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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 Mine Act; Whether petitioner’s worksite was under the Federal Mine Safety & Health Administration’s (the Administration or MSHA) jurisdiction; Whether there was “substantial evidence” that the worksite was a “mine” & not a “borrow pit”; 30 USC § 802(h)(1); Administrative interpretative guidelines; I, MSHA, U.S. Dept. Of Labor, Program Policy v. Manual, § 4, 1.4-3; Whether the Administrative Law Judge (ALJ) violated the court’s prior order mandating that petitioner receive “fresh proceedings”; Occupational Safety & Health Administration (OSHA)
In a decision originally issued as unpublished, the court held that there was substantial evidence that petitioner’s worksite (the Site) was a “mine” and not a “borrow pit.” Thus, it found the ALJ correctly ruled that respondent-Administration had jurisdiction over the Site and upheld the Administration’s citations against petitioner for violations at the Site. Petitioner appealed respondent-Federal Mine Safety and Health Review Commission’s decision upholding the citations. Petitioner worked on a roadway repair site where an Administration inspector determined several of the Administration’s rules had been violated and issued seven citations and two orders. Petitioner argued the Site was not a mine but was a borrow pit subject to the jurisdiction of OSHA, not the Administration. The court explained there was very little precedent on the difference between a mine and a borrow pit. In 1979, the Administration and OSHA entered into an Interagency Agreement that defined a borrow pit. That agreement and administrative interpretative guidelines provide five general requirements that must be met for a site to be deemed a borrow pit. The ALJ ruled that the Site failed to meet factors “(2) extraction must be on a one-time basis or intermittent; (3) the extracted material must not be milled, beyond the use of a scalping screen ‘to remove large rocks, wood and trash’; [and] (4) the extracted material must be used more for its bulk as fill than for the material’s intrinsic qualities[.]” The court found “substantial evidence to at least support the ALJ’s conclusions regarding factors 2 and 4,” and declined to address the others as unnecessary. Petitioner argued it should have been able to rely on the fact that “‘similar borrow pits for road repairs have not been subjected to MSHA jurisdiction’ and that ‘[o]ver at least a dozen times [it] has extracted graded solid rock from a borrow pit[.]’” But the court explained that the Administration’s “informal activities” and peoples’ perceptions cannot override the Interagency Agreement’s explicit terms. “‘[T]he mere failure of administrative agencies to act is in no sense a binding administrative interpretation that the Government lacks the authority to act.’” The court also rejected petitioner’s claim that by reading the prior ALJ’s vacated decision on the matter, the ALJ violated the court’s directive in its prior opinion “that the case be given ‘fresh proceedings[.]’” It noted that it “does not ‘require an ALJ to ignore all past proceedings.’” And petitioner failed to show “a sufficient ‘continuing taint’” here. Affirmed.
Arbitration provisions in a collective bargaining agreement (CBA); Action to compel arbitration; Threshold issues of whether arbitration was timely & correctly invoked; Amtower v William C Roney & Co; BG Group, PLC v Republic of Argentina; MCL 691.1686(3)
The court affirmed the trial court’s order granting plaintiffs-unions’ motion for summary disposition in this action to compel arbitration and for breach of the parties’ CBA by failing to arbitrate. There was no dispute that the nature of the grievance was “such as could properly be submitted to arbitration under the CBA.” But defendants maintained “that plaintiffs did not properly or timely request arbitration under the CBA, and that the matter was therefore withdrawn and no longer arbitrable.” Defendants argued the CBA’s language provided “that the threshold issue of whether plaintiffs’ request for arbitration was timely (and correctly) submitted was one for the trial court, rather than the arbitrator, to decide.” The court disagreed, but noted “that the threshold issues of whether plaintiffs timely and correctly invoked arbitration under the CBA remain to be decided by the arbitrator before the arbitrator becomes empowered to reach the merits of” the employee’s (nonparty-G) grievance. The court held that when considered in light of the presumption favoring arbitrability, “the CBA’s provisions granting the arbitrator the authority to resolve matters related to the application and interpretation of the CBA, indicate that the arbitrator must decide the timeliness and procedural issues.” Also, although defendants argued that the CBA’s language indicated “that an arbitrator cannot even be selected unless a timely request for arbitration has been made, the actual language of the CBA is not so explicit.” The court similarly concluded “that the issue of whether procedural preconditions for arbitration of a grievance were correctly followed is a question for the arbitrator.” However, it noted that the issue of whether the “grievance was correctly considered ‘withdrawn’ under the CBA is still to be decided; that is, the trial court’s order may not be read as directing that arbitration proceed on the merits of [G’s] grievance without first analyzing the timeliness and other procedural issues raised by defendants and without a finding that the procedural prerequisites to arbitration were satisfied. In other words, the trial court’s order did not establish that [the] grievance was timely and correctly filed; it only determined that those procedural issues should be decided by an arbitrator.”
