Jennifer Dukarski Fishman Stewart Matthew W. Frank Cynthia Haffey Michael D. Hanchett Mary Massaron Megan Mitchell Ryan C. Washburn
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Violations of 29 CFR § 1910.119 “process safety management of highly hazardous chemicals” standards (PSM Standards); MCL 408.1046(6); 29 USC § 661(j); Who qualifies as an employer for purposes of applying § 1910.119(d)(3)(i)(B) & (o)(1); § 1910.119(h); “Contractors’; “Contract employer”; Perez v Jacobs Field Servs of N Am, Inc & Its Successors (OSHD); Competency of the evidence; MI Admin Code, R 792.10125; MCL 24.275; Due process; Distinguishing Al-Maliki v LaGrant & Lamkin v Hamburg Twp Bd of Trs; Michigan Occupational Safety & Health Administration (MIOSHA)
Considering the plain language of MCL 408.1046(6) and § 661(j), the court held that neither the ALJ nor the circuit court erred by applying Perez’s analysis to this case and determining that the cited PSM Standards applied to petitioner. Also, petitioner did not show that the circuit court erred by affirming the portion of the ALJ’s decision ruling that it “could be cited as an employer for violations of PSM Standards other than those in” § 1910.119(h) and that it was an employer for purposes of applying § 1910.119(d)(3)(i)(B) and § 1910.119(o)(1) here. Further, petitioner did not show “that the ALJ failed to apply correct legal principles or misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Finally, there was no due-process violation. Thus, the court affirmed the circuit court’s opinion and order affirming an administrative ruling upholding two citations for violations of § 1910.119 issued against petitioner by respondent-MIOSHA. Petitioner argued that “the cited PSM Standards did not apply to their activities at Woodworth’s facility because it was a contractor—not an employer—and” thus, it could not be cited for violations of the PSM Standards that apply only to employers. The court disagreed. At issue were §§ 1910.119(d)(3)(i)(B) and 1910.119(o)(1). Petitioner asserted that “it should be considered a contractor, not an employer, for purposes of the PSM Standards at issue” based on § 1910.119(h). The ALJ concluded that the language in § “1910.119(h) addressing the responsibilities of employers and contract employers was ambiguous because it was unclear whether or not a contractor could also be considered an employer.” The circuit court held that “the ALJ did not err by concluding that the PSM Standards applied to petitioner.” Petitioner argued that § 1910.119(h) “precludes a finding that it can be an employer for purposes of adhering to other PSM Standards.” It asserted that the plain language “creates an express dichotomy between the responsibilities of ‘the employer’ who operates and controls the process and those contractors ‘performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process.’” The court disagreed. The ALJ “explained that Perez rejected ‘the contractor’s attempt to draw a bright-line distinction between an “employer” and “contractor.”’” Applying these considerations, the ALJ held that petitioner was subject to the requirements of § “1910.119(h) and other applicable PSM Standards.” The court found that Perez supported the circuit court’s order and ALJ’s decision.
Whether the DHHS had the authority to conduct inventory reconciliation audits; Subsection 19.2 of the Pharmacy Chapter of the Michigan Medicaid Provider Manual (MPM); Office of Inspector General (OIG); Administrative Law Judge (ALJ)
Holding that the trial court erred in determining that respondent-DHHS does not have the authority to conduct inventory reconciliation audits, the court reversed and remanded. OIG notified petitioner (which operated a pharmacy) “it owed an overpayment Medicaid had made to petitioner in the amount of $803,961.86.” The ALJ upheld the overpayment amount. The Director of the DHHS affirmed. Petitioner appealed. “In reversing the final order, the trial court found that an agency’s ability to conduct an inventory reconciliation audit is derived from Subsection 19.2,” and the DHHS-OIG “did not have the authority to order the production of certain documents under Subsection 19.2.” The court held the “trial court applied incorrect legal principles when it erroneously concluded the audit at issue was not based in law, and the trial court misapplied its own standard of review in rejecting” the DHHS’s decision. Thus, it reversed the determination “of the trial court finding that OIG’s authority to conduct inventory reconciliation audits is derived from and limited to Subsection 19.2.”
Double jeopardy; People v Lett; Principle that retrial is permissible under double-jeopardy principles where defendant consented to the mistrial & was not goaded into consenting by intentional prosecutorial misconduct; People v Tracey; Juror misconduct; People v Budzyn; Sufficiency of the evidence; CSC I; MCL 750.520b; Tampering with evidence in a criminal case; MCL 750.483a(6); Sentencing; Scoring of OV 3 (bodily injury requiring medical treatment); MCL 777.33(1)(d); People v Barnes; Scoring of OVs 1, 2, & 12; Acquitted conduct; People v Beck; Resentencing; People v Francisco; Sexual assault nurse examiner (SANE)
The court held that double jeopardy did not bar defendant’s retrial, that the trial court did not err by denying his motion for a new trial, and that the evidence was sufficient to support his convictions. However, it found that he was entitled to resentencing because the trial court relied on acquitted conduct in scoring his guidelines. Thus, the court affirmed his convictions, but vacated his sentences and remanded for resentencing. He was convicted of CSC I and tampering with evidence in a criminal case for sexually assaulting the victim and intentionally destroying evidence of the crime. The trial court sentenced him to 15 to 60 years for the former and 6 to 10 for the latter, to be served consecutively. On appeal, the court rejected his argument that his first mistrial was the result of prosecutorial misconduct and, thus, his second retrial violated double jeopardy. It noted the prosecutor’s allegedly improper question “was proper—even if the response to the question was not.” Further, contrary to defendant’s argument, the record indicated that “rather than goading him to move for a mistrial, the prosecutor opposed his motion.” Moreover, defendant “moved for a mistrial and consented to it being granted.” The court also rejected his claim that the trial court erred by denying his motion for a new trial because the jury was exposed to extraneous information. “Because the trial court acted promptly upon becoming aware of the juror’s exposure to an outside influence, and given the juror’s repeated assurances that he would not consider that outside influence during deliberations and would only consider the evidence presented in court and the law as instructed by the trial court, there is no real and substantial possibility that the juror’s discussion of the case with his sister affected his verdict.” The court further rejected his contention that the evidence was insufficient to support his convictions, noting the jury was free to credit the victim’s “principal testimony describing the sexual assault and [defendant’s] actions in forcing her to bathe and taking her underwear.” In addition, the fact that she was impeached did not negate the SANE’s "testimony that there was vaginal tearing.” Finally, although the court rejected his argument that the trial court erred in scoring OV 3, it agreed that he was entitled to resentencing because the trial court relied on acquitted conduct to score the sentencing guidelines, which affected his appropriate guidelines range.
Federal Debt Collection Practices Act (FDCPA); Standing; Spokeo, Inc. v. Robins; Macy v. GC Servs. Ltd. P’ship; TransUnion LLC v. Ramirez
The court held that the district court lacked subject-matter jurisdiction to consider plaintiff-Ward’s FDCPA claims because he could not assert a “concrete injury in fact.” A bare procedural violation of the FDCPA was insufficient to establish Article III standing, and he could not show a concrete injury that flowed from the statutory violation. Thus, it vacated the order granting defendant-NPAS summary judgment and remanded for dismissal for lack of jurisdiction. Ward sued NPAS for alleged violations of the FDCPA. The district court ruled that NPAS did not qualify as a “debt collector” under the FDCPA, and dismissed the case. For the first time on appeal, NPAS argued that the case should be dismissed because Ward lacked Article III standing, arguing that he failed to establish an “injury in fact.” The court rejected Ward’s contention that the violation of a procedural right under the FDCPA itself gave him standing, citing Spokeo. It noted that in Macy, it held that the concreteness requirement could be satisfied where the “FDCPA violations created a material risk of harm to the interests recognized by Congress in enacting the FDCPA.” However, the Supreme Court recently abrogated that holding in TransUnion, ruling that “in a suit for damages, the mere risk of future harm, standing alone, cannot qualify as a concrete harm.” Instead, a plaintiff must show “that ‘the risk of future harm materialized,’ or that the plaintiffs ‘were independently harmed by their exposure to the risk itself.’” The court rejected Ward’s argument that “the FDCPA created an enforceable right to know who is calling about a debt and that NPAS, Inc.’s failure to identify its full name” during a phone call concretely injured him, holding that he was unable to show that NPAS’s failure resembled a harm traditionally recognized as “a basis for a lawsuit.” He argued that the statutory violation was closely related to invasion of privacy. But the court disagreed, holding that a failure to provide “full and complete information does not closely resemble intrusion upon seclusion,” which usually requires the element of intent. The court also rejected his claim that he suffered a concreate harm in the form of confusion, noting that “confusion alone is not a concrete injury for Article III purposes.” He also could not claim a concrete harm based on his voluntarily incurred legal expenses.
