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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Age, sex, & race discrimination claims under the Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a) & (b); Disparate treatment; Ricci v. DeStefano; Major v. Village of Newberry; Hazle v. Ford Motor Co.; Town v. Michigan Bell Tel. Co.; Disparate impact; Alspaugh v. Commission on Law Enforcement Standards; Department of Civil Rights ex rel Peterson v. Brighton Area Sch.; Wards Cove Packing Co., Inc. v. Atonio; Abbott v. Federal Forge, Inc. (6th Cir.); Smith v. City of Jackson; Whether a one-time decision about how to transition employees was an employment practice or policy for purposes of a disparate-impact claim; Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.; Memorandum of Understanding (MOU)
Concluding that plaintiffs-teachers’ evidence was insufficient to establish that they were treated differently than other similarly situated individuals, the court affirmed summary disposition for defendants on their disparate treatment claim under the ELCRA. It also affirmed summary disposition on their disparate impact claim, concluding that their evidence was insufficient to show “that defendants’ decision about how to transition them onto the K-12 pay schedule disproportionately impacted or burdened them more harshly than others.” Plaintiffs asserted discrimination on the basis of age, sex, and race. They alleged disparate treatment on the basis “they were paid less than other similarly-situated employees.” They also alleged that a MOU and an agreement about how to place people transitioning from a closing high school (Mott) “onto the K-12 pay schedule had a disparate impact on older, white, and female teachers such as plaintiffs.” As to the disparate treatment claim, the “trial court agreed with defendants that the proper comparator group was other transferred Mott teachers.” The court agreed with the trial court, finding “particularly persuasive the fact that Mott teachers were paid in a way that differed significantly from the K-12 teachers; not only were Mott teachers hourly instead of salaried, but their annual pay under the Mott pay schedule was significantly less than K-12 teachers’ annual salaries under the K-12 pay schedule.” Plaintiffs did not “compare themselves to other transferred Mott teachers or argue that they were treated differently than other transferred Mott teachers.” Thus, they failed to satisfy the fourth element. As to their disparate impact claim, they appeared “to argue that the MOU allowed younger teachers to be hired at a higher salary than plaintiffs, but, as defendants point out, plaintiffs were not subject to the MOU’s hiring policies. Thus,” the proper comparison group was not new hires subject to the MOU’s hiring policies but rather, “the other teachers already employed by defendants that became subject to the MOU’s terms, like plaintiffs were. The MOU froze everyone’s pay . . . .” The court also concluded that defendants’ “one-time decision about how to transition the Mott teachers was not an employment practice or policy for purposes of a disparate-impact claim.” Finally, even if it was, plaintiffs could not show that it “burdened them more harshly than others.”
Private suit under the Fair Credit Reporting Act (FCRA); 15 USC § 1681a(f); § 1681b(a)(3)(B); § 1681e(b); Nelski v. Trans Union, LLC (Unpub. 6th Cir.); Turner v. Experian Info. Sols., Inc. (Unpub. 6th Cir.); Dickens v. Trans Union Corp. (Unpub. 6th Cir.); “Inaccuracy”; Poore v. Sterling Testing Sys., Inc. (ED KY); Dalton v. Capital Associated Indus., Inc. (4th Cir.); Cortez v. Trans Union, LLC (3d Cir.); Pinner v. Schmidt (5th Cir.); § 1681b(b)(3)(B)(i)(IV); King v. Burwell; § 1681s-2(b)(1); Boggio v. USAA Fed. Sav. Bank; Saunders v. Branch Banking & Trust Co. of VA (4th Cir.); Chiang v. Verizon New England, Inc. (1st Cir.); Schweitzer v. Equifax Info. Solutions, Inc. (3d Cir.); Sepulvado v. CSC Credit Servs., Inc. (5th Cir.); Koropoulos v. Credit Bureau, Inc. (DC Cir.); Carvalho v. Equifax Info. Servs., LLC (9th Cir.)
