistance of counsel claim. It held that there was sufficient evidence to support his first-degree home invasion and lying to a peace officer convictions, and that 15 points were properly scored for OV 19. It rejected his challenge to his PSIR, and noted that his within guidelines sentences were not subject to proportionality review. But while the court affirmed all of his convictions other than the receiving and concealing conviction, and remanded for its dismissal, it instructed the trial court to consider whether vacating that conviction changed his guideline range for the other counts. If it determines that the guideline range is not changed, “then defendant’s sentence is affirmed. If, however,” it determines that vacating this conviction changes the guideline range for his other convictions, then it is to resentence him. He was convicted breaking and entering without permission, first-degree home invasion, possession of a dangerous weapon, receiving and concealing stolen property, lying to a peace officer, escape from lawful custody, and use of meth. The LEIN information “was offered to prove that the truck defendant was driving when he arrived at the” victims’ home was stolen. But the prosecution did not offer any evidence “establishing any of the foundational requirements of the business records exception: that the LEIN records were (1) ‘made at or near the time,’ (2) ‘by, or from information transmitted by,’ (3) ‘a person with knowledge’ of whether the vehicle defendant was driving was in fact stolen.” Further, there was no evidence showing that the “records were ‘kept in the course of a regularly conducted business activity,’ or that ‘it was the regular practice of that business activity to make the . . . record.’” Without the records, the prosecution could not show “beyond a reasonable doubt that defendant received or concealed stolen property.” While the lying to a peace officer conviction was “a close case,” the court held that there was adequate evidence to support the jury’s finding that he violated MCL 750.479c(1).
Right to a properly instructed jury; People v Head; Voluntary manslaughter as a lesser included offense of first-degree murder; People v Mitchell; People v Reese; People v McMullan; Adequate provocation; People v Roper; Malice; People v Baskerville; Right to a fair & impartial jury; People v Jackson (On Reconsideration); People v Bryant; Duren v Missouri
The court held that the trial court did not err by failing to give a voluntary-manslaughter jury instruction, and that defendant’s right to a fair and impartial jury was not violated. He was convicted of second-degree murder, discharge of a firearm in a building causing death, CCW, and felony-firearm for killing the victim after a dispute over a bus pass. The trial court sentenced him to 288 to 480 months for second-degree murder, 180 to 360 for discharging a firearm in a building causing death, 40 to 60 for CCW, and 2 years for felony-firearm. On appeal, the court rejected his argument that the trial court erred by failing to instruct the jury regarding voluntary manslaughter as a lesser included offense of first-degree murder. “As there was no evidence of the killing in this case being the result of defendant acting out of passion rather than reason, the trial court did not err” by failing to give the voluntary-manslaughter instruction. It also rejected his claim that his right to trial by a jury chosen from a fair cross-section of the community was violated. “Because the law puts the burden of production on defendant, and because defendant did not provide any evidence to carry that burden, [his] argument regarding a fair-cross-section claim is without merit.” Moreover, because he “had other evidence he could have pursued, the record simply does not support [his] argument that such a burden was impossible to meet, which would be a violation of his due-process rights.” Affirmed.
Wrongful discharge; The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq); MCL 15.362; “Protected activity”; Whether reporting suspected malpractice falls under the WPA; Landin v Healthsource Saginaw, Inc; Alleged insurance fraud; “Reporting”; Mudge v South Lyon; Causal connection; The burden-shifting framework; A close temporal relationship; Henry v Detroit; West v General Motors Corp; Wrongful discharge in violation of public policy (WDPP); Suchodolski v Michigan Consol Gas Co; Preemption; Applicability of the “public policy” recognized in Landin to plaintiffs’ claims of malpractice; MCL 333.20176a(1)(a); “Health facility or agency”; MCL 333.20106(1); Public Health Code (PHC)
The court affirmed summary disposition for defendants on plaintiffs’ WPA claims as to a dentist’s (E) alleged malpractice and plaintiff-Welch’s WPA claim as to reporting insurance and billing fraud. And summary disposition on plaintiffs’ WDPP claims was also proper. But the court reversed as to plaintiff-Shephard’s WPA claim related “to her reports of actual and proposed insurance and billing fraud.” Under Landin, the court concluded that “reports of suspected malpractice are not covered by the WPA.” Thus, in this regard, “plaintiffs were not engaged in a protected activity, and” these claims did not fall under the WPA. But their insurance claims were another matter. “Shephard reported the Blue Cross Complete insurance issue at a morning meeting of the entire office, including [E], and specifically reported to [E] that he could not bill a snore guard, which was not a covered item, as a bite guard, which was covered.” But as to Welch, the question was whether the trial court erred in determining that the undisputed facts showed “Shephard reported the insurance fraud on her own behalf only, but did not also do so on behalf of Welch.” Welsh’s testimony revealed that she “had no agreement for Shephard to speak on behalf of Welch, but only sat in silence as Shephard spoke. Under the Supreme Court’s holding in Mudge, Welch’s quietly agreeing with Shephard was not enough to qualify as protected activity under the WPA.” As to the