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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
The Federal Arbitration Act (FAA); Whether a provision in the parties’ settlement agreement providing for de novo judicial review of arbitration awards violated the FAA; 9 USC §§ 9-11; Hall St Assocs, LLC v Mattel, Inc; Severance of an invalid provision; Distinguishing Citizen Potawatomi Nation v Oklahoma (10th Cir)
The court held that the parties’ settlement agreement regarding cleanup costs at a contaminated site contained an invalid provision for de novo judicial review of arbitration awards, and that the provision was severable. The settlement agreement required plaintiff-Avient and defendant-Westlake to arbitrate certain disputes about the allocation of cleanup costs at a Kentucky Superfund site. The court noted that Avient had “twice demanded arbitration under the agreement. But now it opposes Westlake’s demand for arbitration, on the ground, it says, that the agreement’s arbitration provisions have been invalid all along. The district court granted summary judgment to Westlake[.]” Avient claimed that § 6.3 of the settlement agreement, providing for de novo judicial review of arbitration awards, violated the FAA. The court found it “undisputed” that this provision is invalid where the Supreme Court held in Hall that “the only grounds on which a federal court can vacate, modify, or correct an arbitration award are those specified in the” FAA. The Supreme Court ruled in Hall that “the judicial-review provision there was invalid. Here, § 6.3 likewise purports to expand the grounds on which a federal district court could vacate or modify an arbitration award under the agreement.” Thus, it too was invalid. The court next held that this invalid provision did not invalidate the arbitration provision as a whole, and that § 6.3 could be severed. In contrast to the case on which Avient relied, Citizen Potawatomi Nation, the parties here “did not make their agreement to arbitrate ‘subject to’ the availability of de novo judicial review; nor does either of them have sovereign immunity; nor does the severance clause ask merely whether the invalid provision is ‘material.’” Avient gave the court no basis “to conclude that severance of § 6.3 would affect ‘in any materially adverse manner as to any Party’ the ‘economic and legal substance of the transactions contemplated’ under the parties’ settlement agreement.” Thus, it deemed “§ 6.3 severed from the agreement, which otherwise remains in effect.” Affirmed.
42 USC § 1983 action alleging a Fourth Amendment violation; A warrantless property search; Qualified immunity; “Reasonableness”; A “clearly established” right; Florida v Jardines; Gardner v Evans
[This appeal was from the ED-MI.] The court held that defendants-local government officials violated plaintiff-Mockeridges’ Fourth Amendment rights by conducting a warrantless search of their unoccupied property to look for code violations, and that defendants were not entitled to qualified immunity. Thus, it affirmed the district court’s denial of qualified immunity. Plaintiffs bought 40 acres of rural land and allowed each of their five children to put “mini-cabins” nearby their cabin on the property. They put up a sign reading “Mockeridge Family Campground.” Neighbors became concerned that plaintiffs intended to open a public campground and notified the Alcona County health department. Defendants made a visit to the property without plaintiffs’ consent or a warrant. They took photos and measurements, and concluded among other things that one mini-cabin violated zoning ordinance setback requirements. They did not enter the cabins. The County sent plaintiffs a letter about the visit and advising that plaintiffs needed a campground license. Plaintiffs later filed this suit alleging a Fourth Amendment violation under § 1983. The district court granted plaintiffs summary judgment. After first holding that it had jurisdiction over the appeal, the court considered whether a “search” had occurred under the Fourth Amendment. Using the “property-based approach,” it noted that the fact there was more than one dwelling or that the dwellings were unoccupied at the time did not limit plaintiffs’ right to protect their “home.” It found that the “mini-cabins are ‘houses’ as the” Fourth Amendment uses the term and plaintiffs’ protection extended to their curtilage. A photo taken of the officials next to a mini-cabin established that they “trespassed upon the constitutionally protected area of the mini-cabins.” Because they did so to determine compliance with local government regulations, they conducted a search. Further, the search was not reasonable. Defendants “intruded significantly on” plaintiffs’ property and the “officials’ interest in intrusion was insubstantial.” The court noted the “minimal interest in identifying potential housing-code violations for fully constructed mini-cabins on a secluded clearing of remote private property that exhibited no immediate danger . . . .” It also held that plaintiffs had a clearly established right to be free from the search under Jardines, where the Supreme Court held that “government officials can approach a home’s front entrance, knock, wait briefly for a response, and then leave. . . . But not more.” In addition, “‘the right to be free from a warrantless code-compliance search with no alternative pre-compliance review was clearly established’ as early as 2009.”
