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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Randolph-Sheppard Vending Stand Act (RSA); 20 USC §§ 107(a) & (b); §§ 107a(a)(5) & 107b; 34 CFR § 395.3; Whether commissions are prohibited; Grievance procedure; §§ 107d-1(a) & 107d-2; Sovereign immunity & RSA panels; U.S. Const. amend. XI; Tennessee Dep’t of Human Servs. v. U.S. Dep’t of Educ. (T-DHS); Federal Mar. Comm’n v. South Carolina Ports Auth. (FMC); Tyler v. United States Dep’t of Educ. Rehab. Servs. Admin. (10th Cir.); Waiver; Sossamon v. Texas; Attorney fees; The “American Rule”; Bureau of Services for the Visually Impaired (BSVI)
The court held that the district court erred by ruling that petitioner-Ohio’s BSVI could require blind vendors under the RSA to pay commissions to counties for using state and county facilities. But while prospective relief was appropriate, Eleventh Amendment sovereign immunity barred the RSA arbitration panel from awarding intervenor-Cyrus damages and pre- and post-judgment interest. The court also held that the “American Rule” as to attorney fees applies to administrative proceedings. Cyrus contracted with Ohio under the RSA to operate vending machines on state and county property. As a condition, he agreed to pay commissions to a county grantor and a university grantor. After the Ohio Attorney General issued a formal opinion making the commissions illegal, he stopped making the payments and filed a grievance with the Department of Education under the RSA grievance procedure. The arbitration panel awarded Cyrus damages, interest, attorneys’ fees, and prospective relief. Ohio sued, and the district court primarily ruled for the State. On appeal, the court held that it erred by ruling that the BSVI, which implements the RSA in Ohio, could charge blind vendors commissions for using county facilities. It held that the “RSA and its relevant regulations govern the legality of taking money from blind vendors” and that the RSA does not “grant the federal government, or any other entity, the power to collect funds from blind vendors.” It concluded that the BSVI “cannot cause a county, by operation of the agreements that it enters into, to collect the money for impermissible reasons any more than it can directly fund such purposes.” But the court rejected Cyrus’s argument that “the Eleventh Amendment does not bar the RSA panel from imposing liability against BSVI in proceedings brought by private parties.” Rather, it held that sovereign immunity applies to RSA proceedings and that the BSVI did not waive it. Thus, the RSA panel “exceeded its authority when it awarded Cyrus damages, prejudgment interest, and post-judgment interest; its decision is ‘contrary to constitutional . . . immunity.’” The court also agreed with the district court’s rejection of the panel’s attorney fee award. “The federal RSA does not provide for—or even mention—attorneys’ fees.” Further, the court joined two other circuits by applying the American Rule to administrative proceedings. Reversed in part, affirmed in part, and remanded.
Dog bite statute; “Provocation”; MCL 287.351(1); Distinguishing Brans v Extrom; Koivisto v Davis
In this action under Michigan’s dog-bite statute, the court held that the trial court erred when it determined that defendants were entitled to summary disposition because their dog (Buddy) was “provoked” by their electric fence. Rather, because there was no dispute that the victim of the bite, a five-year-old (L), did nothing to provoke Buddy, plaintiff-conservator was entitled to summary disposition on the issue of liability pursuant to MCR 2.116(I)(2). Thus, the court reversed the grant of summary disposition for defendants and remanded for entry of an order granting plaintiff partial summary disposition on the issue of liability. Plaintiff argued that “the term “provocation” in MCL 287.351(1) is limited to provocation of a dog by the victim of the dog bite, and not outside sources of provocation like defendants’ electric fence.” The court agreed. It was undisputed that L did nothing to provoke Buddy. But the trial court still allowed defendants to “assert a provocation defense because ‘the dog was otherwise provoked as contemplated in the statute.’” This was inconsistent with the court’s interpretation of the statute in Koivisto. Defendants argued that the interpretation in Koivisto was contrary to the plain language of the statute. They cited Brans, which “concerned the victim’s unintentional act—not the act of another force,” as in this case. Thus, Brans was factually distinguishable. Further, while “the definition of ‘provocation’ as stated in Brans, . . . does not specify that plaintiff must be the actor who incites another to do a particular act,” the court in Koivisto “expressly limited ‘provocation’ to refer to the victim’s conduct[.]” Defendants also argued that “the Legislature could have specified that ‘provocation’ only applies to plaintiff’s conduct,” and it did not do so in the dog-bite statute, while “the dangerous animal statute specifies that provocation must be by the person who was bitten by the animal.” However, the court did “not find this to be persuasive textual evidence of the Legislature’s intent because the Legislature ‘legislates by legislating, not by doing nothing, not by keeping silent.’” Defendants further argued that plaintiff’s interpretation of MCL 287.351(1) was “contrary to the purpose of the statute, because it would allow liability even if a dog was actually provoked by another person, as long as that person was not the victim.” However, those were not the facts in this case and the court declined to opine on such a scenario.
