Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Jurisdiction to hear an appeal; MCR 7.203(A)(1); MCR 7.202(6)(a)(i) & (iv); Whether the scope of plaintiffs’ appeal was limited to the issue of postjudgment orders awarding attorney fees & costs; Sanctions under MCL 600.2591 & MCR 1.109(E)(5)-(7); Ford Motor Co. v. Department of Treasury; Amount of sanctions; Reasonable fees; Smith v. Khouri
The court held that plaintiffs’ appeal of right was limited to the postjudgment orders of attorney fees and costs to defendants. Also, it upheld the award of sanctions under MCL 600.2591 and MCR 1.109(E)(6) and (7), and concluded that the $13,642.50 awarded as reasonable attorney fees was not an abuse of discretion. The court first addressed defendants’ claim that the scope of plaintiffs’ appeal was limited to the issue of attorney fees and costs. Judge H’s 10/2/18 order was a final order, appealable as of right. Judge H denied plaintiffs’ motion for reconsideration on 10/22/18, meaning that the time for them to appeal as of right expired 11/13/18. “Plaintiffs did not appeal within that time.” Instead, on 6/27/19, they filed an appeal of Judge R’s 6/7/19 postjudgment orders awarding attorney fees and costs. Although those orders were appealable as of right, the appeal of right was limited to the attorney fees and costs questions. “And plaintiffs cannot use an appeal from these orders as an attempt to untimely appeal the previous final order granting summary disposition.” In short, their challenges to the grant of summary disposition were “outside the scope of their appeal of right from the postjudgment orders awarding attorney fees and costs.” Because the time for plaintiffs to appeal the 10/2/18 “summary disposition order passed without plaintiffs filing an appeal of right, plaintiffs’ ability to appeal this order is limited to an application for leave to appeal.” Yet, they had not sought leave to appeal. The court “may exercise its discretion to consider issues as on leave granted.” However, the court’s “discretion to consider an issue as on leave granted is limited by the six-month period in MCR 7.205(G)(3).” Here, the six-month period began to run on the date that Judge H denied plaintiffs’ motion for reconsideration. They did not file an appeal until 6/27/19, “well after the time to file a late application for leave to appeal had expired.” In these circumstances, their appeal was untimely and the court declined to “consider plaintiffs’ untimely appeal as on leave granted.” As to the award of sanctions, the court held that the trial court’s findings of fact were not clearly erroneous and the stated “reasons for awarding sanctions under MCL 600.2591 and MCR 1.109(E) are sound.”
42 USC § 1983; U.S. Const. amend IV; Excessive force based on unreasonably tight handcuffing; Baynes v. Cleland; Morrison v. Board of Trs. of Green Twp.; Marvin v. City of Taylor; Kostrzewa v. City of Troy; Courtright v. City of Battle Creek; Jurisdiction to review plaintiff’s allegations of carpal tunnel syndrome; Mitchell v. Forsyth; Bunkley v. City of Detroit; Johnson v. Jones; Adams v. Blount Cnty.; Qualified immunity; Ashcroft v. al-Kidd; Harlow v. Fitzgerald; Pearson v. Callahan; Kisela v. Hughes; False arrest claim; Devenpeck v. Alford; Gardenhire v. Schubert; City of Escondido v. Emmons; District of Columbia v. Wesby; Criss v. City of Kent; Ahlers v. Schebil; Logsdon v. Hains; Feathers v. Aey; Hope v. Pelzer; Leonard v. Robinson; Spoliation of evidence; Beaven v. U.S. Dep’t of Justice; Adkins v. Wolever; Municipal liability for failure to train; Monell v. Department of Soc. Servs.; Brown v. Shaner; Ellis v. Cleveland Mun. Sch. Dist.; Board of Comm’rs v. Brown; Cherrington v. Skeeter; City of Canton v. Harris; Shadrick v. Hopkins Cnty.
