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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Wetland development permit; MCL 324.30311(4)(b); “Feasible & prudent alternative”; Impermissibly narrowing a project’s purpose; MI Admin Code, R 281.922a(4); Consideration of parcels the applicant does not own but could reasonably obtain; MCL 324.30311(5); Piercing the corporate veil; Green v Ziegelman; The substantial evidence standard; Administrative law judge (ALJ)
In this case arising from a wetland development permit application, the court held that the ALJ’s finding “that petitioner impermissibly narrowed the project purpose was supported by substantial evidence[.]” But the record did not support piercing the corporate veil. Thus, the ALJ “erred as a matter of law by disregarding the separate legal existence of” a corporation (Green Bridge) wholly owned by petitioner “and treating the rebuttable presumption of MCL 324.30311(5) as categorically inapplicable.” The court found that “the ALJ reasonably determined that petitioner’s hearing testimony did not ‘completely define’ the project purpose within the meaning of Rule 281.922a(4) and that the appropriate project purpose was the construction of a single-family home.” In setting aside this determination, “the circuit court substituted its own assessment of petitioner’s credibility and intent for that of the ALJ. That is not the role of a reviewing court applying the substantial evidence test.” But the ALJ erred in its legal reasoning in concluding that the corporate-owned property (Finger Farm) “may properly be treated as an alternative for purposes of the wetland permit analysis.” Under MCL 324.30311(5), in performing a feasible and prudent alternative analysis respondent may “consider parcels ‘not presently owned by the applicant which could reasonably be obtained.’ The statute also establishes a ‘rebuttable presumption that alternatives located on property not presently owned by the applicant are not feasible and prudent’ under certain circumstances.” The ALJ determined “as a matter of law that petitioner ‘shall be treated as the owner of the property for purposes of feasible and prudent alternatives analysis’ because he is the corporation’s sole shareholder.” The circuit court was correct that the ALJ’s analysis was flawed. “The ALJ did not find that Green Bridge was used to perpetrate fraud, evade legal obligations, or otherwise subvert justice. Without such findings, the ALJ could not simply disregard” its separate legal existence. Given that petitioner did not currently own “Finger Farm, there is a rebuttable presumption that [it] is not a feasible and prudent alternative location, and whether that presumption has been overcome must be determined through factual findings by the ALJ in the first instance.” Reversed as to the ALJ’s project-narrowing ruling, affirmed as the piercing-the-corporate-veil ruling, and remanded.
Americans with Disabilities Act (ADA); Whether defendants violated the ADA when seizing plaintiff’s decedent, resulting in his death; Whether plaintiff identified a reasonable accommodation as a matter of law; Safety concerns; Wilson v Gregory; Roell v Hamilton Cnty; Whether defendants violated the Fourth Amendment when stopping the decedent’s truck & using a police dog
The court held that defendants-police officers were properly granted summary judgment on plaintiff’s ADA failure-to-accommodate claim where she failed to identify a “a reasonable accommodation as a matter of law” given the circumstances they faced when they tried to take her decedent (Booth) into custody. The court also held that plaintiff failed to establish a Fourth Amendment violation. The police fatally shot Booth, who suffered from mental illness, including “drug-induced psychosis,” when he was stopped and detained after plaintiff (his wife) placed a 911 call. Plaintiff alleged that the police violated the ADA when they did not accommodate his disability when trying to detain him. She also brought Fourth Amendment claims regarding the stop, seizure, and the use of a police dog. The district court granted defendants summary judgment. On appeal, plaintiff argued that the officers’ failure to “deescalate” the confrontation that occurred while arresting Booth constituted a failure to reasonably accommodate his mental illness disability. The court explained that its precedent provides that “an accommodation is not reasonable if it requires more than a ‘moderate’ change to existing policies.” Applying a case-by-case test, the court noted that in Wilson, it held that officers were not required to adjust their detention policies “if ‘safety concerns’ would arise from the change.” Here, it was well substantiated that Booth was displaying symptoms that could result in danger to the police and others. Among other things, his “wife and mother-in-law had both told the authorities that he now presented a threat to himself or others[,]” and he “barricaded himself in his home and placed guns all around it.” The court held that he “objectively posed a safety risk, so the officers did not need to deviate from their policies for high-risk stops.” Plaintiff’s Fourth Amendment claims also failed where she was unable to establish constitutional violations that would strip the officers of qualified immunity. Affirmed.
