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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 vacate &/or modify & correct the arbitration award
The court affirmed “the trial court’s order correcting and confirming an arbitration award in favor of defendants.” Plaintiffs argued “that the trial court erred by denying their motion to vacate and/or modify and correct the arbitration award and instead correcting and confirming the award as requested by defendants.” Plaintiffs asserted “that the trial court erred in two ways.” First, plaintiffs argued “that the arbitrator exceeded his authority when making factual findings in support of the award, so the [trial] court was obligated to vacate the award pursuant to MCL 691.1703(1)(d).” Second, plaintiffs argued that the trial “court was obligated to vacate or, at minimum, modify the award because the arbitrator made several erroneous factual determinations on which the award was based.” As to their first argument, plaintiffs asserted “that the arbitrator exceeded the authority provided to him in the arbitration agreement because he simply adopted certain findings of fact that the trial court had made in its prior order granting summary disposition to defendants on certain claims, rather than independently making his own findings based on the evidence presented during arbitration.” Plaintiffs argued “that the arbitrator exceeded his authority. Plaintiffs did not, however, challenge before the trial court the arbitrator’s adoption of the court’s prior findings of fact. Accordingly, plaintiffs have waived appellate review of this argument, and we decline to overlook that waiver.” As to their second argument, plaintiffs claimed “that many of the arbitrator’s factual findings were contrary to the evidence presented during arbitration, and they ask this Court—as they had previously asked the trial court—to review those factual findings and deem them erroneous. But, as the trial court duly recognized, a court’s review of an arbitration award is ‘very limited,’ ‘and it is well established that “[a] court may not review an arbitrator’s factual findings or decision on the merits[.]’” Nor may the court “second-guess the arbitrator’s interpretation of the parties’ contract or ‘substitute its judgment for that of the arbitrator.’” The court held that despite “plaintiffs’ protestations to the contrary, their challenge falls squarely within this prohibited space and is thus outside the proper scope of the trial court’s, and this Court’s, review.” Thus, plaintiffs were not entitled to relief on this issue.
Sign ordinance restrictions; First Amendment prior restraint claim under 42 USC § 1983; Applicability of “claim preclusion” (res judicata) or “issue preclusion (collateral estoppel) to a subsequent suit after dismissal of a prior suit for lack of jurisdiction; Whether the requirements for issue preclusion were met; Whether plaintiff could relitigate its prior-restraint claim based on a factual allegation that was the basis for its prior suit; Claim based on a new factual allegation; Standing
[This appeal was from the ED-MI.] The court held that collateral estoppel (issue preclusion) rather than res judicata (claim preclusion) applies when a court is barring a subsequent suit after dismissal of a prior suit for lack of jurisdiction. It then concluded issue preclusion did not apply to one of plaintiff-Outdoor’s prior-restraint claims in this suit challenging local sign ordinance restrictions where the claim was based on “new facts.” Outdoor previously sued defendant-Canton Township alleging that its outdoor-sign restrictions violated the First Amendment. In that suit, Outdoor was held to lack standing. It then again sued Canton in this action, arguing that the ordinance was “effectively a prohibition on billboards.” The district court again dismissed the case, based on res judicata. On appeal, the court discussed the differences between claim preclusion and issue preclusion. It noted that when barring a later “suit after dismissal for lack of jurisdiction, courts have applied both claim and issue preclusion.” It determined that “issue preclusion is the more applicable doctrine.” Next, it considered whether the prior suit satisfied the requirements for issue preclusion. It concluded that issue preclusion barred “relitigation of Outdoor’s prior-restraint claim insofar as it is based on the same facts as the prior suit” (its refusal to seek a variance for its previously denied permit application). To the extent Outdoor tried “to refashion its prior-restraint claim by presenting recycled facts under a new theory, its claim is precluded.” But the court concluded that issue preclusion did “not extend to Outdoor’s claim based on its alleged refusal to seek ‘the variance necessary to display other billboards in the Township.’” This allegation was not made in the prior suit. The issue then became whether it had standing. The court found that Outdoor presented “a new theory and some fresh facts for its constitutional injury.” It alleged that Canton’s zoning scheme required “any person seeking to put up a billboard anywhere in the township” to obtain a variance and that township officials have “‘complete discretion’” to grant or deny them. Outdoor claimed that since the first lawsuit, it “has been ‘self-censoring its speech due to the prospect of having to submit itself’ to” their discretionary review. At the least, “Outdoor’s refusal to submit any billboard applications is a new factual development.” And its “decision not to seek a billboard permit plausibly implicates its First Amendment rights.” Thus, the court held that Outdoor had “standing to bring its facial challenge.” Affirmed in part, vacated in part, and remanded.
