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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Whether the promulgation of the groundwater-cleanup rule mooted the case; MCL 324.20120a(5); Exceptions to mootness; Exhaustion of administrative remedies; MCL 24.264; Futility; Hendee v Putnam Twp; Standing; Lansing Sch Educ Ass’n v Lansing Bd of Educ; Subject-matter jurisdiction; MCL 600.6419; Michigan Farm Bureau v EGLE; Administrative Procedures Act (APA) regulatory impact statement (RIS); MCL 24.245(3)(l); Agency failure to follow process; Michigan Charitable Gaming Ass’n v State; Department of Environment, Great Lakes, & Energy (EGLE); Regulatory impact statement (RIS)
Holding that the controversy was not moot, that exhaustion was excused by futility, and that standing and subject-matter jurisdiction remained intact, the court again affirmed the Court of Claims’ grant of summary disposition for plaintiff-3M Company (3M) against defendant-EGLE. 3M contended “EGLE’s RIS for the drinking-water rule was insufficient because it did not account for how changes to the drinking-water rule would affect 3M’s groundwater-cleanup costs, as the groundwater-cleanup rule incorporated the standards of the drinking-water rule.” The court previously affirmed the trial court’s holding that the EGLE violated § 45 of the APA, which requires agencies to prepare a RIS “that includes an estimate of how much compliance with the proposed rules will cost ‘businesses and other groups[.]’” The Supreme Court vacated that opinion, and remanded for the court to consider four specified issues. On remand, the court held the case was not moot because the drinking-water standards still control groundwater criteria by statute. “We conclude that the promulgation of the groundwater-cleanup rule did not moot this case,” and, as the agency itself recognized, the PFAS groundwater criteria “‘are effective and legally enforceable by operation of law.’” It also held that exhaustion under MCL 24.264 was excused as futile where the dispute was a purely legal validity challenge and EGLE’s position was fixed. “3M did not have a duty to exhaust its remedies prior to bringing this declaratory judgment action, as it would have been futile to do so.” Further, courts are the determiner of an APA rule’s legal validity, and a trial “‘court is not bound by, and owes no deference to, an agency’s interpretation of a statute.’” As to standing, the court reiterated that “a legal cause of action exists to challenge a rule as invalid,” and concluded that “3M’s failure to comply with MCL 24.264 did not affect its standing.” Finally, addressing subject-matter jurisdiction, the court noted the Supreme Court said last year in Michigan Farm Bureau that “‘[t]here is no dispute [ ] that MCL 24.264 delineates a class of cases over which the Court of Claims has subject-matter jurisdiction.’” The court clarified that whether “any given challenger complied with the exhaustion part of MCL 24.264 . . . concerns the [trial] court’s power to decide the particular case before it, not [its] power to decide a declaratory-judgment action against a state department in general.”