42 USC § 1983 action alleging deliberate indifference to a pretrial detainee’s serious medical needs in violation of the Fourteenth Amendment; Whether plaintiff presented sufficient evidence that a police officer called the jail’s medical provider about plaintiff’s medication; Whether witnesses’ testimony claiming “lack of memory” was sufficient to defeat a motion for judgment as a matter of law; Motion for discovery sanctions; FedRCivP 37(b)(2)(A)
[This appeal was from the ED-MI.] The court affirmed judgment as a matter of law for defendant-Advanced Correctional Healthcare (ACH) on plaintiff-Victor’s claim for deliberate indifference to a pretrial detainee’s medical needs, holding that witnesses’ “lack of memory” about events in the case could not overcome ACH’s motion for judgment as a matter of law. Victor spent the night in jail after being arrested and did not receive his medicine while there. He suffered a seizure shortly after he was released. He claimed that officers had contacted the jail’s medical provider, ACH, about the medication but he never received it. Officers and ACH employees said that they “could not recall” receiving or making the alleged call, and there were no records of one. The jury returned a split verdict, finding in favor of defendant-nurse on Victor’s claim against her but for Victor on his claim against ACH. The district court then granted ACH’s motion for judgment as a matter of law. On appeal, the court agreed with the district court that the witnesses’ “‘I have no recollection’ testimony does not satisfy Victor’s burden to show that a call occurred.” Further, while he “testified that an officer had told him that a nurse refused to authorize his medication, this hearsay carried no weight.” The court explained that to grant judgment as a matter of law, the district court was required to find that “‘a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue[.]’” An alleged ACH “policy or custom” regarding medication “must have ‘directly caused’ the” constitutional violation. Thus, Victor had “to present enough evidence to establish that an officer alerted an ACH employee about Victor’s urgent medical need.” The court held that he did not. There was no record of a call. At best, his “evidence amounts to statements that witnesses could not remember any call.” As to his testimony about what the corrections officers allegedly told him, “Victor lacked ‘personal knowledge’ that any officer called any ACH employee. And his second-hand remarks about what the officers conveyed do not create a jury question.” The court also affirmed the district court’s denial of his motion for discovery sanctions.
Blood-test result; Implied-consent statute; MCL 257.625a(6)(c); People v Callon; Foundational requirement; People v Cords; Cords test
Rejecting defendant’s “claim that he was entitled to a new trial because his blood-test result should have been suppressed[,]” the court affirmed. He first argued “that the trial court erred by admitting his blood-test result at trial because his blood draw did not comply with the requirements of MCL 257.625a(6)(c).” But his “blood was drawn pursuant to a warrant. ‘Therefore, MCL 257.625a(6)(c), the implied-consent statute, does not govern admissibility of the test results.’” Thus, the trial court correctly concluded that MCL 257.625a(6)(c) was inapplicable. As a result, “the rules of evidence, as limited by constitutional principles, govern the admissibility of blood-test results obtained under a search warrant.” The court found that similar “to Callon, because defendant ‘does not argue that the search warrant was unsupported by probable cause or otherwise suffered from a constitutional deficiency, and because the alleged deviations from MCL 257.625a(6)(c) do not implicate the relevancy or reliability of the blood-test results, exclusion of the evidence was not required[]’ on this basis.” Defendant alternatively argued “that his blood-draw result should not have been admitted at trial because the prosecution failed to lay a proper foundation for its admission.” He challenged “only the second and third requirements of the Cords test.” Defendant argued “that, because the laboratory technician did not specifically recall taking a sample of defendant’s blood and did not recognize him at trial, the