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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary


Cases appear under the following practice areas:

  • Civil Rights (3)

    Full Text Opinion

    This summary also appears under School Law

    e-Journal #: 73654
    Case: Doe v. University of KY
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Donald, Boggs, and Batchelder
    Issues:

    20 USC § 1681; Whether a plaintiff could bring a Title IX claim against a university based on its alleged deliberate indifference to a sexual assault by a university student; Title IX “Davis claim”; Davis v. Monroe Cnty. Bd. of Educ.; Kollaritsch v. Michigan State Univ. Bd. of Trs,; Vance v. Spencer Cnty. Pub. Sch. Dist.; Whether plaintiff was deprived of an “education program or activity” under Title IX; § 1681(a); NCAA v. Smith; North Haven Bd. of Educ. v. Bell; Cannon v. University of Chicago; Horner v. Kentucky. High Sch. Athletic Ass’n

    Summary:

    The court held that defendant-University of Kentucky (UK) was improperly granted summary judgment on plaintiff-Doe’s Title IX Davis claim that UK was deliberately indifferent to her sexual assault by a UK student. There was a genuine dispute as to whether, although she was a enrolled in a community college affiliated with UK and not UK itself, she was deprived of an “education program or activity” furnished by UK. Significantly, Doe lived on the UK campus in a UK residence hall. She paid for a dining plan from UK, and paid UK various student fees. She also planned to enroll there. In three disciplinary hearings, the alleged perpetrator was found responsible for the assault, but in a fourth hearing, he was found not to be responsible. Doe dropped out of community college classes and left UK housing. She sued UK, claiming a Title IX violation. UK argued that she was not a UK student and that she could not show that she had been “deprived of an ‘education program or activity’ under Title IX.” Doe’s claim was characterized as a Davis claim regarding student-on student sexual harassment. In Kollaritsch, the court recently held that this type of case involves “a ‘high standard’ that applies only in ‘certain limited circumstances.’” The district court ruled that she could not bring her claim because she was not a student at UK. The court disagreed, finding the decision “too rigid” where issues remained whether she was denied the benefits of a UK education program or activity. It noted that even though she was not enrolled there, she lived in UK housing, paid for a UK meal plan, and paid for various UK services (e.g. student government association fees, student activity fees, a student health plan, access to the recreation center). Additionally, Doe testified that she had planned to eventually enroll there, and there were programs allowing the community college students to transfer. The court held that because Doe was paying UK “directly for much of her educational experience” and because of the “close academic relationship between” UK and the community college, she established a genuine dispute whether she was denied the benefit of an education program or activity of UK, and not the community college. Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73734
    Case: Lowe v. Walbro, LLC
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Gilman, Bush, and Readler
    Issues:

    Age discrimination; Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); Whether plaintiff established that defendant fired him based on his age; MCL 37.2202(1)(a); Sniecinski v. Blue Cross & Blue Shield of MI (MI); Direct evidence; Hazle v. Ford Motor Co. (MI); DeBrow v. Century 21 Great Lakes, Inc. (MI); Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs (MI App.); Burden of proof in a direct evidence case; Price Waterhouse v. Hopkins; Wilcoxon v. Minnesota Mining & Mfg. Co. (MI App.); Hecht v. National Heritage Acads., Inc. (MI); Hrapkiewicz v. Wayne State Univ. Bd. of Governors (MI); Mixed-motive analysis; Harrison v. Olde Fin. Corp. (MI App.); Goodman v. Genesee Cnty. (Unpub. MI App.); Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.; Relevance of plaintiff’s prior performance evaluations; Orisek v. American Inst. of Aeronautics & Astronautics (SD NY); Distinguishing Harris v. Giant Eagle Inc. (Unpub. 6th Cir.) & Vredevelt v. GEO Group, Inc. (Unpub. 6th Cir.)

    Summary:

    [This appeal was from the ED-MI.] The court held that the comment, “‘you’re kind of getting up there in years, you’re at retirement age,’” which was allegedly made while defendant-Walbro was discharging plaintiff-Lowe, constituted direct evidence of discrimination under Michigan’s ELCRA. Further, while there was evidence “Walbro might have fired Lowe even in the absence of any discriminatory animus, the company has not met its burden to establish as a matter of law that it would have done so.” Thus, the court found that the district court improperly granted Walbro summary judgment. Lowe, a 60-year-old, had worked for Walbro for 40 years when they discharged him. The court noted that Lowe was required to “‘prove that the defendant’s discriminatory animus was more likely than not a “substantial” or “motivating” factor in the decision[,]’” which Walbro then could rebut. While the Michigan Supreme Court held in Hecht that a “but for” causation standard applies, “rather than simply showing that the animus was a substantial or motivating factor[,]” the parties and the court followed the latter standard from Hazle and Sniecinski. As direct evidence of discrimination, Lowe cited a statement allegedly made by the facility’s General Manager (D) while he was firing Lowe. When Lowe asked why he was being discharged, D purportedly replied, “‘you’re kind of getting up there in years, you’re at retirement age, you go one way and the company’s going the other.’” Even though D denied making the statement, a court must consider the allegations in a light most favorable to plaintiff at the summary-judgment stage. The court then held that this comment “constitute[d] direct evidence of discrimination.” It found DeBrow, a Michigan Supreme Court case holding that a similar statement constituted direct evidence of discrimination, “squarely on point . . . .” The court held that, “read in the light most favorable to Lowe, [D’s] remark is a literal statement that Lowe’s age was the actual reason why he was terminated.” As to Walbro’s argument that it had other reasons for firing Lowe, the court concluded that Walbro did not show “as a matter of law that it would have terminated Lowe regardless of any age-related animus.” It further noted that the lack of formal evaluations for Lowe (which were mandated by the employee handbook) “undercut[] Walbro’s explanation that Lowe’s allegedly deficient job performance was the reason why he was stripped of most of his responsibilities.” Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73653
    Case: Marquardt v. Carlton
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Readler, Gilman, and Bush
    Issues:

    Free speech; U.S. Const. amend. I; Connick v. Myers; 42 USC § 1983; Retaliation; Evans-Marshall v. Board of Educ. of Tipp City Exempted Vill. Sch. Dist.; Whether plaintiff’s social media post involved matters of “public concern”; Rorrer v. City of Stow; Handy-Clay v. City of Memphis; Mosholder v. Barnhardt; Rankin v. McPherson; City of San Diego v. Roe; Farhat v. Jopke; Lane v. Franks; Dambrot v. Central MI Univ.; Perry v. McGinnis; Westmoreland v. Sutherland; Snyder v. Phelps; Grutzmacher v. Howard Cnty. (4th Cir.); The form of the speech; Packingham v. North Carolina; The government’s ability when acting as an employer to regulate employee speech to a greater extent than it can that of private citizens; Waters v. Churchill; Emergency Medical Services (EMS)

    Summary:

