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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Discrimination under the Americans with Disabilities Act (ADA) (42 USC §§ 12101–12213); Legal frameworks for establishing proof of discrimination; Indirect method; McDonnell Douglas Corp. v. Green; Direct method; Ferrari v. Ford Motor Co.; Monette v. Electronic Data Sys. Corp.; Kleiber v. Honda of Am. Mfg., Inc.; Martinez v. Cracker Barrel Old Country Store, Inc.; Whether plaintiff was “disabled” under the ADA; §§ 12102(1)(A) & 12102(2); 29 CFR § 1630.2(i)(2); Whether she was “otherwise qualified for her position”; Mosby-Meachem v. Memphis Light, Gas & Water Div.; Kiphart v. Saturn Corp.; §§ 1630.2 (n)(1) & (3); Hoskins v. Oakland Cnty. Sheriff’s Dep’t; EEOC v. Ford Motor Co.; Williams v. AT&T Mobility Servs.; Whether defendant was willing “to engage in an interactive process”; Title VII sex & pregnancy discrimination claim; Demyanovich v. Cadon Plating & Coatings, L.L.C.; Seeger v. Cincinnati Bell Tel. Co.; Family & Medical Leave Act (FMLA) claims; 29 USC §§ 2601–2654; Dobrowski v. Jay Dee Contractors, Inc.; Sorrell v. Rinker Materials Corp.
The court held that the defendant-employer (Wooster) was improperly granted summary judgment on plaintiff-Hostettler’s ADA claim where the district court erroneously applied the indirect method instead of the direct method to determine whether she made her prima facie case where Wooster rescinded a reasonable accommodation. Hostettler worked as a HR Generalist for Wooster. After the birth of her child, she suffered from depression and separation anxiety. Her 12-week maternity leave was extended under a doctor’s certification, and she returned to work part-time until she was fired. The district court granted Wooster summary judgment based on its conclusion that she failed to establish a prima facie case under the ADA where “she could not meet an essential function of the position—full-time work—and so was not otherwise qualified for the job.” The court concluded that the district court applied the wrong legal standard when it used the burden-shifting approach of McDonnell Douglas. Instead, the court held that it should have applied the direct method given that Wooster rescinded the accommodations it had made for Hostettler. Her supervisor “admitted that Hostettler was fired solely because the college determined that it no longer could accommodate her modified schedule.” Applying the direct method to Hostettler’s ADA claim, the court held that she qualified as an “individual with a disability.” The decisive inquiry was whether “Hostettler was otherwise qualified for her position.” Although the district court ruled that she was not, the court held that summary judgment was not appropriate where both parties offered evidence that raised genuine issues whether she met this requirement. Also, the district court ruled that “as a matter of law, working full time was an essential function of the position.” However, the court held that, on its own, “full-time presence at work is not an essential function. An employer must tie time-and-presence requirements to some other job requirement.” Wooster was required to “explain why Hostettler could not complete the essential functions of her job unless she was present 40 hours a week.” Fact questions also remained as to whether Wooster was “willing to engage in the interactive process” to “‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.’” The court also held that summary judgment was improper on Hostettler’s Title VII sex- and pregnancy-discrimination claim and her FMLA claims.
Applicability of the 15-year limitations period for actions for recovery or possession of land or to quiet title; MCL 600.5801; Statutory interpretation; Stanton v. City of Battle Creek; Odom v. Wayne Cnty; MCL 600.5801(4); Determining the gravamen of an action; Adams v. Adams; Whether it would be appropriate to allow plaintiff to amend his complaint; MCR 2.118(A)(2) & (D); Fraudulent concealment exception; MCL 600.5855; Mays v. Snyder; Buszek v. Harper Hosp.; Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst.; Whether Prentis implies that reasonable diligence might not be required where a fiduciary relationship existed between a plaintiff & a defendant; Whether the issues of forgery & fraudulent concealment were questions for the jury
The trial court correctly ruled that MCL 600.5801 did not apply to plaintiff’s claims as pled, because he did not bring an action to quiet title or for the recovery of possession of property. But the court remanded for the trial court to consider whether he should be allowed to amend his complaint in order to allege such a claim. He failed to establish that defendant-Smith fraudulently concealed any causes of action and thus, MCL 600.5855 was also inapplicable. The court affirmed the order granting summary disposition for Smith and the other defendants; however, it vacated the portion of the order dismissing plaintiff’s case, and remanded. Plaintiff contended that the trial court should have applied the 15-year limitations period for actions for recovery or possession of land or to quiet title to his claims arising out of Smith’s alleged forgery of a quitclaim deed. He contended “that, because his claims necessarily stemmed from Smith’s alleged forgery of a