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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Attorney fees & costs under MCL 600.2591; Reasonableness; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Evidentiary support; Failure to file an affidavit; Block billing; Lakeside Retreats, LLC v Camp No Counselors LLC; “Costs”/“taxable costs”; Expert compensation; Elslander v Thomas Sebold & Assocs; MCL 600.2164(1); “Actually incurred”; Sanctions; MCR 1.109(E); “Punitive damages”; Restraining order prohibiting defendants from transferring assets; MCL 600.6104; MCL 600.6116(1); Kohn Financial Consulting (KFC)
The court concluded defendants were entitled to an evidentiary hearing on the number of hours billed in awarding intervening plaintiff-KFC attorney fees and costs under MCL 500.2591, and that it was unclear whether some costs were appropriately awarded. Thus, it reversed the attorney fees award, affirmed $138.50 of the costs awarded, and reversed the remaining $27,597.50 in costs. It also reversed the trial court’s imposition of a $10,000 sanction on defendants. But it affirmed the order restraining them “from transferring or otherwise disposing of assets.” The court remanded for an evidentiary hearing on “the reasonableness of KFC’s billed hours and what, if any, recoverable costs KFC actually incurred.” It held that given the supporting evidence KFC presented for its attorney fee request (including data from the 2017 Economics of Law Practice and its attorney’s professional biography) “and the trial court’s familiarity with the case, the mere failure to file an affidavit did not necessarily prevent the trial court from determining a reasonable hourly rate.” Further, defendants’ objections to the use of block billing failed given the recent holding in Lakeside Retreats. But they “raised valid objections to time entries” they considered excessive, or vague, “or unrelated to the counterclaim” the trial court had ruled was frivolous. They also challenged the award of costs for time spent by KFC’s principal, Kohn. KFC indicated “some of the time Kohn recorded was spent ‘explaining underlying materials to counsel.’ Typically, this time would not be recoverable as a cost.” Further, KFC failed to present any evidence to “the trial court that it ‘actually incurred’ any expense for the time that Kohn recorded.” It also did not present the court with “any authority supporting its position that all Kohn’s time was compensable as costs for an expert witness.” The court found that the six hours he recorded for “preparing for and attending the summary disposition hearing” could be recovered under MCL 600.2164(1) as a cost if “actually incurred.” But as to the other 72.85 hours he “spent on this matter, not only is there nothing in the record indicating that KFC ‘actually incurred’ the costs for these hours, but Kohn’s billing sheets do not allow one to determine how much of the recorded time was for preparing himself to testify, for educating KFC’s lawyer, or for routine acts done as a party in a lawsuit.”
Title IX; Deliberate indifference to a heightened risk of abuse; Statute of limitations (SOL); Accrual; Applicability of the “discovery rule” in Title IX cases; Ouellette v Beaupre (1st Cir); Whether plaintiffs who were not students or employees could bring a claim under Title IX; Doe v Brown Univ (1st Cir); Ohio State University (OSU)
The court held that plaintiffs’ claims against defendant-OSU alleging deliberate indifference to their heightened risk of abuse by an OSU doctor (Strauss) were improperly dismissed based on the running of the SOL where they adequately alleged “they did not know and could not reasonably have known” that OSU injured them until 2018. The court also joined other circuits and held for the first time “that the discovery rule determines the accrual of Title IX claims[,]” and that plaintiffs who were not students or employees can sometimes sue under Title IX. Strauss served on the OSU faculty, was a team doctor, and a doctor at the Student Health Center. During his tenure, he allegedly abused hundreds of young men “during medical examinations[.]” While the abuse occurred between 1978 and 1998, it was not made “public until 2018. After the allegations became public,” plaintiffs filed their Title IX suits. The district court ruled the SOL barred their claims. The court considered evidence that OSU received complaints about Strauss’s conduct as early as 1978, but it still rated him as “excellent” and never mentioned the allegations in his evaluations. An independent investigation found that OSU “‘actively concealed Dr. Strauss’ abuse by not investigating or attempting to identify the students Dr. Strauss harmed’; ‘further concealed Dr. Strauss’ abuse by destroying medical records’; and shredded files related to Strauss’s sexual abuse.” Considering when plaintiffs’ claims accrued, the court noted that many of the young students were given “pretextual and false medical” reasons for the procedures and were not even aware they had been abused until Strauss’s actions became known to the public. Further, they alleged they could not have known of OSU’s “responsibility for the abuse” until 2018. The court also noted that while Title IX borrows the state SOL, “‘federal standards govern when the statute begins to run.’” It concluded that application of “the discovery rule aligns with precedent, the rule’s purpose, and Title IX’s broad remedial purpose.” It held that in the Title IX context, a “claim does not accrue until the plaintiff knows or has reason to know that the defendant institution injured them.” Further, plaintiffs’ allegations their claims did not accrue until 2018 were plausible. Finally, it held that plaintiffs who were not students or employees could bring a Title IX claim "if they were subject to discrimination 'while participating, or at least attempting to participate, in the funding recipient's education program or activity.'" Reversed and remanded.
