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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Motion to compel arbitration of an employee’s claims under the Elliott-Larsen Civil Rights Act; Rayford v American House Roseville I, LLC
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 76259 in the 10/7/21 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s decision in Rayford.
Attorney fees; Reasonableness; Lack of contemporaneous records; Olson v Olson; Use of opposing counsel’s hours as a proxy; Credibility; SBR Holdings, LLC (SBR)
Holding that the trial court’s attorney “fee award was not outside the range of reasonable and principled outcomes[,]” the court affirmed the $171,600 attorney fee award to appellees. Appellant argued the trial court abused its discretion “because they failed to keep contemporaneous records, rendering their billing schedule incredible, and the use of opposing counsel’s hours was improper.” But he pointed “to no authority indicating that Michigan law requires that attorneys keep contemporaneous records.” And the court recognized in Olson “that contemporaneous records, while important in determining the reasonableness of an attorney’s requested fees, are not mandatory[.]” The Special Master here “conducted a lengthy hearing during which several witnesses were placed under oath. The trial court subsequently held another evidentiary hearing at which it independently heard from additional witnesses placed under oath.” The court found that as “both the Special Master and the trial court recognized, appellees’ failure to keep contemporaneous records did not negate the ‘undisputed evidence’ that [they] provided legal services for appellant in the lengthy, complex underlying litigation. We are particularly persuaded by the fact that the trial court presided over the underlying litigation, and was therefore able to personally evaluate appellees’ contributions to the case. This, coupled with the testimonies of the other attorneys who explained the extent of appellees’ participation in relation to opposing counsel and the other defendant’s counsel, was sufficient to support the trial court’s finding that appellees spent roughly the same amount of time on the underlying litigation, overall, as opposing counsel.” Appellant also seemed “to take issue with the fact that the Special Master, and, by extension, the trial court, failed to determine the credibility of the witnesses, instead choosing to weigh the circumstantial evidence as to which side was more likely.” Appellant did “not explain why the decision to weigh the evidence to see which party’s theory is more likely is somehow erroneous. Furthermore, the trial court did address [his] expert’s credibility when it noted with which portions of his testimony it agreed and disagreed, and” the court gives deference to a trial court’s superior position to assess witness credibility. Appellant next argued “that, while there was circumstantial evidence supporting the Special Master’s, and, by extension, the trial court’s, findings, other circumstantial evidence weighs against them.” But he merely provided “a laundry list of evidence that could have led the trial court to a different conclusion.” While the evidence here “was far from conclusive, the evidence on which the trial court relied was more than sufficient to withstand appellate review. The mere fact that there is other evidence which could lead to an alternative conclusion is not enough to overturn the trial court’s finding.”
Sentence departure; Punitive sentencing; Reasonableness & proportionality
Finding that “the trial court did not abuse its discretion by imposing a departure sentence, and” defendant was not entitled to resentencing, the court affirmed. He was convicted of conspiracy to use false pretenses to obtain $100,000 or more (conspiracy) and using false pretenses to obtain $100,000 or more (false pretenses). He was sentenced to 7 concurrent terms of 100 months to 20 years, and ordered to pay $3,664,352.54 in restitution. He argued that his sentence “was imposed to penalize him for rejecting a plea offer and exercising his constitutional right to a jury trial[.]” The record did not support his “claim that the trial court punished him for rejecting the plea offer, which was made more than two years prior. To the contrary, the trial court indicated that it had presided over defendant’s trial, which introduced the trial court to more information than was available at the time the plea offer was made. The trial court also noted that the victim’s impact statement, which was unavailable at the time of the plea offer, was of ‘great magnitude’ to the court when fashioning defendant’s sentence.” When determining a “fair sentence, the trial court emphasized the large size of the fraud and defendant’s repeated criminal behavior and betrayal of his former company for over a decade. Because the record belies defendant’s claim that the trial court imposed a more severe sentence to punish him for exercising his right to a jury trial, defendant is not entitled to relief on these grounds.” In sum, the court concluded that the record (1) supported “the trial court’s rationale for imposing a departure sentence,” and (2) demonstrated “that the court thoroughly considered the seriousness of defendant’s crimes, the offender, and the applicable guidelines range when fashioning” his sentence.
Garnishment; Due process; Rayford v American House Roseville I, LLC
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 77826 in the 8/3/22 edition) and remanded the case to the Court of Appeals for reconsideration in light of the court’s recent decision in Rayford.
