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• Administrative Law (2)

  Full Text Opinion

  This summary also appears under Employment & Labor Law

  e-Journal #: 75945

  Case: Department of Licensing & Regulatory Affairs/Unemployment Ins. Agency v. Lucente

  Court: Michigan Supreme Court ( Opinion )

  Judges: McCormack, Bernstein, Clement, Cavanagh, and Welch (as to Parts I, II, III, IV(A), & V as it relates to MCL 421.62 & determinations as to fraud & restitution); Concurring in part, Dissenting in part, & Concurring in the judgment – Welch; Concurring in part, Dissenting in part – Zahra and Viviano

  Issues:

  The Michigan Employment Security Act (MESA); Process for establishing a claimant received an overpayment of unemployment benefits; “Determinations” & “redeterminations”; MCL 421.62; MCL 421.32a; MCL 421.32(f); Process for establishing a claimant committed fraud in order to impose penalties for fraud; MCL 421.54(a) & (b); Royster v Employment Sec Comm’n; Whether a benefit check is a determination on the issue of fraud; Requirement for determinations as to ineligibility; MCL 421.21(a); Whether the failure to issue determinations is a ground for setting aside the redeterminations; Unemployment Insurance Agency (UIA)

  Summary:

  The court held that defendant-UIA “must begin by issuing an original ‘determination’ when it seeks to establish that a claimant engaged in fraud. Failure to do so is grounds for invaliding a ‘redetermination’ finding fraud and imposing associated fines and penalties.” It also concluded “that the Agency should have issued original ‘determinations’ on the issue of the appellants’ ineligibility. When the Agency begins with a ‘redetermination’ that a claimant received benefits during a period of ineligibility and owes restitution as a result, the Agency denies the claimant their right to protest the finding of ineligibility.” Thus, the court reversed the Court of Appeals’ judgment. Both appellants applied for and received unemployment benefits. They both found new employment before their benefits expired but “continued to claim benefits while employed full-time. The Agency issued decisions finding that the appellants received benefits they were not entitled to receive.” In separate decisions, it also found that they “intentionally misrepresented or concealed their employment status—that they had committed fraud. The Agency identified these decisions as ‘redeterminations.’” It now acknowledged that “it should have issued original ‘determinations’ and not ‘redeterminations.’ Characterizing its error as a mere mislabeling, the Agency argues that its mistake does not provide grounds for setting aside the ‘redeterminations’ because the decisions adequately apprised the appellants of the Agency’s various findings and did not prevent the appellants from pursuing administrative appeals of those decisions.” The court disagreed, concluding that allowing it “to begin at the ‘redetermination’ step would deprive unemployment claimants of their statutory right to protest an allegation of benefit fraud and have the Agency review that decision before the claimant files an administrative appeal.” It noted that the MESA gives claimants “the right to protest an unfavorable determination and the right to appeal any redetermination. Because the Agency never issued a ‘determination’ in these cases on the issue of fraud, the result urged by the Agency would render meaningless the claimant’s right to protest.”
  
  Justice Welch agreed that “allegations of fraud and the imposition of restitution are distinct from the redetermination of a claimant’s eligibility or qualification for benefits, and thus such matters and associated penalties must be raised in an original determination invoking MCL 421.62 and” 421.54. But she believed that MCL 421.32(f) “is clear that a benefit check can always serve as an original determination as to eligibility and qualification to receive benefits in an unemployment proceeding, even if the action is driven by” the UIA and not the employer. She also disagreed “with the view that the UIA is unable to self-initiate a redetermination of a claimant’s eligibility for benefits under MCL 421.32a(1) or (2) after the UIA obtains information showing that an individual was paid but not eligible for such benefits.”
  
  Justice Zahra (joined by Justice Viviano) concurred with the court’s affirmance of the Court of Appeals’ holding that MCL 421.62 (§ 62) authorizes the UIA “to make original, in-the-first-instance determinations imposing restitution for overpayment or penalties for fraud.” But he dissented “from the majority’s form-over-substance holding: that the notices sent to these claimants are really redeterminations.” Rather, he concluded that the Agency’s notices were, “in substance, § 62 determinations that were simply mislabeled.” On the basis that “the notices were simply § 62 determinations that were mislabeled and claimants were not prejudiced by that mislabeling,” he would affirm the Court of Appeals.

  Full Text Opinion

  Full Text Opinion

  e-Journal #: 75939

  Case: In re Application of Consumers Energy Co. to Increase Rates

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Fort Hood, Markey, and Gleicher

  Issues:

  Request to raise rates for natural gas service; Adoption of a projected test period extending more than 12 months after the rate case was filed; MCL 460.6a(1); In re Application of DTE Elec Co to Increase Rates (Unpub); MCL 460.6a(5) & (6); Residential Customer Group (RCG)

  Summary:

  Rejecting appellant-RCG's argument that the PSC erred in “adopting a projected test period extending more than 12 months after the rate case was filed for estimating” petitioner-Consumers’ costs, the court affirmed the PSC’s order granting in part Consumers’ request to raise its rates for its natural gas service. RCG’s challenge to the test year was primarily based on its interpretation of MCL 460.6a(1). It contended that this provision (stating that “[a] utility may use projected costs and revenues for a future consecutive 12-month period in developing its requested rates and charges”) should “be understood to envision a future period beginning no later than when the utility initially files its rate case.” However, the court was “more inclined to agree with the PSC, Consumers,” and the court’s decision in an unpublished case, In re Application of DTE, “that the statute’s authorization of the use of ‘a future consecutive 12-month period’ limits the future period only in that it must consist of 12 consecutive, or contiguous, months, and thus does not imply that it must begin no later than the filing date of the attendant rate case.”

  Full Text Opinion

• Civil Rights (1)

  Full Text Opinion

  This summary also appears under Employment & Labor Law

  e-Journal #: 75897

  Case: Turner v. Department of Corr.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Riordan, M.J. Kelly, and Shapiro

  Issues:

  Sexual discrimination, harassment & retaliation claims under the Elliott-Larsen Civil Rights Act; Disparate treatment; Hostile work environment; Whether the conduct was severe or pervasive; Whether the Michigan Department of Corrections (MDOC) could be held vicariously liable; Retaliation; Whether plaintiff showed she was subjected to an adverse employment action or established a causal connection; Corrections officer (CO); Personal protection order (PPO)

  Summary:

  The court held that the trial court correctly denied defendant-MDOC’s motion for summary disposition of plaintiff’s hostile work environment claim. She had viable claims of disparate treatment and retaliation based on her transfer to the midnight shift. But the court dismissed all her other claims of disparate treatment and retaliation. According to plaintiff (a CO), a month after she began work, defendant-Goudy “began asking her to go on dates with him and thereafter engaged in a pattern of harassment.” The court held that the enforcement of a PPO Goudy obtained against plaintiff was not a material adverse employment action. But “MDOC’s failure to stop Goudy’s alleged harassment could be considered an adverse employment action.” However, plaintiff did “not identify a similarly situated male employee that was treated differently than her. Goudy also made a claim of discrimination against plaintiff and, like plaintiff’s complaints, MDOC determined that it did not fall within its discriminatory harassment policy.” Thus, she failed to establish a prima facie case that “MDOC’s alleged failure to take adequate remedial action against Goudy was because of plaintiff’s sex.” But the court held that she had a viable disparate treatment claim based on her transfer. “MDOC offered a legitimate, nondiscriminatory reason for transferring plaintiff to the midnight shift. There was testimony that MDOC needed female staff on the midnight shift, and an internal e-mail shows that plaintiff was not the only female employee transferred to the midnight shift.” However, the trial court correctly found that she “provided evidence showing that this proffered reason was a pretext for discrimination on the basis of sex.” Specifically, it determined she “had undermined MDOC’s nondiscriminatory reason by testifying that MDOC had offered her the option of transferring facilities as an alternative to transferring shifts.” When asked why she was transferred, the captain answered, “Because of her continued complaints to her shift commander.” The court held that this was sufficient evidence to show that MDOC’s reason for the transfer was pretextual. As to plaintiff’s hostile work environment claim, the court held that viewed “in context, Goudy’s conduct and communication toward plaintiff was of a sexual nature.” Affirmed in part, reversed in part, and remanded.

