Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Applicability of a Sales Representative Agreement & its arbitration provision; Subrogation; Atlanta Int’l Ins. Co. v. Bell; Auto-Owners Ins. Co. v. Amoco Prod. Co.; Distinguishing Auto Club Ins. Ass’n v. New York Life Ins. Co.; Elements of a negligence claim; Schultz v. Consumers Power Co.
The court held that defendant-Meemic was not entitled to invoke the subrogation doctrine and that its right to sue plaintiff-Fisk Insurance Agency arose under their Sales Representative Agreement (SRA). Further, under the plain terms of the SRA, the matter had to be returned to arbitration. Thus, Fisk’s motion for a declaratory judgment and summary disposition was properly granted. This case arose after a nonparty (W) purchased a Meemic homeowners policy through Fisk, a sales agent for Meemic. She was living in the home before closing on its purchase when a fire destroyed it. The seller’s insurer (F) notified Meemic and W that W was liable. Meemic settled with F, and then sued Fisk to recover what it paid on W’s behalf, asserting that Fisk should not have sold W the policy. That case was dismissed after the parties agreed to arbitration, but the arbitration panel apparently determined that neither the SRA nor its arbitration provision applied. Fisk then filed this declaratory action, requesting the trial “court to summarily determine and declare whether the parties’ dispute was subject to the terms of the arbitration agreement” in the SRA. Meemic argued on appeal that the trial court erred because the SRA, “including its arbitration provision, did not apply to Meemic’s subrogation claims since [W], the subrogor, was not a party to” the SRA. The court disagreed. While Meemic contended that W could have asserted a negligence claim against Fisk, the court concluded that such a claim would fail because she “suffered no damages that were proximately caused by the Fisk Agency’s breach of legal duty owed to her.” Although F held W responsible for the fire, Meemic settled that claim and paid F $100,000 pursuant to W’s policy. W did not personally pay F. There was no evidence that W paid F any of her own money due to the fire. The policy she purchased from Fisk “actually insulated her from personal liability with regard to the fire and resulting damage, i.e., she got what she was entitled to receive.” Thus, W did not have any claim to enforce against Fisk so there was no claim for Meemic to enforce against Fisk through equitable subrogation. The case on which Meemic relied, Auto Club, was factually distinguishable and did not support its position. Affirmed.
Garnishment (MCL 600.4001 et seq.); MCL 600.4011; Ward v. Detroit Auto. Inter.-Ins. Exch.; Westland Park Apts. v. Ricco, Inc.; Nationsbanc Mtg. Corp. of GA v. Luptak; Postjudgment garnishments; MCR 3.101(B)(1)-(2); Periodic garnishment; MCL 600.4012(1); MCR 3.101(A)(4); MCR 3.101(B)(1)(a); The injunction provision; MCR 3.101(E)(3)(d); Royal York of Plymouth Ass’n v. Coldwell Banker Schweitzer Real Estate Servs.; Writ; MCR 3.101(I)(1); Garnishee liability; MCR 3.101(G)(1) & (2); MCR 3.101(O)(1); Chayka v. Brown; Effect of a bankruptcy automatic stay on garnishment proceedings; 11 USC § 362; MCR 3.101(K)(2)(b); Frederick v. Federal-Mogul Corp.; In re Buchanan (Bankr. GA); Scope of discovery in garnishment proceedings; MCR 3.101(L)(1); MCR 3.101(M)(2); MCR 3.101(T)(2)-(5); Decker v. Trux R Us, Inc.
