Become a mentor! The Mentor Center needs experienced attorneys to offer support & advice to young attorneys.
 
  • News and Moves

    Robert J. Andretz
    Michael P. Ashcraft Jr.
    Andrew W. Barnes
    Mohammad G. Beydoun
    Jeffrey Bullard Jr.
    John R. Colip
    Jennifer E. Consiglio
    Matthew S. Derby
    Zachary J. Diederichs
    Mowitt (Mitt) S. Drew III
    Jennifer Dukarski
    William M. Engeln
    Jordan D. Florian
    Audrey J. Forbush
    Fraser Trebilcock Davis Dunlap & Cavanaugh P.C.
    Andrew S. Gipe
    Michael F. Golab
    Michael D. Hanchett
    Laura E. Johnson
    Garett Koger
    Bill Lentine
    Scott K. Lites
    MDTC
    Daniel P. Makarski
    Fadee A. Nakkash
    Sarah L. Nirenberg
    Amber D. Peters
    Rachel Roseman
    Kelly L. Travis

 

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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes summaries of one Michigan Court of Appeals published opinion under Constitutional Law/Malpractice and two Michigan Court of Appeals published-after-release opinions under Constitutional Law, Municipal, and Zoning.


Cases appear under the following practice areas:

  • Constitutional Law (2)

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 79601
    Case: Compagner v. Burch
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Boonstra and Redford; Concurring in part, Dissenting in part – K.F. Kelly
    Issues:

    Medical malpractice; Accrual; MCL 600.5838a(1); Haksluoto v Mt Clemens Reg’l Med Ctr; The six-year statutory period of repose; MCL 600.5838a(2); Nortley v Hurst; Notice of intent (NOI); MCL 600.2912b(1); Computation of time under MCR 1.108(1); Tolling; MCL 600.5856(c); Carter v DTN Mgmt Co; Wenkel v Farm Bureau Gen Ins Co of MI; Armijo v Bronson Methodist Hosp; Linstrom v Trinity Health-MI; Hubbard v Stier; Whether the Supreme Court’s Administrative Order (AO) 2020-3 (original & amended) extended the filing period; Constitutional validity of the AOs; Browning v Buko; Separation of powers; McDougall v Schanz; The Supreme Court’s constitutional purview; MI Const Art. 6 § 5; Effect of binding precedent; The court’s discretion to review controlling legal issues; MCR 7.203(A) & (B); Special conflict panel

    Summary:

    Noting it was bound by Carter, the court held that plaintiff’s medical malpractice complaint was timely filed. However, it disagreed with Carter’s determination that the Michigan Supreme Court had the constitutional authority to issue AO 2020-3, “and but for Carter would hold that the Supreme Court did not have the constitutional authority to” do so and thus, that plaintiffs’ complaint was “untimely filed (after the expiration of the applicable statute of repose), and would reverse and remand for entry of summary disposition” for defendants. The court called “for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between our rationale and that of Carter relative to the constitutional validity of AO 2020-3.” Plaintiffs sued defendants for medical malpractice. The trial court denied defendants’ motion for summary disposition, finding the action was timely filed and not barred by the applicable statute of repose. “Excluding, under Carter, the 102 days of the exclusion period from the applicable statute of repose, and further applying the tolling of the statute of repose by the service of plaintiffs’ NOI, plaintiffs’ complaint was timely filed.” However, the court agreed with defendants that the Supreme Court did not have the authority to issue AOs 2020-3 and 2020-18. “[W]e follow Carter on this issue, but only because we are required to do so . . . . But for Carter, we would hold that our Supreme Court did not have the constitutional authority to issue AO 2020-3 and AO 2020-18 and that plaintiffs’ complaint was” untimely filed as a result. The court found that the Supreme Court unconstitutionally intruded into the legislative sphere. “While the early days of the pandemic certainly were trying and filled with uncertainty . . . , and while the Supreme Court’s intentions were undoubtedly laudable, in retrospect its issuance of AO 2020-3 was plainly unconstitutional. Should this issue reach the Supreme Court, we respectfully suggest that it should acknowledge as much and similarly conclude.” In sum, the court held that “Carter was wrongly decided; the Supreme Court did not have the constitutional authority to issue AO 2020-3 (or the related AOs). Plaintiffs’ complaint was therefore untimely filed . . . .” The court declared a conflict with Carter “relative to the constitutional validity of the Supreme Court’s AOs.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 79599
    Case: Midwest Valve & Fitting Co. v. City of Detroit
    Court: Michigan Court of Appeals ( Published-After-Release Opinion )
    Judges: Riordan, Rick, and M.J. Kelly
    Issues:

    Challenges to permit fees charged to owners of commercial & multiunit residential real property by a city; Alleged violation of § 31 of the Headlee Amendment; Unjust enrichment; Violation of MCL 141.91; Bolt v City of Lansing; Fees that benefit the general public; Westlake Transp, Inc v Public Serv Comm’n; Alleged violations of the city charter & ordinances; Retroactive approval of the charges by the city council; “Issuance”; “Permit”; Equal protection; Rational basis review; Assumpsit; Fisher Sand & Gravel Co v Neal A Sweebe, Inc

    Summary:

    [This opinion was previously released as an unpublished opinion on 03/09/2023.] Rejecting appellant’s multiple challenges to the legality of certain charges imposed by defendant-City of Detroit on owners of commercial and multitenant residential real property, the court affirmed the trial court’s ruling that the charges are legal. Counts I, IV, and V of appellant’s complaint alleged “violations of § 31 of the Headlee Amendment and MCL 141.91.” The court noted there was no fact question that the charges “here were for the acquisition of permits, not inspections.” Applying the Bolt factors, it concluded as to the first factor (whether the charge serves a regulatory purpose rather than a revenue-raising one) that this case was analogous to Westlake – appellant here received “a benefit by being allowed to operate its business in Detroit. Thus, appellant received ‘a direct benefit’ from paying the charge. The fact that the general public also benefits from the Fire Protection Program does not negate the charge’s regulatory nature.” Next, the court determined that the charge appeared “to be proportionate to the necessary costs of the service” the City was providing. As to the third factor, whether the charge was voluntary, the trial court assumed that it was not, and the court agreed. After weighing the three factors, “the trial court ruled the charge was a fee, not a tax.” The court agreed with its analysis and found that it did not err. The court noted that the fact the charge was involuntary by itself was insufficient “to overcome the other two factors that appellant received a benefit and that the fee is proportional. Because the charge at issue is a fee, not a tax, appellant” could not succeed “on its claims alleging violations of the Headlee Amendment and MCL 141.91.” The court further held that the trial court did not err in finding no cause of action for the “claims related to the violation of the city charter and ordinances.” Among other things, it rejected appellant’s argument that the city council’s retroactive approval of the charges was a nullity, and it concluded that the city “ordinance allows for the recovery of the costs of the Fire Prevention Program in the issuance of the permits.” Finally, as to appellant’s equal protection claim, the court applied rational basis review in determining that the trial court did not err in finding no cause of action for this claim.