  Full Text Opinion

• Contracts (1)

  Full Text Opinion

  e-Journal #: 75941

  Case: MSSC, Inc. v. Airboss Flexible Prods. Co.

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Gadola, Jansen, and O’Brien

  Issues:

  Whether the contract included any written quantity term as required by the statute of frauds (SOF); Whether the use of the term “blanket order” was a sufficient quantity term; Requirements contracts; Mutuality of obligation; Effect of the fact the purchase order not signed by defendant; “Merchant” (MCL 440.2104(1)); “Between merchants” (MCL 440.2104(3)

  Summary:

  The court held that the trial court properly determined that the use of the term “blanket order” was a quantity term sufficient to satisfy the SOF. Also, defendant did not establish a lack of mutuality of obligation, and there was no merit to its argument that the purchase order was not enforceable against defendant because it was not signed by defendant. The case arose from a contract dispute between the parties, both automotive suppliers. Defendant argued that the purchase order at issue was an unenforceable contract because it failed to include any written quantity term as required by the SOF. Defendant challenged the trial court’s determination that the purchase order’s use of the term “blanket” expressed a quantity term sufficient to satisfy the SOF. However, taken together, the order’s provisions showed “that ‘blanket’ was intended to be a quantity term or a requirements contract. The contract did not state a specific quantity because plaintiff’s need for parts was dependent on its customer’s production schedule, which is common in the automotive industry.” Defendant also argued that the purchase order lacked mutuality of obligation. As noted by the trial court, defendant did not argue, and the evidence did “not suggest, that plaintiff acted in bad faith or in violation of commercial standards of fair dealing.” To the contrary, the record indicated that plaintiff had “purchased its requirement of parts from defendant for the past seven years without any claims of bad faith or unfair dealing. Plaintiff even agreed to the increase in price of two parts” after defendant notified it of a pricing error. As to the signature issue, given that the contract “was between merchants, MCL 440.2201(2) applied.” Affirmed.

  Full Text Opinion

• Criminal Law (3)

  Full Text Opinion

  e-Journal #: 75943

  Case: People v. Magnant

  Court: Michigan Supreme Court ( Opinion )

  Judges: Welch, McCormack, Bernstein, and Clement; Concurring in the result – Cavanagh; Dissent – Zahra; Separate Dissent – Viviano

  Issues:

  The Tobacco Products Tax Act (the TPTA); The TPTA’s licensing requirement; A “transporter” of tobacco; MCL 205.422(y); MCL 205.423(1); Intent required for a conviction of violating MCL 205.428(3); People v Nasir; The criminal intent presumption & the general intent/specific intent distinction; Interstate Commerce Commission (ICC)

  Summary:

  The court held that an individual employee is a transporter under the TPTA “when (a) the tobacco is obtained from an out-of-state source or from a source not duly licensed under the TPTA, and (b) the individual is not licensed by the” the ICC or an out-of-state operator of a business or warehouse that is TPTA licensed. “An individual employee who takes possession of tobacco from her or his duly licensed . . . employer is not a ‘transporter’ and does not need a personal transporter license.” The court also held that “a conviction for violating MCL 205.428(3) must, at a minimum, be supported by a showing that the individual (1) knew he or she was transporting a regulated amount of cigarettes and (2) knew of facts that conferred ‘transporter’ status upon him or her.” The court concluded that this “knowledge-of-status requirement is satisfied when the person is aware that the cigarettes were obtained from an out-of-state source or from a source not duly licensed under the TPTA.” It determined that the prosecution here did not “present any evidence establishing or implying that defendants were aware of facts that conferred transporter status on them.” Thus, it affirmed in part and reversed in part the Court of Appeals’ opinion, and granted “defendants’ joint motion to quash the district court’s bindover decision.” They were both charged “with violating MCL 205.428(3) for transporting 3,000 or more cigarettes without the transporter’s license required by MCL 205.423(1).” The court concluded held that the Court of Appeals did not err in ruling “that MCL 205.428(3) can apply to individual, nonsupervisory employees and that the statute provides sufficient notice of the conduct it prohibits.” Thus, the court affirmed Part II(B) of the Court of Appeals’ judgment. But it reversed Part II(A) of the Court of Appeals’ judgment, noting that while it was “possible that defendants knew of their employer’s avoidance of the state’s tobacco regulations or that the cigarettes being transported were obtained from out of state or an unlicensed source,” there was no evidence of such knowledge presented.
  
  Justice Cavanagh concurred in the decision to affirm in part and reverse in part the Court of Appeals’ judgment and quash the district court’s bindover decision. But because the parties agreed “that the mens rea of ‘knowingly’ applies to each element of the offense,” she would resolve the case on this “basis and hold that a violation of MCL 205.428(3) requires proof that the actor knew that his or her conduct violated” the TPTA.
  
  Justice Zahra dissented from the decision to reverse Part II(A) of the Court of Appeals’ judgment and to quash the district court’s bindover ruling. He found that the fact police “stopped defendants in a pickup truck towing a utility trailer found to contain 672,000 untaxed cigarettes” was conduct that by itself constituted prima facie evidence that could support a jury verdict on the charged offense under MCL 205.428(3). He would affirm the Court of Appeals and remand the case to the trial court.
  
  While Justice Viviano agreed “with the majority’s construction of the elements of MCL 205.428(3) and that” the crime was not a strict-liability offense, he disagreed “that a mens rea requirement attaches to the disputed element requiring a license to transport cigarettes in certain circumstances.” Specifically, he “would hold that MCL 205.428(3) does not require the prosecution to prove knowledge of the circumstances that make a person a ‘transporter.’”

  Full Text Opinion

  Full Text Opinion

  e-Journal #: 75887

  Case: People v. Canales

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Tukel, Sawyer, and Cameron

  Issues:

  Due process; The prosecution’s failure to disclose photos of the victim’s injuries until trial; Prejudice; The trial court’s failure to enforce the discovery order; Ineffective assistance of counsel; Failure to ensure defendant had the opportunity to review all of the discovery before deciding whether to accept a plea offer; Failure to call a witness; Findings of fact leading the court to deny the motion to remand; Discovery; Sentencing; Mistake of law during sentencing; Failure by trial counsel & appellate counsel to recognize & raise an error as to the PSIR

  Summary:

  The court held that defendant was not denied due process or prejudiced by the prosecution’s failure to disclose photos “of the victim’s injuries until trial or the trial court’s failure to enforce the discovery order. Further, he was not denied effective assistance of counsel by trial counsel’s failure to ensure that defendant had the opportunity to review all of the discovery before deciding whether to accept the plea offer and failure to call” a witness. The trial court did not err in its findings of fact that led the court to deny the motion to remand in error. But it did make a mistake of law during sentencing, although the failure to raise the “error by trial counsel and appellate counsel only constituted ineffective assistance of counsel” by trial counsel. Thus, the court affirmed, but held that trial counsel was ineffective in failing to recognize errors in the PSIR, and remanded solely for resentencing and to correct the PSIR. The record indicated that he timely received all but two photos depicting the victim’s injuries but received the two photos depicting the victim’s burn marks on the first day of trial. While it did appear that there was a delay in delivering him those two photos, the court did not find that it was intentional or prejudicial. Even to the extent the discovery order was violated, defendant did not establish that the trial court’s decision to admit the photos was an abuse of discretion. Its finding that he did not show actual prejudice from the prosecution’s late disclosure was supported by the record. Further, he was not denied effective assistance of counsel for the failure to ensure that all the photos were disclosed by the prosecution before trial. There was no evidence that counsel should have been aware of the existence of the photos “or failed to obtain any other discovery that existed before trial.” Also, while the court noted counsel’s delay in objecting to the photos by not moving to exclude them on receipt of the prosecution’s disclosure after the first day of trial, counsel did swiftly object to their admission on the second day of trial. Even to the extent that counsel failed to ensure defendant had all the discovery before trial, he did not establish that the outcome would have been different had the photos of the victim’s burn marks been discovered before the plea offer expired. But remand was appropriate to correct the PSIR and resentencing was “appropriate to determine whether the trial court’s sentence was grounded on an accurate recitation of the statutes.”

