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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Michigan Persons with Disabilities Civil Rights Act (PDCRA); Contractual limitations period; “Claim”; Pinckney Cmty Sch v Continental Cas Co; Procedural & substantive unconscionability; Clark v DaimlerChrysler Corp; Public policy; Equal Employment Opportunity Commission (EEOC)
Holding that plaintiff-former employee’s PDCRA suit was barred by an employment agreement’s one-year limitation period, the court affirmed summary disposition for defendant-former employer. Plaintiff argued that the “agreement’s requirement to ‘assert any claim’ is ambiguous and could be interpreted to include [her] initial request for accommodation and her filing of an EEOC charge, both of which occurred within the agreement’s one-year limitation.” The court disagreed. She was correct “that the phrase ‘assert any claim’ is not always synonymous with ‘file a lawsuit.’” As an example, the court noted that in Pinckney, it addressed “an insurance policy that limited its coverage to ‘claims . . . made . . . during the policy period.’ We interpreted ‘making a claim’ to include complaints filed with the EEOC on the basis that ‘claim’ was not defined in the policy and could reasonably be understood by the parties to encompass an EEOC complaint.” But the court found that here, “although ‘claim’ is not technically defined in the limitations paragraph, the rest of that paragraph clearly requires that ‘[c]laims must be asserted in . . . court . . . .’ Accordingly, when reading the clause ‘assert any claim’ within the context of the rest of the agreement,” the court concluded it was “not ambiguous and that the trial court correctly interpreted it to mean ‘file a lawsuit in court.’” The court also rejected plaintiff’s contention that the limitation period was “both procedurally and substantively unconscionable, and” could not be enforced. It noted that while she “was clearly in a weaker bargaining position than defendant—the company that drafted the agreement—the unambiguous, one-year limitations clause does not rise to the level of procedural unconscionability. Additionally, because the six-month limitation was not substantively unconscionable in Clark,” it determined “that the one-year limitation in the present case also is not substantively unconscionable.” Finally, the court declined to specifically address her public policy argument, raised for the first time on appeal, but it noted that it has previously found “employment contracts providing for a shortened period of limitations generally do not violate public policy.”
Imposition of attorney fees under MCL 769.1k(1)(b)(iv); Fines in violation of Const 1963, art 8, § 9; Saginaw Pub Libraries v Judges of 70th Dist Court; People v Barber; Determining the cost of representation; People v Lewis; People v Williams (Unpub); Required factual findings; Consideration of whether the fees were satisfied by the Michigan Indigent Defense Commission Act (MIDCA); People v Sedgeman (Unpub); Consideration of ability to pay; People v Jackson
The court held that MCL 769.1k(1)(b)(iv) does not impose a fine, and thus, is not unconstitutional under Const 1963, art 8, § 9. And the trial court “did not abuse its discretion in denying defendant’s motion to correct an invalid sentence because” its factual findings on the record were sufficient and it was not required to consider whether her “attorney fees were satisfied by the MIDCA or analyze [her] ability to pay when imposing attorney fees.” The court first addressed “whether the imposition of attorney fees for the expense of providing legal assistance to a defendant under MCL 769.1k(1)(b)(iv) constitutes a fine in violation of” Const 1963, art 8, § 9. It concluded that because the statute’s plain language evidenced “the Legislature did not intend for it to be a fine and the attorney fees imposed directly relate to the actual cost of providing defendant with legal assistance,” she did not establish that the statute “constitutes a punitive fine subject to Const 1963, art 8, § 9. MCL 769.1k(1)(b)(iv) is not facially unconstitutional.” It next found that while the trial court did not make factual findings as to “the $400 attorney fee at sentencing, it did explain in its order denying defendant’s motion to correct an invalid sentence that $400 was a predetermined estimate that ‘applies for all defendants and their costs typically incurred prior to trial . . . .’ [It] further explained that the attorney fees covered meetings, court appearances, plea negotiations, and motion practice, and opined that $400 was ‘substantially less’ than the actual costs incurred, considering defendant ‘also had bond and tether hearings and attempted to withdraw her no contest plea.’” The court noted she did “not challenge any of these findings on appeal. [They] were sufficient to satisfy Lewis because the trial court acknowledged the amount of work the case required and estimated that the cost of providing legal services to defendant was substantially more than the predetermined fee it imposed. [It] did not err” as to its factual findings. The court also rejected her MIDCA argument. “Importantly, here defendant did not claim indigency at sentencing and offers no evidence to establish that she was or should have been determined to be partially or totally indigent.” Finally, under Jackson, “the trial court was not required to make findings” as to her ability to pay when it imposed the attorney fee. Affirmed.