Rescission of an insurance contract; Fraud; Titan Ins Co v Hyten; Mota-Peguero v Falls Lake Nat’l Ins Co; Fatty v Farm Bureau Ins Co of MI (Unpub); Personal protection insurance (PIP) benefits; Uninsured motorist (UM) benefits
The court held that because defendant-insurer established plaintiff-insured’s “fraud in the procurement (such that we are not dealing with the claim of an innocent third party), and requested rescission, it was entitled to rescind the policy and declare it void ab initio.” Thus, the trial court erred in denying defendant’s summary disposition motion. Because plaintiff was “compensated for food delivery while operating the SUV, despite her declaration that she would refrain from doing so, defendant sent a letter to [her] notifying her that it rescinded the policy due to her alleged material misrepresentation of fact.” Plaintiff sued for breach of contract due to defendant’s failure to pay PIP benefits, as well as UM benefits. The court found as “to elements two through five of common-law fraud, under Hyten,” the reasoning in Fatty was “persuasive, as applied to the similar facts of” this case. The court held that because “plaintiff was already driving for the food delivery service at the time of her application, her answer to the question about food delivery established elements two, three, and four of common-law fraud under Hyten, . . . a false statement, that was known to be false, and that was made intentionality. As to element five, defendant acted in reliance on plaintiff’s answer to the question as evidenced by the fact that it accepted the application and provided insurance coverage. [It] likewise suffered injury as a result of [her] misrepresentation because, as established by the unrefuted affidavit of defendant’s underwriting specialist employee, if plaintiff had disclosed she would be using the SUV for food delivery, defendant would have charged a significantly higher premium for the coverage.” Similarly, the court found “as to the issue of materiality, the facts of this case are almost identical to those in Mota-Peguero and Fatty. Just as those plaintiffs falsely represented that they would not be using their vehicles to carry persons for a fee, plaintiff in the instant case misrepresented that she would not use the SUV to receive compensation for delivering food. Just as in Fatty, defendant in the present case submitted an unrefuted affidavit by its representative. While the affidavit in Fatty averred that the defendant would not have even issued the policy if it had known about the falsity of the defendant’s statement, defendant’s representative . . . conceded that defendant would have issued the policy had plaintiff accurately disclosed her intent to being compensated for food delivery while operating the SUV, but at a 33% higher premium, due to the increased risk of loss from such activity. While no affidavit was submitted in Moto-Peguero, it held ‘[t]his Court made clear in Fatty that that false representation satisfied all of the elements necessary to support rescission of the insurance policy issued to the insured, so the insurer was entitled to summary disposition against its insured.’” Thus, the court reversed and remanded for entry of an order granting defendant summary disposition.
Motion for restoration of appellate rights under MCR 6.428
Holding that “the trial court did not provide any rationale for its decision,” the court vacated the trial court’s order denying defendant’s motion for restoration of appellate rights under MCR 6.428, and remanded for reconsideration of his motion. He argued “that under the current version of MCR 6.428, he is entitled to the restoration of his appellate rights because he has shown that his appellate rights were denied because of factors outside of his control—that he delivered the completed ‘request for appointment of appellate counsel’ form to trial counsel, but counsel never provided it to the court.” The court declined “to resolve defendant’s substantive arguments because [it was] unable to discern the basis for the trial court’s decision to deny defendant’s motion.” It concluded that “the trial court did not specify whether—and why—it was applying the amended version of MCR 6.428 or the previous version, so we are unable to determine whether that choice ‘fell outside the range of reasonable and principled outcomes.’” It determined that on “remand, the trial court must specify whether it is applying the amended version of MCR 6.428 and provide its rationale.” Also, on remand, “the trial court must consider all record evidence and articulate its reasoning for the disposition of the motion.”