quitclaim deed, they were subject to the limitations period” in MCL 600.5801(4). The trial court found that the statute did not apply because plaintiff did not sue for “quiet title or for adverse possession.” The court agreed that his claims could not “be read as claims for quiet title or adverse possession,” and thus, MCL 600.5801(4) did not apply to plaintiff’s claims as pled. The “complaint alleged that Smith had breached a contract with plaintiff by failing to pay him money owed under an agreement, and a related claim for unjust enrichment based, again, on Smith allegedly having not paid him money.” Both claims are governed by the six-year statute of limitations in MCL 600.5807. “Plaintiff also asserted claims of fraudulent and innocent misrepresentation against Smith, alleging that he was induced by Smith’s misrepresentations to obtain a mortgage, perform work on the property, and sign what plaintiff alleges was a fraudulent quitclaim deed. These fraud claims” were subject to the residual six-year limitations period in MCL 600.5813. Finally, his “fraudulent conveyance” claim did seek to have the conveyance declared fraudulent, but (1) alleged that it “was ‘without consideration and was otherwise fraudulent to’” him and (2) specifically requested a judgment under the “Uniform Fraudulent Conveyance Act,” which has “its own statutory provision proscribing which limitations periods apply to claims for relief under the act, none of which are” the period in MCL 600.5801. None of his claims could “be read as having as their gravamen a request for entry unto land, recovery or possession of land, quiet title, or adverse possession.”
Sufficiency of the evidence; Unlawfully driving away an automobile; MCL 750.413; People v. Hendricks; Spectrum Health Hosps. v. Farm Bureau Mut. Life Ins.; People v. Hayward; People v. Sabin (After Remand)
Holding that there was sufficient evidence to convict defendant of unlawfully driving away an automobile (UDAA), the court affirmed. His conviction was based on evidence that his girlfriend, B, revoked permission for him to drive her car. The prosecution did not dispute that defendant traditionally had permission to drive the vehicle at will and was not required to ask B or her son, R, first. However, the prosecution asserted that B and R revoked that permission before defendant drove away the vehicle on this occasion. Both B and R testified that they told defendant he could not take the vehicle and that he drove the vehicle away anyway. The jury found this testimony credible and the court may not interfere with that judgment. Defendant contended that B “unenthusiastically told Defendant not to take the car when he left,” implying that B did not truly intend to revoke her permission. Even if that were true, R also revoked defendant’s permission to drive the car. As the car’s owner, R had authority to deny defendant’s use. Defendant further asserted that “permission was revoked only after he took the car and that this was insufficient to support his conviction for UDAA as provided in” Hayward. As evidence of this point, he noted that B and R delayed in contacting the police. Defendant theorized that the delay showed that R’s “attitude changed and he ultimately became firm in his desire to have the car returned.” Although the evidence was certainly probative, it was not dispositive. Moreover, both B and R testified that they revoked their permission before defendant drove away. The jury accepted the testimony as true and the court may not interfere with that judgment.
Whether defendant was entitled to Miranda warnings; Miranda v. Arizona; People v. Burton; Whether the officer’s conversation with defendant was a custodial interrogation; People v. Elliott; People v. Steele
The court held that the trial court did not abuse its discretion by denying defendant’s motion to suppress evidence. He was convicted of operating/maintaining a meth lab and possession of meth after a traffic stop that resulted in a search of his property. On appeal, the court rejected his argument that the evidence gathered from his garage and house should have been suppressed because it was gathered based on a search warrant that was supported by statements he made to the officer during the traffic stop. He claimed that because the officer’s questioning during that stop was a police custodial interrogation, the officer was required to inform him of his Miranda warnings, which he did not do. It found that “a reasonable person would feel free to terminate a general conversation with a police officer, even while waiting on the roadside for their vehicle to be towed.” It then concluded that “defendant was free to terminate the conversation with” the officer, who “stated that he was still conducting an investigation when he asked defendant about meth[] and that he had not made the decision yet to arrest defendant. When considering the location of the questioning, the statements made during the questioning, and the lack of restraints used during the questioning,” defendant’s “freedom of action was not curtailed to a degree associated with formal arrest . . . until he was actually placed in handcuffs and put in” the officer’s vehicle for transport to the jail. As such, “it was not until that point that defendant was entitled to the warnings outlined in Miranda.” Affirmed.