[This appeal was from the ED-MI.] The court held that the right to be free from arrest based solely on one witness’s “unreliable and uncorroborated accusation” was clearly established at the time of plaintiff-Ouza’s arrest, and that the arresting officer was not entitled to qualified immunity on the false arrest claim. It also held that both defendants-officers were not entitled to qualified immunity on her excessive force claim based on tight handcuffing, and that the defendant-city was not entitled to summary judgment on her failure to train claim. These cases arose out of domestic-violence visits police made to Ouza’s home. She was arrested based on her ex-husband’s (M) allegation that she was the aggressor. She asserted an excessive force claim based on unreasonably tight handcuffing. She offered photos of the red marks on her wrists, which indicated they still remained the day after the incident, and also claimed she suffered from carpal tunnel syndrome since the incident. On appeal, the court first found that it had jurisdiction to review whether the district court properly adopted Ouza’s version of the facts when assessing qualified immunity. It held that she established a genuine factual dispute as to “‘some physical injury’ resulting from the handcuffing[,]” and affirmed the district court’s ruling that the officers were not entitled to qualified immunity on the excessive force claim. The court next held that defendant-Dottor was not entitled to qualified immunity on Ouza’s false arrest claim where he was aware that M was not being truthful, he ignored the claims of Ouza and her daughter that M was the aggressor, and even M objected to her arrest and admitted he was the aggressor. It held that a witness’s “allegation standing alone does not give an officer probable cause to arrest the suspect[,]” and case law has established that Ouza “had a right to be free from arrest based solely on [M’s] unreliable and uncorroborated accusation.” As to her spoliation of evidence claim, the court affirmed the district court’s ruling that declined to adopt an adverse inference. As to Ouza’s failure to train claim, the city offered no evidence to counter her allegations. Because “[t]he failure to provide any training on probable cause determinations or use of force (including handcuffing technique) is constitutionally inadequate[.]” Ouza established a factual dispute whether the city acted with “deliberate indifference to its citizens’ constitutional rights.” Affirmed in part, reversed in part, and remanded.
Sentencing; An intermediate sanction; MCL 769.34(4)(a); Imposition of any sentence other than an intermediate sanction as a departure sentence; People v. Muttscheler; People v. Lockridge; People v. Schrauben; Punishing a person for exercising a constitutional or statutory right as a due process violation; People v. Ryan; Absolute right to maintain innocence; People v. Pennington; Whether a departure sentence based on a formal or informal local sentencing policy is individualized; People v. Whalen; Consideration of uncharged conduct as opposed to acquitted conduct; People v. Beck; Release on bond; Administrative Order 2020-1; People v. Chandler; People v. Barber; Executive Order 2020-146; MCR 7.216(A)(7)
After remand for resentencing, the court affirmed defendant’s sentences but directed that his bond be temporarily continued, and remanded to the trial court for consideration of whether he should be returned to incarceration in light of COVID-19 and his possible asthma condition. He was convicted under a plea agreement of delivery of less than 50 grams of heroin arising from controlled buys. The drugs were found to contain fentanyl. Charges of delivering less than 50 grams of heroin and/or fentanyl and a habitual offender enhancement were dropped as part of the plea deal. The court previously vacated his sentences due to OV scoring errors and the imposition of “departure sentences on the basis of improper considerations.” On remand his guidelines range was recalculated to 0 to 11 months, but the trial court imposed a departure sentence of 3 to 20 years with credit for time served. The court later granted his motion for an appellate bond and ordered his release based on the COVID-19 health emergency. He argued that “the trial court again relied on impermissible considerations and imposed a disproportionate sentence.” The court disagreed, concluding that “the trial court may consider the presence of fentanyl and base its sentence in part on its conclusion that the drugs were therefore more dangerous than ordinary heroin.” It could also determine that the evidence did not support his contention that he “was unaware of the fentanyl.” While the court was concerned with the alleged “admit all for sentencing” county policy, it found that any reliance on such a policy here was harmless. There was no serious dispute that “defendant did in fact make seven deliveries of heroin, and the trial court clearly, and properly, drew its own independent conclusion that [he] had some awareness that the heroin contained fentanyl.” The court exercised its discretion under MCR 7.216(A)(7) to order that he temporarily remain released on bond, and remanded for the limited purpose of determining whether he “should remain not incarcerated, whether on bond or pursuant to any other legal mechanism” the trial court deems appropriate.
