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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Interlocutory appeal; Qualified immunity; Mitchell v Forsyth; Limits on interlocutory fact review; Scott v Harris; Johnson ex rel XM v Mount Pleasant Pub Schs; Appellate jurisdiction; First Amendment retaliation elements; Kirkland v City of Maryville; Clearly established right
[This appeal was from the ED-MI]. Holding that the district court properly denied qualified immunity to defendant-police commissioner on the purely legal questions presented and dismissing the balance of the interlocutory appeal for lack of jurisdiction over fact-bound issues, the court affirmed in part and dismissed in part. After plaintiff-dispatcher filed a sex-discrimination suit, Internal Affairs opened an investigation 11 days later that culminated in her termination. She was later reinstated with a demotion, unpaid suspension, and promotion bar. She brought a First Amendment retaliation claim against defendant-city and the commissioner in his individual capacity. The district court denied the commissioner qualified immunity, concluding “timing, scope, and the commissioner’s admitted role created a triable issue.” On appeal, the court confirmed jurisdiction to resolve legal questions and “separate an appellant’s reviewable challenges from its unreviewable” ones, explaining that it could not revisit fact disputes and would set aside fact determinations only if “blatantly contradicted by the record[.]” As to the First Amendment retaliation element of adverse action, the court rejected the argument that plaintiff alleged only an investigation, noting she alleged termination and undisputed discipline, which are adverse actions because they “would deter most ‘individuals of ordinary firmness’ from continuing to engage in protected speech.” As to causation, the commissioner’s argument that a reasonable jury could not find in plaintiff’s favor on the issue was fatal to the court’s “jurisdiction because it’s the exact kind of ‘evidence sufficiency’ argument Johnson prohibits” and the record showed plaintiff “presented enough specific evidence to create a colorable factual dispute.” As to clearly established law, the court held that public employees have a clearly established right to be free from retaliation for protected speech and that adverse action “with the motivation, even in part,” of retaliation violates the First Amendment. Thus, the commissioner was not entitled to qualified immunity. The court declined pendent appellate jurisdiction over state civil rights claims because resolving qualified immunity would not “necessarily resolve” those issues.
Breach of contract; Defamation; Mitan v Campbell; Whether remarks were “false & defamatory” & “unprivileged communications”; Qualified privilege; