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Civil Rights (1) Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 73769 Case: Hart v. Hillsdale Cnty. Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Stranch and Cole; Dissent – Readler Issues: 42 USC § 1983 action alleging violations of the Fourth & Fourteenth Amendments; The Michigan Sex Offender Registration Act (SORA); MCL 28.725(10)–(12); MCL 28.733(f), 28.734(1), & 28.735(1); MCL 28.722(g) & 28.725(1); MCL 28.728(1) & (2); MCL 28.728a; MCL 28.722(b)(iii); Qualified immunity; Courtright v. City of Battle Creek; Cahoo v. SAS Analytics Inc.; Ashcroft v. Iqbal; False arrest; Sykes v. Anderson; Whether the omissions & misstatements in the warrant requests were knowing, deliberate, or reckless; United States v. Bonds; Mills v. Barnard; Newman v. Township of Hamburg; Wesley v. Campbell; Hill v. McIntyre; United States v. Lyons; Whether the law was “clearly established”; District of Columbia v. Wesby; Ashcroft v. al-Kidd; White v. Pauly; Bunkley v. City of Detroit; Malicious prosecution; Johnson v. Moseley; Gregory v. City of Louisville; Coffey v. Carroll; Defamation; Paul v. Davis; The “stigma-plus” test; Doe v. Michigan Dep’t of State Police; Connecticut Dep’t of Pub. Safety v. Doe; Burgos Vega v. Lantz (2d Cir.); Schepers v. Commissioner (7th Cir.); Brown v. Montoya (10th Cir.); Municipal liability; Monell v. Department of Soc. Servs.; North v. Cuyahoga Cnty. (Unpub. 6th Cir.); Epps v. Lauderdale Cnty., TN (Unpub. 6th Cir.); Board of the Cnty. Comm’rs v. Brown Summary: [This appeal was from the ED-MI.] The court affirmed in part the district court’s denial of defendants’ motion to dismiss in this § 1983 action arising from plaintiff-Hart’s arrest and imprisonment for not registering as a sex offender when he was no longer required to do so. But it reversed as to his defamation claims against three defendants. After Michigan narrowed the crimes covered by SORA, Hart, who had been a juvenile offender, was no longer considered a “sex offender.” But he was twice arrested on SORA warrants and he spent 19 months in prison, despite his new status. After he was released, he sued defendants for false arrest, malicious prosecution, and defamation. The district court denied their motion to dismiss based on qualified immunity. The court found that the “only reasonable inference to be drawn from” the warrant requests was that “Hart was an ‘offender’ subject to SORA’s requirements. He was not—a material fact that was omitted from both warrant requests.” Defendants argued that they were not “reckless” because they were entitled to rely on the Michigan State Police and its database. But the court noted that reasonable officers would have been aware that the database can contain errors “and seeing apparent mistakes in Hart’s record,” should have followed the statutory directive to discover “whether ‘the legal requirements for obtaining a warrant [were] satisfied, . . . including whether Hart’s failure to register was excused by his homelessness.” Thus, it affirmed as to the false arrest claims. It also affirmed as to his malicious prosecution claims, concluding that further record development was needed. On the defamation claim, the court applied the “stigma-plus” test to determine whether a state action had violated Hart’s procedural due process rights. It joined other circuits by holding that “wrongful classification as a sex offender implicates a constitutionally protected liberty interest under” this test. But Hart was still required to identify a “procedural flaw” and the court was unable to determine whether he received due process or whether his right was clearly established. This claim was remanded as to some defendants but dismissed as to three others. Lastly, the court found that, “[i]f the district court determines that the municipalities failed to take reasonable steps to forestall wrongful listings, liability may exist for Municipal Defendants.” Full Text Opinion

Constitutional Law (1) Full Text Opinion This summary also appears under Civil Rights e-Journal #: 73769 Case: Hart v. Hillsdale Cnty. Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Stranch and Cole; Dissent – Readler Issues: 42 USC § 1983 action alleging violations of the Fourth & Fourteenth Amendments; The Michigan Sex Offender Registration Act (SORA); MCL 28.725(10)–(12); MCL 28.733(f), 28.734(1), & 28.735(1); MCL 28.722(g) & 28.725(1); MCL 28.728(1) & (2); MCL 28.728a; MCL 28.722(b)(iii); Qualified immunity; Courtright v. City of Battle Creek; Cahoo v. SAS Analytics Inc.; Ashcroft v. Iqbal; False arrest; Sykes v. Anderson; Whether the omissions & misstatements in the warrant requests were knowing, deliberate, or reckless; United States v. Bonds; Mills v. Barnard; Newman v. Township of Hamburg; Wesley v. Campbell; Hill v. McIntyre; United States v. Lyons; Whether the law was “clearly established”; District of Columbia v. Wesby; Ashcroft v. al-Kidd; White v. Pauly; Bunkley v. City of Detroit; Malicious prosecution; Johnson v. Moseley; Gregory v. City of Louisville; Coffey v. Carroll; Defamation; Paul v. Davis; The “stigma-plus” test; Doe v. Michigan Dep’t of State Police; Connecticut Dep’t of Pub. Safety v. Doe; Burgos Vega v. Lantz (2d Cir.); Schepers v. Commissioner (7th Cir.); Brown v. Montoya (10th Cir.); Municipal liability; Monell v. Department of Soc. Servs.; North v. Cuyahoga Cnty. (Unpub. 6th Cir.); Epps v. Lauderdale Cnty., TN (Unpub. 6th Cir.); Board of the Cnty. Comm’rs v. Brown Summary: [This appeal was from the ED-MI.] The court affirmed in part the district court’s denial of defendants’ motion to dismiss in this § 1983 action arising from plaintiff-Hart’s arrest and imprisonment for not registering as a sex offender when he was no longer required to do so. But it reversed as to his defamation claims against three defendants. After Michigan narrowed the crimes covered by SORA, Hart, who had been a juvenile offender, was no longer considered a “sex offender.” But he was twice arrested on SORA warrants and he spent 19 months in prison, despite his new status. After he was released, he sued defendants for false arrest, malicious prosecution, and defamation. The district court denied their motion to dismiss based on qualified immunity. The court found that the “only reasonable inference to be drawn from” the warrant requests was that “Hart was an ‘offender’ subject to SORA’s requirements. He was not—a material fact that was omitted from both warrant requests.” Defendants argued that they were not “reckless” because they were entitled to rely on the Michigan State Police and its database. But the court noted that reasonable officers would have been aware that the database can contain errors “and seeing apparent mistakes in Hart’s record,” should have followed the statutory directive to discover “whether ‘the legal requirements for obtaining a warrant [were] satisfied, . . . including whether Hart’s failure to register was excused by his homelessness.” Thus, it affirmed as to the false arrest claims. It also affirmed as to his malicious prosecution claims, concluding that further record development was needed. On the defamation claim, the court applied the “stigma-plus” test to determine whether a state action had violated Hart’s procedural due process rights. It joined other circuits by holding that “wrongful classification as a sex offender implicates a constitutionally protected liberty interest under” this test. But Hart was still required to identify a “procedural flaw” and the court was unable to determine whether he received due process or whether his right was clearly established. This claim was remanded as to some defendants but dismissed as to three others. Lastly, the court found that, “[i]f the district court determines that the municipalities failed to take reasonable steps to forestall wrongful listings, liability may exist for Municipal Defendants.” Full Text Opinion