Sufficiency of the evidence; AWIGBH & assault by strangulation; MCL 750.84(1)(a) & (b); People v Russell; People v Lydic; Domestic violence; MCL 750.81(2); People v Cameron; Inference of intent from the use of physical violence; People v Dillard; Credibility; Inconsistent verdicts; People v Montague
Finding no errors requiring reversal, the court affirmed defendant’s convictions of assault by strangulation, AWIGBH, and domestic violence. His convictions arose out of his repeated assaults of the victim while they were dating. He was acquitted of felonious assault and felony-firearm. On appeal, the court rejected his argument that there was insufficient evidence to support his convictions because his acquittals “revealed the victim ‘was not a completely believable complainant.’” It noted that because it “must resolve all credibility determinations in favor of sustaining the jury’s verdict, defendant” failed to show his convictions should be reversed. The court also rejected his claim that his convictions and acquittals revealed inconsistent verdicts, noting the crimes he was acquitted of were not necessary to convict him of the other crimes. “The jurors could have determined that defendant did not use or possess the shotgun, which the victim claimed he pointed at her, while at the same time finding that defendant assaulted the victim by strangulation and also with the intent to inflict great bodily harm during a dating relationship.” Finally, he contended that his convictions were “based on speculative inferences, solely derived from the victim’s testimony. But her testimony and the corroborating evidence presented at trial were not speculative; they provided sufficient evidence to sustain defendant’s convictions.” In this case, as in Dillard, “the victim’s description of the defendant’s abuse constituted sufficient evidence to demonstrate that defendant intended to inflict great bodily harm.” The strangulation assessment “revealed that the victim had symptoms consistent with repeated choking, including difficulty breathing, throat pain, dizziness, and fainting. The jurors did not have to rely exclusively on the victim’s testimony. [Her] descriptions of defendant’s abuse—combined with the evidence corroborating her descriptions—was sufficient to prove that defendant assaulted her by strangulation, and that [he] intended to inflict great bodily harm upon her.” Affirmed.
Divorce; Distribution of liabilities; Scope of remand; Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC; The law-of-the-case doctrine; Rott v Rott; The “rule of mandate”; Stacy v Colvin (9th Cir); Equitable division of marital property; Butler v Simmons-Butler; Meatte v Meatte; Sparks v Sparks; Distinguishing McNamara v Horner; Consideration of fault; Berger v Berger
The court held that: (1) the trial court did not exceed the scope of its authority on second remand when it applied the 90-10 split to the proceeds from the sale of the parties’ Colorado home seized by the IRS, (2) it complied with the court’s instructions and its findings of fact did not leave the court “with a definite and firm conviction that a mistake was made,” and (3) the court was “not left with a firm conviction that the application of the 90-10 split to the amount seized by the IRS after the sale of the Colorado home was inequitable.” This postjudgment divorce matter stemmed from disputes over the parties’ financial obligations, including the distribution of liability for their tax debt. The court rejected defendant-ex-husband’s argument that the trial court exceeded its authority after second remand by applying the 90-10 split of the parties’ tax debt to the portion of the proceeds from the sale of the Colorado home. “The trial court determined that the sale of the Colorado home occurred ‘before the termination of Defendant’s spousal support obligation to Plaintiff,’ which terminated on” 6/30/23. His “90% share was $562,328.63 and plaintiff’s 10% share was $62,480.96. The trial court awarded defendant various credits, totaling $97,819.07. [It] ordered defendant to continue making $7,500 monthly payments to plaintiff, consistent with the order of” 12/13/23, until further court order or issuance of a stay. “The issue was left open by this Court, and the trial court did not err by deciding [it] on second remand.” Further, while “the parties, the trial court, and this Court knew about the tax liens on the Colorado home, this Court was not aware of the sale of [that] home when it remanded the case on either occasion. The trial court was presented with this information after second remand by this Court and was able to decide the matter. [Its] actions complied with this Court’s remand instructions.” The court also rejected defendant’s claim that the trial court’s application of the 90-10 split to the home resulted in an inequitable property settlement. The trial court’s findings of fact did not leave the court “with a definite and firm conviction a mistake was made.” Further, its “dispositional ruling on second remand was fair, and this Court is not left with a firm conviction that the reapportionment of the tax debt liability or resulting property division was inequitable.” It also found that “the facts in Meatte differ from those in this case and do not justify another remand or the relief requested by defendant.” Moreover, unlike in McNamara, “the trial court on second remand finally addressed all the appropriate Sparks factors and did not err in reapportioning the parties’ tax debt to a 90-10 split. Consequently, the overall property division was not inequitable.”