    Full Text Opinion

  • Contracts (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79512
    Case: Deliz v. Gusmano
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Tortious interference with a contract; Breach of the contract element; Breach of contract claim; Enforceability of the contract; Innovation Ventures v Liquid Mfg; Consideration; The preexisting duty rule; Economic duress; Skaates v Kayser; Unjust enrichment

    Summary:

    In these related cases, the court held in the first one that plaintiff-Deliz’s tortious interference with a contract claim failed because he did not establish the contract breach element. In the second one (in which Deliz was the defendant), the court found the trial court did not err in granting plaintiff-John B. Gusmano (John B) summary disposition on his breach of contract claim. It rejected Deliz’s arguments the reconciliation agreement at issue was not enforceable due to lack of consideration and his economic duress. Also in that case, as Deliz could not show an inequity, his counterclaim for unjust enrichment failed. Thus, the court affirmed in both appeals. The cases arose from a shareholder dispute in a family-owned business and its sale in 2018. Two defendants in the first case, John A Gusmano and Thomas John Gusmano, are brothers, and the third defendant, Anthony, is John A’s son. Deliz is a cousin of John B and Anthony. He “alleged that John A, Thomas John, and Anthony tortiously interfered with” a 5/17 stock purchase agreement he had with John B. However, it was undisputed that he and John B fully performed that agreement. Because he did not show, or allege, “that the contract allegedly interfered with—the [5/17] stock purchase agreement—was breached in any way, his tortious interference claim failed.” The second case involved John B’s claims for breach of contract against Deliz related to a “reconciliation agreement” and Deliz’s counterclaim for unjust enrichment. He argued that the agreement was not enforceable, first asserting that the consideration (“John A, Thomas John, and Anthony’s promise to proceed with the Standex sale”) was not adequate because they had a preexisting duty to do so. But the court found his argument “unpersuasive because he failed to provide sufficient evidentiary support for his claim that, at the time of the [8/18] shareholders meeting, there were independent agreements between the other shareholders, or between them and Standex, requiring them to sell their stock to Standex.” The court concluded Deliz did not show that the preexisting duty rule applied. Further, the trial court properly rejected his duress claim. There was no allegation or evidence that he “was compelled to agree to any term that did not equally apply to the other shareholders, or that affected him any differently, financially or otherwise, than the” others.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 79529
    Case: Hall v. El-Bathy
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Breach of contract for the sale of real property; Anticipatory repudiation; Hanesworth v Hendrickson

    Summary:

    In this breach of contract action as to the purchase of real property, the court held that the trial court erred in granting defendants summary disposition because there were questions of material fact as to whether they “repudiated the contract terms, whether this alleged repudiation continued through the remainder of the parties’ dealings, and whether [it] constituted a breach of the implied covenant of good faith and fair dealing or an otherwise substantial breach.” In sum, the court held that “in determining defendants’ breach was not substantial, the trial court’s focus on what it saw as a lack of prejudice was erroneous for two reasons. First, the trial court ignored the anticipatory repudiation doctrine principle that manifestation of one party’s continued intention not to perform excuses the other party from having to perform to maintain its rights under the contract—that repudiation, in and of itself, is an event which alters the state of the dealings so as to change the nature of the parties’ obligations. Second, the contextual consideration of the timeline and communications reflected by the renegotiation request supports plaintiff’s allegation of an intention not to proceed unless there was, in one way or another, a change in the price term; this being the first substantial breach.” Reversed and remanded.

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    This summary also appears under Juvenile Law

    e-Journal #: 79544
    Case: In re Shelton
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Waiver of jurisdiction over respondent-juvenile to be tried as an adult; Probable cause; MCR 3.950(D)(1); Factors in MCR 3.950(D)(2)(d); MCL 712A.4(4)

    Summary:

    Concluding that there were no errors warranting reversal regarding the trial court waiving jurisdiction over respondent-juvenile to be tried as an adult and transferring the case to the criminal division of the circuit court, the court affirmed. Respondent was charged with open murder for the shooting death of M. “Because respondent was a minor when the offense occurred,” the prosecution (petitioner) “initially filed a delinquency petition in the trial court. Later, petitioner filed a motion asking the court to waive jurisdiction and allow respondent to be tried as an adult. Petitioner also asked for” a CCW charge to be added. After the first phase of the waiver hearing, the trial “court determined that there was probable cause that respondent committed the offenses of open murder and [CCW]. And, after the second phase of the waiver hearing, [it] found that the interests of respondent and the public would be best served by waiver.” As to the first phase, the court held that there was “enough to ‘conscientiously entertain’ a reasonable belief that respondent either fired the shots that resulted in [M’s] death, or acted in concert with his co-respondent to cause [M’s] death and is guilty of felony murder or guilty on an aiding and abetting theory, based on the evidence presented.” Thus, the trial court “did not clearly err by finding that there was probable cause to believe that respondent committed the offenses of open murder and” CCW. As to the second phase, the court concluded “the trial court did not abuse its discretion by determining that the interests of respondent and the public would be best served by a waiver.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Juvenile Law

    e-Journal #: 79523
    Case: People v. Logan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Sentencing of a juvenile offender; Miller v Alabama; Life imprisonment without the possibility of parole (LWOP); People v Snow

    Summary:

    The court held that the “trial court properly considered factors outlined in Miller before imposing a sentence within the statutory guidelines range and considered [defendant-Logan’s] youth as a mitigating factor at sentencing.” He was convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm for offenses he committed when he was 16 years old. He was sentenced as an adult to a mandatory term of LWOP for his felony-murder conviction. Following Miller, the trial court resentenced him to 35 to 60 years. The volume of analysis alone contradicted Logan’s claim that the trial “court gave inadequate mitigating weight to the characteristics of youth in imposing sentence.” The court noted the trial court “acknowledged that Logan’s decisions at that point in his life were driven by his need to escape his home environment.” The trial court “clearly explained why mitigation was not available on this factor, but balanced this consideration with the other factors and circumstances identified.” The court held that the trial court identified and analyzed each Miller factor in turn. Although the trial “court did not specifically list the objectives of Snow, the court’s on-the-record analysis covered those factors as well. And the court considered the hallmarks of Logan’s youth as a mitigating factor.” The trial court’s “analysis of the Miller factors and their application under the circumstances of this case justified the court’s determination that a 40-year minimum sentence was not justified, but that a minimum sentence within the middle-to-high end of the range was. [It] discussed Logan’s rehabilitative efforts and successes at length, while acknowledging the seriousness of the offense. Overall, the sentencing court conducted the required analysis, found that Logan’s youth was a factor mitigating against the highest permissible sentence, and fashioned a proportionate sentence.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79532
    Case: People v. Roll
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Motion to withdraw guilty plea; Voluntariness of plea; Ineffective assistance of counsel; People v Ginther

    Summary:

    Holding that the trial court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea and that he was not denied the ineffective assistance of counsel, the court affirmed. The court found “that the trial court complied with the requirements of MCR 6.302. Based on defendant’s testimony at the plea hearing, it is clear that the plea was entered knowingly, voluntarily, and understandingly. He was ‘informed of the consequences of his . . . plea and, necessarily, the resultant sentence.’” The court acknowledged that he “stated in a post-sentencing affidavit that he believed limiting the OV ‘at 34 months’ meant that he would serve no more than 34 months in prison.” The prosecution had agreed to a cumulative OV total of no more than 34 points. Defendant contended “that the trial court stated, ‘there is a sentencing agreement that the offense variables is no greater than 34 months.’” This was an inaccurate recitation of the record. The court concluded the trial court clearly did not use the word “months.” Defendant’s affidavit was “not supported by the record, directly contradicts his sworn testimony during the plea hearing, and is insufficient to overcome his statements under oath at the plea proceeding.” The court held that because “there were no errors at the plea hearing, defendant was not entitled to withdraw his guilty plea pursuant to MCR 6.310(C).” Also, there was “no evidence to rebut the strong presumption that defense counsel’s performance was adequate and competent throughout the plea and sentencing process.” And defendant had “not offered any evidence to demonstrate that, ‘but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Finally, because there was “no factual record that requires development in order to consider whether defense counsel was ineffective, the trial court did not abuse its discretion when it denied defendant’s request for a Ginther hearing.”