Other acts evidence involving a minor; MCL 768.27a(1); People v. Pattison; People v. Duenaz; Unfair prejudice; MRE 403; People v. Uribe; People v. Watkins; People v. Pesquera; Effect of a prior acquittal; People v. Oliphant; People v. Gibson; People v. Bolden; Sentencing; Scoring of OV 13; Whether there was a “continuing pattern of criminal behavior”; MCL 777.43; People v. Carll; Whether the “offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person”; MCL 777.43(1)(c); Consideration of all crimes within a 5-year period; MCL 777.43(2)(a); Principle that if no pattern of felonious criminal activity existed, the trial court must score OV 13 at zero points; MCL 777.43(1)(g); Discovery; MCR 6.201; People v. Greenfield; People v. Phillips; Authentication; MRE 901(a); People v. Berkey; Ineffective assistance of counsel; People v. Trakhtenberg; Trial strategy; People v. Heft; People v. Matuszak; Failure to call witnesses; People v. Julian; A substantial defense; People v. Kelly; Impeachment; People v. Roscoe; Expert testimony; People v. Kowalski; People v. Stricklin
The court held that the trial court did not abuse its discretion by admitting other acts evidence or by scoring OV 13. Defendant was convicted of CSC II for sexually abusing the victim, HT, after she, her adoptive mother, and her brother moved into defendant’s trailer. The trial court sentenced him, as a second-offense habitual offender, to a prison term of 3 to 22-1/2 years. On appeal, the court rejected his argument that the trial court erred in admitting the testimony of TG, who testified that defendant sexually abused her in 1993. It first noted that “the trial court’s comment that the issue was a ‘close call’ and that the evidence would therefore be admitted reveals that it weighed the propensity inference in favor of the evidence’s probative value.” In addition, “[g]iven the similarity of the acts and the settings in which they occurred, the temporal divide between their occurrences, standing alone, would not preclude the evidence’s admission.” Further, his “prior acquittal does not necessarily establish his innocence of the crime charged in that case, only that the prosecution failed to prove the charges beyond a reasonable doubt.” Lastly, although CSC II “can be proven simply on the basis of the victim’s testimony,” HT’s “delay in reporting the abuse to her mother, as well as the lack of physical evidence, heightened the probative value of the evidence of the similar assaults against TG.” The court also rejected defendant’s claim that the trial court erred by scoring 25 points for OV 13, holding that “HT’s testimony provided a factual basis to support the trial court’s scoring of OV 13, and defendant was provided with an opportunity to challenge her testimony.” Finally, the court rejected the arguments in defendant’s Standard IV brief as meritless. Affirmed.
Request for a lesser included offense instruction; People v. Everett; People v. Wilder; MCL 768.32(1); People v. Rodriguez; People v. Cornell; People v. McMullan; Distinguishing People v. Nickens; MCL 750.520b(1)(a); People v. Duenaz; MCL 750.520b(2)(b); People v. Nyx; MCL 750.520g(1); People v. Cash; Admission of the victim’s statements for the purpose of medical treatment; Hearsay; MRE 801(c); People v. Gursky; MRE 802; MRE 803(4); People v. Mahone; People v. Meeboer (After Remand); Sentencing; Abandoned issue of whether the trial court should have calculated defendant’s sentencing guidelines range using the next highest crime class; Scoring of 15 points for OVs 8 & 10; People v. McChester; People v. Hardy; People v. Johnson; “Predatory conduct”; People v. Cannon; People v. Kosik; Abandoned issue of whether the sentence was reasonable & proportionate; People v. Lockridge
The court held that the trial court did not err when it denied defendant’s request for an instruction on assault with intent to commit CSC involving penetration as a necessarily lesser-included offense to the three charges of CSC I. Also, the victim’s statements to the examining nurse were reasonably necessary for her diagnosis and treatment. Thus, the trial court did not abuse its discretion in admitting them under MRE 803(4). The court also upheld the scoring of 15 points each for OVs 8 and 10. Defendant was convicted for sexually assaulting his girlfriend’s daughter. He was convicted of three counts of CSC I, one count of CSC II, one count of engaging in child sexually abusive activity, and one count of possession of child sexually abusive material. He was sentenced to consecutive sentences of 25 to 50 years for each CSC I conviction, and concurrent sentences of 10 to 15 years for CSC II, 160 months to 20 years for the child sexually abusive activity conviction, and 32 months to 4 years for the child sexually abusive material possession conviction. Defendant argued that the trial court erred when it denied his request for an instruction on assault with intent to commit CSC involving penetration as a necessarily lesser-included offense to the CSC I charges. He relied upon Nickens to argue that before a defendant can commit CSC I involving sexual penetration, “he or she initially commits an attempted-battery assault with the intent to commit” CSC involving sexual penetration. Defendant contended that “because the victim was legally incapable of consenting to sexual penetration due to her young age, the attempted-battery assault was necessarily committed using force or coercion,” and he was thus entitled to an instruction on the lesser-included offense of assault with intent to commit CSC involving penetration. The court disagreed, noting that the defendant in Nickens was charged under MCL 750.520b(1)(f), while defendant here was charged with age-based CSC I under MCL 750.520b(1)(a). It held that because “there is ‘no circumstance in which an actor could unintentionally or accidentally use force or coercion to sexually penetrate his victim,’ defendant’s reliance on Nickens” was misplaced. Affirmed.
