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Administrative Law (1) Full Text Opinion e-Journal #: 75141 Case: Gun Owners of Am., Inc. v. Garland Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Batchelder and Murphy; Dissent – White Issues: The National Firearms Act; 26 USC § 5845(b); Whether an agency’s decision was entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council; Whether a “bump stock” may be properly classified as a machine gun under § 5845(b) Summary: [This appeal was from the WD-MI.] The court held that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference, and that a bump stock cannot be classified as a machine gun where “the phrase ‘the single function of the trigger’ refers to the mechanical process of the trigger, not the shooter’s pulling of the trigger.” Thus, it reversed the district court’s order denying plaintiffs an injunction as to implementation of the ATF’s rule classifying bump stocks as machine guns (the Final Rule). Plaintiffs-gun owners alleged that the Final Rule violated the Administrative Procedure Act, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Due Process Clause. They also moved to enjoin it. The district court, employing Chevron deference, concluded that they were unlikely to succeed on the merits and denied a preliminary injunction. The court first held that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference under Supreme Court or Sixth Circuit precedent. It reasoned that “the first rationale of Chevron deference—deferring to an agency’s expertise—is unconvincing because the agency’s technical specialized knowledge does not assist in making the value-laden judgment underlying our criminal laws. That judgment is reserved to the people through their duly elected representatives in Congress.” It also found that Chevron deference in the criminal context violated the separation of powers, conflicts with the rule of lenity, and gives rise to “fair-notice concerns.” The court next held that a bump stock may not be properly classified as a machine gun under § 5845(b). Acknowledging that “a bump stock increases a semiautomatic firearm’s rate of firing, possibly to a rate nearly equal to that of an automatic weapon[,]” it noted that “the trigger still must be released, reset, and pulled again before another shot may be fired. A bump stock may change how the pull of the trigger is accomplished, but it does not change the fact that the semiautomatic firearm shoots only one shot for each pull of the trigger.” It observed that Congress could amend that statute to include bump stocks, but that the courts may not do so. It then considered the remaining preliminary-injunction factors and concluded that plaintiffs would suffer irreparable harm without an injunction where they would be forced to surrender or destroy the devices. Further, they were likely to prevail on the merits and were entitled to an injunction, the scope of which should be briefed by the parties and decided by the district court. Full Text Opinion

Attorneys (2) Full Text Opinion This summary also appears under Malpractice e-Journal #: 75172 Case: Elizabeth A Silverman, PC v. Korn Court: Michigan Supreme Court ( Order ) Judges: McCormack, Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch Issues: Legal malpractice; “Attorney fee”; Omdahl v West Iron Cnty Bd of Educ; Fraser Trebilcock Davis & Dunlap PC v Boyce Trusts 2350 Summary: In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 73626 in the 8/25/20 edition) and remanded for reconsideration. Assuming the Court of Appeals was correct that “the term ‘attorney fee’ for purposes of a contract should not be treated differently than it must for purposes of a statute or a court rule as addressed in” Omdahl and Fraser Trebilcock, it still had to be determined whether the contract here entitled plaintiff-law firm “to recover the ‘attorney fees’ incurred by its member attorney for representing” the firm in this case. The court noted that the contract contained a provision stating “If Attorney has to commence litigation against [the defendant] to collect outstanding fees, [the defendant] shall be responsible for all fees, costs, and attorney fees for Attorney’s actual time expended.” The term attorney referred to the law firm. The court directed the Court of Appeals on remand to “consider the import, if any, of the emphasized language and whether the plain language of this provision allows the plaintiff to recover the ‘attorney fees’ requested in this case in a way that is not inconsistent with” the court’s holdings in Omdahl and Fraser Trebilcock. Full Text Opinion Full Text Opinion This summary also appears under Family Law e-Journal #: 75112 Case: Robert R. Ramm Revocable Trust v. Royer Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - O’Brien Servitto, and Gleicher Issues: Divorce; Request for attorney fees allowed under the parties’ Judgment of Divorce (JOD) Summary: The court affirmed the trial court’s order partially denying plaintiff’s request for attorney fees allowed under the parties’ JOD. The case was originally filed by Robert Ramm (defendant’s ex-husband), but he passed away before entry of the order appealed in this case. A revocable trust with Robert’s son, plaintiff-David, existed, with David as successor trustee. Plaintiff argued that the trial court wrongly limited his attorney fees, and that, under the terms of the JOD, the trial court should have awarded him all the attorney fees he incurred. He claimed that he was entitled “under the enforcement provision because he was ‘enforcing [defendant-ex-wife’s] obligations under the [J]udgment,’” but this was not true. While the JOD obligated her “to pay the expenses for the former marital home, plaintiff never sought to have defendant actually pay those expenses. Instead, plaintiff sought to have defendant reimburse the amount that Robert paid covering the expenses that were defendant’s responsibility.” No provision in the JOD obligated her “to repay Robert for expenses that he voluntarily covered.” By asking her “to do so, plaintiff was not seeking to enforce obligations imposed on defendant by the” JOD. Full Text Opinion