The court held that the trial court erred by denying plaintiff’s request for a judgment on the basis it would not hold garnishee defendant (True North) personally liable for the full amount of payments made to defendant-subcontractor (Crater) in violation of a writ of garnishment. It also held that while Crater’s bankruptcy proceedings may stay the garnishment proceedings, the trial court failed to adequately address plaintiff’s argument that the payments were actually due to Crater’s painting businesses and not subject to the stay. Plaintiff served the writ to satisfy a judgment it obtained against Crater and his businesses. However, True North withheld only 25% of the funds it owed to Crater and paid him the rest. Plaintiff then sought to recover the remaining 75% from True North. Crater filed for bankruptcy. The trial court concluded it would not hold True North liable for the amount of payments made to Crater and that plaintiff needed to seek recovery from Crater in the bankruptcy court instead. It also granted True North’s motion for a protective order barring plaintiff from further discovery. On appeal, the court agreed with plaintiff that the trial court erred by denying it entry of judgment on the basis it would not hold True North liable for the amount that it paid to Crater in violation of the writ. “[T]he trial court denied plaintiff’s request for a judgment against True North because it had already paid Crater the garnished funds. Under such reasoning, a garnishee who violates a writ of garnishment by making payment directly to the defendant cannot be held liable because it is no longer in possession of an obligation owed to the defendant.” The court rejected this reasoning as “circular.” It next found that, to the extent the trial court ruled plaintiff had to “seek recovery from the bankruptcy trustee rather than seek collection through garnishment,” it erred and remand was required to “address plaintiff’s argument that the bankruptcy stay does not prevent further garnishment proceedings against True North because the payments made in violation of the writ were actually owed to [Crater’s businesses] and so not part of the bankruptcy estate.” Finally, the court held that if the trial court determines “the garnishment proceedings against True North are wholly precluded by the bankruptcy stay,” further discovery is unnecessary. But if it finds to the contrary, then it should decide “whether plaintiff’s request to depose of True North is warranted under the circumstances.” Reversed and remanded.
Constitutionality of Michigan’s parole eligibility statutes; The Legislature’s authority to provide criminal penalties; Const. 1963, art. 4, § 45; People v. Hegwood; The judiciary’s authority to impose sentences & administer the sentencing statutes; MCL 769.1(1); Individualized sentencing; People v. Lockridge; People v. Milbourn; Penalty for carjacking; MCL 750.529a(1); Effect of prior felonies; MCL 769.12(1)(b); Principle that there is no entitlement to parole; MCL 791.235; Jones v. Department of Corrs.; People v. Idziak; “Disciplinary time”; MCL 791.233c; MCL 800.34(5)(a); People v. Grant; Fourth-offense offender; MCL 769.12(4)(b); Parole eligibility; MCL 791.233(1)(d); MCL 791.234(2), (7), & (8); People v. Moore; People v. Merriweather; Effect of a parolable life sentence; People v. Johnson; People v. Carson; Due process; Grimes v. Van Hook-Williams; Washington v. Glucksberg; Hurst v. Department of Corrs. Parole Bd.; Greenholtz v. Inmates of the NE Penal & Corr. Complex; Glover v. Parole Bd.; Equal protection; People v. James; People v. Haynes; People v. Conat; People v. Groff; Hawkins v. Department of Corrs.; McGinnis v. Royster; Alvarez v. Straub (ED MI); Ughbanks v. Armstrong; People v. Nowak; Cruel or unusual punishment; Principle that a sentence within the guidelines range is presumptively proportionate & a proportionate sentence is not cruel or unusual; People v. Bowling
The court held that the trial court did not err by granting summary disposition for defendants-state and governor in this case concerning Michigan’s parole eligibility statutes. After his convictions and sentences for various offenses, plaintiff sought declaratory and injunctive relief. He challenged the constitutionality of certain “parole eligibility statutes because prisoners serving indeterminate sentences are not eligible for parole consideration until they have served their minimum term in contrast to prisoners sentenced to life imprisonment with the possibility of parole, who are eligible for parole after serving 10 or 15 years, and, if not paroled, discharged, or deceased, every 5 years thereafter.” He claimed these statutes violated his due process and equal protection rights, and inflicted cruel and unusual punishment. On appeal, the court rejected his due process argument, noting that because he had “no constitutionally protected liberty interest in being paroled before his valid sentence” expired, the trial court properly granted summary disposition of this claim. It also rejected his contention that the parole-eligibility statutes violated equal protection. “Assuming that criminal defendants sentenced to life imprisonment and those sentenced to a term of years are similarly-situated,” it held that “‘the Legislature could rationally conclude that it is appropriate to require a prisoner to serve the minimum term before being eligible for parole.’” Finally, the court concluded that because plaintiff had no right to parole, “the fact that he must serve his 25-year minimum sentence before he becomes parole eligible is not cruel or unusual punishment.” Affirmed.