Sufficiency of the evidence to support a manslaughter conviction; People v. Townes; Gross negligence; People v. Head; Admission of the victim’s hearsay statements; MRE 801(c); Excited utterance hearsay exception; MRE 803(2); People v. Smith; Claim that the video of a witness interview was used beyond its limited permissible purpose of impeachment; Waiver; People v. Carter; Ineffective assistance of counsel; People v. Payne; People v. Randolph; Matters of trial strategy; People v. Russell; Whether defendant was entitled to have the judgment of sentence corrected to state that he convicted of involuntary manslaughter; In re Nale Estate; MCL 750.321; Accuracy of the presentence investigation report (PSIR); MCR 6.429(C); People v. Bailey; Hand-written corrections to the PSIR; MCL 771.14(6); “Stricken” defined; People v. Brooks
Holding that the trial court did abuse its discretion in admitting victim-W’s statements under MRE 803(2), the court rejected defendant’s sufficiency of the evidence challenge based on the claim that this evidence was inadmissible. He waived his argument as to the use of a witness interview, and his related ineffective assistance of counsel claim failed. Further, he was not entitled to have his judgment of sentence (JOS) corrected to specify he was convicted of involuntary manslaughter. While he was entitled to some corrections to his PSIR, the court rejected his objection to the trial court making hand-written corrections rather than having it retyped. He argued that if W’s hearsay statements were not admitted, the other evidence against him was insufficient to support his involuntary manslaughter conviction (he was also convicted of felony-firearm). The trial court allowed three witnesses to testify about statements W made after she was shot, ruling that while the statements were hearsay, they were admissible as excited utterances. It was undisputed that W “was shot, and that immediately after being shot, she ran approximately 45 yards before collapsing in the grass in front of the apartment building. The three witnesses came upon [her] shortly after the shooting.” She appeared to be in pain, but was “able to speak with the individuals gathering around her. Receiving a gunshot to the chest is undoubtedly a startling event. Moreover, it can reasonably be inferred that the shooting caused [W] to experience trauma and anxiety, and that she was still under the influence of this stress when she made the statements.” Thus, the court held that the trial court did not abuse its discretion in admitting W’s statements as excited utterances, and it rejected defendant’s claim that “the properly considered evidence was insufficient to prove” involuntary manslaughter. Further, the JOS accurately reflected his manslaughter conviction – “MCL 750.321 encompasses both types of common-law manslaughter,” and the JOS reflected that he was found guilty of “manslaughter” under that statute. The court affirmed his convictions and sentences, but remanded for correction of his PSIR.
Motion to change children’s school enrollment; The Child Custody Act (MCL 722.21 et seq.); Established custodial environment (ECE); MCL 722.27(1)(c); Pierron v. Pierron (Pierron I & II); The statutory best-interest factors; MCL 722.23; Whether the trial court conducted a full evidentiary hearing; Lombardo v. Lombardo; Whether the trial court dismissed objections on the basis of res judicata; Mootness; Request to modify parenting time; Vodvarka v. Grasmeyer; Shade v. Wright; Kaeb v. Kaeb; Sufficiency of a parent’s remarriage & the children’s relationship with members of their step-family to meet the initial threshold of a change of circumstances under Shade; Determining whether Vodvarka or Shade applies; Lieberman v. Orr; Curless v. Curless
Concluding that the trial court erred in failing to conduct a full evidentiary hearing, determine whether an ECE existed, and address the MCL 722.23 factors, the court vacated the order denying the defendant-father’s school change request. It also found that remand was required as to his request to modify parenting time because the trial court failed to determine if an ECE existed, let alone whether a modification would change it. The record showed that the trial court did not give “the parties an opportunity to fully present evidence on the issue of whether changing the children’s school was in their best interests.” The attorneys presented their arguments, the parties “were placed under oath, and the trial court asked them questions.” Given that it had to determine the children’s ECE, “whether the requested change would alter it, and whether such a request was in” the children’s best interests, an evidentiary hearing in the form of a Lombardo hearing was required. No evidence was introduced, no witnesses were called, there was no cross-examination by opposing counsel, and the trial court did not expressly consider the statutory best-interest factors. Thus, the court found that it “failed to conduct a full evidentiary hearing on the request to change the children’s school enrollment,” requiring remand. Further, the legal error in failing to determine whether an ECE existed and whether the school change would alter it was sufficient to require vacation and remand. In addition, the failure to address any of the MCL 722.23 factors, let alone declare which ones applied and which did not, was “fatal.” On remand, it must first determine the issues as to the ECE “and then conduct a full analysis of the best-interest factors.” Also, “a determination of the effect of the parenting time modification on the custodial environment is necessary to determine” whether the Vodvarka or the Shade standard applies in determining the children’s best interests. If the trial court decides on remand that the Shade standard applies, “it need only make findings on the contested issues. However, if it concludes that the stricter Vodvarka standard applies, then it must address all of the best-interest factors.”