Michigan’s Safe Delivery of Newborns Law (SDNL); In re Miller; Termination of parental rights as a nonsurrendering parent; MCL 712.17(3)-(5); A timely filed “petition” for custody; MCL 712.10(1); Motion to unseal an adoption file; “Reasonable efforts” to identify, locate, & provide notice of the surrender of the newborn to the nonsurrendering parent; MCL 712.7
Concluding that petitioner’s complaint for divorce, which sought custody of the then-unborn child (Doe), constituted a timely filed petition for custody under MCL 712.10(1), the court held that the trial court erred in terminating his parental rights as a nonsurrendering parent under the SDNL. It also found that further proceedings were warranted as to his motion to unseal the adoption file, concluding MCL 712.7(f) “does not indicate that publication of notice of surrender satisfies an agency’s duty to make reasonable efforts to identify, locate, and provide notice to a nonsurrendering parent.” Petitioner filed the complaint in Ottawa County the day before his then-wife (K), unbeknownst to him, gave birth to Doe. K surrendered Doe at the hospital under the SDNL, declining to give any information about the father’s identity, although she indicated she was married. The hospital placed Doe with respondent-nonprofit agency. A notice was published in a newspaper simply “addressed, generically, to the birth mother and father of ‘a newborn baby, born on’” 8/9/18 at the hospital. The trial court terminated both parents’ parental rights, and later granted the prospective parents’ adoption petition. In between, “petitioner issued a third-party subpoena to respondent as part of the ongoing Ottawa court proceeding, requesting” records on Doe, specifying the date of birth and the hospital, after obtaining information from K in discovery. In ruling that the divorce complaint constituted a timely petition for custody, the court noted that petitioner clearly “sought to have the Ottawa court determine the issue of custody” and that nothing in MCL 712.10(1)’s plain language “precludes the filing of a petition for custody by a nonsurrendering parent before a notice of surrender is published, or sets any time limit on such an advance filing.” Because he properly and timely filed a petition for custody, respondent’s petition to terminate his parental rights “was filed in violation of MCL 712.17(3), and the Kalamazoo court’s subsequent entry of a termination order was in violation of MCL 712.17(5). This was plain error affecting substantial rights.” The court further found that, based on the record, respondent’s efforts to provide notice here appeared “to have fallen woefully short of what is ‘reasonable.’” Vacated, reversed, and remanded.
Custody; The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); MCL 722.1201(1); “Home state” (MCL 722.1102(g)); Foster v Wolkowitz; “Person acting as a parent” (MCL 722.1102(m)); Inconvenient forum; MCL 722.1207; Effect of a temporary guardianship order; MCL 722.1202(1) & 722.1204; Effect of noncompliance with the electronic recording requirement in MCL 722.1110
The court held that plaintiffs-maternal grandparents’ removal of the child (A) from her North Carolina residence and her stepfather’s care after her mother’s death “did not prevent the North Carolina court from satisfying the jurisdictional requirements of” MCL 722.1201(1), part of the UCCJEA. Further, the trial court did not abuse its discretion in ruling that Michigan was “an inconvenient forum for this child custody dispute,” under MCL 722.1207. Thus, the court affirmed the order granting defendant (who claims to be A’s biological father and is listed as such on the birth certificate) summary disposition. Plaintiffs obtained a power-of-attorney from A’s stepfather and moved A from North Carolina to Michigan. After filing a petition for guardianship and being appointed temporary guardians, they filed this custody action. “Defendant, who resides in South Carolina, also filed a custody action, but in North Carolina[.]” On appeal, the court rejected plaintiffs’ assertion that “North Carolina had no basis for jurisdiction under the UCCJEA.” It concluded that, regardless of the time periods between when A was removed from North Carolina (5/18/20) and plaintiffs’ filings in Michigan to obtain guardianship (5/29/20) and custody (7/31/20), this did not make Michigan A’s home state under the UCCJEA. In the six-month time period before A’s move to Michigan and the start of legal proceedings here, A lived in North Carolina with her family. Further, even if North Carolina did “not qualify as the home state under MCL 722.1102(1)(a),” a Michigan court could find that the Michigan court "presents an inconvenient forum for the custody determination.” The trial court made this determination under the factors in MCL 722.1207. Plaintiffs did not take issue with its findings under that statute, but instead contended that the inconvenient forum finding was “irrelevant because North Carolina lacked all ability to obtain jurisdiction under the UCCJEA. This is not the case, and plaintiffs misinterpret MCL 722.1201(1)(c).” Their arguments that “North Carolina lacked jurisdiction because there was no evidence of a significant connection between” it and defendant disregarded the effect of subsection (c). “Michigan had the ability to exercise jurisdiction under MCL 722.1201(b) but declined to do so because North Carolina was ‘the more appropriate forum’” under MCL 722.1207.