Contracts (3) Full Text Opinion This summary also appears under Insurance e-Journal #: 73712 Case: Clauss v. State Farm Mut. Auto. Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Breach of contract action to recover personal protection insurance (PIP) benefits; Principle that fraud claims against insurers are not subject to the no-fault one-year-back rule; MCL 500.3145(1); Cooper v. Auto Club Ins. Ass’n; Whether a release of liability is valid; Genesee Foods Servs., Inc. v. Meadowbrook, Inc.; Principle that an agreement to settle a pending lawsuit is a contract; Reicher v. SET Enters., Inc.; Affect of the words “any & all” in a release; Dresden v. Detroit Macomb Hosp. Corp.; Heritage Res., Inc. v. Caterpillar Fin. Serv. Corp. Summary: The court held that the trial court did not err by dismissing with prejudice plaintiffs’ claim seeking PIP benefits from defendant-insurer. Plaintiffs sued defendant seeking PIP benefits for the care of their daughter, who suffered serious injuries when she was struck by a motor vehicle while crossing the street. The trial court granted defendant summary disposition and dismissed plaintiffs’ lawsuit because a release precluded them from asserting further claims against defendant. On appeal, the court rejected plaintiffs’ argument that the trial court erred by dismissing their fraud claim because the release did not bar it and Cooper permitted it. It noted that because the release was unambiguous the trial court had to enforce it as written according to its plain and ordinary terms. The release “plainly required plaintiffs to release and forever discharge [defendant] from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and/or compensation in any way related to” the accident, and “in no way excluded any claims from release or preserved any claims that preexisted the date on which plaintiffs executed” it. It also “necessarily included the claims asserted in plaintiffs’ [current] complaint related to [defendant’s] alleged breach of contract and claims stemming from the alleged . . . misrepresentation regarding payment of PIP benefits to plaintiffs that duplicated payments made by their medical insurer.” Finally, the court found that “[b]ecause this case presents a distinctly different issue, Cooper is inapposite. Cooper never discussed or decided the issue presented in this case and plainly does not stand for the proposition that a claim released under the broad terms of a release may be raised despite having been waived and released by contract.” Affirmed. Full Text Opinion Full Text Opinion This summary also appears under Real Property e-Journal #: 73714 Case: Declercq v. Lair Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Whether the alleged contract was barred by statute of frauds (SOF); MCL 556.108; Guzorek v. Williams; The doctrine of part performance; Dumas v. Auto Club Ins. Ass’n; Unjust enrichment; Belle Isle Grill Corp. v. City of Detroit; Pleading inconsistent claims; AFSCME Council 25 v. Faust Pub. Library; Statutory conversion; Head v. Phillips Camper Sales & Rental, Inc.; Fraud; City of Novi v. Robert Adell Children’s Funded Trust; Dutkiewicz v. Bartkowiak; MCR 2.112(B)(1); Equitable relief Summary: The court held that the purported contract was not barred by the SOF, and that plaintiff adequately pled an unjust enrichment claim. But he failed to state a claim for statutory conversion, and summary disposition for defendant was appropriate in that regard. While it was unclear why the trial court dismissed the fraud claim, it was clearly error because plaintiff sufficiently pled such a claim, and there were unresolved material factual issues. Finally, he conceded on appeal that “equitable relief” was not a separate cause of action and thus, it was appropriately dismissed. The case arose from an alleged loan that plaintiff made to defendant to redeem the property at issue. The court assumed for purposes of the opinion that the money given to defendant “was not intended as a gift, but rather was given pursuant to an oral agreement.” According to the complaint, the parties “orally agreed that plaintiff would provide defendant with money to redeem the property, and in return defendant would either repay plaintiff within one year or transfer the property to him. The complaint further alleged that defendant refused to repay defendant or transfer the property to him, thereby breaching the contract.” The issue was whether the SOF barred this purported contract. MCL 556.108 did “not bar that portion of the parties’ agreement in which defendant agreed to repay plaintiff within one year, as this statute deals solely with agreements for real property. The trial court appeared to recognize this initially, but then inexplicably dismissed the entire count. This was error.” But the question remained whether the SOF barred the portion of their “agreement in which defendant agreed to transfer the property to plaintiff if she failed to repay him.” Plaintiff contended that this portion was valid based on Guzorek. The court held “that the doctrine of part performance removed plaintiff’s claim as alleged in his complaint from the [SOF]. . . . In reliance on the parties’ oral agreement that defendant would transfer the property to plaintiff if she were unable to repay him, plaintiff gave defendant the money to redeem the property. Plaintiff therefore performed his obligation under the contract in reliance on the parties’ oral contract. Because ‘it would be fraud upon’ plaintiff to now allow defendant ‘to repudiate the contract,’ ‘equity will regard the contract as removed from the operation of the’” SOF. Affirmed in part, reversed in part, and remanded. Full Text Opinion Full Text Opinion This summary also appears under Real Property e-Journal #: 73681 Case: Russell v. Settipani Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Quiet title & breach of contract; MCR 3.411(B)(2); MCR 3.411(C)(2) & (3); Statute of frauds; In re Rudell Estate; MCL 566.106 & 108; The doctrine of partial performance; Dumas v. Auto Club Ins. Ass’n; Zander v. Ogihara Corp.; Promissory estoppel; Klein v. HP Pelzer Auto Sys., Inc.; Failure to cite supporting authority; Hooker v. Moore; Equitable estoppel; Lakeside Oakland Dev., LC v. H & J Beef Co.; Conagra, Inc. v. Farmers State Bank; Unjust enrichment; Bellevue Ventures, Inc. v. Morang-Kelly Inv., Inc.; Karaus v. Bank of NY Mellon; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Custom Data Solutions, Inc. v. Preferred Capital, Inc. Summary: The court held that the trial court erred in granting summary disposition to the Settipani defendants as to plaintiff’s quiet title, promissory estoppel, breach of contract, unjust enrichment, and fraud in the inducement claims. Thus, it reversed and remanded. The case arose from a dispute between plaintiff and defendants as to ownership of real property. Defendant-Momena Settipani and plaintiff resided together at the property. Plaintiff claimed that while he lived at the property, he made numerous improvements to it. He claimed that while he was out of town, defendant-John Czelada transferred title to the property to Momena as the sole owner. After this, she tried to evict plaintiff. He argued that the trial court erred when it dismissed his claims of quiet title and breach of contract because it erroneously construed the statute of frauds (SOF). The court agreed. The trial court determined that plaintiff failed to establish his superior interest in the property. It held that he “could not, as a matter of law, have a superior interest because the [SOF] barred his claim.” The court disagreed. The trial court erred in concluding that the alleged oral contract between Momena and plaintiff “could not be performed within one year. As alleged by plaintiff, the oral contract between plaintiff and Momena was to share an interest in the [property at issue] once plaintiff made all monthly payments to John. Although unlikely, there was a possibility that plaintiff could have paid a lump sum amount to John, or otherwise paid the purchase price within one year. . . . Thus, the contract could have been performed within one year, and the” trial court should not have rejected the partial-performance exception to the SOF. The trial court also held “that the part-performance doctrine did not apply because plaintiff failed to present any evidence that he actually partially performed on the alleged oral agreement. However, the trial court dismissed plaintiff’s claim of breach of contract and quiet title under MCR 2.116(C)(8)[.]” Plaintiff claimed that he paid $39,000 toward the purchase of the property, and “that he made permanent improvements to the property.” Thus, the court held that he sufficiently pled “an oral agreement, and partial performance under that agreement, such that summary disposition should not have been granted” to the Settipani defendants on these claims. Full Text Opinion