The court clarified the standard for a civil suit under FCRA § 1681e(b), holding that to state a claim under the first element, a plaintiff must allege that a credit reporting agency (CRA) “reported either ‘patently incorrect’ information about them or information that was ‘misleading in such a way and to such an extent that’” it could have been expected to have an adverse effect on the plaintiff. Plaintiff-Twumasi-Ankrah was an Uber driver. Uber had defendant-Checkr run a background check on him, and it revealed his involvement in three traffic accidents. Uber then fired him, assuming he caused the accidents. Checkr refused to amend the report, even after Twumasi-Ankrah offered evidence that two of the accidents were not his fault. He sued under the FCRA, alleging Checkr violated the statute by failing to take steps to verify its information. The district court dismissed the suit for failure to state a claim, ruling that a “plaintiff must allege that a CRA reported ‘factually inaccurate’ information” and that the information here, while perhaps incomplete, was not inaccurate. The court considered Nelski, an unpublished decision, when determining the requirements of a private suit under § 1681e(b), and “the technical-accuracy standard” in two other unpublished opinions, Dickens and Turner. Checkr argued that the technical-accuracy test was the law in this circuit. Twumasi-Ankrah argued that misleading information could be inaccurate information. The court corrected and clarified the standard, holding that to satisfy the first requirement of a civil suit under § 1681e(b), a plaintiff must allege that “a CRA reported either ‘patently incorrect’ information about them or information that was ‘misleading in such a way and to such an extent that it [could have been] expected to have an adverse effect [on the consumer].’” It determined that, to “the extent Dickens and Turner suggested that we apply a technical-accuracy standard in this circuit, that was error.” The court held that Twumasi-Ankrah’s allegations were sufficient to survive a motion to dismiss. He asserted that by relying on only state records that include “all accidents regardless of fault” and not checking the information, “Checkr’s reporting led Uber to believe Twumasi-Ankrah was a more careless driver than he was” and Uber fired him because of this misperception. Also, this “misleading information . . . could have been ‘expected to have an adverse effect’ on him.” Reversed and remanded.
Unduly suggestive identification procedure claims; People v. Thomas; Photographic identification; People v. Woolfolk; People v. Gray; People v. Kurylczyk; In-court identification; People v. Barclay; People v. Davis; United States v. Wade; Plain error review; People v. Carines; Ineffective assistance of counsel; People v. Hoag; People v. Randolph; Strickland v. Washington; People v. Trakhtenberg; Matters of trial strategy; People v. Rockey; Failure to advocate a meritless position; People v. Payne; Factual predicate; People v. Carbin; Sentencing; Effect of a within guidelines sentence; MCL 769.34(10); People v. Schrauben; Whether the trial court considered defendant’s refusal to admit guilt; People v. Dobek; People v. Wesley
Rejecting defendant’s claims of unduly suggestive identification procedures and ineffective assistance of counsel, the court affirmed his first-degree home invasion conviction. It also affirmed his within guidelines 10 to 20-year sentence, concluding that nothing in the record indicated the trial court based his sentence on his refusal to admit guilt. As to his challenge to the photographic identification procedure, the court found that, taken in context, the victim’s testimony “did not imply that the officer told him that defendant’s photograph was included in the array, as defendant” suggested. The officer (H) who conducted the photographic lineup had an attorney help him construct a six-person black and white photo lineup. H used black and white photos “to avoid suggestiveness of complexion tone. Defendant’s mugshot from a previous arrest was included in the photographic array. The matter of the victim having to choose a” photo related only to his wavering in choosing between two photos, and the requirement that only one “could be selected. The victim clarified that it took him approximately 10 minutes to choose” a photo from the array, and that he chose the one he did due to “the man’s facial structure. The victim said, ‘I only had to write on one person. They didn’t give me the option to write on any other.’” Defendant did not show that the victim’s testimony inferred that H told him “that defendant had been arrested, defendant’s” photo was included in the array, or mandated that he pick someone from the array. The court noted that it was “difficult to understand how the photographic identification procedure was suggestive when the victim failed to identify defendant. The victim’s misidentification did not serve to convict defendant. The victim’s failure to choose defendant from the photographic array went to the weight of the victim’s in-court identification of defendant, not its admissibility.” Further, given that the photographic identification procedure was not unduly suggestive or improper, he failed “to establish any basis on which the victim’s pretrial identification testimony could have been suppressed. Therefore, there was no need for the prosecution to find an independent basis for in-court identification.”
No-fault subrogation action; Joinder; MCR 2.203(A); Salem Indus., Inc. v. Mooney Process Equip. Co.; Collateral estoppel; King v. Munro; Rental Props. Owners Ass’n of Kent Cnty. v. Kent Cnty. Treasurer; In re Bibi Guardianship
The court held that the trial court did not err by granting plaintiff-insurer’s motion for summary disposition and entering judgment for plaintiff in this no-fault subrogation action. Plaintiff, as subrogee of its insured, sued defendants to recoup the what it paid on behalf of its insured for injuries caused by defendants in an auto accident. The trial court granted plaintiff’s motion for summary disposition and ordered defendants to pay $80,475.98. On appeal, the court rejected defendants’ argument that the trial court erred by granting summary disposition for plaintiff because it failed to assert its subrogation claim against them in the earlier action. It noted that, in the earlier action, the parties were not opposing parties, but were instead co-defendants, and plaintiff brought no claims against them. As such, plaintiff “was not required by MCR 2.203(A) to raise its subrogation claim” in the earlier action. The court also rejected their claim that plaintiff’s claim was barred by collateral estoppel. Defendants “have not demonstrated that this action [was] a relitigation of an issue in a subsequent, different cause of action between the same parties to the first litigation.” Moreover, “the doctrine of collateral estoppel does not apply where, as here, a consent judgment was entered with the issues being neither adjudicated nor conceded.” Affirmed.
