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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Mandamus; Access to discovery; Attorney-client privilege; Upjohn Co v United States; Whether the “work-product” doctrine (FedRCivP 26(b)(3)) covered internal investigations; Whether the documents were created due to a party’s “reasonable” anticipation of litigation rather than its ordinary business purposes; Consideration of a declaration under 28 USC § 1746(2)
On petition for a writ of mandamus, the court vacated the district court’s order requiring petitioner-First Energy to produce documents to the claimants-shareholders relating to its internal investigations undertaken in response to federal subpoenas, and granted the writ. It held that the documents were protected by the attorney-client privilege and the work-product doctrine, and that First Energy met the requirements to obtain a writ of mandamus. First Energy received subpoenas in connection with a federal criminal complaint filed against an Ohio state legislator. It then retained separate outside counsel to conduct internal investigations. Claimants later filed this securities class action against First Energy and sought complete access to the fruits of those investigations. The district court granted their motion to compel production of the documents and denied FirstEnergy’s motion to certify its order for interlocutory review. First Energy then filed a petition for a writ of mandamus with the court and successfully requested a stay of the district court’s order. The court first considered whether the district court’s production order violated attorney-client privilege. It noted that in Upjohn, the Supreme Court held that “the privilege applies when a company seeks legal advice to assess risks of criminal and civil liability.” The court concluded that what “was true for Upjohn is true for First Energy. As with Upjohn, FirstEnergy and its board hired lawyers to ‘secure legal advice’ through internal investigations into the company’s potential criminal and civil wrongdoing.” The court also held that the work-product doctrine covered First Energy’s documents. Its “internal investigations produced materials ‘because of’ actual, not merely anticipated, legal and regulatory threats.” The court rejected the district court’s reasoning that the investigations were conducted for business, rather than legal, advice where “[o]ver and over, FirstEnergy showed that it primarily sought and received legal advice from its attorneys throughout the investigations.” The court further determined that the district court erred in excluding a declaration from a First Energy director where it “‘substantially’ met § 1746(2)’s requirements.” Finally, the court concluded that First Energy met the three requirements to obtain the writ. It had no “‘alternative means to obtain the relief’” it sought, it clearly was entitled to relief, and mandamus relief was appropriate where “‘predictable and certain’ privilege and work-product standards are essential for FirstEnergy and future litigants facing perilous litigation consequences[.]”
Malicious prosecution; Probable cause; Matthews v Blue Cross & Blue Shield of MI; Defense of property; Carter v Sutherland; Affirmative defense; People v Lemons; Distinction between the lack of probable cause & the “instituted” elements; Remand to a different judge; People v Walker
The court held that a factual dispute existed on the malicious-prosecution claim because a jury could find the assault-and-battery charges lacked probable cause in light of plaintiff’s defense-of-property justification. Plaintiff (a critic of defendant’s business) was collecting email addresses on a notebook outside an event for defendant’s company. A nonparty attendee (B) grabbed plaintiff’s notebook to strike out her email. A struggle followed in which plaintiff acknowledged pushing B and defendant. Body-cam video captured both sides’ accounts to police. Plaintiff was twice charged with assault and battery in relation to the incident. Both charges were dropped. She then filed this suit. The trial court granted defendant summary disposition. On appeal, the court first noted that probable cause requires “‘such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.’” It further explained that an affirmative defense can defeat probable cause when those facts were known to the complaining witness. “An individual is permitted to use ‘force for the purpose of reclaiming his property’ so long as the individual does not use more force than necessary to” do so. Viewing the evidence favorably to plaintiff, a juror could find her limited pushing was justified while retrieving the notebook, and thus, the lack of probable cause element was a triable issue. The court also clarified that plaintiff’s body-cam admission did not end the inquiry because an “‘affirmative defense is one that admits the doing of the act charged, but seeks to justify’ it.” Separately, the court rejected defendant’s argument that his “full and fair disclosure” to the officer established probable cause, explaining that such disclosure, if proven, relates to the advice-of-counsel defense, which concerns the element of who instituted the prosecution, not to the absence or presence of probable cause. The court declined to decide that affirmative defense because it was not properly raised, noting that “‘the prosecutor’s exercise of his independent discretion . . . is a complete defense’” but must be addressed in the first instance on remand. Finally, the court rejected “plaintiff’s argument that the case must be remanded to a different judge.” Reversed and remanded.
