Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Child custody; Motion to change custody to allow the child to attend school out of state; Mootness; Garrett v Washington; Waiver; Jurisdiction; MCR 7.202(6); MCR 7.203(A)(1); “Final order”; MCR 7.202(6)(a)(iii) & (iv); Attorney fees; MCR 3.206(D); Loutts v Loutts (After Remand); Friend of the Court (FOC); Uniform Child Support Order (UCSO)
The court held that defendant-father’s challenges to the trial court’s rulings on child custody, domicile, and schooling were moot or waived, and that it lacked jurisdiction as to child custody. However, it found the award of attorney fees to plaintiff-mother erroneous. The trial court denied defendant’s motion to change the custody of the parties’ daughter, effectively denying his request to allow her to attend school in Texas, where he resides. On appeal, the court rejected his argument that the trial court erred in its findings on custody and schooling and in adopting the child support calculations made by the FOC. But it agreed with him that the trial court erred in awarding attorney fees to plaintiff. First, to the extent “defendant obtained relief in the stipulated custody order that he had requested in his rejected motion, it is impossible for us to fashion a remedy and those issues are now moot. And to the extent that the stipulated order on custody may not have resulted in defendant obtaining all the relief that he sought in his rejected motion, we conclude that the claim for such relief was waived.” Next, the court found it lacked “jurisdiction over defendant’s appeal to the extent that it includes a claim of error regarding the UCSO. [And] given the stipulated child support order requiring neither party to pay support, the doctrines of mootness and waiver would operate to preclude appellate relief with respect to child support going forward.” Finally, however, the court held that “assuming that the trial court could sua sponte award attorney fees under MCR 3.206(D) absent specific allegations of fact by plaintiff on the subject, there simply was no evidence presented showing that plaintiff was unable to bear the expenses related to defending against defendant’s motion.” Dismissed and affirmed in part and vacated in part.
Interpretation & application of the Income Tax Act (ITA), the Single Business Tax Act (SBTA), the Michigan Business Tax Act (MBTA), & the Corporate Income Tax Act (CITA); Calculating a business’s corporate tax base; Taxable income; Depreciation deductions; MCL 208.9(4)(c); Cook v Department of Treasury; Lear Corp v Department of Treasury; The tax-benefit rule; Sturrus v Department of Treasury; Double taxation; Ameritech Publ’g, Inc v Department of Treasury
The court held that the Court of Claims did not err by denying plaintiff-telecommunications company’s motion for summary disposition and granting defendant-Department of Treasury’s motion for summary disposition. Plaintiff purchased telecommunications machines and equipment during the years the SBTA was in effect, and later sold the assets during the years the MBTA and CITA were in effect. It later sued on the issue of whether it could adjust its tax base to add back the federal depreciation deductions. The Court of Claims granted summary disposition for defendant. On appeal, the court rejected plaintiff’s argument that the Court of Claims miscalculated plaintiff’s corporate tax base. “The uncomfortable result on which this issue lands was ultimately created by the SBTA. There, the Legislature clearly decided to not grant Michigan taxpayers depreciation deductions.” It could have “balanced the situation by creating an avenue for relief in the MBTA or CITA, as it did with other aspects in those regimes, but it declined to do so. Plaintiff’s reading of the federal taxable-income directive is strained.” Cook and Lear “support the opposite reading.” Ultimately, the “Court of Claims did not err by interpreting the MBTA and CITA as disallowing a reconfiguration of gains on sales of assets, on the bases of those assets.” The court also rejected plaintiff’s claim that the Court of Claims erred by finding the tax-benefit rule did not justify a reduction in its tax base. “[P]laintiff’s intuition that the rule exists to ensure fairness and prevent double taxation for certain situations is correct. But its terms and limitations must still be observed: it is not enough to have an analogous situation. The Legislature could enact a version of the tax-benefit rule designed to more seamlessly fit with the particulars of Michigan tax law, but without such a codification, taxpayers may invoke the rule only as it is defined in the pertinent federal statute and regulation. The tax-benefit rule does not apply to plaintiff’s situation.” Affirmed.
