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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
The Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); Race discrimination; MCL 37.2202(1)(a); Hazle v. Ford Motor Co.; Inference of unlawful discrimination; Hecht v. National Heritage Acads., Inc.; Determining whether employees are similarly situated; Ledbetter v. Gilley (6th Cir.); Legitimate nondiscriminatory reason for plaintiff’s discharge; Sniecinski v. Blue Cross Blue Shield of MI; Pretext; Feick v. Monroe Cnty.; Dubey v. Stroh Brewery Co.; Retaliation; MCL 37.2701; Landin v. Healthsource Saginaw, Inc.; Roulston v. Tendercare (MI), Inc.; Causation; West v. General Motors Corp.; Abandoned argument; Peterson Novelties, Inc. v. Berkley; Seifeddine v. Jaber; Equal Employment Opportunity Commission (EEOC); Performance-enhancement plan (PEP)
Concluding that plaintiff abandoned her race discrimination claim by inadequately briefing it, the court found that defendant-former employer was properly granted summary disposition in any event because plaintiff did not offer direct or indirect evidence of race discrimination. It also upheld summary disposition for defendant on her retaliation claim, again concluding that the issue was abandoned and determining that there was no evidence of a causal connection between her complaints to defendant or the EEOC and any adverse employment action. She asserted that one of her former supervisors made two racially insensitive comments, However, he had not exercised “authority over plaintiff for more than 18 months by the time of” her discharge, and the court found that, at worst, his comments were “ambiguous and did not indicate any discriminatory bias against African-Americans in general or against plaintiff in particular.” Thus, at most, his comments constituted “stray remarks, which do not constitute direct evidence of discriminatory intent.” As to indirect evidence, she could not make out the fourth element of her prima facie case – she did not “identify any similarly situated employee outside the protected class who was treated differently.” There was no evidence of any other employee “working in Vehicle Integration who had attendance or performance deficiencies similar to plaintiff or who” had to be placed on a PEP. Further, no one replaced her – her duties were reallocated after her discharge. The court also concluded that defendant offered a legitimate, nondiscriminatory reason for her discharge – she had “numerous attendance and performance deficiencies.” When defendant’s efforts at informal coaching to improve those issues failed, “plaintiff was placed on a formal PEP.” She still did not make any improvement “and instead argued that she should not be on the PEP and blamed others for her deficiencies. Defendant extended the PEP period beyond the original expiration date,” and there was still no improvement. She was discharged at the end of the extended PEP period. Further, the denial of her “transfer to Project Management was based on a freeze on hiring persons outside that department.” The court held that these facts established “legitimate, nondiscriminatory reasons for any adverse employment action.” Affirmed.
Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Effect of being the first party to breach; Michaels v. Amway Corp.; Substantial breach; Able Demolition, Inc. v. City of Pontiac; McCarty v. Mercury Metalcraft Co.; Rescission; Adell Broad. Corp. v. Apex Media Sales, Inc.; Contract interpretation; Innovation Ventures v. Liquid Mfg.; Universal Underwriters Ins. Co. v. Kneeland; In re Egbert R Smith Trust; Alpha Capital Mgmt., Inc. v. Rentenbach; Frustration of performance; Kiff Contractors, Inc. v. Beeman; Waiver or modification as to plaintiff’s performance; Quality Prod. & Concepts Co. v. Nagel Precision, Inc.; CanBusHack (CBH)
The court held that the trial court did not err in finding that plaintiff did not establish a genuine issue of material fact “that the parties mutually waived or modified plaintiff’s payment obligation under” their Asset Purchase Agreement (the agreement) that “relieved plaintiff of its performance obligation before defendants rescinded the agreement.” The trial court concluded that “plaintiff’s failure to make the required $22,000 payment as specified in the [agreement] was a substantial breach of the agreement that precluded it from enforcing the agreement.” Despite the clear and unambiguous language of the agreement, plaintiff argued that the timing of the specified payment was not crucial. However, it was “also undisputed that plaintiff had not established a bank account in this country to enable it to wire the money to” defendant-CBH before defendants rescinded the agreement. “Even if plaintiff’s failure to pay the specified $22,000 amount on the stated effective date is not considered a substantial breach, there is no genuine issue of material fact that plaintiff substantially breached the agreement by failing to make any effort to make the specified payment for at least two weeks after the agreement’s stated effective date.” While plaintiff suggested “that it would follow through with payment days after the agreement was signed, there was no progress toward making that payment. Defendants waited more than two weeks for plaintiff to make the necessary arrangements to make the required payment, but no payment was made.” Under the agreement, “plaintiff’s performance consisted primarily of paying for the assets it was acquiring from CBH. More than two weeks had passed since the payment was due before defendants opted to rescind the agreement. The agreement also required that CBH, within 30 days of the effective date of the agreement, either dissolve or ‘remove [CBH] and any derivations thereof from its name.’ Given that CBH had a limited period in which it was obligated to perform, the trial court did not err by finding that plaintiff’s failure to make the required payment on the specified effective date, or at any point in the following two weeks, qualified as a substantial breach of the parties’ agreement. Because plaintiff substantially breached the agreement, it was not entitled to maintain this action against defendants for breach of contract and defendants were entitled to rescind the contract.” Affirmed.