Reinstatement of gun rights after a felony conviction; MCL 28.424(4)(b)(iii); Relevance of petitioner’s parole; People v. Clark; Probation violation; People v. Hendrick; Jurisdiction; Whether the prosecution had standing; Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ.; MCL 49.153; “Aggrieved party”; MCNA Ins. Co. v. Department of Tech., Mgmt. & Budget; Whether the prosecution was an interested party; Effect of the trial court’s decision to restore petitioner’s gun rights on his legal status under MCL 750.224f; Presumption the Legislature is aware of & considered the effect on all existing statutes in enacting new laws; Walen v. Department of Corr.; The adversarial system of adjudication; Barnard Mfg. Co., Inc. v. Gates Performance Eng’g, Inc.; United States v. Sineneng-Smith
Holding that (1) respondent-prosecution had standing and was an aggrieved party in this case in which petitioner was granted reinstatement of his gun rights after a felony conviction, and (2) he failed to meet the requirements for reinstatement, the court reversed the order granting reinstatement and remanded for entry of an order denying his petition. He pled guilty in 2001 to arson of woods and prairies. Respondent argued that the trial court erred in restoring his gun rights. Petitioner argued that the court lacked jurisdiction because respondent did not have standing and was not an aggrieved party. The court agreed with respondent and disagreed with petitioner. While he was correct that “prosecutors are not even referenced in the firearms rights restoration statute, MCL 28.424[,]” the court noted that “standing does not require that a statute identify a litigant as an interested party.” It concluded that in light of “the strong presumption that proceedings will generally take place in an adversarial system, and given that MCL 49.153 facially applies to prosecuting attorneys being involved in firearms rights restoration cases, as such cases involve civil ‘applications and motions’ in which the state is ‘an interested party,’ we find nothing in the statutory language which would support reading the statute to so radically depart from the ordinary and expected functioning of adversarial proceedings.” Absent a clear statutory statement, the court could not find that the Legislature intended this result. Respondent was also an interested party because the trial court’s decision “directly affected petitioner’s legal status under MCL 750.224f[.]” Further, it was an aggrieved party for the same reasons. As to the merits, the court determined that the conditions of petitioner’s “parole were not initially imposed ‘for the violation [of law] resulting in the prohibition.’” He was paroled after he was sentenced to imprisonment for violating probation, not for the arson. Thus, under the circumstances, the only relevant inquiry was “whether petitioner complied with ‘all conditions of probation,’ not with whether he complied with conditions of parole.” Given that he conceded he did not complete probation, he was ineligible for restoration of his firearms rights under MCL 28.424(4)(b)(iii).
Sentencing; Scoring of OV 4; MCL 777.34(1)(a); People v. Davenport (After Remand); People v. Armstrong; Consideration of defendant’s accomplices’ actions; People v. Gloster; Principle that the trial court’s power to impose a sentence is derived from a jury’s verdict; People v. Drohan; Use of facts found by a jury; People v. Lockridge; Presumption the jury followed its instructions; People v. Unger; Scoring of OV 7; MCL 777.37(1)(a); People v. Hardy; Scoring of OV 10; MCL 777.40(1); “Predatory conduct”; People v. Huston; Waiver; People v. Kowalski; People v. Carter
Holding that the trial court did not err in scoring OVs 4, 7, and 10 on remand for resentencing, the court affirmed defendant’s sentences. He was convicted of CSC I and kidnapping. At resentencing before a different judge, the new judge “assessed 10 points for OV 4, 50 points for OV 7, 15 points for OV 8, 15 points for OV 10, and 50 points for OV 11.” Defendant was then sentenced to 22 to 40 years for each conviction. On appeal, the court agreed with the prosecution that he waived his arguments as to the scoring of PRV 5 and OVs 8 and 11 given that defense counsel affirmatively approved the PRV 5 score and expressed satisfaction with those OV scores. As to OV 4, while it would have been impermissible “for the trial court to consider the actions of defendant’s accomplices[,]” it did not do so – rather, it relied on findings made by the jury, “beyond a reasonable doubt, and under which defendant’s conduct was considered only as a principal.” Since the jury did not return a special verdict form, the record did not “establish which aggravating circumstance or circumstances the jury found when convicting” him of CSC. But based on the jury instructions, it was not permitted to convict him “solely because he aided and abetted his accomplices in their sexual penetrations of the victim.” Instead, it was required to find that he “penetrated the victim’s mouth, anus, or vagina, a single time or in combination. Similarly, the jury also was instructed to determine defendant’s guilt or innocence of kidnapping based only on his conduct, not the actions of his accomplices.” The serious psychological injury requiring professional treatment that she suffered as a result of his crimes was “evidenced by her constant state of fear and that ‘she can’t go on with her everyday life.’” The court also held that the evidence “amply” supported the 50-point score for OV 7 where his “egregious conduct” went beyond what was required for his convictions. The trial court scored OV 10 at 15 points “because defendant and his accomplices drove around in the van looking for a victim before abducting the victim.” The court found that the evidence supported this score. “Defendant and his accomplices passed by the victim once before deciding that she was sufficiently vulnerable and turning around to drive by again.”