Auto negligence; Negligence; Campbell v. Kovich; Whether summary disposition was premature; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Meisner Law Group PC v. Weston Downs Condo Ass’n; Res ipsa loquitur; Pugno v. Blue Harvest Farms LLC; Woodard v. Custer; Reconsideration; MCR 2.119(F)(3); Yoost v. Caspari; Spoliation of evidence; Silvestri v. General Motors Corp. (4th Cir.); Brenner v. Kolk
The court held that the trial court did not err by granting summary disposition for defendant-Carroll in this automobile negligence action. Plaintiff sued defendant for injuries he sustained when defendant’s tire detached from his car and struck plaintiff’s car. On appeal, the court rejected plaintiff’s argument that the trial court prematurely granted summary disposition for defendant, preventing him from conducting further discovery in an effort to support his negligence claim. “Although the summary disposition order was granted before the close of discovery, plaintiff presented no independent evidence to establish that further discovery presented a fair likelihood of uncovering factual support.” It also rejected his claim that the trial court erred by granting summary disposition because there was a genuine issue of material fact as to whether defendant was negligent under the doctrine of res ipsa loquitur. “Plaintiff produced no evidence to counter defendant’s contentions or establish wrongdoing beyond the mere happening of the event.” Thus, he did not satisfy his burden in order to avail himself of the doctrine. Finally, the court rejected his contention that the trial court erred by denying his motion for reconsideration. The trial court did not err by denying his motion for reconsideration on the basis that summary disposition was premature, as he “presented no evidence to establish that a palpable err occurred when the [trial] court granted summary disposition in regard to whether there was an inference of negligence,” and his spoliation argument was a completely new theory that could have been presented before the trial court granted summary disposition. Affirmed.
Quiet title action; Principle that a defendant with actual notice of a plaintiff’s claim to the property before purchasing it cannot be a bona fide purchaser; Rossman v. Ward; Applicability of the bona fide purchaser doctrine where there are no competing purchasers; MCL 565.29; Principle that a purchaser acquiring property via a forged deed is not a bona fide purchaser for value; Horvath v. National Mtg. Co.; Austin v. Dean; VanderWall v. Midkiff; Whether ratification by plaintiff was possible; Dawson v. Hall; Principle that contracts that are void ab initio may not be ratified; Utica State Sav. Bank v. Village of Oak Park; Principle that the grantee from a party conveying by quitclaim deed acquires only the right & title the grantor had; Brownell Realty, Inc v. Kelly; Applicability of the clean hands doctrine; Richards v. Tibaldi; McFerren v. B&B Inv. Group
The court held that while the trial court erred in applying the bona fide purchaser doctrine and in ruling that plaintiff ratified the forged deed, application of the clean hands doctrine supported its decision to quiet title in the property in defendant-Brown’s favor. Less “than a week after plaintiff was arrested on federal charges, a quitclaim deed purporting to transfer” the property to the brother of his children’s mother (defendant-Clarene McCord) was signed and notarized. Because plaintiff was incarcerated at the time, “it was impossible for him to have been the individual who signed” that deed. Clarene’s brother later quitclaimed the property to her, and she listed it for sale. Three days before Brown’s closing occurred, a friend of plaintiff (L) recorded an affidavit with the county “Register of Deeds asserting that plaintiff was in federal prison on the date the disputed deed was allegedly signed and contending that the deed was forged.” When plaintiff later sued to quiet title, Brown’s “theory of the case was that plaintiff was afraid that the government was going to seize the property and, therefore, transferred it to Clarene in order to hide it.” On appeal, the court found that the bona fide purchaser doctrine did not apply for multiple reasons. Brown and both realtors “testified that they were aware of title issues before defendant made an offer on the property, and not a single person involved in the sale testified that they were unaware that [L], on plaintiff’s behalf, was disputing Clarene’s authority to sell the property.” Further, the doctrine applies when there are competing purchasers and there were none here. The issue was whether Brown could “take the property despite the existence of a forged deed in his chain of title. A purchaser acquiring property through a forged deed is not a bona fide purchaser for value.” In addition, the trial court’s determination that the deed was forged made ratification impossible. A forged deed is void, not simply voidable. As Clarene’s brother did not receive any “interest in the property from the forged deed, his quitclaim deed to Clarene could only give her what he had—nothing.” Thus, she did not have an interest that she could transfer to Brown. But the trial court’s findings that plaintiff orchestrated the property transfer “to Clarene’s brother with the aim of hiding the asset from the federal government” were not clearly erroneous. Affirmed.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); In re Mason; In re JK; In re VanDalen; Distinguishing In re Newman; In re White; Children’s best interests; In re BZ; In re Schadler; In re Olive/Metts Minors; In re Jones
Holding that §§ (c)(i), (c)(ii), (g), and (j) existed, and termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Throughout her case, she missed numerous drug and alcohol screens. Considering that her children were under the care of the DHHS for approximately three years, the trial court did not err by finding that she “was not reasonably likely to rectify the concerns with her mental health and alcohol use within a reasonable time.” Thus, there was clear and convincing evidence for the trial court to terminate her parental rights under §§ (c)(i) and (c)(ii). Similarly, termination was warranted under § (g). Respondent’s failure to benefit from the services offered was evidence that she could not provide proper care or custody for her children. She showed “serious deficiencies with her ability to parent the children safely, despite the provision of extensive services over approximately three years, including: assistance with obtaining employment, mental-health services, individual therapy, substance abuse treatment, a supportive visitation program, referrals for utility payment assistance, and two rounds of parent partner coaching.” There was also sufficient evidence to support termination under § (j). Respondent “failed to comply with significant aspects of her agency agreement, including missing drug screens, discontinuing her medication regimen, and lapsing in participation in mental health therapy.”