Motion to amend complaint to reinstate a defendant-insurer as a party to the case; MCR 2.118(A)(2); Futility; Miller v. Chapman Contracting; The No-Fault Act (MCL 500.3101 et seq.); MCL 500.3172(1); Whether plaintiff was qualified to receive benefits through the Michigan Assigned Claims Plan (MACP); The Michigan Property & Casualty Guaranty Association Act (MCL 500.7901 et seq.); Insolvent insurer defined; MCL 500.7921(a); Covered claims defined; MCL 500.7925(1); MCL 500.8156(1); Distinguishing Spencer v. Citizens Ins. Co.
Holding that the trial court was correct that plaintiff was not qualified to receive benefits through the MACP under MCL 500.3172(1)’s plain language, the court affirmed the trial court’s denial of his motion for leave to amend the complaint to reinstate defendant-Farmers Insurance Exchange as a party to the case. Plaintiff, a truck driver, was allegedly injured in an accident in Michigan. The owner of the vehicle, his employer, insured it with a policy from defendant-Lincoln General obtained in Illinois. Plaintiff filed a claim with the MACP, which assigned Farmers to handle the claim. After prior litigation, he filed this case due to concern that Lincoln General would become insolvent. Given that it was not insolvent at the time, Farmers successfully moved for summary disposition. Later, “Lincoln General did become insolvent and moved for dismissal.” Plaintiff then unsuccessfully moved for leave to reinstate Farmers. Farmers contended that amending the complaint to bring it back into the case would be futile because plaintiff was “not qualified to receive benefits through the MACP where none of the conditions” of § 3172(1) were met when he filed an MACP claim. The court agreed. Plaintiff acknowledged in his brief on appeal that “he was aware of the existence of the no-fault policy with Lincoln General from the outset” after the accident but was “uncertain whether he would be able to obtain benefits from it. Since Lincoln General conceded that the policy applied, and plaintiff admitted knowing about the Lincoln General policy, the first two conditions set forth in § 3172(1) are not applicable. Similarly,” when he made his “MACP claim, there were not two insurers disputing which one had coverage. The only no-fault policy at issue at that point was the Lincoln General policy. Finally,” the record confirmed that “while Lincoln General, at the time plaintiff made his MACP claim, may have been undergoing financial difficulties, [it] was not, because of ‘financial inability’ unable to ‘fulfill [its] obligations’ to provide no-fault benefits to the maximum amount required.” Now that it was insolvent, the onus was “on plaintiff to pursue the appropriate redress to recover payments for his no-fault benefits.”
Appeal of a class certification order; Fed.R.Civ.P. 23(f); Certification of issues for class treatment under Fed.R.Civ.P. Rule 23(c)(4); Interaction between Rule 23(c)(4) & Rule 23(b)(3); Adoption of the “broad view” when determining class certification; In re Nassau Cnty. Strip Search Cases (2d Cir.); Valentino v. Carter-Wallace, Inc. (9th Cir.); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (7th Cir.); Pella Corp. v. Saltzman (7th Cir.); Gunnells v. Healthplan Servs., Inc. (4th Cir.); Randleman v. Fidelity Nat’l Title Ins. Co.; Gates v. Rohm & Haas Co. (3d Cir.); In re St. Jude Med., Inc. (8th Cir.); Rule 23(b)(3)’s “predominance” requirement; Tyson Foods, Inc. v. Bouaphakeo; “Superiority” requirement; Amchem Prods., Inc. v. Windsor; Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of MI; In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.; Whether there were Seventh Amendment Reexamination Clause issues; U.S. Const. amend. VII; Olden v. LaFarge Corp.