42 USC § 1983 action alleging deliberate indifference to a serious risk of harm to an inmate; Municipal liability for an employee’s misconduct; Monell v Department of Soc Servs of City of NY; Liability based on inmate transportation policies; Liability for “inaction”; Failure to train theory; Qualified immunity; Supervisory liability
In this case involving claims of deliberate indifference to a serious risk of harm to an inmate based on sexual assault by a jail officer, the court held that defendant-County was not liable for plaintiff-Franklin’s sexual assault by a jail officer while she was an inmate. Franklin became ill and had to be transported for medical care. The transportation officer (P) sexually assaulted her in the transport van. He was fired and later pled guilty to second-degree sexual abuse. Franklin filed this suit asserting claims of deliberate indifference to a serious risk of harm, and failure to train and supervise, under § 1983. At issue in this appeal was the district court’s grant of summary judgment to the defendants other than P. As to Franklin’s claims against the County, the court held that it was not liable under Monell. It rejected her claim that the County’s policy of allowing only one male officer to transport an ill female inmate resulted in the inmate’s exposure to possible sexual assault, in violation of the Eighth Amendment. The court noted the “practice of permitting one male officer to transport a lone female inmate appears to be a custom rather than a policy.” It concluded her argument showed “only that the Jail’s transportation custom provided the opportunity for [P’s] unlawful behavior. Opportunity alone, however, fails to show that the Jail’s custom ‘direct[ly]’ caused Franklin’s assault.” She was required to “‘show that the particular injury was incurred because of the execution of’” the custom. Yet she did not “explain how her assault was ‘a direct result of [the Jail’s] . . . custom,’ as opposed to [P’s] unilateral, unlawful actions.” The court also held that the County was not liable under an “inaction” theory, which required Franklin to “show a clear and persistent pattern of unconstitutional conduct.” It found that the three instances of sexual misconduct she highlighted were “insufficiently similar to [P’s] conduct.” It concluded that the record instead showed his “actions were ‘rogue.’” There was also no liability under a failure-to-train theory where Franklin’s “contention that the Jail did not have written policies on preventing sexual abuse is belied by the record.” Finally, her claims against P’s supervisor failed. Affirmed.
Whether plaintiffs’ state-law claims alleging violation of state consumer protection, fraud, & deceptive trade practices laws were preempted by the Clean Air Act; Whether the state claims were “obstacle preempted”; In re Ford Motor Co F-150 & Ranger Truck Fuel Econ Mktg & Sales Practices Litig; Buckman Co v Plaintiffs’ Legal Comm; Wyeth v Levine; Whether the claims impermissibly challenged the Environmental Protection Agency (EPA) or undermined its policy considerations; Whether plaintiffs (as “indirect purchasers”) had standing to sue under the Racketeer Influenced & Corrupt Organizations (RICO) Act; The indirect-purchaser rule; Illinois Brick Co v Illinois
[This appeal was from the ED-MI.] The court reversed the district court’s ruling that plaintiff-purchasers’ state-law claims were impliedly preempted by the Clean Air Act. But if affirmed its ruling that because they were “indirect purchasers,” they did not have standing to sue under RICO. They purchased or leased a model year 2011–2016 Chevrolet Silverado 2500HD or 3500HD, or a GMC Sierra 2500HD or 3500HD (collectively Duramax Trucks), which are powered by a diesel Duramax engine. They sued defendants for allegedly falsely representing fuel and environmental information about the trucks. Plaintiffs brought claims for violations of state consumer protection, fraud, breach of contract, fraudulent concealment, and deceptive trade practices laws. They also alleged a RICO violation. The district court granted defendants summary judgment on all claims, ruling that the Clean Air Act preempted the state claims, and that plaintiffs, as “indirect purchasers,” lacked standing to bring a RICO claim. On appeal, the court first considered the preemption issue and held that the district court erred by ruling that preemption applied. Defendants argued that the state-law claims were “obstacle preempted. i.e., they are an obstacle to achieving Congress’s full purposes and objectives.” Applying a presumption against preemption, the court reviewed the case on which the defendants primarily relied, Ford, in which it ruled that the Energy Policy and Conservation Act “impliedly preempted” claims of fraud-on-the-agency. The court held that Ford did not apply to this case. Rather, Buckman controlled and under that decision, plaintiffs’ state-law claims were not preempted. “Unlike the claims in Ford, these state-law claims exist independently of federal law and any EPA findings, and do not depend on proving fraud on the EPA or a violation of federal law.” However, the court affirmed the district court’s ruling on the RICO claim, holding that the “bright-line” indirect-purchaser rule applied and thus, plaintiffs lacked standing as to the RICO claim. Under the rule, “‘consumers at the bottom of a vertical distribution chain’ do not have standing under RICO ‘to sue manufacturers at the top of the chain.’” Reversed in part, affirmed in part.