Motion for relief from judgment; MCR 6.502; Timeliness; Mootness
In an order in lieu of granting leave to appeal the Court of Appeals order denying the delayed application for leave to appeal, the court vacated the trial court’s order denying defendant’s motion for relief from judgment, and remanded to the trial court for reconsideration. The trial court stated that it was denying the motion because it was “untimely” and because it was moot since defendant had “been released from prison and/or parole” had been terminated. However, the court noted that there is no deadline in MCR 6.502 “by which motions for relief from judgment must be filed.” In addition, the prosecution conceded there was no basis for finding that the motion was moot.
Exclusion of evidence of the victim’s Tetrahydrocannabinol (THC) levels; Relevance; People v. Bergman; Probative value; People v. Feezel; MRE 401; Operating while intoxicated (OWI) causing death (MCL 257.625(4)); Operating with license suspended, revoked, or denied (OWSL) causing death (MCL 257.904(4)); Sentencing; Review of a departure sentence for reasonableness; People v. Steanhouse; Advisory nature of the guidelines; People v. Lockridge; Relevant factors in determining if a sentence is proportionate; People v. Dixon-Bey; Whether the trial court relied on acquitted conduct in imposing sentence; People v. Beck
Concluding that Bergman was similar, the court held that the trial court did not abuse its discretion in excluding evidence of the victim’s THC levels in this case arising from a fatal motor vehicle crash. It also upheld defendant’s upward departure sentence, finding that it was proportionate to the offender and the offense, and rejecting his claim that the trial court relied on acquitted conduct. He was convicted of involuntary manslaughter, first-degree fleeing and eluding an officer, OWI causing death, and OWSL causing death. He was sentenced as a fourth-offense habitual offender to 25 to 50 years for each offense. As to the evidentiary issue, defendant suggested “that the victim’s ‘decision to drive out into traffic’ created a question of fact for the jury to determine the reasonableness of that decision.” He contended that her “THC levels were probative of her gross negligence because it ‘diminished [her] capacity to react to the world around [her].’” But the trial court found “that there was ‘no evidence that the victim was driving recklessly or in a grossly negligent manner.’ It further held that ‘[t]he toxicology results aren’t probative of any intervening or superseding cause sufficient to break the causal link between the defendant’s alleged actions and the victim’s death.’” Thus, this case was distinguishable from Feezel. Rather, it was similar to Bergman, and applying the same rationale to the facts here led to the same conclusion. The evidence showed “that defendant drove in the center turn lane of a two-lane highway at speeds upward of” 90 mph. It also showed that he hit “the victim’s driver-side door while traveling at approximately 91 [mph], killing her instantly.” However, the evidence did not show that she was driving improperly, and there was no evidence that her “vehicle would not have safely passed the northbound and center turn lanes if defendant had not been speeding down the center turn lane ‘presenting a serious and unexpected hazard.’” There was no evidence that she “contributed to the collision in a way that would establish that she was even negligent, let alone grossly negligent.” The court also agreed with the trial court that the guidelines range did not accurately reflect defendant’s criminal history and warranted a higher sentence. Affirmed.
