Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Challenge to the denial of a request for an adoption support subsidy; Whether a request for a hearing before an administrative law judge (ALJ) was timely; The law of the case doctrine; Judicial review of an administrative decision; Polania v State Employees’ Ret Sys; Abandoned argument as to MI Admin Code, R 792.11023 (Rule 1023)
Holding that the circuit court violated the law of the case doctrine in ruling against petitioners, the court remanded. Respondents denied petitioners’ request for an adoption support subsidy for their now adopted child, for whom an order of adoption was entered in 4/09. The DHHS determined they failed to timely appeal the denial to an ALJ and dismissed the case. The probate court affirmed. In a prior appeal, the court remanded to the ALJ, who found their request for a hearing was untimely. The circuit court affirmed the ALJ’s decision. In the present appeal, the court agreed with petitioners that the circuit court’s decision violated the law of the case doctrine by finding their 5/10/09 “hearing request was inadequate to request a hearing regarding the denial of the adoption support subsidy.” The court concluded that to the extent the circuit court found “the 1605 forms were not sufficient to satisfy the request for hearing regarding the denial of an adoption subsidy, [its] finding was contrary to this Court’s prior holding that the 1605 forms, if timely filed, were adequate as a matter of law to trigger an appeal to the ALJ, and violated the” law of the case doctrine. The circuit court failed to “review the ALJ’s factual findings and determination with respect to the question that was properly before the ALJ pursuant to” the court’s remand – whether petitioners, not later than 7/23/09, “filed written and signed requests for a hearing before an ALJ.” Lastly, the court found petitioners abandoned their claim that respondents’ dismissal of their request for a hearing violated Rule 1023.
Professional (veterinary) malpractice; Two-year statute of limitations; Bryant v Oakpointe Villa Nursing Ctr
The court held that regardless of how plaintiff pled the causes of action, the case arose from the treatment of plaintiff’s dog in the course of a professional veterinary relationship. Thus, the dismissal of her first amended complaint premised on the two-year statute of limitations was proper. Plaintiff contended the trial court erred by holding the “two-year statute of limitations period applicable to medical malpractice actions governed this case because the veterinary hospital did not constitute a healthcare facility or agency and a veterinarian was not a licensed healthcare professional.” Thus, she claimed that the three-year statute of limitations applicable to ordinary negligence claims applied. Defendants last treated the dog on 6/14/17. Plaintiff filed her complaint on 11/15/19. “Because her complaint for professional malpractice was filed outside the two-year period of limitations, the trial court properly granted defendants’ motion for summary disposition.” The court rejected her “attempt to characterize her litigation as involving negligence, breach of contract, breach of warranty, and other claims related to the treatment of her dog to avoid the two-year statute of limitations.” The court held that although the “Bryant test was applied in the context of medical malpractice, we consider it as analogous to veterinary malpractice actions.” Regardless of how the case was pled, plaintiff’s claims arose “from the alleged acts and omissions of defendants in treating her dog. These claims included the failure to properly diagnose and treat the injury and infection, the failure to properly bandage the injury, the failure to provide proper emergency treatment, and the failure to provide proper discharge instructions.” Applying the Bryant test, the first prong was “satisfied because these alleged acts and omissions occurred in the context of the professional relationship between plaintiff and defendants.” The second prong was also “satisfied because the question of whether defendants properly examined, diagnosed, and treated the dog involves professional judgment that is beyond the expertise of laypeople.” Affirmed.
Right to counsel; People v Kammeraad; Right of self-representation; MCL 763.1; People v Dunigan; Waiver of counsel; MCR 6.005(D) & (E); People v Russell; People v Anderson; People v Adkins (After Remand); Principle that a complete denial of counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal; People v Arnold
Holding that the trial court failed to obtain a valid waiver of counsel before allowing defendant to represent himself at trial, the court reversed and remanded for a new trial. He was convicted of OWI, third offense. On appeal, the court agreed with defendant that he never validly waived his right to counsel, noting the trial court “failed to substantially comply with the legal requirements associated with obtaining a valid waiver of counsel.” It never advised defendant “of the maximum possible prison sentence when making the decision to allow” him to proceed pro se, and it never advised him “of the risks involved in self-representation.” As to the Anderson criteria, the trial court “did not make a determination that defendant was asserting the right to self-representation knowingly, intelligently, and voluntarily through a colloquy advising defendant of the dangers and disadvantages of self-representation.” Because the trial court did not obtain a valid waiver of counsel, “defendant was deprived of counsel during a critical stage of the proceedings: the bench trial at a minimum.” And the prosecution failed to rebut or even attempt to rebut the presumption.