Civil Rights (1) Full Text Opinion This summary also appears under Employment & Labor Law e-Journal #: 75102 Case: Davis v. City of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Stephens, K.F. Kelly, and Riordan Issues: Age discrimination; The Civil Rights Act (MCL 37.2101 et seq); MCL 37. 2202(1)(a); The Age Discrimination in Employment Act (29 USC § 621 et seq); §§ 623(a)(1) & 631(a); Retaliation; MCL 37.2701(a); § 623(d); Causation; Motion for sanctions for failure to cooperate with discovery; MCR 2.313(B)(2)(c) Summary: Concluding that plaintiff-former employee did not show any grounds for sanctioning defendant-former employer under MCR 2.313(B)(2)(c), and that defendant was properly granted summary disposition on her age discrimination and retaliation claims, the court affirmed. She was terminated from her position as a 911 operator for defendant. As to sanctions, the court determined plaintiff did not show that witness-W (an administrative supervisor for defendant) lied during her depositions, and it was in any event unclear why a nonparty witness’s conduct “should be imputed to defendant, or why the trial court should order sanctions against defendant on the basis of the substance of deposition testimony that had not occurred when defendant moved for summary disposition.” As to plaintiff’s age discrimination claims, the court held that the trial court did not err in ruling she did not present any evidence showing she was qualified for her job. The trial court determined “the available evidence indicated that ‘from month three in her probationary period until the time she was fired’ plaintiff’s record was ‘replete with instances where she failed to follow instructions and seriously deprived’ callers of urgent medical care.” She admitted she made “errors that she could not logically explain. Plaintiff did not point to any evidence that she was actually proficient in the skills necessary to” fulfill the job functions at a level that “met defendant’s legitimate expectations.” As to her retaliation claim, the court held that the trial court did not err in ruling there was no evidence of a causal connection between her filing of an EEOC charge and her termination. In the absence of any evidence W knew about the charge when she recommended plaintiff’s termination, plaintiff could not show a causal connection between that recommendation and her protected activity. Further, W testified she only “recommended that plaintiff be terminated,” and plaintiff offered no evidence allowing an inference that the people who approved that recommendation “had notice of plaintiff’s EEOC charge, or that there was otherwise any relationship between” her filing of the charge and her termination. Full Text Opinion

Constitutional Law (1) Full Text Opinion This summary also appears under Election Law e-Journal #: 75173 Case: Graveline v. Benson Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Moore and Gilman; Dissent – Griffin Issues: Constitutionality of Michigan’s statutory election scheme; Qualifications for state office; MCL 168.590c(2), 168.544f, & 168.590b(4); Anderson v. Celebrezze; Burdick v. Takushi; Standing; Hollingsworth v. Perry; Mootness; Lawrence v. Blackwell Summary: [This appeal was from the ED-MI.] The court held that Michigan’s 30,000-signature requirement, geographic-distribution requirement, and filing deadline for inclusion on the state ballot, viewed in combination, unconstitutionally burden the First Amendment rights of independent candidates and their potential supporters. Plaintiffs-Graveline and his supporters alleged that Michigan’s election law requirements for getting a name placed on a ballot violated the federal constitution. The district court issued a preliminary injunction and later, after applying the Anderson-Burdick framework, granted plaintiffs summary judgment. It permanently enjoined Michigan from enforcing the statutes in combination against independent candidates running for statewide offices. The court first rejected defendants’ argument that plaintiffs lacked standing to pursue their claims where Graveline was placed on the 2018 ballot. Noting that standing is established at the time the complaint was filed, the court held that Hollingsworth did not overturn this precedent. It also held that the case was not moot where plaintiffs alleged “their injury directly resulted from Michigan’s current statutory scheme, [and] any future independent candidate attempting to run for statewide office in Michigan will suffer the same harm.” The court rejected defendants’ argument that Lawrence, a similar ballot-access case addressing mootness, was no longer good law. Applying the Anderson-Burdick framework, the court held that “Michigan’s system works to disadvantage independent candidates alone by requiring them to seek a significant number of signatures from an electorate that is not yet politically energized and to stake out positions in a race with yet undecided contours.” Thus, it concluded that “the combination of the 30,000-signature requirement, the geographic-distribution requirement, and the filing deadline imposes a severe burden on independent candidates.” It noted that “no independent candidate for statewide office has appeared on the Michigan ballot in” 30 years. It found that in addition to the burden imposed being severe, the provisions were not “narrowly tailored to protect compelling state interests,” such as ballot overcrowding, voter confusion, or frivolous candidates. As to the relief granted, the court upheld “the district court’s interim measure allowing independent candidates to qualify to be placed on a ballot for statewide office with a minimum of 12,000 signatures.” It further determined “that the district court did not abuse its discretion by declining to amend its findings.” Affirmed. Full Text Opinion