Class actions; Tolling under American Pipe & Constr Co v Utah; Hicks v Commissioner of Soc Sec; Martin v Commissioner of Soc Sec (ED KY); Hughes v. Commissioner of Soc Sec (ED KY); Whether the administrative denial of class certification terminated tolling; Effect of outright dismissal of an uncertified class action; Statute of limitations (SOL); Social Security Administration (SSA)
The court reversed the dismissal of two of the cases in this consolidated appeal (Potter and Adams), holding that the administrative denial of class certification in Hughes did not terminate American Pipe tolling, so those actions were timely. But it held that because the uncertified class action in Martin was dismissed, American Pipe tolling ceased, and the class members’ individual SOL clocks, including plaintiff-Messer’s, began running. Plaintiffs were successful Social Security disability benefit applicants who were represented in those proceedings by an attorney involved in a fraud scheme. Once the scheme was discovered, the SSA redetermined his clients’ eligibility. Two class actions filed challenging the determination procedures were involved here. Martin was dismissed and a class was never certified because the named plaintiffs failed to exhaust their administrative remedies. In Hughes, a stay was granted pending resolution of Hicks, and the motion for class certification was denied “without prejudice” in order to clear the docket. The issues on appeal involved the timeliness of plaintiffs’ actions and tolling under American Pipe, which provides that “filing a class action pauses the deadlines for members to file related individual actions.” The court considered whether the administrative denial for purposes of docket management in Hughes terminated equitable tolling, and held that it had not. “There was no finding that the proposed class lacked numerosity or commonality, or that the class representatives lacked typicality or adequacy.” The judge’s order in Hughes was “a case management tool meant only to clear his docket ahead of a long stay. Thus, the reasonable reliance interests of the putative Hughes class members” favored applying American Pipe tolling. As a result, Potter and Adams filed their claims within the SOL. But Messer had to “be able to claim an additional period of American Pipe tolling from the Martin appeal.” Consistent with the courts of appeal that have considered the issue, the court held that “once an uncertified class action is dismissed, American Pipe tolling ceases, and the class members’ individual” SOL clocks start running. This meant “that the pendency of the Martin appeal did not suspend Messer’s time to file an individual action” and his action was untimely. The court reversed in Potter and Adams, but affirmed in Messer.