Sufficiency of the evidence; Embezzlement by an agent or employee; MCL 750.174; People v. Schrauben; People v. Lueth; Great weight of the evidence; People v. Unger; Sentencing; Scoring of OV 10; Exploitation of a vulnerable victim; MCL 777.40(1); “Predatory conduct”; MCL 777.40(1)(a) & (3)(a); People v. Huston; People v. Cannon
The court held that there was sufficient evidence to support defendant’s conviction of embezzlement by an agent or employee of $1,000 or more but less than $20,000, and that the trial court did not err by scoring 15 points for OV 10. He was sentenced as an habitual offender, fourth offense, to 32 to 60 months. On appeal, the court rejected his argument that the evidence was insufficient to support his conviction. It noted that his former boss’s testimony sufficiently supported a finding that defendant was an agent or employee of the company when he collected money from a client for the balance owed to the company for a job. Further, the evidence “did not preponderate so heavily against the verdict as to constitute a miscarriage of justice.” The court also rejected his claim that trial court erred by scoring 15 points for OV 10, concluding that a “preponderance of the evidence support[ed] the trial court’s finding of predatory conduct.” Affirmed.
Parenting-time dispute; Distinguishing between a guardian ad litem (GAL) & a lawyer/guardian ad litem (LGAL); Appointment of a GAL; MCL 722.24; A GAL’s powers & duties; MCL 712A.17d; A LGAL’s powers & duties; MCL 712A.17d(1)(d); MCL 722.22(h); MCL 722.24(2) & (3); Principle that a GAL does not need to be an attorney; MCL 722.22(g); MCL 712A.13a(1)(f)
The court held that the trial court erred by treating the parties’ GAL (F) as an LGAL and denying the parties’ the right to question her at a hearing. However, it found the trial court did not err by requiring the parties to compensate F for her services. The trial court appointed F during the parties’ parenting-time dispute, but denied them the right to question her during a hearing, finding she was actually a LGAL. Following the hearing, it issued an order permitting F to withdraw from the case and requiring the parties to pay her fees. On appeal, the court agreed with defendant-father that the trial court incorrectly treated F as an LGAL rather than a GAL. It “clearly appointed [F] to serve as GAL, not LGAL . . . .” If it “erred and actually intended [her] to serve as LGAL, [it] needed to enter a corrected order. [It] did not do so and therefore [F] remained a GAL.” Although F fulfilled her role, the trial court interfered with defendant’s “right to examine her and to thereby controvert her report by denying his request to call [her] to the stand.” While F “is an attorney by trade, she was not serving as an attorney or an LGAL in this case. [She] created a report to help the court assess [the child’s] best interests and allowing the parties to examine the author on the stand furthers that interest.” Affirmed in part, vacated in part, and remanded.
Action seeking PIP benefits; Contract interpretation; Rory v. Continental Ins. Co.; Whether the insurance policy included a fraud provision; Whittlesey v. Herbrand Co.; Forge v. Smith; Fraud; Bahri v. IDS Prop. Cas. Ins. Co.; Distinguishing Haydaw v. Farm Bureau Ins. Co.