Hearsay; People v. Mesik (On Reconsideration); Mistrial; People v. Kelly; Abandoned issue; People v. Harris; People v. Waclawski
Holding that defendant’s claim that a witness’s testimony was inadmissible hearsay failed and he abandoned the mistrial issue, the court affirmed. He was convicted of CSC I and II. Defendant argued that rebuttal witness-K’s (from the Children’s Advocacy Center) “testimony was inadmissible hearsay, was irrelevant, and was unfairly prejudicial, and” thus, should not have been admitted. However, defendant’s argument was meritless because “the trial court did not allow the testimony to be admitted into evidence and in fact sustained defendant’s objection and ordered that the jury disregard the testimony. The trial court gave a very thorough and explanatory jury instruction explaining why such testimony was inadmissible.” For these reasons, the argument failed. Moreover, even if the court read his “argument on appeal as being that the trial court erred by declining to grant a mistrial,” he did not provide any supporting case law. Thus, he abandoned the issue. Although he did not raise, or “abandoned, the argument that the trial court erred by denying a mistrial,” the court noted in any event that K’s testimony “constituted an isolated comment that was not repeated or explored further.” The testimony in question “was comprised of an unresponsive, volunteered answer to a proper question. Moreover, the trial court gave a comprehensive curative jury instruction. Therefore, even if defendant had raised such an argument, under these circumstances we would find no abuse of discretion in the trial court’s denial of defendant’s motion for a mistrial.”
Wrongful termination of an at-will employee; Suchodolski v. Michigan Consol. Gas Co.; Violation of public policy exception; Lewandowski v. Nuclear Mgmt.; Kimmelman v. Heather Downs Mgmt., Ltd.; Phillips v. Butterball Farms Co., Inc.; Garavaglia v. Centra, Inc.; Silberstein v. Pro-Golf of Am., Inc.; Driver v. Hanley; Whether the Sarbanes-Oxley Act (18 USC § 1514 et seq.) was plaintiff’s exclusive remedy; § 1514A(a)-(c); The federal preemption doctrine; Packowski v. United Food & Commercial Workers Local 951
The court held that the trial court did not err by granting defendant-employer’s motion for summary disposition of plaintiff-at-will-employee’s public-policy claim for wrongful termination. Plaintiff sued defendant alleging violation of public policy and wrongful termination. The trial court found her claims failed because the Sarbanes-Oxley Act was an applicable statute prohibiting retaliatory discharge for her conduct. On appeal, the court rejected her argument that the trial court erred by granting summary disposition for defendant as to her public policy claim, noting “the whistleblower protection remedy of the Sarbanes-Oxley Act [wa]s the exclusive remedy for plaintiff’s wrongful termination claim . . . .” It rejected her claim that Lewandowski and Kimmelman did not preclude her public policy claim. Contrary to her “assertions, Kimmelman confirms that plaintiff’s public-policy claim fails because of the whistleblower remedy in the Sarbanes-Oxley Act.” In addition, given that she admitted “that the Sarbanes-Oxley Act provides a statutory remedy for her allegedly wrongful discharge, it could, and did, provide her exclusive remedy.” Further, her claim was “precluded not because of any preemptive effect of the Sarbanes-Oxley Act, but rather because of Michigan’s approach to public-policy claims as provided in Kimmelman and Lewandowski.” Moreover, she failed to “cite any authority that a difference in the processes required to secure a statutory remedy for wrongful termination and to establish a claim of common-law public policy allow her to pursue a common-law public-policy claim.” She also did not “provide supportive authority for the contention that a statute which employs an administrative process to obtain a remedy for wrongful termination is not subject to the holdings of Kimmelman and Lewandowski.” Finally, the court noted that, “irrespective of the relative likelihood of success of plaintiff’s claim under the Sarbanes-Oxley Act, plaintiff cannot maintain a public-policy claim.” Affirmed.