Retroactive application of no-fault fee schedules; MCL 500.3157; Andary v USAA Cas Ins Co (Andary II); Contractual vs statutory rights to PIP; Applicability to pre–7/2/20 accidents; MCL 500.3107c; MCL 500.3107d; Mr. Sunshine v Delta Coll Bd of Trs; Principle that a motorcycle claimant’s rights are purely statutory under priority rules; MCL 500.3114(5); Harris v Auto Club Ins Ass’n
The court held that the MCL 500.3157 fee schedules apply to post-7/1/21 services for this 2019 motorcycle crash because plaintiff-motorcyclist’s (Fuentes) PIP claim arises purely by statute under MCL 500.3114(5), not by contract, and thus, Andary II’s non-retroactivity rule does not apply, and nothing in MCL 500.3157 limits its operation to accidents after 7/1/20. Fuentes sought PIP benefits from defendant-insurer (GEICO), and plaintiff-medical provider (Miracle Hands) sought payment for in-home services. The trial court applied the fee caps to treatment after 7/1/21. On appeal, the court rejected plaintiffs’ retroactivity argument under Andary II, explaining that Andary’s bar turns on whether a claimant has both contractual and statutory PIP rights. “Andary II’s ban on the retroactive application of the fee schedules in MCL 500.3157 depends on whether a plaintiff has both a statutory and contractual right to claim PIP benefits.” The court next rejected the contention that accidents before 7/2/20 are exempt, noting that “unlike MCL 500.3107c and MCL 500.3107d, the text of MCL 500.3157 does not distinguish the fee schedule’s applicability from the policy’s effective date. It merely details the amount of payment owed” for treatment rendered after 7/1/21. Reading in a date limit “would run counter to our canons of statutory interpretation.” Finally, the court rejected Fuentes’s third-party-beneficiary theory, relying on Harris. The plaintiff in Harris was “neither a third-party beneficiary nor a subrogee of the no-fault policy.” Rather, that plaintiff’s right to PIP benefits arose “solely by statute.” MCL 500.3114(5) “does not give motorcyclists a contractual right to recover PIP benefits from an insurance policy; it only provides a statutory right to make a claim for PIP benefits from specific insurers.” Affirmed.
Electrocution injury; Causation; Skinner v Square D Co; Res ipsa loquitur; Need for expert testimony; Pugno v Blue Harvest Farms LLC; Admissibility of affidavits; MCR 2.119(B)(1), MCR 1.109(D)(3); Rataj v City of Romulus; Duty; Foreseeability when interrupting 3-phase power; Schultz v Consumers Power Co; El-Jamaly v Kirco Manix Constr, LLC
Holding that plaintiff failed to present admissible, non-speculative evidence that defendants’ conduct proximately caused his injuries, and he could not proceed on his res ipsa theory, the court affirmed summary disposition for defendants. Plaintiff, an auto-shop employee, alleged he was electrocuted while trying to shut off a burning air compressor as defendant-DTE’s contractor (defendant-Lecom) was replacing pole crossarms and had taken the 3-phase transformer offline. Defendants’ expert attributed the fire to “single phasing” from running a three-phase motor on single-phase power, and plaintiff’s purported expert submission was unsigned and undated. The trial court granted defendants’ summary disposition motion, holding the proffer from plaintiff’s expert was inadmissible and the remaining record did not raise a fact question on causation. On appeal, the court agreed the filing “was an ‘unsworn averment’” and “an unsigned, unnotarized ‘affidavit’ is no affidavit at all,” so it could not be considered. It rejected plaintiff’s res ipsa theory because electrical causation and overvoltage allegations are not within common knowledge and the “‘fact that the injury complained of does not ordinarily occur in the absence of negligence must either be supported by expert testimony or must be within the common understanding of the jury.’” Turning to his direct-evidence negligence theory, the court acknowledged duty and a fact question on breach, and that cause-in-fact could be inferred from the “known condition that results in ‘single phasing’ and overheating of the motor,” but held that plaintiff fell short on legal causation. It noted his theory that defendants “added” voltage to 440 volts rested only on his lay inference from a loud noise. “‘To be adequate, a plaintiff’s circumstantial proof must facilitate reasonable inferences of causation, not mere speculation.’” The court found that it “must conclude that plaintiff’s theory is simply too speculative to support a genuine issue of material fact on causation.”
Tax foreclosure sale surplus proceeds; Constitutionality of the procedural requirements in MCL 211.78t; Exclusivity of the statute; In re Muskegon Cnty Treasurer for Foreclosure; In re Barry Cnty Treasurer; Constructive trust; In re State Treasurer for Foreclosure (Unpub); Foreclosing governmental unit (FGU)
The court concluded that respondents did not “assert valid constitutional claims for a takings violation or a procedural due-process violation. MCL 211.78t is the exclusive mechanism for obtaining remaining proceeds, and” the court’s holding in Muskegon Treasurer was “binding, controlling precedent.” Thus, it affirmed the trial court’s ruling denying respondents’ motion to compel petitioner-county treasurer “to disburse any remaining proceeds from the tax-foreclosure sale” at issue. As was the case with the respondents in Muskegon Treasurer, respondents here failed to “file the notice required by MCL 211.78t(2) by the July 1 deadline,” leading to the dismissal of their claim. On appeal, they raised “most of the same arguments raised by respondents in Muskegon Treasurer.” First, they asserted that “MCL 211.78t is not the exclusive means of recovering surplus proceeds,” and that Muskegon Treasurer was wrongly decided. But they did not identify any errors in the court’s opinion in that case, and the court noted that the “Supreme Court denied the former owners’ request for leave to appeal in Muskegon Treasurer[.]” As to their taking claim, like the respondents in Muskegon Treasurer and Barry Treasurer, because they “failed to follow the statutory pathway provided to recover any surplus proceeds, they could not then claim an unconstitutional taking.” As to the alleged procedural due process violations, the court’s holding in Muskegon Treasurer likewise applied squarely here. Further, the court disagreed with their contention that the trial court erred in dismissing their request to impose a constructive trust over the remaining proceeds. It noted that it recently addressed a similar argument in State Treasurer, where it “stated: ‘An FGU’s compliance with the statutory scheme cannot provide grounds for imposing a constructive trust.’” In addition, it stated: “‘[A]n equitable remedy such as the imposition of a constructive trust would contravene the Legislature’s clearly stated intent and essentially nullify MCL 211.78t.’”