In an issue of first impression, the court adopted the “broad view” under which Rule 23(b)(3)’s predominance and superiority prongs are applied after common issues have been identified for class treatment under Rule 23(c)(4), and affirmed the district court’s class certification of seven issues under Rule 23(c)(4). The plaintiffs sought class certification on their claims that defendants contaminated their groundwater. Defendants argued that the district court erred by granting the class-certification petition on seven issues under Rule 23(c)(4). The court considered the interaction between Rule 23(c)(4) and Rule 23(b)(3) and adopted the broad view, which “permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.” The court concluded that “Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution.” It held that the predominance requirement was satisfied as to the seven issues where “each issue may be resolved with common proof” and where “individualized inquiries do not outweigh common questions[.]” The court also held that the issue classes satisfied Rule 23(b)(3)’s superiority requirement where, even though class treatment of these issues will not entirely resolve defendants’ liability, “it will materially advance the litigation.” The court held that no Seventh Amendment Reexamination Clause issues existed where the district court had not yet outlined the specific procedures to address the plaintiffs’ claims.
Whether getting hit by a golf cart is an inherent risk of golfing; Determining whether a given risk is inherent in a recreational activity for purposes of establishing the relevant standard of conduct; “Reckless misconduct” standard; Ritchie-Gamester v. City of Berkley; Whether the risk was reasonably foreseeable; Murphy v. Steeplechase Amusement Co. (NY); Yoneda v. Tom (HI); Foronda v. Hawaii Int’l Boxing Club (HI App.); Thompson v. McNeill (OH); Maddox v. City of NY (NY); American Powerlifting Ass’n v. Cotillo (MD); Pfenning v. Lineman (IN); Wooten v. Caesars Riverboat Casino, LLC (IN App.); Foreseeability defined; Iliades v. Dieffenbacher N. Am. Inc.; Asking the judiciary to define the essence of a sport; PGA Tour, Inc. v. Martin; Foreseeability as a fact question; Lego v. Liss; Stitt v. Holland Abundant Life Fellowship; Nezworski v. Mazanec; Consideration of the general rules of the activity; Lux v. Cox (WD NY)
Noting that it had never explained how to determine whether a particular risk is inherent in a recreational activity for purposes of establishing the relevant standard of conduct, the court held that a fact-finder should ask whether the risk was reasonably foreseeable. This case arose from defendant running over plaintiff with a cart while they were golfing. If the risk of “getting hit by a golf cart is an inherent risk” of golfing, he only owed a duty “to refrain from reckless misconduct, but cannot be held liable for negligent conduct. If not,” then he would “be held to the negligence standard of conduct.” The court in Ritchie-Gamester “did not expressly establish the proper analysis for assessing whether a particular risk is inherent in an activity.” The court now held that “the analysis must focus on whether the risk was reasonably foreseeable under the circumstances. Ritchie-Gamester adopted the reckless-misconduct standard because it reflects the participants’ expectations when they voluntarily subject themselves to the risks in an activity.” This lends itself to applying a foreseeability test. Numerous courts in cases like this have asked “whether a risk was reasonably foreseeable or obvious, including in cases involving golf cart accidents.” The court noted that the “foreseeability of the risk is a question of fact,” and the test is objective, focusing on “what risks a reasonable participant, under the circumstances, would have foreseen.” The factual circumstances include “the general characteristics of the participants, such as their relationship to each other and to the activity and their experience with the sport.” While the general rules of the activity can also be considered, they “are not dispositive, and it is also relevant whether the participants engaged in any regular departures from the rules or other practices not accounted for by the rules.” Any regulations prescribed by the venue are also relevant. The Court of Appeals “correctly considered whether the use of golf carts was required, and it is also relevant whether golf carts were banned or confined to certain areas of the course.” The court reversed the Court of Appeals judgment and remanded the case to the trial court.
