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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Admissible evidence; Judicial notice; MRE 201(b)(2) & (c)-(e); Winekoff v. Pospisil; Prawdzik v. Heidema Bros., Inc.; In re Stowe; Hawkeye Cas. Co. v. Frisbee; People v. Snow; Breach of contract; Mallory v. Detroit; Parol evidence; Dunn v. Bennett; Damages; Alan Custom Homes, Inc. v. Krol; Recission; Rosenthal v. Triangle Dev. Co.; Material breach; Holtzlander v. Brownell; Negligence; Hill v. Sears, Roebuck & Co.; Duty; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Principle that a plaintiff cannot maintain an action in tort for nonperformance of a contract; Casey v. Auto-Owners Ins. Co.; Proximate cause; Ray v. Swager; Cause in fact; Patrick v. Turkelson; Skinner v. Square D Co.; Abuse of process; Lawrence v. Burdi; Vallance v. Brewbaker; Motion for reconsideration; Denial of an adjournment for further discovery
Holding that there were no errors requiring reversal, the court affirmed the trial court’s grant of summary disposition for defendants-construction company and representative. Plaintiff sued defendants claiming their removal of the notice of foreclosure posted on the home it was having built prevented it from learning of the foreclosure and paying the taxes. The trial court granted summary disposition for defendants and denied plaintiff’s motion to adjourn to permit additional discovery. In two prior appeals as to the foreclosure, the court ruled against plaintiff, finding the notice provisions were satisfied. In the present appeal, it rejected plaintiff’s argument that the trial court erred by granting summary disposition because defendants failed to support their dispositive motion with admissible evidence. “Because defendants asserted that they were entitled to judgment as a matter of law in light of the plain language of the contract, additional documentation was unnecessary in light of their argument.” It also rejected plaintiff’s claim that the trial court improperly granted summary disposition of its claims for breach of contract. “The posting of the foreclosure notice was not the sole warning to plaintiff of the failure to pay property taxes. Rather, plaintiff recorded its address on the deed and presumably was aware of the need to pay taxes.” Yet, it failed to “ensure that the address on the deed was correct and updated accordingly.” Further, there was “no indication that the contractor agreed to become plaintiff’s on-site agent for purposes of addressing the tax consequences of property ownership.” As to plaintiff’s negligence claim, it could not “be concluded that any removal of the notice . . . was the ‘but for’ cause of the foreclosure in light of the notice procedure that was followed by the county.” The trial court also did not improperly dismiss the abuse of process claim. “Although plaintiff contends that defendants benefitted from the foreclosure because the county promised to pay defendants any outstanding contractual balance,” no evidentiary support for this was offered. Finally, the court held that the trial court did not abuse its discretion by denying plaintiff’s motion for reconsideration, or by failing to grant an adjournment to allow it to engage in more discovery.
The Bullard-Plawecki Employee Right to Know Act (ERKA) (MCL 423.501 et seq.); Action by a Department of Corrections (DOC) employee for access to a report from its Allegations, Investigations, Personnel Action System (AIPAS); “Agency rule” as used in MCL 423.509(2); Whether the term is limited to rules promulgated pursuant to the Administrative Procedures Act (APA) (MCL 24.201 et seq.); Newark Morning Ledger Co. v. Saginaw Cnty. Sheriff; The DOC as an administrative agency subject to the APA’s provisions; Boyd v. Civil Serv. Comm’n; The different types & effect of rules agencies create; Clonlara, Inc. v. State Bd. of Educ.; Statutory interpretation; Brickey v. McCarver; Farris v. McKaig; MCL 8.3a; Interpreting a legal term of art; Brackett v. Focus Hope, Inc.