Procedural requirements for confirmation of an arbitration award under the Uniform Arbitration Act (UAA); MCL 691.1702-1705
Holding that the trial court’s entry of judgment on the parties’ arbitration award was procedurally improper, the court vacated the order and remanded. Plaintiffs sued defendants alleging a variety of claims arising out of defendants’ construction of plaintiffs’ home. After agreeing to arbitration, the arbitrator entered an award denying plaintiffs’ breach-of-contract claim, finding for defendants on two of their three breach-of-contract claims, and awarding defendants damages, interest, and attorney fees. On appeal, the court agreed with plaintiffs that the trial court’s entry of the judgment was procedurally improper, finding application of the UAA confirmed their position that the trial court erred by entering the judgment in the manner that it did. “The judgment was not entered upon the [trial] court’s ‘granting an order confirming, vacating without directing a rehearing, modifying, or correcting an award.’ There was no such order granted before or at the time of entry of the judgment, nor was there any motion for such an order made by either plaintiffs or defendants, as contemplated by MCL 691.1702, MCL 691.1703, and MCL 691.1704. Instead, defendants simply submitted for entry a proposed judgment on the award, and the [trial] court obliged by entering the judgment three days later—with no meaningful opportunity for plaintiffs to respond or to file their own motion challenging the award.” And its “post hoc clarification did not change or cure the procedural deficiencies that attended the entry of the judgment—or, for that matter, the prejudice to plaintiffs that flowed from them. As a result of those deficiencies, plaintiffs were unable to oppose entry of the judgment or move to challenge the underlying arbitration award until after the judgment was entered.” And then, the trial court was unable to hear their “motions to that effect until after plaintiffs’ deadline for filing a claim of appeal regarding the judgment had passed.” Plaintiffs should not have been forced to face a “choice between timely appealing the judgment and having the [trial] court hear and decide their challenges to its underlying merits. Nor would they have been forced to face it, had the statutorily specified procedures been followed.” Finally, defendants failed to explain “why entry of the judgment was ‘necessary’ as contemplated by the agreement, but more fundamentally, nothing in these provisions purported to authorize the [trial] court to enter a judgment in a manner that did not comport with the UAA. To the contrary, the agreement expressly stated that ‘[t]he arbitration is to be considered a statutory arbitration pursuant to the Michigan statutes and Michigan Court Rules.’” Vacated and remanded.
Appointed appellate counsel attorney fees; In re Foster Attorney Fees; Reasonable compensation; Recorder’s Court Bar Ass’n v Wayne Circuit Court; Distinguishing In re Ujlaky
Concluding that the trial court’s determination did not fall outside the range of reasonable outcomes, the court affirmed the partial denial of appellant-attorney’s request for attorney fees related to defendant’s appeal. At issue was appellant’s “fourth request for payment, voucher 92108, requesting payment for 27.5 hours of work done between” 7/24 and 9/24. The trial court determined “that the reasonable total amount of time to be reimbursed was 15.8 hours.” But it found the expenses that appellant identified, including for printing and postage, were reasonable. On appeal, appellant relied on Ujlaky. But the court noted that unlike in that case, “the trial court here reviewed voucher 92108 and explicitly considered the reasonableness of the fees in relation to the rendered services. Although [it] referred to the ‘presumptive maximum,’ the trial court’s opinion demonstrates that [it] considered the services rendered in light of the circumstances of the case, rather than reflexively capping payment at 15 hours.” Appellant further argued that it “abused its discretion by determining that the legal services were unreasonable when it had already approved the previous vouchers. It was not improper, however, for the trial court to consider whether the total requested reimbursement was reasonable on the basis of the circumstances of this case. Further, [it] reviewed the requests and services identified on each voucher and approved several payments to [appellant] related to his efforts on behalf of” defendant. Appellant “indicated on appeal that he had never before had a trial court deny him payment, which, instead of demonstrating that the trial court abused its discretion here, suggests that [it] considered the particular services [he] rendered.” Thus, the court held that it “did not abuse its discretion.”