    The court held that the district court erred by granting defendants-City of Cleveland and its EMS Commissioner summary judgment on plaintiff-Marquardt’s First Amendment free-speech claim in this § 1983 action where his social media posts addressed a matter of public concern. Marquardt, a captain in the Cleveland EMS, was discharged after he “allegedly made incendiary comments on his personal Facebook page” about the death of 12-year-old Tamir Rice. He claimed that the posts were made by someone else. He alleged that he was terminated in retaliation for exercising his First Amendment free-speech rights. The district court ruled that the speech involved a matter of private interest and not one of public concern. But the court disagreed. It held that the subject of the posts involved a “well-documented shooting that plausibly relate to the officers’ handling of the encounter and the resulting community reaction.” The author of the posts seemed to assert that the shooting was justified because Rice “was ‘terroriz[ing]’ people by pointing a gun at them. The posts also assert that Rice, due to his conduct at the time of the killing, should not be viewed as a hero by Clevelanders. Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a ‘subject of general interest and of value and concern to the public.’” The court also held that the “disturbing first-person sentiments” in the posts did not change “the broader subject of the speech or transform it into a ‘personal grievance.’” While the posts were communicated “only to Marquardt’s friends[,]” the court held that there is no requirement that the statements be broadcast “to the general public to be on a matter of public concern.” It noted that its ruling was “narrow” in that it was not deciding whether the statements were “protected speech” or whether, as an employer, the Cleveland EMS could regulate his speech. In addition to remanding on the free-speech issue, the court also remanded on the failure-to-train claim and as to the motion for costs. Reversed.

    Full Text Opinion

  • Constitutional Law (2)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 73653
    Case: Marquardt v. Carlton
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Readler, Gilman, and Bush
    Issues:

    Free speech; U.S. Const. amend. I; Connick v. Myers; 42 USC § 1983; Retaliation; Evans-Marshall v. Board of Educ. of Tipp City Exempted Vill. Sch. Dist.; Whether plaintiff’s social media post involved matters of “public concern”; Rorrer v. City of Stow; Handy-Clay v. City of Memphis; Mosholder v. Barnhardt; Rankin v. McPherson; City of San Diego v. Roe; Farhat v. Jopke; Lane v. Franks; Dambrot v. Central MI Univ.; Perry v. McGinnis; Westmoreland v. Sutherland; Snyder v. Phelps; Grutzmacher v. Howard Cnty. (4th Cir.); The form of the speech; Packingham v. North Carolina; The government’s ability when acting as an employer to regulate employee speech to a greater extent than it can that of private citizens; Waters v. Churchill; Emergency Medical Services (EMS)

    Summary:

    The court held that the district court erred by granting defendants-City of Cleveland and its EMS Commissioner summary judgment on plaintiff-Marquardt’s First Amendment free-speech claim in this § 1983 action where his social media posts addressed a matter of public concern. Marquardt, a captain in the Cleveland EMS, was discharged after he “allegedly made incendiary comments on his personal Facebook page” about the death of 12-year-old Tamir Rice. He claimed that the posts were made by someone else. He alleged that he was terminated in retaliation for exercising his First Amendment free-speech rights. The district court ruled that the speech involved a matter of private interest and not one of public concern. But the court disagreed. It held that the subject of the posts involved a “well-documented shooting that plausibly relate to the officers’ handling of the encounter and the resulting community reaction.” The author of the posts seemed to assert that the shooting was justified because Rice “was ‘terroriz[ing]’ people by pointing a gun at them. The posts also assert that Rice, due to his conduct at the time of the killing, should not be viewed as a hero by Clevelanders. Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a ‘subject of general interest and of value and concern to the public.’” The court also held that the “disturbing first-person sentiments” in the posts did not change “the broader subject of the speech or transform it into a ‘personal grievance.’” While the posts were communicated “only to Marquardt’s friends[,]” the court held that there is no requirement that the statements be broadcast “to the general public to be on a matter of public concern.” It noted that its ruling was “narrow” in that it was not deciding whether the statements were “protected speech” or whether, as an employer, the Cleveland EMS could regulate his speech. In addition to remanding on the free-speech issue, the court also remanded on the failure-to-train claim and as to the motion for costs. Reversed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 73735
    Case: Willman v. Attorney Gen. of the United States of Am.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Kethledge, and Thapar
    Issues:

    The Sex Offender Registration & Notification Act (SORNA) (34 USC § 20901 et seq.); Nichols v. United States; Applicability to a defendant who is not subject to state-law registration or notification requirements; §§ 20913(a), 20911(1), 20911(10)(A), & 20911(5)(A)(i); 18 USC § 2250(a); United States v. Paul (Unpub. 6th Cir.); United States v. Del Valle-Cruz (1st Cir.); United States v. Pendelton (3d Cir.); United States v. Billiot (8th Cir.); Kennedy v. Allera (4th Cir.); The Ex Post Facto Clause; United States v. Felts; United States v. Wass (4th Cir.); United States v. Parks (1st Cir.); United States v. Elkins (9th Cir.); United States v. Leach (7th Cir.); Bacon v. Neer (8th Cir.); United States v. WHB (11th Cir.); United States v. Shenandoah (3d Cir.); United States v. Guzman (2d Cir.); United States v. Young (5th Cir.); United States v. Lawrence (10th Cir.); Cruel & unusual punishment; Cutshall v. Sundquist; First Amendment right to privacy; J. P. v. DeSanti; United States v. Arnold (5th Cir.); The Fourteenth Amendment’s Privileges or Immunities Clause; Article IV’s Privileges & Immunities Clause; Johnson v. City of Cincinnati; United States v. Holcombe (2d Cir.); United States v. Byrd (5th Cir.); United States v. Ambert (11th Cir.); A Fourth Amendment “seizure”; United States v. Jeter; United States v. Benevento (D NV); Hautzenroeder v. Dewine; The First Amendment overbreadth doctrine; Speet v. Schuette; Whether the SORNA is unconstitutionally vague; United States v. Paull; Michigan’s Sex Offender Registration Act (SORA)

    Summary:

    [This appeal was from the ED-MI.] The court held that the federal SORNA is constitutional, and that a sex offender’s obligations under it are independent of any duties under state law. Plaintiff-Willman was convicted of assault with intent to commit CSC in Michigan and after his release from prison registered as a sex offender on Michigan’s registry. He sued, alleging that both the Michigan registry (SORA) and the federal registry (SORNA) were unconstitutional. The district court entered a stipulated order as to the state defendants. The defendant-Attorney General then successfully moved to dismiss. On appeal, the court framed the issue whether SORNA applies to a defendant who has no state-law registration or notification requirements. It held that because Willman was a sex offender, SORNA required him to register. He argued that SORNA applied “only if an applicable jurisdiction’s state law requires him to be on its sex offender registry.” But the court held that even though he was removed from SORA, he was still “‘an individual who was convicted of a sex offense[,]’” and required to register under SORNA. It noted that it had previously reached this conclusion in an unpublished opinion, and that several other circuits have held that “federal SORNA obligations are independent of state-law sex offender duties.” It rejected his absurd result argument, and as for his claim that SORNA was unconstitutional under the Ex Post Facto Clause, this was previously rejected in Felts and in other circuits. Further, the court held that he had waived or forfeited his double jeopardy argument, and it rejected his cruel and unusual punishment claim given that SORNA does “not impose punishment.” The court also held that it does not violate the First Amendment right to privacy where the “‘the Constitution . . . does not encompass a general right to nondisclosure of private information.’” His argument that SORNA violates the Fourteenth Amendment’s Privileges or Immunities Clause failed where that Clause concerns state laws and SORNA is a federal law. As to Article IV’s Privileges and Immunities Clause, SORNA did not burden his right to travel. The court also found no seizure under the Fourth Amendment, and rejected his overbreadth and vagueness challenges.