Competency evaluation; MCL 330.2022(1); People v Kammeraad; Bona fide doubt; Right to be present; People v Montgomery; People v Buie; Absence from the courtroom; Harmless error; Right of confrontation; Surrogate witness; Waiver; People v McDonald
[In an order, the court vacated its prior opinion in this case (see eJournal # 83989 in the 7/23/25 edition) due to clerical errors. It later issued this new opinion.] Finding no errors requiring reversal, the court affirmed defendant’s first-degree murder conviction. His conviction arose out the premeditated killing of the victim in 2003. During his retrial the facts pertaining to two other murders (1999 and 2007) were introduced as evidence. As a preliminary matter, the court found that defendant abandoned his challenge to the trial court’s denial of his postjudgment motion for new trial or a competency hearing. It then rejected his challenge to the way the trial court handled defense counsel’s requests for a competency hearing during trial. “Because a reasonable judge could have concluded that there was not a bona fide doubt regarding defendant’s competence on the first day of trial, the trial court did not abuse its discretion when it declined to order a competency evaluation that day.” Further, it “did not abuse its discretion by denying defense counsel’s renewed request for a competency evaluation.” And while defendant “abandoned any challenge to the trial court’s denial of the postjudgment motion for new trial or evidentiary hearing as to his requests for a competency hearing by not including it in his questions presented, even if this issue were properly raised, we would still find that the trial court did not thereby abuse its discretion.” The court also rejected his claim that he was entitled to a new trial because his right to be present was violated. It found that although he “did not knowingly and intelligently waive” this right, the error was harmless as his “acquiescence to being removed, while not adequate to constitute a waiver, is indicative that there was no reasonable possibility that he was prejudiced.” Finally, the court rejected his contention that he was entitled to a new trial because his right to confrontation was violated when a “surrogate witness” testified. Testimony that “defendant’s DNA was found on a single cigarette butt inside” the 2007 victim’s apartment was “merely cumulative to other unchallenged evidence that was admitted at trial.” Thus, assuming any error existed, “it was harmless beyond a reasonable doubt.” Affirmed.
Evidence; A law-enforcement officer’s testimony as an expert about the meaning of common words & phrases contained in text messages; FRE 702; Whether error was harmless; Double jeopardy; Sufficiency of the evidence to get a conviction at the first trial
The court held that the district court erred by allowing a law-enforcement officer to testify as an expert about the meaning of text messages between defendant-Glenn and the decedent where most of the messages “were not a proper subject for expert testimony, and [the officer] was not qualified to testify as an expert regarding those messages.” Glenn was convicted of two counts of distributing carfentanil and one count of using a telecommunications device to facilitate the transaction. One of the carfentanil counts was enhanced for causing death. He argued that the district court erred by permitting the officer (A) to testify as an expert as to the meaning of common words and phrases found in text messages between Glenn and the decedent (D). Applying the abuse of discretion standard to the parts of the text messages A interpreted and Glenn objected to, the court found that there were aspects of A’s “testimony, such as his interpretation of what ‘dope sickness’ means, or his statement that drug users ‘have also bartered things as material items and/or sex’ for drugs, that drew from his expertise. But, apart from those narrow instances, the text messages between Glenn and [D] were nearly devoid of any such specialized language, and [A] did not lay a foundation for how his expertise would be helpful in interpreting common words and phrases in texts. He did not discuss any qualifications for interpreting common words and phrases that would assist the jury in distinguishing between people exchanging drugs and people discussing something other than drugs, such as sex or money.” The court held that “the jury was just as competent as [A] to interpret the common words and phrases used in these text messages.” In addition, “[b]ecause so much of the case revolves around [A’s] testimony and the text messages in question,” the court lacked “a ‘fair assurance’ that the verdict was unaffected by [A’s] improper testimony.” As to whether a new trial was barred by double jeopardy, the court determined that, viewing “the evidence in the light most favorable to the prosecution, including [A’s] improper testimony,” the government offered “sufficient evidence to support each of the charges against Glenn.” The evidence that included A’s testimony was “sufficient to convict Glenn, but is not so overwhelming as to make the admission of the improper testimony harmless.” The court found no double jeopardy bar to retrying him. It vacated his convictions and remanded.