Ineffective assistance of counsel; Failure to request a self-defense jury instruction; MCL 780.972; Failure to properly investigate or pursue a self-defense claim; Prejudice; Failure to request severance of unrelated charges; People v Williams; Failure to request the jury instruction on flight; M Crim JI 4.4; Failure to object to prosecutorial misconduct (improper burden shifting, vouching, & mischaracterization of the evidentiary burden)
Holding that defense counsel was ineffective in failing to properly investigate and pursue a self-defense claim, and that this was “sufficient to undermine confidence in the” trial’s outcome, the court vacated defendant’s convictions and sentences, and remanded for a new trial. It was “left with a definite and firm conviction that the trial court erred by finding defense counsel’s testimony about the events leading up to trial more credible than” that of defendant. Defense counsel testified he chose the defense theory based on their conversations, and “defendant was adamant from the beginning of the case that he was not the shooter and never mentioned self-defense until midway through the trial.” But defendant contended “he told defense counsel about his self-defense claim when he first retained defense counsel within days of the shooting and, on more than one occasion, reminded defense counsel that [victim-F] threatened him and broke into his house with a gun. Defendant unequivocally denied telling defense counsel he was not the shooter.” The trial court determined that recorded phone calls did not show the two “ever spoke about defendant being the shooter, and the trial evidence contradicted defendant’s testimony about the shooting.” But the court found that “two of the pretrial conversations provide strong evidence that defendant communicated his claim of self-defense to defense counsel early” on. Further, the evidence contradicting his testimony spoke “to the credibility of defendant’s self-defense claim—not whether defense counsel’s investigation” was reasonable. The court concluded defense counsel failed to “even consider investigating the theory urged by defendant and supported, at least in part, by independent evidence,” and in doing so, “failed to exercise reasonable professional judgment and his representation fell below an objective standard of reasonableness.” Had he pursued this “theory at trial—presenting evidence of [F’s] threats and defendant’s testimony about the circumstances of the fatal shooting—the burden would have shifted to the prosecution to prove beyond a reasonable doubt that defendant did not act in self-defense.” Because the court could not “say with confidence that the prosecution would have been able to make that showing beyond a reasonable doubt, defendant has established a reasonable probability of a different outcome.”
Slip & fall on ice; Negligence; Open & obvious danger; Lugo v Ameritech, Inc; Special aspects; Relevance of wintery conditions; Ragnoli v North Oakland-N Macomb Imaging, Inc
Holding that the ice on which plaintiff-invitee slipped was an open and obvious danger with no special aspects, the court affirmed the trial court’s grant of summary disposition for defendant-property owner. Plaintiff sued defendant for injuries she sustained when she slipped and fell on a patch of ice on a sidewalk at defendant’s strip mall. The trial court granted summary disposition for defendant, finding the ice was an open-and-obvious danger given the wintery conditions at the time plaintiff fell. On appeal, the court noted there was “sufficient ‘indicia of a potentially hazardous condition,’ including the ‘specific weather conditions present at the time of [plaintiff’s] fall’ to conclude that the black ice she slipped on was an open and obvious danger.” When all of the factors “are considered together, a reasonable person would have considered the wintery conditions on the day [she] fell and concluded that there was a risk of ice.” The court rejected plaintiff’s contention that defendant was “nevertheless liable because the strip mall’s triangular architectural features created a special aspect that made the premises” unreasonably dangerous, noting she did not claim the ice “was especially dangerous or different from any other instance of black ice.”