Petition seeking a reduction of a property’s taxable value (TV) to zero; Whether the lease of the property constituted a “transfer of ownership” to the State under MCL 211.27a(6)(g) & exempted it from property taxes under MCL 211.7l; Whether the property is “public property”; MCL 18.1222; “Belonging to the State”; Michigan Tax Tribunal (TT); Administrative law judge (ALJ); General Property Tax Act (GPTA)
The court held that the TT correctly granted respondent-township summary disposition because petitioner did not establish that the property was “public property belonging to the state” under MCL 211.7l. Petitioner requested that the TT reduce the property’s TV to zero, arguing that the lease constituted a transfer of ownership to the State under MCL 211.27a(6)(g), and that the property was therefore exempt from property taxes under MCL 211.7l. The TT adopted the ALJ’s construction of the phrase “belonging to” in MCL 211.7l and concluded that the property did not belong to the State and that petitioner was not entitled to an exemption for the 2019 tax year. On appeal, the court rejected petitioner’s argument that the property qualified for the exemption because the lease constituted a “transfer of ownership” under the GPTA, because the State was the “equitable” owner under the lease, and because the State possessed and occupied the property and used it for a public purpose. “Under the plain language of MCL 18.1222, property . . . may be deemed ‘public property’ that is exempt under the GPTA, without regard to whether it ‘belongs to’ the State, if certain conditions are met.” Those conditions were not met by the lease, which “neither requires the State to pay any taxes on the property nor requires that the State reimburse petitioner for any tax payments.” As such, the property was “not exempt from taxation by virtue of MCL 18.1222.” Further, although petitioner argued “that MCL 211.7l and MCL 18.1222 are ‘alternative paths to tax exemption,’ MCL 18.1222 expressly states that it applies to the entirety of the GPTA, including MCL 211.7l.” Thus, because MCL 18.1222 “does not itself provide a path to exemption, petitioner must still satisfy all requirements for exemption under MCL 211.7l.” And even if the property “were deemed to be public property, petitioner must still demonstrate that it constitutes property ‘belonging to’ the State.” It could not. Even if “belonging to” encompasses “equitable ownership, the facts that the purchase option in the lease is not binding, that the State is not obligated to pay taxes, and that petitioner otherwise held itself out as the owner tend to show that the State was not an equitable owner.” Moreover, petitioner did not file the proper “deed or memorandum of conveyance or inform the local assessing officer by registered mail of any acquisition of the property by the State. Strictly construed in favor of the taxing authority, the property does not meet all of the requirements of MCL 211.7l and petitioner” was not entitled to the exemption. Finally, the TT did not err by denying its motion for leave to file a reply brief and motion for reconsideration. Affirmed.
Termination under §§ 19b(3)(c)(i) & (j); Reasonable reunification efforts; The Indian Child Welfare Act (ICWA); The Michigan Indian Family Preservation Act
The court held that §§ (c)(i) and (j) existed for termination of respondents-parents’ parental rights to the children. Also, the trial court did not err by concluding that “the DHHS made reasonable efforts to prevent or eliminate the need for the children’s initial removal.” Finally, evidence beyond a reasonable doubt was presented allowing the trial court to terminate respondents' parental rights under the ICWA and its Michigan counterparts. As to § (c)(i), the court noted that at “the time the children were removed from respondents’ care, the family was living in a camper with no plumbing. The camper was filthy, with raw sewage in a bucket next to the kitchen and the children’s beds.” Respondent-father smoked marijuana frequently in their presence, and the marijuana and drug paraphernalia were accessible to them. “The younger child, then age three, was ill and recently had been hospitalized, but respondents had failed to follow up with medical care for the child. The older child had rotted teeth. Both children were extremely dirty, covered with sores and scabs, and infested with lice.” The court noted that the “foster care worker testified during the termination hearing that although respondents had been provided numerous services for two years, they had not benefitted from the services.” Also, the trial court determined that despite numerous services provided by the DHHS, and “despite active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, the efforts had proved unsuccessful.” Further, the court noted that during “the two years that services were offered, respondents occasionally missed parenting time, were late for parenting time, left early from parenting time, and did not engage the children during parenting time.” Although the father “reported that he previously was employed as a carnival worker, he did not work during the two years the case was pending before the trial court. He stated that he did not need to work because respondent-mother worked at a fast-food restaurant and also had a stipend from the tribe, and that his grandmother was willing to assist them if they needed additional money. Nonetheless, respondents reported that certain repairs could not be made to the house because they lacked money.” Also, the trial court did not clearly err by holding that clear and convincing evidence established that termination of the father’s parental rights was warranted under § (j). Affirmed.