The court held that the trial court properly granted defendant-insurer summary disposition of plaintiff’s claim for PIP benefits. Plaintiff sued defendant seeking to recover payment of PIP benefits for injuries he sustained in an auto accident. The trial court granted defendant’s motion for summary disposition, finding plaintiff’s statements to defendant were material and false as demonstrated by surveillance evidence that contradicted his testimony, that he knew his statements were false, and that they were made intending for defendant to rely on them. On appeal, the court found the evidence showed that “plaintiff’s representation about his need for wage-loss benefits because he could not perform all of his job functions after the accident was untrue.” Plaintiff claimed he “could not pay himself the $800 per week after the accident like he had before the accident—and therefore required wage-loss benefits—because he could perform only the managerial aspects of his job and not the heavy-lifting aspects.” But defendant’s surveillance showed plaintiff “could, and in fact did, perform the heavy-lifting aspects of his job.” In addition, “Haydaw does not control this case, and the trial court correctly determined that reasonable minds could not differ with regard to the fact that plaintiff had made misrepresentations about his need for wage-loss benefits.” The misrepresentation was “material because it was reasonably relevant to defendant’s investigation of plaintiff’s claim for benefits. Reasonable minds could not differ with regard to the fact that plaintiff knew that his representation was false, or made it without knowledge of its truth, because he was the one performing the same functions of his job that he did before the accident while claiming a need for wage-loss benefits.” Further, “reasonable minds could only conclude that plaintiff made the misrepresentation with the intent that defendant pay him wage-loss benefits.” In sum, because reasonable minds could not disagree that defendant “established all of the elements in Bahri, defendant had the contractual right to deny coverage on plaintiff’s claim based on plaintiff’s misrepresentations pursuant to the fraud exclusion in plaintiff’s policy.” Affirmed.
Highest-priority no-fault insurer for purposes of plaintiff’s claim for PIP benefits under Michigan’s No-Fault Act (the Act) (MCL 500.3101 et seq.); MCL 500.3114(3); Whether an individual is an employee or an independent contractor under the Act; Parham v. Preferred Risk Mut. Ins. Co.; The economic-reality test; Harmonizing Adanalic v. Harco Nat’l Ins. Co., Celina Mut. Ins. Co. v. Lake States Ins. Co., & Besic v. Citizens Ins. Co. of the Midwest; Consideration of unpublished opinions; Cox v. Hartman; Sappington v. Shoemake (Unpub.); Preventing absurd results; Rafferty v. Markovitz
Concluding that Adanalic, Celina, and Besic can be harmonized, the court held that the trial court erred by finding that defendant-Auto Club was the highest-priority no-fault insurer rather than defendant-Cherokee pursuant to MCL 500.3114(3). Thus, it reversed the order granting summary disposition in favor of Cherokee and remanded. Plaintiff suffered injuries when he slipped and fell while trying to put antifreeze in his truck. At the time, he was performing truck-driving services under an independent-contractor agreement with a nonparty (Universal). “Plaintiff testified that he held legal title to the truck, and at the time of the accident, Universal was leasing the truck from him. Plaintiff maintained personal automobile insurance through Auto Club, and Universal maintained business automobile insurance through Cherokee.” As to the issue of the highest-priority no-fault insurer, the court concluded that as it held in Sappington, there was “no need to determine which of Celina, Besic, and Adanalic ‘controls’ over the others, because” all of them can be harmonized. “A person cannot be an employee and independent contractor of the same entity at the same time. However, being an independent contractor of one entity does not preclude a person from simultaneously being an employee of another entity, which can include one’s self. On these facts,” the court held that plaintiff was not an employee of Universal, but “was an employee of himself. Because plaintiff also ‘owned’ the vehicle, MCL 500.3114(3) applies. Because Cherokee insured the vehicle, it is the insurer of highest priority.”
