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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Title IX retaliation claim; Whether defendant-university presented legitimate reasons for seeking plaintiff’s resignation; “Pretext”; Insubordination; “Protected activity”; Application of a progressive discipline policy; Denial of motions for further discovery
Holding that plaintiff-Goldblum failed to show defendant-University of Cincinnati’s (UC) reasons for asking her to resign from her position as its Title IX Coordinator were a pretext for discrimination, the court affirmed summary judgment for UC on her Title IX retaliation claim. She wrote a letter to the student newspaper about an incident where a sex offender was mistakenly honored at graduation. Despite the fact her supervisor informed her that a process to address the incident was already in place, Goldblum sent the letter and also an updated draft. Her supervisor reported her insubordination, and an internal investigation “discovered additional infractions, namely that Goldblum repeatedly ignored Title IX complaints, justified her insubordination to her staff, repeatedly criticized her colleagues in front of her staff, routinely interrupted her staff’s work, and missed many of her own reporting deadlines.” She was then asked to resign in lieu of termination for “insubordination and unacceptable work behavior in violation of UC’s Conduct Policy.” On appeal, the court first held that UC offered two legitimate reasons for asking for her resignation. It then considered whether Goldblum established that these reasons were merely a pretext for discrimination. The court rejected her claim her actions did not constitute insubordination, holding that her letter was not protected activity where it “didn’t complain of sex discrimination” and it did not provide notice to an authorized official to institute corrective measures. The court further held that the fact some evidence of her “unprofessional conduct” was not discovered until after she resigned was inconsequential. The court would not “infer pretext merely because UC elaborated on its justifications for terminating Goldblum after she resigned.” In addition, it found that because her “own files and correspondence confirmed that she failed to meet many of her reporting deadlines, UC had a factual basis to terminate her for poor work performance.” Any argument that UC failed to “uniformly apply a progressive discipline policy” failed given that she “identified no similarly situated employee who received a more lenient reprimand despite engaging in ‘substantially identical conduct.’” As to the district court’s orders denying additional discovery, the court held she had “ample opportunity” to take discovery before summary judgment, and that “her further discovery requests would likely have been futile.”
False arrest & imprisonment; 42 USC § 1983; “Probable cause” for an arrest; Qualified immunity; Municipal liability; Monell v Department of Soc Servs; Single-incident liability
[This appeal was from the ED-MI.] The court held that there was a genuine dispute of material fact as to whether defendants-arresting officers had probable cause to arrest plaintiff-Harris and thus, they were not entitled to qualified immunity. But it concluded defendant-City of Saginaw was properly granted summary judgment on his municipal liability claim. The police arrested Harris for allegedly making a false 911 report that a store clerk had pulled a gun on him. He spent 18 days in jail. He sued for false arrest and false imprisonment. As to the denial of qualified immunity to the on-the-scene officers, viewing the evidence in a light most favorable to Harris, the court determined the facts showed they decided to arrest him “before conducting an investigation.” It noted that the officer (defendant-Nelson) “who made the decision to arrest Harris ‘based on his statements,’ called him a ‘f*cking liar’ before he even spoke.” Defendant-LaDouce called Harris’s “story ‘bull sh*t’ before” he even spoke to the store clerks. Thus, a jury could decide that the officers “made a ‘hasty, unsubstantiated arrest’ accompanied only by what was, at most, a farce of an investigation.” It also found a jury could conclude the “officers were ‘simply turn[ing] a blind eye toward potentially exculpatory evidence’ in order to arrest Harris.” Considering the fact-specific questions at the center of the inquiry, “whether a reasonable officer would have believed they had probable cause to arrest Harris is better left for the jury.” As to whether each officer was involved in the arrest, the record showed that both Nelson and defendant-Lautner were “directly involved,” and LaDouce and defendant-Cece, although not directly involved, were “equally liable because they both failed to intervene when they had reason to question whether probable cause existed and physically arrested Harris.” Under § 1983, officers who are just “following orders” may be liable if they should have questioned the validity of the order. Thus, all four officers were personally involved, and because there was reason to believe the “arrest violated Harris’s clearly established constitutional right, none of” them were entitled to qualified immunity. As to the officers’ mistake of fact argument, although “an arrest without probable cause due to a mistake of fact is not per se unreasonable” the court concluded that whether “a reasonable officer would have interpreted Harris’s accounts as inconsistent is a question of fact” warranting submission to a jury. As to municipal liability, “neither the failure to train nor failure to supervise analysis reveals any genuine disputes of material fact[.]” Affirmed.