Medical malpractice; Motion to strike a standard of care (SOC) expert; MCL 600.2912a(1)(b); MCL 600.2169(1)(b)(ii); Contradicting deposition testimony by affidavit; Denial of request to amend the witness list to substitute a new SOC expert; Distinguishing Tisbury v Armstrong & Duray Dev, LLC v Perrin; Admissibility of a causation expert’s testimony; MRE 702; MCL 600.2955(1)
The court held that the trial court did not err in concluding plaintiff’s SOC expert (L) was not qualified to testify as such in the family practice medicine specialty, or in denying plaintiff’s request to amend her witness list to substitute a new SOC expert. It also did not err in determining her causation expert’s (B) testimony was inadmissible and in granting defendants summary disposition as a result because she failed to show, “by scientifically acceptable evidence, that she lost an opportunity for a more favorable outcome.” The trial court dismissed all claims against defendants after granting their motion to strike L and ruling that B’s testimony was inadmissible. Defendant-Braver “is a specialist in family practice medicine and was plaintiff’s primary care physician.” Plaintiff alleged that his failure to follow up with a 12/15 “CT scan cost her the opportunity to timely treat the metastasis of her cancer.” The admissibility of L’s testimony depended on meeting the requirements of MCL 600.2169(1)(b)(ii) by showing “that during the year immediately preceding the alleged malpractice, [L] devoted a majority of her professional time to the instruction of students in family practice medicine.” The court held that plaintiff failed to do so. L testified at deposition “that she was an assistant professor in the Department of Primary Care at” a college of osteopathic medicine (referred to as Touro) from 7/14 to 12/16. Asked “if she taught a family medicine course, she replied, ‘At Touro, no.’” Plaintiff sought to establish that L’s “courses constituted instruction of family practice medicine with an affidavit in which [L] averred that ‘the physical diagnosis course and the primary care skills course are within the practice of family medicine.’” But the court determined that L’s “attempt to characterize her 2015 courses at Touro as falling ‘within the purview of the practice of family medicine’ contradicted her deposition testimony . . . . The courses [L] taught were generally applicable to all osteopathic practitioners, and” thus not in the family practice specialty. Noting that Tisbury was distinguishable and plaintiff’s reliance on Duray (involving discovery sanctions) was misplaced, the court further held that the trial court did not abuse its discretion in denying her request to substitute a new SOC expert. Finally, B’s testimony failed to meet any of MCL 600.2955(1)’s criteria. Affirmed.
Action to recover under a commercial business insurance policy for losses resulting from the COVID-19 pandemic; Coverage under the civil-authority & business-loss provisions; Gavrilides Mgmt Co, LLC v Michigan Ins Co; Amending the complaint; MCR 2.116(I)(5); Futility
Noting Gavrilides was binding precedent, the court held that defendant-insurer was properly granted summary disposition of plaintiff-insured’s claims for coverage under the civil-authority and business-loss provisions of its commercial business policy for losses resulting from the COVID-19 pandemic. Plaintiff contended “that direct physical loss of property is distinguishable from direct damage to property under the insurance policy, either of which can suffice to support a claim, and that direct physical loss of property can encompass a situation where the property owner is deprived or dispossessed of property even without physical damage to” it. The court found that, to the extent Gavrilides did not address this precise issue, plaintiff’s argument was unpersuasive. Assuming the validity of its premise, “there was no allegation or indication that plaintiff was actually deprived or dispossessed of the property. In fact, plaintiff, along with many Michigan businesses, were merely limited or restricted in the use of the property; there was no direct physical loss of” it. Plaintiff also appeared to assert “that viral particles that cause COVID-19 infested the property or that asymptomatic customers carrying the virus patronized the salon and spa, and that business losses occurred because of the infestation and/or patronage, where customers stayed” away due to concerns about viral contamination and asymptomatic carriers. The court found that such a position required allegations and evidence showing “the virus was in fact present on surfaces at plaintiff’s business or that customers were actually infected with the virus and that there were prospective customers that chose not to patronize the business specifically because of” this. It determined there were no supporting allegations in the complaint as to this theory, and even if they “had been sufficiently stated, the theory would clearly be so speculative that it could not survive summary disposition. To the extent that plaintiff’s position is that the virus, by sheer statistical probability, had to have been present at the salon and spa and thus there was necessarily damage to the property, . . . plaintiff still needed to adequately allege the specific nature of the damage and that the purported contamination caused specific business losses. The allegations lack such specificity.” The court also upheld the denial of plaintiff’s request to amend the complaint as futile. Affirmed.