Dispute over sales commission & certain charges arising from repairs & storage costs for an aircraft; Common-law & statutory conversion; Right to possession; Claim & delivery; MCR 3.105(A)(1) & (2); MCL 600.2920(1)(c); Negligence; Fultz v Union-Commerce Ass’n; Bailment; Goldman v Phantom Freight, Inc; Certainty as to damages; Breach of fiduciary duty; Highfield Beach at Lake MI v Sanderson; Registration of an aircraft under federal law; Judicial bias; Cain v Department of Corrs; Credibility; Discovery sanctions; Dean v Tucker; Default or dismissal as a sanction
The court held that the trial court did not err by (1) dismissing plaintiffs-Salinger’s and his aviation companies’ claims for conversion and claim and delivery, (2) finding their claims for damages related to defendant-aircraft storage and repair company’s (Contact) purported negligence arising out of their bailment relationship were speculative and unrecoverable, or (3) dismissing their breach of fiduciary duty claim against defendant-aircraft brokerage company (Raptor) on the basis plaintiffs failed to present evidence of Raptor’s alleged breach. It also rejected plaintiffs’ claim of judicial bias, and found that the trial court did not abuse its discretion by dismissing defendants’ counterclaim as a discovery sanction. Plaintiffs sued defendants alleging a variety of claims related to Salinger’s purchase, repair, and storage of a Falcon 50 aircraft. The court first found that the trial court did not err by dismissing plaintiffs’ claims for common-law and statutory conversion and claim and delivery, finding they “failed to provide a factual basis for their claims that the Falcon’s avionics were removed, seized, or swapped out.” As to their claims for damages related to Contact’s purported negligence involving its temporary possession of the Falcon, the court was unable to find “that the trial court erred in concluding that Contact was not negligent for failing to maintain the Falcon’s engines pursuant to an agreement that the trial court found did not exist.” In addition, there was no clear error in the “finding that plaintiffs failed to prove with a reasonable degree of certainty that they sustained damages.” The court further found that while “a broker-client fiduciary relationship existed between Raptor and plaintiffs,” the evidence they presented at trial “that Raptor advised them that [Salinger’s company] could register the Falcon in the United States was found to be not credible.” The court next rejected plaintiffs’ argument that the judge presiding over the trial “exhibited a sarcastic and condescending tone toward Salinger during the course of the trial, which established ‘concrete evidence’ of judicial bias.” The trial court’s ground “for dismissing plaintiffs’ claims was directly related to the fact that plaintiffs failed to substantiate their claims with anything more than Salinger’s testimony, which [it] found not credible.” Finally, as to the trial court’s dismissal of defendants’ counterclaim for failure to comply with its order compelling discovery, the record showed “the trial court carefully considered all the factors and the options before concluding that dismissal was just and proper.” Affirmed.
Civil conspiracy claim under 42 USC § 1983; Standing to sue; Whether defendant-county sheriff could be held liable for civil conspiracy under Webb v United States; Whether “personal involvement” is a required element
The court held that the district court erroneously read a “personal involvement” element into the requirements for a civil conspiracy claim under § 1983. Thus, it reversed the grant of summary judgment to the County defendants (the county and its sheriff, Fitzhugh) and remanded. In a joint operation (“Operation Candy Crush”), local law enforcement conducted raids on several shops selling cannabidiol products under the mistaken belief they were illegal under state law. They were not illegal under federal or state law. The charges were dropped, and the business owners sued defendants for violating their constitutional rights and conspiring to violate those rights. All the plaintiffs settled but plaintiff-Rieves. The court first held that he had standing where he alleged “causality” and thus, met the traceability requirement. It then considered the district court’s ruling that Fitzhugh could not be held liable for civil conspiracy under Webb. To establish a civil conspiracy, a plaintiff “must show (1) ‘that there was a single plan,’ (2) ‘that the alleged coconspirator shared in the general conspiratorial objective,’ and (3) ‘that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.’” The district court determined the “‘broad conspiracy’ of Operation Candy Crush was insufficiently personal to Rieves . . . .” Specifically, it found “Fitzhugh’s general awareness of the operation inadequate because he was not ‘personally involved’ in the investigation of” Rieves’s business. The court disagreed. Reviewing Fitzhugh’s role in planning the operation, the court found that it reflected his participation in a decision “calculated to achieve an unconstitutional outcome.” The district court’s reasoning was based on a misunderstanding of language in Webb. The court concluded “Webb does not demand personal involvement by each co-conspirator in every wrongful or overt act to be held liable.” Rather, it explained that “Webb reflects an emphasis on § 1983 civil conspiracy’s requirement of a shared plan[.]” Unlike this case, the operation in Webb “was not itself an illegal conspiracy.” Here, the court held that jurors could conclude there was “a ‘single plan’ in which Fitzhugh participated.” Further, a reasonable jury could find that he knew the products “were legal but encouraged his officers to go forward with the operation anyway.” The court also determined that “Operation Candy Crush is reasonably treated as a single plan to violate the shop owners’ constitutional rights because the raids were coordinated and carried out simultaneously, with the knowledge of all parties.”