Attorney fees under the Fair Labor Standards Act (FLSA); 29 USC § 216(b); The lodestar method; Perdue v. Kenny A.; Decision to cap the fees at 35% of plaintiff’s total recovery
The court reversed the district court’s FLSA attorney-fee award, holding that it abused its discretion by capping the fees at 35% of plaintiff-Rembert’s total recovery. Rembert routinely worked over 40 hours a week as a nurse for defendant-A Plus. When she asked about overtime, a supervisor allegedly told her that the nursing home “‘couldn’t make money’ if they paid their employees overtime.” She filed suit and moved to conditionally certify an opt-in class of similarly-situated A Plus employees. The Department of Labor began an investigation, and the district court certified the class. During the litigation, defense counsel repeatedly missed deadlines and refused to respond or communicate with plaintiff. Due to “the Department of Labor investigation, some members of the class received full payment of the amounts owed to them.” Rembert and the remaining class members received an $18,961 judgment, “plus ‘reasonable fees and costs.’” Rembert requested $38,190 in fees and $575 in costs. The district court eventually awarded her $13,790 in fees and costs. She challenged the attorney-fee award, arguing that the district court abused its discretion by capping the fees at 35% of her total recovery. The court agreed, noting that the lodestar method already considered the relevant factors comprising a “reasonable attorney’s fee.” Where a plaintiff only “partially” succeeds in obtaining a recovery, a district court could reasonably award a reduced fee. But Rembert and several class members recovered 100% of what they were due under the FLSA. The court also held that the district court failed to adequately explain what claimed hours it rejected, and to consider “the 100% recovery in this case—or that the actions and omissions of defense counsel indisputably prolonged this litigation and rendered it much less efficient than it could have been.” Reversed and remanded with instructions to grant the petition for $38,765 in fees and costs. The court also granted Rembert’s counsel reasonable appellate fees and costs.
Breach of contract claim as to retirement benefits; Bank of Am, NA v First Am Title Ins Co; Requirement that the contract be attached to the complaint; Whether defendant waived an affirmative defense; Unjust enrichment; Statute of limitations; MCL 600.5813 & 600.5815; Element of defendant’s retention of a benefit; The continuing wrongs doctrine; Administrative law judge (ALJ)
Concluding that plaintiff’s unjust enrichment claim failed for several reasons, that his breach of contract claim was “fatally flawed[,]” and that defendant did not waive the affirmative defense that no agreement existed, the court affirmed summary disposition for defendant. “Plaintiff alleged that after his contract was not renewed in 2009, he was appointed by defendant’s school board to the position of Executive Director of Student Affairs at Wayne State University.” The case arose after he failed to receive a multiplier that he alleged he was supposed to receive as part of an early buyout package upon retirement. As to his claim that defendant’s retention of all of his retirement benefits constituted unjust enrichment, the court first held that this claim would be barred by the statute of limitations. “Absent a date from plaintiff as to when the breach occurred, the ALJ’s findings established that plaintiff knew as early as 2010 and as late as 2011 that he was being denied incentivized retirement benefits, however, he did not file the complaint in the instant matter until over six years later in 2018.” In addition, his reliance on the continuing wrongs doctrine failed given that it is not longer recognized in this state. Finally, he could not prove the element of defendant’s retention of a benefit given that it was not the holder of his retirement funds. Although “defendant received the benefit of plaintiff’s labor and length of employment,” it was not the entity responsible for paying his retirement benefits. The court next concluded that even if the trial court erred in determining that he failed to attach the contract to his complaint, and he “either included the entire contract or supplemented his complaint with the additional page alleged to have been omitted, his breach of contract complaint would not have survived legal scrutiny and defeat.” He did not present any “proof of the promises upon which his contractual claim was based: entitlement to an early buyout and a multiplier for six (6) years post retirement. if he worked for Detroit Public Schools for one day between the period of time between” 11/1/09 and 5/1/10. While he asserted he was conveyed this information, he failed to offer any “basis upon which to legally augment, supplement, or modify a written contract.”