Motion for relief from judgment (MFRJ); Ineffective assistance of counsel; Failure to call a defense witness; Trial strategy
The court affirmed the trial court’s order denying defendant’s MFRJ. He was convicted of second-degree murder, FIP, and felony-firearm. He argued that his trial counsel was ineffective for failing to call defendant’s brother, R, “as a defense witness at trial because, as a result of [R’s] absence, he could not duly pursue his theory of self-defense or the lesser-included offense of voluntary manslaughter. According to defendant, the trial court erred by not awarding him relief on this basis or holding a Ginther hearing on the matter.” The court disagreed. It agreed “with the trial court’s conclusion . . . that defendant has failed to ‘overcome the strong presumption’ that trial counsel’s decision not to call [R] as a witness ‘was born from a sound trial strategy.’” Nor had “defendant overcome the presumption that this strategic decision was objectively reasonable.” The court noted that to further support his ineffective-assistance claim, “defendant recently provided two additional declarations: one from his current appellate counsel, and the other from his mother. None of this was presented previously or below. But even if these declarations were properly submitted on appeal and duly considered by this Court, they too are inadequate to overcome the presumption that trial counsel’s decision not to call [R] as a witness was sound trial strategy.” Because he “failed to show that trial counsel’s performance was deficient, he [was] not entitled to relief on his claim of ineffective assistance.” Thus, the court concluded that “the trial court did not reversibly err by denying this claim when reconsidering it on remand.”
Ineffective assistance of counsel; Trial strategy; Counsel’s concession of defendant’s guilt; People v McCoy; Sufficiency of the evidence; First-degree murder; Premeditation & deliberation; People v Oros; Principle that a definite pause between gun shots is sufficient to allow a jury to infer that a defendant had time for the “second look” or reflection; People v Johnson; Consciousness of guilt; People v McGhee
The court held defendant was not denied the effective assistance of counsel, and the evidence was sufficient to support his first-degree murder convictions. He was convicted of first-degree premediated murder, FIP, possession with intent to deliver, and felony-firearm, second offense, for shooting and killing the two victims. On appeal, the court rejected his argument that defense counsel conceded that defendant was guilty of the charged crimes, violating both his right to client autonomy and to the effective assistance of counsel. “It is clear that defense counsel properly exercised his discretion to implement a strategy in which he argued that defendant was at most guilty of second-degree murder, rather than first-degree premeditated murder. Further, it bears repeating that defendant never asserted his innocence or expressed his disapproval of defense counsel’s concession of guilt.” Moreover, he “presented no evidence showing that defense counsel ignored a request to maintain his innocence, nor does he explain why defense counsel’s attempt to convince the jury to convict him of the lesser included offense of second-degree murder was not part of a sound trial strategy in this instance.” The court also rejected defendant’s claim that the prosecution presented insufficient evidence of premeditation to sustain his first-degree-murder convictions. He believed the victims “robbed him. He thus waited in the parking lot for them to appear, shot both of them, and sped off immediately after the shooting. A 911 call pertaining to the shooting recorded two groups of gunshots with a lull between them, suggesting that defendant shot at one victim first, paused, then aimed and shot at the other. All of these facts suggest that the killing was premeditated.” Affirmed.
