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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Whether the arbitrator exceeded his powers by determining whether the newly disputed claims were subject to the parties’ Letter Agreement; Miller v. Miller; Bayati v. Bayati; Arrow Overall Supply Co. v. Peloquin Enters.; Contract interpretation as an issue for the arbitrator to determine; City of Ann Arbor v. American Fed’n of State, Cnty., & Mun. Employees (AFSCME) Local 369; Bennett v. Shearson Lehman-Am. Express, Inc.; The Uniform Arbitration Act (MCL 691.1681 et seq.); MCL 691.1686(2); Claim that the arbitrator did not have jurisdiction to review any new claims raised by defendant because he issued a final award after the initial proceedings; Beattie v. Autostyle Plastics, Inc.; Distinguishing Oakland-Macomb Interceptor Drain Drainage Dist. v. Ric-Man Constr., Inc.; The Construction Industry Rules of Arbitration (CIRA) of the American Arbitration Association (AAA)
The court affirmed the trial court’s order granting summary disposition in favor of defendant-Demaria Building Company. In 2010, the parties entered into an engineering procurement and construction contract for a construction project. The contract provided that all disputes were to be submitted to arbitration in accordance with the CIRA of the AAA. After various disputes arose, they entered into another agreement, “the ‘Letter Agreement,’ which specifically delineated the manner in which they would address their disputes through arbitration. The Letter Agreement provided that a single arbitrator, agreed to by the parties, would decide the parties’ disputes.” On appeal, plaintiff argued that the arbitrator exceeded his powers by determining whether the newly disputed claims were subject to the Letter Agreement. The trial court and the arbitrator “each acknowledged the general rule that the existence and enforceability of a contract to arbitrate is a judicial question, which may not be decided by the arbitrator.” However, this dispute pertained “to the procedure for arbitrating the parties’ newly disputed claims.” Thus, the central issue was whether the newly disputed claims fell within the scope of the Letter Agreement. In deciding this question, the court found it “significant that plaintiff concedes that the Letter Agreement constitutes a valid contract, and both parties agree that the arbitrator has jurisdiction to decide claims falling within the scope of the Letter Agreement.” Because it was clear that “disputes arising between the parties were arbitrable and further, because the arbitrator had the power to arbitrate claims within the scope of the Letter Agreement contract, it was the duty of the arbitrator—and not the trial court—to interpret the Letter Agreement so as to determine whether the newly disputed claims were within the scope of that agreement.” Also, because they agreed “that the arbitrator has jurisdiction to decide claims falling within the scope of the Letter Agreement, the arbitrator did not err in deciding whether the newly disputed claims fell within the scope of the Letter Agreement, and the trial court did not err in holding that it would not disturb the arbitrator’s findings in this regard.” The court rejected plaintiff’s argument that “because the arbitrator issued a final award after the initial proceedings concluded, he did not have jurisdiction to review any new claims raised by defendant.”
Chapter 7; 11 USC §§ 704(a)(1), 726, & 727; The bankruptcy “estate”; §§ 521(a)(1)(B)(i) & 541(a)(1); Tyler v. DH Capital Mgmt., Inc.; “Bad-faith” failure to disclose a cause of action; Lucius v. McLemore; Law v. Siegel; Waiver of the trustee’s objection to the “timeliness” of the amendments; Fed.R.Bankr.P. 1009(a) & 4003(b)(1); Taylor v. Freeland & Kronz
[This appeal was from the ED-MI.] Where the debtors in this bankruptcy appeal did not disclose their interest in a cause of action until years after the close of the bankruptcy case, the Supreme Court’s decision in Siegel limited the bankruptcy court’s power to disallow their claimed exemptions on the basis of fraud and bad faith, and the trustee’s objection to the amendments’ timeliness was waived. The bankruptcy trustee reopened the case after learning of the cause of action, and the debtors then amended their schedules to include “wildcard” exemptions. The bankruptcy court denied the trustee’s objection to the exemptions, reasoning that Siegel prohibits “a bankruptcy court from using its equitable powers to deny an exemption as a sanction for debtor misconduct[] . . . .” The court concluded that Siegel effectively overruled Lucius, which had “held that bankruptcy courts may use their equitable powers to sanction a debtor’s misconduct by disallowing exemptions in property concealed from the trustee . . . .” The court rejected the trustee’s argument that “Siegel applies only to bankruptcy cases that have never been closed,” and held that “under Siegel, bankruptcy courts do not have authority to use their equitable powers to disallow exemptions or amendments to exemptions due to bad faith or misconduct.” Further, the trustee waived his Rule 1009(a) timeliness argument by failing to raise the issue in his objection, and the court found that “the trustee’s contention that his Rule 1009 objection became available and relevant only after Siegel is unpersuasive.” Affirmed.