Criminal Law (3) Full Text Opinion e-Journal #: 73697 Case: People v. Loving Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gleicher, Stephens, and Cameron Issues: Motion to withdraw a guilty plea after sentencing; MCR 6.310(C); People v. Brown; Whether a guilty or nolo contendere plea was understanding, voluntary, & accurate; People v. Cole; MCR 6.302(A); Waivers of constitutional rights; Brady v. United States; Right to counsel; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; People v. Williams; Right to self-representation; Const. 1963, art. 1, § 13; Faretta v. California; Request to proceed in propria persona; MCR 6.005(D) & (E); People v. Anderson; People v. Russell; People v. Hicks Summary: Noting it was not satisfied that defendant knowingly, intelligently, and voluntarily waived his right to counsel, the court reversed and remanded to the circuit court so that it may comply with the procedure outlined in MCR 6.310(C)(4) and allow him to decide whether to withdraw his pleas, with the assistance of counsel. He pled nolo contendere to armed robbery and carjacking and was sentenced as a third-offense habitual offender to 10 to 20 years for each conviction. On appeal, the court agreed with defendant that the district court failed to comply with the second Anderson requirement and MCR 6.005(D)(1) when securing his initial waiver of his right to self-representation. It noted that the district court did not seek to evaluate his competence and did not advise him about the dangers and disadvantages of self-representation. The district court stated that “representing himself was analogous to [him] acting as his own doctor and performing surgery on himself.” Although this statement “certainly conveyed that proceeding in propria persona was perilous, the district court did not explain the risks that accompanied it.” It also did not make any findings about whether defendant made a “knowing, intelligent, and voluntary waiver of his right to counsel before [it] granted [his] request to represent himself.” Further, although defendant “had the opportunity to consult with appointed counsel as required by MCR 6.005(D)(2), the district court granted [his] request to represent himself without advising [him] in accordance with MCR 6.005(D)(1) regarding ‘the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation.’” Moreover, at the subsequent proceedings, “the district court and the circuit court did not advise [him] ‘of the continuing right to a lawyer’s assistance,’ and did not invite [him] to ‘reaffirm that a lawyer’s assistance [was] not wanted,’ despite being informed that [he] was representing himself.” Full Text Opinion Full Text Opinion e-Journal #: 73740 Case: People v. Schurz Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Sentencing; Scoring of OVs 3 & 19; MCL 777.33(1) & (2)(b); People v. Laidler; People v. Biddles; Consideration of the PSIR; People v. McChester; People v. Callon; MCL 777.49(c); People v. Hershey (On Remand); People v. Sours; People v. Passage; People v. Barbee; Interfering with the rendering of emergency services; People v. Portellos; Departure sentence; People v. Lockridge; Proportionality; People v. Milbourn; People v. Walden; People v. Steanhouse; People v. Carlson; People v. Dixon-Bey Summary: The court held that the trial court did not err in scoring 100 points for OV 3 and 10 points for OV 19, and did not base its sentencing decision on inaccurate information. Further, its upward departure sentence was reasonable, and it adequately articulated its reasons for the sentence. Defendant was sentenced to 10 to 40 years for his plea-based delivery of less than 50 grams of heroin conviction. He admitted he bought the drugs and shared them with his friend, C, who died of an overdose. In scoring OV 3, the trial court concluded that C “died from using the drugs defendant gave him. Defendant” contended that this determination “rested on inaccurate or false information because he used the same heroin and did not die. Defendant contends without evidentiary support that the drugs he gave [C] did not cause his overdose and death.” But there was no evidence that C “would have died without the use of the drugs given him by defendant. Although other drugs may have contributed to [C’s] death, the trial court could reasonably conclude that, but for the drugs defendant” provided him, C “would not have died. The trial court drew reasonable inferences from the record evidence that established that the drugs defendant gave [C] served as a cause in fact of his death. Defendant did not” offer any evidence calling that conclusion into question. The fact that “defendant, an admitted longtime heroin addict, did not die from the heroin he injected, does not require the conclusion that the drugs he gave [C] could not serve as a cause in fact of” his death. The court held that his 100-point score for OV 3 fit “squarely within the parameters of the statute.” As to OV 19, he did not “honestly answer the 911 dispatcher and the first responders’ questions.” He only told them that C “possibly used drugs but denied witnessing his doing any drugs. Defendant later admitted to the police that [C] overdosed inside defendant’s house” on the couch. But the first responders found C in the driveway when they arrived. The trial court could reasonably deduce that he moved C’s body, disturbing the crime scene. Thus, the 10-point score was proper. The court also held that “the trial court’s reasons for imposing an upward departure sentence were supported in the record and not adequately addressed by the sentencing guidelines.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 73766 Case: United States v. Bailey Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Gibbons, Siler, and Readler Issues: Sentencing; Enhancement for “mass marketing”; USSG § 2B1.1(b)(2); United States v. Heckel (7th Cir.); United States v. Olshan (11th Cir.); United States v. Fredette (10th Cir.); § 2B1.1 cmt. n.4(A); “Other means”; United States v. Mauskar (5th Cir.); “Leadership" enhancement (§ 3B1.1(a)); United States v. Anthony; United States v. Myers; United States v. Garcia; United States v. Olive; “Obstruction of justice” enhancement (§ 3C1.1); United States v. Thomas; United States v. Huntley (Unpub. 6th Cir.); Loss attributable to a defendant; §§ 2B1.1(b)(I) & 1B1.3(a)(1)(B); United States v. Moody (Unpub. 6th Cir.); United States v. Swiney; United States v. Donadeo; Statements by a co-conspirator; FRE 801(d)(2)(E); United States v. Adams (Unpub. 6th Cir.); United States v. Conrad; Testimony from a witness three times during the trial; FRE 611(a); United States v. Blankenship; Sufficiency of the evidence; Healthcare fraud; 18 USC § 1347(a); Conspiracy to commit healthcare fraud; United States v. Hughes; Illegal remuneration involving healthcare fraud; 42 USC § 1320a-7b(b)(2)(A); Wire fraud; 18 USC § 1343; Playing of an edited audio recording during the government’s case-in-chief; FRE 1006; United States v. Bray; United States v. Anderson (10th Cir.); Harmless error; United States v. Rayborn; Variance; United States v. Kuehne; United States v. Smith; Restitution; United States v. Bogart; 18 USC § 3664(e) Summary: In an issue of first impression in this circuit, the court held that “word-of-mouth solicitation” cannot be considered when applying the two-level sentencing enhancement for “mass marketing.” It also held that the district court incorrectly calculated the loss amount for which defendant-Calvin Bailey was responsible—and by extension, his USSG range—by holding him responsible for losses beyond those he agreed to jointly undertake. But it rejected defendants’ other challenges to their convictions and sentences. Defendant-Sandra Bailey, Calvin, and their son defendant-Bryan Bailey were convicted of conspiring to commit healthcare fraud and other related crimes. The court affirmed their convictions, but reversed on two sentencing issues. It upheld Sandra’s sentencing enhancements for a leadership role and obstruction of justice, but reversed the enhancement for mass marketing, holding that word-of-mouth solicitation cannot support it. The court found that “[f]raudulent face-to-face marketing