Custody; Mitchell v. Mitchell; Phillips v. Jordan; Proper cause or a change of circumstances (COC); MCL 722.27(1)(c); Giving immediate effect to a Friend of the Court (FOC) recommendation; MCR 3.215(G); MCR 3.215(G)(3)(b); MCR 3.215(E)(1)(c); MCR 3.215(F); Interview with a child; MCL 722.23(i); Maier v. Maier; Bowers v. Bowers; Limiting the scope of the de novo hearing; MCL 552.507; MCR 3.215(F)(2); MCL 552.507(5)(a); Review the referee’s best-interest findings; The statutory best interest factors; MCL 722.23; The trial court’s obligations under the Child Custody Act; Harvey v. Harvey; Dailey v. Kloenhamer; Rivette v. Rose-Molina; Constantini v. Constantini; Child Protective Services (CPS)
The court held that while most of plaintiff-mother’s challenges lacked merit, the trial court failed “in its duty to independently address each statutory factor underlying its best-interest determination.” Thus, it remanded for a new de novo hearing. The mother claimed, among other things, that the trial court failed to make a threshold finding of proper cause or a COC before proceeding to an evidentiary hearing on defendant-father’s motion to change custody. At the onset of the findings of fact, the FOC referee indicated that it found proper cause or a COC warranting a reconsideration of the existing custody order because CPS had removed the child from the mother’s care and placed him with the father. “Only after stating this finding did the referee consider the child’s established custodial environment and whether changing custody was in the child’s best interests.” Thus, the court concluded that neither the FOC referee nor the trial court erred in this respect. It also noted that the mother did not challenge the validity of the FOC referee’s reasoning. However, it agreed with the mother that the trial court erred at the de novo hearing “by considering itself a ‘reviewing court’ and not making independent findings regarding each best-interest factor.” If a trial court does not “explicitly state its findings on each best-interest factor,” the court must reverse and remand for a new de novo hearing. In this case, the trial court “made some general findings, but did not address the individual factors in a reviewable fashion.” Thus, the court had to remand for a new de novo hearing, “at which up-to-date information may be presented, and after which specific findings of fact must be made in relation to each factor.”
Auto negligence; MCL 500.3135(1); Serious impairment of body function defined; MCL 500.3135(5); McCormick v. Carrier; Whether the impairment affected plaintiff’s general ability to lead his normal life; Piccione v. Gillette
Holding that there was a genuine issue of material fact as to whether plaintiff’s general ability to lead his normal life was affected by his alleged accident-related injuries, the court reversed summary disposition for defendant and remanded. He testified that he did not work for 30 days due to those injuries. While defendant was correct that a doctor did not tell plaintiff “that he could not work for 30 days,” the court found that this was not dispositive. Plaintiff “testified that his doctor instructed him to take a week or two off of work.” When he tried to go back to work, he was sent home because “he was limping and experiencing pain.” The next day, he “expressed that he did not believe that he would be able to work because of the pain he was experiencing.” He was given a temporary leave of absence without pay as a result. He also testified that, upon his return “to work, he was permitted to ‘skip’ a certain job because it caused pain to his shoulder.” The court noted that while he only missed 30 days of work, the Supreme Court in McCormick “explicitly stated that ‘the statute does not create an express temporal requirement as to how long an impairment must last in order to have an effect on’” a person’s general ability to live their normal life. He also did not have to show that his general ability to live his normal life was “destroyed” and there is no minimum “‘percentage of a person’s normal manner of living that must be affected.’” The court held that the trial court erred in ruling that the undisputed evidence established the accident-related injuries did not affect plaintiff’s ability to work. In addition, the evidence supported that his personal life was affected. He testified that, “after the accident, he suffered pain in the morning while he was getting out of bed and getting dressed. [He] testified that he no longer played basketball or football or swam long distances. He was also unable to lie on his left side or watch movies in a movie theatre because of the pain and discomfort that he experienced. [He] testified that he could not walk his dogs as often or as far and that he struggled with performing certain chores.” While defendant asserted that he was not restricted from performing certain tasks by a doctor, “the fact that an injured person is cautious about participating in an activity after an accident may” show that an injury had an effect on the ability to live his or her normal life.