Dispute over the type of hospitalization for a person requiring mental health treatment; Burden of proof for placement of a person found to be in need of treatment; The Mental Health Code (MCL 330.1001 et seq.); MCL 330.1465; “Civil commitment” proceedings; People v. Dobben; People v. Miller; People v. Williams; In re KB; In re Baker; In re Wagstaff; Petition for a continuing order of involuntary mental health treatment; MCL 330.1473; MCL 330.1472a(4); Options & time limitations for involuntary mental health treatment; MCL 330.1472a(3); “Involuntary mental health treatment” defined; MCL 330.1400(f); Forms of treatment; MCL 330.1468(2); MCL 330.1472a(3); “Person requiring treatment”; MCL 330.1401; Report assessing the current availability & appropriateness of alternatives to hospitalization; MCL 330.1453a; MCL 330.1469a(1); MCL 330.1470; Distinguishing burden of proof & standard of proof; Palenkas v. Beaumont Hosp.; Mayor of Cadillac v. Blackburn; Kar v. Hogan; “Shall” defined; Browder v. International Fid. Ins. Co.; Sentencing; People v. Lockridge; People v. Steanhouse; People v. Hardy; Harmless error; MCR 2.613(A); In re Sprint Commc’ns Co., LP, Complaint; “Hospital” defined; MCL 330.1100b(7); “Psychiatric unit” defined; MCL 333.20106; MCL 330.1100c(8); “Department” defined; MCL 330.1100a(21); “Hospitalization” defined; MCL 330.1100b(9); Order that respondent remain at the Center for Forensic Psychiatry (CFP) until “further order of the court”; MCL 330.2050(5); MCL 330.1476; “Discharge” defined; MCL 330.1100a(27); “Hospital director” defined; MCL 330.1100b(8)
Addressing an issue of first impression, the court held that a probate court’s treatment determination must be supported by a preponderance of the evidence, and that the probate court in this case erred by failing to apply this standard and instead determining that no evidentiary standard applied. Thus, it reversed and remanded. In 1974, respondent was found not guilty by reason of insanity of the murder of a child. As a result, he was committed to the CFP. In 2016, the probate court denied his request to be transferred to a treatment center (HPC). On appeal, the court found that the probate court erred by ruling that there was no applicable burden of proof as to determining the appropriate form of treatment to order, and that the absence of an evidentiary standard or burden of proof meant that none need be employed. It agreed with respondent that “the default standard in civil cases—preponderance of the evidence—applies to the probate court’s determination of the form of treatment to order.” The court noted that “there must be a ‘standard of proof’ because without one, a probate court could conceivably justify a factual finding based on ‘some’ or even a ‘scintilla’ of evidence.” It then held that “MCL 330.1469a requires that a preponderance of the evidence support the probate court’s findings with respect to its determinations regarding an individual’s treatment and placement.” Further, “the proponent of a particular form of treatment or placement at a specific facility for an individual who has been found to be a person requiring treatment bears the burden of proving by a preponderance of the evidence the facts necessary to persuade the probate court to enter such an order and for the probate court to be legally justified in entering such an order pursuant to” the Mental Health Code (MHC). Thus, “the probate court erred by ruling that there was no applicable burden of proof to its treatment determination and issuing its treatment order without tying it to any evidentiary standard.” And this error was not harmless. The court also noted that “the probate court was specifically directed to look to MCL 330.1468, which sets forth . . . potential treatment options, and the probate court did not err by referring to this statute.” In addition, “the probate court must determine whether the evidence establishes that [HPC] meets the statutory definition of ‘hospital’ for purposes of” the MHC. Lastly, “if the probate court determines that respondent must remain hospitalized at the CFP, the probate court shall not include language ordering respondent to remain ‘until further order of the court.’”
Whether the disallowed items were “materials & supplies” deductible from gross receipts under MCL 208.1113(6); The Business Tax Act (BTA); MCL 208.1201; MCL 208.1203; Statutory interpretation; Cook v. Department of Treasury; Ferguson v. City of Lincoln Park; Sun Valley Foods Co. v. Ward; Herman v. Berrien Cnty.; Griffith v. State Farm Mut. Auto Ins. Co.; Material & supplies defined; Ejusdem generis doctrine; Neal v. Wilkes; Whether plaintiff overstated compensation; MCL 208.1403(2); Compensation defined; MCL 208.1107(2); Wages, salaries & commissions defined; Taylor v. Laban; “Single items of income” concept; Michigan Tax Tribunal’s (MTT) failure to apply LaBelle Mgmt., Inc. v. Michigan Dep’t of Treasury; Unitary business group status
Discerning no error in the MTT order granting summary disposition in defendant-Department of Treasury’s (Department) favor and ordering plaintiff-Total Armored Car Services (TACS) to pay its tax liability with interest, the court affirmed. Following an audit, the Department determined that TACS had underpaid its taxes in three tax years. TACS filed a petition in the MTT, challenging the Department’s disallowance of certain deductions and credits, and later adding a claim that it should be treated as a lone tax unit rather than as a collective taxpayer. On appeal, TACS contended that the disallowed items were “materials and supplies” deductible from gross receipts under MCL 208.1113(6). “The auditor determined that ‘Materials and Supplies means tangible personal property,’ not services such as those reported by TACS. This is consistent with the plain language of MCL 208.1113(6).” The court held that the type of property included in the definition of “materials and supplies” is limited to tangible items. Given the plain language of MCL 208.1113(6), it found no error in the MTT’s dismissal of TACS’s challenge to the Department’s audit. The Department also determined that TACS overstated the compensation earned by employees regarding driving. Contrary to the MTT’s ruling, the phrase “compensation in this state” was not ambiguous. “When the definition of ‘compensation’ is inserted into the phrase ‘compensation in this state,’ it provides that the credit is available for ‘[remuneration for services or work performed] in this state.’” Following TACS’s proposal would require the court to add terms and conditions into the statute. “The statute makes no reference to the residency of the subject employees, nor does the definition of the specific words used. Ultimately, although the MTT’s reasoning was flawed, it reached the correct result.” Thus, TACS was not entitled to relief.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Williams; In re Dahms; Failure to follow a case service plan; In re R Smith; In re JK; Child’s best interests; MCL 712A.19b(5); In re Moss Minors; In re Olive/Metts Minors; In re VanDalen
