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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 two Michigan Court of Appeals published opinions under Civil Rights/Employment & Labor Law and Municipal/Zoning.


Cases appear under the following practice areas:

  • Civil Rights (3)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73201
    Case: Jewett v. Mesick Consol. Sch. Dist.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Ronayne Krause, Servitto, and Redford
    Issues:

    Employment discrimination; The Persons with Disabilities Civil Rights Act (MCL 37.1101 et seq.); MCL 37.1102; The Americans with Disabilities Act (42 USC § 12101 et seq.); Peden v. Detroit; Constructive discharge; Vagts v. Perry Drug Stores, Inc.; The “cat’s paw” doctrine; Staub v. Proctor Hosp.; Legitimate business reason; Aho v. Department of Corrs.; Legitimate, nondiscriminatory reasons; Hazle v. Ford Motor; Pretext; Major v. Village of Newberry; Claim that the negative employment decisions culminating in subjectively involuntary resignation were pretextual; West v. General Motors Corp.; Whether the performance deficiencies were fabricated; Effect of a party’s testimony; Toussant v. Blue Cross & Blue Shield of MI; Kenkel v. Stanley Works; Conflict in the evidence; People v. Lemmon; Scott v. Harris; Principle that an honest belief (even if found to be objectively incorrect or improvident) precludes a finding of pretext or bad faith; Town v. Michigan Bell Tel. Co.

    Summary:

    The court held that defendant-school district had legitimate reasons for conditioning plaintiff’s continued employment on the last-chance agreement, and he did not establish a question of fact that its reasoning was pretextual. While he established a question of fact whether his supervisor (H) and the person he regarded as H’s assistant (B) held animosity toward him, he failed to establish “a question of fact that their animosity had anything to do with his inability to read or that their animosity had any causal connection to [superintendent-A] conditioning plaintiff’s continued employment upon” signing the last chance agreement. Plaintiff argued that “he was constructively discharged because one of the provisions in the last chance agreement required him to follow ‘all oral and written policies…’” However, he “testified that the reasons he believed he was being forced out, and the reasons why he refused to sign the agreement, had nothing to do with that provision.” Further, there was “no question of material fact that any written policies, directives, procedures, or instructions given to plaintiff would have been read to him aloud on request.” Thus, there was no basis for holding that the single line would make his working conditions intolerable. Plaintiff presented evidence establishing a question of fact whether H or B disliked him “personally and made his working conditions unnecessarily unpleasant.” He asserted that the “cat’s paw” doctrine should apply here. But even if it applies in Michigan, it was not relevant here. A “was adamant that he was the sole decisionmaker.” H and B had no input into A’s decisions, and in fact, A “testified that he would have terminated [H] for threatening plaintiff if he knew any such threat occurred.” Further, there was no evidence that H’s and B’s alleged negativity toward plaintiff was based on his inability to read. Plaintiff’s personnel record supported the determination that he was “not capable of doing his job, for reasons not seemingly related to his inability to read.” Also, even if he could show a genuine issue of material fact as to whether he was constructively discharged, his “personnel file and the testimony of multiple school personnel, including [A’s] predecessor as superintendent, reflect that plaintiff had an enduring problem of simply failing to do his work while insisting that he was doing his work, and possibly improving temporarily only to inevitably relapse. Plaintiff had an extensive disciplinary history that, sooner or later, would have warranted termination. These facts provide legitimate business reasons for defendant’s taking employment action against” him. Summary disposition for defendant was affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73060
    Case: Bykaylo v. Charter Twp. of W. Bloomfield
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Jansen, Meter, and Cameron
    Issues:

    The Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq.); Cuddington v. United Health Servs., Inc.; MCL 418.301(13); Direct evidence; Hazel v. Ford Motor Co.; Inadmissible evidence; Maiden v. Rozwood; Hearsay; MRE 801(c); MRE 801(d)(2)(D); MRE 804(b)(7); Cheesman v. Williams; MRE 804(b)(7)(B); Circumstantial evidence; McDonnell Douglas Corp. v. Green; Retaliation; West v. General Motors Corp.; Whether defendants’ proffered reason for termination was pretextual; “Will be” & “shall be”; Walters v. Nadell; The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); MCL 15.362; Debano-Griffin v. Lake Cnty.; “Cat’s paw” theory; The Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); MCL 37.2701(a); DeFlaviis v. Lord & Taylor, Inc.; Causation; Rymal v. Baergen; The Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); Stevens v. Inland Waters, Inc.; Chiles v. Machine Shop, Inc.; Being able to report to work & to work as a fundamental part of any job; EEOC v. Ford Motor Co. (6th Cir.); EEOC v. Yellow Freight Sys., Inc. (7th Cir.); Human Resources (HR)

    Summary:

    The court held that plaintiff failed to present sufficient evidence to support a prima facie case as to her WDCA claim and that the trial court properly granted defendants summary disposition on this count. Also, even if she had provided sufficient evidence to support a prima facie case of retaliation, defendants were entitled to summary disposition because she “failed to present sufficient evidence to show that the legitimate, nondiscriminatory reason” they proffered for terminating her employment was pretextual. Further, plaintiff failed to establish prima facie WPA and ELCRA cases and her PWDCRA claim failed because there was no genuine issue of material fact that her disability was related to her ability to do the job. Her employment was terminated at the end of her 18-month long-term disability leave. Plaintiff asserted that she presented direct evidence of retaliation as to her supervisor, the township supervisor, and the director of the township’s HR Department (all defendants). She relied on MRE 801(d)(2)(D) and 804(b)(7) to support the admissibility of certain statements. But the evidence attributing the statements to an HR manager was not admissible and was not properly considered when evaluating a summary disposition motion. Plaintiff’s friend, K’s, out-of-court statement about the manager’s statements was hearsay and generally would be inadmissible. Plaintiff claimed that “MRE 801(d)(2)(D), which exempts from hearsay statements made ‘by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,’” allowed for its admission. The court disagreed because the evidence did not suggest that K’s “statements to plaintiff were ‘concerning a matter within the scope of [her] employment.’” Plaintiff made it clear that the conversations with K happened as part of their close friendship. Thus, her reliance on MRE 801(d)(2)(D) was misplaced. She also failed to show how the statement would be admissible under the catch-all provision of MRE 804(b)(7). Finally, none of the remaining evidence she cited constituted direct evidence of retaliation. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73081
    Case: Scott v. City of Detroit
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – K.F. Kelly, Borrello, and Boonstra
    Issues:

    The Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); Discrimination on the basis of disability & failure to provide reasonable accommodation; Peden v. Detroit; Buck v. Thomas M Cooley Law Sch.; MCL 37.1202(1)(b); MCL 37.1102(2); MCL 37.1210(1); “Person”; MCL 37.1103(g); “Disability”; MCL 37.1103(d)(i)(A); “Person with a disability” or “person with disabilities” defined; MCL 37.1103(h); “Unrelated to an individual’s ability”; MCL 37.1103(l)(i)

    Summary:

    The court held that plaintiff was not entitled to relief on her PWDCRA claim. She raised claims that the defendant-City, her former employer, “violated the PWDCRA by discriminating against her on the basis of her disability and failing to provide her with a reasonable accommodation.” She argued that she raised a genuine issue of material fact as to “whether her disability was unrelated to her ability to perform her job duties because she could perform the essential functions of the gun desk position to which she was assigned.” She specifically cited “evidence that a civilian was hired to replace her and that this civilian undisputedly could not perform the essential duties of a police officer because, for example, the civilian could not effectuate an arrest.” However, regardless of her job assignment, she “ultimately wanted to retain her position as a police officer and the accompanying compensation, benefits, and title that went with being a police officer; she expressed no indication she wanted to be employed as a civilian.” This seemingly contradictory argument was underscored in her brief when she appeared to admit she did not have a cause of action by asserting: “Defendant’s conduct in discriminatorily retiring Plaintiff, while maybe innocent and lawful, must be assessed by a jury.” The court held that “the relevant inquiry involves the essential functions of a Detroit police officer and not the limited functions of the restricted duty position.” It found that there was no genuine dispute of material fact that she “was unable to perform all of the 24 essential functions of a Detroit police officer. There was no dispute that plaintiff’s requested accommodation of being assigned to the gun desk did not, and could not, make her able to perform the 24 essential functions of a Detroit police officer.” Thus, the trial court did not err in granting defendants summary disposition on her discrimination claim because she “could not demonstrate that any disability that she may have had was ‘unrelated’ to her ability to perform the job functions of a police officer and therefore could not meet the statutory definition of ‘disability’ for purposes of her PWDCRA claims.” Further, given that “a failure-to-accommodate claim under the PWDCRA requires a plaintiff to show the existence of a disability based on the same statutory definitions,” her failure to create a genuine issue of material fact as to “the existence of a disability under the applicable statutory definitions was also fatal to her failure-to-accommodate claim and the trial court also did not err by dismissing this claim.” Affirmed.

    Full Text Opinion

  • Contracts (2)

    Full Text Opinion

    e-Journal #: 73066
    Case: Chaudhary v. JDS Pump N Go, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – K.F. Kelly, Borrello, and Boonstra
    Issues:

    Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; AFT MI v. Michigan; Implied contract; Morris Pumps v. Centerline Piping, Inc.; Waiver of a contract breach; Grand Rapids Asphalt Paving Co. v. City of Wyoming; First party to substantially breach; Able Demolition v. City of Pontiac; Principle that a party who waives a breach through continued acceptance of a breaching party’s performance may still be held liable for its own breach; Schnepf v. Thomas L McNamara, LLC; Silent fraud; Bergen v. Baker; Principle that a tort action will not lie when based solely on the nonperformance of a contractual duty; Fultz v. Union-Commerce Assoc.; Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc.; The trial court’s decision not to consider plaintiff’s untimely-filed response; Kermerko Clawson, LLC, v. RXIV Inc.; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; In re Waters Drain Drainage Dist.; Court rule interpretation; Hill v. L F Transp.; MCR 2.116(G)(1)(b)

    Summary:

    The court held that the record revealed genuine questions of material fact as to the contractual relationship between the parties and the lasting effect of plaintiff’s breaches. As a result, the trial court’s grant of summary disposition as to the breach of contract claims was improper. However, it found no plain error entitling him “to relief for the trial court’s decision not to consider his untimely-filed responsive brief.” Contrary to defendants’ arguments that the parties entered into an implied contract governed by the terms of the written agreement, evidence revealed that they “entered into an express oral agreement governing the storage of the airplane.” Thus, any contract that existed between them consisted of this oral agreement. Also, the evidence failed to support defendants’ claim “that plaintiff breached the terms of the oral agreement at the time the airplane was removed from the hangar.” The evidence they supplied “showed that without objection from defendants, plaintiff continued his practice of paying $400 every two months to cover his rent under the oral agreement even after receiving” a delinquency notice. While the terms of the written “agreement provided defendants with substantial discretion concerning the removal of the airplane from the hangar after a breach, the record—taken in the light most favorable to plaintiff—demonstrates that questions of fact exist as to whether plaintiff’s previous breaches were either waived by defendants or rectified.” Evidence showed that they “returned plaintiff’s airplane to the hangar on at least two occasions, and further, defendants continued to accept plaintiff’s rental payments well after he was admittedly in breach.” Taken as a whole, and viewed in the light most favorable to plaintiff, record evidence revealed that the trial court erred in granting defendants summary disposition on their breach of contract claim. Likewise, it erred in granting them summary disposition on plaintiff’s breach of contract claim. Affirmed in part, reversed in part and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 73134
    Case: Copperfield Villas Ass'n v. Tuer
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Gleicher, and M.J. Kelly
    Issues:

    The Condominium Act (MCL 559.101 et seq.); Tuscany Grove Ass’n v. Peraino; Condo Bylaws; MCL 559.154(8) & (9); Whether the condo Bylaws required mutual consent to take a matter to arbitration; Consent defined; Effect of the condo association’s failure to obtain approval from a majority of the condo co-owners before filing suit; Interpreting condo Bylaws according to contract interpretation rules; Rossow v. Brentwood Farms Dev., Inc.

    Summary:

    The court held that while the trial court correctly concluded that defendants-Tuers could not unilaterally demand arbitration under the Condominium Act or the condo Bylaws, it erred in ruling that the Bylaws required plaintiff-condo association (the CVA) to obtain a majority of the co-owners’ approval before filing suit. Thus, the court reversed the order summarily dismissing the complaint and remanded. The Tuers own a home in the condo community. The CVA alleged that they violated the Bylaws “by failing to weed and maintain the lawn, parking their vehicles on the lawn, placing stones or gravel and a wooden curb on a common area, and without prior approval constructing a fenced-in dog kennel, expanding their driveway, and installing a parking lot.” The CVA sent them notices seeking voluntary compliance. They “responded by demanding arbitration under another Bylaws provision.” The CVA rejected this and sued for injunctive relief. On appeal, the court held that the trial court did not err in ruling “that mutual consent was required to take the parties’ dispute to arbitration.” The court noted that MCL 559.154(8) and (9) require condo “bylaws to include a provision for arbitration at ‘the election and written consent of the parties.’ The Legislature employed the plural noun ‘parties’ in” these statutes, showing “that all parties to a dispute must elect and consent to arbitration in lieu of litigation. The Legislature’s use of the word ‘consent’ supports this interpretation. To ‘consent’ means ‘to give assent or approval: AGREE.’ . . . It takes two to consent or agree to participate in arbitration, much like it takes two to consent to a contract or to reach a consent judgment.” However, the court held that the trial court erred in finding that summary disposition was required due to the CVA’s failure to obtain approval from a majority of the condo co-owners before suing. Under the Articles of Incorporation and the Bylaws, the CVA was not required to seek such preapproval “before filing suit ‘to enforce the Bylaws or collect delinquent assessments.’ This case was one to enforce various provisions of the Bylaws.” Further, the Bylaws did not require it to obtain such “approval to raise a defense to a summary disposition motion in a Bylaws violation action” (such as seeking a declaration that the arbitration provision was invalid, which it removed in its amended complaint).

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 73129
    Case: People v. Hoffman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Tukel, Markey, and Gadola
    Issues:

    Sufficiency of the evidence; People v. Reese; People v. Hardiman; Credibility; People v. Wolfe; Circumstantial evidence; People v. Carines; Principle that the prosecution need not negate every reasonable theory of innocence; People v. Nowack; Principle that all conflicts in the evidence must be resolved in favor of the prosecution; People v. Kanaan; Domestic violence; MCL 750.81(2); “Battery” & “assault”; People v. Nickens; Self-defense or defense of others; MCL 780.972(2); People v. Dupree; People v. Heflin

    Summary:

    The court held that the prosecution presented sufficient evidence to establish that defendant did not act in defense of his son when he assaulted his wife. He was convicted of domestic violence, third offense, for the assault, which took place after a physical altercation between his wife and their son. The trial court sentenced him as a fourth-offense habitual offender to 3 to 15 years. On appeal, the court rejected his argument that “there was insufficient evidence to show that he committed an assault on his wife that was not done in reasonable and lawful defense of another.” It noted there was evidence that “at the time defendant physically engaged his wife, the conflict between his wife and son had ended and that the son was not in physical peril.” There was also evidence that defendant “sat on top of his wife for three to four minutes and then squeezed her face, which caused red marks along her cheekbones.” He also threatened to kill her. Thus, “there was sufficient evidence for the jury to conclude that the prosecution proved beyond a reasonable doubt that defendant’s use of force was neither honest nor reasonable.” The evidence sufficiently showed “that defendant committed an intentional, unconsented, harmful, and offensive touching of his wife, i.e., a battery, as well as committing an unlawful act that placed his wife in reasonable apprehension of an immediate battery, i.e., an assault.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73199
    Case: United States v. Castro
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Suhrheinrich, Merritt, and Sutton
    Issues:

    Admission of evidence obtained from wiretaps; 18 USC § 2518(1)(c); United States v. Alfano; United States v. Corrado; United States v. Landmesser; United States v. Stewart; Sufficiency of the evidence to support convictions for conspiracy to distribute drugs; United States v. Prince; United States v. Blakeney; United States v. Martinez; United States v. Deitz; United States v. Pritchett; Sufficiency of the evidence that a defendant possessed cocaine with an intent to distribute; United States v. Russell; United States v. Martin; Admission of recorded phone calls; FRE 801(d)(2)(E) & 104(a); United States v. Enright; Sentencing; Enhancement for attempting to influence witnesses; USSG § 3C1.1; United States v. Faulkner; Determination of the drug quantity; United States v. Watts; United States v. White; United States v. Williams (Unpub. 6th Cir.); Whether a defendant’s prior conviction for marijuana use was properly scored as a separate offense rather than conduct relevant to his felony drug conviction; United States v. Rayyan; Gall v. United States; United States v. Collins (Unpub. 6th Cir.); United States v. Escobar; Whether a defendant’s criminal history was unduly considered; Presumption that a within USSG sentence is reasonable; United States v. Vonner; Determination that a defendant committed perjury; United States v. Dunnigan; United States v. Roberts; “Double counting”; United States v. Moon; Whether a defendant’s criminal history score should have been reduced based on two misdemeanor convictions that were nearly 10 years old; United States v. Santillana

    Summary:

    [This appeal was from the WD-MI.] The court affirmed the convictions of defendants-Castro, Howard, and Tatum for conspiring to distribute drugs, holding that the 60-page telephone-monitoring affidavit sufficiently established the “necessity requirement”—that the evidence could not have been supplied through “conventional techniques.” It also held that there was sufficient evidence to support their convictions, and rejected their sentencing challenges. The court found that the government was not required to stop recording once traditional investigatory techniques had recovered substantial evidence. It held that there was sufficient evidence to support Howard’s conspiracy conviction where a juror could find that he “purchased large quantities of drugs on a regular basis, through an established procedure, and with joint efforts to avoid being detected.” Also, there were implicating recorded conversations between him and a lead conspirator. Tatum argued that the government failed to establish that he possessed cocaine with intent to distribute. The court found that there was sufficient evidence that he had been sold one kilogram of cocaine, and it has previously held that “possession of one kilogram of cocaine ‘permits an inference that the cocaine was intended for distribution, not personal use.’” His purchase and the evidence of his prior sales was sufficient to establish that he intended to sell the drugs, even though there was no evidence that he actually sold this particular cocaine. The court next held that the recorded phone calls were admissible against Howard under the “coconspirator exception to the hearsay rule.” As to the application of § 3C1.1’s attempting to influence witnesses enhancement to Castro, the court noted that his offense level would have been the same regardless, and, even so, there was sufficient evidence to support it. The court further held that the district court did not err in finding Howard responsible for a larger quantity than the jury did “[b]ecause the quantity of drugs that the district court attributed to Howard did not expose him to a greater sentence than the maximum under his statute of conviction”; thus, the district court was allowed “to determine that quantity based on a preponderance of the evidence.” It also did not err by ruling that his prior marijuana use conviction should score as a separate offense and not as conduct relevant to his conspiracy conviction where it is possible to “use” drugs without being involved in a conspiracy to distribute. Finally, the court held that the district court did not give undue weight to Howard’s criminal history, did not err by finding that Tatum’s testimony constituted perjury on material matters and an obstruction of justice under § 3C1.1, and did not “double count” his perjured testimony.

    Full Text Opinion

  • Employment & Labor Law (2)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 73201
    Case: Jewett v. Mesick Consol. Sch. Dist.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Ronayne Krause, Servitto, and Redford
    Issues:

    Employment discrimination; The Persons with Disabilities Civil Rights Act (MCL 37.1101 et seq.); MCL 37.1102; The Americans with Disabilities Act (42 USC § 12101 et seq.); Peden v. Detroit; Constructive discharge; Vagts v. Perry Drug Stores, Inc.; The “cat’s paw” doctrine; Staub v. Proctor Hosp.; Legitimate business reason; Aho v. Department of Corrs.; Legitimate, nondiscriminatory reasons; Hazle v. Ford Motor; Pretext; Major v. Village of Newberry; Claim that the negative employment decisions culminating in subjectively involuntary resignation were pretextual; West v. General Motors Corp.; Whether the performance deficiencies were fabricated; Effect of a party’s testimony; Toussant v. Blue Cross & Blue Shield of MI; Kenkel v. Stanley Works; Conflict in the evidence; People v. Lemmon; Scott v. Harris; Principle that an honest belief (even if found to be objectively incorrect or improvident) precludes a finding of pretext or bad faith; Town v. Michigan Bell Tel. Co.