The No-Fault Act (NFA); Designating the appropriate payees for first-party no-fault benefits; Equitable apportionment pursuant to MCL 500.3112; Michigan Head & Spine Inst, PC v Nationwide Mut Fire Ins Co
The court concluded that the trial court’s decision as to the appropriate payees and apportionment of the first-party no-fault benefits at issue here was based on premises that were recently expressly rejected in Michigan Head & Spine. Plaintiff was seriously injured in a motor vehicle accident in 2021. She received medical care for weeks as a patient of interested party-medical provider (DMC). She appealed “the trial court’s orders directing that nearly the entire amount of $250,000 in allowable expenses available under the” NFA must be disbursed to DMC. She argued that the trial court erred in “failing to designate the appropriate payees to receive first-party no-fault benefits, and . . . by failing to make an equitable apportionment, contemplated by MCL 500.3112, of the limited benefits available for allowable expenses among those entitled to benefits.” The court first found that “the trial court erred by dictating that the six-figure Medicaid lien was part of plaintiff’s third-party claim. Indeed, a solid argument was made to the trial court that the Medicaid lien should have been elevated in priority above the DMC claim to the entire $250,000 in first-party benefits for allowable expenses, and the trial court at first took that position, but later retracted that determination.” In addition, the court found that “the process of equitable apportionment under MCL 500.3112 was pretermitted by the trial court’s reliance on the first-in, first-out method for allocating the $250,000 in benefits that were available.” The trial court deemed “that approach necessary, which contravened” the court’s conclusion in Michigan Head & Spine “that the statutory language affords significant discretion to trial courts in that regard.” Given the discrepancies between the court’s rulings in Michigan Head & Spine “and the trial court’s approach to the $250,000 in allowable expense benefits,” the court vacated the trial court’s orders and remanded “for further consideration under the principles enunciated in Michigan Head & Spine.”
Medical malpractice; Wischmeyer v Schanz; Proximate causation; O’Neal v St John Hosp & Med Ctr; Expert testimony; Kalaj v Khan; Distinguishing between a “reasonable inference” & “impermissible conjecture”; Distinguishing Badalamenti v William Beaumont Hosp-Troy; Lay witness opinion testimony; MRE 701; Airgas Specialty Prods v Michigan Occupational Safety & Health Admin
Holding that there was a genuine issue of material fact on the issue of whether defendant-doctor’s (Shulak) alleged breach of the standard of care (SOC) “proximately caused plaintiff’s injuries, including pain resulting from the two implant removal and replacement surgeries,” the court reversed and remanded. Plaintiffs-husband and wife (Jaki) sued Shulak and defendant-hospital for medical malpractice alleging Dr. Shulak, during a biopsy procedure, lacerated, punctured, or otherwise compromised or damaged Jaki’s breast implant and caused it to rupture. The trial court found plaintiff failed to establish a genuine issue of material fact as to the element of “proximate causation between the alleged breach and the injury.” On appeal, the court first found that the “trial court erred when it granted summary disposition to defendants because there are genuine issues of material fact . . . on the issue of whether Dr. Shulak’s alleged breach of the [SOC] in his performance of the biopsy procedure was a proximate cause of plaintiff’s injuries.” The evidence established “a sufficiently reliable factual basis for” plaintiff’s expert’s opinion that “Dr. Shulak’s alleged breach of the [SOC] in his use of and technique with the Mammotome needle was a proximate cause of it cutting, puncturing, notching or otherwise compromising the structural integrity of the implant shell. There is a genuine issue of material fact whether this weakened the wall of the implant, allowing it to rupture with subsequent pressure from muscle activity and movement.” Although the “ultrasound images Dr. Shulak chose to capture in the course of the biopsy procedure do not depict the biopsy needle actually within the breast implant, that does not conclusively establish that a puncture did not occur.” Notably, defendants did “not suggest an alternative causative mechanism for the implant rupture other than it occurring during the postsurgical mammogram due to its age.” And they “failed to preserve the complete ultrasound imaging record.” The court also disagreed with the trial court’s conclusion that plaintiff did not present expert testimony sufficient to create “a genuine issue of material fact as to whether Dr. Shulak’s alleged medical negligence was a proximate cause of the pain plaintiff suffered subsequent to that biopsy procedure.” Plaintiff was “certainly permitted to offer testimony as to her own perceptions, particularly where, as here, expert testimony acknowledge[d] that Dr. Shulak’s alleged breach of the [SOC] can be a proximate cause of the ongoing pain plaintiff says she has experienced.”