causal connection element, the court found this case more similar to Henry than to West. “Like the plaintiff in Henry, Shephard testified that her reporting of insurance fraud was met with distaste by supervisors.” Also like the plaintiff in that case, she “was fired about four months after engaging in the protected activity.” The court went on to conclude that considering “Shephard’s and Welch’s denials of the reasons defendants cite as legitimate bases for terminating Shephard’s employment, and the further evidence that defendants had a motive to fire Shephard,” sufficient proof was presented that would allow a reasonable fact-finder to still determine that Shephard’s “protected activity was a ‘motivating factor’ for the employer’s adverse action.” But as to the WDPP claims, the PHC “has no ‘explicit legislative statement' regarding the retaliatory firing of an employee for reporting dental malpractice in a private dental office[.]” Remanded.
Medical malpractice; Standard of care (SOC); Experts’ qualifications; MCL 600.2169; Woodard v Custer; “Specialist”; Differences between cardiology & interventional cardiology; Estate of Norczyk v Danek; The one most relevant specialty; Estate of Horn v Swofford
The court concluded that “the most relevant specialty” defendant-Dr. McClure was practicing at the time was interventional cardiology, not general cardiology, and that plaintiff’s proffered evidence failed, as a matter of law, to establish her experts’ qualifications to testify as to this SOC. As that was the only evidence by which she could establish the SOC, the proofs necessarily failed as to one element of the alleged cause of action. Thus, the court reversed the trial court’s order denying defendants’ motion for summary disposition and remanded. McClure “performed ‘invasive vascular procedures on [plaintiff’s] lower extremities.’ Following this procedure, plaintiff experienced complications that ultimately resulted in the amputation of her left leg below the knee.” Defendants argued that the trial court erred by holding that the most relevant specialty here was cardiology and that it instead should have ruled that the most relevant specialty was interventional cardiology. The court held that, when taken together, “Woodard, Norczyk, and Horn establish that only experts who are qualified to testify about the one most relevant specialty can establish the standard of care in a medical malpractice case.” The court determined that the applicable specialty here “was interventional cardiology, and plaintiff failed to establish that either or both of her experts spent a majority of their professional time in this field.” Thus, the trial court abused its discretion by determining that they were qualified to testify as to the relevant SOC. Without any other expert witness available to establish the SOC and its breach, plaintiff’s entire claim failed; thus, the trial court erred by denying defendants’ motion for summary disposition.
Removal; Determination that no exceptional circumstances justified petitioner’s failure to appear at her hearing; Acquaah v. Holder; Bi Feng Liu v. Holder; Daneshvar v. Ashcroft; 8 USC § 1229a(b)(5)(C)(i); Recovery from childbirth as an exceptional circumstance under § 1229a(e)(1); Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities; Nevada Dep’t of Human Res. v. Hibbs; Medical conditions; Singh v. Gonzales (9th Cir.); Yweil v. INS (7th Cir.); Effect of petitioner’s young age; In re Meja-Andino (BIA); Whether the BIA’s analysis was sufficient; Dieng v. Barr; Precetaj v. Sessions; Whether petitioner had to prove prima facie eligibility for immigration relief; In re Grijalva-Barrera (BIA); Lo v. Ashcroft (9th Cir.); Special Immigrant Juvenile Status (SIJS)
The court held that the BIA abused its discretion by denying petitioner-E.A.’s motion to reopen an in absentia removal order where she showed that “exceptional circumstances” had prevented her from appearing at her immigration hearing in another state. It also joined its sister circuits and held that she was not required to make a prima facie showing of eligibility for relief in order to obtain rescission under § 1229a(b)(5) of the in absentia removal order. E.A., a minor and native of El Salvador, entered the country illegally and joined her mother. She did not appear at a master-calendar hearing and was ordered removed in absentia. She moved to reopen with new representation, arguing that exceptional circumstances excused her failure to appear, including her inability to change the hearing location from Tennessee to New York after her family relocated, and her mother’s inability to drive her from New York to Memphis to attend the hearing due to recently giving birth. The IJ denied her request, and the BIA affirmed. The first issue was whether the BIA abused its discretion by determining that no exceptional circumstances justified E.A.’s failure to appear. The court held that based “on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age” (she was 13 years old at the time of the missed hearing), her “mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, . . E.A. established exceptional circumstances.” It noted that childbirth “is a serious medical event that necessitates a recovery period.” The BIA minimized its seriousness “and its impact on E.A.’s mother’s ability to bring E.A. to Memphis.” In addition, E.A.’s young age contributed to its conclusion that exceptional circumstances existed, “mandating that the BIA reopen her immigration proceedings.” While a petitioner’s young age “is not a per se exceptional circumstance[,]” the court found that it was an important factor under the totality of the circumstances here. Further, the BIA’s decision was contrary to law. Among other things, it “erred by summarily dismissing without a rational explanation evidence of E.A.’s eligibility for” SIJS, and by ruling that “E.A. was required to prove prima facie eligibility for immigration relief.” The court granted the petition for review, vacated the removal order, and remanded.