Termination under §§ 19b(3)(g) & (j); In re Mason; In re Gonzales/Martinez; In re Ellis; Children’s best interests; In re Olive/Metts Minors; In re TK; In re Schadler; In re White; Child Protective Services (CPS)
Holding that §§ (g) and (j) existed, and that termination was in the children’s (L and M) best interests, the court affirmed termination of respondent-mother’s parental rights. The trial court terminated her rights under § (g) because it found that her “episodes of mania and unresolved mental health issues, in addition to her long-term drug habits, impeded her ability to care for [L] and [M] and posed a risk of harm to them.” In making its determination, the trial court considered her “admission that she had not taken her psychotropic medication for a year, and evidence that respondent used drugs in the home in which she lived with” her children. The court noted L’s special needs and the young age of both of her “children, and considered the instability that came with a parent who abuses drugs and does not engage in necessary mental health treatment. Respondent’s drug abuse resulted in her hospitalization at least once, and her lack of appropriate care resulted in multiple [CPS] interventions in the past.” She was unable to provide proper care and custody for the children, “and on the basis of her history of mental health and drug abuse issues, as well as her history with CPS, the trial court did not clearly err in finding that a statutory ground for termination existed under” § (g). In determining that there was a statutory basis to terminate her parental rights under § (j), the trial court again considered that she used drugs in the home while caring for her children, and failed to take her medication. It also considered testimony that she “had once threatened—in the presence of her children—to commit suicide. And, while respondent enrolled in some mental health treatment programs during the lower court proceedings, respondent had multiple opportunities in the past to benefit from services and failed to do so.” The record evidence suggested that she would continue to make that mistake. Also, she allowed her adult son, who she believed to have a criminal history involving sexual assault, to live with her, L, and M. “There was also testimony that the son had untreated mental health and drug abuse issues. Overall, there was a plethora of evidence to indicate that the return of [L] and [M] to respondent would place them in harm, and thus, the trial court did not clearly err in determining that there was a statutory basis to terminate" her parental rights under § (j).
Termination under § 19b(3)(a)(ii); In re Moss Minors; In re Laster; Principle that only one statutory ground needs to be established to support termination of parental rights; In re Martin; Children’s best interests under MCL 712A.19b(5); In re Hudson; In re Olive/Metts Minors; In re White; In re Mason
Holding that § (a)(ii) existed and that termination was in the children’s (M, A, S, and P) best interests, the court affirmed termination of respondent-father’s parental rights. Respondent is the legal father of M and the putative father of A, S, and P. He argued that he did not desert the children because he visited them throughout the proceedings, and he was preparing to care for them when his parental rights were terminated. The court held that respondent deserted the children. The initial petition was filed in 1/17. He was aware of the proceedings, but he declined to attend any hearings until 6/12/19. Several caseworkers attempted to contact him throughout the proceedings, but they were unsuccessful. From 1/17 to 6/19, he did not participate in any court-ordered services in his case service plan. At the 7/12/19 evidentiary hearing, he testified that he visited his children in 3/18 and 4/18, but he had not seen them since 4/18. In other words, respondent had not seen them for approximately 15 months—a period well over 91 days. He later contradicted his own testimony and stated that he visited them on a monthly basis at their maternal grandmother’s home. “Nonetheless, limited contact with a child is insufficient to rebut a finding that a parent has deserted a child.” When the proceedings began, a caseworker sent him a request for DNA in order to establish paternity over A, S, and P, but he did not respond. Also, there was no evidence in the trial court record that he attempted to establish paternity over A, S, and P during the period in which he deserted the children.