Eviction; The Fair Housing Act; Discrimination “because of a handicap”; 42 USC § 3604(f)(3)(B); Overlook Mut. Homes v. Spencer (Unpub. 6th Cir.); “Handicap” or “disability”; § 3602(h); 24 CFR § 100.201; “Major life activities”; § 100.201(b); “Emotional support animals”; Expert testimony; MRE 702; Elher v. Misra
In this eviction case involving a dispute over whether a defendant-tenant’s (Antony) dog qualified as an emotional support animal (ESA), the court found that the district and circuit courts did not fulfill their gatekeeping role under MRE 702. Thus, it vacated the circuit court’s order affirming the district court’s judgment denying the writ of eviction, and remanded. Plaintiff-landlord sought to evict defendants because it suspected the dog was a forbidden breed in its mobile home community. Defendants raised the Fair Housing Act (FHA) as a defense. Thus, they had to prove “that Antony had a ‘handicap’ and required accommodation ‘to use and enjoy his dwelling’ because of” it. The only evidence they offered was a letter authored by a limited license professional counselor, V. “Contrary to the district court’s conclusion, the court was required to consider the validity of the opinion presented in the letter and determine if” it actually supported defendants’ claim. While the circuit court relied on a Sixth Circuit case, Overlook, this case held that “a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the [FHA’s] definition of disability . . ., (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.” Consistent with this, plaintiff asked defendants for such information. V’s letter stated “that Antony suffered from ‘differential illness.’ It appears that this was not actually a diagnosis, but a statement that a diagnosis had yet to be reached. The letter did not identify any of the symptoms of Antony’s ‘differential illness.’” The record lacked any information describing his “purported handicap or disability.” Further, the letter did not explain how the dog could assist him. The court concluded that the “statute does not provide that a tenant may automatically establish a handicap and a need for an ESA with a simple letter or that the court may not delve into the accuracy or legitimacy of the diagnosing party’s opinion. Under MRE 702, the court must carefully consider the reliability of the methods” V used, in addition to her final opinion.
Premises liability; Buhalis v. Trinity Continuing Care Servs.; Duty owed to an invitee; Hoffner v. Lanctoe; Actual or constructive notice of the condition; Lowery v. LMPS & LMPJ, Inc.; Clark v. Kmart Corp.; Speculation & conjecture; Ghaffari v. Turner Constr. Co. (On Remand)
Holding that plaintiff failed to establish a question of fact as to whether defendant had actual or constructive notice of a condition that allegedly caused her slip and fall in its restaurant, the court reversed the order denying defendant summary disposition. It noted that she did not allege or offer evidence that defendant or its employees caused the condition by active negligence. Thus, there was no factual issue as to actual notice. To establish constructive notice, “a plaintiff must show that the landowner should have known about the condition because of its character or the duration of its presence.” Plaintiff offered evidence that defendant had “a rubber mat in its vestibule or foyer area, and” it was slushy due to the snow outside. While she also noted “that there were puddles and caution cones in the area where customers placed their orders[,]” this was not where she fell. After entering the restaurant, she immediately turned “right to proceed to the restroom. According to her testimony, plaintiff did not observe any condition that would have caused her danger because she would have avoided any such condition. Plaintiff expressly did not know what caused her fall. After the fall, she found that her hands and her coat were wet. When asked how long the condition was present, plaintiff admitted that she did not know. Despite failing to observe any wet condition when proceeding to the restroom, plaintiff insisted that the wetness did not come from her boots.” The court concluded that, given the testimony, she did not show “or offer evidence that defendant knew that there was a liquid substance in the area of the restaurant leading to the restroom.” Plaintiff simply assumed she slipped on water that “accumulated from melting snow and ice that customers tracked into the restaurant. However, it was also plausible that plaintiff slipped because her own boots were wet or the condition was created from another customer who walked the same path just minutes” earlier. Remanded for entry of summary disposition for defendant.