Settlement agreement concerning a trust; A settlement agreement as a binding contract; Whether the agreement’s terms were unambiguous; Whether the agreement’s terms were breached
Holding that the probate court did not err in ruling the trust-related settlement agreement (SA) at issue was (1) unambiguous and (2) not breached, the court affirmed its order denying appellants’ motion for disclosure and enforcement of the SA. They and appellee are siblings. Appellee became the sole successor trustee. The trust was the subject of lengthy litigation. Appellants asserted SA ¶¶ 10 and 11 “irreconcilably conflict and” this created an ambiguity. The court found the “word ‘further’ in ¶ 10 is a temporal adverb indicating administration of the trust after execution of the [SA]. In other words, administration of the trust after the settlement is complete would not involve [appellants]. However, all parties were responsible for their obligations associated with effectuating the [SA] under ¶ 11. These two provisions are complementary, rather than ambiguous.” The court likewise agreed with the probate court that appellee did not breach the SA. The probate court determined the conveyance of the home from the trust to appellee “was necessary ‘in order to complete the agreement between the parties. This was [her] ‘distributed share of the trust assets as a beneficiary,’ while appellants ‘received a [monetary] distribution from the trust.’ It was insufficient for appellants to ‘sign a quit claim deed and then the [SA] was completed.’ The conveyance of the house ‘then triggered the issuance of the K-1s that went to not the trust, but to the qualified trust beneficiaries for capital gains.’ The probate court reasoned, ‘the issuance of the K-1 is an obligation that is a natural result of the implementing of this’” SA. The court found this “interpretation was in keeping with ¶ 11. In appellants’ view, they should receive monetary distributions from the trust, but any responsibility resulting from [appellee’s] distribution—the house—should be borne entirely by [her]. Such an outcome is patently inequitable. The conveyance of the house is a result of the [SA], which funded the monetary distributions conveyed to [appellants]. Appellants fail to comprehend, or recognize, conveyance of the home . . . was integral and necessary for them to receive monetary distributions from the trust, which they recognized as getting ‘what [they] wanted.’ The conveyance resulted in capital gains tax. The probate court properly held the capital gains tax was a natural result of implementing the [SA], and the parties were responsible for their respective obligations associated with the settlement under ¶ 11.”
Sentencing; The statutory presumption of non-jail sentences for ordinary misdemeanors under MCL 769.5(3); Principle that driving while license suspended (DWLS) is not a serious misdemeanor under MCL 780.811(1)(a); Whether reasonable grounds existed for a departure; MCL 769.5(4); Proportionality; People v Steanhouse; Effect of a local sentencing policy; People v Chapa; People v McFarlin; People v Whalen
Holding that the district court did not adequately justify defendant’s jail sentence for DWLS, and may have sentenced him according to a district court sentencing policy, the court vacated his sentence and remanded to the district court for resentencing. He pled guilty in the district court to the misdemeanor offense of DWLS and was sentenced to 93 days in jail. He appealed to the circuit court, arguing his sentence “should not include jail time based on the statutory presumption of non-jail sentences for ordinary misdemeanors under MCL 769.5(3), and that his sentence was influenced by an impermissible local sentencing policy.” The circuit court denied his application. On appeal, defendant argued that the district court unfairly sentenced him to jail for the nonserious misdemeanor of DWLS without sufficient reason. “The district court appropriately took [his] criminal history into consideration, but it should also have weighed the seriousness of the offense.” In addition, it “did not consider the circumstances of the offense and did not explain how its departure sentence was more proportionate than a different sentence would have been. As a result, [it] did not adequately justify the imposed sentence, which hinders our appellate review of whether the sentence was reasonable.” Defendant also claimed he was sentenced according to a district court sentencing policy. Based on the findings presented by defense counsel, it appeared the district court “has been sentencing equally situated individuals to very high rates of incarceration and lengthy terms of probation.” The court noted that all the cases brought to it “concerning this issue initially arose from the” district court, and it seemed “more than a coincidence that individuals charged with DWLS and sentenced by the” district court “received disproportionately harsh sentences.” If the district court “has been employing a local sentencing policy, it must cease this practice immediately, as we have long made clear that a sentence that conforms to a local sentencing policy rather than an individualized sentence is invalid.”
Great weight of the evidence; Whether the victim was under 13 years old at the time of the contested CSCs; People v Musser; Fair & impartial jury; People v Haynes; Child sexually abusive activity (CSAA)
The court held that there was sufficient evidence for the jury to reasonably conclude that victim-ED was under 13 years old at the time of the sexual abuse. Also, defendant failed to rebut the presumption that jurors follow the trial court’s jury instructions, and thus, the jury was presumed to be fair and impartial. The case arose from allegations that he “sexual assaulted his stepdaughter ED and his daughter MF while they were both minors.” He was convicted of CSC I, II, and III, and CSAA. The court held that even considering the contradicting evidence as to “ED’s age at the time of the first sexual assaults (fellatio with ED, attempted penetration with ED in the bathroom, and penetration of ED’s genital opening after leaving the bathroom, all when ED was 10 years old),” there was “sufficient evidence for the jury to reasonably conclude that ED was under 13 years old at the time.” When mother-H “asked ED in 2021 how long defendant had been sexually abusing her, ED responded, ‘eight years.’” In 2013, when she was 10 years old, she told H “that defendant had abused her and ‘hurt [her] down there.’ Additionally, ED testified that defendant began sexually abusing her when she was 10 years old. She remembered this because her family had been living in their old house. [H] confirmed that the family did not move into their current house until 2014. Thus, although ED also stated she told an interviewer in 2021 that defendant first sexually abused her about three or four years prior (when she was either 14 or 15 years old), ‘[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial.’” Further, the court noted that “if resolution of a disputed factual question turns on the credibility of witnesses or the weight of the evidence, [this Court] will defer to the trial court, which had a superior opportunity to evaluate these matters.” The jury could reasonably determine that the sexual assaults occurred all when ED was 10 years old. “Thus, the evidence was not so heavily opposed to the verdict that it was a miscarriage of justice.” Therefore, he was not entitled to a new trial. Affirmed.