Michigan Tax Tribunal (MTT) denial of petitioner’s claim for a principal residence exemption (PRE) under MCL 211.7cc(3)(b); MCL 211.7cc & 7dd; Drew v. Cass Cnty.; MCL 211.7cc(1) & MCL 211.7cc(3); Whether “separate income tax returns” were filed; Ashley Capital, LLC v. Department of Treasury; Penalty under MCL 211.7cc(3)(a); MCL 211.7cc(3)(b); “Owner”; MCL 211.7dd(a)(i); “Person”; MCL 211.7dd(b); Bush v. Shabahang
The court held that the MTT properly denied petitioner’s (Maureen) claimed PRE under MCL 211.7cc(3)(b), but improperly assessed her a $500 penalty under MCL 211.7cc(3)(a). Thus, it vacated the $500 penalty, but otherwise affirmed. The MTT held that Maureen was eligible to claim a PRE under MCL 211.7cc(1) for the property, but was disqualified from doing so under MCL 211.7cc(3)(b). While the court agreed “with the MTT that Maureen was disqualified from claiming a PRE under MCL 211.7cc(3)(b),” it disagreed with its reasoning. “The MTT’s interpretation of MCL 211.7cc(3)(b) erroneously conflated the first sentence of subsection (3) with the conditions for disqualification in subsection (3)(b).” The issue was not whether Maureen and her spouse, Francis (as “a married couple”) were entitled to multiple PREs, but whether Maureen (as “a person”) was entitled to a single PRE. Thus, whether they were required to file a joint return was “irrelevant to whether Maureen was disqualified from claiming a PRE under MCL 211.7cc(3)(b).” Despite the problems with its analysis, the MTT correctly determined that MCL 211.7cc(3)(b) barred her from claiming a PRE. Next, the court considered whether Maureen and Francis filed “separate income tax returns” as the term is used in MCL 211.7cc(3)(b) and held they did not. “Maureen and Francis filed separate state income tax returns, but they filed a joint federal income tax return.” The court held that ‘“separate income tax returns’ as used in MCL 211.7cc(3)(b) refers to both separate state and separate federal income tax returns.” Maureen and Francis did not file separate federal income tax returns, and, thus, “Maureen was disqualified under MCL 211.7cc(3)(b) from claiming a PRE.” Because the MTT held that Maureen was disqualified from claiming a PRE under MCL 211.7cc(3)(b), it reached the right result.
Termination under §§ 19b(3)(c)(i) & (j); The adjudicative & dispositional phases; In re Sanders; Admissibility of evidence; MCR 3.977(F); MCR 3.977(H)(2); In re Jenks; “New” or “different”; In re Snyder; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); MCL 712A.19a(2); In re Hicks/Brown; Effect of termination as the DHHS’s goal; MCL 722.638(1)(a)(iii) & (2); In re HRC; Failure to accommodate needs under the American with Disabilities Act (42 USC § 12101 et seq.); Best interests of the children; In re Gonzalez/Martinez; In re Olive/Metts Minors; In re Medina; In re Brown/Kindle/Muhammad Minors; In re White
Holding that the trial court did not err by relying on new evidence, that the DHHS made reasonable reunification efforts, that at least one statutory ground was proven, and that termination was in the children’s best interests, the court affirmed termination of respondents-parents’ parental rights. Their parental rights were terminated based primarily on physical abuse and deplorable living conditions. On appeal, the court rejected respondent-father’s argument that the trial court erred because it terminated his parental rights on the basis of a supplemental petition that contained new allegations, and thus, it could only rely on legally admissible evidence. “Although the trial court relied on the trauma assessments and psychological evaluations, these reports did not constitute evidence of ‘new’ allegations.” Further, “there were no ‘grounds new or different’ that required legally admissible evidence, and the trial court did not” err by relying on the reports. It also rejected his claim that the DHHS failed to make reasonable efforts toward reunification, noting that “[b]ecause continuous, daily physical abuse constituted ‘severe physical abuse’ . . . the DHHS was not required to seek reunification as its goal.” The court next rejected respondent-mother’s contention that the DHHS failed to prove a statutory ground for termination, noting there was a reasonable likelihood that returning the children to her “would result in further physical and psychological damage.” Finally, it rejected her argument that termination was not in the children’s best interests, finding that “a preponderance of the evidence supported the trial court’s decision that termination of” her rights was in their best interests.