The probate court’s authority to issue a preliminary injunction on its own initiative & without notice to the parties; MCL 700.1309; MCR 5.204(A); Application of the preliminary injunction factors; Slis v State; Harmless error; Due process; Notice; Opportunity to be heard
The court held that the probate court had the authority to issue the preliminary injunction prohibiting appellant-trustee and respondent from making any changes in the ownership of certain property. Further, while the probate court did not consider the preliminary injunction factors, any error was harmless given that it was undisputed appellant had no interest in the property. His due process claim also failed given his lack of a property interest, and he had constitutionally sufficient notice. Appellees-trust beneficiaries “petitioned the probate court to remove appellant as trustee and surcharge him for alleged breaches of his fiduciary duties.” The probate court sua sponte issued the preliminary injunction at a hearing on his summary disposition motion. The court noted that when “MCL 700.1309 and MCR 5.204(A) are read together, these provisions provide, under certain circumstances, a probate court may enter an injunction on its own initiative and without notice to the parties.” Appellant contended that it “abused this authority by failing to apply the four factors courts must consider before entering a preliminary injunction.” But the court concluded that although the probate court did not do so on the record, he could not show reversible error as he did not have any interest in the property at the time the injunction was issued. Thus, it “had no effect on him, and any error was harmless.” His due process claim failed for the same reason. Because he had no interest in the property, “the probate court’s order did not deprive him of anything.” In addition, the notice he received was “reasonably calculated to apprise him of this action and afford him an opportunity to present objections. Appellees served each of their filings on appellant, and so appellant was aware of the claims against him. Most importantly, he was aware that one of the claims was that he mishandled the” property. While he was not notified “in advance of the preliminary injunction, appellant offers nothing to suggest due process entitled him to specific notice of a temporary remedy the probate court may impose.” Further, he had the opportunity to be heard as to the preliminary injunction. Although he did not take advantage of it, he could have objected to the entry of the injunction at the hearing or moved for reconsideration. Affirmed.
Personal injury action; Governmental immunity; The Governmental Tort Liability Act (GTLA); The GTLA’s “highway exception”; MCL 691.1402(1); Wilson v Alpena Cnty Rd Comm’n
As it was not convinced that the trial court erred by determining the highway exception applied here, the court affirmed the judgment for plaintiff against defendant after a bench trial. While riding a bus, “plaintiff suffered a fractured back after being launched upward from her seat causing her head to strike the ceiling. A portion of the regular roadway surface had been removed in a process called ‘milling.’ When the bus drove out of the milled surface area, the rear wheels of the bus struck the ridge between the milled surface and the regular roadway, sending plaintiff and other bus occupants in her vicinity up into the air.” The court concluded the evidence supported the “trial court’s determination that the gap between pavement surfaces at issue constituted a defective condition because the transition between the milled surface and the regular roadway was not reasonably safe or convenient for public travel.” The trial court viewed video footage that “captured the inside and outside of the bus, including the transitions in the construction zone at issue and the moment the passengers were launched into the air when the bus’s rear wheels traveled over the abrupt transition in question.” It established that, although “the bus traveled under the speed limit, when the bus wheels struck the abrupt elevation change, the passengers in the back of the bus were launched into the air out of their bus seats. The incident caused plaintiff to hit her head on the ceiling. The court could reasonably conclude from the evidence that the elevation difference between the two road surfaces failed to be reasonably safe for public travel and constituted a defective condition.” The court noted that the “trial court found credible plaintiff’s expert witness’s testimony that the transition between the two road surfaces was inadequate. The trial court also found credible the testimony of another bus passenger involved in the incident who . . . later examined the location of the incident and testified that the height difference between the two road surfaces in the construction area was between four and six inches. The trial court found that the height difference between the two road surfaces significantly exceeded two inches.” The court deferred to its “factual findings which are supported by the evidence. Contrary to defendant’s argument, the trial court’s decision is not inconsistent with Wilson, . . . and does not require that road conditions be ‘perfect.’ Instead, the decision requires that vehicles be able to travel safely and conveniently on public roadways that are properly maintained.”