Courts (1) Full Text Opinion This summary also appears under Debtor/Creditor e-Journal #: 75077 Case: Jode Inv., LLC v. Burning Tree Props., LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Cavanagh, and Servitto Issues: Whether the trial court abused its discretion by awarding postjudgment interest pursuant to its equitable authority; Cyranoski v Keenan; Ashbrenner v Ashbrenner; Accrual date; The clean-hands doctrine; Rose v National Auction Group, Inc; McFerren v B & B Inv Group Summary: The court held that the trial court did not abuse its discretion by awarding postjudgment interest pursuant to its equitable authority or by using the date of its opinion and order as the interest accrual date. Defendants initiated garnishment proceedings after their judgment against plaintiffs remained unpaid. Plaintiffs claimed the writs were invalid because they included postjudgment interest. In a prior appeal, the court vacated the writs, finding they were invalid because they included postjudgment interest which should not have been awarded under MCL 600.6013(1). The Supreme Court remanded. On remand, the court first held that the trial court did not abuse its discretion by awarding postjudgment interest pursuant to its equitable authority. “Just as in the Ashbrenner case, if plaintiffs were not required to pay postjudgment interest they would receive a windfall and they would be rewarded for failing to promptly comply with the trial court’s order of judgment. During the time that plaintiffs retained the money that was due and owing to defendants, plaintiffs derived the benefit of that money while depriving defendants of the money to which they were rightfully entitled.” The court next held that the trial court did not abuse its discretion by selecting its opinion and order date as the accrual date. It agreed with the trial court that “while plaintiffs should not be incentivized to not satisfy the court’s judgment, defendants should also not be rewarded for their delay in seeking postjudgment interest.” In addition, to use an earlier date “would force plaintiffs to pay interest on an amount that they were not even required to pay,” given that defendants had “sought garnishment of plaintiffs’ bank accounts in amounts to which they were not entitled.” Affirmed. Full Text Opinion

Criminal Law (3) Full Text Opinion e-Journal #: 75078 Case: People v. Ali Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Swartzle, Markey, and Tukel Issues: Failure to file a signed felony information; MCL 767.76; Ineffective assistance of counsel; Limitations on the scope of a Ginther hearing; Prosecutorial misconduct; Vouching; Reference to defendant’s probationary status; Motion for a mistrial; Unresponsive, volunteered answer to a proper question; Judicial bias & misconduct claims; People v Biddles; MRE 611(a) Summary: Noting that defendant’s failure to meet MCL 767.76’s objection prerequisite precluded reversal based on the prosecution’s failure to file a signed felony information, the court added that the prosecution filed an amended information before trial that was signed and that he was well aware of the charges against him before trial. As to the scope of the Ginther hearing, there was no need for it to encompass the issue of trial counsel’s cross-examination of the victim (J), and the court found that counsel’s performance in that regard was not deficient. Finally, it rejected defendant’s prosecutorial and judicial misconduct claims, and held that the trial court did not abuse its discretion in denying his motion for a mistrial. He was convicted of CSC I and assault with intent to commit CSC involving penetration. The court noted that not only did he “not object to the prosecution’s failure to sign the information before the trial began or after it ended[,]” he failed to even raise the issue until he moved for a new trial. MCL 767.76 (which applies equally to informations as well as indictments) provides that no conviction shall “be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made” before the start of trial “or at such time thereafter as the court shall in its discretion permit.” Thus, under this statute, the signature defect in the information’s form could not “be the basis to set aside or reverse defendant’s convictions, jurisdictionally or otherwise.” The court also concluded that the prosecution did not vouch for its witnesses’ credibility, and “did not intentionally elicit the reference to defendant’s probationary status.” The record indicated that the prosecutor was only “trying to elicit information about the steps the detective took to investigate” J’s allegations and nothing suggested she “knew in advance that the detective would give the unresponsive answer or that the prosecutor conspired with or encouraged the detective to so testify.” In addition, while the detective’s response to the proper questioning “was plainly improper, it did not result in the denial of a fair trial and did not require the granting of a mistrial.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 75121 Case: People v. Jones Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - O’Brien, Servitto, and Gleicher Issues: "Carry” for purposes of CCW; MCL 750.227(2); Possession; People v Butler; People v Green Summary: Holding that there was no ground to revisit the well-established interpretation of MCL 750.227(2), the court affirmed defendant-Jones’s conviction of CCW. He urged the court to adopt a new definition of the term “carry,” which would negate his criminal liability. He contended that he was not “carrying” the weapon at the time of his arrest. He asked that the court “ignore the meaning of this term as developed through caselaw in favor of a dictionary definition.” He relied “on excerpts from several cases to establish a chain of reasoning to support this argument, but the argument remains spurious at best.” The court noted that defendant “was aware a loaded handgun was in his lap, giving him easy access to the weapon, and he was sitting in his own personal vehicle. Jones’s conduct clearly met a majority of the factors outlined in Green.” However, he argued that “the definition of ‘carry’ should be modified to exclude possession of a weapon in a nonmoving vehicle. The suggested change in definition would have to substantially alter the current definition of ‘carry’ for Jones to be found innocent by some metric.” In addition, his “definitional theory harbors a logical flaw. If the statute were interpreted to require transportation of a pistol at the time of arrest, we question how an arrest could ever be made. The pistol in Jones’s lap was in motion, along with Jones, when Jones drove the car into the driveway. Even were we to adopt a definition of ‘carry’ integrating the idea of ‘transport,’ the evidence would support” his conviction. Full Text Opinion Full Text Opinion e-Journal #: 75118 Case: People v. Leek Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Stephens, K.F. Kelly, and Riordan Issues: Sufficiency of the evidence; Aggravated indecent exposure; MCL 750.335a(2)(b) & (1); Credibility Summary: Holding that there was sufficient evidence to support defendant’s aggravated indecent exposure conviction, the court affirmed. The trial court in his bench trial “made a credibility determination and found the complainant’s version of the underlying facts sufficiently persuasive to meet