proceeds at the normal pace of fraud and is already accounted for in the statutes criminalizing fraud; no enhancement is necessary." Calvin also challenged his sentence, arguing that the district court incorrectly calculated the amount of loss he was responsible for, and by extension, his USSG sentence range and his restitution amount. The court affirmed the restitution order, but agreed that the district court miscalculated his offense level. A district court is required to impose a 16-level increase if loss caused by the conduct exceeds $1,500,000. Calvin argued that, in calculating his loss amount, the district court considered conduct outside his relevant conduct. The court concluded that it used too broad a standard in determining his relevant conduct. It held in Donadeo that “‘jointly undertaken criminal activity for Sentencing Guidelines purposes is not as broad as conspiracy liability.’” Under the USSG, a “defendant can only be held accountable for the ‘the criminal activity that the particular defendant agreed to jointly undertake.’” But the district court did not err by considering the amount of loss caused by the entire conspiracy in determining his restitution. Thus, the court vacated these two defendants’ sentences and remanded for resentencing. Full Text Opinion

Employment & Labor Law (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 73700 Case: Letica Corp. v. Demeritt Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra Issues: Dispute over unused vacation & sick time; Principle that under Indiana law a vacation with pay is in effect additional wages; Die & Mold, Inc. v. Western (IN App.); Timing of wage payments under Indiana law; IN Code 22-2-5-1(b) & 2; Brown v. Butcher & Christian Consulting, Inc. (IN App.); Principle that under Indiana law sick leave is not a benefit that automatically vests when earned; Shorter v. Sullivan (IN App.); Determining whether sick leave benefits are wages on a case-by-case basis; Schwartz v. Gary Cmty. Sch. Corp. (IN App.); Effect of deposition testimony; Ortega v. Lenderink; Barlow v. John Crane-Houdaille, Inc.; Casey v. Auto Owners Ins. Co.; Principle that stipulations of fact are binding but stipulations of law are not; Staff v. Marder Summary: The court held that the trial court did not err by granting summary disposition for plaintiff-former employer in this declaratory action involving defendant-former employee's request for unpaid vacation and sick time. After he resigned, defendant sought payment of his unused vacation and sick time. Plaintiff initially paid a prorated amount, but later sent a check for an annual amount after receiving a demand letter from his attorney. When defendant refused to cash it, plaintiff sought a declaratory judgment. Defendant counterclaimed for damages and attorney fees under Indiana law (he worked at plaintiff’s Indiana facility). The trial court found that defendant was not entitled to damages or attorney fees under Indiana law because he was paid all that he was owed. On appeal, the court rejected his argument that because plaintiff did not pay him for all of his unused vacation time until months later, he was entitled to damages and fees. Rather, because plaintiff tendered defendant a check "representing payment for 153 hours, in addition to the 7 hours he had already been paid, there were no ‘unpaid wages’ under Indiana Law.” There was no dispute that plaintiff “paid defendant the equivalent of 160 hours of vacation time before defendant filed his counterclaim. Thus, under Brown, there were no unpaid wages” triggering the penalty provisions of the relevant Indiana statute. The trial court also did not err in determining “that defendant was only entitled to 160 hours of unused vacation time as of the date of his resignation, not 167 hours.” As to payment for unused sick time, the court again agreed with the trial court that “under Indiana law, plaintiff was not obligated to pay for unused sick time when its employees separated from the company.” Plaintiff did not allow employees to convert vacation time into sick time, and did not have a policy of paying for unused sick time upon separation. Finally, the trial court did not err when it found defendant was precluded from seeking more than 160 hours of vacation pay because he admitted during his deposition he was only seeking payment for that time. There was “no evidence from which it might be inferred that defendant’s deposition statement was inadvertent or mistaken.” Because the statement described the factual circumstances underlying the claim rather than the legal theory forming the basis of the claim, the admission was binding. Affirmed. Full Text Opinion

Healthcare Law (1) Full Text Opinion This summary also appears under Insurance e-Journal #: 73773 Case: Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI Court: Michigan Court of Appeals ( Published Opinion ) Judges: Markey, Tukel, and Gadola Issues: Dispute involving personal protection insurance benefits under the No-Fault Act (MCL 500.3101 et seq.); MCL 500.3105(1); Whether evidence of third-party payments is relevant to the issue of the reasonableness of a healthcare provider’s charges; MCL 500.3107(1)(a); MCL 500.3157-3159; Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.; Bronson Methodist Hosp. v. Auto-Owners Ins. Co.; McGill v. Auto Ass’n of MI; Hofmann v. Auto Club Ins. Ass’n; Munson Med. Ctr. v. Auto Club Ins. Ass’n; Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n; Johnson v. Michigan Mut. Ins. Co.; Holland v. Trinity Health Care Corp.; Mercy Mt. Clemens Corp. v. Auto Club Ins Ass’n; Hardrick v. Auto Club Ins. Ass’n; Discovery; Cruz v. State Farm Mut. Auto. Ins. Co. Summary: Holding that evidence of third-party payments may be relevant to the issue of whether plaintiff-healthcare provider’s charges were reasonable, the court reversed the denial of defendant-insurer’s motion in limine and remanded. It declined to consider plaintiff’s motion for attorney fees, noting that such an award would be premature. Defendant paid 80% of plaintiff’s charges for medical services it provided to defendant’s insured, but refused to pay the remainder on the basis that the total amount billed was unreasonable. Plaintiff sued, seeking payment of the balance. The trial court denied defendant’s motion in limine, in which it contended that evidence of third-party payments was relevant to the issue of the reasonableness of plaintiff’s charges. On appeal, the court held that “nothing in the plain language of § 3107(1)(a) or § 3157 precludes consideration of third-party payments when determining a no-fault insurer’s liability for reasonable charges.” It then rejected plaintiff’s argument that, even if this evidence was relevant, it should be excluded because it was not discoverable under §§ 3158 and 3159. “While this information may not be obtainable directly from [plaintiff] under §§ 3158 and 3159, nothing in the No-Fault Act prevents [defendant] from introducing publicly available data with the proper foundation.” The court concluded that “evidence regarding third-party payments may be relevant and admissible for purposes of assessing reasonableness under § 3107(1)(a) and § 3157. And the trial court’s blanket exclusion of this evidence constituted an error of law amounting to an abuse of discretion.” The court made clear that it did “not hold as a matter of law that the evidence offered by [defendant was] relevant and admissible; rather,” it reversed the trial court’s ruling and remanded “for the trial court to make the determination in the first instance under the proper legal framework.” The trial court had “not yet considered the relevance of the specific data in question to the particular healthcare charges at issue in this case that were billed in 2016,” or addressed the expert’s particular methodologies in analyzing that data. “The record must also be developed with respect to the precise cost information [defendant] seeks to discover and whether the cost information meets the standards in Bronson.” Finally, under the circumstances, the court did not consider whether the trial court erred by denying plaintiff’s motion for attorney fees under MCL 500.3148. Full Text Opinion