The court held that the trial court correctly refused to “read into or add to MCL 423.509(2) a requirement that the ‘agency rule’ investigation may pertain only to a rule promulgated by a criminal justice agency pursuant to the APA.” Thus, the trial court did not err in ruling that the statute applied “and exempted from disclosure under the ERKA the AIPAS report” about the DOC’s investigation of plaintiff’s conduct in the workplace. The provision allows “a criminal justice agency that is involved in an investigation of alleged criminal activity or the violation of an agency rule to maintain a confidential file of information related to the investigation separate from an employee’s personnel file and exempts such from disclosure.” Plaintiff-DOC employee contended that “the AIPAS report concerned a work rule based on a DOC policy directive, and that MCL 423.509(2) did not apply because the DOC had not promulgated the policy directive under” the APA. The court disagreed that the term agency rule is limited to those promulgated under the APA by a criminal justice agency. As in Newark, it concluded “that the Legislature intended to exempt from disclosure internal investigations not only of criminal activity but also internal investigations of employee violations of a criminal justice agency’s rule that guides or controls employee conduct. Such rules are not and need not be promulgated under the APA but fall within the authority the DOC has to administer correction facilities and properly manage them in keeping with the policies created for those purposes.” Thus, MCL 423.509(2) applied here “to the internal investigation reported in the separate AIPAS report regarding the DOC’s investigation of plaintiff’s workplace conduct.” Affirmed.
Evidence; Whether the pro se federal prisoner was entitled to receive a copy of the backup audio recordings of his arraignment & sentencing hearings when he had already received the written transcripts; United States v. Quinn; United States v. Bartle; Smith v. U.S. Dist. Court Officers (7th Cir.); United States v. Davis (4th Cir.); 28 USC § 753(b); 6 Guide to Judiciary Policy §§ 290.20.20(c)(1) & 510.40.10(c)(2); In re Pratt (5th Cir.)
[This appeal was from the ED-MI.] The court affirmed the district court, holding that because defendant-pro se federal prisoner (Austin) had already received written transcripts of his arraignment and sentencing hearings, he was not entitled to the backup audio recordings of these proceedings. The court held that Austin would have been entitled to an audio copy if “it is the only record made of a proceeding.” It noted that audio recordings are “the personal property of the court reporter and there is no public entitlement to the audiotapes except for ‘arraignments, changes of plea, and sentencings filed with the clerk of court.’ . . . [T]he reporter must file either a transcript or an electronic recording. . . . A litigant is not automatically entitled to both.” Moreover, a certified transcript is presumed to be a prima facie statement of the testimony and proceedings.
Whether the Fair Labor Standards Act (FLSA) (29 USC § 201 et seq.) precluded plaintiff’s “wage theft” claim brought under the Racketeer Influenced & Corrupt Organizations Act (RICO) (18 USC § 1961 et seq.); EC Term of Years Trust v. United States; Hinck v. United States; Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands; Kendall v. City of Chesapeake (4th Cir.); Michigan Corr. Org. v. Michigan Dep’t of Corr.; City of Rancho Palos Verdes v. Abrams; Anderson v. Sara Lee Corp. (4th Cir.); Roman v. Maietta Constr., Inc. (1st Cir.); Whether plaintiff could still bring claims that were “distinct from unpaid wages” under the RICO; Sedima S.R.P.L. v. Imrex Co.; Haroco, Inc. v. American Nat’l Bank & Trust Co. of Chicago (7th Cir.); § 1964(c); Aces High Coal Sales, Inc. v. Community Bank & Trust of W. GA (Unpub. 6th Cir.); Norman v. Niagara Mohawk Power Corp. (2d Cir.); Valverde v. Xclusive Staffing, Inc. (D CO); DeSilva v. N. Shore-Long Island Jewish Health Sys., Inc. (ED NY); Montize v. Pittman Props. Ltd. P’ship No. 1 (WD AR); Williamson v. General Dynamics Corp. (9th Cir.)