the criminal burden of proof.” It made factual findings that “defendant first exposed and then fondled his genitalia in RS’s presence for the purpose of sexual gratification. Thus, MCL 750.335a(1) was proven beyond a reasonable doubt. Defendant’s exposure of his penis certainly qualifies as ‘the exhibition of those private parts of the person which instinctive modesty, human decency or natural self-respect requires shall be customarily kept covered in the presence of others.’” RS testified and the trial court determined that defendant purposefully approached RS while RS “was showering, then chose the shower stall closest to RS despite the fact that no other men were present in the shower area. The trial court reasonably concluded that these facts suggest defendant intentionally and knowingly made an open and indecent exposure of his penis in violation of MCL 750.335a(1).” The court rejected his argument, which was “made without caselaw support, that there is a requirement that the conduct underlying aggravated indecent exposure occur over a certain temporal period. The credibility determination rests with the fact-finder, and we must defer to the fact-finder’s conclusion.” Here, the trial court found R’s “testimony that defendant was masturbating to be credible in light of the evidence presented.” Full Text Opinion

Debtor/Creditor (1) Full Text Opinion This summary also appears under Courts e-Journal #: 75077 Case: Jode Inv., LLC v. Burning Tree Props., LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Cavanagh, and Servitto Issues: Whether the trial court abused its discretion by awarding postjudgment interest pursuant to its equitable authority; Cyranoski v Keenan; Ashbrenner v Ashbrenner; Accrual date; The clean-hands doctrine; Rose v National Auction Group, Inc; McFerren v B & B Inv Group Summary: The court held that the trial court did not abuse its discretion by awarding postjudgment interest pursuant to its equitable authority or by using the date of its opinion and order as the interest accrual date. Defendants initiated garnishment proceedings after their judgment against plaintiffs remained unpaid. Plaintiffs claimed the writs were invalid because they included postjudgment interest. In a prior appeal, the court vacated the writs, finding they were invalid because they included postjudgment interest which should not have been awarded under MCL 600.6013(1). The Supreme Court remanded. On remand, the court first held that the trial court did not abuse its discretion by awarding postjudgment interest pursuant to its equitable authority. “Just as in the Ashbrenner case, if plaintiffs were not required to pay postjudgment interest they would receive a windfall and they would be rewarded for failing to promptly comply with the trial court’s order of judgment. During the time that plaintiffs retained the money that was due and owing to defendants, plaintiffs derived the benefit of that money while depriving defendants of the money to which they were rightfully entitled.” The court next held that the trial court did not abuse its discretion by selecting its opinion and order date as the accrual date. It agreed with the trial court that “while plaintiffs should not be incentivized to not satisfy the court’s judgment, defendants should also not be rewarded for their delay in seeking postjudgment interest.” In addition, to use an earlier date “would force plaintiffs to pay interest on an amount that they were not even required to pay,” given that defendants had “sought garnishment of plaintiffs’ bank accounts in amounts to which they were not entitled.” Affirmed. Full Text Opinion

Election Law (2) Full Text Opinion e-Journal #: 75133 Case: Jobs for Oakland v. Turner Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – O’Brien, Servitto, and Gleicher Issues: Challenge to the rejection of a ballot initiative; Mootness; Exception to the mootness doctrine; Jobs for Oakland (JFO) Summary: Holding that plaintiff-JFO’s appellate challenge was moot as the election had passed, and no exception warranted the court’s review of this moot issue, it affirmed the circuit court’s denial of JFO’s request for a writ of mandamus compelling defendant-township clerk to certify a ballot initiative for the 11/20 election. There was nothing the court could do to place JFO’s initiative on the 11/20 ballot. “The election has come and gone.” Thus, the appeal was “plainly moot.” In addition, even assuming that the ballot initiative was “publicly significant” and that JFO’s challenges were likely to recur, the court’s “review would be inappropriate because the issue is not likely to evade judicial review.” It noted that it had “already reviewed identical appellate challenges before” the 11/20 election. Full Text Opinion Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 75173 Case: Graveline v. Benson Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Moore and Gilman; Dissent – Griffin Issues: Constitutionality of Michigan’s statutory election scheme; Qualifications for state office; MCL 168.590c(2), 168.544f, & 168.590b(4); Anderson v. Celebrezze; Burdick v. Takushi; Standing; Hollingsworth v. Perry; Mootness; Lawrence v. Blackwell Summary: [This appeal was from the ED-MI.] The court held that Michigan’s 30,000-signature requirement, geographic-distribution requirement, and filing deadline for inclusion on the state ballot, viewed in combination, unconstitutionally burden the First Amendment rights of independent candidates and their potential supporters. Plaintiffs-Graveline and his supporters alleged that Michigan’s election law requirements for getting a name placed on a ballot violated the federal constitution. The district court issued a preliminary injunction and later, after applying the Anderson-Burdick framework, granted plaintiffs summary judgment. It permanently enjoined Michigan from enforcing the statutes in combination against independent candidates running for statewide offices. The court first rejected defendants’ argument that plaintiffs lacked standing to pursue their claims where Graveline was placed on the 2018 ballot. Noting that standing is established at the time the complaint was filed, the court held that Hollingsworth did not overturn this precedent. It also held that the case was not moot where plaintiffs alleged “their injury directly resulted from Michigan’s current statutory scheme, [and] any future independent candidate attempting to run for statewide