Claim for breach of an alleged oral joint venture agreement; Price v Nellist; Youngs v Read; Stewart v Young
On remand from the Supreme Court, the court found that based on the existing record, a genuine issue of material fact existed as to whether the parties (brothers) “had an oral agreement to share proceeds and income from” a property that continued to be in effect after a conveyance. But under the circumstances, it concluded defendant should have the opportunity to move for summary disposition again based on the lack of a genuine issue of material fact as to plaintiff’s claim there was an enforceable oral contract. Plaintiff alleged defendant breached a “joint venture agreement to share income and proceeds from” a parcel of real property. The trial court granted defendant summary disposition on the basis “plaintiff could not enforce an oral agreement to distribute income from real property.” The court affirmed but the Supreme Court reversed the part of the judgment that ruled the statute of frauds (SOF) barred plaintiff’s claims and remanded as to whether there was a question of fact regarding “a post-2015 sale oral agreement.’” Plaintiff’s supporting proofs consisted of his “affidavit and e-mail printouts referencing the alleged agreement.” His e-mail statements “referred to the property as ‘our Colwood farm.’ He stated his intent ‘to maximize my return from this investment at this time.’ Defendant’s response stated, ‘it would be fair to say that the amounts you have received for your interest in the farm are detailed on the settlement statement,’ which [he] calculated at a value of $98,700. This statement indirectly suggested that [he] believed that plaintiff’s 2015 conveyance extinguished plaintiff’s interest.” But he stated in a 2018 “e-mail that he was ‘willing to pay [plaintiff] to do the work to get the property sold.’ This statement indirectly suggested that [he] believed that plaintiff still had an interest in the property.” In his affidavit, plaintiff stated the parties agreed he “‘would continue to share equally in future recovery from the Colwood Farm investment property.’ This statement supported” his claim of a continuing interest. But the court noted that defendant’s “summary disposition motion did not address the existence of an oral contract.” It did not anticipate the Supreme Court’s ruling that the SOF does not bar oral joint venture agreements as to income from real property, and “plaintiff’s response did not directly address arguments other than the” SOF issue. Reversed and remanded.
Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; Prejudice; Right to a properly instructed jury; People v Dobek; First-degree home invasion; MCL 750.110a(2); Specific intent; Lesser-included offense; People v Wilder; Entering without permission as a necessarily included lesser offense of first-degree home invasion; People v Silver; Third-degree home invasion; Sentencing; Scoring of OV 1 (aggravated use of a weapon); MCL 777.31(1)(d); Use of brass knuckles; Scoring of OV 2 (lethal potential of the weapon used or possessed); MCL 777.32(1)(e); Scoring of OV 9 (number of victims); MCL 777.39(1)(c); Reasonableness & proportionality; Presumptive proportionality of a within-guidelines sentence; People v Powell
The court held that defendant was not denied the effective assistance of counsel, and there were no errors in his sentencing. He was convicted of first-degree home invasion and assault and battery for unlawfully entering the victim’s home and assaulting him. The trial court sentenced him, within the guidelines range, to 100 to 320 months for the home invasion conviction. On appeal, the court rejected his argument that his trial counsel was ineffective for failing to request jury instructions on specific intent, entering without permission, and third-degree home invasion. A specific intent “instruction was not warranted under the prosecution’s theory of the case and defense counsel cannot be deemed ineffective for failing to request it.” The court also rejected his claim that his trial counsel should have requested instructions on the lesser offenses of entering without permission and third-degree home invasion. “[E]ven accepting that third-degree home invasion is a necessarily included lesser offense, counsel was not ineffective for failing to request the instruction in this case.” The defense here was that defendant did not enter the victim’s “home without permission or unlawfully, making him innocent of any charge that included entry. The cited lesser included offense instructions are contrary to that defense theory. Accordingly, counsel made a reasonable strategic decision not to request those instructions.” Finally, the court rejected his contention that the trial court erred in scoring OVs 1, 2, and 9, and that his within-guidelines home invasion sentence was disproportionate and unreasonable. The evidence that defendant used brass knuckles in the attack was sufficient to support the scoring of OVs 1 and 2, and the fact that a second victim was injured trying to break up the fight was sufficient to support the scoring of OV 9. Moreover, his sentences were within the appropriate guidelines ranges and he “failed to establish any scoring errors or identify any inaccurate information relied upon by the” trial court. Affirmed.