[This appeal was from the WD-MI.] The court affirmed the district court’s ruling dismissing plaintiff-Torres’s wage-loss claims brought under the RICO because they were precluded by the FLSA. However, it reversed the dismissal of his claim that was distinct from his wage and hour claims, and remanded to determine whether he had stated a RICO claim. Torres, a long-time employee of Vitale’s Italian restaurant, sued defendant-Vitale and others under the RICO, alleging that for years, Vitale paid his employees their overtime pay in cash and in the same amounts as their standard pay. Torres alleged a tax evasion scheme, a wage-theft scheme, and a scheme to defraud worker’s compensation, asserting that they amounted “to RICO violations through mail and wire fraud . . . .” The court agreed with the district court that Torres could not bring his wage claims under the RICO because they were precluded by the FLSA. However, it held that even though the FLSA was the sole remedy for federal minimum wage and overtime violations, it “does not preclude suits for other damages, even when the underlying conduct in those suits also violated the FLSA.” The court then considered RICO’s “‘virtually unlimited sweep,’” and held that even though his claim for lost wages was precluded under the FLSA, and his claim as to worker’s compensation insurance fraud belonged to the insurance company, one claim still remained—that as to the existence of “a tax-evasion scheme through which he and other similarly-situated Vitale’s employees were deprived of the employer’s half of social security payments, and were then subjected to tax liabilities.” The court could not say whether this claim was precluded by the FLSA without the benefit of briefing or argument on the issue. It remanded this issue to determine whether Torres sufficiently alleged a RICO claim resulting in damages other than lost wages.
Custody; Whether the same-day adoption of the Friend of the Court’s (FOC) recommendation denied the parties any meaningful opportunity to object; MCR 3.210(C)(6); Whether an error required remand; MCR 2.613(A)
Holding that the trial court’s same-day adoption of the FOC’s recommendation denied the parties any meaningful opportunity to object, and that refusal to take action was inconsistent with substantial justice, the court vacated the trial court’s order awarding plaintiff-father sole legal and physical custody of the children and parenting time, and remanded. Defendant-mother argued that remand was required because the trial court improperly entered the FOC’s recommendation immediately after its submission to the trial court, and as a result, she was not given a meaningful opportunity to object. The court agreed. “MCR 3.210(C)(6), provides that ‘[i]f a report has been submitted by the friend of the court, the court must give the parties an opportunity to review the report and to file objections before a [custody] decision is entered.’” The court held that the “trial court’s same-day adoption of the FOC’s recommendation denied the parties any meaningful opportunity to object before the trial court entered the order” as to custody and parenting time. In doing so, it failed to comply with the court rules. “An error by the trial court in a ruling or order is not a ground for granting a new hearing or disturbing an order unless refusal to take action appears to be inconsistent with substantial justice.” The court held that this case presented such circumstances.
Parenting time; Shade v. Wright; MCL 722.27a(1); Resolving custody disputes in the children’s best interests; MCL 722.23; Eldred v. Ziny; Rivette v. Rose-Molina; Sinicropi v. Mazurek; Factors (b), (c), (f), & (l); Deference to the trial court’s decisions as to the weight of the evidence & witness credibility; Luna v. Regnier; Overlap in the factors; Fletcher v. Fletcher; Parents’ ability to cooperate; MCL 722.26a(1)(b); A preponderance of the evidence; Pierron v. Pierron; Legal custody; Whether joint custody was an option; Wright v. Wright; Attorney fees; MCR 3.206(D)(2)(b); Cassidy v. Cassidy; Borowsky v. Borowsky; Butler v. Simmons-Butler; Ordering a party to pay for court-ordered therapy sessions as a sanction for failing to attend; Maldonado v. Ford Motor Co.; Persichini v. William Beaumont Hosp.; MCL 600.611; Requirement that a party obey a trial court’s order; Kirby v. Michigan High Sch. Athletic Ass’n
Concluding that the trial court did not err in denying defendant-father’s request for equal parenting time, in granting plaintiff-mother sole legal custody of their children, or in ordering defendant to pay attorney and therapy fees, the court affirmed the trial court’s order. It rejected his challenges to the trial court’s findings on statutory best interest factors (b), (c), (f), and (l), determining that in light of those factors, as well as the ones he did not challenge, the trial court did not abuse its discretion in finding that an increase in his parenting time was not in the children’s best interests. While “disputed by defendant, there was evidence that” he did not recognize the seriousness of one child’s behavioral issues and failed to address them “in an appropriate amount of time. Additionally, plaintiff testified about three instances of threatening behavior by defendant in the presence of the children. Finally,” the therapist (K) the trial court ordered the parties to see “recommended that defendant’s parenting time remain the same.” The court also held that the trial court’s decision that plaintiff should be awarded sole legal custody was supported by a preponderance of the evidence, the applicable standard in this case. In addition to sole legal custody being in the children’s best interests, there was “animosity between plaintiff and defendant, manifesting in a struggle to come together to make decisions to foster the children’s well-being.” They were unable to even “have civil parenting-time exchanges on their own, which necessitated that the exchanges occur at police stations.” Thus, joint custody was not an option. The court further held that the trial court did not abuse its discretion in awarding plaintiff attorney fees under MCR 3.206(D)(2)(b), “based on defendant’s failure to comply with the consent judgment pertaining to the timeliness of parenting time exchanges, and working with plaintiff for the welfare of the children.” Finally, the trial court had the inherent authority to sanction him for disobeying its order to attend the therapy sessions with K, and did not abuse its discretion in ordering him to pay his portion of the two sessions.