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  Full Text Opinion

  e-Journal #: 75888

  Case: People v. Williams

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, Servitto, and Stephens

  Issues:

  Ineffective assistance of counsel; Decision whether to seek suppression of defendant’s statements via a Walker hearing; Failure to seek a defense expert witness or to object to testimony; Failure to explicitly ask the jury during closing arguments to consider involuntary manslaughter; Sufficiency of the evidence for first-degree felony murder & first-degree child abuse; MCL 750.316(1)(b) & 750.136b(2); “Malice”; Jury composition; Alleged Batson violation; People v Bryant; Alleged Brady violations; People v Chenault; Right to a speedy trial; People v Williams

  Summary:

  The court rejected defendant’s claims of ineffective assistance of counsel, a Batson violation, Brady violations, and violation of his right to a speedy trial, and held that there was sufficient evidence to support his first-degree felony murder and first-degree child abuse convictions. Among other things, he asserted his trial attorneys were ineffective for failing to seek suppression, via a Walker hearing, of his custodial statement at the police station. But he did “not identify what part of this statement he deems damaging to his case or identify in what way the statement was allegedly improperly elicited.” He also did not provide an affidavit or other offer of proof supporting his suppression argument. Both attorneys “decided, as a matter of trial strategy,” to not seek a Walker hearing, there was a presumption this was a sound strategy, and defendant failed to overcome it. He also failed to factually support his claim that they “should have sought a defense expert to counter the prosecutor’s medical witnesses” and the court rejected his contention that they should have objected to a police witness’s testimony. As to the failure to explicitly ask the jury during closing arguments to consider involuntary manslaughter, “counsel had to tread a fine line of either arguing for a complete acquittal or a compromise, and he also had to contend with defendant’s statement about [victim-JB’s] having incurred his head injuries in a fall.” It appeared that counsel elected to largely focus “on a complete acquittal in closing arguments, while still allowing the jury to consider manslaughter by way of the jury instructions. Defendant has not overcome the presumption that this was sound trial strategy.” As to the sufficiency of the evidence, the “testimony and exhibits presented at trial were more than sufficient to support defendant’s convictions.” The court noted that he “was the only adult in the home” when JB sustained his head injuries, and he denied the children had been fighting among themselves. Further, he “admitted being rough with JB” and gave an implausible explanation for his injuries. “JB was a defenseless, three-year child who had nine separate head injuries.” Affirmed.

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• Election Law (1)

  Full Text Opinion

  This summary also appears under Municipal

  e-Journal #: 75936

  Case: Sheffield v. Detroit City Clerk

  Court: Michigan Supreme Court ( Order )

  Judges: McCormack and Cavanagh; Concurrence – Welch and Bernstein; Dissent – Viviano and Zahra; Separate Dissent – Clement and Zahra

  Issues:

  Submission of a revised city charter to voters without the Governor’s signature or approval; MCL 117.22; Const. 1963, art. 7, §§ 22 & 34; Home rule cities’ powers; Detroit v Walker; Detroit Charter Revision Commission (DCRC)

  Summary:

  In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals’ judgment (see e-Journal # 75609 in the 6/7/21 edition for the published opinion) as well as the trial court’s opinion and order granting mandamus relief, and remanded the case to the trial court. Concluding that “MCL 117.22 does not explicitly provide the Governor with an unfettered veto in the charter revision process,” the court declined to read one into the statute. The question before it was whether the DCRC could submit a proposed city charter revision to the voters even though the Governor had “not signed or given her approval to the proposed revised charter.” The statute at issue was MCL 117.22. It “does not address the situation where, as in the instant case, a charter revision is returned without the Governor’s approval.” Plaintiffs asked the court to read this “silence with regard to charter revisions as vesting the Governor with an unfettered and irreversible veto over the work of a charter commission that would deprive the electorate of a city of any opportunity to vote on a revised charter unless and until the Governor gives her approval.” But the court noted that, based on §§ 22 and 34 of Article 7 of the Michigan Constitution, it has “previously held that ‘it is clear that home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.’” Reading MCL 117.22 against the backdrop of these provisions and case law developments since they were adopted, the court held “that, in the face of the statute’s silence as to the legal effect of the Governor’s objection to a proposed charter revision, we cannot interpret such silence as requiring gubernatorial approval before a charter revision is submitted to the electors or as granting the Governor a veto power that cannot be overridden. We decline to read into MCL 117.22 a requirement that is not explicitly spelled out, bearing in mind that cities continue to enjoy ‘powers not expressly denied[.]’”
  
  Concurring, Justice Welch (joined by Justice Bernstein) wrote separately to explain why she believed that the court’s “refusal to interpret silence in the statute as granting the Governor a one-of-a-kind, unfettered veto power that cannot be overridden under any circumstance if she returns a proposed revised charter without her approval is consistent with our constitutional obligations, precedent from this Court, and core principles of democratic governance.”
  
  Dissenting, Justice Viviano (joined by Justice Zahra) concluded, based on his review of the statutory text and the history of the Home Rule Cities Act, as well as the Michigan Constitution and provisions of other home rule acts, “that a proposed charter may not be submitted to the electors unless the Governor first approves and signs it.” Thus, he would affirm the Court of Appeals’ judgment that Proposal P was ineligible to be on the 8/3/21 primary election ballot.
  
  Also dissenting, Justice Clement (joined by Justice Zahra) agreed with Justice Viviano’s analysis of the statutory text and that the court should not reach constitutional questions here, but wrote separately to explain why, if it was going to do so, Article 7, §§ 22 and 34 did “not support the majority’s analysis.” She did “not believe the text or history of either of these sections supports the interpretation the majority is putting forward.”

  Full Text Opinion

• Employment & Labor Law (2)

  Full Text Opinion

  This summary also appears under Administrative Law

  e-Journal #: 75945

  Case: Department of Licensing & Regulatory Affairs/Unemployment Ins. Agency v. Lucente

  Court: Michigan Supreme Court ( Opinion )

  Judges: McCormack, Bernstein, Clement, Cavanagh, and Welch (as to Parts I, II, III, IV(A), & V as it relates to MCL 421.62 & determinations as to fraud & restitution); Concurring in part, Dissenting in part, & Concurring in the judgment – Welch; Concurring in part, Dissenting in part – Zahra and Viviano

  Issues:

  The Michigan Employment Security Act (MESA); Process for establishing a claimant received an overpayment of unemployment benefits; “Determinations” & “redeterminations”; MCL 421.62; MCL 421.32a; MCL 421.32(f); Process for establishing a claimant committed fraud in order to impose penalties for fraud; MCL 421.54(a) & (b); Royster v Employment Sec Comm’n; Whether a benefit check is a determination on the issue of fraud; Requirement for determinations as to ineligibility; MCL 421.21(a); Whether the failure to issue determinations is a ground for setting aside the redeterminations; Unemployment Insurance Agency (UIA)

  Summary:

  The court held that defendant-UIA “must begin by issuing an original ‘determination’ when it seeks to establish that a claimant engaged in fraud. Failure to do so is grounds for invaliding a ‘redetermination’ finding fraud and imposing associated fines and penalties.” It also concluded “that the Agency should have issued original ‘determinations’ on the issue of the appellants’ ineligibility. When the Agency begins with a ‘redetermination’ that a claimant received benefits during a period of ineligibility and owes restitution as a result, the Agency denies the claimant their right to protest the finding of ineligibility.” Thus, the court reversed the Court of Appeals’ judgment. Both appellants applied for and received unemployment benefits. They both found new employment before their benefits expired but “continued to claim benefits while employed full-time. The Agency issued decisions finding that the appellants received benefits they were not entitled to receive.” In separate decisions, it also found that they “intentionally misrepresented or concealed their employment status—that they had committed fraud. The Agency identified these decisions as ‘redeterminations.’” It now acknowledged that “it should have issued original ‘determinations’ and not ‘redeterminations.’ Characterizing its error as a mere mislabeling, the Agency argues that its mistake does not provide grounds for setting aside the ‘redeterminations’ because the decisions adequately apprised the appellants of the Agency’s various findings and did not prevent the appellants from pursuing administrative appeals of those decisions.” The court disagreed, concluding that allowing it “to begin at the ‘redetermination’ step would deprive unemployment claimants of their statutory right to protest an allegation of benefit fraud and have the Agency review that decision before the claimant files an administrative appeal.” It noted that the MESA gives claimants “the right to protest an unfavorable determination and the right to appeal any redetermination. Because the Agency never issued a ‘determination’ in these cases on the issue of fraud, the result urged by the Agency would render meaningless the claimant’s right to protest.”
  