Challenges to permit fees charged to owners of commercial & multiunit residential real property by a city; Alleged violation of § 31 of the Headlee Amendment; Unjust enrichment; Violation of MCL 141.91; Bolt v City of Lansing; Fees that benefit the general public; Westlake Transp, Inc v Public Serv Comm’n; Alleged violations of the city charter & ordinances; Retroactive approval of the charges by the city council; “Issuance”; “Permit”; Equal protection; Rational basis review; Assumpsit; Fisher Sand & Gravel Co v Neal A Sweebe, Inc
Rejecting appellant’s multiple challenges to the legality of certain charges imposed by defendant-City of Detroit on owners of commercial and multitenant residential real property, the court affirmed the trial court’s ruling that the charges are legal. Counts I, IV, and V of appellant’s complaint alleged “violations of § 31 of the Headlee Amendment and MCL 141.91.” The court noted there was no fact question that the charges “here were for the acquisition of permits, not inspections.” Applying the Bolt factors, it concluded as to the first factor (whether the charge serves a regulatory purpose rather than a revenue-raising one) that this case was analogous to Westlake – appellant here received “a benefit by being allowed to operate its business in Detroit. Thus, appellant received ‘a direct benefit’ from paying the charge. The fact that the general public also benefits from the Fire Protection Program does not negate the charge’s regulatory nature.” Next, the court determined that the charge appeared “to be proportionate to the necessary costs of the service” the City was providing. As to the third factor, whether the charge was voluntary, the trial court assumed that it was not, and the court agreed. After weighing the three factors, “the trial court ruled the charge was a fee, not a tax.” The court agreed with its analysis and found that it did not err. The court noted that the fact the charge was involuntary by itself was insufficient “to overcome the other two factors that appellant received a benefit and that the fee is proportional. Because the charge at issue is a fee, not a tax, appellant” could not succeed “on its claims alleging violations of the Headlee Amendment and MCL 141.91.” The court further held that the trial court did not err in finding no cause of action for the “claims related to the violation of the city charter and ordinances.” Among other things, it rejected appellant’s argument that the city council’s retroactive approval of the charges was a nullity, and it concluded that the city “ordinance allows for the recovery of the costs of the Fire Prevention Program in the issuance of the permits.” Finally, as to appellant’s equal protection claim, the court applied rational basis review in determining that the trial court did not err in finding no cause of action for this claim.
Sentencing; Scoring of OVs 1 & 2 (possession or use of a weapon during commission of the crime); MCL 777.31(2)(b) & 777.32(2); Applicability of People v Libbett; The aiding & abetting statute (MCL 767.39); Statutory interpretation; Entitlement to resentencing; People v Francisco
The court held that because there was “no contention that defendant possessed a weapon during the offense at issue, and because no other offender was assessed points for either” OV 1 or 2, both OVs should have been scored at 0. Thus, the trial court erred in scoring points for them. Further, defendant was entitled to resentencing because the resulting 20-point reduction in his OV score changed his minimum guidelines range. The court reversed the Court of Appeals judgment that upheld the trial court’s scoring of OV 1 at 15 points and OV 2 at 5 points, and remanded to the trial court for resentencing. Defendant was convicted of armed robbery for robbing a store with two accomplices. The court concluded that the plain language of MCL 777.31(2)(b) and “777.32(2) sets forth two conditions that must be satisfied before those provisions are triggered. The first condition is that the case is a ‘multiple offender case[].’ The second condition is that ‘1 offender is assessed points’ for possessing a weapon. Here, there were three offenders, which makes this a ‘multiple offender case,’ satisfying the first condition. However, defendant was the only person charged and convicted of armed robbery; no other offender has been charged or convicted, let alone assessed points for possessing a weapon.” Thus, the second condition was not met. “Since defendant was the only person arrested, convicted, and assessed points under OVs 1 and 2, points could only be assessed under OVs 1 and 2 if he had possessed and/or used the weapon himself. There is no contention that he did so. Therefore, no points should have been assessed under OV 1” or 2. While the prosecution cited Libbett, the court found that case “inapposite here, where the issue is not whether MCL 777.31(1) and” 777.31(2)(b) conflict but whether they were “even triggered under these facts.” The prosecution, the Court of Appeals, and the dissent also relied on MCL 767.39. But that statute “does not speak to the scoring of the OVs.” The court noted that ignoring the specific statute as to scoring “the OVs in favor of the general aiding-and-abetting statute would be contrary to this canon of statutory interpretation.” It also disagreed with the dissent’s application of that statute in this case. Dissenting, Chief Justice Clement (joined by Justice Zahra) concluded that “a defendant must be assessed OV points if they aided and abetted the conduct that serves as the basis for scoring the OVs. Accordingly, even if a co-offender is not assessed points under an OV with a multiple-offender provision, rendering that multiple-offender provision inapplicable, the defendant must still be assessed points for that OV if the defendant aided and abetted conduct addressed by that OV.” Further, under the facts here, defendant aided and abetted the conduct at issue, so OVs 1 and 2 were properly scored.