The Freedom of Information Act (FOIA) (MCL 15.231 et seq.); Rataj v. Romulus; Herald Co., Inc. v. Eastern MI Univ. Bd. of Regents; The law enforcement proceedings exception (MCL 15.243(1)(b)(i)); King v. Oakland Cnty. Prosecutor; Evening News Ass’n v. Troy; Attorney fees & costs; MCL 15.240(6); Amberg v. Dearborn; Nash Estate v. Grand Haven; Punitive damages; MCL 15.240(7); Local Area Watch v. Grand Rapids; Defendants’ obligation to determine whether materials requested under FOIA actually exist; MCL 15.235(5)(b)
The court held that the trial court erred in concluding that defendants-county and sheriff’s department met their burden to show that the FOIA exemption in MCL 15.243(1)(b)(i) applied to the video recordings plaintiff sought. Thus, the items should have been disclosed to him. However, it did not err in denying his request for attorney fees and costs under MCL 15.240(6) as he “had less litigious avenues” for obtaining the items. The court remanded for further proceedings as to punitive damages under MCL 15.240(7), instructing the trial court to determine whether the recordings existed. Plaintiff’s FOIA request arose from his arrest. The court previously remanded for further proceedings. The trial court conducted an evidentiary hearing and ruled that defendants adequately justified their reliance on the law enforcement proceedings exemption from FOIA disclosure. Plaintiff argued that it erred in doing so and in not ordering them “to release the patrol car and stationhouse videos.” The court agreed, concluding that they did not establish that releasing the requested videos would have hampered an ongoing investigation. At the evidentiary hearing, they relied entirely on the testimony of the arresting officer (M), a police captain (O), and the county prosecutor (N), and none of the three adequately explained how releasing the videos “would have hampered the law-enforcement investigation.” Their testimony was “comprised of inherently speculative and conclusory statements.” Further, N’s testimony, consistent with that of M and O, as well as defendants’ appellate arguments, suggested that the actual denial of the FOIA request “was premised on the mere existence of an ongoing investigation without adequate consideration of whether the investigation would actually have been hindered in any realistic, identifiable way if the requested records were released.” Thus, defendants could not rely on MCL 15.243(1)(b)(i). The court noted that, for the first time on remand, defendants’ witnesses suggested that the requested videos might not exist. “A plain reading of FOIA would suggest that, in the first instance, it is incumbent on defendants to determine whether materials requested under FOIA do, in fact, exist.” If the videos did “not exist, the extensive litigation that has occurred in this case would have been a waste that only defendants could have avoided.” Reversed and remanded.
Negligent entrustment of a motor vehicle; The owner’s liability statute; MCL 257.401; Amendment of pleadings; MCL 600.2301; Misnomer of a party defendant; Wells v. Detroit News, Inc.; Principle that the law favors the determination of a claim on the basis of its merits; Alken-Ziegler, Inc. v. Waterbury Headers Corp.