Sufficiency of a petition for continuing mental-health treatment; MCL 330.1473; In re Eddins; Person requiring treatment; MCL 330.1401(1)(c); In re Jestila
The court held that a defect in the second petition under MCL 330.1473 did not warrant reversal because a full hearing safeguarded respondent’s rights and clear and convincing evidence showed he was a “person requiring treatment” under MCL 330.1401(1)(c). Respondent, who had a long schizoaffective-disorder history, had recent hostile incidents, but repeatedly refused treatment, and denied needing medication. The probate court granted a second order authorizing up to 90 days of hospitalization/assisted outpatient treatment. On appeal, the court found respondent misread the record, noting the second petition clearly stated “the estimated time for further treatment was 90 days” and “the treatment team [did] not believe [respondent] would participate in treatment if not on a court order.” Still, the petition was deficient because it failed to state treatment results. “Because the second petition did not describe the results of the treatments listed, it was deficient under MCL 330.1473.” The court relied on the principle that “even if a faulty petition for continuing mental health treatment is filed, it does not automatically result in the deprivation of an individual’s rights,” and that by holding an evidentiary hearing the probate court “safeguarded respondent’s rights from an erroneous deprivation based on a faulty petition.” Turning to whether respondent was a person requiring treatment, the psychiatrist testified he was “concerned about injuries to others” given respondent’s history and escalation when off meds, while respondent maintained he did “fine off medication.” The court concluded that this showed respondent had a “‘lack of understanding of [his] need for treatment’” and was a “‘substantial risk of physical harm to others.’” It also found that strict compliance cases do not make every misstep reversible. Affirmed.
No-Fault Act (NFA); PIP benefits; MCL 500.3114(1); Domicile; Grange Ins Co of MI v Lawrence; Workman v Detroit Auto Inter-Ins Exch; Dairyland Ins Co v Auto Owners Ins Co; Whether the injured child was a named insured
The court held that the trial court erred (1) “by concluding that no genuine issue of material fact existed that” the injured young child’s (EZ) mother, plaintiff-next friend Zink, and thus, EZ, were domiciled at the address (“the Capac Address”) of EZ’s maternal grandmother, defendant-State Farm’s insured (R), at the time of the accident and 2) “to the extent it concluded, as a matter of law, that EZ, Zink, or both were named in” R’s insurance policy. The case arose “from catastrophic injuries” EZ suffered “in a car accident while a passenger in a vehicle owned and driven by” R. At the time of the accident, Zink “did not have an automobile insurance policy, but” R had one with State Farm. At issue was whether EZ was domiciled at R’s “home or named in the applicable insurance policy when the accident occurred, such that EZ was eligible to recover” PIP benefits from State Farm under the NFA. The court found that there was “no genuine issue of material fact that, at the time of the accident, Zink (and, thus, EZ) was domiciled at” a different address (the Yale Address). At most, the record demonstrated “Zink’s intention to become domiciled at the Capac Address at some indeterminate time in the future. However, she had not changed her domicile at the time of the accident.” The record showed “that, before the accident, Zink maintained her ‘true, fixed, permanent home, and principal establishment’ at the Yale Address . . . [;] visited the Capac Address and began preparing to move there but nonetheless intended to return to the Yale Address after each visit . . . [;] and had not yet resided at the Capac Address for any period of time with the intention of permanently staying there[.]” Thus, the court concluded that “EZ’s domicile remained her domicile of origin—the Yale Address.” State Farm further argued “the trial court erred to the extent it concluded EZ was a named insured under” R’s policy. The court found that the trial court’s conclusions as to R’s “insurance policy are unsupported by the record.” The court reversed the trial court’s ruling that State Farm was the highest-priority insurer and remanded.