Motion to set aside a default judgment; MCR 2.603(D)(1); Brooks Williamson & Assoc, Inc, v Mayflower Constr Co; Good cause & a meritorious defense. Saffian v Simmons; Shawl v Spence Bros; Default for failure to appear at a scheduled conference; MCR 2.401(G); “Manifest injustice”; Alken-Ziegler, Inc v Waterbury Headers Corp
Holding that the trial court erred by entering a default judgment against defendant-Kahn and for plaintiff-adult toy distributor, the court reversed, vacate the order, and remanded. Plaintiff sued Kahn and his stores for breach of contract and account stated. The trial court entered a default judgment against them for failing to appear. Kahn later filed an answer denying the allegations and arguing that neither he nor his stores did business with plaintiff, and that he did not sign a contract that included a personal guarantee provision. Kahn asserted that he and his stores did business with the prior owner of plaintiff and that plaintiff was misrepresenting that it was the prior owner. On appeal, the court agreed with Kahn that the trial court abused its discretion by denying his motion to set aside the default judgment, finding it failed “to recognize Kahn had a potentially absolute defense to plaintiff’s claim.” Although it was not an abuse of discretion for the trial court to conclude that he failed to establish good cause, “a lesser showing of good cause is required if the moving party can demonstrate a strong meritorious defense.” In all of his pleadings, motions, and responsive briefings, Kahn “maintained that plaintiff’s claim against him as an individual cannot be sustained because no signed guarantee exists. Indeed . . . a signed copy of a personal guarantee between plaintiff and Kahn” did not exist in the record. He could not “be held personally liable for a corporate debt absent a signed guarantee. To allow the default judgment against Kahn as an individual to stand absent evidence of a signed guarantee constitutes a manifest injustice, and the trial court’s failure to set aside the default judgment against Kahn individually on this basis constituted an abuse of discretion. Although plaintiff may have an adequate response to Kahn’s potentially absolute defense, none has been offered to date.” Thus, remand was required “to allow plaintiff the opportunity to offer a signed copy of Kahn’s personal guarantee, or any other evidence to establish that Kahn agreed to be personally liable for the corporate debt at issue. Only then can the trial court fairly determine whether or not to set aside the” default judgment against him. However, the court cautioned Kahn that “on remand, his active participation in this litigation is imperative to any potentially successful defense.”
The family division’s jurisdiction; Effect of respondent’s age when the petition was filed; MCL 712A.3 & 5; People v Schneider; Jurisdiction for the limited purpose of conducting a waiver hearing; MCL 712A.4
In this case in which the 24-year-old respondent was charged for acts allegedly committed when he was 15 or 16, the court held that the family division erred in ruling petitioner had to file the case in the circuit court for that court to then transfer it “to the family division for a waiver hearing, and by not authorizing the petition and dismissing the case without” conducting a waiver hearing. In Schneider, the court decided “whether the court of adult criminal jurisdiction or the juvenile division of the probate court has jurisdiction over a person who allegedly commits a crime” before turning 17 and who turns 18 before criminal proceedings are began. It held in Schneider that “where a case is transferred to the probate court pursuant to MCL 712A.3[], the probate court shall have jurisdiction without regard to the defendant’s age at the time of transfer. However, such jurisdiction shall be for the limited purpose of holding a waiver hearing pursuant to MCL 712A.4.” While this 1982 case was not binding, the court found its reasoning sound. The case law and statutes governing “jurisdiction over an individual who is charged for acts they committed as a juvenile after they reach the age of 18 do not directly address the circumstances” here. The statutory procedures “contemplate scenarios in which a criminal charge has already been filed against a person in the circuit court and it is thereafter determined that the person committed the offense when he was under the age of 17.” Here, petitioner knew when it filed the petition that “respondent was under the age of 17 when he committed the alleged offense, and, as such, filed the petition in the family division.” Without conducting a hearing, the referee found that he should have been charged “as an adult in the circuit court and, after the circuit court determined that respondent was under the age of 17 when the offense” allegedly occurred, it “would transfer the case to the family division for a waiver hearing.” But the court noted that it had not and did “not take issue with a petitioner filing a petition in the family division against a person has reached the age of 18 regarding acts he committed as a juvenile where it is known that the person was a juvenile when he committed the acts before the petition was filed.” Reversed and remanded.