The court held that the trial court erred by granting summary disposition for defendants. Plaintiffs sued defendants for injuries they sustained when they were rear-ended by a car rented by defendant-Hogge and driven by defendant-Latasha. In a prior appeal, the court remanded. On remand, the trial court dismissed the case. On appeal, the court agreed with plaintiffs that the trial court erred by dismissing the case after holding that they failed to properly identify the individual who caused the motor vehicle accident. “[P]laintiffs’ naming of ‘Carrie Russell a/k/a Latasha Dawson a/k/a Latasha Phillips’ as a defendant was technically incorrect and resulted from an obvious misunderstanding of the use of the a/k/a designation.” Despite this “naming mistake, it is clear that defendant Hogge was not misled by the misnomer.” Plaintiffs’ “mistaken use of the a/k/a designation in their second amended complaint that was filed after our opinion was issued should have been plainly apparent to the trial court and amended accordingly.” The trial court “should have recognized that plaintiffs’ counsel inadvertently misused the a/k/a designation in plaintiffs’ second amended complaint, that defendant Hogge was not misled in any manner by the misnomer and that, for the furtherance of justice, the complaint had to be amended as permitted under MCL 600.2301.” The court noted that the “obvious grammatical mistake of plaintiffs’ counsel should not have resulted in the summary dismissal of plaintiffs’ cause of action and further delayed the resolution of this matter arising from a 2013 motor vehicle accident.” Thus, “the trial court should have ordered plaintiffs to amend their second amended complaint to correct the name of Hogge’s codefendant—not ordered the dismissal of plaintiffs’ case in its entirety under MCR 2.116(C)(10) because of the inconsequential mistake.” Reversed and remanded.
Prima facie negligence case; Case v. Consumers Power Co.; Duty; Fultz v. Union-Commerce Assoc.; Graves v. Warner Bros.; A motor vehicle driver’s general duty to pedestrians to exercise ordinary & reasonable care & caution in operating the vehicle; Zarzecki v. Hatch; Effect of a pedestrian suddenly darting into a defendant’s car; Houck v. Carigan; Principle that the mere happening of an accident does not raise a presumption of negligence; Michigan Aero Club v. Shelley; Barger v. Bissell; A pedestrian’s duties; Malone v. Vining; Richardson v. Rockwood Ctr., LLC; Whether the breach of a duty is always a fact question for the jury; Spikes v. Banks; Latham v. National Car Rental Sys., Inc.; Plaintiff’s percentage of fault; MCL 500.3135(2)(b); Lamp v. Reynolds; Whether reasonable minds could differ; Rodriguez v. Solar of MI, Inc.; The “last clear chance” doctrine; Callesen v. Grand Trunk W. R.R. Co.
Concluding that this case was similar to others where a pedestrian suddenly darted into a moving vehicle’s path, the court held that defendant-Manheim’s Metro Detroit Auto Auction did not breach a duty to plaintiff. Thus, it affirmed summary disposition for Manheim’s Metro. Plaintiff was brushed back by a slow moving vehicle at an auction hosted by Manheim’s Metro. He knew that it “was running when he stood just inches from the vehicle and placed both his hands on its hood. Plaintiff turned away from the vehicle, and as it began slowly moving forward, he again touched the hood of the vehicle, this time with his left hand. Plaintiff admitted that he knew the vehicle was moving when he touched the hood the second time. The vehicle paused in its forward momentum to avoid striking a pedestrian crossing the driving lane immediately in front of the vehicle. As soon as that pedestrian cleared the vehicle and the driving lane, the driver resumed the vehicle’s slow, forward momentum. Simultaneously, plaintiff stepped backwards into the driving lane, into” the vehicle’s path. He was looking away as he did so, “and he did not look back or touch the vehicle again, even though he knew that it had been moving just one second earlier. Under these circumstances, defendant breached no duty to plaintiff.” A video of the incident clearly showed “that he knew he was standing just inches from a vehicle that was running, knew that the vehicle had begun to move, and nonetheless stepped backwards into the driving lane without looking to see whether the vehicle was continuing to move. Given how quickly the sequence of events unfolded, the driver of the vehicle had no opportunity to avoid bumping plaintiff as he stepped backwards into” the lane. The court noted that, “contrary to plaintiff’s argument, whether a defendant breached a duty of care to the plaintiff is not always a question of fact for the jury,” and in light of the video, the trial court correctly determined that Manheim’s Metro “breached no duty owed to plaintiff.” The court also agreed with the trial court that no reasonable juror could find that he was less than 50% liable for the collision, and under MCL 500.3135(2)(b), a jury may not award damages to a party who is more than 50% at fault.