Due process right to a fair trial; Evidence defendant was on parole; MRE 404(b); Relevance; MRE 401; Unfair prejudice; MRE 403; First-degree murder; Sufficient evidence for an AWIM conviction; Intent; Right to a speedy trial; People v Williams; Barker v Wingo; Reasons for the delay; People v Smith; Prejudice; Ineffective assistance of counsel; Prosecutorial misconduct
The court held that (1) defendant was not denied his right to a fair trial by the admission of evidence he was on parole, (2) his speedy trial violation and related ineffective assistance of counsel claims lacked merit, (3) there was sufficient evidence to support his AWIM conviction, and (4) he failed to establish prosecutorial misconduct. He was convicted of first-degree premeditated murder, felony-firearm, FIP, and AWIM. The court first found that his “parole status was admitted for the proper purpose of proving motive.” He stipulated he was not legally allowed to possess a firearm, and victim-B “threatened to send his parole agent a picture of him with a gun. If [B] made good on her threats, then defendant’s liberty might be at risk. The testimony of several witnesses indicated that [he] was worried about this possibility.” And his parole status was relevant “because it made it more probable that defendant was impelled to murder [B] because her threats, if carried out, could have led to the revocation of [his] parole and the loss of his liberty.” The court also found no merit in “his implicit argument that the verdict rested on the evidence that he was on parole. The evidence of a premeditated murder was strong as was the evidence pointing to defendant as the killer.” Both victims were shot four times. “They suffered two deadly shots to the backs of their heads, with one shot each being fired at close range. The number and placement of the gunshots strongly suggested an intent to kill.” In addition, evidence that “defendant essentially lured [B] to a specific location late at night arguably suggested planning and premeditation.” Use of a borrowed car and phone, instead of his own, also suggested premeditation. Further, the trial court gave a limiting jury instruction that his parole status was only to be considered in regard to whether he “had a reason for committing murder or specifically intended to kill” B. As to his speedy trial claim, only the reasons for delay and the prejudice factors were at issue. Given that “the delay attributable to COVID-19 is not attributable to the prosecution and delays attributable to post-COVID-19 docket congestion are, at most, given a neutral tint and assigned minimal weight,” this factor did not support his claim. As to prejudice, “video and cell phone evidence—upon which delays had no effect—corroborated testimony about [his] movements and ruled out” his father, who he suggested was the killer, as a suspect. Affirmed.
Jury-venire composition; People v Duncan; Sufficient evidence; FIP
The court held that when the evidence was “viewed in a light most favorable to the prosecution, it was sufficient to prove beyond a reasonable doubt that defendant had possessed the handgun even though there was no eyewitness testimony placing the firearm in” his possession. He was convicted by a jury of FIP and felony-firearm. He first argued “that because there were no African-Americans or individuals of color in his jury venire, his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community was violated.” He lacked “evidence or information regarding the composition of jury pools and venires over time, pointing solely to his jury venire.” Thus, he could not satisfy the second prong of the Duren test. And as “to the third prong of the Duren test, defendant acknowledges a lack of data or evidence showing that any underrepresentation was due to the systematic exclusion of African-Americans.” Thus, there was no basis to reverse on his fair-cross-section argument. He blamed “the trial court for failing to conduct a hearing in which defendant may have been able to provide evidence regarding the second and third prongs of the Duren test.” He argued “that the trial court, by stating that it was denying any motion challenging the composition of the venire, implicitly rejected holding an evidentiary hearing and effectively ruled that there was no constitutional violation absent any support for such a determination.” The court concluded that it was necessary for him “to at least request an evidentiary hearing on his fair cross-section argument, and he failed to do so.” Moreover, he “failed to even timely raise the issue, waiting until after the jury was selected and empaneled.” And then he “neglected to file a motion to remand in this Court for purposes of seeking an evidentiary hearing.” Finally, he had “not even hinted at the possible existence of any data or information supporting his position on the second and third Duren prongs.” In sum, reversal was unwarranted. As to the sufficiency of the evidence claim, there was evidence that he “fled the upper-floor apartment by climbing down the balcony railing, but he was intercepted by the officer who directed defendant to climb back up and into the apartment. That officer then discovered a handgun on the ground, directly below where defendant had been dangling. And the handgun was found to be warmer than the ambient air, indicating that it had just been handled and inside on that December day. Additionally, fresh grass and dirt were discovered on the muzzle and barrel of the handgun.” Further, his DNA was found on the firearm. Affirmed.