    Full Text Opinion

  • Contracts (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73671
    Case: Fortune v. Walsworth
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, K.F. Kelly, and Tukel
    Issues:

    Whether the one-year period contained in the home purchase agreement was a akin to a statute of repose & not a statute of limitation; Stills v. Oakland Gen. Hosp.; Frank v. Linkner; Shields v. Shell Oil Co.; Principle that a statute of repose cannot be tolled under the fraudulent concealment statute (MCL 600.5855); Failure to support an argument; Mudge v. Macomb Cnty.; Availability of an unjust enrichment claim; Local Emergency Fin. Assistance Loan Bd. v. Blackwell; Motion for reconsideration; A new legal theory & evidence that could have been presented when the summary disposition motion was initially decided; Yoost v. Caspari

    Summary:

    Concluding that the one-year period contained in the parties’ home purchase agreement (PA) was not a statute of limitations, but rather akin to a statute of repose, and that it was plain and unambiguous, the court held that it barred plaintiffs-buyers’ lawsuit. Thus, the court affirmed summary disposition for defendants-sellers. As the parties closed on 6/21/16, plaintiffs had until 6/21/17 to file suit. While they contended that they showed a fraudulent or intentional misrepresentation as to the “roof, structural alterations to the house, flooding of the premises, and the retention of contractors who performed work without” the necessary licenses, even if this was true, the argument was irrelevant to “the trial court’s ruling that the suit was filed beyond the one-year period of repose contained in the” PA. They also cited the 6-year limitations period in MCL 600.5813, and the fraudulent concealment statute, MCL 600.5855. But they did not offer “any legal reasoning, analysis, or argument as to how MCL 600.5813 and MCL 600.5855 allow them to avoid the application of the period of repose.” Further, the Supreme Court found in Frank that MCL 600.5855 cannot toll a statute of repose. Plaintiffs also failed to plead in the complaint that defendants “fraudulently concealed the existence of a claim or the identity of a person who was liable.” In addition, the court noted that “the appraisal indicated that the home had water damage to the ceilings and a failing roof. And there was other evidence in the record showing that plaintiffs were fully aware, within one year of the closing, of structural problems and defects with the roof that caused it to leak, along with other defects that were ultimately alleged in their complaint.” Further, their attorney sent defendants a letter in 1/17, “within the one-year period of repose, indicating that the warranty had been voided, yet no suit was timely filed.” As to their unjust enrichment claim, the PA constituted an express contract covering the same subject matter. Finally, the court found that the trial court did not abuse its discretion in denying their motion for reconsideration.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73606
    Case: Frick v. Hurley Med. Ctr.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Cavanagh, and Swartzle
    Issues:

    Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Construction of employment contracts; AFT MI v. Michigan; In re Certified Question; Rood v. General Dynamics Corp.; Bodnar v. St. John Providence, Inc.; Dumas v. Auto Club Ins. Ass’n; M&G Polymers USA LLC v. Tackett; Harper Woods Retirees Ass’n v. City of Harper Woods; Promissory estoppel; Klein v. HP Pelzer Auto Sys., Inc.; Novak v. Nationwide Mut. Ins. Co.; Derderian v. Genesys Health Care Sys.; Unjust enrichment; Wright v. Genesee Cnty.; McCreary v. Shields; Bellevue Ventures, Inc. v. Morang-Kelly Inv., Inc.

    Summary:

    In these consolidated appeals, the court held that the trial court erred by denying defendant-former employer summary disposition of some of plaintiffs-former employees’ breach of contract, promissory estoppel, and unjust enrichment claims. However, it found that the trial court properly denied defendant summary disposition of plaintiff-George’s breach of contract claim and granted it on plaintiff-Bland’s breach of contract claim. Thus, it affirmed in part, reversed in part, and remanded. Plaintiffs sued after defendant unilaterally modified their retiree healthcare benefits. The trial court granted defendant summary disposition as to plaintiff-Frick’s breach of contract claim, but denied it as to his promissory estoppel and unjust enrichment claims. It also granted defendant summary disposition as to Bland, but denied it as to several other class members. Defendant argued that there were no genuine issues of material fact as to whether it agreed to provide unmodifiable lifetime retiree healthcare benefits to plaintiffs. Frick and Bland argued that the evidence showed their contracts entitled them to lifetime benefits that could not be unilaterally modified. The court agreed with defendant and disagreed with plaintiffs. The “handbooks relied upon by plaintiffs are simply not employment contracts between them and defendant under Michigan law. And they do not contain any express or specific promise by defendant guaranteeing that it would provide retired employees with healthcare benefits at a specific level for a specific cost for their lifetimes.” In addition, their claim that defendant was required by a city ordinance to “provide them with unmodifiable lifetime retiree healthcare benefits,” was meritless. However, because George had a specific separation agreement, defendant was properly denied summary disposition motion as to his breach of contract claim. As to the claims for promissory estoppel and Frick’s claim of unjust enrichment, plaintiffs could not establish the first element of promissory estoppel—that defendant made a definite and clear promise “to provide them with unmodifiable lifetime retiree healthcare benefits.” Moreover, they did not present “evidence to support a finding that they relied on an alleged promise of unmodifiable lifetime retiree healthcare benefits to the extent that an injustice would result if the alleged promises were not enforced.” Finally, the court found that defendant was entitled to summary disposition as to the claim of unjust enrichment by Frick and other class members.

    Full Text Opinion

  • Criminal Law (4)

    Full Text Opinion

    e-Journal #: 73672
    Case: People v. Adams
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Meter, and O’Brien
    Issues:

    Alleged violation of Batson v. Kentucky; People v. Knight; People v. Tennille; People v. Armstrong; Flowers v. Mississippi; Foster v. Chatman; Rice v. Collins; People v. Eccles; Right to remain silent; Jenkins v. Anderson; People v. Borgne; People v. McGhee; People v. Schollaert; People v. Solmonson; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Savage; Failure to timely request a severance of the trial; People v. Bosca; People v. Hana; Failure to object to the prosecutor’s alleged misconduct during closing argument; Prosecutorial misconduct; Attacking credibility during closing arguments; People v. Howard; People v. Buckey; Other acts evidence; MRE 404(b)(1); People v. Jackson; People v. VanderVliet; People v. Watkins; People v. Crawford; People v. Mardlin; Unfair prejudice; MRE 403; People v. Mills; People v. Cameron; People v. Blackston; People v. Starr; People v. Kelly; People v. Denson; The doctrine of chances; People v. Breidenbach; Judgment of sentence (JOS)

    Summary:

    In these consolidated appeals, in Docket No. 347308, the court held that there was no clear error and thus, no Batson violation as to defendant-Adams. Also, his “constitutional rights were not violated when evidence of his silence was admitted as substantive evidence.” In Docket No. 347434, it held that the prosecutorial misconduct claim raised by defendant-Sherrod (who was tried jointly with Adams) lacked merit, and that he was not denied the effective assistance of counsel. Further, the trial court did not abuse its discretion in admitting evidence of another fatal shooting under MRE 404(b). Thus, the court affirmed their convictions of murder and other crimes, as well as Adams’s sentences. But it remanded for the ministerial task of correcting, or clarifying, Sherrod’s JOS. Adams argued, among other things, that the trial court erred when it determined that the prosecution had not committed Batson violations. The court found it was “important to note that the final jury proportions were about evenly split between black and nonblack jurors, as reported by the trial court. While it is true that ‘[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose,’ . . . it is also relevant that the prosecution did not undertake to entirely eliminate all of the potential black jurors.” The court has held that evidence “the prosecutor failed to exercise all his peremptory challenges despite the fact that one African-American juror remained on the panel . . . is strong evidence against a showing of discrimination.” The prosecution here “expressed satisfaction with the jury despite having some peremptory strikes at its disposal.” This further supported the trial court’s determination “that the prosecution was not relying on race when dismissing potential jurors.” Sherrod argued, among other things, that the prosecution committed misconduct by attacking his credibility during closing argument. “The prosecutor never said anything that would have indicated to the jury that the prosecutor had some special knowledge about the veracity of Sherrod’s testimony. Instead, the prosecutor merely urged the jury to consider Sherrod’s questionable credibility in light of all of the evidence admitted at trial.” Under Howard and Buckey, “the prosecutor did not commit misconduct by making those arguments.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73669
    Case: People v. Lojewski
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Stephens, and Cameron
    Issues:

    Whether the verdict was against the great weight of the evidence; People v. Roper; People v. Musser; People v. Lacalamita; People v. Lemmon; Accosting a child for immoral purposes; People v. Gaines; People v. Kowalski; MCL 750.145a; “Sexual contact”; People v. Anderson; Sentencing; Habitual offender enhancement; People v. Head; Notice requirements; MCL 769.13(2)

    Summary:

    Holding that the jury’s verdict was not against the great weight of the evidence and defendant was not entitled to resentencing, the court affirmed. He was convicted of accosting, enticing, or soliciting a child for immoral purposes, and two counts of CSC IV (multiple variables). He was sentenced, as a fourth offense habitual offender, to 58 to 180 months for accosting, enticing, or soliciting a child for immoral purposes and to 46 to 180 months for each count of CSC IV. He argued that the jury’s verdict was against the great weight of the evidence because J and his mother were not credible witnesses. He argued that J’s mother inaccurately identified defendant’s hand in the photos and that J “and his mother testified inconsistently with regard to the dates and locations of the incidents and the reason that law enforcement was not contacted by” J’s mother. The court held that defendant failed to establish that J’s “and his mother’s contradictory testimony was so far impeached that it was deprived of all probative value or contradicted physical facts or defied physical realties.” The only physical fact that was impeached was the testimony from J’s “mother that she identified the hand in the cellular pictures as belonging to the defendant because of a scar on his right hand when it was in fact on his left hand.” Defense counsel effectively cross-examined both J “and his mother about the inconsistencies between them and argued those to the jury.” The inconsistencies from J “were about dates and places and not about the nature of the assault. [J’s] mother testified that the defendant, once confronted with her accusation, apologized.” Additionally, a police detective testified that J “disclosed to her that defendant sexually assaulted him and showed her one of the photographs that he took of the incident that was saved on his cell phone.” The trial “court instructed the jury on witness credibility and this jury resolved credibility in favor of the prosecution.” That was not error.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73674
    Case: People v. Pritchett
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Meter, and O’Brien
    Issues:

    Prosecutorial misconduct; People v. Dobek; People v. Aldrich; People v. Unger; Effect of an instruction that the jury must decide the case on the basis of the evidence & that the lawyers’ remarks are not evidence; People v. Bahoda; Ineffective assistance of counsel; People v. Vaughn; Strickland v. Washington

    Summary:

    Concluding that the jury instructions cured any prejudice to the extent the prosecutor’s challenged remarks crossed the line, and rejecting his related ineffective assistance of counsel claim, the court affirmed defendant’s second-degree murder and felony-firearm convictions. He asserted he was entitled to a new trial because the prosecutor, during closing argument, “improperly evoked sympathy for the victim and urged the jury to convict defendant as part of its public duty.” Reviewing this unpreserved claim, the court found that the first two paragraphs of the challenged remarks did “not establish the occurrence of plain error affecting substantial rights. The prosecutor argued” for defendant’s conviction based on the evidence. However, standing alone, the third paragraph, “could potentially be categorized as an appeal to the jury’s sympathy for the victim. One could infer from the language used that it posed a type of civic-duty argument, although that inference is not as readily drawn. Assuming” the remarks were plain error, the court was nonetheless convinced that it did not affect the trial’s outcome or “defendant’s substantial rights. The prosecutor’s argument did not involve a blanket appeal to the need to protect the community from individuals such as defendant” and the remarks were made in the context of a discussion of the trial evidence “and how defendant’s actions supported a finding of [his] intent to kill. The prosecutor did not directly ask the jury to convict defendant out of sympathy or public duty.” The court further found that, “even without an objection, the trial court’s jury instructions sufficed to protect defendant’s substantial rights.” It noted that it has, in similar circumstances, determined “that when the trial court instructs the jury that it must decide the case on the basis of the evidence and advises that the lawyers’ remarks are not evidence, such instruction generally suffices to eliminate any prejudice that might have resulted from the prosecutor’s remarks.” The court also concluded that defendant could not show prejudice as to his ineffective assistance claim because the jury instructions cured the asserted error.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 73735
    Case: Willman v. Attorney Gen. of the United States of Am.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Griffin, Kethledge, and Thapar
    Issues:

    The Sex Offender Registration & Notification Act (SORNA) (34 USC § 20901 et seq.); Nichols v. United States; Applicability to a defendant who is not subject to state-law registration or notification requirements; §§ 20913(a), 20911(1), 20911(10)(A), & 20911(5)(A)(i); 18 USC § 2250(a); United States v. Paul (Unpub. 6th Cir.); United States v. Del Valle-Cruz (1st Cir.); United States v. Pendelton (3d Cir.); United States v. Billiot (8th Cir.); Kennedy v. Allera (4th Cir.); The Ex Post Facto Clause; United States v. Felts; United States v. Wass (4th Cir.); United States v. Parks (1st Cir.); United States v. Elkins (9th Cir.); United States v. Leach (7th Cir.); Bacon v. Neer (8th Cir.); United States v. WHB (11th Cir.); United States v. Shenandoah (3d Cir.); United States v. Guzman (2d Cir.); United States v. Young (5th Cir.); United States v. Lawrence (10th Cir.); Cruel & unusual punishment; Cutshall v. Sundquist; First Amendment right to privacy; J. P. v. DeSanti; United States v. Arnold (5th Cir.); The Fourteenth Amendment’s Privileges or Immunities Clause; Article IV’s Privileges & Immunities Clause; Johnson v. City of Cincinnati; United States v. Holcombe (2d Cir.); United States v. Byrd (5th Cir.); United States v. Ambert (11th Cir.); A Fourth Amendment “seizure”; United States v. Jeter; United States v. Benevento (D NV); Hautzenroeder v. Dewine; The First Amendment overbreadth doctrine; Speet v. Schuette; Whether the SORNA is unconstitutionally vague; United States v. Paull; Michigan’s Sex Offender Registration Act (SORA)