Dispute over a petition for full trust settlement under MCR 5.119(B); Petitions, objections, & hearing practices in probate court; MCR 5.119; “Right to Hearing, New Matter”; MCR 1.109(G)(6)(a); “Objection to Pending Matter”; MCR 1.109(D); MCR 5.113
The court held that the probate court abused its discretion by granting appellee-successor trustee’s petitions without providing appellant the opportunity to object in accordance with MCR 5.119(B). The probate court suspended appellant as trustee, and appointed appellee as the new successor trustee. Appellee filed a petition to allow first, second, and final accounts, and then for full trust settlement. Appellant filed written objections. The probate court granted appellee’s petitions. On appeal, the court agreed with appellant that the probate court erred by refusing to hear her objections to appellee’s petition for full trust settlement in accordance with MCR 5.119(B). It noted that appellant presented timely objections to appellee’s petition for full trust settlement, and did not wait to do so for purposes of delay. “The probate court dismissed appellant’s oral and written objections without proper consideration.” Vacated and remanded.
Application of the doctrine of acquiescence to set the parties’ property boundary line; Acquiescence for the statutory 15-year period; MCL 600.5801(4); Damages under MCL 600.2918; Nuisance-in-fact claim; Private nuisance
The court held that the trial court properly applied the doctrine of acquiescence to set the parties’ property boundary line. However, it found that the trial court erred in awarding damages to plaintiffs under MCL 600.2918. Thus, the court affirmed in part, reversed in part, and remanded for amendment of the judgment to delete the award of damages to plaintiffs. The case involved only acquiescence for the statutory 15-year period. Plaintiffs own real property that abuts defendant’s property. “Plaintiffs planted corn on the land, up to the plow line, as was their historical practice.” In 2017, however, defendant’s predecessor in interest, her mother, installed a fence and trees about 100 feet into the planted area (the disputed area). Defendant and/or her family ripped out the corn that had been planted in the disputed area. The trial court held that “defendant was not liable for trespass, adverse possession, common law or statutory conversion, or intentional infliction of emotional distress, but was liable for nuisance in fact.” It further determined that “the parties acquiesced to a ‘plow line’ as the actual boundary between their abutting properties.” Defendant claimed that it erred in applying acquiescence to set the parties’ property boundary line. Based upon the testimony and evidence presented the court found “no clear error in the trial court’s factual findings and no error of law in its determination that the doctrine of acquiescence” was applicable here. A preponderance of the evidence supported the finding that the true boundary line between the parties’ properties was the plow line that appeared to have been used in 2010. Defendant next claimed that the trial court erred in awarding damages to plaintiffs under MCL 600.2918 when no claim under that statute was ever asserted. There was “no dispute that defendant erected a fence on property the trial court found to belong to plaintiffs through acquiescence. It is also undisputed that corn had been planted in the disputed area prior to the fence being erected, the corn belonged to plaintiffs, and that after the fence was installed, defendant or one of her family members intentionally ripped out the corn in the fenced area. Thus, the trial court could have reasonably found that defendant was liable for a private nuisance-in-fact.” But it stated, and the court agreed, that there was “no testimony or evidence as to any specific amount of damages suffered by plaintiffs due to defendant’s installation of the fence and destruction of plaintiffs’ corn crop that had been planted in the disputed area. As a result, no monetary damages were awardable and the trial court erred in awarding plaintiffs $200 in damages.”