Sentencing; Whether defendant was properly sentenced as a “career offender” under USSG § 4B1; United States v. Garth; Whether his prior Michigan convictions for delivery of heroin and possession with intent to deliver marijuana qualified as “controlled-substance offenses” for purposes of the career-offender enhancement; § 4B1.2; Gonzales v. Duenas- Alvarez; 21 USC § 802(8) & (11); MCL 333.7105; United States v. Havis
The court affirmed the district court, holding that defendant-Thomas was properly sentenced as a “career offender” where his two Michigan convictions for delivery of heroin and possession with intent to deliver marijuana qualified as “controlled-substance offenses” under the Sentencing Guidelines. Thomas pled guilty to two counts of distributing a mixture containing heroin and was sentenced as a career offender. He argued that his prior Michigan convictions were not controlled-substance offenses under § 4B1.2. and could not support the enhancement. But the court disagreed, noting that “[t]he Guidelines define both distribution and possession with the intent to distribute as controlled-substance offenses[,]” and that “[u]nder federal law, ‘distribution,’ for purposes of both offenses, means ‘delivery’—‘the actual, constructive, or attempted transfer of a controlled substance[.]’” Because Michigan defines “delivery” in the same way, and because there is “no substantive difference between possession with the intent to distribute under federal law and possession with intent to deliver under Michigan law[,]” the court held that Thomas’s prior Michigan convictions were for controlled-substances offenses. It rejected his argument that Michigan has defined delivery to include “attempt crimes,” and that under Havis, “‘attempt crimes do not qualify as controlled substance offenses,’” holding that the “attempted” language in the Michigan statute only applies to attempted transfers. “And an attempted transfer qualifies as a completed delivery.” This distinction made the court’s decision in Havis inapplicable.
The No-Fault Act (the Act); PIP benefits; Whether plaintiff was an employee under the economic reality test; Priority of insurers; MCL 500.3114(3); Factors that should be considered in applying the economic reality test; Adanalic v. Harco Nat’l Ins. Co.; McKissic v. Bodine
The court held that the McKissic factors should be considered as well as those in Adanalic when determining whether a worker is an employee or independent contractor under the Act. It found that the trial court erred by ruling that plaintiff was not an employee under MCL 500.3114(3). Because that subsection applied, defendant-Cherokee Insurance was first in priority to pay him PIP benefits. Plaintiff was injured when he lost control of the truck he was driving. The truck was owned by a non-party (Speed Express), which had contracted with him to haul and deliver goods on its behalf. He sought PIP benefits from Speed Express’s no-fault insurer, Cherokee, but it “denied the claim on the grounds that plaintiff was an independent contractor of Speed Express and not its employee for purposes of MCL 500.3114(3). The trial court agreed that plaintiff was not an employee of Speed Express under the economic reality test and” thus, defendant-Progressive, “plaintiff’s personal no-fault insurer, was first in priority pursuant to MCL 500.3114(1).” Progressive argued that the trial court erred by determining “that plaintiff was not a Speed Express employee under the economic reality test . . . .” The parties disputed “what factors may be considered in applying the economic reality test.” In applying the economic reality test here, the court first analyzed the four Adanalic factors, which overlapped with the first, second, and seventh McKissic factors. It found that three of them supported “a finding that plaintiff was an employee.” In addition, “the McKissic factors not encompassed by the four-general factors also” weighed in favor of a finding that he should be considered an employee. Thus, considering the relevant factors, the court determined the economic reality test clearly showed “that an employee-employer relationship existed between plaintiff and Speed Express for purposes of the” Act. Reversed and remanded.