Whether food stamps constitute an “asset” for purposes of calculating the poverty exemption from property taxes on a principal residence; MCL 211.7u; The asset test; The ejusdem generis statutory construction doctrine; State Tax Commission (STC); Tax Tribunal (TT)
Holding that the STC and TT’s determination that food stamps constitute an asset was legally erroneous, the court reversed the TT’s final opinion and judgment denying petitioner the poverty exemption for the 2020 property taxes on her home. The STC bulletin addressing the application of MCL 211.7u was not binding and relying on it was erroneous. Absent “a legislative definition of the term ‘asset,’ the dictionary definition of the term” should have been consulted. Applying that definition, respondent-City’s “characterization of food stamps as an ‘asset’ is contrary to the defined term.” Further, the STC bulletin and the City’s asset list violated “the interpretative doctrine ejusdem generis.” The list included “tangible items or items of monetary value such as homes, buildings, vehicles, jewelry, bank accounts, loans, insurance payments, inheritances, and items received in lieu of wages. But the last item referring to federal non-cash benefits such as food stamps is not of the same kind as the other examples proffered by the STC. Food stamps cannot be sold or leveraged contrary to the terms of the program because of criminal penalties and fines.” Thus, the City erred in concluding that “it could include food stamps as an asset for purposes of calculating the poverty exemption.” The TT’s affirmance of the City’s “decision constituted an error of law.”
Charitable exemption under MCL 211.7o(3); McLaren Reg’l Med Ctr v Owosso (On Remand); “Charity”; Wexford Med Group v Cadillac; Factors used to determine if an organization is a charitable institution; Tax Tribunal (TT)
Holding that petitioner-nonprofit corporation was entitled to a charitable exemption under MCL 211.7o(3), the court affirmed the TT’s grant of summary disposition to petitioner. The case concerned real property owned by petitioner and occupied by a parish of the Roman Catholic Archdiocese of Detroit. The TT “ruled that petitioner was entitled to a so-called ‘pass-through’ exemption under MCL 211.7o(1),” but the court did not reach this issue because it agreed with petitioner’s alternative ground for affirmance, MCL 211.7o(3). It determined the TT “erred in finding that petitioner was not a charitable institution. Application of the Wexford factors requires the conclusion that petitioner qualifies as a charitable institution.” Respondent only disputed the second, third, and fourth Wexford factors. As to the second factor, the court found the evidence, including petitioner’s articles of incorporation, established that it was organized primarily for charity – “for religious purposes and to acquire, own, and lease properties for the benefit of the Archdiocese and its parishes, schools, cemeteries, and other charitable and educational organizations acceptable to petitioner’s sole member, the Archbishop, and listed in The Official Catholic Directory.” Petitioner made its properties available to the Archdiocese free of charge, which “facilitates and essentially funds the charitable activities conducted by the Archdiocese and its parishes.” As to the third factor, petitioner did not discriminate as to “who, among the group it purports to serve, deserves the services.” The court found that limiting “certain services such as weddings to those who express adherence to the Catholic faith is reasonably related to the permissible charitable goal of teaching and spreading” that faith. Finally, the court concluded the fourth factor was satisfied for the same reasons as the second and third. “By providing its properties free of charge to facilitate the teaching and spreading of the Catholic religious faith, petitioner helped to bring people’s hearts or minds under the influence of education or religion.” The court further held that petitioner satisfied McLaren’s other requirements for the MCL 211.7o(3) exemption. Among other things, it was undisputed the Archdiocese, a charitable institution, occupies the property. An ordained priest and two nuns reside there, “and parish employees have a regular physical presence” there.
Termination under §§ 19b(3)(c)(i), (g), & (j); A parent’s responsibility to participate in the services that are offered; In re Frey; Best interests of the children; In re Olive/Metts Minors
Holding that statutory grounds were met, and that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. The trial court terminated her rights based on her “deficient parenting skills, lack of permanent employment, and inability to respond to her children’s special mental and emotional needs.” It also found termination was in the children’s best interests because, although she showed them love, her lack of appropriate parenting skills had irreparably damaged the parent-child bond, and their “need for permanency and stability favored them remaining in their current foster homes.” On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination, noting many of the conditions that led to the adjudication remained, and while she participated in a number of offered services “and showed progress on parts of her treatment plan, she ‘failed to demonstrate sufficient compliance with or benefit from those services specifically targeted to address the primary basis for the adjudication in this matter[.]’” In addition, she “repeatedly failed to provide proof of employment and permanent housing.” And it appeared that her “invoking the pandemic is another effort to make excuses for lack of progress.” Overall, she did not “show significant progress related to her service plan, regardless of any effect that the pandemic had on that plan.” As such, § (c)(i) was met. The court found §§ (g) and (j) were also met. “Proper care of the children also required continued sobriety from respondent, which was tenuous at the time of termination.” And she failed to show an ability “to safely and appropriately parent her children and they remain at a serious risk of harm if returned to her care.” Finally, as to the children’s best interests, the court noted her visits with them “were chaotic from the beginning and even with extensive assistance,” there was no improvement. Further, although “she was sober at the time of termination and had obtained housing with the assistance of her mother and brother, she failed to demonstrate that she was capable of maintaining employment and paying for housing without the assistance of her family.” Meanwhile, the children were thriving in foster care.