  Justice Welch agreed that “allegations of fraud and the imposition of restitution are distinct from the redetermination of a claimant’s eligibility or qualification for benefits, and thus such matters and associated penalties must be raised in an original determination invoking MCL 421.62 and” 421.54. But she believed that MCL 421.32(f) “is clear that a benefit check can always serve as an original determination as to eligibility and qualification to receive benefits in an unemployment proceeding, even if the action is driven by” the UIA and not the employer. She also disagreed “with the view that the UIA is unable to self-initiate a redetermination of a claimant’s eligibility for benefits under MCL 421.32a(1) or (2) after the UIA obtains information showing that an individual was paid but not eligible for such benefits.”
  
  Justice Zahra (joined by Justice Viviano) concurred with the court’s affirmance of the Court of Appeals’ holding that MCL 421.62 (§ 62) authorizes the UIA “to make original, in-the-first-instance determinations imposing restitution for overpayment or penalties for fraud.” But he dissented “from the majority’s form-over-substance holding: that the notices sent to these claimants are really redeterminations.” Rather, he concluded that the Agency’s notices were, “in substance, § 62 determinations that were simply mislabeled.” On the basis that “the notices were simply § 62 determinations that were mislabeled and claimants were not prejudiced by that mislabeling,” he would affirm the Court of Appeals.

  Full Text Opinion

  Full Text Opinion

  This summary also appears under Civil Rights

  e-Journal #: 75897

  Case: Turner v. Department of Corr.

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Riordan, M.J. Kelly, and Shapiro

  Issues:

  Sexual discrimination, harassment & retaliation claims under the Elliott-Larsen Civil Rights Act; Disparate treatment; Hostile work environment; Whether the conduct was severe or pervasive; Whether the Michigan Department of Corrections (MDOC) could be held vicariously liable; Retaliation; Whether plaintiff showed she was subjected to an adverse employment action or established a causal connection; Corrections officer (CO); Personal protection order (PPO)

  Summary:

  The court held that the trial court correctly denied defendant-MDOC’s motion for summary disposition of plaintiff’s hostile work environment claim. She had viable claims of disparate treatment and retaliation based on her transfer to the midnight shift. But the court dismissed all her other claims of disparate treatment and retaliation. According to plaintiff (a CO), a month after she began work, defendant-Goudy “began asking her to go on dates with him and thereafter engaged in a pattern of harassment.” The court held that the enforcement of a PPO Goudy obtained against plaintiff was not a material adverse employment action. But “MDOC’s failure to stop Goudy’s alleged harassment could be considered an adverse employment action.” However, plaintiff did “not identify a similarly situated male employee that was treated differently than her. Goudy also made a claim of discrimination against plaintiff and, like plaintiff’s complaints, MDOC determined that it did not fall within its discriminatory harassment policy.” Thus, she failed to establish a prima facie case that “MDOC’s alleged failure to take adequate remedial action against Goudy was because of plaintiff’s sex.” But the court held that she had a viable disparate treatment claim based on her transfer. “MDOC offered a legitimate, nondiscriminatory reason for transferring plaintiff to the midnight shift. There was testimony that MDOC needed female staff on the midnight shift, and an internal e-mail shows that plaintiff was not the only female employee transferred to the midnight shift.” However, the trial court correctly found that she “provided evidence showing that this proffered reason was a pretext for discrimination on the basis of sex.” Specifically, it determined she “had undermined MDOC’s nondiscriminatory reason by testifying that MDOC had offered her the option of transferring facilities as an alternative to transferring shifts.” When asked why she was transferred, the captain answered, “Because of her continued complaints to her shift commander.” The court held that this was sufficient evidence to show that MDOC’s reason for the transfer was pretextual. As to plaintiff’s hostile work environment claim, the court held that viewed “in context, Goudy’s conduct and communication toward plaintiff was of a sexual nature.” Affirmed in part, reversed in part, and remanded.

  Full Text Opinion

• Healthcare Law (1)

  Full Text Opinion

  This summary also appears under Malpractice

  e-Journal #: 75938

  Case: Dorsey v. Surgical Inst. of MI, LLC

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Boonstra, Cavanagh, and Gadola

  Issues:

  Medical malpractice; Admission of a credentialing file; The statutory peer review privilege; MCL 333.20175(8) & 333.21515; Attorney Gen v Bruce; Dye v St John Hosp & Med Ctr; Provision applicable to a freestanding surgical outpatient facility; MCL 333.20813; Whether a prima facie case of negligent credentialing was created based on the admissible evidence; Improper testimony under MRE 703; Surgical Institute of Michigan & Surgical Institute of Michigan Ambulatory Surgery Center (collectively referred to as SIM)

  Summary:

  The court held that defendants-SIM’s credentialing file on defendant-Dr. Sabit was improperly produced and admitted at trial because it was privileged under MCL 333.20175(8) and 333.21515. Further, plaintiff failed to establish a prima facie case of negligent credentialing based on the admissible evidence. Thus, the court reversed the judgment for plaintiff and remanded for entry of judgment for SIM. The case arose from a surgery Sabit performed on plaintiff at SIM. Only his medical malpractice claim against SIM, based on a negligent credentialing theory, was at issue. The court concluded that “SIM’s credentialing file regarding Dr. Sabit was protected by a statutory peer review privilege under MCL 333.20175(8) and MCL 333.21515. The trial court erred by compelling its production and admitting it at trial.” The court found that there was nothing in the relevant language of MCL 333.20175(8) suggesting “the privilege does not extend to a freestanding surgical outpatient facility exercising the same credentialing review function under MCL 333.20813(c) that a hospital performs under MCL 333.21513(c). To the contrary, MCL 333.20175(8) applies to materials ‘collected for or by individuals or committees assigned a professional review function in a health facility or agency . . . ." A freestanding surgical outpatient facility is included in the definition of a health facility or agency. While the applicability of MCL 333.21515 was a closer question, the court concluded “that despite the placement of MCL 333.21515 in Part 215 alongside other provisions applicable to hospitals, the Legislature’s reference to the review functions described in Article 17, as opposed to Part 215, evidences its intent to extend the statutory privilege for peer review materials to all health facilities and agencies with review functions imposed by Article 17. The credentialing process a freestanding surgical outpatient facility performs to satisfy its duty under MCL 333.20813(c) is a review function described and required by Article 17.” Thus, MCL 333.21515’s peer review privilege applied to SIM. But even if it did not, the file “was clearly privileged under MCL 333.20175(8).”

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• Litigation (2)

  Full Text Opinion

  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 75942

  Case: Charter Twp. of Ypsilanti v. Dahabra

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Fort Hood, Markey, and Gleicher

  Issues:

  Nuisance-abatement action; Denial of request for adjournment to obtain counsel; Good cause; Effect of the existence of an ongoing criminal case; State ex rel Cahalan v Moceri; Due process; Meaningful opportunity to be heard; Public nuisance under MCL 600.3801; Whether a singular event constituted an abatable nuisance; Michigan ex rel Wayne Cnty Prosecutor v Bennis (Bennis I); MCL 600.3815(3); “Community blight”

  Summary:

  The court held that the trial court abused its discretion in denying defendant’s request for an adjournment to obtain counsel, and that the singular act plaintiff-township alleged was insufficient to establish an abatable nuisance. Thus, it reversed the order “declaring his home a public nuisance under MCL 600.3801, ordering him to vacate the premises, and ordering the property to be vacant or padlocked for a period of 90 days.” As to the denial of his motion to adjourn, he “provided a legally sufficient, substantial reason to seek an adjournment.” The court also noted that “the significant interests” he had at stake could not be understated - he indicated that he was “the sole surviving parent and caregiver to his three minor children, all of whom lived with him at the” property, which was purportedly “‘his first actual home since his wife died approximately five years’” earlier. The court also agreed with his assertion “that the existence of his ongoing criminal case tended to support the necessity of an adjournment.” It found “no valid reason for the trial court to have outrightly ignored defendant’s request for an adjournment in order to obtain counsel.” In addition, it agreed that he “was denied a meaningful opportunity to be heard in violation of his due-process rights” in relation to his motion. As to whether an abatable nuisance existed, defendant essentially argued “that (1) the single act of gunfire was not sufficient to establish a nuisance in and of itself, and (2) the single act could not be said to have contributed to a greater nuisance because plaintiff failed to establish that armed violence was an ongoing nuisance in the surrounding area.” The court agreed, and concluded that “plaintiff failed to adequately establish a nuisance under Michigan law in this case.” But it noted that defendant’s assertion “that plaintiff was required to present evidence of ‘community blight’” was based “on a misconception of the law” and it clarified this. Reversed and remanded.