Intoxicated-driving prosecution; Preliminary breath test (PBT) results; MCL 257.625a(2)(b); Right to present a defense; Arbitrariness; Disproportionality; MCL 257.625a(2)(b)’s alleged “conflict” with MRE 702 & 703; Whether the area in which defendant’s vehicle was stuck was, as a matter of law, “generally accessible” to motor vehicles; People v Rea; The Michigan Vehicle Code (MCL 257.1 et seq); Motion in limine to exclude evidence as to his occupation & display of his “badge”; Relevance; MRE 401, 402, & 403; Blood alcohol concentration (BAC)
In this intoxicated-driving prosecution, the court held that defendant was not deprived of the meaningful opportunity to present a complete defense. Thus, the district court did not err when it concluded that the PBT result was inadmissible as substantive evidence under MCL 257.625a(2)(b). Also, “even to the extent that MCL 257.625a(2)(b) irreconcilably conflicts with MRE 702 and MRE 703, MCL 257.625a(2)(b) prevails.” Further, the district court did not err by holding that the area in which defendant’s vehicle was found was generally accessible to motor vehicles. Finally, his “conduct of displaying his badge and his statement whether ‘something could be done’ were relevant.” And his prearrest statement and conduct were admissible under MRE 403. Defendant argued that the district court erred when it excluded “the PBT because the application of the evidentiary statute—MCL 257.625a(2)(b)—unreasonably offends [his] [c]onstitutional right to present a complete defense.” The parties agreed that MCL 257.625a(2)(b) prohibited him from admitting his PBT result to support his rising BAC defense. The dispute was whether this statutory restriction imposed an unconstitutional impediment on his right to present a complete defense. Defendant first claimed that MCL 257.625a(2)(b)’s restrictions were arbitrary. The court held that the “Legislature has a legitimate interest in limiting collateral litigation and jury confusion concerning the result of comparatively unreliable breath tests.” In addition, when “viewed in this context, MCL 257.625a(2)(b) simply does not reflect an arbitrary exercise of a governmental authority.” Defendant next argued that MCL 257.625a(2)(b) was disproportionate because the statute’s exceptions favor the prosecution. The court failed “to see how a defendant’s ill-advised cross-examination of a government witness renders a neutral statute unconstitutionally disproportionate.” Thus, it held that MCL 257.625a(2)(b) does “not abridge [a defendant’s] right to present a defense” because it is “not arbitrary or disproportionate to the purposes [it is] designed to serve.” Affirmed.
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)
[This opinion was previously released as an unpublished opinion on 12/17/20.] 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.
Sentencing; Scoring of OVs 3 (physical injury to a victim) & 10 (exploitation of a vulnerable victim); “Domestic relationship”; Ineffective assistance of counsel; Failure to object to an alleged mathematical error that defendant claimed placed him in a higher OV level
Holding that the trial court properly assessed points for OVs 3 and 10 and that defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of first-degree home invasion, felonious assault, and domestic violence. He was sentenced to 45 months to 20 years for first-degree home invasion, 18 months to 4 years for the felonious assault, and 93 days for domestic violence. The trial court properly assessed 5 points under OV 3. The evidence established that he unlawfully entered victim-H’s home. H “testified that in the kitchen defendant grabbed her by the hair and by the arm.” The PSIR reported that H ‘“had numerous bruises on her arms, legs, back and face as well as cuts on her knee cap’ when police interviewed her on the day of the incident. [H] testified about her injuries which defendant began inflicting inside the home during his commission of home invasion.” The prosecution presented photos that depicted these injuries. “Evidence established that the injuries were caused by defendant assaulting her.” Thus, the trial court “could reasonably conclude based upon a preponderance of the evidence that [H] suffered injury in relation to defendant’s commission of the sentencing offense.” Also, the trial court properly assessed 10 points under OV 10. Defendant victimized her during his commission of the sentencing offense. Because they were married a “domestic relationship” existed.
Ineffective assistance of counsel; People v Carbin; Trial strategy; People v Horn; Relevance; MRE 401-402; Unfair prejudice; MRE 403; Restitution; MCL 780.766
The court held that defendant was not entitled to relief based on his claims of ineffective assistance of counsel, but should not have been ordered to pay restitution for the amount ordered. He was convicted of delivery of less than 50 grams of heroin and of conspiracy to deliver less than 50 grams of heroin. In addition to his prison sentences, he was ordered to pay $200 in restitution. On appeal, the court found that his ineffective assistance of counsel arguments, “individually or together, mainly fail because prejudice cannot be shown.” However, it agreed with defendant, and the prosecution conceded, that the trial court erred by ordering him to pay $200 in restitution. “It is undisputed that the police recovered the $200 in buy money while searching the home and defendant’s wallet. Therefore, defendant should not have been ordered to pay restitution for this amount.” Affirmed as to his convictions, but vacated as to restitution and remanded for the limited purpose of amending the judgment of sentence to eliminate the restitution provision.