Testamentary capacity to execute a will; Persinger v Holst; In re Sprenger’s Estate; Personal representative (PR)
Holding that the probate court did not clearly err in determining that the decedent had the testamentary capacity to execute the 2011 will, the court affirmed the order setting aside her 1976 will, admitting the 2011 will, removing respondent-daughter as PR of the estate, and naming petitioner as successor PR. Respondent relied heavily on an expert’s (D) “testimony that decedent was likely suffering from dementia when she executed the 2011 will. However, the fact that a testator has dementia is not dispositive as to whether she had testamentary capacity when she executed a will. The appropriate test is whether, when signing the will, the decedent was ‘able to comprehend the nature and extent of his property, to recall the natural objects of his bounty, and to determine and understand the disposition of property which he desires to make.’” Decedent told her attorney (V), a neighbor (S), and petitioner that she wished “to leave everything to petitioner.” There was no evidence she “was no longer able to understand that she owned some asset that was not mentioned in the 2011 will.” Thus, the probate court did not clearly err in concluding that she “understood the extent of her property. It was also not clearly erroneous for [it] to find decedent could recall the natural objects of her bounty.” There was no indication she forgot who respondent was. Additionally, she “understood the difference between those who were family and those who were not when expressing her intentions for the 2011 will. She told [V] that she wanted to exclude all family members from her will and devise her entire estate to petitioner.” The court also held that the probate court did not clearly err in finding that, when signing the will, decedent understood what she was doing. There was no real question that while she was in the hospital with acute dehydration for five days early in 2011, “she would not have had testamentary capacity.” But D testified that after she “was rehydrated, her cognitive functioning would return to whatever level it was at” previously. When S visited her in the nursing home after she left the hospital, she again told him “that she had made a new will devising everything to petitioner. This provides evidence that once decedent’s cognitive functions returned to their baseline” she understood she had executed a new will leaving petitioner her entire estate.
Disability benefits; Whether a workplace incident was a significant element in an allegedly disabling condition; MCL 418.301(2); Martin v Pontiac Sch Dist (MCAC); Yost v Detroit Bd of Educ (MCAC); Whether the magistrate’s findings of fact were supported by competent, material, & substantial evidence on the whole record; MCL 418.861a(3); Mudel v Great Atl & Pac Tea Co; Whether the Martin test is at odds with the principle that a preexisting condition is not a bar to eligibility for workers’ compensation benefits & conflicts with the plain meaning of MCL 418.301(2); Gardner v Van Buren Pub Schs; Farrington v Total Petroleum Inc
The court held that the MCAC did not err by reversing the magistrate’s order denying plaintiff-employee disability benefits based on a work-related injury, or by affirming, in pertinent part, the magistrate’s determination that plaintiff failed to show her mental health issues were significantly contributed to by her workplace accident. It also concluded that there were no grounds to overturn the MCAC’s Martin test. Plaintiff sought disability benefits after a work incident in which she received an electric shock, fell off a ladder, and hit her shoulder and head. The magistrate found that she failed to establish a limitation in her wage-earning capacity in work suitable to her qualifications and training, and that the nonoccupational triggers leading to her disability outnumbered the occupational ones. The MCAC reversed as to the shoulder injury, but affirmed as to her mental health issues. The court denied leave, but the Supreme Court remanded. On remand, the court first found that the MCAC used “a proper standard of law when analyzing the magistrate’s decision regarding causation.” It set forth the proper standards, and noted it “could not simply substitute its judgment for that of the magistrate if competent, material, and substantial evidence supported the magistrate’s findings.” The court next found that the MCAC correctly concluded that the magistrate properly applied the four-factor Martin test and the Yost factors, noting its acceptance of the magistrate’s analysis of the various factors was proper. “While the evidence produced could also have led to the contrary conclusion, it is not the role of this Court to overturn a decision supported by the evidence in a workers’ compensation case.” Finally, the court found that the Martin test is not “at odds with the principle that a preexisting condition is not a bar to eligibility for workers’ compensation benefits” and does not conflict with the plain meaning of MCL 418.301(2). “We cannot conclude that the Martin test conflicts with the plain language of MCL 418.301(2) when it essentially conforms with the Supreme Court’s own guidance regarding how to apply that statute—i.e., it provides for a comparison of nonemployment and employment factors. Indeed, analyzing the number of stressors, the relative amount they contribute to a condition, the various stressors’ duration, and the extent of the stressors’ permanent effect essentially implements the language from Gardner and Farrington.” Affirmed.