    Summary:

    The court held that defendant-school district had legitimate reasons for conditioning plaintiff’s continued employment on the last-chance agreement, and he did not establish a question of fact that its reasoning was pretextual. While he established a question of fact whether his supervisor (H) and the person he regarded as H’s assistant (B) held animosity toward him, he failed to establish “a question of fact that their animosity had anything to do with his inability to read or that their animosity had any causal connection to [superintendent-A] conditioning plaintiff’s continued employment upon” signing the last chance agreement. Plaintiff argued that “he was constructively discharged because one of the provisions in the last chance agreement required him to follow ‘all oral and written policies…’” However, he “testified that the reasons he believed he was being forced out, and the reasons why he refused to sign the agreement, had nothing to do with that provision.” Further, there was “no question of material fact that any written policies, directives, procedures, or instructions given to plaintiff would have been read to him aloud on request.” Thus, there was no basis for holding that the single line would make his working conditions intolerable. Plaintiff presented evidence establishing a question of fact whether H or B disliked him “personally and made his working conditions unnecessarily unpleasant.” He asserted that the “cat’s paw” doctrine should apply here. But even if it applies in Michigan, it was not relevant here. A “was adamant that he was the sole decisionmaker.” H and B had no input into A’s decisions, and in fact, A “testified that he would have terminated [H] for threatening plaintiff if he knew any such threat occurred.” Further, there was no evidence that H’s and B’s alleged negativity toward plaintiff was based on his inability to read. Plaintiff’s personnel record supported the determination that he was “not capable of doing his job, for reasons not seemingly related to his inability to read.” Also, even if he could show a genuine issue of material fact as to whether he was constructively discharged, his “personnel file and the testimony of multiple school personnel, including [A’s] predecessor as superintendent, reflect that plaintiff had an enduring problem of simply failing to do his work while insisting that he was doing his work, and possibly improving temporarily only to inevitably relapse. Plaintiff had an extensive disciplinary history that, sooner or later, would have warranted termination. These facts provide legitimate business reasons for defendant’s taking employment action against” him. Summary disposition for defendant was affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 73060
    Case: Bykaylo v. Charter Twp. of W. Bloomfield
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Jansen, Meter, and Cameron
    Issues:

    The Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq.); Cuddington v. United Health Servs., Inc.; MCL 418.301(13); Direct evidence; Hazel v. Ford Motor Co.; Inadmissible evidence; Maiden v. Rozwood; Hearsay; MRE 801(c); MRE 801(d)(2)(D); MRE 804(b)(7); Cheesman v. Williams; MRE 804(b)(7)(B); Circumstantial evidence; McDonnell Douglas Corp. v. Green; Retaliation; West v. General Motors Corp.; Whether defendants’ proffered reason for termination was pretextual; “Will be” & “shall be”; Walters v. Nadell; The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); MCL 15.362; Debano-Griffin v. Lake Cnty.; “Cat’s paw” theory; The Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); MCL 37.2701(a); DeFlaviis v. Lord & Taylor, Inc.; Causation; Rymal v. Baergen; The Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); Stevens v. Inland Waters, Inc.; Chiles v. Machine Shop, Inc.; Being able to report to work & to work as a fundamental part of any job; EEOC v. Ford Motor Co. (6th Cir.); EEOC v. Yellow Freight Sys., Inc. (7th Cir.); Human Resources (HR)

    Summary:

    The court held that plaintiff failed to present sufficient evidence to support a prima facie case as to her WDCA claim and that the trial court properly granted defendants summary disposition on this count. Also, even if she had provided sufficient evidence to support a prima facie case of retaliation, defendants were entitled to summary disposition because she “failed to present sufficient evidence to show that the legitimate, nondiscriminatory reason” they proffered for terminating her employment was pretextual. Further, plaintiff failed to establish prima facie WPA and ELCRA cases and her PWDCRA claim failed because there was no genuine issue of material fact that her disability was related to her ability to do the job. Her employment was terminated at the end of her 18-month long-term disability leave. Plaintiff asserted that she presented direct evidence of retaliation as to her supervisor, the township supervisor, and the director of the township’s HR Department (all defendants). She relied on MRE 801(d)(2)(D) and 804(b)(7) to support the admissibility of certain statements. But the evidence attributing the statements to an HR manager was not admissible and was not properly considered when evaluating a summary disposition motion. Plaintiff’s friend, K’s, out-of-court statement about the manager’s statements was hearsay and generally would be inadmissible. Plaintiff claimed that “MRE 801(d)(2)(D), which exempts from hearsay statements made ‘by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,’” allowed for its admission. The court disagreed because the evidence did not suggest that K’s “statements to plaintiff were ‘concerning a matter within the scope of [her] employment.’” Plaintiff made it clear that the conversations with K happened as part of their close friendship. Thus, her reliance on MRE 801(d)(2)(D) was misplaced. She also failed to show how the statement would be admissible under the catch-all provision of MRE 804(b)(7). Finally, none of the remaining evidence she cited constituted direct evidence of retaliation. Affirmed.

    Full Text Opinion

  • Family Law (2)

    Full Text Opinion

    e-Journal #: 73128
    Case: Crawfis v. Crawfis
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Markey, and Gadola
    Issues:

    Divorce; Spousal support; MCL 552.23(1); Loutts v. Loutts; Relevant factors; Woodington v. Shokoohi; Harboring error as an appellate parachute; Hoffenblum v. Hoffenblum; Absence of evidence about a business’s value; Distinguishing Hanaway v. Hanaway; Division of marital assets; Richards v. Richards; Treatment of a down payment made by one party on the first marital home using mostly inheritance money; Cunningham v. Cunningham; Reeves v. Reeves; Pickering v. Pickering; Repayment of a loan made by a party’s parents

    Summary:

    Concluding that the trial court did not abuse its discretion in awarding plaintiff-ex-wife spousal support in gross as represented by a 53% to 47% split in the proceeds of a sale of the parties’ home, the court upheld the trial court’s spousal support award. It further held that under the circumstances of the case, the $14,900 down payment she made over 25 years ago on the first marital home “was effectively comingled with marital funds and assets.” Finally, it found that the trial court did not err in ordering the parties to share equally in repaying a loan her parents made to the parties’ business (referred to as BHC). Thus, the court affirmed the divorce judgment. It first rejected her argument that the trial court erred by failing to assign any value to her “voluntary divestiture of her 50% interest in BHC when determining” the spousal support amount, finding that it entirely lacked merit. She stipulated to defendant-ex-husband keeping the business, and “never sought any offset for surrendering her one-half interest in” it. Further, she did not offer any evidence as to BHC’s value, or argue that it had any ongoing value. As to her claim that the spousal support award was inequitable, the “trial court thoroughly examined and evaluated all of the spousal support factors and concluded that they were fairly equal but favored an award of spousal support in some amount, primarily because of the nine-year difference in the parties’ ages.” While the evidence showed that defendant earned between $30,000 and $40,000 a year with BHC, the trial court treated him as earning $50,000 a year. The court noted that he will have to obtain health insurance and had no retirement account or plan. If the parties’ home “sells for $350,000, and assuming a 7% real estate commission as discussed during the trial, the net proceeds, after deducting the mortgage balance of $81,457 and the $6,907 in outstanding loans, would equal $237,136.” Under the judgment’s 53% to 47% split, “plaintiff would receive $125,682, and defendant would receive $111,454, which is a difference of $14,228. Under plaintiff’s request for a 60% to 40% division in her favor,” she would receive $142,281 and he would receive $94,855. The court could not conclude, under the facts of this case, “that the trial court abused its discretion by awarding plaintiff 53% of the net proceeds as opposed to 60% for purposes of spousal support in gross.”

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    e-Journal #: 73089
    Case: White v. Trezil
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Jansen, Meter, and Cameron
    Issues:

    Child custody; Motion for change of custody & modification of parenting time; The Child Custody Act (MCL 722.21 et seq.); Lieberman v. Orr; Whether proper cause or a change in circumstances existed to modify custody; Brausch v. Brausch; Pennington v. Pennington; Whether an established custodial environment existed; MCL 722.27(1)(c); Kubicki v. Sharpe; The statutory best interest factors; MCL 722.23; Kessler v. Kessler

    Summary:

    The court held that the trial court did not err by granting defendant-father’s motion for a change of custody and modification of parenting time. Defendant filed an emergency motion for change of custody and modification of parenting time and requested that plaintiff-mother submit to a psychological evaluation, claiming her mental state and her and the children’s relationship with her boyfriend necessitated a change. The trial court ordered the psychological evaluation and subsequently granted defendant’s motion, ordering that he have primary physical custody of two of the children, that the other child live with plaintiff’s mother, and that plaintiff and defendant continue to share legal custody. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting defendant primary custody of two of the children, holding that the trial court’s findings as to each of the factors were not against the great weight of the evidence. It noted that plaintiff had not shown good judgment, could not live independently, had not provided the children with a stable or satisfactory environment, and had an unstable relationship with her boyfriend. It also noted that she had a history of mental illness and that she “communicated with defendant in a hostile and aggressive manner” and engaged in acts of alienation. Affirmed.

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  • Municipal (1)

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    This summary also appears under Zoning

    e-Journal #: 73200
    Case: Ansell v. Delta Cnty. Planning Comm'n
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Stephens, Servitto, and Ronayne Krause
    Issues:

    Jurisdiction over challenges to a planning commission’s zoning decisions; The Michigan Zoning Enabling Act (ZEA) (MCL 125.3101 et seq.); Applicability of the “aggrieved party” standard in MCL 125.3605 (appeals from zoning board of appeals’ (ZBA) decisions) where there is no provision for review by a ZBA; The circuit court’s jurisdiction; MCR 7.103(A)(3); Appeals from a determination under a zoning ordinance; MCR 7.122(A)(1), (C)(1)(a), & (G)(2); MCL 125.3606(1); Const. 1963, art. 6, § 28; Carleton Sportsman’s Club v. Exeter Twp.; Olsen v. Chikaming Twp.; Principle that the creation of a planning commission under the ZEA did not also require the establishment of a ZBA; Nicholas v. Charter Twp. of Watertown; MCL 125.3601; Brown v. East Lansing Zoning Bd. of Appeals; A zoning ordinance violation as a nuisance per se; Towne v. Harr

    Summary:

    In an issue of first impression, the court held that the “aggrieved party” standard applicable to appeals of ZBA decisions under MCL 125.3605 also applies where there is no provision for ZBA review. Thus, it affirmed the circuit court’s dismissal of appellants’ challenges to defendant-planning commission’s grant of conditional use permits for the construction of wind turbines for lack of jurisdiction. A plain reading of the relevant provisions of the ZEA, the MCRs, and case law supported “the conclusion that only an aggrieved party may appeal the final determination under a zoning ordinance.” The court noted that the “ZEA provides for the creation of a zoning commission in each municipality, but also allows for the continuation of the exercise of powers by township zoning boards and planning commissions established before” it went into effect. Also, the creation of a planning commission under the ZEA did not create a requirement that a ZBA be established. Appellants failed to offer “any persuasive authority explaining why an appeal from a determination under a zoning ordinance from a township board should not be subject to the ZEA requirement that only an ‘aggrieved’ party has standing to appeal. Both appeals from a township board and municipal zoning commission planning board are entitled to the same review.” Carleton clearly states “that to invoke the circuit court’s jurisdiction, appellants must have been aggrieved parties. To have the status of ‘aggrieved party’ for purposes of obtaining the circuit court’s appellate review of a decision under a zoning ordinance, ‘a party must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated.’” The circuit court found that appellants failed to show they “suffered special damages or a unique harm not common to other property owners similarly situated.” While they pointed to “their participation in the proceedings below, and their raising concerns over how the proposed wind turbines would impact the environment, public health, property values,” and the area’s general aesthetic character, these concerns did not show that they stood “to suffer any greater negative impacts from the proposals than” their neighbors or others. As to their nuisance argument, they did not distinguish themselves from the unsuccessful appellants in Olsen.

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  • Real Property (1)

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    This summary also appears under Contracts

    e-Journal #: 73134
    Case: Copperfield Villas Ass'n v. Tuer
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Gleicher, and M.J. Kelly
    Issues:

    The Condominium Act (MCL 559.101 et seq.); Tuscany Grove Ass’n v. Peraino; Condo Bylaws; MCL 559.154(8) & (9); Whether the condo Bylaws required mutual consent to take a matter to arbitration; Consent defined; Effect of the condo association’s failure to obtain approval from a majority of the condo co-owners before filing suit; Interpreting condo Bylaws according to contract interpretation rules; Rossow v. Brentwood Farms Dev., Inc.

    Summary:

    The court held that while the trial court correctly concluded that defendants-Tuers could not unilaterally demand arbitration under the Condominium Act or the condo Bylaws, it erred in ruling that the Bylaws required plaintiff-condo association (the CVA) to obtain a majority of the co-owners’ approval before filing suit. Thus, the court reversed the order summarily dismissing the complaint and remanded. The Tuers own a home in the condo community. The CVA alleged that they violated the Bylaws “by failing to weed and maintain the lawn, parking their vehicles on the lawn, placing stones or gravel and a wooden curb on a common area, and without prior approval constructing a fenced-in dog kennel, expanding their driveway, and installing a parking lot.” The CVA sent them notices seeking voluntary compliance. They “responded by demanding arbitration under another Bylaws provision.” The CVA rejected this and sued for injunctive relief. On appeal, the court held that the trial court did not err in ruling “that mutual consent was required to take the parties’ dispute to arbitration.” The court noted that MCL 559.154(8) and (9) require condo “bylaws to include a provision for arbitration at ‘the election and written consent of the parties.’ The Legislature employed the plural noun ‘parties’ in” these statutes, showing “that all parties to a dispute must elect and consent to arbitration in lieu of litigation. The Legislature’s use of the word ‘consent’ supports this interpretation. To ‘consent’ means ‘to give assent or approval: AGREE.’ . . . It takes two to consent or agree to participate in arbitration, much like it takes two to consent to a contract or to reach a consent judgment.” However, the court held that the trial court erred in finding that summary disposition was required due to the CVA’s failure to obtain approval from a majority of the condo co-owners before suing. Under the Articles of Incorporation and the Bylaws, the CVA was not required to seek such preapproval “before filing suit ‘to enforce the Bylaws or collect delinquent assessments.’ This case was one to enforce various provisions of the Bylaws.” Further, the Bylaws did not require it to obtain such “approval to raise a defense to a summary disposition motion in a Bylaws violation action” (such as seeking a declaration that the arbitration provision was invalid, which it removed in its amended complaint).

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  • Termination of Parental Rights (2)

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    e-Journal #: 73095
    Case: In re Cupp
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Murray, Ronayne Krause, and Tukel
    Issues:

    Termination under § 19b(3)(b)(i); In re Ellis; In re HRC; In re LaFrance Minors; Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re Schadler; In re LE; In re White; In re Trejo Minors; In re Gonzales/Martinez; Placement with relatives; In re Mason; Relative defined; MCL 712A.13a(1)(j)

    Summary:

    Holding that § (b)(i) existed and termination of respondent-father’s parental rights was in the children’s (K and E) best interests, the court affirmed. Respondent argued that the trial court clearly erred in finding that § (b)(i) had been satisfied because he denied the stepsister of the children and respondent’s stepdaughter’s (F) allegations, and her testimony was uncorroborated by forensic evidence. The court deferred to the trial court’s finding that F’s testimony was credible. The trial court explicitly found that F’s testimony was credible and that respondent’s testimony was not. Specifically, it found that F “did not have a motive to lie, she made ‘an honest effort to tell the truth,’ she was clearly uncomfortable during her testimony, and that she did not avoid answering the questions posed to her or avert her eyes.” In contrast, it characterized respondent’s testimony as “evasive” and noted that his “testimony about prior sexual assault allegations and investigations against him was inconsistent.” The record failed “to establish that the trial court clearly erred by making these findings.” Thus, respondent sexually assaulted F. Respondent’s treatment of F was probative of how he would treat his children. As such, the trial court did not err by finding statutory grounds to terminate his parental rights under § (b)(i) because his sexual abuse of F was evidence that he may sexually abuse his children in the future.