    Summary:

    [This appeal was from the ED-MI.] The court held that the federal SORNA is constitutional, and that a sex offender’s obligations under it are independent of any duties under state law. Plaintiff-Willman was convicted of assault with intent to commit CSC in Michigan and after his release from prison registered as a sex offender on Michigan’s registry. He sued, alleging that both the Michigan registry (SORA) and the federal registry (SORNA) were unconstitutional. The district court entered a stipulated order as to the state defendants. The defendant-Attorney General then successfully moved to dismiss. On appeal, the court framed the issue whether SORNA applies to a defendant who has no state-law registration or notification requirements. It held that because Willman was a sex offender, SORNA required him to register. He argued that SORNA applied “only if an applicable jurisdiction’s state law requires him to be on its sex offender registry.” But the court held that even though he was removed from SORA, he was still “‘an individual who was convicted of a sex offense[,]’” and required to register under SORNA. It noted that it had previously reached this conclusion in an unpublished opinion, and that several other circuits have held that “federal SORNA obligations are independent of state-law sex offender duties.” It rejected his absurd result argument, and as for his claim that SORNA was unconstitutional under the Ex Post Facto Clause, this was previously rejected in Felts and in other circuits. Further, the court held that he had waived or forfeited his double jeopardy argument, and it rejected his cruel and unusual punishment claim given that SORNA does “not impose punishment.” The court also held that it does not violate the First Amendment right to privacy where the “‘the Constitution . . . does not encompass a general right to nondisclosure of private information.’” His argument that SORNA violates the Fourteenth Amendment’s Privileges or Immunities Clause failed where that Clause concerns state laws and SORNA is a federal law. As to Article IV’s Privileges and Immunities Clause, SORNA did not burden his right to travel. The court also found no seizure under the Fourth Amendment, and rejected his overbreadth and vagueness challenges.

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  • Employment & Labor Law (2)

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    This summary also appears under Contracts

    e-Journal #: 73606
    Case: Frick v. Hurley Med. Ctr.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Cavanagh, and Swartzle
    Issues:

    Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Construction of employment contracts; AFT MI v. Michigan; In re Certified Question; Rood v. General Dynamics Corp.; Bodnar v. St. John Providence, Inc.; Dumas v. Auto Club Ins. Ass’n; M&G Polymers USA LLC v. Tackett; Harper Woods Retirees Ass’n v. City of Harper Woods; Promissory estoppel; Klein v. HP Pelzer Auto Sys., Inc.; Novak v. Nationwide Mut. Ins. Co.; Derderian v. Genesys Health Care Sys.; Unjust enrichment; Wright v. Genesee Cnty.; McCreary v. Shields; Bellevue Ventures, Inc. v. Morang-Kelly Inv., Inc.

    Summary:

    In these consolidated appeals, the court held that the trial court erred by denying defendant-former employer summary disposition of some of plaintiffs-former employees’ breach of contract, promissory estoppel, and unjust enrichment claims. However, it found that the trial court properly denied defendant summary disposition of plaintiff-George’s breach of contract claim and granted it on plaintiff-Bland’s breach of contract claim. Thus, it affirmed in part, reversed in part, and remanded. Plaintiffs sued after defendant unilaterally modified their retiree healthcare benefits. The trial court granted defendant summary disposition as to plaintiff-Frick’s breach of contract claim, but denied it as to his promissory estoppel and unjust enrichment claims. It also granted defendant summary disposition as to Bland, but denied it as to several other class members. Defendant argued that there were no genuine issues of material fact as to whether it agreed to provide unmodifiable lifetime retiree healthcare benefits to plaintiffs. Frick and Bland argued that the evidence showed their contracts entitled them to lifetime benefits that could not be unilaterally modified. The court agreed with defendant and disagreed with plaintiffs. The “handbooks relied upon by plaintiffs are simply not employment contracts between them and defendant under Michigan law. And they do not contain any express or specific promise by defendant guaranteeing that it would provide retired employees with healthcare benefits at a specific level for a specific cost for their lifetimes.” In addition, their claim that defendant was required by a city ordinance to “provide them with unmodifiable lifetime retiree healthcare benefits,” was meritless. However, because George had a specific separation agreement, defendant was properly denied summary disposition motion as to his breach of contract claim. As to the claims for promissory estoppel and Frick’s claim of unjust enrichment, plaintiffs could not establish the first element of promissory estoppel—that defendant made a definite and clear promise “to provide them with unmodifiable lifetime retiree healthcare benefits.” Moreover, they did not present “evidence to support a finding that they relied on an alleged promise of unmodifiable lifetime retiree healthcare benefits to the extent that an injustice would result if the alleged promises were not enforced.” Finally, the court found that defendant was entitled to summary disposition as to the claim of unjust enrichment by Frick and other class members.

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    This summary also appears under Civil Rights

    e-Journal #: 73734
    Case: Lowe v. Walbro, LLC
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Gilman, Bush, and Readler
    Issues:

    Age discrimination; Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) (MCL 37.2101 et seq.); Whether plaintiff established that defendant fired him based on his age; MCL 37.2202(1)(a); Sniecinski v. Blue Cross & Blue Shield of MI (MI); Direct evidence; Hazle v. Ford Motor Co. (MI); DeBrow v. Century 21 Great Lakes, Inc. (MI); Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs (MI App.); Burden of proof in a direct evidence case; Price Waterhouse v. Hopkins; Wilcoxon v. Minnesota Mining & Mfg. Co. (MI App.); Hecht v. National Heritage Acads., Inc. (MI); Hrapkiewicz v. Wayne State Univ. Bd. of Governors (MI); Mixed-motive analysis; Harrison v. Olde Fin. Corp. (MI App.); Goodman v. Genesee Cnty. (Unpub. MI App.); Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.; Relevance of plaintiff’s prior performance evaluations; Orisek v. American Inst. of Aeronautics & Astronautics (SD NY); Distinguishing Harris v. Giant Eagle Inc. (Unpub. 6th Cir.) & Vredevelt v. GEO Group, Inc. (Unpub. 6th Cir.)