    Full Text Opinion

  • Employment & Labor Law (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79506
    Case: Wood v. 36th Dist. Court
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Cameron
    Issues:

    Claims arising from alleged wrongful employment termination; Governmental immunity; MCL 691.1407(1); An agency’s hiring, supervising, & firing of its employees as the exercise or discharge of a governmental function; Vicarious liability; MCL 691.1407(2); Intentional torts; Odom v Wayne Cnty; Wrongful termination contrary to public policy; Suchodolski v Michigan Consol Gas Co; Motion for summary disposition under MCR 2.116(C)(8); The court’s jurisdiction to hear an appeal; MCR 7.205(A)(1)(a) & (4)(a); Whether an application for leave was defective

    Summary:

    Rejecting plaintiff-Wood’s jurisdictional challenge, the court held that because she failed to plead in avoidance of governmental immunity, defendant-36th District Court was entitled to summary disposition of her claim that it could be held liable for wrongfully terminating her employment contrary to public policy. Further, while the trial court did not err in denying defendant-Crosby summary disposition based on immunity, the court held that it did err in determining Wood adequately alleged a wrongful termination claim against her. Thus, it reversed the trial court’s opinion and order in relevant part in both of these consolidated appeals and remanded for entry of an order dismissing Wood’s wrongful termination claims against Crosby and the District Court. She alleged these defendants and defendant-Chief Judge McConico wrongfully terminated her employment as a magistrate judge. Crosby was the District Court’s interim administrator at the time. As to the merits, the court held that as the “District Court had the authority to terminate Wood’s employment as a magistrate” its action in doing so was a governmental function, “for which it had absolute immunity from tort liability[.]”As a result, it “could not be directly liable in tort for terminating Wood’s employment in violation of public policy.” The court further held that the District Court could not be vicariously liable for Wood’s wrongful discharge “by one of its employees. Wrongful discharge involves an intentional act performed in contravention of public policy,” and the court noted that “it is well settled that a governmental agency cannot be held vicariously liable for its employee’s intentional torts[.]” As to Crosby, she failed to “submit evidence to establish that she had immunity and it does not appear on the face of the allegations that” she was entitled to immunity under Odom. But Wood did not allege facts establishing “that Chief Judge McConico or Crosby had the authority to take an adverse employment action, which would give rise to a common law duty to refrain from doing so in violation of public policy.” Thus, given that she “failed to allege an essential element of her claim” against them, they should have been granted summary disposition under MCR 2.116(C)(8). Further, amending the complaint would be futile as to Crosby (who had no authority to fire her) and would not avoid Chief Judge McConico’s immunity.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 79483
    Case: Tranbarger v. Lincoln Life & Annuity Co. of NY
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Readler, Cole, and Nalbandian; Concurrence – Nalbandian
    Issues:

    Whether the denial of long-term disability (LTD) benefits violated the Employee Retirement Income Security Act (ERISA); Whether plaintiff demonstrated “a continuous inability” to perform the main duties of an accounts receivable manager during the plan’s elimination period

    Summary:

    The court held that plaintiff-Tranbarger was not entitled to LTD benefits where she failed to show that she was unable to perform each of the main duties of her job as an accounts receivable manager during the plan’s six-month elimination period after her resignation. She began to suffer from various medical conditions after gallbladder surgery, including pain and chronic fatigue syndrome. She left her job and later sought LTD benefits through the disability insurance plan in which she had enrolled through her employer. Defendant-Lincoln operated the plan. To receive the benefits, she was required to “show 'total disability' such that she was 'unable to perform each of the [m]ain [d]uties of . . . her [o]wn [o]ccupation'—an accounts receivable manager—during a six-month 'Elimination Period' following her resignation.” She presented medical evidence and other evidence, including approval for Social Security disability, but Lincoln denied her claim. She sued, alleging that the denial violated ERISA. The district court ruled in Lincoln’s favor. On appeal, the court first considered whether Tranbarger was able to show that she had “a continuous inability to perform the main duties of an accounts receivable manager during the six months following her resignation[.]” It noted that this was a high bar to meet where “[e]ven one day of partial work ability during the Elimination Period is enough to defeat Tranbarger’s claim.” The court found the evidence in the administrative record as to her functional capacity was “middling.” It then concluded that she failed to meet the plan’s “rigorous standard” of continuous inability to perform the main duties of her former job through the elimination period. The court found there was “ample evidence” suggesting she could “perform some work in some instances.” Thus, even though the record made clear that she “suffered considerable pain[,]” this was not enough to “satisfy the plan’s rigid eligibility” standards. The court noted that although the Mayo Clinic diagnosed her with fibromyalgia and chronic pain syndrome, these “general diagnoses” did not answer whether she was able to work during the critical period. It also explained that a decision regarding Social Security benefits is not binding in an ERISA case. Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 79531
    Case: Haynie v. Moma
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Child custody; Established custodial environment (ECE); Proper cause or change of circumstances; The statutory best-interest factors; MCL 722.23; Factors (c), (d), (e), (f), (h), & (j)

    Summary:

    The court held that the trial court did not make findings against the great weight of the evidence in concluding that best-interest factors (c), (d), (e), (f), (h), and (j) all favored defendant-mother, and thus, “did not palpably abuse its discretion by awarding [her] sole physical custody”​ of the parties’ children. The trial court granted the parties’ joint legal custody over the children, with defendant receiving sole physical custody and plaintiff-father receiving parenting time. On appeal, the court rejected plaintiff’s argument that the trial court erred by incorrectly finding various best-interest factors in favor of defendant, particularly when the children had an ECE with plaintiff in Michigan, not with defendant in Colorado. It found that the trial court’s decision to slightly favor defendant on factor (c) was not against the great weight of the evidence, and that its decision to favor her on factors (d), (e), (f), (j), and (h) were also not against the great weight of the evidence. Affirmed.

    Full Text Opinion

  • Freedom of Information Act (1)

    Full Text Opinion

    This summary also appears under Open Meetings Act

    e-Journal #: 79498
    Case: Hindelang v. City of Grosse Pointe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Patel, Cavanagh, and Redford
    Issues:

    Alleged violation of the Freedom of Information Act (FOIA) related to a city’s approval of a lot split of a residential lot; The litigation exception; MCL 15.243(1)(v); Central MI Univ Supervisory Technical Ass’n v Central MI Univ Bd of Trs; Taylor v Lansing Bd of Water & Light; Alleged violation of city ordinances; Distinguishing between administrative & legislative functions; Sun Cmtys v Leroy Twp; Alleged violations of the Open Meetings Act (OMA); Posting, signature, & approval of minutes; MCL 15.269(1) & (3); Closed sessions; MCL 15.268(1)(a)-(l); Vermilya v Delta Coll Bd of Trs; Actions to invalidate decisions; MCL 15.270; Public access; MCL 15.263(6)

    Summary:

    The court held that the trial court did not err by finding the documents plaintiffs-property owners requested under FOIA were exempt from disclosure, by dismissing their claims alleging violations of city ordinances, or by granting defendants-city, city council, city manager, city clerk and mayor summary disposition of plaintiff’s claims under the OMA. Plaintiffs sued defendants after they approved a lot split for the lot next door to them. The trial ruled in favor of defendants and dismissed plaintiffs’ claims. On appeal, the court found that the trial court did not err by ruling that the documents plaintiffs requested under the FOIA were exempt from disclosure under the litigation exception, noting that “[e]ven under a narrow interpretation of this exemption . . . [the] documents were ‘related’ to the civil action.” The court also found that the trial court did not err by dismissing several of plaintiffs’ claims alleging violations of city ordinances, noting that because “the approval of a lot split does not involve the adoption of an ordinance or the revision of an ordinance,” plaintiffs’ claim that “the lot split was improperly decided on the basis of purported ordinance violations requires an appeal to the circuit court.” Finally, the court found that the trial court did not err by granting defendants summary disposition of certain OMA claims. It found defendants did not violate the OMA or a local ordinance by failing to post signed city council meeting minutes, by failing to approve the minutes of a meeting at issue at the next meeting, by going into a closed session in another meeting, or by failing to allow public or Zoom access. The court further found that defendants did not violate the OMA by failing to make certain minutes of meetings timely available to the public, as they were made available within the specified time limit. Lastly, it held that defendants did not violate the OMA by deliberating and making decisions during a meeting closed to the public, or by allegedly submitting false and misleading minutes. Affirmed.

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 79530
    Case: Michigan Brain & Spine Surgery Ctr. v. American Alternative Ins. Corp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Healthcare provider action for personal protection insurance (PIP) benefits; The parked-vehicle exclusion; MCL 500.3105(1); Exception in MCL 500.3106(1)(b); Kemp v Farm Bureau Gen Ins Co of MI; Adanalic v Harco Nat’l Ins Co; The “transportational function requirement”; Putkamer v Transamerica Ins Corp of Am

    Summary:

    In this action for PIP benefits brought by a healthcare provider, the court held (as it did in a related case brought by the injured person) that the trial court erred as to the exception to the parked-vehicle exclusion in MCL 500.3106(1)(b). Thus, as it did in the related case (Djeljaj v American Alternative Ins Corp, which appeared in the 5/25/23 edition), it reversed summary disposition for defendant-insurer and remanded. Plaintiff’s patient, Djeljaj, was strapped to a stretcher, being loaded into an ambulance when the stretcher overturned and he hit the pavement with his head and shoulder. The trial court interpreted Kemp as requiring plaintiff show “that (1) Djeljaj owned or possessed the property, (2) he was in physical contact with the property and either lifting it from or onto the vehicle, and (3) he was injured due to physical contact with that property.” The court concluded it misconstrued Kemp as to this “first ‘requirement[.]’” It found that a requirement that “the property at issue be owned or possessed by the plaintiff” would be at odds with MCL 500.3106(1)(b)’s plain language, “which contains no words mandating an interest in the property beyond the requirement of ‘physical contact’ with ‘property being lifted or lowered from the vehicle in the loading or unloading process.’” The trial court also determined that the provision did not apply “because Djeljaj was not actively engaged in lifting the property—that is, the stretcher—into the ambulance. This reasoning is again unavailing because neither the plain statutory language nor Kemp imposes such a requirement.” The trial court further reasoned “that Djeljaj’s injuries were caused not by his contact with the stretcher, but by his contact with the ground when the stretcher overturned.” But the court rejected this reasoning in Adanalic. “Djeljaj’s contact with the ground was inextricably tied to his physical contact with the stretcher. But for having been secured to the stretcher, Djeljaj would never have fallen to the ground and sustained injuries upon impact.” Given that the evidence suggested “Djeljaj’s injury was a direct result of physical contact with the stretcher as it was being lifted onto the ambulance in the loading process, the trial court erred by concluding that MCL 500.3106(1)(b) was inapplicable as a matter of law.” The court also concluded, among other things, “that there was a sufficient causal relationship between his injuries and such use of the ambulance.”

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 79530
    Case: Michigan Brain & Spine Surgery Ctr. v. American Alternative Ins. Corp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Healthcare provider action for personal protection insurance (PIP) benefits; The parked-vehicle exclusion; MCL 500.3105(1); Exception in MCL 500.3106(1)(b); Kemp v Farm Bureau Gen Ins Co of MI; Adanalic v Harco Nat’l Ins Co; The “transportational function requirement”; Putkamer v Transamerica Ins Corp of Am

    Summary:

    In this action for PIP benefits brought by a healthcare provider, the court held (as it did in a related case brought by the injured person) that the trial court erred as to the exception to the parked-vehicle exclusion in MCL 500.3106(1)(b). Thus, as it did in the related case (Djeljaj v American Alternative Ins Corp, which appeared in the 5/25/23 edition), it reversed summary disposition for defendant-insurer and remanded. Plaintiff’s patient, Djeljaj, was strapped to a stretcher, being loaded into an ambulance when the stretcher overturned and he hit the pavement with his head and shoulder. The trial court interpreted Kemp as requiring plaintiff show “that (1) Djeljaj owned or possessed the property, (2) he was in physical contact with the property and either lifting it from or onto the vehicle, and (3) he was injured due to physical contact with that property.” The court concluded it misconstrued Kemp as to this “first ‘requirement[.]’” It found that a requirement that “the property at issue be owned or possessed by the plaintiff” would be at odds with MCL 500.3106(1)(b)’s plain language, “which contains no words mandating an interest in the property beyond the requirement of ‘physical contact’ with ‘property being lifted or lowered from the vehicle in the loading or unloading process.’” The trial court also determined that the provision did not apply “because Djeljaj was not actively engaged in lifting the property—that is, the stretcher—into the ambulance. This reasoning is again unavailing because neither the plain statutory language nor Kemp imposes such a requirement.” The trial court further reasoned “that Djeljaj’s injuries were caused not by his contact with the stretcher, but by his contact with the ground when the stretcher overturned.” But the court rejected this reasoning in Adanalic. “Djeljaj’s contact with the ground was inextricably tied to his physical contact with the stretcher. But for having been secured to the stretcher, Djeljaj would never have fallen to the ground and sustained injuries upon impact.” Given that the evidence suggested “Djeljaj’s injury was a direct result of physical contact with the stretcher as it was being lifted onto the ambulance in the loading process, the trial court erred by concluding that MCL 500.3106(1)(b) was inapplicable as a matter of law.” The court also concluded, among other things, “that there was a sufficient causal relationship between his injuries and such use of the ambulance.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 79483
    Case: Tranbarger v. Lincoln Life & Annuity Co. of NY
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Readler, Cole, and Nalbandian; Concurrence – Nalbandian
    Issues:

    Whether the denial of long-term disability (LTD) benefits violated the Employee Retirement Income Security Act (ERISA); Whether plaintiff demonstrated “a continuous inability” to perform the main duties of an accounts receivable manager during the plan’s elimination period

    Summary:

    The court held that plaintiff-Tranbarger was not entitled to LTD benefits where she failed to show that she was unable to perform each of the main duties of her job as an accounts receivable manager during the plan’s six-month elimination period after her resignation. She began to suffer from various medical conditions after gallbladder surgery, including pain and chronic fatigue syndrome. She left her job and later sought LTD benefits through the disability insurance plan in which she had enrolled through her employer. Defendant-Lincoln operated the plan. To receive the benefits, she was required to “show 'total disability' such that she was 'unable to perform each of the [m]ain [d]uties of . . . her [o]wn [o]ccupation'—an accounts receivable manager—during a six-month 'Elimination Period' following her resignation.” She presented medical evidence and other evidence, including approval for Social Security disability, but Lincoln denied her claim. She sued, alleging that the denial violated ERISA. The district court ruled in Lincoln’s favor. On appeal, the court first considered whether Tranbarger was able to show that she had “a continuous inability to perform the main duties of an accounts receivable manager during the six months following her resignation[.]” It noted that this was a high bar to meet where “[e]ven one day of partial work ability during the Elimination Period is enough to defeat Tranbarger’s claim.” The court found the evidence in the administrative record as to her functional capacity was “middling.” It then concluded that she failed to meet the plan’s “rigorous standard” of continuous inability to perform the main duties of her former job through the elimination period. The court found there was “ample evidence” suggesting she could “perform some work in some instances.” Thus, even though the record made clear that she “suffered considerable pain[,]” this was not enough to “satisfy the plan’s rigid eligibility” standards. The court noted that although the Mayo Clinic diagnosed her with fibromyalgia and chronic pain syndrome, these “general diagnoses” did not answer whether she was able to work during the critical period. It also explained that a decision regarding Social Security benefits is not binding in an ERISA case. Affirmed.