Breach of contract claims; Alleged violations of the Michigan Builders’ Trust Fund Act (MBTFA) (MCL 570.151 et seq.); Remand for reconsideration in light of BC Tile & Marble Co., Inc. v. Multi Bldg. Co., Inc.; Whether defendant-VanPopering (sole owner of defendant-Northland Management) should have been held personally liable for the alleged MBTFA violations; Whether a criminal conviction is required to hold an individual personally liable; Whether a plaintiff may maintain an action for statutory conversion (MCL 600.2919a) for alleged violations of the MBTFA; “Conversion”
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 57435 in the 7/22/14 edition) and remanded the case to the Court of Appeals for reconsideration in light of BC Tile. The court did not retain jurisdiction.
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 58973 in the 2/5/15 edition) and remanded the case to the trial court for further proceedings. The court noted that an “offer ‘is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’” Contrary to the Court of Appeals judgment, the 1/20/12 e-mail “from plaintiff’s counsel to defendants’ counsel did not constitute an offer to settle this case. Instead, this e-mail inquired whether defendants would present an offer at some point in the future, which they did, through a subsequent e-mail by their counsel. Defendants’ counsel confirmed that this subsequent e-mail was an offer by later inquiring whether plaintiff had accepted their offer.” Thus, for these reasons and for the reasons stated by the Court of Appeals dissent, “no enforceable settlement agreement existed to bind the parties in this case.”
Sentencing; Scoring of OV 13; MCL 777.43(1)(c) & (2)(a); People v. Hardy
In an order in lieu of granting leave to appeal, the court vacated the defendant’s sentence and remanded the case to the trial court for resentencing. The PSIR and the sentencing transcript indicated that he was assessed 25 points for OV 13 “based on out-of-state charges or accusations, but the record provides no facts in support of the score. Before any such alleged crimes may be used to score OV 13, the prosecution must prove by a preponderance of the evidence that the crimes actually took place, that the defendant committed them, that they are properly classified as felony ‘crimes against a person,’ MCL 777.43(1)(c), and that they occurred ‘within a 5-year period’ of the sentencing offense. MCL 777.43(2)(a).”
Sentencing; Scoring of OV 3; Whether the defendant was entitled to resentencing; People v. Francisco
In an order in lieu of granting leave to appeal, the court reversed in part the Court of Appeals judgment (see e-Journal # 57412 in the 7/23/14 edition), vacated the sentence imposed by the trial court, and remanded the case to the trial court for resentencing. The court noted that had OV 3 “not been scored, the correct guidelines range was 84 to 140 months, rather than the range of 87 to 145 months on which the defendant’s sentence was based.” Thus, he was entitled to relief under the rationale of Francisco. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
On remand from the Michigan Supreme Court, the court held that the trial court erred by denying the defendant’s petition for DNA testing. He was convicted of first-degree murder. The case involved the testing of blood found on and around the victim's body. After a lengthy procedural history, he petitioned the trial court (a second time) for DNA testing, but it denied his petition, finding that "the jury had been fully aware that defendant was not the source of any crime-scene blood, given the blood-type evidence,” but still convicted him, and thus, DNA testing excluding him as a donor would “add nothing of relevance if a new trial took place." The court affirmed on the basis of the law of the case doctrine. But the Supreme Court reversed, holding that no provision “in MCL 770.16 prohibits the issuance of an order granting DNA testing of previously tested biological material” and that the law of the case doctrine did not apply. On remand, the court reversed the trial court’s denial of his petition for DNA testing, finding that the blood samples sought to be tested were material to the issue of defendant’s identity as the perpetrator. “Because DNA testing of a blood sample could possibly connect another person to the crime scene or exclude defendant, the sample would be of some consequence or have a logical relationship to the issue of identity and would be linked to both the crime and the criminal.” Further, “it would be improper to deny DNA testing on the basis that a court concludes that it would deny a future motion for new trial regardless of the results of any DNA testing.” In addition, DNA testing was justified because there was prima facie “proof that the blood samples, which will be subjected to DNA testing, are material to defendant’s identity as the perpetrator, where the DNA testing could point to another specific individual as the perpetrator.” Finally, it noted that the Barrera dicta had no bearing on its analysis because this was not a case where the biological evidence had already excluded a defendant. “[T]he Barrera panel was necessarily envisioning circumstances where there was exclusionary evidence and in light of this evidence the parties did not dispute identity. Such was not the case here, considering that the whole trial focused on the disputed issue of the identity of the perpetrator, alleged by the prosecutor to be defendant,” despite the blood-type evidence excluding him as a source of the blood. Reversed and remanded for entry of an order directing DNA testing.