Quiet title; Neutral-principles approach; The ecclesiastical abstention doctrine; St. Nicholas Ven Parascheva Romanian Orthodox Church (SNVPROC); Orthodox Church of America (OCA); St. Nicholas Romanian Orthodox Church (SNROC)
Holding that the outcome would be the same under a neutral-principles approach or the ecclesiastical abstention doctrine, the court affirmed the trial court’s judgment quieting title to disputed property in favor of plaintiff-diocese after granting plaintiff’s summary disposition motion. Defendants argued the trial court misapplied neutral principles and wrongly held that defendant-SNVPROC did not acquire valid title to the property. Plaintiff argued the trial court erred by not applying the ecclesiastical abstention doctrine, but claimed it was entitled to the property under either approach. Plaintiff is a diocese within the OCA, “a hierarchical organization in which the diocese’s and parish’s obligations to each other and to other authoritative bodies within the church are defined by church statutes, constitutions, and bylaws.” Thus, the trial court erred in deciding this issue under neutral principles. The trial court concluded that the individuals who “executed and recorded a quitclaim deed transferring the property to SNVPROC” did not have any authority to convey SNROC’s property. Although there was no direct formal decision declaring that SNROC was dissolved, or that Carstea (a priest appointed to the SNROC parish) and other individuals “caused a schism, defected, or perpetrated heresy, plaintiff relieved Carstea of his priestly authority. Defendants clearly indicated that they rejected plaintiff’s authority and that they chose to act independently of plaintiff’s discipline. These events clearly established that Carstea and his supporters could no longer exercise authority over SNROC’s assets or invoke SNROC’s status within plaintiff and the OCA for the benefit of SNVPROC.” Defendants emphasized that “SNROC purchased and developed the property without assistance from plaintiff. However, defendants abandoned SNROC and formed a new organization.” Thus, they did not “establish a genuine issue of material fact that SNVPROC acquired legal title to the” property. Defendants’ claim that “SNROC is a monastery instead of a parish does not require a different analysis or compel a different result, because monastery property is subject to the same conditions under Article XIII, Section 4(a)-(b) of the Statute” of the Orthodox Church in America. The court also held that “even if this case were to be resolved by neutral principles, the same result would ensue.”
Termination under § 19b(3)(j); Children’s best interests; Reasonable reunification efforts
Holding that § (j) existed, termination was in the children’s best interests, and respondent-mother had not established plain error affecting her substantial rights in regard to reasonable efforts, the court affirmed. The record reflected that she “had a long history—at least 14 years—of substance abuse that included alcohol and cocaine. Several of the children were born positive for cocaine, suffered withdrawals after birth, and were suspected of suffering from fetal-alcohol syndrome. Respondent lacked housing and income. Respondent also frequently missed parenting-time visits with some of the children, claiming that the visits were too overwhelming.” In short, the DHHS presented clear and convincing evidence of her “failure to consistently visit the children, comply with her treatment plan, and benefit from services, thus establishing that there was a reasonable likelihood of harm if the children were returned to her care.”
Child’s removal; MCL 712A.13a(9); In re MU; MCL 712A.13a(9)(b) & (d); Reasonable efforts to prevent or eliminate the need for removal
While the court agreed with the general premise of respondent-mother’s argument about the proper interpretation of MCL 712A.13(9), it disagreed with her claim that the trial court failed to properly apply the statute. Thus, it affirmed the order for her child’s (KN) out-of-home placement. First, she argued that “removal of KN from her care was improper because the referee relied on circumstances surrounding respondent’s four other children that were not applicable to KN.” She also argued that “the trial court failed to address all five grounds listed in MCL 712A.13a(9) for removing KN from” her care. In support of her claim that “the referee was precluded from considering the circumstances that led to the removal of her other four children when considering whether removal of KN was appropriate, respondent” relied on MU. She argued that “concerns about her past treatment of the other four children and the resulting ‘physical and mental health issues’ ‘were not material or relevant’ because she was ‘only seeking placement of Baby KN.’” This argument ignored “the doctrine of anticipatory neglect, which ‘provides that the parents’ treatment of other children is indicative of how they would treat the child in question.’” Respondent similarly argued that ‘“[c]oncerns expressed in reference to other persons living in the home who might not be appropriate’ were improperly considered by the court because those persons were ‘not present’ in her home at that time when the petition was filed.” This ignored that “the concerns raised at the preliminary hearing were not about individuals ‘living in the home who might not be appropriate,’ but rather respondent’s questionable decision-making that permitted that situation to arise in the first place—a decision that led to concerns of sexual abuse.” The court agreed with her “general assertion that, to the extent that MCL 712A.13a(9) speaks in the present tense, ‘trial court[s] must examine the child’s situation at the time the petition is filed.’” But it disagreed with her assertion “that the trial court failed to do that in this case.” In addition, her challenge to the adequacy of the trial court’s findings on MCL 712A.13a(9)(b) and (d) failed.