Insurance (3) Full Text Opinion This summary also appears under Healthcare Law e-Journal #: 73773 Case: Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI Court: Michigan Court of Appeals ( Published Opinion ) Judges: Markey, Tukel, and Gadola Issues: Dispute involving personal protection insurance benefits under the No-Fault Act (MCL 500.3101 et seq.); MCL 500.3105(1); Whether evidence of third-party payments is relevant to the issue of the reasonableness of a healthcare provider’s charges; MCL 500.3107(1)(a); MCL 500.3157-3159; Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.; Bronson Methodist Hosp. v. Auto-Owners Ins. Co.; McGill v. Auto Ass’n of MI; Hofmann v. Auto Club Ins. Ass’n; Munson Med. Ctr. v. Auto Club Ins. Ass’n; Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n; Johnson v. Michigan Mut. Ins. Co.; Holland v. Trinity Health Care Corp.; Mercy Mt. Clemens Corp. v. Auto Club Ins Ass’n; Hardrick v. Auto Club Ins. Ass’n; Discovery; Cruz v. State Farm Mut. Auto. Ins. Co. Summary: Holding that evidence of third-party payments may be relevant to the issue of whether plaintiff-healthcare provider’s charges were reasonable, the court reversed the denial of defendant-insurer’s motion in limine and remanded. It declined to consider plaintiff’s motion for attorney fees, noting that such an award would be premature. Defendant paid 80% of plaintiff’s charges for medical services it provided to defendant’s insured, but refused to pay the remainder on the basis that the total amount billed was unreasonable. Plaintiff sued, seeking payment of the balance. The trial court denied defendant’s motion in limine, in which it contended that evidence of third-party payments was relevant to the issue of the reasonableness of plaintiff’s charges. On appeal, the court held that “nothing in the plain language of § 3107(1)(a) or § 3157 precludes consideration of third-party payments when determining a no-fault insurer’s liability for reasonable charges.” It then rejected plaintiff’s argument that, even if this evidence was relevant, it should be excluded because it was not discoverable under §§ 3158 and 3159. “While this information may not be obtainable directly from [plaintiff] under §§ 3158 and 3159, nothing in the No-Fault Act prevents [defendant] from introducing publicly available data with the proper foundation.” The court concluded that “evidence regarding third-party payments may be relevant and admissible for purposes of assessing reasonableness under § 3107(1)(a) and § 3157. And the trial court’s blanket exclusion of this evidence constituted an error of law amounting to an abuse of discretion.” The court made clear that it did “not hold as a matter of law that the evidence offered by [defendant was] relevant and admissible; rather,” it reversed the trial court’s ruling and remanded “for the trial court to make the determination in the first instance under the proper legal framework.” The trial court had “not yet considered the relevance of the specific data in question to the particular healthcare charges at issue in this case that were billed in 2016,” or addressed the expert’s particular methodologies in analyzing that data. “The record must also be developed with respect to the precise cost information [defendant] seeks to discover and whether the cost information meets the standards in Bronson.” Finally, under the circumstances, the court did not consider whether the trial court erred by denying plaintiff’s motion for attorney fees under MCL 500.3148. Full Text Opinion Full Text Opinion This summary also appears under Contracts e-Journal #: 73712 Case: Clauss v. State Farm Mut. Auto. Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Breach of contract action to recover personal protection insurance (PIP) benefits; Principle that fraud claims against insurers are not subject to the no-fault one-year-back rule; MCL 500.3145(1); Cooper v. Auto Club Ins. Ass’n; Whether a release of liability is valid; Genesee Foods Servs., Inc. v. Meadowbrook, Inc.; Principle that an agreement to settle a pending lawsuit is a contract; Reicher v. SET Enters., Inc.; Affect of the words “any & all” in a release; Dresden v. Detroit Macomb Hosp. Corp.; Heritage Res., Inc. v. Caterpillar Fin. Serv. Corp. Summary: The court held that the trial court did not err by dismissing with prejudice plaintiffs’ claim seeking PIP benefits from defendant-insurer. Plaintiffs sued defendant seeking PIP benefits for the care of their daughter, who suffered serious injuries when she was struck by a motor vehicle while crossing the street. The trial court granted defendant summary disposition and dismissed plaintiffs’ lawsuit because a release precluded them from asserting further claims against defendant. On appeal, the court rejected plaintiffs’ argument that the trial court erred by dismissing their fraud claim because the release did not bar it and Cooper permitted it. It noted that because the release was unambiguous the trial court had to enforce it as written according to its plain and ordinary terms. The release “plainly required plaintiffs to release and forever discharge [defendant] from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and/or compensation in any way related to” the accident, and “in no way excluded any claims from release or preserved any claims that preexisted the date on which plaintiffs executed” it. It also “necessarily included the claims asserted in plaintiffs’ [current] complaint related to [defendant’s] alleged breach of contract and claims stemming from the alleged . . . misrepresentation regarding payment of PIP benefits to plaintiffs that duplicated payments made by their medical insurer.” Finally, the court found that “[b]ecause this case presents a distinctly different issue, Cooper is inapposite. Cooper never discussed or decided the issue presented in this case and plainly does not stand for the proposition that a claim released under the broad terms of a release may be raised despite having been waived and released by contract.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 73690 Case: Green v. Meemic Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Gleicher, Stephens, and Cameron Issues: Policy rescission; Mutual rescission; Young v. Rice; Wall v. Zynda Summary: The court held that material fact questions precluded summary disposition for defendant-insurer (Meemic) on material misrepresentation grounds. But the trial court “incorrectly rejected Meemic’s rescission defense by reasoning that Meemic failed to present ‘sufficient evidence that’” plaintiff-Green had actually received the rescission letter when she deposited the refund check. Almost one year after Green and plaintiff-Collins filed this first-party no-fault action, Meemic sought to rescind the policy. “Meemic sent a letter to Green’s mother, the named insured, declaring the policy rescinded and enclosing a refund check for the full amount of the premiums paid. Green endorsed the check and deposited the proceeds on her mother’s behalf. By doing so, Green and her mother consented to the rescission, thereby releasing Meemic from its contractual obligations. This meant that no insurance coverage existed at the time of plaintiffs’ accident.” The court noted that Meemic presented the trial “court a copy of the letter it sent to Green’s mother.” Once it produced “evidence of having mailed the letter and the check, Green bore the burden of coming forward with evidence refuting Meemic’s claim.” Green did not present “evidence that the letter and enclosed check went undelivered to their intended recipient: her mother. Her affidavit does not include a denial that the letter arrived.” She admitted to depositing the check. “Meemic’s letter explained in detail the reasons it sought to rescind the no-fault policy, and Meemic tendered a check for the premiums Green had paid. By signing the premium refund check, Green signaled her acquiescence to the policy’s rescission.” This evidence compelled “the determination that Green and Meemic mutually agreed to rescind the no-fault policy under which plaintiffs sought benefits, extinguishing their claims.” The court held that by “refunding the premiums Green or her mother had paid, Meemic restored the status quo. As the contract was legally and mutually rescinded, plaintiffs no longer had any ground to pursue their lawsuit against Meemic.” Reversed. Full Text Opinion