    Full Text Opinion

  • Juvenile Law (2)

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 79544
    Case: In re Shelton
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Waiver of jurisdiction over respondent-juvenile to be tried as an adult; Probable cause; MCR 3.950(D)(1); Factors in MCR 3.950(D)(2)(d); MCL 712A.4(4)

    Summary:

    Concluding that there were no errors warranting reversal regarding the trial court waiving jurisdiction over respondent-juvenile to be tried as an adult and transferring the case to the criminal division of the circuit court, the court affirmed. Respondent was charged with open murder for the shooting death of M. “Because respondent was a minor when the offense occurred,” the prosecution (petitioner) “initially filed a delinquency petition in the trial court. Later, petitioner filed a motion asking the court to waive jurisdiction and allow respondent to be tried as an adult. Petitioner also asked for” a CCW charge to be added. After the first phase of the waiver hearing, the trial “court determined that there was probable cause that respondent committed the offenses of open murder and [CCW]. And, after the second phase of the waiver hearing, [it] found that the interests of respondent and the public would be best served by waiver.” As to the first phase, the court held that there was “enough to ‘conscientiously entertain’ a reasonable belief that respondent either fired the shots that resulted in [M’s] death, or acted in concert with his co-respondent to cause [M’s] death and is guilty of felony murder or guilty on an aiding and abetting theory, based on the evidence presented.” Thus, the trial court “did not clearly err by finding that there was probable cause to believe that respondent committed the offenses of open murder and” CCW. As to the second phase, the court concluded “the trial court did not abuse its discretion by determining that the interests of respondent and the public would be best served by a waiver.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 79523
    Case: People v. Logan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Sentencing of a juvenile offender; Miller v Alabama; Life imprisonment without the possibility of parole (LWOP); People v Snow

    Summary:

    The court held that the “trial court properly considered factors outlined in Miller before imposing a sentence within the statutory guidelines range and considered [defendant-Logan’s] youth as a mitigating factor at sentencing.” He was convicted of first-degree felony murder, armed robbery, conspiracy to commit armed robbery, and felony-firearm for offenses he committed when he was 16 years old. He was sentenced as an adult to a mandatory term of LWOP for his felony-murder conviction. Following Miller, the trial court resentenced him to 35 to 60 years. The volume of analysis alone contradicted Logan’s claim that the trial “court gave inadequate mitigating weight to the characteristics of youth in imposing sentence.” The court noted the trial court “acknowledged that Logan’s decisions at that point in his life were driven by his need to escape his home environment.” The trial court “clearly explained why mitigation was not available on this factor, but balanced this consideration with the other factors and circumstances identified.” The court held that the trial court identified and analyzed each Miller factor in turn. Although the trial “court did not specifically list the objectives of Snow, the court’s on-the-record analysis covered those factors as well. And the court considered the hallmarks of Logan’s youth as a mitigating factor.” The trial court’s “analysis of the Miller factors and their application under the circumstances of this case justified the court’s determination that a 40-year minimum sentence was not justified, but that a minimum sentence within the middle-to-high end of the range was. [It] discussed Logan’s rehabilitative efforts and successes at length, while acknowledging the seriousness of the offense. Overall, the sentencing court conducted the required analysis, found that Logan’s youth was a factor mitigating against the highest permissible sentence, and fashioned a proportionate sentence.” Affirmed.

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79510
    Case: Revitzer v. Swanson
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Whether fraudulent concealment tolled plaintiff’s claims; MCL 600.5855; Mays v Snyder

    Summary:

    The court held that the trial court did not err by granting defendants-police officers summary disposition of plaintiff-truck driver’s claims. Plaintiff was driving his truck when he was involved in a pileup accident during a snowstorm. Defendants investigated the accident and believed plaintiff was responsible for the deaths of two children in the accident. His commercial driver’s license was revoked, a warrant request was submitted seeking manslaughter charges (the prosecutor declined to bring charges), and he was sued civilly. Plaintiff eventually sued defendants for defamation, gross negligence and intentional infliction of emotional distress, civil conspiracy, and fraudulent concealment. The trial court granted summary disposition for defendants. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition for defendants on the basis that the fraudulent concealment rule tolled the applicable statutes of limitations for his claims. “Fatal to plaintiff’s argument . . . is the evidence in the record demonstrating that, as early as 2015 or as late as 2017, plaintiff knew or should have known of defendants’ mishandling of” two sets of paint samples. “[T]he record demonstrates that plaintiff . . . knew or should have known about his causes of action against defendants by September 2017 at the latest, meaning that plaintiff would have needed to file a complaint by September 2019. Accordingly, plaintiff’s complaint filed in 2021 was barred by the applicable statutes of limitations . . . .” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79482
    Case: Appalachian Reg'l Healthcare, Inc. v. U.S. Nursing Corp.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay, Moore, and Stranch
    Issues:

    Motion for a new trial; Whether an evidentiary error was harmful & prejudicial; The “fair assurance” test; Schrand v Federal Pac Elec Co; Whether a party’s closing argument comments warranted a new trial

    Summary:

    The court held that the district court did not abuse its discretion by ruling that the erroneous preclusion of evidence did not affect defendant-U.S. Nursing’s substantial rights and by denying its motion for a new trial. Defendant and plaintiff-Appalachian entered into an agreement for defendant to provide plaintiff’s hospital with nurses during a strike. Defendant agreed to indemnify and defend plaintiff for any negligence by the assigned employees. This action for indemnification arose from the costs plaintiff incurred in a state-court lawsuit based on a nurse’s alleged involvement in exacerbating a patient’s injuries. The state-court case settled. In this case, the district court granted plaintiff’s motion in limine, prohibiting any argument or testimony that nurses who were its employees (H and P) were involved. In closing argument, plaintiff argued there was no evidence that either H or P had moved the patient, and that defendant failed to offer evidence or argument that either was the one who did. Defendant did not object to the statement. But on appeal it argued that these remarks were “inappropriate and prejudicial because U.S. Nursing was prohibited from making such an argument by the district court’s granting of the motion in limine.” Plaintiff prevailed at trial. After a prior appeal and remand, the district court declined to order a new trial. In this appeal, the court first noted there has been conflict in the circuit as to “how to determine whether an evidentiary error was harmful.” The court held that it was bound by the decision in Schrand, which “adopted the ‘fair assurance’ test, holding that ‘[i]f one cannot say, with fair assurance, . . . that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.’” In concluding the district court did not abuse its discretion in denying defendant a new trial, the court noted the district court observed that the motion in limine did not ask it to prohibit defendant “from introducing any evidence at trial that” its employee (F) “‘did not move’” the patient. Thus, defendant was “not prohibited from introducing much of the evidence it highlights in its briefs.” As a result, the district court did not abuse its discretion by determining it had a “fair assurance” that the trial’s outcome was not “substantially swayed” by its evidentiary error. The court noted that the excluded evidence did “very little to support” defendant’s argument that F did not move the patient. Further, the motion in limine was granted after the close of discovery. As to plaintiff’s attorney’s closing argument comments, while the district court did not consider this issue, the court concluded “that although the comments were inappropriate, they do not mandate a new trial.” Affirmed.