office in Michigan will suffer the same harm.” The court rejected defendants’ argument that Lawrence, a similar ballot-access case addressing mootness, was no longer good law. Applying the Anderson-Burdick framework, the court held that “Michigan’s system works to disadvantage independent candidates alone by requiring them to seek a significant number of signatures from an electorate that is not yet politically energized and to stake out positions in a race with yet undecided contours.” Thus, it concluded that “the combination of the 30,000-signature requirement, the geographic-distribution requirement, and the filing deadline imposes a severe burden on independent candidates.” It noted that “no independent candidate for statewide office has appeared on the Michigan ballot in” 30 years. It found that in addition to the burden imposed being severe, the provisions were not “narrowly tailored to protect compelling state interests,” such as ballot overcrowding, voter confusion, or frivolous candidates. As to the relief granted, the court upheld “the district court’s interim measure allowing independent candidates to qualify to be placed on a ballot for statewide office with a minimum of 12,000 signatures.” It further determined “that the district court did not abuse its discretion by declining to amend its findings.” Affirmed. Full Text Opinion

Employment & Labor Law (1) Full Text Opinion This summary also appears under Civil Rights e-Journal #: 75102 Case: Davis v. City of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Stephens, K.F. Kelly, and Riordan Issues: Age discrimination; The Civil Rights Act (MCL 37.2101 et seq); MCL 37. 2202(1)(a); The Age Discrimination in Employment Act (29 USC § 621 et seq); §§ 623(a)(1) & 631(a); Retaliation; MCL 37.2701(a); § 623(d); Causation; Motion for sanctions for failure to cooperate with discovery; MCR 2.313(B)(2)(c) Summary: Concluding that plaintiff-former employee did not show any grounds for sanctioning defendant-former employer under MCR 2.313(B)(2)(c), and that defendant was properly granted summary disposition on her age discrimination and retaliation claims, the court affirmed. She was terminated from her position as a 911 operator for defendant. As to sanctions, the court determined plaintiff did not show that witness-W (an administrative supervisor for defendant) lied during her depositions, and it was in any event unclear why a nonparty witness’s conduct “should be imputed to defendant, or why the trial court should order sanctions against defendant on the basis of the substance of deposition testimony that had not occurred when defendant moved for summary disposition.” As to plaintiff’s age discrimination claims, the court held that the trial court did not err in ruling she did not present any evidence showing she was qualified for her job. The trial court determined “the available evidence indicated that ‘from month three in her probationary period until the time she was fired’ plaintiff’s record was ‘replete with instances where she failed to follow instructions and seriously deprived’ callers of urgent medical care.” She admitted she made “errors that she could not logically explain. Plaintiff did not point to any evidence that she was actually proficient in the skills necessary to” fulfill the job functions at a level that “met defendant’s legitimate expectations.” As to her retaliation claim, the court held that the trial court did not err in ruling there was no evidence of a causal connection between her filing of an EEOC charge and her termination. In the absence of any evidence W knew about the charge when she recommended plaintiff’s termination, plaintiff could not show a causal connection between that recommendation and her protected activity. Further, W testified she only “recommended that plaintiff be terminated,” and plaintiff offered no evidence allowing an inference that the people who approved that recommendation “had notice of plaintiff’s EEOC charge, or that there was otherwise any relationship between” her filing of the charge and her termination. Full Text Opinion

Family Law (2) Full Text Opinion This summary also appears under Attorneys e-Journal #: 75112 Case: Robert R. Ramm Revocable Trust v. Royer Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - O’Brien Servitto, and Gleicher Issues: Divorce; Request for attorney fees allowed under the parties’ Judgment of Divorce (JOD) Summary: The court affirmed the trial court’s order partially denying plaintiff’s request for attorney fees allowed under the parties’ JOD. The case was originally filed by Robert Ramm (defendant’s ex-husband), but he passed away before entry of the order appealed in this case. A revocable trust with Robert’s son, plaintiff-David, existed, with David as successor trustee. Plaintiff argued that the trial court wrongly limited his attorney fees, and that, under the terms of the JOD, the trial court should have awarded him all the attorney fees he incurred. He claimed that he was entitled “under the enforcement provision because he was ‘enforcing [defendant-ex-wife’s] obligations under the [J]udgment,’” but this was not true. While the JOD obligated her “to pay the expenses for the former marital home, plaintiff never sought to have defendant actually pay those expenses. Instead, plaintiff sought to have defendant reimburse the amount that Robert paid covering the expenses that were defendant’s responsibility.” No provision in the JOD obligated her “to repay Robert for expenses that he voluntarily covered.” By asking her “to do so, plaintiff was not seeking to enforce obligations imposed on defendant by the” JOD. Full Text Opinion Full Text Opinion e-Journal #: 75130 Case: Shook v. Mikulenas Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Borrello, Beckering, and Swartzle Issues: Application of the appropriate standard to a request for grandparenting time; Zawilanski v Marshall; MCL 722.27b(1)(d); MCL 722.27b(4)(b); MCL 722.27b(6)(a)-(j); Best-interests determination Summary: Holding that the trial court misstated the standard that applied to a request for grandparenting time and failed to make a best-interests determination, the court vacated the trial court’s order awarding intervening plaintiff-Thomas (the paternal grandmother) grandparenting time with defendant-mother’s two children and remanded. The trial court never questioned defendant’s fitness as a parent, and nothing in the record suggested that she was anything