Sentencing; Imposition of lifetime electronic monitoring (LEM) for a CSC I conviction; MCL 750.520b(2)(d) & 750.520n; Ex post facto challenge; Motion for relief from judgment to allow defendant to withdraw pleas; Failure to advise defendant of the LEM consequences of his pleas; MCR 6.508(D); “Good cause”; Actual prejudice
Agreeing with defendant and the prosecution that the imposition of LEM as part of his sentences for his CSC I convictions violated the constitutional ex post facto prohibition, the court remanded for the trial court to correct those sentences by removing the mandatory LEM. But it otherwise affirmed, concluding that the trial court did not abuse its discretion in denying his motion for relief from judgment to allow him to withdraw his pleas to CSC II, as he could not show good cause or actual prejudice. Before 8/28/06, the maximum penalty a defendant could receive for CSC I “was imprisonment for ‘life or any term of years.’” Due to statutory revisions by the Legislature, “a defendant became required to serve a prison sentence and be subject to LEM.” Defendant was charged here based on conduct that “occurred in the 1990s before the LEM provisions became effective.” Thus, sentencing him to LEM based on his CSC I “convictions violated the constitutional ex post facto prohibition because it imposed greater punishment than the law permitted at the time” he committed the crimes. He also argued that he should be allowed to withdraw his pleas to CSC II on the ground that the trial court failed to advise him of the LEM consequences of his pleas. The court disagreed. In a prior appeal, it found that the trial court’s conduct in this regard, under the circumstances of this case, was harmless error. Thus, in the context of the current appeal, he could not establish good cause as to the conduct that the court had “already determined constituted harmless error that did not warrant relief.” As to the actual prejudice requirement, the court determined in the prior appeal “that the trial court substantially complied with the requirements of MCR 6.302(B)(2) and that defendant failed to establish that his pleas were involuntary or that his counsel provided him ineffective assistance in relation to the trial court’s failure to reiterate the LEM requirement for” his CSC II convictions. Thus, he could not show “his pleas were involuntary to a degree that it would be manifestly unjust to allow his convictions to stand,” or that his CSC II sentences were invalid due to “the imposition of the statutory mandatory LEM requirement.” As a result, he could not “establish the requisite prejudice necessary to warrant relief from judgment and the trial court did not err by denying his motion.”
Search & seizure; Payton v New York; Probable cause; MCL 780.653; People v Ulman; The good-faith exception to the exclusionary rule; People v Goldston; People v Czuprynski; Hearsay; MRE 801(c); Prior consistent statement exception; MRE 801(d)(1)(B); People v McCray; Sentencing; People v Lockridge; Reasonableness & proportionality; People v Steanhouse; People v Dixon-Bey; Acquitted conduct; People v Beck; Court costs; MCL 769.1k(1)(b)(iii)
The court held that the trial court did not err by denying defendant’s motion to suppress, by admitting hearsay, or by imposing a sentence that departed upward. He was convicted of delivery of a controlled substance less than 50 grams, and two counts of possession with intent to deliver a controlled substance less than 50 grams. The trial court sentenced him as a fourth-offense habitual offender and as a subsequent drug offender to concurrent sentences of 10 to 60 years for each count. The sentences reflected an upward departure from the minimum guideline ranges. The trial court also ordered defendant to pay $1,000 in court costs. On appeal, the court rejected his argument that there was no probable cause showing a nexus between his alleged drug trafficking activity and his apartment. It noted that “the police recovered evidence at defendant’s apartment in objective or reasonable good-faith reliance on the search warrant.” Even if there was “a lack of probable cause to issue the search warrant, the good-faith exception to the exclusionary rule did not permit suppression of the evidence.” There was no indication that any of the averments in the detective’s affidavit were false, nor could the court “conclude that the magistrate wholly abandoned his judicial role or that the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The court also rejected his claim that the trial court erred by admitting inadmissible hearsay, noting that testimony from one witness constituted a prior consistent statement, and that testimony from another was not prejudicial. Finally, it rejected his contention that his 74-month upward departure violated the principle of proportionality and that the trial court failed to adequately justify the extent of the departures, noting the trial court departed from the minimum sentence ranges “on the basis that defendant is a recidivist drug dealer whose rehabilitation is unlikely.” Affirmed.
Sentencing; People v Lockridge; Reasonableness & proportionality; Appealability; MCL 769.34(10); People v Kimble; Departure sentencing; People v Steanhouse; People v Milbourn; Consideration of a defendant’s criminal history; People v Hansford; People v Adams
The court held that the trial court appropriately imposed a reasonable and proportionate sentence. Defendant pled guilty to fourth-degree fleeing and eluding a police officer and sentenced to 14 to 24 months. The trial court denied his motion to correct an invalid sentence, which was based on his assertion that it improperly sentenced him without providing substantial and compelling reasons when the statute provided for an intermediate sentence in jail. On appeal, the court rejected his argument that the trial court abused its discretion by sentencing him to a minimum sentence of 14 months in prison, rather than a term of 12 months in jail. “The trial court considered all of the evidence and based its sentence, as required, on the seriousness of the offense and the offender. The trial court’s imposition of a prison sentence, rather than a jail term, served the purpose of disciplining defendant for the seriousness of his offense and accounted for his repeated criminal activity and failure to rehabilitate.” The imposition of a prison sentence, rather than a jail sentence, “was ‘proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” Affirmed.