Whether a transfer of venue was proper; 28 USC § 1404(a); Jurisdiction to issue a writ of mandamus; § 1651(a); Timeliness of a petition for mandamus; Requirements for obtaining a writ of mandamus; In re Univ of MI; A clear & indisputable right; “An unlawful exercise of power” by transferring a case to an improper forum; Johnson & Johnson v Picard; Whether an adequate alternative remedy was available; Whether a retransfer motion in the transferee circuit is an adequate alternative remedy; Appropriateness of mandamus under the circumstances
On petition for a writ of mandamus, the court granted the writ, directing the district court to request retransfer of the case from the district court to which it had transferred it. The court held that the district court exercised “unauthorized power” by sua sponte transferring the case. In this diversity suit, plaintiffs are alumnae and former members of a national sorority headquartered in Ohio. They sued the sorority and its leadership in an Ohio federal district court over its policy admitting transgender individuals into the sorority. Months before, another group of members had sued over the same issue in federal court in Wyoming. The district court ruled that the Ohio case was “duplicative” of that suit and, on its own initiative and without briefing from the parties, ordered it transferred to Wyoming. Plaintiffs moved for reconsideration, arguing that the transfer was improper where under § 1404(a), “the District of Wyoming was not a district ‘where [the case] might have been brought.’” The district court dismissed the motion for lack of jurisdiction as it had already transferred the case, and added that it had “‘exercised its inherent authority to transfer under the first-to-file rule.’” On appeal, the court found that it had jurisdiction to grant the writ now under § 1651(a) “because the writ would ‘aid’ our future ‘jurisdiction[]’ to review an appeal at the end of the case.” It rejected defendants’ argument that the petition needed to be filed before the transfer. When a petitioner asserts that the transferor court lacked the authority to order the transfer, “the transferor district court cannot destroy its respective circuit court’s jurisdiction merely by effectuating the transfer quickly.” The court also held that petitioners met the three requirements for a writ. They had shown “a ‘clear and indisputable’ right” to relief where the district court exercised “unauthorized power” when it transferred the case to Wyoming, which “was not a forum where the case ‘might have been brought.’” Petitioners also had “‘no other adequate, specific, legal remedy.’” The issue here was a “purely legal question: Does a district court have any inherent authority to transfer a case outside § 1404(a)’s limits? The answer is no.” The court noted that in Johnson & Johnson, it “granted mandamus relief in identical circumstances.” And other circuits have also found “that petitioners may rely on mandamus to correct errors of law in inter-circuit transfers.” Finally, the court held that mandamus was an appropriate remedy under the circumstances. The district court committed “an error of law by holding that the requirements of § 1404(a) did not apply” and ordered the “‘transfer on its own motion and without indication from any party that this forum would be inconvenient.’”
Claims for damages arising from sewer backups; The Governmental Tort Liability Act; Exception in MCL 791.1417(3); “Proximate cause”; “Substantial proximate cause” (MCL 691.1416(l)); Premature summary disposition; Whether plaintiffs had to investigate their claims & collect evidence to prove them before suing; MCR 1.109(E)(5)(b); Design defect; Effect of a lease on a defendant’s liability; Inverse condemnation claims; Gross negligence; Timeliness of a class certification motion; Sufficiency of a concurrence in summary disposition motions; Great Lakes Water Authority (GLWA); Detroit Water & Sewerage Department (DWSD)
In these consolidated appeals arising from sewer backups, the court held that summary disposition of claims by a group of plaintiffs (the Dubin plaintiffs) under MCL 791.1417(3) against some defendants was premature. It found that summary disposition for defendant-Detroit was proper as to defects existing in the portion of the sewerage system under defendant-GLWA’s control but not as to Detroit’s local system. As to the Johnson plaintiffs, it held that dismissal of their inverse condemnation claims was proper, but dismissal of their gross negligence claims against governmental employees (John Does 1-10) in their individual capacities was premature. As to their claims under MCL 691.1417(3), it affirmed summary disposition for Detroit and defendants-DWSD, Grosse Pointe, and Grosse Pointe Park but reversed as to GLWA and defendant-Grosse Pointe Farms. Plaintiffs claimed that GLWA, the regional sewerage system operator, was largely responsible for the backups, and that the other defendants, which “owned or operated local sewerage infrastructure connected to GLWA’s infrastructure, or which had agreements with GLWA,” were jointly responsible. The court first concluded “the trial court erred as a matter of law when it determined that the Dubin plaintiffs waived their right to seek class certification.” As to their claims against GLWA, it found they “did not have an adequate opportunity to conduct discovery on the issue of causation.” As to their claims against Grosse Pointe Shores, the court rejected its arguments that they “had to investigate their claims and collect evidence to prove them even before filing their complaint” and that their claims were “mere conjecture” not warranting further discovery. Further, it concluded the trial court erred in “granting summary disposition on the basis that they failed to show that a design defect existed under MCL 619.1417(3)(b).” As to the Johnson plaintiffs, the court held that they did not state a viable inverse condemnation claim. But they did not have a reasonable opportunity to conduct discovery as to their gross negligence “claims against John Does 1 through 10 and whether their alleged failure to respond properly to the rain event was a factual cause of the damage at issue, such as whether one or more of the Johnson plaintiffs’ homes would have suffered the sewer backups they did but for that failure.” As to their claim against GLWA, they identified reports suggesting “there was evidence that one or more defects in GLWA’s system may have exacerbated the flooding problem.” Affirmed in part, reversed in part, and remanded.