Child custody; Parenting time; Proper cause or a change of circumstances; MCL 722.27(1)(c); Lieberman v Orr; Established custodial environment (ECE); Griffin v Griffin (Amended Opinion); The statutory best-interest factors; MCL 722.23; Factors in the parenting time statute; MCL 722.27a(6); In camera interview to determine the children’s parental preference; MCR 3.210(C)(5); In re HRC; Comparing Barretta v Zhitkov; Due process; Ex parte relief; MCR 3.207(A), (B)(1), & (B)(6)(a); Mann v Mann
The court held that “the trial court committed clear legal error by suspending defendant[-father’s] parenting time, based solely on information gathered at an in camera interview, without conducting an evidentiary hearing.” After a divorce the parties had joint physical and legal custody of their children. Plaintiff-mother moved for sole physical and legal custody, and the trial court entered an interim order modifying parenting time. At a subsequent hearing, a visiting trial court judge conferred with the parties off the record in chambers and conducted an in camera interview with the children. The judge then took the bench, remarked that allegations about defendant threating to kill plaintiff if parenting time was modified were “extremely credible,” and suspended defendant’s parenting time. On appeal, the court agreed with defendant that the trial court erred. “The trial court effectively changed physical custody without making findings regarding: (1) whether the change would alter an [ECE], which was necessary to establish the burden of proof; and (2) applying the appropriate burden of proof, whether modification was in the children’s best interests.” Its order “stated that suspension of defendant’s parenting time was in the . . . children’s best interests, but this finding was based only on information gathered during the in camera interview, where ‘the information received shall be applied only to the reasonable preference factor.’” The trial court “‘must determine the best interests of the child as defined in [MCL 722.23], and must make findings on each factor. A hearing is required before custody can be changed even on a temporary basis.’” It also stated that it was “‘more likely than not’ that defendant threatened plaintiff, but it [was] unclear whether preponderance of the evidence was the appropriate standard of proof, because [it] did not make a finding as to whether there was an” ECE. The court also agreed with defendant that he was denied due process because the trial court based its order on information it gathered during the in camera interview that went beyond parental preference. “Although the in camera interview permitted under MCR 3.210(C)(5) provides a useful opportunity for the trial court to consider a child’s reasonable preference when determining their best interests, it is not a substitute for an evidentiary hearing on disputed and potentially outcome-determinative questions of fact about who said what to whom. That was not provided here.” Finally, the court noted that the trial court “did not meet the minimum evidentiary requirements for entry of an ex parte order on the basis of a threat of imminent harm.” Vacated and remanded.