The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); MCL 15.362; Prima facie case under the WPA; Wurtz v. Beecher Metro. Dist.; “Causal connection”; Shaw v. City of Ecorse; Debano-Griffin v. Lake Cnty.; Roulston v. Tendercare (MI), Inc.; Hazle v. Ford Motor Co.; Effect of a “temporal relationship”; West v. General Motors Corp.; Taylor v. Modern Eng’g, Inc.; “Protected activity”; Brown v. Mayor of Detroit; MCL 15.361(d)(v); “Adverse employment action”; Wilcoxon v. Minnesota Mining & Mfg. Co.; “Constructive discharge”; Joliet v. Pitoniak; Vagts v. Perry Drug Stores, Inc.; LaPointe v. United Autoworkers Local 600 (6th Cir.); Intentional infliction of emotional distress (IIED); Lewis v. LeGrow; False imprisonment; Peterson Novelties, Inc. v. City of Berkley; Moore v. Detroit; Walsh v. Taylor; Conspiracy & concert of action claims; Admiral Ins. Co. v. Columbia Cas. Ins. Co.; Urbain v. Beierling
Holding that the plaintiff failed to show a genuine issue of material fact as to his WPA, IIED, false arrest, conspiracy, and concert of action claims, the court affirmed the trial court’s order granting the defendants summary disposition. The court agreed with the plaintiff-former police officer that a genuine issue of material fact existed as to whether he was engaged in a protected activity for purposes of his WPA claim. However, it also agreed with defendants and the trial court that he failed to establish a genuine issue of material fact as to whether he suffered an adverse employment action. “Plaintiff’s reassignments did not comprise a discharge, a threat, or a form of discrimination concerning his compensation or terms or conditions of employment.” He was a patrol officer, and he “admitted that patrol officers are rotated onto front desk duties and that they work in the jail.” Further, he “acknowledged that his pay and benefits were not altered” after he was assigned to the front desk and the jail. The court also rejected his claim that he was constructively discharged, concluding that defendant-Green’s “comments did not create working conditions so difficult or unpleasant that a reasonable person would feel compelled to resign. Green made the comments after plaintiff had engaged in actions that could reasonably be viewed as concealment efforts or attempts to interfere in the investigation of him for identity theft or fraud,” including removing items “from his locker after learning it would be searched and his telling a neighbor to shred papers or remove a shredder from plaintiff’s home.” He was “told that he would be fired if he left his post and would be arrested if he interfered in the investigation of him for identity theft or fraud.” He “was not denied legitimate options for continued employment” with the police department. “If he remained at his post and did not interfere in the investigation, he could have remained employed.” The court also concluded that he “failed to raise a triable issue that defendants’ proffered legitimate reasons were a mere pretext for unlawful retaliation.”
Whether the National Labor Relations Board (Board or NLRB) had jurisdiction over the petitioner-Casino’s employment practices; National Labor Relations Act (NLRA) (29 USC § 151 et seq.); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.; Holly Farms Corp. v. NLRB; Whether treaties between the U.S. and the predecessors of the Native American Tribe (the Tribe) operating the casino prevented application of the NLRA to a tribal-owned casino operated on trust land within a reservation; Native American law canons of construction; Santa Clara Pueblo v. Martinez; The treaties’ general right of exclusion; Minnesota v. Mille Lacs Band of Chippewa Indians; Donovan v. Navajo Forest Prods. Indus. (10th Cir.); U.S. Dep’t of Labor v. Occupational Safety & Health Review Comm’n (9th Cir.); Smart v. State Farm Ins. Co. (7th Cir.); "Inherent sovereignty rights"; NLRB v. Little River Band of Ottawa Indians Tribal Gov’t.; Worcester v. Georgia; Montana v. United States; Nevada v. Hicks; Plains Commerce Bank v. Long Family Land & Cattle Co.; Donovan v. Coeur d’Alene Tribal Farm (9th Cir.); NLRB v. Pueblo San Juan (10th Cir.); Iowa Mut. Ins. Co. v. LaPlante; San Manuel Indian Bingo & Casino (NLRB); San Manuel Indian Bingo & Casino v. NLRB (DC Cir.)