    Full Text Opinion

  • Malpractice (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 79601
    Case: Compagner v. Burch
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Boonstra and Redford; Concurring in part, Dissenting in part – K.F. Kelly
    Issues:

    Medical malpractice; Accrual; MCL 600.5838a(1); Haksluoto v Mt Clemens Reg’l Med Ctr; The six-year statutory period of repose; MCL 600.5838a(2); Nortley v Hurst; Notice of intent (NOI); MCL 600.2912b(1); Computation of time under MCR 1.108(1); Tolling; MCL 600.5856(c); Carter v DTN Mgmt Co; Wenkel v Farm Bureau Gen Ins Co of MI; Armijo v Bronson Methodist Hosp; Linstrom v Trinity Health-MI; Hubbard v Stier; Whether the Supreme Court’s Administrative Order (AO) 2020-3 (original & amended) extended the filing period; Constitutional validity of the AOs; Browning v Buko; Separation of powers; McDougall v Schanz; The Supreme Court’s constitutional purview; MI Const Art. 6 § 5; Effect of binding precedent; The court’s discretion to review controlling legal issues; MCR 7.203(A) & (B); Special conflict panel

    Summary:

    Noting it was bound by Carter, the court held that plaintiff’s medical malpractice complaint was timely filed. However, it disagreed with Carter’s determination that the Michigan Supreme Court had the constitutional authority to issue AO 2020-3, “and but for Carter would hold that the Supreme Court did not have the constitutional authority to” do so and thus, that plaintiffs’ complaint was “untimely filed (after the expiration of the applicable statute of repose), and would reverse and remand for entry of summary disposition” for defendants. The court called “for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between our rationale and that of Carter relative to the constitutional validity of AO 2020-3.” Plaintiffs sued defendants for medical malpractice. The trial court denied defendants’ motion for summary disposition, finding the action was timely filed and not barred by the applicable statute of repose. “Excluding, under Carter, the 102 days of the exclusion period from the applicable statute of repose, and further applying the tolling of the statute of repose by the service of plaintiffs’ NOI, plaintiffs’ complaint was timely filed.” However, the court agreed with defendants that the Supreme Court did not have the authority to issue AOs 2020-3 and 2020-18. “[W]e follow Carter on this issue, but only because we are required to do so . . . . But for Carter, we would hold that our Supreme Court did not have the constitutional authority to issue AO 2020-3 and AO 2020-18 and that plaintiffs’ complaint was” untimely filed as a result. The court found that the Supreme Court unconstitutionally intruded into the legislative sphere. “While the early days of the pandemic certainly were trying and filled with uncertainty . . . , and while the Supreme Court’s intentions were undoubtedly laudable, in retrospect its issuance of AO 2020-3 was plainly unconstitutional. Should this issue reach the Supreme Court, we respectfully suggest that it should acknowledge as much and similarly conclude.” In sum, the court held that “Carter was wrongly decided; the Supreme Court did not have the constitutional authority to issue AO 2020-3 (or the related AOs). Plaintiffs’ complaint was therefore untimely filed . . . .” The court declared a conflict with Carter “relative to the constitutional validity of the Supreme Court’s AOs.”

    Full Text Opinion

  • Municipal (2)

    Full Text Opinion

    This summary also appears under Zoning

    e-Journal #: 79600
    Case: Jostock v. Mayfield Twp.
    Court: Michigan Court of Appeals ( Published-After-Release Opinion )
    Judges: Per Curiam – M.J. Kelly, Swartzle, and Feeney
    Issues:

    Dispute over a township’s rezoning of a property from residential to commercial; Judicial review of a validly enacted zoning ordinance; Conditional rezoning; MCL 125.3405(1); Connell v Lima Twp; “Spot zoning”; Anderson v Highland Twp; Michigan Zoning Enabling Act (MZEA)

    Summary:

    [This opinion was previously released as an unpublished opinion on 5/4/22.] The court held that the trial court did not err by determining that plaintiffs successfully challenged defendants-township and dragway operator’s (A2B) conditional zoning agreement and awarding them declaratory relief. Plaintiffs sought a declaration that the township’s rezoning of A2B’s property from residential to commercial use to expand its nonconforming use as a drag racing facility was invalid. The trial court agreed, finding the amendment served no purpose and advanced no reasonable governmental interest, and granted plaintiffs’ request. On appeal, the court first found that the township properly complied with the MZEA to form an agreement with A2B. It next disagreed with plaintiffs that the zoning agreement constituted impermissible “spot zoning.” The conditional rezoning plan “did not create or permit a use that was inconsistent with the surrounding area, because the nonconforming use of the property as a drag racing facility had existed for decades.” The court noted that “the trial court did not reference ‘spot zoning,’ or use inconsistent with the surrounding parcels.” Finally, however, it found plaintiffs met their burden in challenging the conditional zoning. “When the agreed rezoning anticipates a use excluded by the zoning district in question, it is fatal to the operation of the conditional zoning agreement. Thus, the conditional zoning agreement was void according to [the ordinance], and as the trial court held, ‘there is no reasonable governmental interest being advanced’ by the agreement.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 79599
    Case: Midwest Valve & Fitting Co. v. City of Detroit
    Court: Michigan Court of Appeals ( Published-After-Release Opinion )
    Judges: Riordan, Rick, and M.J. Kelly
    Issues:

    Challenges to permit fees charged to owners of commercial & multiunit residential real property by a city; Alleged violation of § 31 of the Headlee Amendment; Unjust enrichment; Violation of MCL 141.91; Bolt v City of Lansing; Fees that benefit the general public; Westlake Transp, Inc v Public Serv Comm’n; Alleged violations of the city charter & ordinances; Retroactive approval of the charges by the city council; “Issuance”; “Permit”; Equal protection; Rational basis review; Assumpsit; Fisher Sand & Gravel Co v Neal A Sweebe, Inc

    Summary:

    [This opinion was previously released as an unpublished opinion on 03/09/2023.] Rejecting appellant’s multiple challenges to the legality of certain charges imposed by defendant-City of Detroit on owners of commercial and multitenant residential real property, the court affirmed the trial court’s ruling that the charges are legal. Counts I, IV, and V of appellant’s complaint alleged “violations of § 31 of the Headlee Amendment and MCL 141.91.” The court noted there was no fact question that the charges “here were for the acquisition of permits, not inspections.” Applying the Bolt factors, it concluded as to the first factor (whether the charge serves a regulatory purpose rather than a revenue-raising one) that this case was analogous to Westlake – appellant here received “a benefit by being allowed to operate its business in Detroit. Thus, appellant received ‘a direct benefit’ from paying the charge. The fact that the general public also benefits from the Fire Protection Program does not negate the charge’s regulatory nature.” Next, the court determined that the charge appeared “to be proportionate to the necessary costs of the service” the City was providing. As to the third factor, whether the charge was voluntary, the trial court assumed that it was not, and the court agreed. After weighing the three factors, “the trial court ruled the charge was a fee, not a tax.” The court agreed with its analysis and found that it did not err. The court noted that the fact the charge was involuntary by itself was insufficient “to overcome the other two factors that appellant received a benefit and that the fee is proportional. Because the charge at issue is a fee, not a tax, appellant” could not succeed “on its claims alleging violations of the Headlee Amendment and MCL 141.91.” The court further held that the trial court did not err in finding no cause of action for the “claims related to the violation of the city charter and ordinances.” Among other things, it rejected appellant’s argument that the city council’s retroactive approval of the charges was a nullity, and it concluded that the city “ordinance allows for the recovery of the costs of the Fire Prevention Program in the issuance of the permits.” Finally, as to appellant’s equal protection claim, the court applied rational basis review in determining that the trial court did not err in finding no cause of action for this claim.