    Summary:

    [This appeal was from the ED-MI.] The court held that the comment, “‘you’re kind of getting up there in years, you’re at retirement age,’” which was allegedly made while defendant-Walbro was discharging plaintiff-Lowe, constituted direct evidence of discrimination under Michigan’s ELCRA. Further, while there was evidence “Walbro might have fired Lowe even in the absence of any discriminatory animus, the company has not met its burden to establish as a matter of law that it would have done so.” Thus, the court found that the district court improperly granted Walbro summary judgment. Lowe, a 60-year-old, had worked for Walbro for 40 years when they discharged him. The court noted that Lowe was required to “‘prove that the defendant’s discriminatory animus was more likely than not a “substantial” or “motivating” factor in the decision[,]’” which Walbro then could rebut. While the Michigan Supreme Court held in Hecht that a “but for” causation standard applies, “rather than simply showing that the animus was a substantial or motivating factor[,]” the parties and the court followed the latter standard from Hazle and Sniecinski. As direct evidence of discrimination, Lowe cited a statement allegedly made by the facility’s General Manager (D) while he was firing Lowe. When Lowe asked why he was being discharged, D purportedly replied, “‘you’re kind of getting up there in years, you’re at retirement age, you go one way and the company’s going the other.’” Even though D denied making the statement, a court must consider the allegations in a light most favorable to plaintiff at the summary-judgment stage. The court then held that this comment “constitute[d] direct evidence of discrimination.” It found DeBrow, a Michigan Supreme Court case holding that a similar statement constituted direct evidence of discrimination, “squarely on point . . . .” The court held that, “read in the light most favorable to Lowe, [D’s] remark is a literal statement that Lowe’s age was the actual reason why he was terminated.” As to Walbro’s argument that it had other reasons for firing Lowe, the court concluded that Walbro did not show “as a matter of law that it would have terminated Lowe regardless of any age-related animus.” It further noted that the lack of formal evaluations for Lowe (which were mandated by the employee handbook) “undercut[] Walbro’s explanation that Lowe’s allegedly deficient job performance was the reason why he was stripped of most of his responsibilities.” Reversed and remanded.

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  • Insurance (1)

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    e-Journal #: 73705
    Case: AAA Member Select Ins. Co. v. Johnson
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra
    Issues:

    Denial of rescission of a policy under a “Concealment and Fraud” provision based on equity; Bazzi v. Sentinel Ins. Co.; Pioneer State Mut. Ins. Co. v. Wright; Whether the Bazzi analysis was applicable; Fraudulent conduct; Meemic Ins. Co. v. Fortson; Burden of showing rescission is warranted; Gardner v. Thomas R Sharp & Sons; Factors to consider; Farm Bureau Gen. Ins. Co. of MI v. ACE Am. Ins. Co.

    Summary:

    Holding that it could not find the trial court abused its discretion by refusing to grant rescission, the court affirmed a judgment of $12,155.36 in favor of intervening plaintiff- Auto Owners and defendants-Leftwich and Williams. Plaintiff-AAA argued that the trial court lacked the discretion to decline to enforce the “Concealment and Fraud” provision in the policy it issued to defendant-Johnson on the basis of equity. The trial court’s analysis was consistent with Bazzi, but AAA argued that the Bazzi analysis did not apply. According to the policy’s “unambiguous provision, AAA was permitted to void the terms of the policy because Johnson engaged in fraudulent conduct.” However, the provision did not address rescission. Under Bazzi, an insurance contract, even if declared void ab initio, “imposes on the parties the same obligations as if it were not voidable” “[u]nless rescinded . . . .” For this reason, the court rejected “AAA’s argument that the policy enables AAA to rescind the policy, rather than simply void it, in light of Johnson’s fraudulent conduct.” The court determined that the “only other possible support for AAA’s reliance on policy provisions would be the reference in the provision that AAA will not ‘provide coverage for any insured person’ in light of Johnson’s fraudulent conduct.” In essence, AAA argued “that it was not required to provide coverage under the policy to innocent third parties like Leftwich, Williams, and others even if it was not entitled to rescission under” the provision. The court noted that AAA had not identified, and there did “not appear to be, any legal authority supporting such an understanding. Rather than reach such a legally unsupported conclusion, it is our view that the fraudulent conduct of an insured, whether that fraudulent conduct be based on common-law or a contractual provision, should be treated the same.” The court held that “the trial court then has the discretion to determine whether rescission is warranted by balancing the equities based on the specific facts and circumstances of each case.” That was exactly what the trial court did here, and the court found no error in this regard. While AAA further argued that, even if it relied on the correct analysis, the trial court still reached the wrong result, the court disagreed with this argument as well.

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  • Litigation (2)

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    This summary also appears under Contracts

    e-Journal #: 73671
    Case: Fortune v. Walsworth
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, K.F. Kelly, and Tukel
    Issues:

    Whether the one-year period contained in the home purchase agreement was a akin to a statute of repose & not a statute of limitation; Stills v. Oakland Gen. Hosp.; Frank v. Linkner; Shields v. Shell Oil Co.; Principle that a statute of repose cannot be tolled under the fraudulent concealment statute (MCL 600.5855); Failure to support an argument; Mudge v. Macomb Cnty.; Availability of an unjust enrichment claim; Local Emergency Fin. Assistance Loan Bd. v. Blackwell; Motion for reconsideration; A new legal theory & evidence that could have been presented when the summary disposition motion was initially decided; Yoost v. Caspari

    Summary:

    Concluding that the one-year period contained in the parties’ home purchase agreement (PA) was not a statute of limitations, but rather akin to a statute of repose, and that it was plain and unambiguous, the court held that it barred plaintiffs-buyers’ lawsuit. Thus, the court affirmed summary disposition for defendants-sellers. As the parties closed on 6/21/16, plaintiffs had until 6/21/17 to file suit. While they contended that they showed a fraudulent or intentional misrepresentation as to the “roof, structural alterations to the house, flooding of the premises, and the retention of contractors who performed work without” the necessary licenses, even if this was true, the argument was irrelevant to “the trial court’s ruling that the suit was filed beyond the one-year period of repose contained in the” PA. They also cited the 6-year limitations period in MCL 600.5813, and the fraudulent concealment statute, MCL 600.5855. But they did not offer “any legal reasoning, analysis, or argument as to how MCL 600.5813 and MCL 600.5855 allow them to avoid the application of the period of repose.” Further, the Supreme Court found in Frank that MCL 600.5855 cannot toll a statute of repose. Plaintiffs also failed to plead in the complaint that defendants “fraudulently concealed the existence of a claim or the identity of a person who was liable.” In addition, the court noted that “the appraisal indicated that the home had water damage to the ceilings and a failing roof. And there was other evidence in the record showing that plaintiffs were fully aware, within one year of the closing, of structural problems and defects with the roof that caused it to leak, along with other defects that were ultimately alleged in their complaint.” Further, their attorney sent defendants a letter in 1/17, “within the one-year period of repose, indicating that the warranty had been voided, yet no suit was timely filed.” As to their unjust enrichment claim, the PA constituted an express contract covering the same subject matter. Finally, the court found that the trial court did not abuse its discretion in denying their motion for reconsideration.