Other acts evidence of sexual abuse involving a minor; MCL 768.27a; Propensity; People v Solloway; Relevance; Unfair prejudice; MRE 403; People v Watkins; “Listed offense” & “convicted” under the Sex Offenders Registration Act; MCL 28.722(a)(i)-(iii); The Watkins factors; Similarity of the other acts; Temporal proximity of the other acts; People v Hoskins; Frequency of the other acts; Effect of intervening acts; Reliability; People v Beck; Bolstering; Effect of a limiting instruction
The court held that the trial court did not err by admitting other acts evidence regarding defendant’s sexual abuse of his stepsisters more than 20 years before (when defendant was between 11 and 19 years old) the sexual abuse at issue in this case. He was convicted of CSC I for sexually abusing his daughter. On appeal, the court rejected his argument that the trial court abused its discretion by admitting other acts evidence that included the acts he committed involving his stepsisters. “[C]ontrary to defendant’s arguments, regardless of his age, the other acts at issue constitute ‘listed offenses’ for purposes of MCL 768.27a.” The court then considered MRE 403 and the Watkins factors, and found that, while it was a close call, the factors favored admission of the evidence. “Overall, although the lack of temporal proximity weighs against admission of the other acts evidence, the other factors are either neutral or they weigh in favor of the admission of the evidence. Recognizing that the propensity inference must be weighed in favor of the evidence’s admission, the trial court did not abuse its discretion by admitting the” other acts evidence. “The record shows that the trial court weighed the pertinent factors and provided a limiting instruction to the jury regarding the use of this evidence. Although a close question,” the court could not conclude that “the trial court abused its discretion in resolving this close evidentiary question.” Affirmed.
Sentencing; Ineffective assistance of counsel; Failure to make a reasonable effort to secure a lower minimum sentence; Miller v Alabama; People v Ginther hearing; Life without parole (LWOP)
The court concluded that defendant’s claim “his counsel failed to perform effectively by negotiating an even lower minimum sentence ha[d] no basis or support in the” trial court record. Also, given that he “failed to identify any acts or information to suggest counsel inadequately prepared for” his resentencing, he “failed to establish the need to conduct a Ginther hearing, that such a hearing would reveal information to suggest counsel was ineffective, or that defendant was somehow prejudiced by counsel’s alleged failure ‘to do more’ to reduce his sentences.” He was convicted of first-degree murder, committed as a juvenile, and sentenced to mandatory LWOP. On remand, he was resentenced to 32½ to 60 years for each count, in accordance with a sentencing agreement. He claimed his counsel was ineffective for settling with the prosecutor for a sentence “rather than engaging in a reasonable effort to secure a lower sentence. Defendant, in a signed, notarized statement attached to his brief on appeal, assert[ed] counsel did not prepare for his resentencing hearing by gathering background information to support a lesser sentence.” He further asserted “he wanted to have a hearing where mitigating factors could be presented to the trial court, but his counsel ‘would not fight for [him].’” But he submitted the statement for the first time on appeal. At his “resentencing hearing, he was twice asked by the court if he was waiving his right to have a hearing and defendant twice responded that he was doing so.” Thus, even if the court considered his “improperly submitted affidavit, it is insufficient to overcome defendant’s own acknowledgment in open court of his desire to waive the necessity of conducting a Miller hearing.” The court further found that he provided “no analysis or allegations to support the assertion counsel was ineffective.” Defendant failed “to explain how counsel’s performance fell below an objective standard of reasonableness, or how he was prejudiced by alleged instances of ineffective assistance of counsel.” Further, the court noted that counsel submitted “a sentencing memorandum, which included information regarding defendant’s background and behavior in prison, which the trial court clearly reviewed based on statements made by the judge indicating consideration of this information. When given the opportunity to provide additional information for the trial court to consider, defendant’s only comment was to correct the length of time he had been free of misconducts while in prison. [He] did not offer any other or alternative mitigating factors for consideration.” On appeal, he still failed “to identify any additional mitigating factors that should have been presented to or considered by the trial court.” Affirmed.