second requirement is not satisfied. Although the laboratory technician did not recall taking a sample of defendant’s blood, she identified her signature and printed name on the form linked to defendant’s blood sample, which contained defendant’s name and identifying information. She also identified the numbers on the form, ‘03-38,’ as the time she took the blood sample.” Her documentation was “consistent with a trooper who testified at trial that he arrested defendant and took him to the Mackinac Straits Hospital for a blood draw, where the laboratory technician worked. In light of this evidence, the prosecution sufficiently established that the blood drawn and analyzed belonged to defendant.” As to the third requirement, the record showed “that the prosecution established that the laboratory technician was authorized to take a sample from defendant. The laboratory technician testified that she had 22 years of experience, routinely performed blood draws pursuant to search warrants, and that a pathologist in Marquette oversaw her operations.” The court noted that although “not physically present at the hospital when the laboratory technician drew defendant’s blood, the pathologist still oversaw what the laboratory technician did in the hospital. Accordingly, the prosecution laid a proper foundation for the evidence of defendant’s blood-test results.”
Waiver of counsel; MCR 6.005(E); Sufficiency of evidence; Resisting or obstructing a police officer; MCL 750.81d(1); Intent; Distinguishing People v Moreno
Concluding that (1) the “circuit court substantially complied with MCR 6.005(E), and did not plainly err by accepting defendant’s waiver of counsel” and (2) there was sufficient evidence to support his resisting or obstructing a police officer conviction, the court affirmed. The case arose when he attempted to commit suicide at his home. Fearing that he “was experiencing an overdose, officers broke down the bathroom door. During the struggle that ensued, defendant headbutted, kicked, and spit at the officers. [He] also, on multiple occasions, tried to grab one of the officer’s guns.” Defendant first argued “that there was insufficient evidence that he intended to resist or obstruct the police officers.” His insufficiency argument mischaracterized “the circuit court’s findings of fact as having equated his suicide attempt to the offense of resisting or obstructing.” But the circuit court found that his “act of barricading himself in his bathroom constituted the physical act of resistance. Furthermore, the circuit court’s findings as to whether defendant was truly suffering from a cluster headache at the time of his arrest are irrelevant, because ‘the duration of the resistance or the mental state of defendant at the time is of no import, as resistance can occur in even the briefest moments, and the statute does not require that defendant be found to be free of any mitigating motivation.’” The only requirement was that he “was taking the requisite physical action to prevent a police officer from performing his lawful duties.” The court found that the “circuit court made such a finding, and this finding is supported by the record.” Defendant, relying on Moreno, also argued “that the officer’s ‘excessive force’ constituted unlawful conduct that he had a right to resist.” This reliance was misplaced. “Moreno permits individuals to resist an officer’s illegal conduct.” The court noted that the “circuit court determined that the officers acted lawfully and were legally present under the emergency aid exception. It further found there was ‘nothing about the way that the officers interacted [with defendant] overall’ that was unlawful, and reasoned that their actions were reactionary and ‘in line with what [defendant] made them do.’ The Court’s reasoning is supported by the testimony of one of the arresting officers that, during the arrest, defendant was hitting, kicking, and attempting to spit blood at him. The circuit court found this officer’s testimony to be credible, and we defer to the circuit court’s ‘superior ability to judge the credibility of the witnesses who appeared before it.’” The record supported “the circuit court’s determination that the officers’ actions were lawful, meaning defendant was not entitled to resist their commands.”