  Full Text Opinion

  Full Text Opinion

  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 75896

  Case: Hadid v. Huntington Mgmt., LLC

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Tukel, Sawyer, and Cameron

  Issues:

  A tenant’s slip & fall on an apartment complex interior sidewalk; Statutory duty under MCL 554.139(1)(a); Estate of Trueblood v P&G Apts, LLC; Premises liability; Snow & ice; Mailbox access; Distinguishing Spigner v Yarmouth Commons Ass’n (Unpub); The trial court’s refusal to consider certain depositions & affidavits; Duty to supplement incomplete responses to discovery requests; MCR 2.302(E)

  Summary:

  The court held that the trial court had the authority to refuse to consider certain depositions and affidavits, and did not abuse its discretion in doing so as a sanction for plaintiffs’ failure to seasonably supplement their incomplete discovery responses. As to their claim under MCL 554.139(1)(a), the court held that they failed to show the apartment complex interior sidewalk at issue was unfit for its intended use. Further, the trial court correctly ruled that the ice or snow on it “was open and obvious, and not unavoidable.” Thus, the court affirmed summary disposition for defendant-apartment complex. Plaintiff-Nadia slipped and fell on the sidewalk in the complex, where she and her husband, plaintiff-Raja, lived. Plaintiffs argued that the trial court lacked the authority under the MCRs in effect before 1/1/20 to refuse to consider the depositions and affidavits of their son R and another witness, K. The court disagreed. The version of MCR 2.302(E) in effect before that date “still imposed a duty on parties to supplement incomplete responses to requests for discovery to include information acquired later.” The court noted that “plaintiffs responded to defendant’s interrogatories with incomplete responses.” Thus, they had a duty to supplement them and “to do so ‘seasonably’[.]” But they did not do so until seven months after receiving the interrogatories, “two months after the discovery cutoff date.” They could not assert that they only then discovered the facts of which R and K had knowledge. R is their son, and K is their “neighbor who lives in the same building.” Further, the trial court was within its discretion in declining to consider this evidence under MCR 2.313(B)(2)(b) and 2.301(B)(3). As to their statutory claim, given that a weather report they provided contradicted Raja’s testimony, and they gave no legitimate reason for the court to doubt its “accuracy, reasonable minds could not disagree: the sidewalk here was not completely covered in ice.” As to their premises liability claim, assuming “without deciding that people have a unique need to retrieve their mail that cannot be equated with a simple desire to avail oneself of products or services,” the court found this case distinguishable from Spigner in that “Nadia had more than one way by which to access her mailbox.” Among other things, she “could have driven her car to the mailbox on her way out of the apartment complex.”

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• Malpractice (1)

  Full Text Opinion

  This summary also appears under Healthcare Law

  e-Journal #: 75938

  Case: Dorsey v. Surgical Inst. of MI, LLC

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Per Curiam – Boonstra, Cavanagh, and Gadola

  Issues:

  Medical malpractice; Admission of a credentialing file; The statutory peer review privilege; MCL 333.20175(8) & 333.21515; Attorney Gen v Bruce; Dye v St John Hosp & Med Ctr; Provision applicable to a freestanding surgical outpatient facility; MCL 333.20813; Whether a prima facie case of negligent credentialing was created based on the admissible evidence; Improper testimony under MRE 703; Surgical Institute of Michigan & Surgical Institute of Michigan Ambulatory Surgery Center (collectively referred to as SIM)

  Summary:

  The court held that defendants-SIM’s credentialing file on defendant-Dr. Sabit was improperly produced and admitted at trial because it was privileged under MCL 333.20175(8) and 333.21515. Further, plaintiff failed to establish a prima facie case of negligent credentialing based on the admissible evidence. Thus, the court reversed the judgment for plaintiff and remanded for entry of judgment for SIM. The case arose from a surgery Sabit performed on plaintiff at SIM. Only his medical malpractice claim against SIM, based on a negligent credentialing theory, was at issue. The court concluded that “SIM’s credentialing file regarding Dr. Sabit was protected by a statutory peer review privilege under MCL 333.20175(8) and MCL 333.21515. The trial court erred by compelling its production and admitting it at trial.” The court found that there was nothing in the relevant language of MCL 333.20175(8) suggesting “the privilege does not extend to a freestanding surgical outpatient facility exercising the same credentialing review function under MCL 333.20813(c) that a hospital performs under MCL 333.21513(c). To the contrary, MCL 333.20175(8) applies to materials ‘collected for or by individuals or committees assigned a professional review function in a health facility or agency . . . ." A freestanding surgical outpatient facility is included in the definition of a health facility or agency. While the applicability of MCL 333.21515 was a closer question, the court concluded “that despite the placement of MCL 333.21515 in Part 215 alongside other provisions applicable to hospitals, the Legislature’s reference to the review functions described in Article 17, as opposed to Part 215, evidences its intent to extend the statutory privilege for peer review materials to all health facilities and agencies with review functions imposed by Article 17. The credentialing process a freestanding surgical outpatient facility performs to satisfy its duty under MCL 333.20813(c) is a review function described and required by Article 17.” Thus, MCL 333.21515’s peer review privilege applied to SIM. But even if it did not, the file “was clearly privileged under MCL 333.20175(8).”

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• Municipal (1)

  Full Text Opinion

  This summary also appears under Election Law

  e-Journal #: 75936

  Case: Sheffield v. Detroit City Clerk

  Court: Michigan Supreme Court ( Order )

  Judges: McCormack and Cavanagh; Concurrence – Welch and Bernstein; Dissent – Viviano and Zahra; Separate Dissent – Clement and Zahra

  Issues:

  Submission of a revised city charter to voters without the Governor’s signature or approval; MCL 117.22; Const. 1963, art. 7, §§ 22 & 34; Home rule cities’ powers; Detroit v Walker; Detroit Charter Revision Commission (DCRC)

  Summary:

  In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals’ judgment (see e-Journal # 75609 in the 6/7/21 edition for the published opinion) as well as the trial court’s opinion and order granting mandamus relief, and remanded the case to the trial court. Concluding that “MCL 117.22 does not explicitly provide the Governor with an unfettered veto in the charter revision process,” the court declined to read one into the statute. The question before it was whether the DCRC could submit a proposed city charter revision to the voters even though the Governor had “not signed or given her approval to the proposed revised charter.” The statute at issue was MCL 117.22. It “does not address the situation where, as in the instant case, a charter revision is returned without the Governor’s approval.” Plaintiffs asked the court to read this “silence with regard to charter revisions as vesting the Governor with an unfettered and irreversible veto over the work of a charter commission that would deprive the electorate of a city of any opportunity to vote on a revised charter unless and until the Governor gives her approval.” But the court noted that, based on §§ 22 and 34 of Article 7 of the Michigan Constitution, it has “previously held that ‘it is clear that home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.’” Reading MCL 117.22 against the backdrop of these provisions and case law developments since they were adopted, the court held “that, in the face of the statute’s silence as to the legal effect of the Governor’s objection to a proposed charter revision, we cannot interpret such silence as requiring gubernatorial approval before a charter revision is submitted to the electors or as granting the Governor a veto power that cannot be overridden. We decline to read into MCL 117.22 a requirement that is not explicitly spelled out, bearing in mind that cities continue to enjoy ‘powers not expressly denied[.]’”
  