Gross negligence claim arising from a traffic stop arrest; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); Beals v. Michigan; MCL 691.1407(2)(c); Oliver v. Smith; MCL 691.1407(8)(a); Tarlea v. Crabtree; Kindl v. City of Berkley (6th Cir.); Kostrzewa v. City of Troy (6th Cir.); Distinguishing VanVorous v. Burmeister; Collateral estoppel based on federal court decisions; Taylor v. Sturgell; Law of the case doctrine; Grievance Adm’r v. Lopatin
Rejecting defendants-officers’ argument that they were entitled to governmental immunity on the basis their conduct was not grossly negligent as a matter of law, the court affirmed the trial court’s partial denial of their summary disposition motion. They contended plaintiff was “collaterally estopped by the decisions in his federal court action from relitigating the issue whether he suffered any physical injury from” handcuffing during his arrest. The trial court agreed with them “on this specific point and ruled that the issue whether there was an injury resulting from the handcuffing itself was precluded from further litigation” by the Sixth Circuit’s decision. But the federal decision did “not mean that plaintiff cannot bring any form of gross negligence claim based on the circumstances of his arrest.” Defendants did not cite any case law suggesting that a plaintiff’s inability to “show gross negligence on the basis of overly tight handcuffs” renders a plaintiff unable as a matter of law to establish “gross negligence on the basis of other actions and inactions involved in the arrest. Plaintiff submitted evidence that he suffered a physical injury from the totality of the circumstances that included having his handcuffed wrists pulled up behind him; being placed in the back of the police vehicle in an awkward, twisted position with his hands raised up to the middle of his back; and having his complaints of pain and discomfort ignored for 45 minutes to an hour. Although the Sixth Circuit determined that he suffered no physical injury from the handcuffing alone,” he was alleging “gross negligence on the basis of the totality of defendants’ conduct and, specifically, from how he was placed into the police vehicle. There was no determination in the federal court that plaintiff did not suffer any physical injury at all from the entire incident.” Thus, defendants failed to show that the trial court erred in its collateral estoppel ruling. Further, the court found that material questions of fact existed and reasonable minds could differ about whether they “were grossly negligent when they placed plaintiff into the police vehicle and allegedly caused him to suffer injuries that included a slipped disc and pinched nerve in his neck or upper spine,” noting that Kindl and Kostrzewa illustrated gross negligence may be shown “based on a combination of actions and inactions by police officers with respect to an individual in custody[.]”
Termination under § 19b(3)(j); In re Hudson; Children’s best interests; In re Moss Minors; In re Olive/Metts Minors; In re White; In re Schadler
Holding that § (j) existed and termination of respondent-father’s parental rights was in the children’s best interests, the court affirmed. He alleged “that his single act of masturbating near the children did not establish by clear and convincing evidence that he posed a risk of harm to his children in the absence of evidence of long-term neglect or a pattern of abuse.” Testimony indicated that he “resided in a home with three bedrooms, a living room, a kitchen, a bathroom, and a storage room. The children routinely came into their parents’ bedroom and fell asleep, but were later carried to their own room.” In 2019, the mother left them “in her bedroom and went to lay on the couch. Respondent brought her a glass of water, then returned to the bedroom and closed the door. The mother became suspicious because doors in her home were not closed.” She entered the room to find him “masturbating within two inches of her eldest child.” The mother carried her “children out of the door and texted a friend to call the police. She explained that there was a history of domestic violence by respondent against her, the police had responded on 10 to 15 occasions, and there were two prior PPOs obtained by her against respondent.” She also testified to injuries inflicted by him “and verbal abuse that occurred in front of the children.” Although he “denied actual physical abuse of the mother, he acknowledged that his words and his stature had an emotional impact on the mother and may have caused her to fear a physical assault. He further acknowledged that the police were called by the mother or neighbors on multiple occasions, and he was arrested for domestic violence on two occasions.” The harm necessary to satisfy § (j) “is not limited to physical harm, but may be satisfied by emotional harm.” The court held that “irrespective of the fact that only one act of sexual gratification occurred, the evidence established a long-term course of physical and verbal assaults that prompted the mother to obtain two PPOs against respondent. Although respondent denied the actual physical assault of the mother, he admitted to verbal assaults that occurred in front of the children.” Despite their removal from his care, he did not provide any support for the children’s maintenance. He was allowed supervised visits, yet he “did not bring any snacks or necessities for his children, but relied on his mother to ensure the children were fed.”
