Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Motion for injunctive relief; Johnson v Michigan Minority Purchasing Council; Request for specific performance; Motion to compel arbitration; Uniform Arbitration Act (UAA); Judicial estoppel; Order compelling arbitration; Whether there was a binding agreement to arbitrate; Failure to consider plaintiff’s second motion for preliminary injunctive relief; Mootness
The court rejected defendant-VillageMD’s claim that plaintiffs’ arguments on appeal were moot, and also found that the trial court did not abuse its discretion by denying plaintiffs’ first motion for injunctive relief. Further, where the UAA “intended for trial courts to determine arbitrability in an expeditious manner,” the trial court did not abuse its discretion in expediting the briefing schedule. It also did not err by failing to apply judicial estoppel. Finally, while the court affirmed “the trial court’s decision that plaintiffs’ claims against nonsignatory defendants are subject to the arbitration clause,” it remanded for the trial court to consider “whether any of the claims are ‘expressly exempted from arbitration by the terms of the contract.’” Plaintiffs argued, among other things, that the trial court abused its discretion in denying their first motion for injunctive relief. The court concluded the trial court did not err in holding that an adequate remedy at law existed. Plaintiffs “failed to provide sufficient evidence to show they would suffer an injury ‘both certain and great,’ i.e., irreparable harm if a preliminary injunction did not issue[.]” The court noted that “it was plaintiffs’ burden to establish ‘that a preliminary injunction should be issued,’ . . . and ‘[t]he mere apprehension of future injury or damage cannot be the basis for injunctive relief.’” In seeking to show “irreparable harm would have occurred absent an injunction, plaintiffs cite provisions in the operating agreement and the management services agreement where the contracting parties agreed plaintiffs were not required to establish irreparable harm in order to obtain equitable relief. However, plaintiffs, as the moving parties, were required to ‘demonstrate a noncompensable injury for which there is no legal measurement of damages or for which damages cannot be determined with a sufficient degree of certainty.’” They did not do so and the court was “unaware of any binding authority providing that a contractual provision alone entitles plaintiffs to a finding of irreparable harm.” Additionally, the court failed “to see how plaintiffs would have been entitled to relief on their request for specific performance.” The court held that because “plaintiffs failed to present evidence of a contractual agreement between plaintiffs and the individual doctors who once worked for [defendant-]Envision Medical Services, plaintiffs were not entitled to that specific performance.” Affirmed but remanded.
Whether a city’s denial of a permit for a marijuana distribution facility violated plaintiff’s due process rights under the Fourteenth Amendment; Whether plaintiff established “a deprivation of property”; Whether the permit denial violated plaintiff’s equal protection rights
[This appeal was from the ED-MI.] The court affirmed summary judgment for defendant-City of Detroit as to plaintiff-Green Genie’s constitutional claims arising from the denial of a marijuana distribution center permit. It concluded plaintiff could not show it was deprived of a “protected property interest” to support its due process claim and that it did not establish its equal protection rights were violated through discrimination. The City denied the permit because the proposed center was in an area defined in the City code as a “drug-free zone,” a location “‘within 1,000 radial feet of the zoning lot’ containing any one of a number of sensitive places, including a school.” Plaintiff alleged the City erred in measuring the distance from a school, yet approved other sites for marijuana distribution that were within the zone. The court first considered whether plaintiff could establish the necessary deprivation of property to support a due process claim. It held that it could not where “a government benefit, such as a permit, is not a protected entitlement if officials ‘may grant or deny it in their discretion.’” Plaintiff argued the City’s code required it to transfer applications that met the general requirements to the “Review Committee” for consideration. But the court noted that “a plaintiff may not ‘assert a property right in government procedures themselves.’” In this case, plaintiff’s “request to be heard by a special committee is little more than an interest in ‘a procedure itself, without more.’” Thus, its due process claim was properly dismissed. As for its equal protection claim, plaintiff argued the City discriminated against it by intentionally treating it “differently from others similarly situated without any rational basis for the difference[,] . . . a class-of-one claim.” But to prevail on such a claim, plaintiff had to show “the City ‘intentionally treated’ Green Genie ‘differently from others similarly situated[.]’” Plaintiff was required to show “‘an inference’ of intentional discrimination ‘arising from the fact’ that the adverse treatment of Green Genie ‘was such a stark outlier from an otherwise consistent pattern of favorable treatment in similarly situated cases.’” Plaintiff claimed the City “used a different method of measurement when evaluating” its application than it used for other facilities. However, the City offered evidence it used the same method for all applicants and several other comparators were denied permits for the same reason. While other facilities were granted permits based on “‘sloppy administration’ of its permitting system and ‘misapplication of . . . local law’” this was not enough to establish an equal protection violation.