Holding that the trial court did not clearly err in finding that §§ (c)(i), (g), and (j) warranted termination, or that it was in the child’s best interests, the court in these consolidated cases affirmed the order terminating both respondents-parents’ parental rights. As to § (c)(i), the record showed that respondent-mother did not obtain a driver’s license “despite her reported plans to do so and respondents’ contention that they missed several required appointments because of a lack of transportation.” Thus, their ability to take the child to medical appointments continued to be impaired and there had “been no ‘meaningful change’ in this condition that led to adjudication.” They also “had a very poor record in complying with their case service plan; they missed numerous medical appointments for [the child] and, in most cases, failed to even call ahead to explain their absence.” They also stopped attending some services entirely, and were suspended from two programs due to their failure to appear. Their “failure to comply with the case service plan was not a recent development; the trial court noted it as far back” as the first dispositional hearing. Further, they “delayed for several months before they began participating in certain required services. Because respondents’ record in complying with the case service plan was poor and continued to be poor, there was no ‘meaningful change’ in these conditions that led to adjudication.” While they contended that because the foster parents took the child “to all of his medical appointments, the allegation of medical neglect had been rectified and could not support termination under” § (c)(i), the fact that “there was no actual medical neglect” after his removal did “not mean that the condition that led to adjudication” – their neglect in failing to take him to his medical appointments – “did not continue to exist.” They failed to address their transportation issues and missed several of his appointments after his removal. As to his best interests, the record showed that he had little to no bond with respondent-father and a caseworker testified that his bond with the mother was not as strong as his bond with the foster parents.
Termination under § 19b(3)(j); In re Gonzalez/Martinez Minors; Modifications to a service plan to accommodate a parent’s disability; The Americans with Disabilities Act (42 USC § 12101 et seq.); In re Hicks; MCL 712A.18f(3)(b); MCL 712A.19a(2); In re Smith; Admission of transcripts from a prior termination case; Plain error review; In re Utrera; Right of confrontation; Austin v. United States; Inapplicability to child protective proceedings; In re Brock; Abandoning a claim; Berger v. Berger; Harmless error; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; MCR 2.613(A); Ineffective assistance of counsel; In re Simon; Cullen v. Pinholster; Strickland v. Washington; Juror misconduct; Unibar Maint. Servs., Inc. v. Saigh; MCR 2.611(A)(1); Bynum v. ESAB Group, Inc.; Child’s best interests; MCL 712A.19b(5); In re White
The court held that the trial court did not clearly err in finding that § (j) supported terminating both respondents-parents’ parental rights to their infant son, or in determining that doing so was in his best interests. It also did not clearly err in concluding that the DHHS provided respondent-mother with reasonable services for a reasonable time, and the court rejected her claims of evidentiary error and ineffective assistance of counsel. Further, the trial court’s denial of a mistrial on the basis of juror misconduct was within the range of reasonable and principled outcomes. There was evidence that the mother “had cognitive limitations and was dependent on others to provide her with support. The evidence further showed that she had a history of erratic and violent outbursts. She was also involved in an abusive relationship” and minimized the danger associated with this. While there was some evidence that she “might separate from respondent-father after the most recent incident” of domestic violence, the “evidence that she had repeatedly failed to appreciate the danger that domestic violence posed to her and her baby, when considered with the evidence that she was highly dependent on others, permitted an inference that she would continue to expose her child to domestic violence.” Testimony also showed that she “had difficulty learning even basic” parenting skills. While some witnesses indicated they believed she had made progress, “there was also compelling evidence that she did not and would not benefit from the services designed to help safely parent and avoid domestic violence.” Evidence showed that the father had a history of choking and hitting the mother “in moments of rage, which was entirely consistent with the tendencies revealed by his psychological testing.” While some witnesses opined that he “benefited from domestic violence counseling, those witnesses were not particularly credible.” There was conflicting evidence as to the danger he posed to the mother and to the child, and the court was not left with a “definite and firm conviction that the trial court made a mistake when it found” that the child would be harmed if returned to the father’s home. Affirmed.