A municipality’s authority to adopt local zoning ordinances; The Zoning Enabling Act (MZEA) (MCL 125.3101 et seq); MCL 125.3201(1); MCL 125.3102(w); MCL 125.3209; Olsen v Chikaming Twp; Whether defendant-township’s interim zoning ordinance was subject to a petition for referendum under the MZEA; MCL 125.3402 & 3404; Preliminary injunction; MCR 3.310(A)(4); Slis v State; Mere apprehension of future injury or damage; Pontiac Fire Fighters Union Local 376 v City of Pontiac; Due process; Bonner v City of Brighton; Freedom of Information Act (FOIA) (MCL 15.231 et seq)
The court held that the trial court did not err by denying plaintiffs’ (Sandstone and Walters) motion for a preliminary injunction, granting in part their claim for relief under FOIA, or dismissing counts I, IV, and V of their complaint. However, it did err by dismissing counts II and III without notice and hearing on those counts. Sandstone began to implement its plan to build a solar power project in defendant-township. But the township, which had operated under the county’s zoning ordinance, adopted an interim zoning ordinance. Plaintiffs sued, seeking a declaratory judgment that the interim ordinance was invalid (Count I), that the township improperly imposed a moratorium on projects within it (Count II), alleging that the interim ordinance imposed exclusionary zoning (Count III), and that the township’s refusal to accept Walters’ referendum petition was improper and unlawful (Count V). They also alleged a violation of the FOIA (Count IV) and moved for a preliminary injunction seeking an order compelling the township to accept the referendum petition, to determine its adequacy, and to place the interim ordinance on the ballot at the next regular or special election. The trial court denied their motion for a preliminary injunction, granted partial relief on their FOIA claim, and dismissed their complaint in all other respects. On appeal, the court concluded that “the trial court properly held that the right to file a petition for referendum under MCL 125.3402 does not apply to an interim zoning ordinance implemented under MCL 125.3404.” As to plaintiffs’ request for injunctive relief, because they “failed to show that the trial court’s denial of their motion for a preliminary injunction falls outside the range of reasonable and principled outcomes,” it did not abuse its discretion by denying their motion for a preliminary injunction. As to their due process argument, the court found that they “had ample notice and an opportunity to be heard regarding the merits of Counts I and V of their second amended complaint.” And they were “clearly heard” on their FOIA count as the trial court ordered the township to produce additional documents responsive to their request. However, as to Counts II and III, the court was not convinced that plaintiffs “were on notice that the trial court was prepared to consider the dismissal of those claims.” Affirmed in part, reversed in part, and remanded.
Collapse of a publicly operated outdoor deck; The public building exception to governmental immunity (MCL 691.1406); Maskery v University of MI Bd of Regents; Design defect claims; Renny v Department of Transp; Distinction between a design defect & a failure to repair & maintain; Tellin v Forsyth Twp; Constructive knowledge of the dangerous or defective condition; Echelon Homes, LLC v Carter Lumber Co
[This opinion was previously released as an unpublished opinion on 12/17/20.] The court concluded that plaintiffs in these consolidated cases sufficiently alleged that the publicly operated outdoor deck at issue collapsed due to a failure to maintain and repair, and that there was a genuine issue of material fact whether defendants-county and its parks and recreation department had constructive knowledge of the defective condition. Thus, it reversed summary disposition for defendants and remanded. “The trial court reasoned that the deck failed because LVL lumber was used in its design and construction, even though experts for plaintiffs and defendants opined that LVL was not fit for outdoor use.” But the court determined that while “the use of the LVL beam was a design defect, plaintiffs’ claims also arose out of defendants’ failure to repair and maintain the deck.” They offered evidence that it collapsed due to defendants’ failure to maintain and repair it. The Supreme Court in Renny “implied that a case can involve both a design defect and a failure to repair and maintain.” The evidence here suggested that “in normal conditions—or, in its initial condition—the LVL beam would have supported a normal weight load for a deck. However, when the LVL beam failed, it was only carrying a small fraction of that load.” The conclusion of the person (J) defendants hired to investigate the collapse reflected “that, but-for the rot in the LVL beam, the deck would not have collapsed.” The court further noted that the deck did not collapse for the first 12 years of its existence. “It only did so when the LVL beam failed because of rot.” Thus, the evidence showed it collapsed due to “deterioration, transforming a design defect into a failure to repair or maintain.” As to the issue of constructive knowledge, plaintiffs produced evidence showing “that if defendants had been reasonably diligent when they made repairs to the deck and discovered that some of sections of the deck had become rotted, they should have also discovered the rotted LVL beam.” A maintenance worker (D) testified that he made “repairs to areas of the deck that were rotted” and admitted he failed to “diligently inspect the LVL beam that supported the entire weight of the deck. If [D] had diligently inspected the LVL beam, the evidence, including an affidavit from plaintiffs’ expert, suggests that he would have discovered its rotted condition.”