Constitutionality of court-ordered fines, costs, & fees; Const 1963, art 8, § 9; People v Carter (Unpub); People v Earl
The court held that the trial court-ordered payments at issue were not unconstitutional. Defendant was convicted of meth possession. On appeal, he challenged “the constitutionality of his court-ordered fines, costs, and assessments.” First, he argued that the costs and fines were excessive. He “was convicted under MCL 333.7403(2)(b)(i), which exposed him to potential imprisonment of up to 10 years and ‘a fine of not more than’” $15,000. Thus, the “total court-ordered payment of $1,798 in costs, fines, and fees was well below the maximum potential financial penalty for” his conviction. Further, the total was not disproportionate considered in relation to his “offense or ability to pay. Although the trial court did not focus at sentencing on [his] ability to pay, [he] reported having employment opportunities. The ordered payment was not unreasonable or disproportionate under the circumstances,” and he did not show plain error. Next, defendant argued “that the costs and fees that the trial court ordered under MCL 769.1j, MCL 769.1k, and MCL 780.905 are unconstitutional because they do not fund public libraries as required by the Michigan Constitution. Our Michigan Constitution provides, in relevant part, that ‘[a]ll fines assessed and collected in the several counties, townships and cities for any breach of the penal laws shall be exclusively applied to the support of such public libraries, and county law libraries as provided by law.’” The court noted that under “MCL 769.1k(1)(a), a trial court ‘shall impose the minimum state costs as set forth in [MCL 769.1j]’ when sentencing a defendant. MCL 769.1j(1)(a) provides that a person convicted of a felony shall be assessed, at minimum, $68 in costs. These minimum costs are paid to the justice system fund. MCL 769.1j(2). Further, the trial court may impose any fines authorized by statute for the violation of which the defendant was convicted, any costs authorized by statute for which the defendant was convicted, and ‘any cost reasonably related to the actual costs incurred by the trial court.’” In addition, “MCL 780.905(1)(a) provides for an assessment of $130 for felony convictions. This assessment is ‘used to pay for crime victim’s rights services.’” In Carter, a panel of the court recently addressed this same challenge, explaining “that, even if fees, costs, and assessments ordered as part of a sentence are considered ‘fines’ for purposes of an excessive-fines inquiry, that is not the case in every constitutional context.” In Earl, the Michigan Supreme Court explained that “the terms ‘fine’ and ‘assessment’ have different and distinct meanings: criminal fines are generally responsive to the conduct which they intend to punish, while assessments are imposed in accordance with a predetermined flat rate.” The Supreme “Court held that the crime victim’s rights assessment, under MCL 780.905, is imposed at sentencing, but is nonpunitive.” Thus, the court found that here, “the imposition of the $130 payment for the crime victim’s rights fund did not constitute a fine for purposes of” § 9. Finally, it concluded that “for the same reasons, the $68 state minimum in costs does not constitute a fine for the purposes of this” provision. Affirmed.
Action for personal protection insurance (PIP) benefits; Rescission of a policy based on fraudulent misrepresentation; Howard v LM Gen Ins Co; “Owner” (MCL 500.3101(3)(l)(iii)); Findings as to the materiality of the misrepresentation & the injury suffered as a result of it; Whether insurance underwriting rules constitute a “writing” under MRE 1002; Effect of an insurer’s statement that it would not have issued the policy had it known the truth of the vehicles’ ownership; The No-Fault Act (NFA)
Holding that the trial court did not err in granting defendant-insurer’s (CURE) summary disposition motion, “and deeming void ab initio plaintiff’s insurance policy[,]” the court affirmed. He indicated on his insurance application that both a 2016 Lexus and a 2010 Mercedes “were solely owned by and registered to him, and certified the accuracy of those statements. However, a title search performed by CURE revealed that the 2016 Lexus was purchased by, and titled to, plaintiff’s daughter” (nonparty-J). Plaintiff asserted that he “made no knowing misrepresentations on the insurance application because: ‘[T]he purported misrepresentation had nothing to do with the title holder of any vehicle; on the contrary, the application asks only whether the vehicles are solely owned by and registered to the applicant. According to the testimony of Plaintiff and the title holder, Plaintiff was, and always has been, the sole owner and registrant of the Lexus.’” The court found this “disingenuous. At the very least, the available evidence demonstrates no genuine issue of material fact that plaintiff knew he was not the sole owner of either vehicle. While [he] may have made payments on and registered the 2016 Lexus, [J] not only signed the loan to finance the purchase of [it], which left her responsible for any default in payments, but also exclusively held title to” it. The court concluded that, viewing the evidence in the light most favorable to plaintiff, the NFA’s definition of an owner, “along with his deposition testimony that [J] signed the loan for, and held title to, the 2016 Lexus, and that he once owned the 2010 Mercedes, but switched ownership” of it in 2018, showed he “knowingly misrepresented sole ownership in the vehicles.” The court also rejected his challenges to “the trial court’s findings as to the materiality of the misrepresentation and the injury suffered as a result of” it. As to his evidentiary argument based on MRE 1002, he did “not cite to any caselaw holding that insurance underwriting rules constitute a ‘writing’ under MRE 1002” and the court found none. And it noted that “an insurer’s statement that it would not have issued the policy had it known the truth of the vehicles’ ownership is sufficient to establish the materiality of the misrepresentation.” Further, CURE suffered an injury when it “unknowingly assumed an underwriting risk it would not have had plaintiff been forthright as to the” vehicles’ ownership.