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    This summary also appears under Real Property

    e-Journal #: 73618
    Case: In re Estate of Hernansaiz
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Beckering, Fort Hood, and Shapiro
    Issues:

    Real property dispute; Pleading requirements; Notice pleading; Johnson v. QFD, Inc.; Tomasik v. Michigan; Dismissal as a sanction; MCR 2.504(B)(1); Brenner v. Kolk; Vicencio v. Ramirez; Dean v. Tucker; Fraud; Titan Ins. Co. v. Hyten; Undue influence; Kar v. Hogan; Construction of a deed; In re Ruddell Estate; Quitclaim deed; VanderWerp v. Plainfield Charter Twp.; Valid delivery; Blodgett v. Snobble; Casgrain v. Hammond; Reforming a deed based on fraud; Johnson Family Ltd. P’ship v. White Pine Wireless, LLC; Statute of frauds; MCL 566.106; JimBob, Inc. v. Mehling; Lakeside Oakland Dev., LC v. H & J Beef Co.; Mortgage; Schultz v. Schultz; Quiet title; MCL 600.2932(1); MCR 3.411; Personal representative (PR)

    Summary:

    The court held that the probate court erred by granting summary disposition of plaintiff-PR’s claims (other than her fraud claim) against defendant (the decedent’s former attorney), and abused its discretion by determining that dismissal was warranted under MCR 2.504(B)(1). Plaintiff alleged a variety of claims after attempting to take ownership of three parcels of land she asserted were owned by the decedent. On appeal, the court first found that she failed to state a claim of fraud. “While plaintiff provided detailed factual allegations concerning fraudulent activity on [defendant’s] part, an element of actionable fraud is that plaintiff took some action in reliance of the same. . . . Plaintiff has not provided specific allegations explaining how she, or the estate, suffered injury by acting in reliance on” his allegedly fraudulent claims. However, as to her undue influence claim, it found that plaintiff’s allegations were “sufficient to allege that the decedent was subjected to misrepresentation and coercion under circumstances in which undue influence is presumed . . . .” Similarly, plaintiff’s allegations, “accepted as true and viewed in a light most favorable to plaintiff, . . . provide legal grounds that, if factually supported, would establish that the quitclaim deeds are invalid. “ Further, plaintiff “alleged facts that, accepted as true and viewed in her favor, raise an issue whether the alleged mortgage giving rise to the quitclaim deeds in lieu of foreclosure was enforceable under” the statute of frauds. Finally, the court disagreed with the probate court’s conclusion that the amended complaint “was deficient for failing to comply with statutory and court-rule requirements.” Reversed and remanded.

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  • Negligence & Intentional Tort (1)

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    e-Journal #: 73680
    Case: Jaber v. Meijer Group, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher and Stephens; Concurrence – Cameron
    Issues:

    Slip & fall in a puddle of water in a grocery store; Premises liability; Benton v. Dart Props., Inc.; Duty owed to invitees; Hoffner v. Lanctoe; Breach of the duty of care; Pugno v. Blue Harvest Farms, LLC; An open & obvious condition; Price v. Kroger Co. of MI; Special aspects; Kennedy v. Great Atl. & Pac. Tea Co.; Lugo v. Ameritech Corp., Inc.; Actual or constructive notice; Lowery v. LMPS & LMPJ, Inc.; Carpenter v. Herpolsheimer’s Co.; Inferring constructive knowledge; Hampton v. Waste Mgmt. of MI, Inc.; Distinguishing Williams v. Borman’s Food, Inc.; Ordinary negligence; Buhalis v. Trinity Continuing Care Servs.

    Summary:

    While the court held that a question of fact existed as to whether the water puddle in which plaintiff slipped and fell in defendant’s grocery store was open and obvious, it concluded that the puddle was not unavoidable or unreasonably dangerous, and that the trial court erred in ruling that she did not have to show that defendant had notice of it. Thus, it affirmed the denial of summary disposition as to the open and obvious issue, but reversed the “denial of summary disposition on grounds that the puddle was effectively unavoidable or unreasonably dangerous, and whether proof of notice was required.” As to whether the puddle was open and obvious, the trial court determined that even if plaintiff “had casually looked at the water, there is a question as to whether she would have seen it because of the clear nature of the liquid against a white floor.” The court noted that defendant’s manager did not see “the water when he first approached the accident scene. Plaintiff slipped and fell on a puddle while grocery shopping at defendant’s store. Plaintiff testified that she did not see the puddle before she fell, but stated that she believed she would have noticed the puddle of water if she had looked at the ground before she fell. Plaintiff testified that the ‘floor was full of water,’ and that the puddle was large enough to soak her long dress ‘up to the middle’ of her back after she fell.” But the issue here was whether it “was observable upon casual not focused attention.” However, as to whether special aspects existed, nothing in the record supported a finding that (1) plaintiff had “to step through the puddle area because she had no other method of removing herself from the aisle or for any other reason” or (2) the puddle created “a higher degree of risk than any other puddle.” The court also agreed with defendant that the trial court erred in determining that she “was not required to establish that defendant had notice of the puddle because defendant created the dangerous situation.” But it disagreed that the trial court made conflicting comments about whether plaintiff’s claim sounded in premises liability or ordinary negligence. Remanded.

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  • Real Property (1)

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    This summary also appears under Litigation

    e-Journal #: 73618
    Case: In re Estate of Hernansaiz
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Beckering, Fort Hood, and Shapiro
    Issues:

    Real property dispute; Pleading requirements; Notice pleading; Johnson v. QFD, Inc.; Tomasik v. Michigan; Dismissal as a sanction; MCR 2.504(B)(1); Brenner v. Kolk; Vicencio v. Ramirez; Dean v. Tucker; Fraud; Titan Ins. Co. v. Hyten; Undue influence; Kar v. Hogan; Construction of a deed; In re Ruddell Estate; Quitclaim deed; VanderWerp v. Plainfield Charter Twp.; Valid delivery; Blodgett v. Snobble; Casgrain v. Hammond; Reforming a deed based on fraud; Johnson Family Ltd. P’ship v. White Pine Wireless, LLC; Statute of frauds; MCL 566.106; JimBob, Inc. v. Mehling; Lakeside Oakland Dev., LC v. H & J Beef Co.; Mortgage; Schultz v. Schultz; Quiet title; MCL 600.2932(1); MCR 3.411; Personal representative (PR)

    Summary:

    The court held that the probate court erred by granting summary disposition of plaintiff-PR’s claims (other than her fraud claim) against defendant (the decedent’s former attorney), and abused its discretion by determining that dismissal was warranted under MCR 2.504(B)(1). Plaintiff alleged a variety of claims after attempting to take ownership of three parcels of land she asserted were owned by the decedent. On appeal, the court first found that she failed to state a claim of fraud. “While plaintiff provided detailed factual allegations concerning fraudulent activity on [defendant’s] part, an element of actionable fraud is that plaintiff took some action in reliance of the same. . . . Plaintiff has not provided specific allegations explaining how she, or the estate, suffered injury by acting in reliance on” his allegedly fraudulent claims. However, as to her undue influence claim, it found that plaintiff’s allegations were “sufficient to allege that the decedent was subjected to misrepresentation and coercion under circumstances in which undue influence is presumed . . . .” Similarly, plaintiff’s allegations, “accepted as true and viewed in a light most favorable to plaintiff, . . . provide legal grounds that, if factually supported, would establish that the quitclaim deeds are invalid. “ Further, plaintiff “alleged facts that, accepted as true and viewed in her favor, raise an issue whether the alleged mortgage giving rise to the quitclaim deeds in lieu of foreclosure was enforceable under” the statute of frauds. Finally, the court disagreed with the probate court’s conclusion that the amended complaint “was deficient for failing to comply with statutory and court-rule requirements.” Reversed and remanded.