Underinsured motorist (UIM) benefits; Exclusion for bodily injuries arising from operation or use of an off road vehicle (ORV); Whether the exclusion only refers to the at-fault driver’s operation of the underinsured vehicle & not the insured; Enforcing the policy as written; Motion for reconsideration; Statements made during a motion hearing; Milne v Robinson
Holding that the insured (a protected individual, MM) was not entitled to UIM benefits under the plain language of the policy exclusion at issue, the court affirmed summary disposition for defendant-insurer (Citizens). MM was driving a dirt bike when he collided with a motor vehicle driven by defendant-Foley. The policy under which plaintiff sought UIM benefits contained an exclusion “for bodily injury ‘arising from the operation or use of . . . an off road vehicle . . . .’” Plaintiff asserted that the clause only referred “to the at-fault driver’s operation of the underinsured vehicle and not the insured party. However, the exclusionary clause makes no reference to the other vehicle involved in the accident.” The court found that plaintiff essentially asked it “to add language to the exclusionary clause.” It declined to do so because its task was “to enforce the policy as written.” It concluded that plaintiff’s interpretation of the “clause would render it and other portions of the policy nugatory. By definition, UIM benefits are dependent on another motor vehicle being involved in the accident and the driver of that vehicle being at fault for the accident. The policy expressly excludes ORVs from its definition of an ‘underinsured motor vehicle.’ Given the policy’s express exclusion of ORVs from the definition of an underinsured motor vehicle, the only logical interpretation of the exclusionary clause is that the exclusion refers to the vehicle operated or occupied by the injured party.” In this case, “MM was operating an ORV at the time of the accident, and the nature and severity of his injuries were likely affected by his use of an ORV. Consequently, his injuries arose from his operation or use of an ORV, which expressly excluded him from coverage.” The court also held that the trial court did not abuse its discretion in denying plaintiff’s motion for reconsideration.
Jurisdiction; The Declaratory Judgment Act; The Copyright Act; 28 USC § 1338(a); Cases “arising under” copyright law; The Copyright Act’s “fair use” exception; Whether there was a “federal question”; Whether plaintiff established “a substantial controversy” to support a declaratory judgment
The court held that the district court correctly ruled it lacked jurisdiction to consider plaintiff-Stovall’s action seeking a declaratory judgment to the effect that releasing a school survey to her under the Kentucky Open Records Act would qualify for the Copyright Act’s fair-use exception. Her case did not “arise under” copyright law. When Stovall sought a copy of the mental health survey that her child’s high school intended to administer to its students, defendants allowed her to view the survey but would not allow her to make a copy, “claiming that the public-records law did not extend to copyrighted materials.” Instead of pursuing her state remedies, she sought a federal declaratory judgment that the fair-use exception in copyright law covered her request. The district court ruled that it lacked jurisdiction and dismissed her case. On appeal, the court stated that the issue was whether the Copyright Act supplied “an independent basis for federal jurisdiction.” Federal courts have “exclusive jurisdiction to hear cases ‘arising under’ copyright law.” The court noted that “three categories of cases ‘arise under’ copyright law.” It concluded that the Copyright Act did not create Stovall’s cause of action. Rather, her complaint asserted that her entitlement to copies of the survey came from a state statute. “A state-law cause of action does not by itself establish a federal question.” Second, her state-law claim did “not ‘necessarily raise’ a copyright law question.” The court noted that federal “‘copyright law is not an essential element of [Stovall’s open-records] claim.” Third, the court found that because her “public-records claim does not resemble an infringement claim, it does not belong in federal court.” It rejected her arguments to the contrary, noting among other things that “whether a state-law claim raises a ‘substantial question’ of federal law is a necessary but not a sufficient basis for federal jurisdiction.” As to her federal preemption argument, although federal courts have exclusive jurisdiction over copyright-infringement actions, state courts may consider “incidental copyright questions.” The court also held that the possibility of a lawsuit by the survey’s publisher did “nothing to show that her complaint establishes a federal question” and did “not create the kind of ‘substantial controversy’ needed to establish standing.” Affirmed.