    Full Text Opinion

  • Negligence & Intentional Tort (3)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 79512
    Case: Deliz v. Gusmano
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Tortious interference with a contract; Breach of the contract element; Breach of contract claim; Enforceability of the contract; Innovation Ventures v Liquid Mfg; Consideration; The preexisting duty rule; Economic duress; Skaates v Kayser; Unjust enrichment

    Summary:

    In these related cases, the court held in the first one that plaintiff-Deliz’s tortious interference with a contract claim failed because he did not establish the contract breach element. In the second one (in which Deliz was the defendant), the court found the trial court did not err in granting plaintiff-John B. Gusmano (John B) summary disposition on his breach of contract claim. It rejected Deliz’s arguments the reconciliation agreement at issue was not enforceable due to lack of consideration and his economic duress. Also in that case, as Deliz could not show an inequity, his counterclaim for unjust enrichment failed. Thus, the court affirmed in both appeals. The cases arose from a shareholder dispute in a family-owned business and its sale in 2018. Two defendants in the first case, John A Gusmano and Thomas John Gusmano, are brothers, and the third defendant, Anthony, is John A’s son. Deliz is a cousin of John B and Anthony. He “alleged that John A, Thomas John, and Anthony tortiously interfered with” a 5/17 stock purchase agreement he had with John B. However, it was undisputed that he and John B fully performed that agreement. Because he did not show, or allege, “that the contract allegedly interfered with—the [5/17] stock purchase agreement—was breached in any way, his tortious interference claim failed.” The second case involved John B’s claims for breach of contract against Deliz related to a “reconciliation agreement” and Deliz’s counterclaim for unjust enrichment. He argued that the agreement was not enforceable, first asserting that the consideration (“John A, Thomas John, and Anthony’s promise to proceed with the Standex sale”) was not adequate because they had a preexisting duty to do so. But the court found his argument “unpersuasive because he failed to provide sufficient evidentiary support for his claim that, at the time of the [8/18] shareholders meeting, there were independent agreements between the other shareholders, or between them and Standex, requiring them to sell their stock to Standex.” The court concluded Deliz did not show that the preexisting duty rule applied. Further, the trial court properly rejected his duress claim. There was no allegation or evidence that he “was compelled to agree to any term that did not equally apply to the other shareholders, or that affected him any differently, financially or otherwise, than the” others.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 79510
    Case: Revitzer v. Swanson
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Whether fraudulent concealment tolled plaintiff’s claims; MCL 600.5855; Mays v Snyder

    Summary:

    The court held that the trial court did not err by granting defendants-police officers summary disposition of plaintiff-truck driver’s claims. Plaintiff was driving his truck when he was involved in a pileup accident during a snowstorm. Defendants investigated the accident and believed plaintiff was responsible for the deaths of two children in the accident. His commercial driver’s license was revoked, a warrant request was submitted seeking manslaughter charges (the prosecutor declined to bring charges), and he was sued civilly. Plaintiff eventually sued defendants for defamation, gross negligence and intentional infliction of emotional distress, civil conspiracy, and fraudulent concealment. The trial court granted summary disposition for defendants. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition for defendants on the basis that the fraudulent concealment rule tolled the applicable statutes of limitations for his claims. “Fatal to plaintiff’s argument . . . is the evidence in the record demonstrating that, as early as 2015 or as late as 2017, plaintiff knew or should have known of defendants’ mishandling of” two sets of paint samples. “[T]he record demonstrates that plaintiff . . . knew or should have known about his causes of action against defendants by September 2017 at the latest, meaning that plaintiff would have needed to file a complaint by September 2019. Accordingly, plaintiff’s complaint filed in 2021 was barred by the applicable statutes of limitations . . . .” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 79506
    Case: Wood v. 36th Dist. Court
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Cameron
    Issues:

    Claims arising from alleged wrongful employment termination; Governmental immunity; MCL 691.1407(1); An agency’s hiring, supervising, & firing of its employees as the exercise or discharge of a governmental function; Vicarious liability; MCL 691.1407(2); Intentional torts; Odom v Wayne Cnty; Wrongful termination contrary to public policy; Suchodolski v Michigan Consol Gas Co; Motion for summary disposition under MCR 2.116(C)(8); The court’s jurisdiction to hear an appeal; MCR 7.205(A)(1)(a) & (4)(a); Whether an application for leave was defective

    Summary:

    Rejecting plaintiff-Wood’s jurisdictional challenge, the court held that because she failed to plead in avoidance of governmental immunity, defendant-36th District Court was entitled to summary disposition of her claim that it could be held liable for wrongfully terminating her employment contrary to public policy. Further, while the trial court did not err in denying defendant-Crosby summary disposition based on immunity, the court held that it did err in determining Wood adequately alleged a wrongful termination claim against her. Thus, it reversed the trial court’s opinion and order in relevant part in both of these consolidated appeals and remanded for entry of an order dismissing Wood’s wrongful termination claims against Crosby and the District Court. She alleged these defendants and defendant-Chief Judge McConico wrongfully terminated her employment as a magistrate judge. Crosby was the District Court’s interim administrator at the time. As to the merits, the court held that as the “District Court had the authority to terminate Wood’s employment as a magistrate” its action in doing so was a governmental function, “for which it had absolute immunity from tort liability[.]”As a result, it “could not be directly liable in tort for terminating Wood’s employment in violation of public policy.” The court further held that the District Court could not be vicariously liable for Wood’s wrongful discharge “by one of its employees. Wrongful discharge involves an intentional act performed in contravention of public policy,” and the court noted that “it is well settled that a governmental agency cannot be held vicariously liable for its employee’s intentional torts[.]” As to Crosby, she failed to “submit evidence to establish that she had immunity and it does not appear on the face of the allegations that” she was entitled to immunity under Odom. But Wood did not allege facts establishing “that Chief Judge McConico or Crosby had the authority to take an adverse employment action, which would give rise to a common law duty to refrain from doing so in violation of public policy.” Thus, given that she “failed to allege an essential element of her claim” against them, they should have been granted summary disposition under MCR 2.116(C)(8). Further, amending the complaint would be futile as to Crosby (who had no authority to fire her) and would not avoid Chief Judge McConico’s immunity.