Termination under §§ 19b(3)(b)(ii) & (j); Children’s best interests; In re Gonzales/Martinez; In re Moss Minors; In re Schadler; In re Medina; Tender years; In re Martin; In re Brown; Admission of child’s statements under MCR 3.972(C)(2)(a) & accompanying DVD under MCL 712A.17b; MCL 712A.17b(5); MCL 712A.2(b)(1) and (2); Whether jurisdiction was proper under MCL 712A.2(b)(1) & (2); In re Ferranti; In re Sanders; Parent-agency treatment plan (PATP); Criminal sexual conduct (CSC)
Holding that §§ (b)(ii) and (j) existed, that termination was in the children’s (L and A) best interests, that the referee did not abuse her discretion when she admitted L’s statements during the Kids Talk Interview and the accompanying DVD, and that jurisdiction was proper under MCL 712A.2(b)(1) and (2), the court affirmed termination of respondent-mother’s parental rights. There was clear and convincing evidence to terminate her rights under § (b)(ii). Although the mother testified that she first learned about the sexual abuse in 2/19 and did nothing until CPS became involved in 4/19, L told the interviewer (M) during the 5/2/19 interview that respondent’s live-in boyfriend (J) started to sexually abuse her when she was five years old. L also told M that she told the mother about the sexual abuse on her sixth birthday, which would have been 11/17/16. L’s statements to M showed “that respondent knew about the sexual abuse for years and did nothing to protect” L. Also, the termination of her parental rights under § (j) was appropriate. The referee relied on respondent’s testimony to determine that there was clear and convincing evidence to terminate her parental rights because she did not take appropriate action upon learning that J sexually abused L. There was no dispute that respondent knew that J sexually abused L for a minimum of two months and did nothing to protect the child until CPS became involved. Without any logical explanation, respondent continued to allow J to live in the house with the children despite knowing that J was a sexual predator. Further, respondent’s history of exposing the children to sexual predators demonstrated that they would be harmed if returned to her care. In 2016, the children came within the court’s jurisdiction because A was sexually abused by children that F (L’s father) sexually abused. The children remained in respondent’s care, but she was required to complete a PATP. Despite F’s conviction for CSC "with a minor and despite respondent’s counseling and parenting classes, respondent allowed [F] to contact” the children, further exposing them to a sexual predator. Even after respondent learned about the extent of J’s sexual abuse of L, she continued to allow J to stay at the house. Respondent demonstrated that she lacked the parenting skills to protect her children from harm and would knowingly allow contact between them and sexual predators.
Termination under §§ 19b(3)(c)(i) & (g); In re VanDalen; In re Olive/Metts Minors; In re Trejo Minors; In re BZ; In re White; Whether the DHHS followed its internal procedures; Reasonable reunification efforts; In re Terry; In re Mason; In re Rood; Trial court reliance on respondent’s marijuana use; In re Richardson; Child’s best interests; Relative placement
Holding that §§ (c)(i) and (j) existed and termination of respondent-mother parental rights was in the child’s (A) best interests, the court affirmed. A was brought under the trial court’s jurisdiction because of the mother’s homelessness, unemployment, and substance use. After 362 days, she “had failed to adequately address her substance-abuse, housing, and employment issues such that there could be a legitimate belief that [A] could be returned to a safe, appropriate home with” the mother within any reasonable time. Despite being offered services, she “failed to actively and adequately engage her treatment plan so as to address the issues preventing her reunification with” A. Thus, the court was unable to find error in the trial court’s statutory-grounds findings.