Action seeking damages for a collision with a public bus; Governmental immunity; The motor-vehicle exception; MCL 691.1405; Seldon v Suburban Mobility Auth for Reg’l Transp; Duty breach; Causation; MCL 500.3135(1); Comparative negligence; MCL 500.3135(2); The gross negligence exception for government employees; MCL 691.1407(2); MCL 691.1407(8)(a); Tarlea v Crabtree; Evidence of ordinary negligence; Maiden v Rozwood; No-fault benefits; Capital Area Transportation Authority (CATA)
The court held that the trial court erred by denying defendants-transportation authority’s (CATA) and bus driver’s (Rodgers) motion for summary disposition of plaintiffs’ gross negligence claim against Rodgers and no-fault claim against CATA, but properly denied their motion as to plaintiffs’ claim against CATA under the motor-vehicle exception to governmental immunity. Plaintiffs sued defendants for injuries they sustained when their motorcycle was struck by one of CATA’s buses, which was driven by Rodgers. The trial court denied defendants’ motion for summary disposition. On appeal, the court agreed with defendants that the trial court erred by refusing to dismiss plaintiffs’ claim against Rodgers, but concluded that it properly refused to dismiss plaintiffs’ negligence claim against CATA. As to CATA, the court noted that plaintiff-White’s testimony supported that “Rodgers caused the collision, so there [remained] a question of fact as to this issue. Likewise, if a jury believe[d] White’s testimony, it could readily conclude that plaintiffs were not more than 50% at fault for the collision.” Further, a jury could find based on White’s testimony “that Rodgers breached his duty to exercise ordinary and reasonable care and caution in his operation of the bus by failing to see plaintiffs’ motorcycle in the intersection before turning.” As to the claim against Rodgers, his “conduct did not rise to the level of gross negligence.” While the court agreed “with the trial court that a jury could conclude that Rodgers ‘just didn’t see’ the motorcycle that ‘was right there,’ that would only support that [he] was negligent, and ordinary negligence is not enough to establish a question of fact as to gross negligence.” Finally, the court agreed with defendants that the trial court erred by refusing to dismiss plaintiffs’ claim for no-fault benefits. “When defendants asked plaintiffs at their depositions to identify any no-fault benefits that CATA had refused to pay, neither plaintiff could identify any. So, defendants sensibly moved for summary disposition, arguing that plaintiffs could not establish their claim for unpaid no-fault benefits, citing plaintiffs’ deposition testimonies.” Affirmed in part, reversed in part, and remanded.
Termination of parental rights; Child’s best interests; In re Sanborn; Relative placement; In re Mason; “Relative”; MCL 712A.13a(j); Guardianship; MCL 712A.19a(8); In re Rippy
Holding that termination of respondent-mother’s parental rights was in the child’s best interests, the court affirmed. Her rights were terminated on the basis of improper supervision, as well as her failure to complete services or have contact with the child. On appeal, the court rejected her argument that termination was not in the child’s best interests. The record revealed “the trial court carefully considered the evidence and addressed the relevant factors in making its best-interest finding.” It noted that respondent was offered services, but did not participate in them, and failed to create a safe environment in which the child could live. It also considered the trauma the child had endured because of respondent’s “‘inability to self-regulate.’” And it considered the lack of a parent-child bond. The court next rejected respondent’s claim that the trial court erred by failing to properly consider the child’s placement with a relative. “The trial court acknowledged that [the child] was placed with a relative, but explained that [he] needed permanency.” A woman who may have been fictive kin or a cousin “was interested and able to provide [him] with the permanency he deserves.” He looked to her, “rather than his parents, for love, support, comfort, and protection.” As such, “the trial court properly resolved the issue regarding [the child’s] placement with a relative in making its best-interest finding.” Finally, the court found that respondent did not show “that the trial court erred by failing to explicitly consider guardianship when making its best-interest finding.”