Motion for a new trial; MCR 6.431(B); MCL 769.26; Prosecutor’s comments on defendant’s closing argument; Vouching; Commenting on the credibility of a prosecution witness; Effect of an aggrieved party contributing to an error
Concluding that the prosecutor’s rebuttal comments on defendant’s closing argument did not support reversing defendant’s CSC I convictions or result in a miscarriage of justice, the court held that the trial court abused its discretion in granting his motion for a new trial. The prosecution contended that “by inquiring into a sexual-assault allegation that the victim made against another person,” the defense sought to introduce the victim’s testimony on cross-examination as a means of attacking her “credibility. If nothing came out of the victim’s other allegation of sexual assault, then it is possible that the allegations against defendant were unfounded. Indeed, defendant never provided an offer of proof or introduced evidence that established said allegation was false, but in his closing arguments, defendant still brought up the” other allegation. In moving for a new trial, defendant asserted that the prosecutor’s rebuttal response, “telling the jury that nobody knew what happened or why the victim’s other sexual-assault allegation went nowhere intentionally misled the jury and unfairly vouched for the victim.” The trial court agreed; the court did not. Considering the prosecutor’s remarks as a whole and in light of defendant’s arguments and the trial evidence, the court found that “the prosecutor was simply responding to defendant’s closing statements on an issue that defendant introduced. In his closing argument, defendant stated that the victim’s other sexual-assault allegation was a ‘case [that] went nowhere,’ but there was no testimony elicited or evidence” presented at trial supporting this. “The prosecutor responded by clarifying that nobody has any ‘idea what happened with’ the victim’s other sexual-assault allegation or knows ‘why’ the victim’s other sexual-assault allegation ‘didn’t go anywhere,’ which was a fair response to defendant’s closing statements.” The prosecutor’s response was aimed at the absence of evidence supporting defendant’s claim that the “other sexual-assault allegation ‘went nowhere.’” The court determined it could not “be said nor reasonably inferred that the prosecutor’s brief comments about defendant’s unproven assertion unfairly prejudiced defendant, let alone suggested to the jury that the victim’s other sexual-assault allegation was true.” Thus, it held that he was not unfairly prejudiced due to the prosecutor’s rebuttal remarks. Vacated and remanded.
Ineffective assistance of counsel; Evidentiary decisions; Alleged failure to investigate & prepare for trial; Admission of the deceased victim’s prior statements; Hearsay exception for statements of a then existing state of mind (MRE 803(3)); People v Ortiz
Rejecting defendant-Wallace’s ineffective assistance of counsel claims and holding that the deceased victim’s (K) prior statements about her plans or intent to stop loaning him money were admissible under MRE 803(3), the court affirmed. He was convicted of first-degree murder, unlawful imprisonment, forgery, and uttering and publishing. K, his great-aunt, had loaned him “large sums of money, and before her death, had informed several people that she intended to stop” doing so. Defendant’s ineffective assistance of counsel claims fell into two broad categories – evidentiary decisions and alleged failure to investigate and prepare for trial. As to the former, among other things he asserted his attorney was ineffective for “failing to draw attention to potentially exculpatory DNA evidence” and to a baseball bat. Regarding the DNA evidence, the court concluded that defense counsel “made the strategic decision to rely upon the already favorable DNA evidence. The decision not to attempt to impeach favorable evidence was a sound trial strategy.” As to the bat, had defense counsel tried to impeach a police witness’s “single statement on the basis that the bat had not been in the Midland County Police Department evidence log, the prosecution would have been able to establish that the bat had been seized by a different police agency. This would have drawn further attention to the bat in a case that involved blunt-force trauma.” The court was not persuaded “the trial court made a mistake when it found that Wallace’s lawyer exercised a reasonable strategy by not pursuing the issue.” In regard to the alleged failure to investigate and prepare, the court held that “when he did not uncover any evidence to support Wallace’s theory that his brother had framed him, Wallace’s lawyer had every reason to believe that presenting Wallace’s brother as an alternative murderer would have been fruitless. And when Wallace’s lawyer was aware that pursuing Wallace’s family history would have opened the door to Wallace’s criminal history involving his family, Wallace’s lawyer had sound reasons to believe that pursuing such a strategy would be harmful.” The court also rejected defendant’s argument that his attorney was ineffective for failing to move to sever the forgery-related charges. Finally, the court held that K’s statements, which were each admissible, “were not rendered inadmissible merely because they were numerous.”