Governmental immunity; The Governmental Tort Liability Act (GTLA) (MCL 691.1401 et seq); Absolute immunity; MCL 691.1407(5); Action within the scope of legal authority; Petipren v Jaskowski; A drain commissioner’s duties & powers; The Drain Code (MCL 280.1 et seq); MCL 280.241 & 280.245; The use or misuse of a badge of governmental authority; Smith v Department of Pub Health; Armstrong v Ypsilanti Charter Twp; Civil conspiracy, unjust enrichment, breach of contract, & quantum meruit; Genesee Cnty Drain Comm’r v Genesee Cnty
While the court held that governmental immunity barred plaintiff’s civil conspiracy claim against defendant-county drain commissioner (Quattrin), he was not entitled to absolute immunity under MCL 691.1407(5) as to their unjust enrichment, breach of contract, or quantum meruit claims. Thus, it reversed the denial of his summary disposition motion as to the civil conspiracy claim, but affirmed the trial court’s other rulings, and remanded. The parties disputed whether the allegations of wrongdoing forming the factual basis for plaintiffs’ “claims against Quattrin, taken as true, were within the scope of his authority or whether Quattrin was acting” beyond the scope of his authority. The court found that the trial court erred in its analysis of the civil conspiracy claim. Plaintiffs’ “allegations of conspiratorial or fraudulent activity by Quattrin were based on Quattrin’s exercise of his executive authority as drain commissioner to award or refuse to award contracts for certain drain jobs.” The court noted that the “award of, and payment for, drain jobs was squarely within Quattrin’s executive authority as the elected drain commissioner.” It could not consider his “alleged motive or subjective intent in awarding or denying contracts, or in withholding payment for completed work.” The court concluded that, whether plaintiffs’ claim was viewed “as one of ‘fraud’ or ‘conspiracy’ (or both),” they failed to allege any tortious action by Quattrin “independent from his official role and authority.” Thus, MCL 691.1407(5) conferred absolute governmental immunity as to the civil conspiracy claim. But it rejected his argument that he was also entitled to absolute immunity on their unjust enrichment, breach of contract, and quantum meruit claims. The court held in Genesee Cnty Drain Comm’r that “breach of contract or breach of implied contract claims are not barred by the GTLA, which immunizes governmental actors only from claims sounding in tort.” It disagreed with Quattrin’s contention that plaintiffs’ complaint simply repackaged or restated tort claims as contract claims, concluding that it alleged “distinct causes of action and injury caused by Quattrin’s alleged breaches of express or implied contractual obligations. At this early stage of the proceedings, nothing more is required; the GTLA” did not apply to those claims.
Negligence; Nuisance; Private nuisance; Cloverleaf Car Co v Phillips Petroleum Co; Trespass; Remand to a different trial judge; MCR 7.216(A)(7)
The court held that the trial court erred by granting defendants’ motion for a directed verdict on the basis that no evidence was presented to establish the boundary line between the parties’ properties. Defendants’ survey established the boundary line. But the court concluded that plaintiffs were not entitled to relief as to their negligence and nuisance claims because the error as to these claims was harmless. On the other hand, the error was not harmless as to their trespass claim. The case concerned two parcels of property that abut Lake Huron. Defendants-Wests hired a company to cut down greenery on their property. “Plaintiffs alleged that in the process of cutting the greenery, trees and bushes were also removed on their property.” They further claimed that “the cutting of the greenery increased the surface-water runoff running from defendants’ property, causing damage to the stairs of the red cottage and damage to the foundation of the white cottage.” As to plaintiffs’ trespass claim, “Mr. West testified that none of the greenery removed was on plaintiffs’ property, while [a witness] testified that approximately 750 square feet of the greenery was cut on plaintiffs’ property. Therefore, there was a factual dispute as to whether a trespass occurred and whether defendants could be liable for that trespass.” Also, there was a factual dispute as to whether the surface water could constitute an actionable trespass. Thus, the trial court’s error in granting defendants’ motion for a directed verdict on the trespass claim was not harmless. But plaintiffs were not entitled to relief as to their negligence claim because they failed to establish this claim as a matter of law given that “with certain exceptions not relevant here, a property owner is not liable for the negligence of an independent contractor.” They also were not entitled to relief as to the trial court’s decision to grant defendants’ motion for a directed verdict on their nuisance claim. “The cutting of the greenery is not actionable in nuisance, which requires a nontrespassory invasion. . . . Excess surface-water runoff is also not actionable in nuisance for this same reason.” Because plaintiffs relied solely on trespassory invasions of their property, their claim of nuisance failed as a matter of law. Affirmed in part, reversed in part, and remanded.