Constructive discharge; Logan v Denny’s Inc. (6th Cir); Misrepresentation; Stone v University of MD Med Sys Corp (4th Cir); Coercion; Rhoads v Board of Educ of Mad River Local Sch Dist (6th Cir); Procedural due-process; Galien Twp Sch Dist v Department of Educ (On Remand); Effect of tenure; Exhaustion of remedies; Clayton v International Union, UAW; Technical, Prof'l & Officeworks Assoc of MI v Renner; Intentional infliction of emotional distress (IIED); Governmental immunity; Odom v Wayne Cnty
The court held that the trial court did not err by granting defendants-school district and HR director (Berck) summary disposition of plaintiff-former teacher’s claims related to her alleged constructive discharge. Plaintiff sued defendants claiming she was constructively discharged after inadvertently broadcasting to a student (on an AV classroom feed of her remote-teaching software) a brief conversation with her husband about another student. The trial court ultimately granted summary disposition for defendants. On appeal, the court rejected plaintiff’s argument that the trial court erred by dismissing her claim for a procedural due-process violation because defendants wrongfully deprived her of continued tenure, finding that none of her arguments showed “her resignation was involuntary, under either a misrepresentation theory or a coercion theory.” First, she “was given an alternative to resignation, namely, proceeding against possible tenure charges.” Second, there was “nothing to suggest [she] did not accurately understand the ramifications of resigning.” Third, she “was not required to decide whether to resign or proceed under any particular time frame.” Fourth, there was “nothing to suggest [she] could not select the effective date of her resignation. Indeed, the resignation letter indicates that its immediate effectiveness was the result of plaintiff’s own decision.” The court also rejected plaintiff’s claim that she was not required to exhaust her administrative remedies before filing the instant lawsuit. First, there was no basis for concluding that the union failed to represent her, “contrary to its duty of fair representation.” Second, because “the grievance process presumably would afford plaintiff ‘adequate redress,’ exhaustion of remedies cannot be excused on this basis.” Third, “failure to exhaust administrative remedies in this case may have had the impact of delaying resolution of the case, not expediting it.” Finally, the court rejected plaintiff’s contention that she established a claim for IIED. “Berck’s conduct in this case did not exceed ‘all possible bounds of decency.’” It would have been a dereliction of duty for her to fail to investigate the recorded conversation. In addition, she “contacted a union representative to represent plaintiff during the initial meeting about the matter.” And she did not mislead plaintiff or pressure her “to resign without an opportunity for reflection.” While the investigation “perhaps might have been handled somewhat differently in minor respects, Berck did not act so outrageously so as to constitute the tort of” IIED. Affirmed.
The Natural Resources & Environmental Protection Act (NREPA); Enforcement; The offer-to-meet provision in MCL 324.1511(1)(b); Whether failing to meet MCL 324.1511’s requirements necessitates dismissal; Leave to amend the complaint; Department of Environment, Great Lakes, & Energy (EGLE); Concentrated animal feeding operation (CAFO); National Pollutant Discharge Elimination System (NPDES)
Noting that it had not yet addressed MCL 324.1511, the court held that before initiating “an action under MCL 324.1511(1), [defendant-]EGLE must provide notice and the opportunity to meet, based on the factual allegations set forth in the complaint.” It further concluded the trial court abused its discretion in denying “EGLE’s request to amend its complaint to excise the portions that did not comply with” the statute. Thus, while the trial court did not err in granting defendant (a CAFO) summary disposition, it abused its discretion as to leave to amend. The case arose from defendant’s alleged noncompliance with the general NPDES permit. On appeal, EGLE argued the trial court erred in determining “the offer-to-meet provision in MCL 324.1511(1)(b) required EGLE to continue to extend offers to meet after each violation notice issued despite extending previous offers to meet.” The court disagreed. It found that the “plain language of Subsection 1511(1) sets out two mandatory conditions precedent to initiating a civil enforcement action . . . . Subdivisions (a) and (b) respectively contain a notice provision and an offer-to-meet provision.” The court concluded “the statute directs EGLE to discuss the possibility of litigation and all of the issues that would comprise the contemplated litigation with the permitee. This necessarily requires that EGLE extend an offer to meet each time it issues a new violation notice if it wants to include those facts in future litigation.” EGLE asserted this interpretation created “a continuous violation or ‘repeat offender’ loophole because it requires EGLE to provide notice and an offer to meet for each new alleged violation it observes.” But the court saw “no such loophole in the statutory language.” It also rejected EGLE’s argument that failing to meet MCL 324.1511’s requirements “does not require dismissal of the case because the statute does not list any consequence for noncompliance.” It found that this argument ignored the statute’s plain language. As to leave to amend, because “the trial court did not specify its reasons for denying leave to amend, reversal is required unless the amendment would be futile.” The court found that allowing amendment to excise the portions of the complaint that did not comply with the statute would not have been futile here. Affirmed in part, reversed in part, and remanded.