  Concurring, Justice Welch (joined by Justice Bernstein) wrote separately to explain why she believed that the court’s “refusal to interpret silence in the statute as granting the Governor a one-of-a-kind, unfettered veto power that cannot be overridden under any circumstance if she returns a proposed revised charter without her approval is consistent with our constitutional obligations, precedent from this Court, and core principles of democratic governance.”
  
  Dissenting, Justice Viviano (joined by Justice Zahra) concluded, based on his review of the statutory text and the history of the Home Rule Cities Act, as well as the Michigan Constitution and provisions of other home rule acts, “that a proposed charter may not be submitted to the electors unless the Governor first approves and signs it.” Thus, he would affirm the Court of Appeals’ judgment that Proposal P was ineligible to be on the 8/3/21 primary election ballot.
  
  Also dissenting, Justice Clement (joined by Justice Zahra) agreed with Justice Viviano’s analysis of the statutory text and that the court should not reach constitutional questions here, but wrote separately to explain why, if it was going to do so, Article 7, §§ 22 and 34 did “not support the majority’s analysis.” She did “not believe the text or history of either of these sections supports the interpretation the majority is putting forward.”

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• Negligence & Intentional Tort (4)

  Full Text Opinion

  This summary also appears under Recreation & Sports Law

  e-Journal #: 75944

  Case: Rott v. Rott

  Court: Michigan Supreme Court ( Opinion )

  Judges: Welch, McCormack, Bernstein, Clement (except for the discussion of the law-of-the-case doctrine in Part III) and Cavanagh; Concurring in part & in the judgment – Clement; Concurring in part, Dissenting in part - Viviano and Zahra

  Issues:

  Premises liability; Zip-lining accident in backyard; Whether the law-of-the-case doctrine precluded plaintiff from challenging the applicability of the Recreational Land Use Act (RUA); MCL 324.73301(1); “For the purpose of”; Neal v Wilkes; The RUA’s catchall phrase “any other outdoor recreational use”

  Summary:

  The court held that the law-of-the-case doctrine did not preclude plaintiff from challenging the applicability of the RUA to the facts of here. It vacated “the Court of Appeals’ analysis of ‘for the purpose of’ in MCL 324.73301(1) to the extent it relied on the last-antecedent” rule and affirmed its analysis of the same language under Neal. It further held that “the RUA’s catchall phrase ‘any other outdoor recreational use’ does not apply to plaintiff’s use of defendant’s property for zip lining.” Thus, it reversed the Court of Appeals, reversed the trial court’s order granting defendant summary disposition, and remanded to the trial court. The case arose out of a zip-lining accident in defendant-Arthur Rott’s backyard. Plaintiff-Doreen Rott sued “after she was injured when she prematurely touched the ground before the end of the ride.” The court reaffirmed Neal “in holding that MCL 324.73301(1) applies when an individual is injured while on another’s land, without paying consideration for access, and his or her purpose at the time of the accident is participation in an ‘outdoor recreational use or trail use’ that is covered by the statute.” It concluded that “the RUA was intended to increase Michigander’s access to privately owned lands so the lands could be used for certain forms of recreation by decreasing a landowner’s exposure to liability. The RUA was not intended to shield landowners from all liability from every form of recreation that could conceivably occur outdoors.” The court concluded that the Court of Appeals erred when it held that “zip lining fits the plain meaning of ‘any other outdoor recreational use’ and is not excluded by any interpretation of the general provision in the RUA under ejusdem generis . . . .” It determined that “zip lining is not of the same kind, class, character, or nature as ‘fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, [or] snowmobiling,’ and there is no evidence that the activity was known to the Legislature or intended to fall under the RUA. Accordingly, the Court of Appeals’ interpretation of the RUA’s catchall provision to include the zip-lining activities at issue is reversed.”
  
  Justice Clement concurred in the result reached by the court, and “in the analysis of all portions of the majority opinion except for its discussion of the law-of-the-case doctrine in Part III.”
  
  Concurring in part and dissenting in part, Justice Viviano, joined by Justice Zahra, did not believe the court needed to determine “whether or how the ejusdem generis canon applies in the present case because, under any conceivable limitation, zip lining would fall within the plain meaning of the RUA’s catchall. And because the Court of Appeals appropriately resolved the merits of the interpretive issues, I would simply vacate as unnecessary its application of the law of-the-case doctrine.”

  Full Text Opinion

  Full Text Opinion

  This summary also appears under Litigation

  e-Journal #: 75942

  Case: Charter Twp. of Ypsilanti v. Dahabra

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Fort Hood, Markey, and Gleicher

  Issues:

  Nuisance-abatement action; Denial of request for adjournment to obtain counsel; Good cause; Effect of the existence of an ongoing criminal case; State ex rel Cahalan v Moceri; Due process; Meaningful opportunity to be heard; Public nuisance under MCL 600.3801; Whether a singular event constituted an abatable nuisance; Michigan ex rel Wayne Cnty Prosecutor v Bennis (Bennis I); MCL 600.3815(3); “Community blight”

  Summary:

  The court held that the trial court abused its discretion in denying defendant’s request for an adjournment to obtain counsel, and that the singular act plaintiff-township alleged was insufficient to establish an abatable nuisance. Thus, it reversed the order “declaring his home a public nuisance under MCL 600.3801, ordering him to vacate the premises, and ordering the property to be vacant or padlocked for a period of 90 days.” As to the denial of his motion to adjourn, he “provided a legally sufficient, substantial reason to seek an adjournment.” The court also noted that “the significant interests” he had at stake could not be understated - he indicated that he was “the sole surviving parent and caregiver to his three minor children, all of whom lived with him at the” property, which was purportedly “‘his first actual home since his wife died approximately five years’” earlier. The court also agreed with his assertion “that the existence of his ongoing criminal case tended to support the necessity of an adjournment.” It found “no valid reason for the trial court to have outrightly ignored defendant’s request for an adjournment in order to obtain counsel.” In addition, it agreed that he “was denied a meaningful opportunity to be heard in violation of his due-process rights” in relation to his motion. As to whether an abatable nuisance existed, defendant essentially argued “that (1) the single act of gunfire was not sufficient to establish a nuisance in and of itself, and (2) the single act could not be said to have contributed to a greater nuisance because plaintiff failed to establish that armed violence was an ongoing nuisance in the surrounding area.” The court agreed, and concluded that “plaintiff failed to adequately establish a nuisance under Michigan law in this case.” But it noted that defendant’s assertion “that plaintiff was required to present evidence of ‘community blight’” was based “on a misconception of the law” and it clarified this. Reversed and remanded.

  Full Text Opinion

  Full Text Opinion

  This summary also appears under Recreation & Sports Law

  e-Journal #: 75940

  Case: Payne v. Payne

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Swartzle, Markey, and M.J. Kelly

  Issues:

  Standard of care (SOC); Whether a European-style pheasant hunt was a recreational activity under Ritchie-Gamester v Berkley; Bertin v Mann; Reckless-misconduct standard; Public policy; Reasonable foreseeability

  Summary:

  The court held that hunting is a recreational activity subject to the SOC framework set forth by Michigan Supreme Court in Ritchie-Gamester and Bertin. “If a particular risk of injury is reasonably foreseeable (i.e., the risk is ‘inherent’ to hunting), then a hunter will be held to a reckless misconduct [SOC] when dealing with another hunter in the party; if not, then the hunter will be held to the ordinary-negligence standard.” The inquiry was a factual one, and, on this record, there remained “a genuine issue of fact on whether it was reasonably foreseeable” defendant (plaintiff’s father) would shoot and injure plaintiff. Plaintiff argued that the trial court erred by holding that (a) the European-style pheasant hunt was a recreational activity under Ritchie-Gamester and (b) the injury was a reasonably foreseeable risk of the pheasant hunt, which subjected his claim to a reckless misconduct SOC. The court rejected his first claim but concluded that there was a genuine issue of material fact on the second one. Plaintiff conceded that “hunting is, broadly speaking, a recreational activity,” but he argued that Michigan Supreme Court did not intend to subject it to the Ritchie-Gamester/Bertin framework. The court found that although the Ritchie-Gamester/Bertin framework applied, it “must consider whether the particular risk that gave rise to plaintiff’s injury was inherent to the recreational activity.” The court held that there remained “a genuine issue of material fact on whether the risk of being shot by defendant was reasonably foreseeable to someone in plaintiff’s position.” The use of a firearm in hunting poses some risk of harm as it is “a dangerous instrumentality. Hunting in general and the pheasant hunt in particular had extensive rules in place to reduce the risk of harm from a firearm. Plaintiff knew that his father could be careless with a firearm, and it can also be presumed that plaintiff knew that his father had several medical conditions that could affect the handling of a firearm.” This evidence pointed to a foreseeable risk. “On the other hand, the two men had hunted together regularly over many years, and neither testified about a prior similar incident. Defendant was well-versed in the rules of hunting, including this particular style of hunting, and plaintiff knew this. Weather conditions were good[.]” It was also “important to consider the specific way in which plaintiff was shot.” He was shot “by an experienced, knowledgeable hunter, who plaintiff knew very well, and who stood shoulder to shoulder with plaintiff while they shot outward from a blind at pheasants flying overhead.” On this record, there was “a question of fact whether it was reasonably foreseeable to plaintiff that there was a risk that defendant would discharge his shotgun and injure plaintiff.” Affirmed in part, reversed in part, and remanded.