Under prior precedent (Little River – see e-Journal # 60132 in the 6/25/15 edition), the court was constrained to hold that the NLRA applied to the petitioner-Soaring Eagle Casino and Resort’s employment practices. The Casino, owned and operated by the Saginaw Chippewa Indian Tribe of Michigan, discharged an employee for violating the Casino’s no-union solicitation policy. The Board determined that the policy violated the NLRA and ordered the Casino to cease and desist from implementing the rule and to reinstate the employee with back pay and benefits. The court enforced the Board’s Decision and Order, holding that “the Board has jurisdiction over the Casino’s employment practices.” Applying the Chevron analysis, the court considered whether “1855 and 1864 Treaties, or federal Indian law and policies, prevent application of the NLRA to a tribal-owned casino operated on trust land within a reservation[.]” It rejected the Casino’s argument that the Treaties’ language barred enforcement of the NLRA, and instead “ultimately agree[d] with the Board that a general treaty right to exclude, such as the one described in the 1864 Treaty, alone is insufficient to prevent application of the NLRA to the Casino.” In an issue of first impression in this circuit, the court concluded “that a general right of exclusion, with no additional specificity, is insufficient to bar application of federal regulatory statutes of general applicability.” Absent a “direct conflict between a specific right of exclusion and the entry necessary for effectuating the statutory scheme,” the court refused to “prohibit application of generally applicable federal regulatory authority to tribes on the existence of such a treaty right alone.” The court next considered whether “the Tribe’s inherent sovereignty rights preclude application of the NLRA to the on-reservation Casino.” The court would have applied Montana to conclude that, “as a sovereign, the Tribe has the power to enter into contractual relationships with nonmember individuals and entities for work on reservation property, whether Indian owned or not, and to place conditions on those contracts.” However, it was bound under Little River to conclude “that the Casino operated by the Tribe on trust land falls within the scope of the NLRA, and that the NLRB has jurisdiction over the Casino.” Affirmed.
Divorce; Claim that the home where the parties lived before their separation was marital property subject to equitable division; Principle that a party must ordinarily be “aggrieved” by a lower court decision in order to maintain an appeal; Spires v. Bergman; “Underwater” home defined; “Waiver” defined; Reed Estate v. Reed; MCR 3.210(4)(d) (notice of hearing for entry of a default judgment); Parenting time; “Ripeness”; Joint custody; The children’s best interests; MCL 722.23
The court affirmed the judgment of divorce but remanded for reconsideration of the issues of legal custody and parenting time. On remand, the trial court shall make findings of fact as to each of the statutory best interest factors. On appeal, the defendant-ex-husband contended that the trial court erred by not determining the home where the parties lived before their separation was marital property subject to equitable division, and also by not granting joint legal custody and parenting time with the parties’ two children. He claimed that the trial court erred by not taking jurisdiction over and entering a marital property distributive order as to the H Road property. The plaintiff-ex-wife testified in the trial court that her father owned the property and that “she and defendant paid rent. Further, defendant’s motion to void transfer of a marital asset and the documents attached to it” supported plaintiff’s testimony and belied “any claim to aggrieved status by defendant” as to the H Road property. Specifically, his “motion and the attached documents showed that plaintiff’s father took title to the property on May 24, 2002 (together with his wife and plaintiff with rights of survivorship) and that plaintiff had entered a lease agreement with her parents on June 10, 2002.” Also, defendant filed in the court a motion to waive fees and attached his affidavit as to financial status. Paragraph 5 of the affidavit as to assets listed the H Road home and stated, “My ex-wife or her father payes [sic] the mortgage etc.” He further stated in ¶ 6 that the home he claimed to have a marital interest in "is 'under water over $50,000.'" The court noted that an “underwater” home has “a mortgage loan for which more is owed than the property securing the loan is worth.” Given "defendant’s admissions and plaintiff’s unrebutted testimony,” the record did not show that defendant was aggrieved by the trial court’s failure to address the home on H Road. He also waived any claim he may have had as to the H Road property. While he filed motions in the trial court and claimed a marital interest in the H Road property, “he twice failed to appear at scheduled hearings to present his evidence, testimony, and arguments to the trial court.” His failure to present his evidence and arguments as to his claimed interest constituted a waiver of this issue. However, the trial court “erred by not making specific findings of fact and conclusions of law under the Child Custody Act.”