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    e-Journal #: 73155
    Case: In re Doyle
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Gleicher, and M.J. Kelly
    Issues:

    Termination under § 19b(3)(c)(ii); Principle that only one statutory ground has to exist; In re HRC; Children’s best interests; In re Moss Minors; The doctrine of anticipatory neglect; In re Kellogg; Credibility assessments; In re Miller; Alleged due process violations related to no-contest pleas to jurisdiction & to the existence of statutory grounds for termination; In re Sanders; In re Ferranti; MCR 3.971(B); In re Pederson; Abandoned arguments; People v. Cameron

    Summary:

    Concluding that respondents were on notice at all times that their no-contest pleas could lead to termination, and that they “were not prejudiced at the statutory-grounds stage by the trial court’s failure to inform them that their adjudication no-contest pleas could be used as evidence against them[,]” the court rejected their due process claims. It further held that there was sufficient evidence apart from their pleas to establish § (c)(ii) as a basis for termination, and that termination was in the children’s best interests. Respondents asserted that in “accepting their no-contest pleas to establish jurisdiction over the children and their subsequent no-contest pleas to establish statutory grounds, the trial court erred by failing to advise them of all of the consequences as required by MCR 3.971(B).” In light of Pederson, the court held that while the trial court erred in failing to advise them “of all of the consequences of their pleas,” they could not show that the error affected the outcome, and thus could not establish a due process violation affecting their substantial rights. Here, as in Pederson, the record showed that “before accepting respondents’ no-contest pleas to jurisdiction and statutory grounds, the trial court advised respondents of most of the rights listed in MCR 3.971.” It failed to advise them consistent with MCR 3.971(B)(4). But at the jurisdictional-plea hearing, it told them that if it took jurisdiction, it had “‘the authority to impose participation in services. If you don’t benefit from services, there could subsequently possibly be a petition to terminate parental rights.’” Also, before accepting their no-contest pleas to statutory grounds, it told them “that by entering no-contest pleas to the allegations in the petition, respondents were not contesting ‘the Court’s finding the allegations true by clear and convincing evidence for the purpose of establishing the statutory basis for termination.’” The court also found that this case was distinguished from Pederson and Ferranti by respondents’ no-contest pleas at the statutory-grounds stage. Further, it held that “separate from the allegations and evidence supporting jurisdiction at the adjudication stage, there was sufficient additional evidence supporting a statutory ground for termination.” The children were in care for approximately two years, both respondents had been incarcerated due to involvement with meth, and visitation with them “had a negative impact on the children.” Affirmed.

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  • Zoning (1)

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    This summary also appears under Municipal

    e-Journal #: 73200
    Case: Ansell v. Delta Cnty. Planning Comm'n
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Stephens, Servitto, and Ronayne Krause
    Issues:

    Jurisdiction over challenges to a planning commission’s zoning decisions; The Michigan Zoning Enabling Act (ZEA) (MCL 125.3101 et seq.); Applicability of the “aggrieved party” standard in MCL 125.3605 (appeals from zoning board of appeals’ (ZBA) decisions) where there is no provision for review by a ZBA; The circuit court’s jurisdiction; MCR 7.103(A)(3); Appeals from a determination under a zoning ordinance; MCR 7.122(A)(1), (C)(1)(a), & (G)(2); MCL 125.3606(1); Const. 1963, art. 6, § 28; Carleton Sportsman’s Club v. Exeter Twp.; Olsen v. Chikaming Twp.; Principle that the creation of a planning commission under the ZEA did not also require the establishment of a ZBA; Nicholas v. Charter Twp. of Watertown; MCL 125.3601; Brown v. East Lansing Zoning Bd. of Appeals; A zoning ordinance violation as a nuisance per se; Towne v. Harr

    Summary:

    In an issue of first impression, the court held that the “aggrieved party” standard applicable to appeals of ZBA decisions under MCL 125.3605 also applies where there is no provision for ZBA review. Thus, it affirmed the circuit court’s dismissal of appellants’ challenges to defendant-planning commission’s grant of conditional use permits for the construction of wind turbines for lack of jurisdiction. A plain reading of the relevant provisions of the ZEA, the MCRs, and case law supported “the conclusion that only an aggrieved party may appeal the final determination under a zoning ordinance.” The court noted that the “ZEA provides for the creation of a zoning commission in each municipality, but also allows for the continuation of the exercise of powers by township zoning boards and planning commissions established before” it went into effect. Also, the creation of a planning commission under the ZEA did not create a requirement that a ZBA be established. Appellants failed to offer “any persuasive authority explaining why an appeal from a determination under a zoning ordinance from a township board should not be subject to the ZEA requirement that only an ‘aggrieved’ party has standing to appeal. Both appeals from a township board and municipal zoning commission planning board are entitled to the same review.” Carleton clearly states “that to invoke the circuit court’s jurisdiction, appellants must have been aggrieved parties. To have the status of ‘aggrieved party’ for purposes of obtaining the circuit court’s appellate review of a decision under a zoning ordinance, ‘a party must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated.’” The circuit court found that appellants failed to show they “suffered special damages or a unique harm not common to other property owners similarly situated.” While they pointed to “their participation in the proceedings below, and their raising concerns over how the proposed wind turbines would impact the environment, public health, property values,” and the area’s general aesthetic character, these concerns did not show that they stood “to suffer any greater negative impacts from the proposals than” their neighbors or others. As to their nuisance argument, they did not distinguish themselves from the unsuccessful appellants in Olsen.

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