The Michigan Freedom of Information Act (FOIA); Whether a city police department’s use-of-force policy is subject to disclosure; Exemption under MCL 15.243(1)(s)(vi); Whether the policy reveals the contents of a law enforcement “staff manual”
On remand from the Supreme Court, the court held that the trial court clearly erred in ruling that the FOIA staff manual exemption under MCL 15.243(1)(s)(vi) applied and prevented disclosure of defendant-city’s police department’s unredacted use-of-force policy. Thus, it reversed summary disposition for the city and remanded for entry of summary disposition for plaintiff- Hjerstedt. “MCL 15.243(1)(s)(vi) exempts ‘the contents of staff manuals provided for law enforcement officers or agents’ from disclosure ‘[u]nless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance[.]’” The court noted that FOIA does not define “staff manuals,” and no case law has interpreted the provision. It did “not quibble with the trial court’s definition of a staff manual. Indeed, the common understanding of a staff manual can be described as a book or compendium of policies given to staff (e.g., law enforcement officers), informing them about workplace expectations and instructions on how to conduct business.” But it noted there was no record evidence “that the city’s use-of-force policy is contained in a staff manual or handbook that was disseminated to law enforcement officers. Rather, it is part of a standing general order that was issued” in 2013. The only evidence the city offered to support that the policy was a staff manual was the police chief’s “conclusory statement that he considered it to be a staff manual without any further explanation. As the party asserting the exemption, the city has the burden of establishing its applicability.” The court concluded “the term ‘staff manual’ was intended to be used synonymously with terms such as ‘employee handbook’ and be limited to tools provided to employees to outline terms of employment, internal employment-related procedures, and, at times, workplace policies. The city’s use-of-force policy is contained in a stand-alone general order that does not fit within this definition and thus was not exempt from disclosure under subparagraph (s)(vi).” The court directed that on “remand the trial court shall: (1) order disclosure of the unredacted use-of-force policy; (2) award Hjerstedt reasonable attorney fees, costs, and disbursements under MCL 15.240(6); and (3) determine whether Hjerstedt is entitled to punitive damages under MCL 15.240(7).”
Drain backup; Barred losses under the completed-loss or loss-in-progress doctrines; Breach of contract; Professional negligence; Duty to procure coverage; Duty to advise
The court held that the trial court did not err by denying defendant-Auto-Owners summary disposition based on the completed-loss or loss-in-progress doctrines, or by finding plaintiff-Opera Block was entitled to summary disposition on its breach of contract claim against Auto-Owners. Also, Opera Block failed to establish a genuine issue of material fact as to causation related to its claim against defendant-Kiebler Insurance. The case involved an insurance dispute arising from a drain backup (water was backing up through the drains in Opera Block’s buildings). “Because the water-backup coverage was in place before the loss . . . , the trial court determined that Auto-Owners breached its duty to cover the loss to the policy’s limit of $50,000 per location as a matter of law.” It also found “Opera Block failed to establish a question of fact as to whether Kiebler Insurance negligently caused [it] to have less coverage than it should have had for the loss at issue.” On appeal, Auto-Owners claimed the losses “were complete or in progress before [Kiebler’s insurance agent, M] applied for the change in coverage. Thus, the losses were barred under the completed-loss or loss-in-progress doctrines.” Opera Block’s expert’s affidavit did “not create a question of fact as to whether Kiebler . . . negligently listed the insured properties as three locations rather than five.” Also, his “opinion that two insurers might have insured Opera Block for a higher level of water-backup coverage does not establish a question of fact as to whether Kiebler . . . breached its duty to procure the best coverage possible for Opera Block.” Opera Block relied “heavily on its claim that [M] must have misunderstood the nature of the insurance she procured for Opera Block, because, after the loss, she sent [Opera Block's onwer, F] an e-mail in which she indicated that Opera Block had $50,000 in water-backup coverage for each building.” M’s e-mail did not show “that she could have insured the five addresses as five sublocations or that there was better insurance available. The trial court did not err when it determined there was no genuine issue of material fact that Kiebler . . . properly insured the buildings as three locations when it procured the coverage changes” and “did not err when it determined that there was no genuine issue of material fact that the Auto-Owners policy was the best available policy for Opera Block.” Opera Block argued “it presented evidence that established a question of fact as to each element of its negligence claims against” Kiebler, claiming “the trial court erred when it dismissed Opera Block’s claim that Kiebler” failed to procure the insurance F requested. The court held that the “trial court did not err when it determined there was no genuine issue of material fact that Kiebler” properly insured the buildings as three locations when it procured the coverage change, and did not err in finding “there was no genuine issue of material fact that the Auto-Owners policy was the best available policy for Opera Block.” Opera Block lastly claimed there was a question of fact as to whether Kiebler “breached a duty to advise arising from its special relationship with Opera Block.” The evidence showed “Auto-Owners would not have treated the five buildings as one location with five sublocations. Moreover, there was no evidence that any other insurer would have insured the five addresses as five separate locations. There was also no evidence that any insurer would have insured the buildings against water backups for more than what Auto-Owners did.”