Breach of an employment contract; Nondisparagement & noncompetition clauses; Tortious interference with a business expectancy; Dalley v Dykema Gossett; The Uniform Trade Secrets Act; Misappropriation of a “trade secret”; MCL 445.1902(d); “Improper means” (MCL 445.1902(a)-(b)); “Theft”; Handling & retention of confidential information; Disclosure or use of the trade secret; Unjust enrichment; Opportunity to amend the pleadings; Futility; Unclean hands; Procedural due process right to be heard; Deciding a summary disposition motion without conducting a hearing; Distinguishing Al-Maliki v LaGrant
The court held that defendant was properly granted summary disposition of plaintiff-former employer’s unjust enrichment claim. But it also held that the trial court erred in granting defendant summary disposition of the breach of contract, misappropriation of a trade secret, and tortious interference with a business expectancy claims. Plaintiff “stated claims of breach of contract and misappropriation of a trade secret.” While it did not state a claim for tortious interference with a business expectancy, the court directed that it “be allowed to amend its complaint to cure the deficiencies in the pleadings” as to its breach of contract claim based on alleged violation of “the contract’s nondisparagement clause and the deficiencies in its tortious interference with a business expectancy claim.” But plaintiff was not entitled to relief on the ground the trial court did not conduct a hearing on defendant’s summary disposition motion. Plaintiff asserted defendant breached the parties’ employment contract “by improperly retaining and using a trade secret after” he left plaintiff’s employ. It first argued the trial court erred in granting him summary disposition of all the claims asserted in its original complaint. The court held that plaintiff successfully pled a breach of contract claim where it alleged that by not complying with its “requests to turn over the confidential information and materials regarding the data transfer process created and possessed by defendant,” he breached his contractual duties. But as to the tortious interference claim, among other things, “plaintiff did not identify a relationship with any particular business partner or a particular expectancy that was terminated” or successfully plead the damages element. As to its misappropriation of a trade secret claims, plaintiff stated a claim “based on the acquisition of a trade secret through breach of a duty to maintain secrecy.” But defendant was properly granted summary disposition of the unjust enrichment claim based on “the existence of a binding contract.” As to plaintiff’s first amended complaint, the court held that defendant was improperly granted summary disposition of the breach of contract claims related to the confidentiality and noncompetition provisions. And, in addition to again stating a claim for misappropriation of a trade secret via improper acquisition, plaintiff stated a claim for misappropriation “through the disclosure or use of a trade secret.” Affirmed in part, reversed in part, and remanded.
Sufficiency of the evidence; Accosting a minor; MCL 750.145a; “Grooming”; People v Kowalski; Ineffective assistance of counsel; Failure to move for a directed verdict; People v Riley; Failure to make a futile objection; Sentencing; Scoring of OV 10; “Exploitation of a vulnerable victim”; MCL 777.40(1); “Predatory conduct”; MCL 777.40(1)(a) & (3)(a); Scoring of OV 19; Interference with the administration of justice; MCL 777.49(c); Comparing People v Steele; Judgment of sentence (JOS)
The court held that the evidence was sufficient to support defendant’s conviction under MCL 750.145a, that he was not denied the effective assistance of counsel, and that there were no errors in sentencing. Thus, it affirmed his conviction and sentence, but remanded for the ministerial task of correcting his JOS. Defendant, who was 34 at the time, was convicted of accosting a child for immoral purposes, arising out of a secret relationship with the victim, his friends’ 12-year-old daughter. The trial court sentenced him to 20 to 48 months, with credit for time served. On appeal, the court rejected his argument as to the sufficiency of the evidence, finding there was “ample evidence for the trial court to find [he] was grooming the victim, i.e., gaining her trust and affection, and actively inducing or encouraging her to eventually engage in an immoral or sexual act with him.” It noted the victim was “in a vulnerable and depressed state, and defendant used the victim’s trust to manipulate and encourage her into a false relationship. This required only the general intent to encourage the victim, which the evidence” supported. Although he went “to great lengths to argue that he never intended to engage in any sexual conduct with the victim . . . his testimony was a matter of credibility for the trier of fact to decide,” and the court would not disturb such a finding. It also rejected his claim that his trial counsel was ineffective for failing to move for a directed verdict. “[G]iven that the evidence amply supported each element of the offense, defendant has failed to overcome the high burden of showing that his counsel was ineffective for failing to move for a directed verdict. Moreover, in light of the overwhelming evidence, defendant has failed to show a reasonable probability that the outcome would have been different.” Finally, the court rejected his contention that the trial court improperly assessed 15 points for OV 10 and 10 points for OV 19. As to OV 10, there was “predatory grooming activity in which defendant was preparing the victim for the subsequent offense of encouraging the victim to engage in immoral acts.” As to OV 19, “after the investigation began, defendant used a different phone, told the victim to store his phone number under a different name, and told the victim to delete their messages.” He also told her “they needed to ‘be discreet,’ to ‘play it safe,’ and to meet in secret at a nearby park. This conduct is analogous to the defendant’s conduct in Steele and the” OV 19 score was proper.