Setting aside a default & default judgment; Brooks Williamson & Assoc., Inc. v. Mayflower Constr. Co.; MCR 2.603(A)(2); MCR 2.603(B)(1)(a)(i); Good cause; MCR 2.603(D)(1); Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Writ of garnishment; MCR 3.101(E)(1) & (H)(1); MCR 3.101(M)(1) & (2); MCR 3.101(G)(1); Notice of an accident & lawsuit; Tenneco, Inc. v. Amerisure Mut. Ins. Co.; Abandoned issue; Good v. Armstrong
In Docket No. 342478, the court reversed the trial court’s order denying garnishee defendant-Grange Insurance Company’s motion to set aside the default judgment, concluding it held no property subject to garnishment. In Docket No. 347426, the court affirmed summary disposition for defendant-Grange, holding “as a matter of law that Grange was prejudiced by the untimely notice by losing the ability to evaluate, negotiate, defend, and settle the suit and to otherwise contest” plaintiff-A-1 Towing’s liability. The cases arose out of a motorcycle-automobile accident involving plaintiff-Foucher. In Docket No. 342478, the court determined that Grange “appeared” in the case by filing garnishee disclosures, “which served as ‘answers’ to Foucher’s ‘complaints.’” Despite its “appearance, Foucher did not give Grange notice of the default that was entered.” The court noted that even if Grange had not appeared in the case, “it was entitled to notice as the defaulted party.” And he clearly “knew where to serve Grange with the notice, considering that Foucher had previously served Grange with writs of garnishment and had received garnishee disclosures from” it. Also, he did not give any notice to Grange of his “request for entry of a default judgment, let alone seven days’ notice.” Although Foucher contended “that Grange failed to appear because Grange did not file the garnishee disclosure in connection with A-1 Towing, the garnishment proceeding was itself the relevant ‘civil action[],’ with Foucher as the garnishment plaintiff and Grange as the garnishee defendant.” Thus, Grange had appeared in the action. The court concluded that, in “examining Foucher’s multiple, inexcusable failures to comply with the notice requirements in MCR 2.603, it is difficult not to conclude that gamesmanship was afoot.” Thus, it found that “Grange was entitled to have the default judgment set aside . . . .” It also concluded “that manifest injustice would occur if the default judgment were not set aside.” Further, it held that Grange “established good cause to set aside both the default and default judgment because Grange did in fact file a garnishee disclosure in response to Foucher’s” 6/22/17 writ of garnishment, although “with a misnomer in the caption. The clerical error in the caption did not establish grounds for entering a default or a default judgment.”
MCR 2.401(F) (compelling a party’s agent or representative to appear at a settlement conference); Kornak v. Auto Club Ins. Ass’n; Effect of failing to appear; MCR 2.401(G)(1); Principle that the court cannot force a settlement on the parties; Henry v. Prusak
Concluding that plaintiff’s managing director had adequate knowledge and settlement authority to qualify as an appropriate substitute for its CEO at the settlement conference, the court held that the trial court erred in ruling that plaintiff violated MCR 2.401(F) and in ordering it to pay sanctions to defendants’ attorneys. The trial court ordered the CEO to appear at the “conference. Plaintiff instead brought its managing director” who the trial court concluded was not a proper substitute, and thus that plaintiff failed to comply. While a “trial court may order that a specified individual be available for a settlement conference, a party complies with the order if it appears with a substitute who has ‘information and authority adequate for responsible and effective participation in the conference for all purposes, including settlement,’ as required by MCR 2.401(F)(2).” The trial court relied on Kornak in concluding, “in part, that because the managing director did not have unlimited authority to settle the case, plaintiff had not complied with” MCR 2.401(F)(2). But the court’s conclusion in Kornak that the former version of “MCR 2.401(F) was satisfied when a party was represented at a settlement conference by someone with ‘unlimited authority and unfettered discretion to settle’” did not equally apply “to the more flexible amended language of MCR 2.401(F).” The record indicated that “the managing director had, if not limitless authority, at least ample authority to settle the case.” He asserted in an affidavit “that during the settlement conference he had made offers of settlement that included reducing plaintiff’s demand from $2,740,300 to $2,000,000, and that he had authority to settle for an even lower amount.” Further, there was no indication that a settlement “was hampered by any limitation of the managing director’s authority to settle the case.” The fact a settlement was not reached was not determinative. While the court understood “the trial court’s consternation over the fact that plaintiff and plaintiff’s counsel defied” its direction, and plaintiff’s counsel chose to appear with the managing director without advising it in advance, the revised language appears “to allow this choice under these facts and does not support the trial court’s award of sanctions.” Vacated and remanded.