Litigation (2) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 73743 Case: Amman v. Chesaning Union Schs. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Gleicher, and Stephens Issues: Discovery; Consideration of affidavits not produced earlier pursuant to a scheduling order; MCR 2.401(B)(2)(a)(iii); Kemerko Clawson, LLC v. RXIV Inc.; The trial court’s discretion whether to sanction a party for noncompliance with a scheduling order; Duray Dev., LLC v. Perrin; Hearsay; MRE 801(c); A party’s own statement offered against that party; MRE 801(d)(2)(A); The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Tarlea v. Crabtree; Briggs v. Oakland Cnty.; Effect of ordinary negligence; Wood v. Detroit; The public building exception to governmental immunity; MCL 691.1406; Renny v. Department of Transp.; Johnson v. City of Detroit; A “fixture”; Fane v. Detroit Library Comm’n; Velmer v. Baraga Area Sch.; Carmack v. Macomb Cnty. Cmty. Coll. Summary: The court held that the trial court did not abuse its discretion in considering affidavits plaintiffs submitted despite their late production, and that they did not contain hearsay. As to the gross negligence claims, it held that defendant-Vincke was entitled to governmental immunity but defendant-Busch was not. Finally, the claims against defendants-school district and high school under the public building exception were barred because the piano and dolly at issue were not fixtures of the building. Thus, the court affirmed the denial of summary disposition to Busch, reversed it as to Vincke and the school defendants, and remanded. Plaintiff-high school student was injured while in choir class “when a piano fell off a dolly and onto her left foot.” Busch was the choir teacher. Vincke was the high school principal. Defendants argued that the trial court abused its discretion by considering three student affidavits in denying their summary disposition motion because plaintiffs violated its discovery scheduling order by not producing them earlier. But defendants failed “to show what harm befell them from the late production of the affidavits that would warrant the sanction of excluding” them. The students were on plaintiffs’ supplemental witness list as potential trial witnesses and defendants knew of them, and had the ability to contact them, long before the end of discovery. The court also rejected defendants’ hearsay argument, given that the statements from Busch that two students asserted they heard “were not offered to prove that the piano was, in fact, wobbly or unstable, but rather were offered to prove that Busch believed those assertions to be true.” Further, if offered against Busch, they were admissible under MRE 801(d)(2)(A). The court also held that reasonable minds could differ as to whether he was grossly negligent, in light of (1) the students’ statements he said before the accident “that the piano was unstable and that Busch was planning to tell, or already had told, the front office” about it and (2) deposition testimony that Busch told the injured student’s mother he had told other teachers “‘this is an accident waiting to happen’ and that the piano needed to be bolted down.” But Vincke was not grossly negligent for not calling an ambulance. Full Text Opinion Full Text Opinion This summary also appears under Employment & Labor Law e-Journal #: 73700 Case: Letica Corp. v. Demeritt Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Ronayne Krause, Sawyer, and Boonstra Issues: Dispute over unused vacation & sick time; Principle that under Indiana law a vacation with pay is in effect additional wages; Die & Mold, Inc. v. Western (IN App.); Timing of wage payments under Indiana law; IN Code 22-2-5-1(b) & 2; Brown v. Butcher & Christian Consulting, Inc. (IN App.); Principle that under Indiana law sick leave is not a benefit that automatically vests when earned; Shorter v. Sullivan (IN App.); Determining whether sick leave benefits are wages on a case-by-case basis; Schwartz v. Gary Cmty. Sch. Corp. (IN App.); Effect of deposition testimony; Ortega v. Lenderink; Barlow v. John Crane-Houdaille, Inc.; Casey v. Auto Owners Ins. Co.; Principle that stipulations of fact are binding but stipulations of law are not; Staff v. Marder Summary: The court held that the trial court did not err by granting summary disposition for plaintiff-former employer in this declaratory action involving defendant-former employee's request for unpaid vacation and sick time. After he resigned, defendant sought payment of his unused vacation and sick time. Plaintiff initially paid a prorated amount, but later sent a check for an annual amount after receiving a demand letter from his attorney. When defendant refused to cash it, plaintiff sought a declaratory judgment. Defendant counterclaimed for damages and attorney fees under Indiana law (he worked at plaintiff’s Indiana facility). The trial court found that defendant was not entitled to damages or attorney fees under Indiana law because he was paid all that he was owed. On appeal, the court rejected his argument that because plaintiff did not pay him for all of his unused vacation time until months later, he was entitled to damages and fees. Rather, because plaintiff tendered defendant a check "representing payment for 153 hours, in addition to the 7 hours he had already been paid, there were no ‘unpaid wages’ under Indiana Law.” There was no dispute that plaintiff “paid defendant the equivalent of 160 hours of vacation time before defendant filed his counterclaim. Thus, under Brown, there were no unpaid wages” triggering the penalty provisions of the relevant Indiana statute. The trial court also did not err in determining “that defendant was only entitled to 160 hours of unused vacation time as of the date of his resignation, not 167 hours.” As to payment for unused sick time, the court again agreed with the trial court that “under Indiana law, plaintiff was not obligated to pay for unused sick time when its employees separated from the company.” Plaintiff did not allow employees to convert vacation time into sick time, and did not have a policy of paying for unused sick time upon separation. Finally, the trial court did not err when it found defendant was precluded from seeking more than 160 hours of vacation pay because he admitted during his deposition he was only seeking payment for that time. There was “no evidence from which it might be inferred that defendant’s deposition statement was inadvertent or mistaken.” Because the statement described the factual circumstances underlying the claim rather than the legal theory forming the basis of the claim, the admission was binding. Affirmed. Full Text Opinion

Municipal (1) Full Text Opinion This summary also appears under Real Property e-Journal #: 73772 Case: Hartfiel v. City of Eastpointe Court: Michigan Court of Appeals ( Published Opinion ) Judges: Stephens, Gleicher, and Cameron Issues: Municipal water & sewage liens; MCL 123.165; The Revenue Bond Act (MCL 141.101 et seq.); MCL 141.121(3); NL Ventures VI Farmington, LLC v. Livonia; MCL 123.162; Transfer of the charges to the tax roll; Enforcement of the statutory lien; MCL 123.163 Summary: The court held that a landlord is required by MCL 123.165 and 141.121 “to file a new water affidavit with each lease in order to prevent charges for water arrears from becoming” the landlord’s responsibility and a lien on the property. But defendant-city lacked the authority to transfer unpaid water charges to the tax rolls before the six-month period set forth in MCL 141.121(3) expired. As there was no question of fact that plaintiff-landlord did not file new water affidavits with subsequent leases, defendant was authorized to place liens on his rental properties. However, its procedure for entering them on the tax roll was unlawful because it transferred the charges to his “tax bills less than 60 days after the charges accrued.” Thus, the trial court erred in granting defendant summary disposition on plaintiff’s claims for quiet title and a writ of mandamus related “to defendant’s procedure for placement of the arrears on the tax rolls.” He argued that “the trial court erred in its interpretation of MCL 123.165 and MCL 141.121(3) by requiring a new affidavit for each leasehold period contrary to the explicit language of the statute.” The court disagreed, holding that in order to “be entitled to protection from liens beyond the date the subject lease expires, the lessor must provide the applicable governmental official with a new notice regarding the terms of subsequent leases and, under MCL 123.165, that notice must be in the form of an affidavit that identifies the expiration date of the lease. Plaintiff admitted that he filed only one water affidavit for each of his rental properties.” Given that the charges in question were incurred after the affidavits and leases expired, “defendant was not prohibited from imposing a lien for those charges. The fact that plaintiff may have filed, or attempted to file, subsequent leases with defendant is of no consequence because MCL 123.165 explicitly requires the lessor who wishes to avoid a lien for a tenant’s charges to file an affidavit, which plaintiff did not do.” But the court agreed with him that “defendant could not lawfully transfer the charges to the tax roll because the charges involved in this case had been delinquent for less than six months.” Affirmed in part, reversed in part, and remanded to refund plaintiff the charges paid due to the liens being unlawfully placed on the tax rolls before the six-month period expired. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 73743 Case: Amman v. Chesaning Union Schs. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Gleicher, and Stephens Issues: Discovery; Consideration of affidavits not produced earlier pursuant to a scheduling order; MCR 2.401(B)(2)(a)(iii); Kemerko Clawson, LLC v. RXIV Inc.; The trial court’s discretion whether to sanction a party for noncompliance with a scheduling order; Duray Dev., LLC v. Perrin; Hearsay; MRE 801(c); A party’s own statement offered against that party; MRE 801(d)(2)(A); The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(2); “Gross negligence”; MCL 691.1407(8)(a); Tarlea v. Crabtree; Briggs v. Oakland Cnty.; Effect of ordinary negligence; Wood v. Detroit; The public building exception to governmental immunity; MCL 691.1406; Renny v. Department of Transp.; Johnson v. City of Detroit; A “fixture”; Fane v. Detroit Library Comm’n; Velmer v. Baraga Area Sch.; Carmack v. Macomb Cnty. Cmty. Coll. Summary: The court held that the trial court did not abuse its discretion in considering affidavits plaintiffs submitted despite their late production, and that they did not contain hearsay. As to the gross negligence claims, it held that defendant-Vincke was entitled to governmental immunity but defendant-Busch was not. Finally, the claims against defendants-school district and high school under the public building exception were barred because the piano and dolly at issue were not fixtures of the building. Thus, the court affirmed the denial of summary disposition to Busch, reversed it as to Vincke and the school defendants, and remanded. Plaintiff-high school student was injured while in choir class “when a piano fell off a dolly and onto her left foot.” Busch was the choir teacher. Vincke was the high school principal. Defendants argued that the trial court abused its discretion by considering three student affidavits in denying their summary disposition motion because plaintiffs violated its discovery scheduling order by not producing them earlier. But defendants failed “to show what harm befell them from the late production of the affidavits that would warrant the sanction of excluding” them. The students were on plaintiffs’ supplemental witness list as potential trial witnesses and defendants knew of them, and had the ability to contact them, long before the end of discovery. The court also rejected defendants’ hearsay argument, given that the statements from Busch that two students asserted they heard “were not offered to prove that the piano was, in fact, wobbly or unstable, but rather were offered to prove that Busch believed those assertions to be true.” Further, if offered against Busch, they were admissible under MRE 801(d)(2)(A). The court also held that reasonable minds could differ as to whether he was grossly negligent, in light of (1) the students’ statements he said before the accident “that the piano was unstable and that Busch was planning to tell, or already had told, the front office” about it and (2) deposition testimony that Busch told the injured student’s mother he had told other teachers “‘this is an accident waiting to happen’ and that the piano needed to be bolted down.” But Vincke was not grossly negligent for not calling an ambulance. Full Text Opinion

Open Meetings Act (1) Full Text Opinion e-Journal #: 73752 Case: Cusumano v. Dunn Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: The Open Meetings Act (OMA) (MCL 15.261 et seq.); Exclusion from a meeting for a “breach of the peace”; MCL 15.263(6); People v. Bartz; Davis v. Burgess; People v. Loveridge; Yerkes v. Smith; In re Gosnell; Dearborn Heights v. Bellock; City of Owosso v. Pouillon; Regents of Univ of MI v. Washtenaw Cnty. Coal. Against Apartheid Summary: Concluding that “seriously disruptive conduct involving abusive, disorderly, dangerous, aggressive, or provocative speech and behaviors tending to threaten or incite violence” is necessary to constitute a “breach of the peace,” the court reversed summary disposition for defendant-township supervisor in this OMA case. It found that the record did not support the trial court’s conclusion that, as a matter of law, plaintiff breached the peace, justifying his expulsion from a township Board of Trustees meeting under MCL 15.263(6). Rather, there were genuine issues of material fact. After reading a letter into the record related to a quo warranto action plaintiff filed against another trustee, defendant “directly addressed plaintiff, who was sitting in the public seating area of the board meeting room: ‘So, thank you, Mr. Cusumano, you probably have cost us another few thousand dollars.’” While she did not ask him to respond, he contended that her comment was “an invitation to” do so. He also asserted that the record showed “he refrained from making an abusive, dangerous, aggressive, or provocative outburst.” Rather, he argued that he went to the lectern to address the Board about “the matter raised by defendant and calmly attempted to clarify what he considered incorrect in” her characterization of his lawsuit. She declined to recognize him “and admonished him to be seated. Plaintiff briefly continued speaking before acquiescing.” Defendant asked a deputy to remove him from the meeting, and plaintiff left with the deputy. He alleged that defendant violated MCL 15.263(6). After reviewing several cases, the court determined that, “under Michigan law a ‘breach of the peace’ goes well beyond behavior acceptable in a civil society.” It also found that “reasonable minds might differ on whether plaintiff committed a breach of the peace.” While defendant asserted that plaintiff violated Board policy or rules, the record revealed that “the Board never formally adopted rules governing the manner in which its meetings were to be conducted. No evidence indicates the Board ever established and recorded rules as permitted under MCL 15.263(5) to limit public comment. Defendant cannot rely upon unwritten rules or policy for her action. Further,” this provision “does not nullify MCL 15.263(6)’s prohibition against exclusion of any person from a public meeting except for a ‘breach of the peace’ at the meeting.” Remanded. Full Text Opinion