Request for a sentence reduction under the First Step Act; “Career offender” status under USSG § 4B1.1; The 18 USC § 3553(a) factors; Procedural reasonableness; Alleged miscalculation of defendant’s career-offender Guidelines range; Waiver of a procedural reasonableness challenge; “Invited error”
The court held that the district court did not err by declining to reduce defendant-Akridge’s sentence under the First Step Act where he conceded he was a “career offender,” and the questions he raised for the first time on appeal constituted “invited error” without a showing of “manifest injustice.” He was convicted of conspiring to distribute at least 50 grams of crack cocaine, possessing with intent to distribute crack cocaine, possessing a firearm in furtherance of a drug-trafficking crime, and FIP. The district court sentenced him as a career offender under § 4B1.1, based on his prior convictions for aggravated assault and cocaine possession, to 55 years. When he moved for resentencing under the First Step Act, his “counsel represented that his career-offender designation and corresponding offense level remained unchanged despite the recent legislation.” The district court concluded that because his Guidelines range remained the same, and in light of his post-sentencing misconduct and his criminal history, he was not entitled to a sentence reduction. Akridge argued that his sentence was procedurally unreasonable because the district court miscalculated his career-offender Guidelines range. He conceded he was a career offender but claimed the district court erred by using “the wrong instant offense for purposes of§ 4B1.1(a)(2) when recalculating his career-offender Guidelines range.” He asserted his conviction for “possessing cocaine with intent to distribute” (with a 30-year statutory maximum) should have been used instead of using his conviction for “conspiring to distribute cocaine” (which had a statutory maximum of life in prison). This would have lowered his total offense level and his career-offender Guidelines range. However, Akridge did not raise his concerns in the district court and “actually conceded that his original Guidelines range applied.” This raised the issue whether he “waived his procedural-reasonableness challenge.” The court concluded that even applying the invited error standard, “Akridge induced the errors he now challenges on appeal and failed to show ‘manifest injustice.’ As a result, his challenge fails under the invited-error doctrine. And even if we reviewed for plain error, Akridge would still fail to meet his burden.” The court found that he failed to establish “the district court committed any error, much less a plain one.” Affirmed.
Sentencing; Whether defendant was entitled to a reduced sentence under the “safety-valve” provision; 18 USC § 3553(f); USSG § 5C1.2
The court held that defendant-Reinberg was not entitled to a sentence reduction under the “safety-valve” provision. She pled guilty to possession with intent to distribute meth and was sentenced to 60 months in prison. The district court denied her motion for a sentence reduction under § 3553(f), finding that she failed to fulfill the condition of showing by the preponderance of the evidence that she had “disclosed everything she knew about her crime and the surrounding circumstances.” Reinberg was observed on video taken at her boyfriend’s home selling drugs to an informant. She also agreed to have her boyfriend contact the informant about the sale of a firearm. When Reinberg met with the government to disclose what she knew, her attorney advised her not to answer any questions about the firearm because she had not been charged with a firearm offense. The district court agreed with the government that because she failed to make full disclosure regarding the gun, she was not entitled to application of the safety-valve provision. On appeal, the court noted that the provision is only available to defendants who disclose “‘all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.'” The court agreed with the district court that the conversation on the tape indicated that the gun was present at the time of the video where Reinberg commented that the gun was “‘pretty.’” Also, she helped facilitate the future sale of the gun by telling the informant that she would have her boyfriend follow up on the sale. “The bottom line here is simple: no evidence, no safety valve.” Affirmed.
Personal protection insurance (PIP) benefits; Whether a healthcare provider has a right to seek payment of the balance due (the difference between what the provider billed & what the insurer paid); Centria Home Rehab, LLC v Philadelphia Indem Ins Co
For the reasons given in Centria Home Rehab, the court held that the trial court erred in granting plaintiff-insurer summary disposition in this dispute over payment for attendant care services under the No-Fault Act. From 2/17 through 6/21 plaintiff paid defendant-care provider “$582,722.40 for attendant care services, which was $233,462.53 less than what defendant had billed for its services.” When plaintiff sued alleging “it had mistakenly issued two payments to defendant and had overpaid defendant” by $8,375, defendant answered and filed a counterclaim for the balance due on its billings. Plaintiff successfully argued in the trial court that defendant did not have a right under the Act to seek payment of the difference between what defendant had billed and what plaintiff had paid. On appeal, the court noted that Centria Home Rehab presented the same legal question presented here. As it “stated there: ‘When a health care provider, acting under an assignment of rights from an insured or under a direct cause of action under MCL 500.3112, seeks to recover the balance due for PIP benefits from an insurer and there is a dispute over the reasonableness of the charges, the health care provider has standing to bring such a claim directly against the insurer.’” Reversed and remanded.