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  Full Text Opinion

  This summary also appears under Litigation

  e-Journal #: 75896

  Case: Hadid v. Huntington Mgmt., LLC

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Tukel, Sawyer, and Cameron

  Issues:

  A tenant’s slip & fall on an apartment complex interior sidewalk; Statutory duty under MCL 554.139(1)(a); Estate of Trueblood v P&G Apts, LLC; Premises liability; Snow & ice; Mailbox access; Distinguishing Spigner v Yarmouth Commons Ass’n (Unpub); The trial court’s refusal to consider certain depositions & affidavits; Duty to supplement incomplete responses to discovery requests; MCR 2.302(E)

  Summary:

  The court held that the trial court had the authority to refuse to consider certain depositions and affidavits, and did not abuse its discretion in doing so as a sanction for plaintiffs’ failure to seasonably supplement their incomplete discovery responses. As to their claim under MCL 554.139(1)(a), the court held that they failed to show the apartment complex interior sidewalk at issue was unfit for its intended use. Further, the trial court correctly ruled that the ice or snow on it “was open and obvious, and not unavoidable.” Thus, the court affirmed summary disposition for defendant-apartment complex. Plaintiff-Nadia slipped and fell on the sidewalk in the complex, where she and her husband, plaintiff-Raja, lived. Plaintiffs argued that the trial court lacked the authority under the MCRs in effect before 1/1/20 to refuse to consider the depositions and affidavits of their son R and another witness, K. The court disagreed. The version of MCR 2.302(E) in effect before that date “still imposed a duty on parties to supplement incomplete responses to requests for discovery to include information acquired later.” The court noted that “plaintiffs responded to defendant’s interrogatories with incomplete responses.” Thus, they had a duty to supplement them and “to do so ‘seasonably’[.]” But they did not do so until seven months after receiving the interrogatories, “two months after the discovery cutoff date.” They could not assert that they only then discovered the facts of which R and K had knowledge. R is their son, and K is their “neighbor who lives in the same building.” Further, the trial court was within its discretion in declining to consider this evidence under MCR 2.313(B)(2)(b) and 2.301(B)(3). As to their statutory claim, given that a weather report they provided contradicted Raja’s testimony, and they gave no legitimate reason for the court to doubt its “accuracy, reasonable minds could not disagree: the sidewalk here was not completely covered in ice.” As to their premises liability claim, assuming “without deciding that people have a unique need to retrieve their mail that cannot be equated with a simple desire to avail oneself of products or services,” the court found this case distinguishable from Spigner in that “Nadia had more than one way by which to access her mailbox.” Among other things, she “could have driven her car to the mailbox on her way out of the apartment complex.”

  Full Text Opinion

• Recreation & Sports Law (2)

  Full Text Opinion

  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 75944

  Case: Rott v. Rott

  Court: Michigan Supreme Court ( Opinion )

  Judges: Welch, McCormack, Bernstein, Clement (except for the discussion of the law-of-the-case doctrine in Part III) and Cavanagh; Concurring in part & in the judgment – Clement; Concurring in part, Dissenting in part - Viviano and Zahra

  Issues:

  Premises liability; Zip-lining accident in backyard; Whether the law-of-the-case doctrine precluded plaintiff from challenging the applicability of the Recreational Land Use Act (RUA); MCL 324.73301(1); “For the purpose of”; Neal v Wilkes; The RUA’s catchall phrase “any other outdoor recreational use”

  Summary:

  The court held that the law-of-the-case doctrine did not preclude plaintiff from challenging the applicability of the RUA to the facts of here. It vacated “the Court of Appeals’ analysis of ‘for the purpose of’ in MCL 324.73301(1) to the extent it relied on the last-antecedent” rule and affirmed its analysis of the same language under Neal. It further held that “the RUA’s catchall phrase ‘any other outdoor recreational use’ does not apply to plaintiff’s use of defendant’s property for zip lining.” Thus, it reversed the Court of Appeals, reversed the trial court’s order granting defendant summary disposition, and remanded to the trial court. The case arose out of a zip-lining accident in defendant-Arthur Rott’s backyard. Plaintiff-Doreen Rott sued “after she was injured when she prematurely touched the ground before the end of the ride.” The court reaffirmed Neal “in holding that MCL 324.73301(1) applies when an individual is injured while on another’s land, without paying consideration for access, and his or her purpose at the time of the accident is participation in an ‘outdoor recreational use or trail use’ that is covered by the statute.” It concluded that “the RUA was intended to increase Michigander’s access to privately owned lands so the lands could be used for certain forms of recreation by decreasing a landowner’s exposure to liability. The RUA was not intended to shield landowners from all liability from every form of recreation that could conceivably occur outdoors.” The court concluded that the Court of Appeals erred when it held that “zip lining fits the plain meaning of ‘any other outdoor recreational use’ and is not excluded by any interpretation of the general provision in the RUA under ejusdem generis . . . .” It determined that “zip lining is not of the same kind, class, character, or nature as ‘fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, [or] snowmobiling,’ and there is no evidence that the activity was known to the Legislature or intended to fall under the RUA. Accordingly, the Court of Appeals’ interpretation of the RUA’s catchall provision to include the zip-lining activities at issue is reversed.”
  
  Justice Clement concurred in the result reached by the court, and “in the analysis of all portions of the majority opinion except for its discussion of the law-of-the-case doctrine in Part III.”
  
  Concurring in part and dissenting in part, Justice Viviano, joined by Justice Zahra, did not believe the court needed to determine “whether or how the ejusdem generis canon applies in the present case because, under any conceivable limitation, zip lining would fall within the plain meaning of the RUA’s catchall. And because the Court of Appeals appropriately resolved the merits of the interpretive issues, I would simply vacate as unnecessary its application of the law of-the-case doctrine.”

  Full Text Opinion

  Full Text Opinion

  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 75940

  Case: Payne v. Payne

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Swartzle, Markey, and M.J. Kelly

  Issues:

  Standard of care (SOC); Whether a European-style pheasant hunt was a recreational activity under Ritchie-Gamester v Berkley; Bertin v Mann; Reckless-misconduct standard; Public policy; Reasonable foreseeability

  Summary:

  The court held that hunting is a recreational activity subject to the SOC framework set forth by Michigan Supreme Court in Ritchie-Gamester and Bertin. “If a particular risk of injury is reasonably foreseeable (i.e., the risk is ‘inherent’ to hunting), then a hunter will be held to a reckless misconduct [SOC] when dealing with another hunter in the party; if not, then the hunter will be held to the ordinary-negligence standard.” The inquiry was a factual one, and, on this record, there remained “a genuine issue of fact on whether it was reasonably foreseeable” defendant (plaintiff’s father) would shoot and injure plaintiff. Plaintiff argued that the trial court erred by holding that (a) the European-style pheasant hunt was a recreational activity under Ritchie-Gamester and (b) the injury was a reasonably foreseeable risk of the pheasant hunt, which subjected his claim to a reckless misconduct SOC. The court rejected his first claim but concluded that there was a genuine issue of material fact on the second one. Plaintiff conceded that “hunting is, broadly speaking, a recreational activity,” but he argued that Michigan Supreme Court did not intend to subject it to the Ritchie-Gamester/Bertin framework. The court found that although the Ritchie-Gamester/Bertin framework applied, it “must consider whether the particular risk that gave rise to plaintiff’s injury was inherent to the recreational activity.” The court held that there remained “a genuine issue of material fact on whether the risk of being shot by defendant was reasonably foreseeable to someone in plaintiff’s position.” The use of a firearm in hunting poses some risk of harm as it is “a dangerous instrumentality. Hunting in general and the pheasant hunt in particular had extensive rules in place to reduce the risk of harm from a firearm. Plaintiff knew that his father could be careless with a firearm, and it can also be presumed that plaintiff knew that his father had several medical conditions that could affect the handling of a firearm.” This evidence pointed to a foreseeable risk. “On the other hand, the two men had hunted together regularly over many years, and neither testified about a prior similar incident. Defendant was well-versed in the rules of hunting, including this particular style of hunting, and plaintiff knew this. Weather conditions were good[.]” It was also “important to consider the specific way in which plaintiff was shot.” He was shot “by an experienced, knowledgeable hunter, who plaintiff knew very well, and who stood shoulder to shoulder with plaintiff while they shot outward from a blind at pheasants flying overhead.” On this record, there was “a question of fact whether it was reasonably foreseeable to plaintiff that there was a risk that defendant would discharge his shotgun and injure plaintiff.” Affirmed in part, reversed in part, and remanded.

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• Tax (2)

  Full Text Opinion

  e-Journal #: 75937

  Case: TruGreen Ltd. P'ship v. Department of Treasury

  Court: Michigan Court of Appeals ( Published Opinion )

  Judges: Gleicher and Shapiro; Concurrence – Shapiro; Dissent - Swartzle

  Issues:

  Whether the Legislature intended the use tax exemption in MCL 205.94(1)(f) to apply to a lawn care company; “Planting” & “caring for things of the soil”

  Summary:

  On remand, the court affirmed the Court of Claims’ ruling that the Legislature did not intend for the use tax exemption in MCL 295.94(1)(f) to apply to law care companies. The issue was whether “the Legislature intended that a lawn care company would reap the fruits of” this exemption, which “exempts property consumed in the tilling, planting, caring for or harvesting things of the soil, or in the breeding, raising or caring of livestock, poultry or horticultural products for further growth.” Plaintiff-TruGreen contended that “because it ‘plants’ grass and is engaged in ‘caring for things of the soil,’ it is excused from paying use taxes on the fertilizer, insecticides, and myriad other products it consumes to keep customers’ lawns green and healthy. Employing a purely textual approach, TruGreen urges that its activities fall within the realm of ‘horticulture’ and ‘caring for’ soil.” TruGreen claimed that because “it uses and consumes tangible personal property to ‘plant’ and ‘care for’ grass, trees, and shrubs—indisputably things of the soil—it is plainly and unambiguously entitled to the use tax exemption.” However, the court held that read “as a cohesive whole, MCL 205.94(1) was and is intended to benefit businesses that contribute to our state’s agricultural sector.” It determined that “MCL 205.94(1) permits a tax exemption for property used in agricultural production and supply. TruGreen is not involved in any agricultural endeavors.”

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  e-Journal #: 75904

  Case: AEP Charter Genesee, LLC v. Charter Twp. of Flint

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, Servitto, and Stephens

  Issues:

  Correction of the tax roll based on erroneously assessed state education tax & school operating tax; Jurisdiction under MCL 211.53a to enter stipulation for a consent judgment; Whether the fact the property was actually exempt from the taxes constituted a “clerical error”; MCL 211.53b; International Place Apts-IV v Ypsilanti Twp; MCL 211.53b(1); “Qualified error” in MCL 211.53b(8); Tax Tribunal (TT)

  Summary:

  Holding that petitioner did not show that the TT "'erred in applying the law or adopting a wrong legal principle’ by determining that the error at issue was not a clerical error that would have authorized relief under MCL 211.53a,” the court affirmed the TT’s order of dismissal, denying the parties’ joint stipulation for entry of a consent judgment. Petitioner-charter school operator owns a parcel of property that is classified as commercial improved real property. It “sought correction of the 2017 tax roll on the basis of erroneously assessed state education tax and school operating tax.” It claimed that the erroneous assessment of these taxes when the "property was actually exempt from these taxes constituted a ‘clerical’ error.” It relied on the fact that the Board of Review “already corrected the tax rolls for 2018 and 2019 based on the occurrence of a ‘qualified error’ under MCL 211.53b.” Petitioner asserted that respondent’s agreement to the stipulation for consent judgment filed in the TT showed that “respondent must have believed that the qualified error was a clerical error, which is one type of qualified error enumerated in MCL 211.53b(8).” But there was no evidence in the record to support the claim that any such specific determination was actually made by the Board, given that the stipulation filed in the TT merely indicated that the Board found a “qualified error.” Further, the relevant question was “whether the error actually constituted a ‘clerical’ error in order for the 3-year limitation period in MCL 211.53a to apply. Because the statutory definition of ‘qualified error’ in MCL 211.53b(8) includes more than clerical errors, the finding of a qualified error under MCL 211.53b does not compel the conclusion that the error was a clerical one.” The court held that the definition of “clerical error” it applied to MCL 211.53b in International Place “applies with equal force to the term ‘clerical error’ in MCL 211.53a.” Thus, it held that “the error of which petitioner complained was the levying of taxes on the subject property that were not authorized by law because petitioner was exempt from those taxes by statute. Like the error in [International Place], the tax levied on petitioner’s property in 2017 was ‘accurate in the sense that it was the number intended’; the error in this case did not involve recording a number or other data incorrectly,” or involve a mathematical computation error. The court concluded that while “respondent agreed that the taxes . . . were levied in error and were not authorized by law, ‘an unauthorized tax levy constitutes a mistake of law.’” This error of law was not one of “a typographical, transpositional, or mathematical nature.”

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• Termination of Parental Rights (1)

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  e-Journal #: 75918

  Case: In re Johnson

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Fort Hood, Markey, and Gleicher

  Issues:

  Termination under § 19b(3)(c)(i); Use of videoconferencing technology; MCR 3.904(B); Administrative Order No. 2020-9 & 2020-14 (AO 2020-9 & 2020-14); Child’s best interests

  Summary:

  Finding no violation of MCR 3.904 as temporarily suspended by the Supreme Court’s AOs, and holding that § (c)(i) supported terminating respondent-mother’s parental rights and that doing so was in the child’s (M) best interests, the court affirmed the termination order. She asserted the trial court failed to comply with MCR 3.904. But AOs 2020-9 and 2020-14 “permitted courts to order the use of ‘two-way videoconferencing technology or other remote participation tools’ and to ‘operat[e] under special rules to ensure that essential functions continue while also limiting access to physical locations as a way to limit the spread of COVID-19 for both court staff and court visitors.’ These orders eliminated the rights of waiver and consent and a party’s ability to object to the use of videoconferencing technology in termination” proceedings. The AOs were issued “during some of the most horrific days of the COVID-19 pandemic, when Michigan was under an emergency footing, in an attempt to limit the spread of the virus. If respondent could have insisted on a personal appearance with the presence of court personnel and witnesses, the [AOs] would have been gutted. And adjourning hearings until it was safe for people to gather in the courtroom would have placed [M’s] future in limbo.” As to § (c)(i), the conditions leading to adjudication were her “drug use and [M’s] birth with those substances in his system.” Based on respondent’s lack of compliance, the trial court ordered the DHHS to proceed toward termination. She “only appeared in the fall of 2019 because she had been incarcerated and then submitted to the jurisdiction of the drug court. As a result, she did not begin any services until” nearly a year after the start of the case. The trial court gave her another year to show “progress in the drug court recovery program. Throughout the two separate proceedings, respondent displayed distrust with authorities that limited her ability to comply with her case service plan and probation conditions.” She relapsed in 7/20, and by the fall of 2020, she was incarcerated again. While she “made progress, she did not benefit from services to overcome the conditions that led to adjudication.” She was still in the first phase of recovery. The evidence showed that she would likely not be able to safely care for M within a reasonable time.

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