Medical malpractice; The Pandemic Health Care Immunity Act; MCL 691.1475; Executive Order No. 2020-30; Warran v McLaren Flint
The court held that the trial court erred in ruling that defendant-medical center was immune from this suit under the Pandemic Health Care Immunity Act and an applicable executive order. It agreed with plaintiff-estate that its claims did “not arise from services that defendant provided in support of the state’s response to the pandemic.” The 91-year-old decedent underwent a procedure related to gallbladder disease. He died after being attacked by his “mentally unstable roommate who had a known propensity for violent outbursts.” The estate brought medical malpractice and ordinary negligence claims related to the assault. The court concluded the “services that allegedly caused the injury in this case were not given ‘in support of this state’s response to the’ pandemic. This lawsuit stems entirely from the beating inflicted upon the decedent by his roommate.” Neither the decedent nor his roommate was being treated for COVID-19. “The alleged negligent act was placing him in a room with an unsafe roommate, and the alleged omission was failing to deploy adequate safeguards to protect the decedent from the roommate whom was known to be unsafe.” The court found it clear “that neither of those were done in support of the pandemic response. There certainly will be gray area with respect to whether medical services were offered in support of the state’s pandemic response, but this particular case is black and white. The alleged acts, omissions, and injuries were wholly unrelated to the pandemic, so deeming defendant immune would contravene the Legislature’s clearly-communicated intent to limit this immunization to services stemming from the pandemic. The fact that the decedent apparently contracted COVID-19 at some point following his admission does not change the fact that he was not being treated at the hospital for COVID-19 or that the incident giving rise to this litigation was completely separate.” The court noted it was not holding “that immunity only applies when a patient is being treated for COVID-19, but it is clear that there must be some connection.” It further noted that its ruling here was consistent with its recent holding in Warran. It reached a different result there “because, unlike this case, there was a clear connection between the pandemic and the services giving rise to the cause of action.” Reversed and remanded.
Removal of coguardian & appointment of sole plenary guardian; Legally incapacitated person’s presence & preference; MCL 330.1455(1); MCL 330.1628(2); “To question” & “to testify”; Distinguishing In re HRC; Challenges to the probate court’s order; Vexatious appeal; Sanctions; Guardian ad litem (GAL)
The court held that the probate court properly granted appellee-Bazakis’s (father) petition to remove appellant-Bomba (mother) as coguardian and appoint Bazakis as sole guardian. However, it denied Bazakis’s request for sanctions. The case revolved around the care of AMMB, a legally incapacitated person. Bomba argued “that the trial court erred by excusing AMMB’s presence during the proceedings and by ascertaining her preference in an unrecorded in camera interview.” But Bomba “failed to establish that the probate court erred by allowing AMMB to be excused from the courtroom during these proceedings. AMMB was present in the courtroom for the first day of the proceedings, but her [GAL] subsequently moved to excuse her from the hearings. The GAL provided letters from AMMB’s primary care physician as well as her psychiatrist in which they each opined that it would be detrimental to AMMB’s wellbeing to attend the court proceedings.” Bomba argued that the probate court failed to abide by the requirements of MCL 330.1455(1). However, she could not “establish any error, particularly plain error, because MCL 330.1455 does not apply to this proceeding.” Bomba’s claim “that in camera interviews are impermissible relies largely on In re HRC,” a case involving the termination of parental rights. “In that case, this Court stated that ‘the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.’” The court held that “different context and liberty interests makes this case plainly distinguishable. It is well established that parents have a significant liberty interest in the care and custody of their children.” However, the court noted that “parents do not have a liberty interest in exercising control of the affairs of their adult children.” This case involved the rights and interests of AMMB, not her parents. Bomba’s challenges to the probate court order had no merit. Finally, the court disagreed “with Bazakis’s characterization of this matter as a vexatious appeal and accordingly decline[d] to sanction Bomba.”