Personal injury action arising from a snowmobile accident; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); The “motor vehicle” exception; MCL 691.1405; Stanton v. Battle Creek; Overall v. Howard; Wesche v. Mecosta Cnty. Rd. Comm’n; Regan v. Washtenaw Cnty. Rd. Comm’rs (On Remand); Yoches v. Dearborn; Operation of snowmobiles on or alongside roadways; MCL 324.82119(1)(a), (b), (c), (h), & (f); “Roadway”; MCL 257.55; “Vehicle”; MCL 257.79
The court held that the snowmobiles owned by defendant-DNR and operated by defendants-conservation officers qualified as motor vehicles under MCL 691.1405 because they “were motor-driven conveyances that could be expected to be operated, under certain circumstances, on or alongside a roadway[.]” Thus, it affirmed the denial of summary disposition based on governmental immunity. Plaintiffs were injured while driving a snowmobile on Pinney Bridge Road after they allegedly encountered the officers “driving DNR-owned snowmobiles on the same road in the wrong direction.” The court reviewed cases holding that forklifts and golf carts do not meet the definition of a motor vehicle, and cases holding that “such conveyances as a Gradall hydraulic excavator, . . . a ‘broom tractor' and a ‘tractor mower’ performing roadside maintenance, . . . and a tractor pulling a wagon with passengers for hayrides” qualify as motor vehicles under MCL 691.1405. Thus, it considered whether snowmobiles are more like an excavator or a tractor, or more like a golf cart or forklift. It found that “snowmobiles are physically more analogous to automobiles than not.” While defendants asserted that “snowmobiles neither typically, nor usually legally, travel on public roadways as part of normal operations[,]” the court noted that under Overall, “the question is whether the conveyance is intended to operate on or alongside the roadway.” Defendants also cited MCL 324.82119(1) (prohibiting the use of snowmobiles on public highways), but it has several exceptions, including subsection (1)(f), which specifically permits them “to be operated on the shoulders of roads under some circumstances[.]” Thus, they are clearly “capable of more than incidental operation on roadways.” As to defendants’ contention that the accident occurred on a “Designated Snowmobile Trail,” the court found that this was not dispositive, and that the record did not establish that such a trail “is necessarily not a highway.” Considering the Vehicle Code definitions of roadway and vehicle, it concluded that “the physical, design, and expected use characteristics of snowmobiles reveal them to be ‘similar motor-driven conveyances’ irrespective of whether Pinney Bridge Road was a public roadway.”