Real Property (3) Full Text Opinion This summary also appears under Municipal e-Journal #: 73772 Case: Hartfiel v. City of Eastpointe Court: Michigan Court of Appeals ( Published Opinion ) Judges: Stephens, Gleicher, and Cameron Issues: Municipal water & sewage liens; MCL 123.165; The Revenue Bond Act (MCL 141.101 et seq.); MCL 141.121(3); NL Ventures VI Farmington, LLC v. Livonia; MCL 123.162; Transfer of the charges to the tax roll; Enforcement of the statutory lien; MCL 123.163 Summary: The court held that a landlord is required by MCL 123.165 and 141.121 “to file a new water affidavit with each lease in order to prevent charges for water arrears from becoming” the landlord’s responsibility and a lien on the property. But defendant-city lacked the authority to transfer unpaid water charges to the tax rolls before the six-month period set forth in MCL 141.121(3) expired. As there was no question of fact that plaintiff-landlord did not file new water affidavits with subsequent leases, defendant was authorized to place liens on his rental properties. However, its procedure for entering them on the tax roll was unlawful because it transferred the charges to his “tax bills less than 60 days after the charges accrued.” Thus, the trial court erred in granting defendant summary disposition on plaintiff’s claims for quiet title and a writ of mandamus related “to defendant’s procedure for placement of the arrears on the tax rolls.” He argued that “the trial court erred in its interpretation of MCL 123.165 and MCL 141.121(3) by requiring a new affidavit for each leasehold period contrary to the explicit language of the statute.” The court disagreed, holding that in order to “be entitled to protection from liens beyond the date the subject lease expires, the lessor must provide the applicable governmental official with a new notice regarding the terms of subsequent leases and, under MCL 123.165, that notice must be in the form of an affidavit that identifies the expiration date of the lease. Plaintiff admitted that he filed only one water affidavit for each of his rental properties.” Given that the charges in question were incurred after the affidavits and leases expired, “defendant was not prohibited from imposing a lien for those charges. The fact that plaintiff may have filed, or attempted to file, subsequent leases with defendant is of no consequence because MCL 123.165 explicitly requires the lessor who wishes to avoid a lien for a tenant’s charges to file an affidavit, which plaintiff did not do.” But the court agreed with him that “defendant could not lawfully transfer the charges to the tax roll because the charges involved in this case had been delinquent for less than six months.” Affirmed in part, reversed in part, and remanded to refund plaintiff the charges paid due to the liens being unlawfully placed on the tax rolls before the six-month period expired. Full Text Opinion Full Text Opinion This summary also appears under Contracts e-Journal #: 73714 Case: Declercq v. Lair Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Whether the alleged contract was barred by statute of frauds (SOF); MCL 556.108; Guzorek v. Williams; The doctrine of part performance; Dumas v. Auto Club Ins. Ass’n; Unjust enrichment; Belle Isle Grill Corp. v. City of Detroit; Pleading inconsistent claims; AFSCME Council 25 v. Faust Pub. Library; Statutory conversion; Head v. Phillips Camper Sales & Rental, Inc.; Fraud; City of Novi v. Robert Adell Children’s Funded Trust; Dutkiewicz v. Bartkowiak; MCR 2.112(B)(1); Equitable relief Summary: The court held that the purported contract was not barred by the SOF, and that plaintiff adequately pled an unjust enrichment claim. But he failed to state a claim for statutory conversion, and summary disposition for defendant was appropriate in that regard. While it was unclear why the trial court dismissed the fraud claim, it was clearly error because plaintiff sufficiently pled such a claim, and there were unresolved material factual issues. Finally, he conceded on appeal that “equitable relief” was not a separate cause of action and thus, it was appropriately dismissed. The case arose from an alleged loan that plaintiff made to defendant to redeem the property at issue. The court assumed for purposes of the opinion that the money given to defendant “was not intended as a gift, but rather was given pursuant to an oral agreement.” According to the complaint, the parties “orally agreed that plaintiff would provide defendant with money to redeem the property, and in return defendant would either repay plaintiff within one year or transfer the property to him. The complaint further alleged that defendant refused to repay defendant or transfer the property to him, thereby breaching the contract.” The issue was whether the SOF barred this purported contract. MCL 556.108 did “not bar that portion of the parties’ agreement in which defendant agreed to repay plaintiff within one year, as this statute deals solely with agreements for real property. The trial court appeared to recognize this initially, but then inexplicably dismissed the entire count. This was error.” But the question remained whether the SOF barred the portion of their “agreement in which defendant agreed to transfer the property to plaintiff if she failed to repay him.” Plaintiff contended that this portion was valid based on Guzorek. The court held “that the doctrine of part performance removed plaintiff’s claim as alleged in his complaint from the [SOF]. . . . In reliance on the parties’ oral agreement that defendant would transfer the property to plaintiff if she were unable to repay him, plaintiff gave defendant the money to redeem the property. Plaintiff therefore performed his obligation under the contract in reliance on the parties’ oral contract. Because ‘it would be fraud upon’ plaintiff to now allow defendant ‘to repudiate the contract,’ ‘equity will regard the contract as removed from the operation of the’” SOF. Affirmed in part, reversed in part, and remanded. Full Text Opinion Full Text Opinion This summary also appears under Contracts e-Journal #: 73681 Case: Russell v. Settipani Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Meter, and O’Brien Issues: Quiet title & breach of contract; MCR 3.411(B)(2); MCR 3.411(C)(2) & (3); Statute of frauds; In re Rudell Estate; MCL 566.106 & 108; The doctrine of partial performance; Dumas v. Auto Club Ins. Ass’n; Zander v. Ogihara Corp.; Promissory estoppel; Klein v. HP Pelzer Auto Sys., Inc.; Failure to cite supporting authority; Hooker v. Moore; Equitable estoppel; Lakeside Oakland Dev., LC v. H & J Beef Co.; Conagra, Inc. v. Farmers State Bank; Unjust enrichment; Bellevue Ventures, Inc. v. Morang-Kelly Inv., Inc.; Karaus v. Bank of NY Mellon; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Custom Data Solutions, Inc. v. Preferred Capital, Inc. Summary: The court held that the trial court erred in granting summary disposition to the Settipani defendants as to plaintiff’s quiet title, promissory estoppel, breach of contract, unjust enrichment, and fraud in the inducement claims. Thus, it reversed and remanded. The case arose from a dispute between plaintiff and defendants as to ownership of real property. Defendant-Momena Settipani and plaintiff resided together at the property. Plaintiff claimed that while he lived at the property, he made numerous improvements to it. He claimed that while he was out of town, defendant-John Czelada transferred title to the property to Momena as the sole owner. After this, she tried to evict plaintiff. He argued that the trial court erred when it dismissed his claims of quiet title and breach of contract because it erroneously construed the statute of frauds (SOF). The court agreed. The trial court determined that plaintiff failed to establish his superior interest in the property. It held that he “could not, as a matter of law, have a superior interest because the [SOF] barred his claim.” The court disagreed. The trial court erred in concluding that the alleged oral contract between Momena and plaintiff “could not be performed within one year. As alleged by plaintiff, the oral contract between plaintiff and Momena was to share an interest in the [property at issue] once plaintiff made all monthly payments to John. Although unlikely, there was a possibility that plaintiff could have paid a lump sum amount to John, or otherwise paid the purchase price within one year. . . . Thus, the contract could have been performed within one year, and the” trial court should not have rejected the partial-performance exception to the SOF. The trial court also held “that the part-performance doctrine did not apply because plaintiff failed to present any evidence that he actually partially performed on the alleged oral agreement. However, the trial court dismissed plaintiff’s claim of breach of contract and quiet title under MCR 2.116(C)(8)[.]” Plaintiff claimed that he paid $39,000 toward the purchase of the property, and “that he made permanent improvements to the property.” Thus, the court held that he sufficiently pled “an oral agreement, and partial performance under that agreement, such that summary disposition should not have been granted” to the Settipani defendants on these claims. Full Text Opinion