Claim for reimbursement by a Michigan Assigned Claims Plan (MACP) insurer; MCL 500.3175; Collateral estoppel; Mecosta Cnty Med Ctr v Metro Group; Res judicata; Foster v Foster; Privity; Law of the case; Rott v Rott; Notice & limitations for PIP claims; MCL 500.3145; Subrogation versus reimbursement; Allstate Ins Co v State Farm; Allen v Farm Bureau Ins Co; Appellate jurisdiction over fee order; MCR 7.203
Holding that plaintiff-insurer (Farmers) could seek statutory reimbursement under MCL 500.3175 and that defendant-insurer’s (Hudson) preclusion defenses failed, the court affirmed summary disposition for Farmers and declined to review a later attorney-fee order for lack of jurisdiction. Plaintiff serviced an assigned claim through the MACP after a priority dispute and paid the claimant over $967,000 in PIP benefits, then sought reimbursement from defendant, identified as highest priority. Defendant argued collateral estoppel, res judicata, law of the case, lack of notice under MCL 500.3145, and that Farmers was merely a subrogee. The court rejected the collateral estoppel argument because the reimbursement question had not been litigated and because issues “must be identical, and not merely similar” and “actually and necessarily litigated.” It also rejected res judicata and privity, explaining that Farmers’ reimbursement right is statutory and independent of the insured’s ability to recover directly and noting that “nothing in the no-fault act . . . conditions an assigned insurer’s reimbursement rights on the insured’s ability to recover directly from the higher-priority insurer,” and that privity requires parties to be “so identified in interest” that they assert the same legal right, which Farmers and the claimant did not. The court found the law of the case inapplicable because it “applies only to issues actually decided,” and the earlier appeal addressed only the claimant’s direct recovery under MCL 500.3145, not the insurer’s reimbursement under MCL 500.3175. It confirmed Farmers’ timeliness under MCL 500.3175(3) because the action was brought within one year of the last payment and after the responsible insurer was identified. The court characterized Farmers’ suit as reimbursement rather than subrogation, relying on Allstate and Allen, and thus not contingent on the claimant’s notice failure. Finally, because the fee order was entered after the claim of appeal, the court lacked subject-matter jurisdiction to review attorney fees.
Whether defendant-city complied with a city ordinance in contracting for surveillance technology; Whether the ordinance applied to the contracts; “Previously approved”; Requirement for public posting of a Surveillance Technology Specification Report (STSR); Relief for violation of the ordinance; Standing; Lansing Sch Educ Ass’n v Lansing Bd of Educ; Mootness; Laches; Community Input Over Government Surveillance Ordinance (CIOGS Ordinance); Detroit Police Department (DPD)
The court held that the trial court erred in part when it granted defendants summary disposition on plaintiffs’ claim that defendants violated a city ordinance (the CIOGS Ordinance) in contracting for surveillance technology. The technology is used to identify the location of gunshots in certain precincts. The Ordinance “provides specific requirements for a City department seeking to procure surveillance technology.” Among them is that the department must publicly release a STSR. This case arose from the DPD’s plans to extend the time period for its contract for the technology (the Extension Contract) and to expand its use (the Expansion Contract). Plaintiffs asserted that defendants violated the CIOGS Ordinance by (1) failing “to post an STSR at least 14 days before all required hearings and meetings” and (2) providing inadequate information in the STSR. The court first held that plaintiffs had standing. “Given the inherent nature of the technology—i.e., constant surveillance over a specified geographical area—these individual plaintiffs have been personally subject to the ShotSpotter surveillance, whereas residents in other parts of the City have not.” It then considered whether the Ordinance applied to the contracts at issue, focusing on the Ordinance phrase “previously approved.” Applying a “fair reading” standard, the court held that the better reading of the phrase was “‘a previous approval made in accordance with the CIOGS Ordinance.’” Thus, it found that both contracts were subject to the Ordinance’s approval process. The “facts were undisputed that defendants failed to comply with their requirements to post the STSR before all the relevant hearings and meetings.” As a result, the trial court erred in granting them summary disposition on this claim. But it rejected plaintiffs’ other claim, concluding while the STSR “was untimely posted, it otherwise met the requirements of the CIOGS Ordinance.” Thus, it affirmed the trial court’s grant of summary disposition on this claim. The “trial court did not address plaintiffs’ specific requests for relief” given that it granted defendants summary disposition, and the court concluded “the form of relief to which plaintiffs are entitled, if any, is a question best left to the trial court in the first instance.” The trial court also did not “address defendants’ affirmative defenses of mootness and laches. These and any other pertinent matters” were left to the trial court on remand. Affirmed in part, reversed in part, and remanded.