Judicial foreclosure; The law of the case doctrine; Libel; MCL 600.2911; Fisher v Detroit Free Press, Inc; Glazer v Lamkin; Substantial truth; Collins v Detroit Free Press, Inc
Concluding that the law of the case doctrine precluded consideration of both plaintiffs’ issues as to the judicial foreclosure order, and that the trial court properly granted defendants-mortgage entities summary disposition on plaintiff-Mary Hargrow’s libel claim, the court affirmed. It first noted that plaintiffs challenged the judicial foreclosure order “on the same grounds that were raised in their application for leave which we denied . . . based on the merits of the grounds presented.” Thus, the court would not address them again in this appeal by right. As to Mary’s libel claim, “the trial court correctly concluded that the statements made in the offending assignments were substantially true in light of Mary’s self-identification as a ‘borrower’ on the mortgage. The assignments in no way indicate that Mary owes any obligation to pay on the promissory note.” While she took issue with the word “borrower” as implying to an average person that she owed a debt, this was “mere speculation. Mary presented no actual evidence that such an interpretation occurred, let alone that it caused her a compensable injury.” The evidence she offered related to applications for lines of credit and financing “where she dealt with entities skilled in the art of lending, as opposed to an average person who might be unfamiliar with the difference between a promissory note, which is a debt instrument, and a mortgage, which is a security instrument that encumbers real property. Moreover, the manner in which an average person might interpret the term ‘borrower’ does not render the statements in the assignments untrue.” In addition, to the extent she contended it was unnecessary to produce evidence of economic injury for her libel per se claim, the court found her arguments unpersuasive. Her “only evidence of harm to her profession is her testimony that a decline in her real estate business in [10/17] was attributable to the offending assignments according to her ‘business feeling’ and ‘business sixth sense.’” The court found this to be “pure conjecture.”
Appointment of a successor trustee; Petition to remove a successor trustee; Alleged violations related to fiduciary duties; MCL 700.7706(2)(c); Claim the probate court did not rule on appellant’s petition for declaratory judgment & motion for summary disposition; Motion for reconsideration; Sanctions; Whether the register of actions in the case was subject to tampering; Claims of judicial bias; Due process & equal protection; Whether appellant’s ex parte motion was treated differently from her brother’s ex parte motion
The court was not left with a definite and firm conviction that the probate court erred when it found that appellant-Mitchell did not establish a persistent failure of appellee-Ruiz to effectively administer the Trust. Thus, it affirmed the probate court’s order denying Mitchell’s petition to remove Ruiz as successor trustee. Mitchell was a beneficiary and former trustee of the Trust. She argued that the probate court erred by appointing Ruiz as successor trustee and by declining to remove him as trustee. She contended that the probate “court should not have appointed Ruiz successor trustee because doing so was inconsistent with the material purposes of the Trust. The probate court ruled that Mitchell had not established or even identified the Trust’s material purposes, much less show that appointing Ruiz as successor trustee had violated the purposes.” Mitchell failed to indicate what the purposes of the Trust “were or how Ruiz’s appointment violated them. Mitchell did not provide any evidence or arguments at the evidentiary hearing regarding the material purposes of the Trust.” Rather, her evidence and arguments at the hearing related only to Ruiz’s management of the Trust. The court held that the probate court did not err when it held that she did not establish the basis of her claims. Mitchell also contended that “the probate court should have removed Ruiz as trustee because he violated his fiduciary duties by failing to file taxes, failing to respond to Mitchell, and undertaking other actions contrary to his duties as trustee.” But these arguments lacked merit. “At the evidentiary hearing, Mitchell only proved that Ruiz had failed to file taxes for the Trust. Because the Trust’s accountant testified that the Trust likely did not owe taxes in light of its significant expenses, the probate court’s rulings that the tax-filing failure had not harmed the Trust and that Mitchell had not proven persistent failures were not clearly erroneous.”