but a fit parent. Thomas herself recognized that defendant was “a good mom” who worked hard to provide for her children. Thus, it was presumed that defendant’s decision not to allow her children to visit Thomas did “not create a substantial risk of harm to the children’s mental, physical, or emotional health. As a result, Thomas had the burden to rebut by a preponderance of the evidence the fit-parent presumption that defendant’s decision to deny or limit her time with the children did not create a substantial risk of harm to the children’s mental, physical, or emotional health.” On appeal, defendant argued that the trial court committed a clear legal error as to “the issue of whether Thomas had rebutted the presumption in favor of defendant. The trial court misstated the appropriate standard to apply when a grandparent has to rebut the presumption that a fit parent’s decision to deny them grandparenting time.” The court could not “merely assume that this was an instance of scrivener’s error, as the standard was misstated in both the trial court’s statement of the law in its paragraph 1 and its application of the law to the facts of this case. In addition, the trial court omitted any discussion on the record of the relevant best-interest factors.” Thus, it committed a clear legal error. The court took no position on the merits of Thomas’ request for grandparenting time. Full Text Opinion

Insurance (1) Full Text Opinion e-Journal #: 75080 Case: Roskamp v. Fremont Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Boonstra, Gadola, and Tukel Issues: Insurer priority dispute under the No-Fault Act (MCL 500.3101 et seq); MCL 500.3114; Rescission; Distinguishing Burton v Wolverine Mut Ins Co; Fraudulent misrepresentation; Titan Ins Co v Hyten; Materiality; Silent fraud; Alfieri v Bertorelli; Fraudulent concealment; US Fid & Guar Co v Black; Innocent misrepresentation; Roberts v Saffell; Reliance; Century Premier Ins Co v Zufelt; Validity of an anti-fraud provision; Meemic Ins Co v Fortson; Work-loss benefits; MCL 500.3107a; “Temporarily unemployed”; Frazier v Allstate Ins Co Summary: The court held that defendant-insurer (Fremont) was not precluded from seeking rescission of its policy with plaintiff’s girlfriend (D) in this insurer priority dispute. It also held that the trial court did not err by denying defendant-Allstate’s motion for partial summary disposition regarding work-loss benefits. Plaintiff sued Fremont for injuries he sustained in a car accident, arguing he was insured under D’s policy, which he claimed Fremont improperly rescinded. He then added Allstate, which was assigned his claim by the Michigan Assigned Claims Plan. Allstate cross-claimed against Fremont, asserting Fremont was higher in priority. The trial court granted summary disposition for Allstate in defendants’ priority dispute. On appeal, the court agreed with Fremont that the notice of nonrenewal it issued to D did not bar its ability to seek rescission of her policy. It held Fremont was not precluded from seeking rescission “merely because it first advised [D] that it would not renew her policy. However, whether Fremont in this case otherwise should be permitted by the trial court to rescind the policy was not resolved by the trial court.” As such, it found remand was necessary “for determination in the first instance whether [D] engaged in fraud or misrepresentation that would support rescission of the policy, and if so, whether Fremont is entitled to rescind its policy.” The court rejected Allstate’s argument that the trial court erred by ruling there were genuine issues of material fact as to whether plaintiff “was ‘temporarily unemployed’ under MCL 500.3107, thereby making him eligible for work-loss benefits.” It found the evidence “was sufficient to establish a genuine issue of material fact concerning whether [plaintiff] was temporarily unemployed under the statute.” Affirmed in part, reversed in part, and remanded. Full Text Opinion

Malpractice (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 75172 Case: Elizabeth A Silverman, PC v. Korn Court: Michigan Supreme Court ( Order ) Judges: McCormack, Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch Issues: Legal malpractice; “Attorney fee”; Omdahl v West Iron Cnty Bd of Educ; Fraser Trebilcock Davis & Dunlap PC v Boyce Trusts 2350 Summary: In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 73626 in the 8/25/20 edition) and remanded for reconsideration. Assuming the Court of Appeals was correct that “the term ‘attorney fee’ for purposes of a contract should not be treated differently than it must for purposes of a statute or a court rule as addressed in” Omdahl and Fraser Trebilcock, it still had to be determined whether the contract here entitled plaintiff-law firm “to recover the ‘attorney fees’ incurred by its member attorney for representing” the firm in this case. The court noted that the contract contained a provision stating “If Attorney has to commence litigation against [the defendant] to collect outstanding fees, [the defendant] shall be responsible for all fees, costs, and attorney fees for Attorney’s actual time expended.” The term attorney referred to the law firm. The court directed the Court of Appeals on remand to “consider the import, if any, of the emphasized language and whether the plain language of this provision allows the plaintiff to recover the ‘attorney fees’ requested in this case in a way that is not inconsistent with” the court’s holdings in Omdahl and Fraser Trebilcock. Full Text Opinion