Retroactive application of the 2019 amendment to MCL 500.3145 adding a tolling provision to the one-year-back rule; Spine Specialists of MI, PC v MemberSelect Ins Co; Encompass Healthcare, PLLC v Citizens Ins Co; Devillers v Auto Club Ins Ass’n
The court held that the claims at issue in this interlocutory appeal concerning “medical care that was provided more than one year before this action was commenced and before the effective date of the” 2019 amendment, were time barred. Thus, it reversed the denial of defendant-insurer’s summary disposition motion and remanded. The court recently held in Spine Specialists “that the amendments to § 3145 do not apply retroactively to claims that accrued before [6/10/19], the effective date of the amendments.” That decision was directly applicable to the facts here and binding. “The pre-amendment version of § 3145 applies to the claims at issue here, which were incurred from” 12/17 through 3/10/19. Plaintiff-Health Partners could not “rely on the tolling provision in the amended statute and the at-issue claims are time barred.” Health Partners argued that the court should not apply Spine Specialists, and, instead, relied on Encompass Healthcare “for the proposition that the amended statute applies to losses incurred before [6/10/19]. Because Encompass Healthcare was released prior to Spine Specialists,” Health Partners argued that it should control the outcome of the case here. The court disagreed. Encompass Healthcare, like Spine Specialists, and the case here, “dealt with medical care provided before [6/10/19] (the effective date of the amended statute), the one-year-back rule, and the amended version of § 3145. The distinction, however, is that the parties in Encompass Healthcare did not dispute that the amended statute—with the tolling provision—applied.” Instead, the parties disputed, and the court “decided, whether the defendant had ‘formally denied’ the plaintiff’s claims. This Court held that the claims were never formally denied because the defendant ‘did not provide the explicit and unequivocal expression of finality required to constitute formal denials[.]’” The court held there that, “because there was never a formal denial, the one-year-back rule was tolled.” The issue of whether the amendment applied retroactively was raised and decided in Spine Specialists, and the court was bound by that decision. But the court noted that “Spine Specialists did not address the impact of the holding in Encompass Healthcare that the amendment to MCL 500.3145 is remedial in nature, or whether the remedial nature of the amendment makes it retroactive. We recognize that there is arguably some tension between the holding in Spine Specialists and Encompass Healthcare. This is, however, an issue for the Supreme Court to clarify.”