Original action under MCL 141.438(7) of the Uniform Budgeting & Accounting Act (UBAA); Jurisdiction; MCL 141.438; Whether previous decisions as to budget disputes between the parties were dispositive; Collateral estoppel; Monat v State Farm Ins Co; Declaratory relief; Binding precedent; MCR 7.215(C)(2); Stare decisis; A county prosecutor’s appointment & tenure authority; MCL 49.31; MCL 49.35; Whether the reclassification of a staff position is valid; Mootness; Mandamus relief
The court held that: (1) plaintiff-county prosecutor’s claims regarding a staff position were meritless because the county board of commissioners conditioned this appropriation on the reclassification of the position, which did not occur, and (2) defendant-county executive improperly impounded funds for plaintiff to use for outside legal counsel. Thus, it granted defendant summary disposition as to the staff position claim, granted plaintiff summary disposition, in part, as to the outside legal counsel claim, and issued a writ of mandamus directing defendant to disburse the funds and directing the parties to work together to facilitate the appropriate contracts. Plaintiff claimed defendant wrongfully impounded funds for a staff position and for outside legal services. As a preliminary matter, the court concluded it had jurisdiction. It found the claims were properly before it under the UBAA because regardless of the merits of plaintiff’s allegations, they “involve actions relating to the enforcement of a general appropriations act.” It next found that neither of the decisions as to previous budget disputes between the parties were dispositive. Collateral estoppel did not apply, and questions remained “as to whether the funds have actually been appropriated for the prosecutor’s office given purported conditions on the appropriations and whether those conditions have been met. Neither” of the previous decisions addressed these issues. Likewise, plaintiff’s “assertion that the declaratory relief ordered in” the first decision “controls the outcome of this case similarly lacks merit.” Turning to the merits, the court found plaintiff was not entitled to funds for the staff position. Nowhere in MCL 49.31 “is a prosecutor given the authority to unilaterally ‘reclassify’ an existing position, and” plaintiff’s attempts to do so were ineffective to establish the position at issue. Moreover, a “budgetary enforcement action under the UBAA is not the proper vehicle for” plaintiff’s claim that a reclassification decision was invalid. However, plaintiff was entitled to relief as to the appropriation of funds for outside legal services as defendant “cannot impound these funds ‘absent a showing of economic efficiencies.’” Defendant made “no such showing, and his claim that he can impound the funds pending a decision” by the Supreme Court in the most recent case arising from the parties’ budget dispute lacked merit. The court also disagreed that the issue was moot. Plaintiff abandoned his request for declaratory relief.
Timeliness of a challenge to the validity of a trust; Applicability of the six-month limitations period in MCL 700.7604(1)(b); Whether a Statutory Notice complied with § 7604(1)(b)’s requirements; “Date” defined; Whether substantial compliance was sufficient; Laches; Lack of prejudice; Applicability of the two-year limitations period in MCL 700.7604(1)(a); The Michigan Trust Code (MTC); The Estates & Protected Individuals Code (EPIC)
The court held that the probate court erred in ruling that appellants’ claim contesting the validity of their mother’s trust because of undue influence was barred by the six-month limitations period in MCL 700.7604(1)(b). Because the Statutory Notice they received did not comply with the date requirement in § 7604(1)(b)(iii), the two-year limitations period in MCL 700.7604(1)(a) applied and their challenge was timely. Thus, the court reversed summary disposition for appellee-Hastings Fire Department (Hastings FD) and remanded. It concluded MCL 700.7604’s requirements “were not met because the trustee did not provide the dates of all amendments to the trust that were known to her in the notice she provided to appellants.” Thus, they “had two years from the date of their mother’s death to commence this action, not the six months argued by Hastings FD.” Hastings FD contended that, while “the Statutory Notice did not technically comply with the statutory requirements by failing to list the date of the Second Amendment, [it] still provided the relevant information by allowing appellants to infer a five-week period in which the Second Amendment was executed.” Hastings FD essentially asserted “that substantial compliance resulting in actual notice to appellants, rather than strict compliance with the terms of § 7604(1)(b), is required.” The court disagreed, noting that Hastings FD did not identify any “substantial compliance provision in § 7604 or such a provision in the MTC or EPIC that would apply to § 7604. Moreover, specific statutes within EPIC have their own substantial compliance provisions for discrete topics. . . . The express inclusion of [such] provisions in other areas of EPIC combined with the absence of such a provision in § 7604 support that the Legislature intended that § 7604 be enforced as written.” Thus, the court found that “the Statutory Notice was required to strictly comply with the terms of § 7604(1)(b) for application of the six-month limitations period.” It also rejected Hastings FD’s argument that the court could “affirm the probate court’s order on the alternative” ground of laches. It noted that Hastings FD “failed to argue in the probate court or this Court that it was prejudiced by appellants’ delay in asserting their rights.” Rather, it only asserted “that the delay in filing the petition forced the Trust to incur the cost of belated and ‘Trust-depleting’ litigation. This is not prejudice resulting from inexcusable delay.”