Municipal (1) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 75092 Case: Henderson v. City of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – O’Brien, Servitto, and Gleicher Issues: Immunity under the Government Tort Liability Act (MCL 691.1401 et seq); MCL 691.1407(1); The motor vehicle exception; MCL 691.1405; Whether plaintiff-driver committed a lane violation; MCL 257.642(l)(a); Whether defendant-bus driver was speeding; MCL 257.627(1); Negligence; Latham v National Car Rental Sys, Inc; Speeding as prima facie evidence of negligence; Patterson v Wagner; A driver’s duty; Zarzecki v Hatch; Whether plaintiff was more than 50% at fault; MCL 500.3135(2)(b); Violation of a statutorily imposed duty as a prima facie case of negligence; McKinney v Anderson; Right of way; McGuire v Rabaut Summary: Holding that a reasonable juror could find that plaintiff-driver was not more than 50% at fault for the accident, “despite that he negligently pulled into” defendant-city bus driver’s (Lauderdale) lane, the court affirmed the trial court’s denial of defendant-city’s summary disposition motion. Plaintiff sued defendant and Lauderdale for injuries he sustained when the bus Lauderdale was driving collided with his vehicle as he was backing out of a parking space. Finding issues remained as to whether plaintiff committed a lane violation, or whether Lauderdale was speeding, the trial court denied defendant’s motion for summary disposition. On appeal, the court rejected defendant’s argument that the trial court’s ruling was erroneous, finding that “testimony that Lauderdale was exceeding the speed limit before the accident was sufficient to create a question of fact whether Lauderdale was negligent,” and thus whether the motor-vehicle exception to governmental immunity applied. But an issue remained as to whether plaintiff was more than 50% at fault. It found that “plaintiff was negligent by moving into Lauderdale’s lane without first ascertaining that it was safe to do so, resulting in the accident.” And in light of his negligence, he “was at least partially at fault for the accident.” However, a jury could also “reasonably conclude that Lauderdale’s driving in excess of the posted speed limit significantly contributed to the accident.” And while she “did not have a duty to anticipate plaintiff entering her lane when it was not clear to do so, . . . she did have a duty to attempt to avoid the collision after it became clear that plaintiff was going to enter her lane.” Full Text Opinion

Native American Law (1) Full Text Opinion This summary also appears under Termination of Parental Rights e-Journal #: 75129 Case: In re Cottelit/Payment Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Borrello, Beckering, and Swartzle Issues: The Indian Child Welfare Act (25 USC § 1901 et seq) & the Michigan Indian Family Preservation Act (MCL 712B.1 et seq); Qualified expert witness testimony; § 1912(f); MCL 712B.15(4) & 17; Guidance as to the implementation of 25 CFR § 23.122; “Harm”; Causal connection; §§ 23.121(c) & (d); Children’s best interests; In re White; U.S. Department of the Interior Bureau of Indian Affairs (BIA) Summary: The court concluded that respondent-father failed to show any error in allowing a witness (G) to testify as a qualified expert when she had not interviewed the children or the family. It also held that the trial court did not clearly err in determining “beyond a reasonable doubt that the children were likely to suffer serious emotional or physical damage if in respondent’s custody.” Finally, the trial court did not make a mistake in finding that a preponderance of the evidence showed termination was in their best interests. He appeared to assert that G had “to meet with the children and the family and that her failure to do so” meant that her testimony had no evidentiary weight. But the court noted that the BIA guideline on which he relied contained “no requirement that the qualified expert meet with the child or family. Additionally, the guidelines specifically state” they do no impose binding requirements. The court further noted that G testified “she was familiar with the case through her review of the files and reports, as well as her attendance at various hearings in the matter.” To the extent her failure to personally meet with the children or family might have impacted her credibility, the court deferred to the trial court as it was in a superior position to make that assessment. Respondent next argued “there was no direct evidence of a causal connection between the conditions in the home (which were respondent’s anger and substance-abuse issues) and any harm suffered by the children such that the trial court erred by finding beyond a reasonable doubt that” his continued custody was likely to result in serious emotional or physical damage to them. Among other things, the court noted there was testimony that the twins had not been in his “care and custody for approximately three years, that he had failed to rectify his substance abuse issues throughout the case, and that he was currently incarcerated as the result of an incident where he committed a physical assault with a table while he was intoxicated that injured two” people. It concluded that to the extent he contended “the trial court could not consider his substance abuse because it is a factor listed in” § 23.121(d), this argument failed “because the trial court did not base its decision solely on the mere fact that respondent abused substances.” Rather, it considered the effect of his substance abuse on his ability to parent. Affirmed. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Municipal e-Journal #: 75092 Case: Henderson v. City of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – O’Brien, Servitto, and Gleicher Issues: Immunity under the Government Tort Liability Act (MCL 691.1401 et seq); MCL 691.1407(1); The motor vehicle exception; MCL 691.1405; Whether plaintiff-driver committed a lane violation; MCL 257.642(l)(a); Whether defendant-bus driver was speeding; MCL 257.627(1); Negligence; Latham v National Car Rental Sys, Inc; Speeding as prima facie evidence of negligence; Patterson v Wagner; A driver’s duty; Zarzecki v Hatch; Whether plaintiff was more than 50% at fault; MCL 500.3135(2)(b); Violation of a statutorily imposed duty as a prima facie case of negligence; McKinney v Anderson; Right of way; McGuire v Rabaut Summary: Holding that a reasonable juror could find that plaintiff-driver was not more than 50% at fault for the accident, “despite that he negligently pulled into” defendant-city bus driver’s (Lauderdale) lane, the court affirmed the trial court’s denial of defendant-city’s summary disposition motion. Plaintiff sued defendant and Lauderdale for injuries he sustained when the bus Lauderdale was driving collided with his vehicle as he was backing out of a parking space. Finding issues remained as to whether plaintiff committed a lane violation, or whether Lauderdale was speeding, the trial court denied defendant’s motion for summary disposition. On appeal, the court rejected defendant’s argument that the trial court’s ruling was erroneous, finding that “testimony that Lauderdale was exceeding the speed limit before the accident was sufficient to create a question of fact whether Lauderdale was negligent,” and thus whether the motor-vehicle exception to governmental immunity applied. But an issue remained as to whether plaintiff was more than 50% at fault. It found that “plaintiff was negligent by moving into Lauderdale’s lane without first ascertaining that it was safe to do so, resulting in the accident.” And in light of his negligence, he “was at least partially at fault for the accident.” However, a jury could also “reasonably conclude that Lauderdale’s driving in excess of the posted speed limit significantly contributed to the accident.” And while she “did not have a duty to anticipate plaintiff entering her lane when it was not clear to do so, . . . she did have a duty to attempt to avoid the collision after it became clear that plaintiff was going to enter her lane.” Full Text Opinion