Appellate jurisdiction; MCR 7.203(A); Standing; “Aggrieved party”; Federated Ins Co v Oakland Cnty Rd Comm’n; Notice of an interest in the trust; MCL 700.7604(1)(b)(iv) & (vii); Applicability of In re Pollack Trust; Motion for leave to amend the complaint; MCR 2.118(A)(2); Forms of action in the probate court; “Proceeding” & a “civil action”; Commencing a proceeding by filing a petition; MCR 5.501(C); MCL 700.7208; Amending a complaint with a cause of action that should have been filed in a petition; Conversion; Trustee’s general duty to administer the trust in accordance with its terms & purposes; MCL 700.7801; Deductions from the trust for health, maintenance, & support payments; Order to sell the tangible personal property & split the proceeds
In these consolidated appeals, the court held that appellant-Kirk Siddell lacked appellate standing and dismissed his appeal. As to appellant-Smith, it rejected her challenges to the adequacy of the trustee’s notice under MCL 700.7604(1)(b). Further, it found that the probate court did not abuse its discretion in denying her motion for leave to amend or err in granting appellee-trustee (Heilman) summary disposition of her conversion claims. The court also upheld the probate court’s post-trial ruling that deductions from a trust “were properly characterized as health, maintenance, and support payments” and order that Heilman “sell the tangible personal property and split the proceeds between” two trusts at issue. The case arose from the administration of individual trusts created by spouses William (Bill) H. Johnson and Ralph A. Siddell. Smith was Bill’s sister. Kirk was Ralph’s son. The court first concluded Kirk did not identify “any ‘concrete or particularized injury’ that he suffered” due to the probate court’s determination that he was time-barred from challenging Ralph’s restated and amended trust (the 2017 Siddell Trust) or show how he would benefit from reversal of the probate court’s decision. The record showed that he “would not benefit from the invalidation of the 2017 Siddell Trust and reinstatement of the 2012 Siddell Trust.” Smith contended, among other things, that the probate court erred in “denying her petition for declaratory relief and to set aside the 2017 Siddell Trust on the basis that the trustee’s notification met the requirements of MCL 700.7604.” However, the court held that the trustee’s notice was not insufficient on the basis it lacked portions of the 2012 trust or because it failed to “plainly advise her that challenges to the validity of the 2017 Siddell Trust would be time-barred if not raised within six months of the date of the notice.” The court noted that nothing in MCL 700.7604 “requires a trustee to inform the recipients of the specific legal consequences of not acting during the time allowed.” As to Smith’s motion for leave to amend, she did not cite any “authority allowing the amendment of a complaint with a cause of action that should have been filed in a petition.” Further, her count for invalidation of the 2017 trust would have been time-barred even if the probate court had granted her motion. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; Child’s best interests
In these consolidated appeals, the court affirmed termination of respondents-parents’ parental rights to the child, holding that the DHHS made reasonable efforts toward reunification and that termination of respondent-father’s parental rights was in the child’s best interests. The case was “before the trial court for more than three years. Despite respondents’ representations to the contrary, the record confirms that, from the beginning, and on several occasions thereafter, respondents were offered but refused the opportunity to participate in inpatient treatment. Then, when it appeared that respondents were on the precipice of having their parental rights terminated, the trial court, not once but twice, refused to do so and granted respondents even more time to address their serious substance abuse issues. Indeed, they were specifically granted more time to permit them to enter inpatient treatment.” Given this record, the court rejected “respondents’ suggestion that reasonable efforts were not made toward reunification.”