Termination under §§ 19b(3)(c)(i), (g), & (j); Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; Parent-child bond; In re White; In re Frey; Ability to parent; Need for permanency, stability, & finality; Parent agency agreement (PAA)
Holding that the trial court properly concluded termination of respondent-father’s parental rights was in the children’s best interests, the court affirmed. The trial court’s best-interests analysis addressed the parent-child bond. The children loved the father and had a bond with him, but it was “weakened since the children had been placed into foster care for a significant period.” Also, the trial court noted that he had “missed 50 parenting times and sleeps during the parenting time.” Next, the trial court addressed his ability to parent. He “did not have adequate parenting skills and had made very little progress with the” PAA. He continued to have substance abuse issues throughout the case and had not shown any period of sobriety. Also, “despite the referrals for services that had been made, respondent failed to address the children’s behavioral issues.” The trial court further found the “children had a definite need for permanency, stability, and finality.” The trial court “stated that there was a clear advantage of the foster homes over respondent’s home, demonstrated by respondent’s inability, unwillingness, or refusal to comply with the case service plan. The foster parents were able to provide the children’s basic needs of food, clothing, and shelter, which respondent was not; respondent was still homeless.” The trial court found “that despite the children’s behavioral issues, which the foster homes were addressing, there was a distinct possibility for adoption.” Also, the trial court determined “that there was no indication that the children could be returned to respondent’s care within a reasonable amount of time considering that the case had been ongoing for ‘almost 20 months,’ and no progress had been made.”
Order of disposition; Probable cause to authorize the petition; In re Ferranti; Blue Cross Blue Shield of MI v. Milliken; Reasonable efforts to prevent the children’s removal; MCR 3.965; Applicability of In re Mason; Principle that a parent cannot be ordered to engage in services until adjudicated unfit; In re Sanders; Statutory grounds to assume jurisdiction; In re Brock; MCL 712A.2(b)(1) & (2)
Holding that the trial court did not err in authorizing the petition and in concluding that statutory grounds existed to assume jurisdiction over respondent-mother’s children, the court affirmed the order of disposition. In challenging the finding of probable cause to authorize the petition, she argued “that there were misrepresentations in the removal petition.” But the court concluded that even if there was no evidence to support some of the allegations, “the trial court did not clearly err in finding probable cause to authorize the petition.” As it correctly noted, probable cause is “not a demanding evidentiary standard” and it relied on unrefuted testimony by the caseworker that one of the children (A) “disclosed in her forensic interview that she reported the sexual abuse to respondent.” Statements by a grandmother to the caseworker and an incident in 12/18 also provided “circumstantial evidence that respondent was aware of the abuse.” Respondent failed to cite any “legal authority to support her position that services should have been provided to her before removal.” The case she cited, Mason, “concerned the reunification process, i.e., post-adjudication efforts and services.” The court noted that a “parent cannot be ordered to engage in services until adjudicated as unfit.” In addition, the language of MCR 3.965(C)(4) “strongly suggests that pre-removal services are not required in all cases.” The court further concluded that the DHHS “made reasonable efforts to determine the veracity of the allegations and whether respondents failed to protect [A] from abuse.” While respondent indicated “she would have continued to follow the safety plan, her compliance was not mandatory and the safety plan was not a permanent solution.” Thus, the trial court did not clearly err in determining “that reasonable efforts were made under the circumstances . . . .” As to its assumption of jurisdiction, “even assuming that respondent did not know of the abuse, the evidence established that she had reason to know that something inappropriate was occurring between the children, yet she took no meaningful steps to address that issue. Accordingly, the trial court did not clearly err in finding that, by reason of neglect, respondent failed to provide proper care and that her home was unfit.”