Termination of Parental Rights (2) Full Text Opinion e-Journal #: 75117 Case: In re Bell Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Stephens, K.F. Kelly, and Riordan Issues: Termination under § 19b(3)(a)(ii); Children’s best interests; MCL 712A.19b(5); Ineffective assistance of counsel; In re Simon; People v Fisher; Claim that counsel should have been removed for gross incompetence; People v Arquette Summary: Holding that clear and convincing evidence established § (a)(ii), that termination was in the children’s best interests, and that respondent-father failed to show he was denied the effective assistance of counsel, the court affirmed the order terminating his parental rights. The evidence showed, and he admitted, “he did not have contact with his children after 2017, had not made any attempt to maintain contact with them, and had not contributed to their support in any way. Thus, there was clear and convincing evidence” supporting the trial court’s finding that he “deserted his children for 91 or more days and had not sought custody during that period.” The trial court further found “that the nature and severity of the sexual abuse, respondent’s denial and blaming of others, and his abandonment of his children by failing to provide care, support, or to even visit” showed he posed a danger to them. The evidence revealed he did not make any effort “to provide for their mental or physical well-being. He failed to take any responsibility for, and continued to deny, any involvement in the abuse. The children needed permanency, stability, and safety.” The court concluded “the trial court did not clearly err in finding by a preponderance of the evidence that termination” was clearly in their best interests. Finally, it rejected his ineffective assistance of counsel claims. He relied on Fisher in asserting that his attorney was ineffective for not objecting to “admission of the forensic interview DVD and by advising the trial court that there was no evidence to contradict” the abuse claims made by one of the children when respondent denied the claims. But regardless of the DVD’s content, counsel informed “the trial court that respondent denied committing sexual abuse.” Further, given the expert witness testimony and the trial court’s findings, he could not show “an objection to the admission of the DVD on any basis would have precluded its admission into evidence.” His other assertions of ineffective assistance also failed, and the court determined that the record did not reveal any “instances of gross incompetence by respondent’s attorney that would have justified his removal by the trial court.” Full Text Opinion Full Text Opinion This summary also appears under Native American Law e-Journal #: 75129 Case: In re Cottelit/Payment Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Borrello, Beckering, and Swartzle Issues: The Indian Child Welfare Act (25 USC § 1901 et seq) & the Michigan Indian Family Preservation Act (MCL 712B.1 et seq); Qualified expert witness testimony; § 1912(f); MCL 712B.15(4) & 17; Guidance as to the implementation of 25 CFR § 23.122; “Harm”; Causal connection; §§ 23.121(c) & (d); Children’s best interests; In re White; U.S. Department of the Interior Bureau of Indian Affairs (BIA) Summary: The court concluded that respondent-father failed to show any error in allowing a witness (G) to testify as a qualified expert when she had not interviewed the children or the family. It also held that the trial court did not clearly err in determining “beyond a reasonable doubt that the children were likely to suffer serious emotional or physical damage if in respondent’s custody.” Finally, the trial court did not make a mistake in finding that a preponderance of the evidence showed termination was in their best interests. He appeared to assert that G had “to meet with the children and the family and that her failure to do so” meant that her testimony had no evidentiary weight. But the court noted that the BIA guideline on which he relied contained “no requirement that the qualified expert meet with the child or family. Additionally, the guidelines specifically state” they do no impose binding requirements. The court further noted that G testified “she was familiar with the case through her review of the files and reports, as well as her attendance at various hearings in the matter.” To the extent her failure to personally meet with the children or family might have impacted her credibility, the court deferred to the trial court as it was in a superior position to make that assessment. Respondent next argued “there was no direct evidence of a causal connection between the conditions in the home (which were respondent’s anger and substance-abuse issues) and any harm suffered by the children such that the trial court erred by finding beyond a reasonable doubt that” his continued custody was likely to result in serious emotional or physical damage to them. Among other things, the court noted there was testimony that the twins had not been in his “care and custody for approximately three years, that he had failed to rectify his substance abuse issues throughout the case, and that he was currently incarcerated as the result of an incident where he committed a physical assault with a table while he was intoxicated that injured two” people. It concluded that to the extent he contended “the trial court could not consider his substance abuse because it is a factor listed in” § 23.121(d), this argument failed “because the trial court did not base its decision solely on the mere fact that respondent abused substances.” Rather, it considered the effect of his substance abuse on his ability to parent. Affirmed. Full Text Opinion