Sufficient evidence to support a PPO; MCL 600.2950; MCL 750.411h; Admission of evidence
The court affirmed a PPO entered for the protection of petitioner, concluding the trial court did not abuse its discretion. The parties were previously a couple. Because of the close proximity of their residences, “the trial court thought that a PPO for six months would afford petitioner protection through the summer months.” Although respondent argued that it “should have denied petitioner’s request for a PPO because respondent had not contacted petitioner for eight months, this Court has held that ‘MCL 600.2950 and MCL 750.411h dictate contemplation of all relevant present and past incidents arising between the parties.’” The court noted that petitioner “presented ‘evidence of two or more acts of unconsented contact that caused the victim to suffer emotional distress and that would cause a reasonable person to suffer emotional distress.’” In addition, it noted that “respondent previously assaulted, attacked, and wounded petitioner, which are acts listed in MCL 600.2950(1).” In this case, the “parties had not had contact for eight months at the time the petition for PPO was filed. However, the petitioner presented sufficient evidence of an assault, albeit not a sexual assault, that occurred eight months earlier to justify the trial court’s issuance of the PPO.” Respondent also argued that because the “City Attorney declined to charge [her] with any crime related to the alleged assaults, the trial court’s finding that the assault on [8/5/22], did in fact occur, was clearly erroneous.” This argument had no merit. The court held that “petitioner presented sufficient evidence in the form of testimony, photos, and videos for the trial court to find that he was assaulted by” respondent on 8/5/22. “This Court defers to the trial court to judge the credibility of the witnesses who appeared before it.” The court found that petitioner “was not required to present evidence that respondent was charged with assault. [He] only needed to present objective evidence to support his subjective, reasonable apprehension of future harm. [He] presented evidence that [she] had harmed him in the past, had harmed a friend months later, and that petitioner continued to see respondent and her family in Harbor Springs during the duration of the proceedings. It was not unreasonable for [him] to fear future harm by respondent when their paths continued to cross after” the end of their relationship. Thus, the court could not “conclude that the trial court’s decision to grant petitioner’s request for a PPO fell outside the range of principled outcomes.” Respondent also argued that it abused its discretion by failing to admit the results of her polygraph exam into evidence. The court found that because the PPO evidentiary hearing “is more akin to a trial on the merits rather than a post-conviction hearing, polygraph results are not admissible.” Thus, the trial court did not abuse its discretion in failing to admit the polygraph results.
Termination under § (c)(i); Reasonable reunification efforts; American with Disabilities Act (ADA) accommodations; In re Hicks/Brown; A parent’s obligation to engage in the services that are offered; Children’s best interests; In re Olive/Metts Minors; Parent-child bond; Guardianship; Ineffective assistance of counsel in child-protective proceedings; In re Casto; Adjournment; Good cause; MCR 3.923(G); MCL 712A.17(1); In re Utrera
Holding that the DHHS made reasonable efforts, that clear and convincing evidence supported termination under § (c)(i), and that termination of respondents-parents’ parental rights was in the children’s best interests, the court affirmed. The trial court took jurisdiction on the basis that respondents’ “home was unfit for the children due to [their] substance abuse.” On appeal, the court rejected respondents’ argument that the DHHS failed to make reasonable efforts toward reunification, considering “they were both diagnosed with severe opioid use disorder, they suffered from a disability requiring accommodation under the” ADA. It noted the ADA does not cover individuals “‘currently engaging in the illegal use of drugs[.]’” Moreover, the “DHHS provided a multitude of services to address respondents’ substance abuse but [they] simply failed to uphold their ‘commensurate responsibility’ to cooperate with, engage in, and benefit from” the services offered. As to statutory grounds, under § (c)(i), more than 182 days had passed, the conditions that led to adjudication remained, and there was no reasonable likelihood of rectification within a reasonable time given the children’s ages. As to best interests, the trial court’s findings as to “the children’s needs for permanence, stability, and finality . . . were supported by a preponderance of the evidence.” And in making its best-interests determination, the trial “court expressly acknowledged the children’s relative placement, but given respondents’ persistent failure to rectify their substance-abuse issues and the lack of safety, stability, and permanency their children faced as a result, [it] ultimately concluded that a guardianship with that relative placement—and the sort of exposure to respondents that the record showed would come with it—would not be appropriate and that termination would be in the children’s best interests.” Their claims of ineffective assistance also failed as they failed to “overcome the heavy burden of showing that their attorneys’ decisions . . . were not the product of objectively reasonable strategy.” Finally, the court upheld the denial of adjournments, noting the case had already been delayed by prior counsel withdrawals and was well past the timing rules. And delay would have undermined the children’s best interests in timely resolution.