Failure to state a claim; Pleadings; Dalley v Dykema Gossett, PLLC; Leave to amend; MCR 2.116(I)(5); Wormsbacher v Phillip R Seaver Title Co, Inc; Futility; Court of Claims jurisdiction; MCL 600.6419; Absolute immunity for judges; Ginger v Wayne Circuit Judge; Malicious prosecution; Matthews v Blue Cross & Blue Shield; Governmental immunity; Misconduct in office; People v Carlin; Negligent hiring; Mueller v Brannigan Bros Rests & Taverns LLC; State of Michigan Legal Services Administration (LSA); Personal protection order (PPO); Department of Health & Human Services (DHHS)
The court held that the Court of Claims properly granted summary disposition for defendant-LSA because plaintiff failed to state a claim upon which relief could be granted, and did not abuse its discretion by denying as futile his motion to amend his complaint to add new parties. Plaintiff sued defendant expressing a variety of “grievances for things that allegedly occurred over a decade against circuit court judges, county and municipal officials, and state entities, stemming from the issuance of” PPOs against him, along with other civil and criminal matters. Apart from the caption, the complaint did not mention defendant. On appeal, the court rejected plaintiff’s argument that the Court of Claims improperly granted summary disposition for failure to state a claim against defendant, finding plaintiff “failed to demonstrate that any factual development could possibly justify a right of recovery against” defendant. It also rejected plaintiff’s claim that the Court of Claims abused its discretion by denying his motion to amend his complaint to add new parties. It concluded the Court of Claims “properly denied as futile amendment to add the local entities as defendants on the ground that it lacked jurisdiction over them.” It also did not “abuse its discretion in denying as futile amendment of plaintiff’s complaint to add the” circuit court as a defendant. And it “properly denied as futile amendment to add the DHHS as a defendant.” Likewise, amending the complaint “to add the Offices of the Governor and Attorney General as defendants” would have been futile. “Plaintiff failed to assert a cognizable claim against them and, regardless, governmental immunity applies.” Finally, plaintiff did not “sufficiently plead a negligent hiring claim in his proposed amended complaint, making amendment to add such a claim futile.” Affirmed.
Premises liability; The 2015 International Property Maintenance Code (IPMC) 106.1, 301.2, 302.3, 304.13, 304.15, & 702; The Michigan Occupational Safety & Health Act (MIOSHA), MCL 408.1009 & 408.1011; Distinguishing Wilson v BRK, Inc; Open & obvious
The court held that the case on which plaintiff relied, Wilson, was distinguishable and that “because the step was open and obvious and no unique circumstances existed rendering the threshold step unreasonably dangerous or effectively unavoidable,” the trial court properly granted summary disposition to defendant-Oakland Physicians Medical in this premises liability suit. As plaintiff, who worked at defendant’s hospital system, “was entering the urgent care’s ambulance entrance, she tripped and fell over the 3-inch elevated step at the threshold of the door, sustaining injuries to her right foot, knees, and head.” She claimed that the open and obvious doctrine “does not apply when a defendant violates statutes, codes, and ordinances.” Plaintiff “preserved her argument as it relates to violations of IPMC 106.1, 301.2; and 702, having specifically raised these alleged code violations in the trial court[.]” The court found it unnecessary to consider whether defendant violated other IPMC provisions she first raised on appeal. As to her reliance on MIOSHA provisions, “although plaintiff was an employee at the time her claim arose, plaintiff has not brought her claim as an employee, but instead as a third party.” The court found that because consideration of her “MIOSHA claim is not necessary to properly determine whether defendant is precluded from relying on the open and obvious doctrine, and no ‘compelling circumstances’ exist that would result in a ‘miscarriage of justice,’ we decline to consider plaintiff’s argument defendant violated MIOSHA.” As to plaintiff’s preserved arguments, her claims defendant could not “avail itself of the open and obvious doctrine because defendant violated” IPMC 106.1, 301.2, and 702, the court determined that Wilson was instructive. The “determinative testimony in Wilson was from the township’s building inspector, who had extensive, expert knowledge of the relevant statutes, codes, and ordinances.” The same could not be said of the evidence on which plaintiff relied, deposition testimony by two of defendant’s employees, who served “as defendant’s maintenance worker and security worker, respectively.” In addition, given that “there was a separate entrance to defendant’s urgent care without a threshold step, plaintiff’s argument can be distinguished from Wilson, where there was no alternative barrier-free entrance.” Affirmed.