Corporate tax; Depreciation; The tax-benefit rule; Single Business Tax Act (SBTA); Michigan Business Tax Act (MBTA); Corporate Income Tax Act (CITA); “Business income,” “taxable income,” & “gross income”; Lear Corp v Department of Treasury; Sturrus v Department of Treasury; Penalty waiver; MI Admin Code, R 205.1013; Federal taxable income (FTI)
Noting that there did not appear to be any case law explicitly addressing the tax issues raised here, the court concluded that (1) “plaintiff’s amended tax returns were not supported by any Michigan statutory scheme[,]” (2) the tax-benefit rule did not apply here, and (3) plaintiff was not entitled to a penalty waiver. The case concerned “the proper interpretation and application of several Michigan corporate tax regimes.” The parties agreed that a depreciation deduction existed and that plaintiff took it in its federal tax returns. Plaintiff wanted “to use nondepreciated values for the sale of the Property during the CITA years in order to increase its adjusted basis in the assets and result in a lesser gain from the sale.” The court found no support for this. There was “simply no provision allowing plaintiff to retroactively modify its adjusted basis in the Property from the SBTA years.” The court held that “the CITA essentially taxes plaintiff as if it has taken depreciation deductions in the Property.” The court also agreed with the Court of Claims that the principles set forth in Lear supported defendant’s position. Contrary to plaintiff’s claims, Lear’s facts and principles were analogous to the case here. Plaintiff sought “to change its original tax returns in a manner unsupported by the SBTA, MBTA, or CITA.” The court disagreed with its claims that the Lear court’s “statements about the FTI starting point were mere dicta.” Plaintiff went to great lengths to claim “that the FTI starting point is not an exact number from a taxpayer’s federal tax returns but merely a method,” but the court failed to see how this was “dispositive or even relevant.” Plaintiff alternatively argued that the tax-benefit rule applied and supported its actions. “Sturrus is the only Michigan case that mentions the tax-benefit rule.” The court held that even “assuming the tax-benefit rule applies to the SBTA, MBTA, or CITA, the rule” did not apply here. There was “no dispute from plaintiff that, during the SBTA years, it did not take any depreciation deductions on its SBT returns because the SBTA prohibited this. Plaintiff took depreciation deductions in its federal return, which meant that these deductions were included in plaintiff’s FTI starting point. However, the SBTA” (in MCL 208.9(4)(c)) expressly required it to add them back. Thus, “plaintiff did not deduct any of the federal depreciation on its SBT returns.” Affirmed.
Termination under § 19b(3)(b)(ii); In re Gonzales/Martinez; Children’s best interests; In re VanDalen; Ineffective assistance of counsel; Matters of trial strategy; Prejudice
The court held that (1) terminating respondent-mother’s parental rights was proper under § (b)(ii), (2) it was in the children’s best interests, and (3) she was not denied the effective assistance of counsel. Testimony was presented that “after CPS received a complaint that respondent was allowing” her boyfriend (A), who had “been adjudicated on three instances of sexually abusing other” children, to have contact with her children, the CPS investigator (T) “notified respondent of the concerns that DHHS had with [A’s] history of sexual abuse. In contradiction to respondent’s assertion on appeal, [T] testified that respondent affirmed that she was aware of [A’s] past and that respondent was notified that she would be held responsible if [A] were to harm the children. Despite these early warnings, respondent continued to allow [A] to be alone with the children. A month later, [T] and respondent created a written safety plan together that stated that [A] was not allowed to be alone with the children.” But just a few months after it was created, she allowed A “to get into bed with the children while she was not present.” While she purportedly reported one child’s “disclosure of sexual abuse immediately to law enforcement, the fact that she left her children alone with [A] in the first place in direct violation of the written safety plan demonstrated that [she] was either unable or unwilling to protect either of her children from potential abuse.” Thus, the trial court did not clearly err in finding that § (b)(ii) was established. As to the children’s best interests, the court held that the evidence clearly showed their “future safety and well-being could no longer be reasonably assured in light of the fact that despite full knowledge of the danger posed to the children, respondent left them alone in their beds with” A. Finally, the court rejected her ineffective assistance of counsel claim. Given T’s testimony, “even if trial counsel had presented testimony about respondent’s parenting abilities or her relationship with her children, a different result was not reasonably probable.” Affirmed.