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  • School Law (1)

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    This summary also appears under Civil Rights

    e-Journal #: 73654
    Case: Doe v. University of KY
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Donald, Boggs, and Batchelder
    Issues:

    20 USC § 1681; Whether a plaintiff could bring a Title IX claim against a university based on its alleged deliberate indifference to a sexual assault by a university student; Title IX “Davis claim”; Davis v. Monroe Cnty. Bd. of Educ.; Kollaritsch v. Michigan State Univ. Bd. of Trs,; Vance v. Spencer Cnty. Pub. Sch. Dist.; Whether plaintiff was deprived of an “education program or activity” under Title IX; § 1681(a); NCAA v. Smith; North Haven Bd. of Educ. v. Bell; Cannon v. University of Chicago; Horner v. Kentucky. High Sch. Athletic Ass’n

    Summary:

    The court held that defendant-University of Kentucky (UK) was improperly granted summary judgment on plaintiff-Doe’s Title IX Davis claim that UK was deliberately indifferent to her sexual assault by a UK student. There was a genuine dispute as to whether, although she was a enrolled in a community college affiliated with UK and not UK itself, she was deprived of an “education program or activity” furnished by UK. Significantly, Doe lived on the UK campus in a UK residence hall. She paid for a dining plan from UK, and paid UK various student fees. She also planned to enroll there. In three disciplinary hearings, the alleged perpetrator was found responsible for the assault, but in a fourth hearing, he was found not to be responsible. Doe dropped out of community college classes and left UK housing. She sued UK, claiming a Title IX violation. UK argued that she was not a UK student and that she could not show that she had been “deprived of an ‘education program or activity’ under Title IX.” Doe’s claim was characterized as a Davis claim regarding student-on student sexual harassment. In Kollaritsch, the court recently held that this type of case involves “a ‘high standard’ that applies only in ‘certain limited circumstances.’” The district court ruled that she could not bring her claim because she was not a student at UK. The court disagreed, finding the decision “too rigid” where issues remained whether she was denied the benefits of a UK education program or activity. It noted that even though she was not enrolled there, she lived in UK housing, paid for a UK meal plan, and paid for various UK services (e.g. student government association fees, student activity fees, a student health plan, access to the recreation center). Additionally, Doe testified that she had planned to eventually enroll there, and there were programs allowing the community college students to transfer. The court held that because Doe was paying UK “directly for much of her educational experience” and because of the “close academic relationship between” UK and the community college, she established a genuine dispute whether she was denied the benefit of an education program or activity of UK, and not the community college. Reversed and remanded.

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  • Termination of Parental Rights (3)

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    e-Journal #: 73725
    Case: In re Condron
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Redford, Meter, and O’Brien
    Issues:

    Termination under §§ 19b(3)(b)(i), (j), & (k)(ii); In re Hudson; Children’s best interests; MCL 712A.19b(5); In re White; In re Moss Minors; In re Olive/Metts Minors; Plea validity; Failure to advise a respondent pursuant to MCR 3.971(B); In re Pederson; In re Ferranti; Discovery; MCR 3.922; Exculpatory evidence; People v. Bosca; Brady v. Maryland; Ineffective assistance of counsel; In re Martin; Factual predicate; People v. Jackson (On Reconsideration); Right to effective assistance of counsel denied by state action; Bell v. Cone

    Summary:

    While the trial court erred in failing to properly advise respondent-father of his rights under MCR 3.971(B), the court found that this did not require reversal of the termination order. It rejected his claim that the DHHS did not complete discovery under MCR 3.922, and concluded that even if Brady applied, he did not show a violation. He failed to establish prejudice as to his ineffective assistance of counsel claim. Further, statutory grounds for termination were established as to two of the children (JC1 and JC2). But remand was required for the trial court to articulate its analysis as to their best interests. Thus, the court affirmed termination of his rights to the third child (JAC), and the trial court’s rulings as to jurisdiction and statutory grounds for termination as to JC1 and JC2, but remanded for further proceedings as to those two children’s best interests. It retained jurisdiction and issued an order for the proceedings on remand. As to the error in regard to MCR 3.971(B), the court noted that the trial court advised respondent “of nearly all of the rights that he would waive if he pleaded no contest. [He] affirmed to the trial court that he had consulted with his attorney” about his plea. The record showed that the facts to which he agreed to plead no contest were in the police department “Investigative Report submitted to the trial court and the parties and relied upon by” the DHHS to establish jurisdiction as well as statutory grounds. As to those grounds, the evidence established that he “repeatedly sexually abused JAC by penetrating her. JC1 and JC2 are JAC’s siblings.” Thus, how he treated her was evidence of how he may treat them. The record showed that “JC1 and JC2 faced the risk of emotional harm if they were placed into the care of their sister’s abuser. JC1 and JC2 were also at risk of sexual abuse because of respondent’s abuse of JAC.” But in regard to the best interests of JC1 and JC2, the trial court’s failure to articulate its analysis as to its best-interest determinations left the court unable to determine whether it erred. The court directed it on remand to “conduct further proceedings to only consider and weigh the best-interest factors applicable to JC1 and JC2 and express on the record its determination whether termination” was in their respective best interests.

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    e-Journal #: 73718
    Case: In re Coppins
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Gleicher, Stephens, and Cameron
    Issues:

    Best interests of the child; MCL 712A.19b(5); In re Olive/Metts Minors; In re Moss Minors; In re Trejo Minors; In re White; Relative placement; MCL 712A.19a(8)(a); “Relative”; MCL 712A.13a(1)(j); Principle that the DHHS is not required to provide reunification services when termination of parental rights is its goal; In re HRC

    Summary:

    Holding that termination was in the child’s best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated after he pled no contest to statutory grounds supporting termination, specifically that he had sexually abused his oldest child. On appeal, the court rejected his argument that termination was not in the child’s best interests. “[R]espondent’s failure to appear for his supervised parenting-time sessions, or to seek agency assistance in securing [the child’s] attendance, precluded the DHHS from assessing the bond and prevented the court from giving this factor greater weight.” Further, by not showing up, he failed to “demonstrate his ability to parent, let alone to parent safely.” Moreover, the child’s placement with the mother did not preclude termination of respondent’s parental rights. Finally, the DHHS was not required to provide reunification services because termination was its goal.

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    e-Journal #: 73717
    Case: In re Krcma
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Shapiro, Servitto, and Letica
    Issues:

    Termination under §§ 19b(3)(h) (incarcerated parent) & (j) (reasonable likelihood that child will be harmed if returned to the parent); In re VanDalen; In re Gonzales/Martinez; In re Mason; In re Pops

    Summary:

    Holding that the trial court erred by terminating respondent-father’s parental rights to the child (E) under §§ (h) and (j), the court reversed and remanded. The “trial court relied upon (1) respondent’s inability to care for his minor child because he was in prison and (2) his failure to identify a suitable relative placement during his incarceration.” Critically, it failed to “scrutinize the likelihood of harm if the child were returned to the parent’s home after the parent’s release from prison.” Rather than addressing how the father’s “conduct or capacity” would harm E after his release from prison as required by § (j), the trial court improperly looked to his passive absence due to his incarceration. This alone required reversal under Mason and Pops. Because termination under § (j) was not supported by clear and convincing evidence, the trial court clearly erred in terminating his parental rights on this ground. Because it clearly erred by finding that termination was proper pursuant to §§ (h) and (j), the court reversed the trial court’s order terminating his parental rights on these statutory grounds.

    Full Text Opinion

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