Governmental immunity; Motor-vehicle exception; MCL 691.1405; Expert admissibility; MRE 702; MCL 600.2955; Craig ex rel Craig v Oakwood Hosp; Gatekeeping; People v Warner; Harmless error; Substantial justice; MCR 2.613(A); Barnett v Hidalgo; UD-10 police crash report inadmissibility; MCL 257.624(1); Timely objection; Rebuttal evidence; Relevance; MRE 401; People v Crawford
The court held that the trial court abused its discretion by admitting unreliable expert testimony and not fulfilling its gatekeeping obligations under MRE 702 and MCL 600.2955. Further, the error was outcome-determinative given the verdict form and closing argument reliance, requiring a new trial and vacatur of case-evaluation sanctions. Plaintiff alleged defendant-City’s employee negligently operated a City van under the motor-vehicle exception to governmental immunity after a tire flew off and struck plaintiff. Plaintiff’s expert opined the driver “would likely have experienced significant wobbling” and would “audibly hear it and/or feel it or both.” The trial court refused a Daubert hearing and admitted the opinion as a “fair” match-up against the City’s expert, but on cross-examination the expert conceded he “didn’t measure anything,” did no testing, and that “the only appropriate testing” would have been “to take the van out and test” it, which “I didn’t do.” On appeal, the court stressed that once reliability is challenged a “‘court must evaluate expert testimony under MRE 702,’” that the gatekeeper must conduct “‘a searching inquiry,’” and that it is “‘generally not sufficient to simply point to an expert’s experience and background’” to establish reliability. It concluded the trial court “failed in its role as gatekeeper,” and the opinion that the driver would have perceived warning signs was not “based on sufficient facts or data” and not “the product of reliable principles and methods.” The court also held that the error was not harmless because plaintiff’s counsel repeatedly told the jury it could find negligence if it credited the expert’s “whole opinion,” the testimony went to the heart of the City’s notice defense, and the verdict form asked only whether a City employee was negligent in operating the vehicle, leaving “no way of knowing” which theory the jury credited. It further held that the trial court committed additional prejudicial errors by permitting use of a UD-10 report in opening despite MCL 257.624(1) (“shall not be available for use”), and by excluding surveillance video and the investigator’s testimony after the trial court’s late rulings that plaintiff would not testify but his deposition would be read. The video was relevant to damages and the City’s timing was driven by the late rulings. Vacated and remanded for a new trial.
Claims against a homeowner arising from use of a firearm by an occupant of the house; Nuisance; Distinguishing Wagner v Regency Inn Corp; Negligence; Distinguishing Ross v Glaser
The court held that “plaintiff failed to offer sufficient evidence to create a genuine issue of material fact on his nuisance claim,” and thus, the trial court did not err in granting summary disposition on this claim. It also found no error in the grant of “summary disposition on plaintiff’s negligence claim.” On appeal, relying upon Wagner, plaintiff argued “that Michigan law recognizes a landowner may be liable for a nuisance in fact arising from criminal behavior occurring on the property when such conduct is ongoing and known to the landowner.” But his reliance upon Wagner was misplaced. As plaintiff argued, “the principle announced in Wagner was that ‘creating or allowing continuing patterns of criminal activity on [the] premises which endanger’ invitees could impose liability upon the landowner.” However, plaintiff here did “not rely upon evidence demonstrating that defendant allowed continuing patterns of criminal activity on the premises; rather, plaintiff’s evidence, consisting of” an affidavit and the depositions of defendants-Le-Nguyen (the home occupant), Inhmathong (the homeowner), and plaintiff, supported “that there was a potential civil dispute between Le-Nguyen and the neighbors. Certainly, the fact that Le-Nguyen owned firearms that he kept in the house is not, by itself, a criminal activity, yet plaintiff nonetheless implies that it is. Likewise, the disputes that are alleged to have existed between Le-Nguyen and the neighbors, including Le-Nguyen yelling at the neighborhood children and removing [their] toys and bicycles from his yard are not crimes. Removing those items from his yard and allegedly throwing them in