Foreclosure by advertisement; MCL 600.3201-600.3285; Six-month redemption period, MCL 600.3240; MCL 600.3236; El-Seblani v. IndyMac Mtg. Servs.; Piotrowski v. State Land Office Bd.; Allegations of “fraud” or “irregularity”; Kim v. JPMorgan Chase Bank, N.A.; Standing to foreclose; MCL 600.3204(3); Ownership of the note; Residential Funding Co., L.L.C. v. Saurman; Livonia Props. Holdings, LLC v. 12840-12976 Farmington Rd. Holdings, LLC; Negligence claim based on an alleged Home Affordable Modification Program (HAMP) violation; Campbell v. Nationstar Mtg. (Unpub. 6th Cir.); Fifth Amendment due process rights; Garcia v. Federal Nat’l Mtg. Ass’n; Mortgage Electronic Registration Systems, Inc. (MERS)
[This appeal was from the ED-MI.] The court upheld the district court’s decision to dismiss the plaintiffs’ action to invalidate their home foreclosure because they failed to establish that the foreclosure proceedings violated Michigan’s foreclosure-by-advertisement statute. Their negligence claim based on an alleged violation of HAMP and their Fifth Amendment due process violation claim also failed. There was no dispute that they failed to exercise their statutory right to redeem the foreclosed property within the six-month statutory redemption period. Thus, they were required to “allege ‘a clear showing of fraud, or irregularity’ that 'relate[s] to the foreclosure itself’ and allege that they were prejudiced by such fraud or irregularity, that is, they must show that they would have been in a better position to preserve their interests absent the fraud or irregularity.” The court rejected their claim that the foreclosing bank lacked standing to foreclose under Michigan’s foreclosure-by-advertisement statute. MERS, “the original mortgagee, assigned the mortgage” to the bank and it was duly recorded. Notice of the foreclosure and sheriff’s sale was published in the newspaper and a sign was posted on the property before the sale. “In the mortgage they signed, plaintiffs granted MERS the power to assign the mortgage” to the bank. “That assignment was recorded, creating a clear record chain of title. The mortgage also gave MERS, as mortgagee, the power to initiate foreclosure proceedings, and once assigned,” the bank also had the power to foreclose. The plaintiffs could not argue that the bank was required to “be the assignee of both the mortgage and the promissory note” to foreclose because Michigan law makes it “lawful for the holder of the mortgage to be different from the holder of the debt.” Any “severance of the mortgage from the note—even through securitization—had no bearing” on the bank’s right to foreclose. The plaintiffs’ negligence claim alleging that defendant-Freddie Mac failed to comply with HAMP procedures failed because they could not show that it “breached a duty owed to them. Plaintiffs have not cited any Michigan case holding that HAMP imposes a legal duty on a lender sufficient to support a claim for common-law negligence.” Their due process claim failed because even if Freddie Mac is a government actor, “its compliance with Michigan’s foreclosure-by-advertisement procedures satisfied the requirements of the Due Process Clause.” Affirmed.
The court held that the petitioner did not show reversible error in the TT’s decision to exclude an appraisal. Also, the TT did not err in assessing the TCV of the personal, industrial property at $6,219,900 and the TV at $3,109,950. Petitioner purchased the equipment during its asset purchase of Len Industries in 2011. An appraisal was conducted for petitioner in anticipation of the asset purchase. It concluded that the machinery and equipment of Len “had a forced liquidation value of $4,916,950, and an orderly liquidation value of $6,632,250.” The TT excluded the appraisal, finding that petitioner “failed to provide the proper foundation, as the authors of the appraisal were not present to testify.” It also found that the appraisal was not relevant in determining the TCV of the property. Petitioner argued that the appraisal was relevant and the TT should have admitted it. Petitioner claimed that it “did not offer the appraisal for the truth of the matter asserted, i.e., as proof of the true value of the equipment.” Rather, it claimed “the appraisal was offered for a non-hearsay purpose, namely, ‘to corroborate the facts used by’” W, the director of finance for petitioner, in making a purchase offer for Len’s assets. Petitioner explained that the “appraisal set forth the complete description of the equipment and corroborated pertinent facts in the private sale transaction. However, significant evidence was adduced regarding the purchase of the property, including the factors petitioner relied on in making the offer.” W testified that “petitioner relied on the 12-month trailing earnings statement to determine what type of income the business could generate, the client mix, the location, and the management skill” of Len. The “asset purchase agreement was admitted into evidence, and it not only detailed the purchase price, but also included a working capital statement.” Thus, the appraisal was repetitious. As to the TCV, petitioner’s argument rested on the “flawed premise” that “a purchase price is necessarily determinative” of the TCV of personal property. “While the purchase price may be evidence of” TCV if it is “an arms-length transaction, it is not determinative of” TCV. The TT’s ruling comported with Jones. It “considered the sale, the deficiencies in petitioner’s evidence, and ultimately concluded that the sales price was not indicative of value.” Affirmed.