Whether the DHHS was obligated to provide reunification services; In re Moss Minors; In re Rood; MCR 3.977(E)(1)-(4); Jurisdiction over the children; MCL 712A.2(b)(1) & (2); Termination under §§ 19b(3)(g), (i), & (j); In re HRC; Doubt about an outcome; People v. Wolfe; Assessment of the witnesses’ credibility; Matter of Loyd; Deference to the trial court; Beason v. Beason; Children’s best interests; In re Olive/Metts Minors; In re Jones
The court held that the DHHS was not obligated to provide reunification services, and the trial court did not clearly err when it determined “that the children came within its jurisdiction and that reasonable efforts had been made to avoid removal.” Also, it did not clearly err in finding that § (j) was established, or in determining that termination of respondent-mother’s parental rights was in the children’s best interests. Respondent challenged the trial court’s exercise of jurisdiction over the children under MCL 712A.2(b)(1) and (2). At the time the petition was filed, she “had been living on charity for several months and those funds were about to be terminated. Although the children were apparently being clothed and fed, respondent had not used the time to devise any kind of long-term plan, obtain new employment or an alternative source of income, or find stable housing. Rather, respondent was abusing drugs, one of which might have been pursuant to an expired medical marijuana card, but the other was certainly not a substance respondent could plausibly claim she might have believed to be legal or safe. Respondent was evicted from the hotel for repeated complaints of noise and possible prostitution.” While the latter was not confirmed in any way, the “eviction was at least some evidence that the hotel did not consider her conduct, whatever it was, to be benign. Importantly, there would have been no plausible way respondent could have engaged in any of the above activities outside the presence of the children. Although respondent obviously did not have complete control over all of her circumstances, she certainly had a choice whether to engage in drug abuse or possible prostitution.” The court was “not definitely and firmly convinced that the trial court erred by finding a preponderance of evidence that respondent was able to provide an environment for the children that was at least safe while she sought an environment that was more stable, but instead neglected to do so.” When the trial court assumed jurisdiction, “there was sufficient evidence to conclude that respondent had not provided proper care and custody for the children and that there existed a likelihood of continuing harm to” them. Affirmed.
Termination under § 19b(3)(c)(i); Principle that only one statutory ground is needed; In re HRC; Child’s best interests; In re Olive/Metts Minors; In re Moss Minor; In re Frey
Holding that § (c)(i) was established and that termination of respondent-father’s parental rights was in the child’s best interests, the court affirmed. It held that in “addition to not rectifying his inability to regulate his emotions, respondent did not show that he rectified the problems with his parenting skills. Instead, respondent insists that he was a good parent and that the testimony showing that he physically abused his child was made up by people—such as the child’s mother—who had reason to lie.” In doing so, he did “not acknowledge that the child psychological evaluation included the child’s disclosure that respondent had hit him and that the child was fearful of respondent. Moreover, the fact that witnesses to the abuse had reason to be biased against respondent does not strip their testimony of all credibility and make it impossible for the court to credit their testimony.” In addition to denying responsibility for the child coming into care, he “was only partially compliant with the recommended parenting classes.” While he was hostile to the parenting-class provider, he “partially complied with the supervision component of the parenting class. Respondent did not participate in the education component of” the class. Overall, testimony that he “had previously physically abused the child and was now refusing to participate fully in parenting classes to improve his parenting skills supports the trial court’s finding that the conditions leading to adjudication continued to exist and would not be rectified in a reasonable time considering the child’s age.”
Whether plaintiff’s massage therapy was compensable as worker’s compensation under MCL 418.351(1); Reimbursement under the Worker’s Disability Compensation Act (MCL 418.101 et seq.); “Physical therapy services”; MCL 418.315(1); DiBenedetto v. West Shore Hosp.; Public Health Code (MCL 333.1101 et seq.); “Practice of physical therapy”; MCL 333.17801(d); MCL 333.17819; Michigan Compensation Appellate Commission (MCAC)
Holding that plaintiff-employee’s massage therapy was not compensable as worker’s compensation under MCL 418.351(1), the court vacated the MCAC’s order requiring defendant to pay for plaintiff’s massage therapy and remanded. The court held “that massage therapy is a form of physical therapy, which was not ordered by a doctor; consequently, plaintiff did not receive his massage therapy ‘pursuant to a prescription from a health care professional.’” The court also held “that because massage therapy is physical therapy, and because the massage therapist who treated plaintiff was neither a licensed physical therapist nor a physical therapist assistant under the supervision of a licensed physical therapist, the massage services were not compensable in any event.”