Fraudulent inducement or misrepresentation; Roberts v. Saffell; Statements about future events; Cummins v. Robinson Twp.; Pleading with particularity; Stephens v. Worden Ins. Agency, LLC; Sales puffing; Van Tassel v. McDonald Corp.; Hayes Constr. Co. v. Silverthorn; Negligent misrepresentation; Alfieri v. Bertorelli; Abandoning an appeal with inadequate briefing; DeGeorge v. Warheit; Prince v. MacDonald
While the court found that plaintiffs abandoned their appeal due to inadequate briefing, it considered their claims and held that (1) the complaint did not state a claim for either fraudulent inducement or misrepresentation, (2) defendant-Kline’s “representation was sales puffing[,]” and (3) their negligent misrepresentation claim also failed. Thus, it affirmed summary disposition for Kline and defendant-Detergent Solutions. Noting that fraud claims must be pled with particularity, the court determined that ¶¶ 19 and 24 of the complaint did “not contain any factual allegations” but rather simply recited “legal conclusions to support plaintiffs’ claims. Such pleadings need not be taken as true for purposes of MCR 2.116(C)(8)[.]” Assuming the allegation in ¶ 20 was “sufficiently particular to survive the pleading requirements for fraud, it still does not state a claim upon which relief can be granted because it alleges that Kline made inaccurate statements about future events (the success of a laundromat at the selected location), which is not a misrepresentation of existing or past facts necessary to support a claim of fraud.” The court concluded that “Kline’s representation that the laundromat would earn $24,000 per month was Kline’s opinion, which he made for purposes of promoting the product he was selling. That plaintiffs’ realization fell short of Kline’s promotion is a ‘realit[y] of commercial intercourse.’” The court noted that a fraud claim “cannot be predicated on a salesman’s ‘puffing[.]’” As to the negligent misrepresentation claim, ¶ 22 failed to “state what duty defendants owed plaintiffs,” and plaintiffs did not otherwise specify the duty owed in the complaint. Thus, they did not state a claim for negligent misrepresentation.
The power to make gifts under a power of attorney (POA) & a trust; Park v. Appeal Bd. of MI Employment Sec. Comm’n; In re Cummin Estate; In re Miller Osborne Perry Trust; In re Raymond Estate; Patent ambiguity; In re Woodworth Trust; Discretionary trust; In re Johannes Trust; The Michigan Trust Code (MCL 700.7101 et seq.); MCL 700.7105(2)(b); MCL 700.7801; MCL 700.7816(2); MCL 700.7815; MCL 700.7103(b); “Ascertainable standard”; §§ 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code (26 USC §§ 2041 & 2514); Determination that a “Demand Promissory Note” was not discharged; MCL 440.3104(4); “Instrument”; MCL 440.3104(2); MCL 556.1; Adequate consideration; General Motors Corp. v. Department of Treasury
The probate court correctly concluded that both the POA and the Trust gave respondent power to make limited gifts to himself and to third parties. But it erred by determining that respondent’s power to make distributions was limited by the gift-giving provision of the Trust; the Trust also gave him discretion to distribute the Trust’s assets for the beneficiaries’ benefit. Yet this discretion was not unlimited, and there were factual questions about whether the distributions and gifts he made under the terms of the Trust violated Michigan law. However, the probate court reached the right result as to a “Demand Promissory Note.” Respondent appealed the probate court’s order granting partial summary disposition to petitioners.. In a cross-appeal, petitioners appealed the probate court’s holding that respondent was authorized under the terms of the Stephenson Family Revocable Living Trust (the Trust) and/or the POA “for Vernon Stephenson to make limited gifts and disbursements to himself and his children.” The court rejected petitioners’ argument that respondent was prohibited from making gifts to himself or his children under Vernon’s POA or the Trust. It held that respondent had the authority under the POA “to make limited gifts, including gifts to himself.” Further, turning to the Trust, the court concluded “that the terms of the Trust gave respondent the authority to make disbursements and limited gifts to himself and his children.” Petitioners argued that reading certain provisions of the Trust in combination with others created an ambiguity. However, the court determined that when reading the Trust as a whole, it was “clear that the decedents’ intent was for them to retain exclusive control except in the event that they became incapacitated.” Thus, it concluded that there was “no patent ambiguity in the Trust.” Affirmed in part, reversed in part, and remanded.