Compliance with the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); “Active efforts” toward reunification; MCL 712B.15(3); In re Beers; Finding that a child would likely suffer serious emotional or physical damage if returned to respondent’s care; MCR 3.977(G)(2); 25 USC § 1912(f); MCL 712B.15(4)
The court held that the trial court did not clearly err in finding (1) “that the agency made active efforts at reunifying respondent-mother and” her child (E) and (2) “beyond a reasonable doubt that [E] would likely be seriously harmed if left in” her custody. Thus, it affirmed the trial court’s order terminating her parental rights. The record showed she “began several services in Michigan. When [she] moved to Indiana, caseworkers provided her with information on services” there. The agency provided her “with gas cards to assist with the expense of [her] traveling to Michigan to visit” E. When she “could not travel to Michigan, she visited with [E] remotely. The agency also communicated with [her] caseworkers in Indiana.” A caseworker (G) with the Tribe (and its designated qualified expert witness) “testified that the agency’s services were culturally appropriate, including that the agency had diligently searched for a family placement for [E], and [E’s] placement with a sibling was compliant with the Tribe’s preferences.” Respondent contended “that the services were ‘generic’ and not modified when it became apparent that she was not showing benefit.” But she did not “state what actions could have been taken to help [her] benefit from services. [Her] move to Indiana limited the agency’s ability to monitor and provide services, but the record demonstrates that [it] continued to monitor [her] engagement with services and attempted to coordinate with Indiana caseworkers.” While respondent’s parenting time was limited, the record showed her “long drives from Indiana and other responsibilities made longer or more frequent visits impracticable. The agency was open to longer visits, but continued to supervise visits out of concerns for [E’s] safety, and [she] used a parenting advocate during visits. Despite these services, [she] did not demonstrate much benefit.” As to the finding that the child was likely to suffer serious damage if returned to respondent, “the trial court relied, in part, on [G’s] testimony. Further, [it] identified that respondent[] was in a worse position than she was at the beginning of the proceedings. [She] lacked stable housing and did not benefit from services to address her emotional instability or the termination of her rights to” two other children. The evidence also showed that she “was overwhelmed with her life circumstances, even without [E] in her care.”
Auto negligence; Serious impairment of body function; MCL 500.3135(1) & (5); McCormick v Carrier; Governmental immunity Motor vehicle exception (MCL 691.1405); Intermediate School District (ISD)
The court affirmed the trial court’s determination that defendant-Macomb ISD was not entitled to summary disposition in this case arising from an accident involving a school bus. As an initial matter, the court concluded that to the extent the trial court relied on information solely provided in certain proposed affidavits, it erred, and the court declined to consider the affidavits. It also would “not consider the documents that plaintiffs have submitted with their brief on appeal that were not introduced in the lower court record.” Regardless, it found that “plaintiffs raised a genuine question of material fact about whether they suffered serious impairments of body function.” Plaintiff-Stewart “raised a genuine question of material fact about whether he suffered an objectively manifested impairment of body function by presenting evidence that he was experiencing muscle spasms and reduced range of motion.” Likewise, plaintiff-Whitson “presented evidence of muscle spasms and reduced ranges of motion.” In McCormick, the “Supreme Court held that the plaintiff presented evidence of a broken ankle and symptoms that were perceivable as impairing body functions, including ‘ankle pain and a reduced range of motion.’” Macomb ISD contended that they “could not establish a causal relationship between the crash and the diagnostic testing results.” The court held that “plaintiffs raised questions of fact through their testimonies and medical records, including [a doctor’s] notes that related plaintiffs’ injuries to the crash.” The court noted that “Macomb ISD did not contest in the lower court or on appeal that important body functions were at-issue in this case.” Thus, the next consideration was “whether plaintiffs demonstrated a genuine question of material fact about whether the impairments affected [their] general abilities to lead their lives.” The court determined that there was “a question of fact about whether the impairments affected plaintiffs’ ability to engage in their employment.” Also, Stewart “testified about the impairments affecting his ability to engage in sports and socialization.” Finally, because they “raised questions of fact about their bodily injuries, the trial court did not err by determining that Macomb ISD was not entitled to governmental immunity.”