    Full Text Opinion

  • Open Meetings Act (1)

    Full Text Opinion

    This summary also appears under Freedom of Information Act

    e-Journal #: 79498
    Case: Hindelang v. City of Grosse Pointe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Patel, Cavanagh, and Redford
    Issues:

    Alleged violation of the Freedom of Information Act (FOIA) related to a city’s approval of a lot split of a residential lot; The litigation exception; MCL 15.243(1)(v); Central MI Univ Supervisory Technical Ass’n v Central MI Univ Bd of Trs; Taylor v Lansing Bd of Water & Light; Alleged violation of city ordinances; Distinguishing between administrative & legislative functions; Sun Cmtys v Leroy Twp; Alleged violations of the Open Meetings Act (OMA); Posting, signature, & approval of minutes; MCL 15.269(1) & (3); Closed sessions; MCL 15.268(1)(a)-(l); Vermilya v Delta Coll Bd of Trs; Actions to invalidate decisions; MCL 15.270; Public access; MCL 15.263(6)

    Summary:

    The court held that the trial court did not err by finding the documents plaintiffs-property owners requested under FOIA were exempt from disclosure, by dismissing their claims alleging violations of city ordinances, or by granting defendants-city, city council, city manager, city clerk and mayor summary disposition of plaintiff’s claims under the OMA. Plaintiffs sued defendants after they approved a lot split for the lot next door to them. The trial ruled in favor of defendants and dismissed plaintiffs’ claims. On appeal, the court found that the trial court did not err by ruling that the documents plaintiffs requested under the FOIA were exempt from disclosure under the litigation exception, noting that “[e]ven under a narrow interpretation of this exemption . . . [the] documents were ‘related’ to the civil action.” The court also found that the trial court did not err by dismissing several of plaintiffs’ claims alleging violations of city ordinances, noting that because “the approval of a lot split does not involve the adoption of an ordinance or the revision of an ordinance,” plaintiffs’ claim that “the lot split was improperly decided on the basis of purported ordinance violations requires an appeal to the circuit court.” Finally, the court found that the trial court did not err by granting defendants summary disposition of certain OMA claims. It found defendants did not violate the OMA or a local ordinance by failing to post signed city council meeting minutes, by failing to approve the minutes of a meeting at issue at the next meeting, by going into a closed session in another meeting, or by failing to allow public or Zoom access. The court further found that defendants did not violate the OMA by failing to make certain minutes of meetings timely available to the public, as they were made available within the specified time limit. Lastly, it held that defendants did not violate the OMA by deliberating and making decisions during a meeting closed to the public, or by allegedly submitting false and misleading minutes. Affirmed.

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 79529
    Case: Hall v. El-Bathy
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Breach of contract for the sale of real property; Anticipatory repudiation; Hanesworth v Hendrickson

    Summary:

    In this breach of contract action as to the purchase of real property, the court held that the trial court erred in granting defendants summary disposition because there were questions of material fact as to whether they “repudiated the contract terms, whether this alleged repudiation continued through the remainder of the parties’ dealings, and whether [it] constituted a breach of the implied covenant of good faith and fair dealing or an otherwise substantial breach.” In sum, the court held that “in determining defendants’ breach was not substantial, the trial court’s focus on what it saw as a lack of prejudice was erroneous for two reasons. First, the trial court ignored the anticipatory repudiation doctrine principle that manifestation of one party’s continued intention not to perform excuses the other party from having to perform to maintain its rights under the contract—that repudiation, in and of itself, is an event which alters the state of the dealings so as to change the nature of the parties’ obligations. Second, the contextual consideration of the timeline and communications reflected by the renegotiation request supports plaintiff’s allegation of an intention not to proceed unless there was, in one way or another, a change in the price term; this being the first substantial breach.” Reversed and remanded.

    Full Text Opinion

  • Termination of Parental Rights (1)

    Full Text Opinion

    e-Journal #: 79543
    Case: In re Wheeler
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Murray, and Feeney
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), (i), & (j); Reasonable reunification efforts; MCL 712A.18f(3)(b); MCL 712A.19a(2); In re Hicks/Brown; Accommodations under the Americans with Disabilities Act (ADA); In re Fried; Effect of a prior involuntary termination; A parent’s obligation to participate in the services provided; In re Frey; Child’s best interests; In re Mota

    Summary:

    Holding that the DHHS made reasonable reunification efforts, that §§ (c)(i), (g), (i), and (j) were met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated based primarily on her inability to care for the child. On appeal, the court first found that the DHHS “had no obligation to provide reunification services because there was record evidence that respondent had not rectified the conditions that led to the prior termination by the time” it petitioned to remove the child. “In any event, the record established that the” DHHS made reasonable efforts. Also, because respondent failed to identify any additional services the DHHS “should have provided her that would have made a difference” in the outcome, she did not identify any errors involving the ADA or the DHHS’s efforts. “Moreover, the record revealed that the [DHHS] accommodated respondent’s special needs and provided her with services that were reasonably calculated to reunify her with the child.” The court next rejected respondent’s argument that the DHHS failed to prove a statutory ground for termination. “The trial court’s individual findings about the continued barriers proved that respondent had not rectified the conditions that led to the adjudication. They also supported the conclusion that there was no reasonable likelihood that she could rectify the conditions within a reasonable time considering the child’s age.” These findings “also supported the trial court’s determinations that the [DHHS] established the remaining statutory grounds for termination.” Finally, the court rejected respondent’s claim that termination was not in the child’s best interests. “The evidence showed that the child had a strong bond with respondent. That bond, however, did not outweigh the child’s significant medical needs. The child’s safety required a caregiver who could provide him with consistent, constant, and informed care in a safe setting.” Meanwhile, the child “had been placed with a family that included his half-sister and caregivers who were ready, willing, and able to provide him with the care that he so desperately needs.” And it was clear that “respondent would not be able to provide that care within a reasonable time, if ever. Under the circumstances, the child’s need for permanence and stability outweighed the bond that he had with his mother.”

    Full Text Opinion

  • Zoning (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 79600
    Case: Jostock v. Mayfield Twp.
    Court: Michigan Court of Appeals ( Published-After-Release Opinion )
    Judges: Per Curiam – M.J. Kelly, Swartzle, and Feeney
    Issues:

    Dispute over a township’s rezoning of a property from residential to commercial; Judicial review of a validly enacted zoning ordinance; Conditional rezoning; MCL 125.3405(1); Connell v Lima Twp; “Spot zoning”; Anderson v Highland Twp; Michigan Zoning Enabling Act (MZEA)

    Summary:

    [This opinion was previously released as an unpublished opinion on 5/4/22.] The court held that the trial court did not err by determining that plaintiffs successfully challenged defendants-township and dragway operator’s (A2B) conditional zoning agreement and awarding them declaratory relief. Plaintiffs sought a declaration that the township’s rezoning of A2B’s property from residential to commercial use to expand its nonconforming use as a drag racing facility was invalid. The trial court agreed, finding the amendment served no purpose and advanced no reasonable governmental interest, and granted plaintiffs’ request. On appeal, the court first found that the township properly complied with the MZEA to form an agreement with A2B. It next disagreed with plaintiffs that the zoning agreement constituted impermissible “spot zoning.” The conditional rezoning plan “did not create or permit a use that was inconsistent with the surrounding area, because the nonconforming use of the property as a drag racing facility had existed for decades.” The court noted that “the trial court did not reference ‘spot zoning,’ or use inconsistent with the surrounding parcels.” Finally, however, it found plaintiffs met their burden in challenging the conditional zoning. “When the agreed rezoning anticipates a use excluded by the zoning district in question, it is fatal to the operation of the conditional zoning agreement. Thus, the conditional zoning agreement was void according to [the ordinance], and as the trial court held, ‘there is no reasonable governmental interest being advanced’ by the agreement.” Affirmed.

    Full Text Opinion

Ads