a dumpster might constitute a civil property dispute, but it certainly could not be deemed to equate to the type of ongoing criminal activity that was the subject of the civil action in Wagner.” Plaintiff also argued “that contradictions between the contents of his affidavit, the deposition testimony of Inhmathong, and the testimony of Le-Nguyen, created questions of fact as to the duty element, and, more specifically, on the issues of notice and foreseeability. However, none of the contradictions referenced by plaintiff create a genuine issue of material fact in this matter.” Plaintiff next argued “that Inhmathong was negligent because she permitted a foreseeable dangerous condition to persist, relying upon Ross[.]” Plaintiff argued “that Inhmathong was aware of Le-Nguyen’s possession of the firearm he used to shoot the six-year-old, requested that he remove it from her home, but failed to take steps to remove the guns or ‘mitigate the threat.’ The underlying facts in Ross are not reasonably comparable to the present case.” Unlike Ross, this case did “not involve allegations of misfeasance, but rather, plaintiff’s allegations against Inhmathong sound in nonfeasance.” Affirmed.
Claim of ineffective assistance by a lawyer-guardian ad litem (LGAL); MCL 712A.17c(7); Standing; In re EP
Holding that respondent-father lacked standing to challenge the LGAL’s representation of the child, the court affirmed the order terminating his parental rights. It noted that “MCL 712A.17c(7) provides that the trial court must appoint an LGAL for the child (or children) in child protective proceedings. The LGAL thus has a duty to provide effective assistance of counsel to the child—not the parents.” Further, given that “‘the right to effective assistance of counsel is a constitutional one, it is personal to the child and [a] respondent [in a child protective proceeding] may not assert it on behalf of the child.’” Respondent failed to acknowledge that he lacked standing to assert the ineffective assistance claim and offered “no argument that he should have standing.” As a result, he provided “no compelling reason that justifies distinguishing the case from binding precedent.” Thus, the court followed “the established precedent that parents lack standing to challenge whether their child received effective assistance of counsel” and declined to reach the merits of his claim.
Termination under § (h); In re Mason; Reasonable reunification efforts; In re Hicks/Brown; Unpreserved issue; In re Pederson; Child’s best interests; In re Olive/Metts
The court held that reasonable reunification efforts were made, § (h) was met, and termination served the child’s best interests. The DHHS removed the child after he tested positive for amphetamines and heroin at birth, placed him with the maternal grandmother, and later established respondent-father’s paternity while he was incarcerated. After the trial court took jurisdiction over the father, the DHHS provided a treatment plan requiring therapy, substance-abuse services, parenting classes, drug screens, housing, income, and visitation. The father completed some classes while first incarcerated. But after release he became noncompliant, used meth, missed 29 of 33 drug screens, tested positive for meth and amphetamine, missed 27 of 33 visits, and was reincarcerated and later sentenced to 8 to 20 years with an earliest release in 6/32. On appeal, the court held that his reasonable-efforts issue was unpreserved and, in any event, the record showed the DHHS made referrals, continued seeking prison services, and the lack of services during the second incarceration was attributable to facility limits and the father’s own conduct, while he failed to meet his “commensurate responsibility” to participate and benefit. The court next found § (h) was satisfied because the earliest release date was well beyond two years, and the father had not provided proper care and custody through a plan or support. It distinguished Mason because the grandmother placement predated paternity and was not arranged by the father, and there was no reasonable expectation he could provide proper care within a reasonable time given the child’s young age and the father’s pattern of substance abuse and noncompliance. Finally, the court held that termination served the child’s best interests despite relative placement because the child lacked a bond with the father, was strongly bonded with the grandmother who intended to adopt rather than pursue guardianship, and needed permanency, stability, and finality during the father’s lengthy incarceration. Affirmed.