Order for return; MCL 712A.19; Parent-agency treatment plan (PATP)
The court affirmed the trial court’s order returning child-ARD to the custody of respondent-mother. The case arose when the “mother was arrested for neglecting ARD.” The father argued “the trial court erred when it ordered ARD be returned to” the mother because: (1) she “was the reason ARD was removed; (2) ARD was placed with him and thrived; (3) ARD was not safe with [her]; and (4) [she] was in partial compliance with her PTAP.” The only authority he cited was “MCL 722.23, which provides the best-interest factors for a child during a custody dispute. That statute is not relevant in these child protective proceedings.” The court concluded “that the trial court did not err when it ordered ARD be reunited with respondent-mother. The purpose of a PATP is to facilitate the return of the child to the parent.” The court noted that “DHHS only filed a temporary custody petition, and the goal was always reunification.” Although the mother “initially struggled to comply with her PATP, she ultimately fully complied and remained in full compliance during the remainder of the dispositional review proceedings despite father’s interference. In fact, the trial court noted that respondent-mother effectively completed the PATP twice. DHHS and CPS concurred and stated that they had no concerns regarding ARD’s safety while with” her. Given her “successful completion of all tasks required for her reunification with ARD and the safety of her home, the trial court did not err by ordering that ARD be reunited with her.” The only difficulties encountered by the mother “were father’s lack of cooperation and outright interference with her opportunity to demonstrate her ability to successfully engage in parenting time with ARD.”
Jurisdiction under MCL 712A.2(b)(1) & (2); In re Sanders; Authentication; MRE 901; People v Smith; Hearsay; Excited utterance exception; MRE 803(2); In re Meeboer; Harmless error; MCR 2.613(A); In re Miller
Holding that any error in admitting social-media videos was harmless and that statutory grounds existed under MCL 712A.2(b)(1) and (2), the court affirmed jurisdiction over the children. Police engaged after respondent-mother made paranoid, nonsensical statements during a Facebook livestream. They encountered her and two children several miles from home after traveling part of the night, and a social worker testified that the mother said it had been “about two days since they had had a real meal.” The trial court admitted five short videos from the mother’s Facebook account and found a “severe mental health crisis” with the children “right there in the mix of it,” before exercising jurisdiction under (b)(1) and (2). On appeal, the court rejected her argument that the video evidence was not authenticated, noting that authentication was a “close call” but that there was no reversible error because it was not “more likely than not” that the outcome would change without them. As to hearsay, the court affirmed admission of the older child’s statements as excited utterances, noting such statements must be “made before there has been time to contrive and misrepresent,” and finding the child volunteered them during the police intervention in a startling situation. Turning to jurisdiction, the court held that the evidence such as paranoid delusions, forced departure from home, miles of travel at night, and lack of food and water, showed “a substantial risk of harm to their well-being” under (b)(1), and that the “children’s environment was unfit precisely because they had been forced to leave their home because of [the] mother’s delusions” under (b)(2), with neglect established by the failure to provide adequate food and shelter.