Petition to resign as personal representative (PR); MCL 700.3610(3); Petition for appointment as successor PR; Judicial notice; MRE 201; Ordering payment of part of the costs of investigating a medical malpractice claim; Conflict of interest; MRPC 1.7(a) & (b); Ordering the sale of the decedent’s personal property to pay the PR’s fees; Alleged violation of the terms of the will; Approval of the PR’s fees over objections; Transfer of a circuit court case against the estate to the probate court; MCL 600.846; MCL 700.1303; Security for costs; MCR 2.609(A), & 2.109(A)(1); Assignment to a specific judge; MCR 8.111; Grant of a trustee’s requested fees; MCL 700.7904; Hourly rate charged; Reasonableness of attorney fees; Pirgu v United Servs Auto Ass’n; Motion for disqualification; MCR 2.003(D); Refusal to refer the motion for review by the chief judge
The court held that the probate court erred in not considering appellant-Thomas Howe’s objections to appellee-PR’s fees and in refusing to refer his motion for disqualification to the chief judge for de novo review. But it rejected all his other challenges, including those as to (1) the denial of the PR’s petition to resign, (2) the order requiring Thomas to pay part of the costs of investigating a malpractice claim against the decedent’s (Beverly) medical providers, (3) the sale of Beverly’s personal property to pay the PR’s fees, (4) the transfer of his circuit court case against the estate to the probate court and its assignment to a specific judge, and (5) the payment of appellee-trustee’s requested fees. In these consolidated appeals, Thomas challenged several orders entered in these related cases concerning his mother’s estate. As to the PR’s requested fees, the probate court did not “address any of Thomas’s objections other than to acknowledge that they were made. Without any findings or an explanation from the probate court on the contested matters,” the court was not in a position to review the probate court’s ruling or determine whether it “erred by approving the contested fees.” As to the denial of Thomas’s motion to disqualify the probate court judge, “the phrase ‘shall refer the motion to the chief judge, who shall decide the motion de novo’ in” MCR 2.003(D) indicates “referral is mandatory upon a party’s request.” In his written motion for disqualification and at the disqualification hearing, Thomas “expressly requested” that the judge refer any denial of his motion to the chief judge for de novo review. Thus, the judge erred in disregarding that request. As to the order requiring “Thomas to pay the expense of further investigating a medical-malpractice claim, subject to” reimbursement from any wrongful death recovery, this “was a reasonable approach for balancing the parties’ competing interests.” The PR had conducted an investigation that reasonably supported his belief “a medical-malpractice action was not warranted and would not be beneficial to the estate.” The court also held that “the circuit court had the authority to transfer Thomas’s circuit court action to the probate court.” In addition, the interests of judicial economy favored transferring it to the judge “who was already presiding over actions involving the same estate and related probate matters.” The court remanded for further proceedings and findings as to Thomas’s objections to the PR’s fees and for the chief judge’s de novo review of his disqualification motion. Affirmed in all other respects.
Quiet title; MCL 600.2932; Title by warranty deed; MCL 565.151; Fee simple; Eastbrook Homes, Inc v Department of Treasury; Interpretation of a deed; Michigan Dep’t of Natural Res v Carmody-Lahti Real Estate, Inc; Equitable mortgage; Fraudulent misrepresentation; Titan Ins Co v Hyten; Principle that a plaintiff alleging fraud must state with particularity the circumstances constituting the fraud; MCR 2.112(B)(1)
The court held that the trial court properly found no cause of action with respect to the quiet title claim because plaintiff failed to establish that she acquired and possessed some interest, legal or equitable, in the property. It also held that plaintiff failed to establish her claim of fraud. The trial court issued a finding of no cause of action following a bench trial in this action in which plaintiff raised a number of claims against defendants relating to foreclosed property she previously owned, including a claim to quiet title to the property and a claim of fraud. On appeal, the court declined to disturb the trial court’s finding that the deed was not an equitable mortgage. “The warranty deed establishe[d] that the parties intended the transaction to operate as a conveyance—not as a loan.” While plaintiff claimed “the monthly option payments were evidence of loan ‘installment payments,’ she provided no evidence that the payments were anything more than her option obligations while being allowed to reside on the premises during the term of the option.” She failed to show “the trial court’s findings were erroneous or that the court made an error of law.” The court also disagreed with plaintiff that the trial court erred by finding she failed to prove her claim of fraud, noting that even if she could establish the other five elements of a fraud claim, the trial court did not err by finding she failed to show an injury. Plaintiff asserted “she suffered damages because she ‘took this offer knowing at some point she was going to exercise her option to repurchase the property.’” But she “was not deprived of her contractual right to exercise the option to purchase before it expired. Plaintiff did not exercise her option to purchase and it expired by its own terms. Plaintiff suffered no injury as a result of any purported fraud related to the option agreement.” Affirmed.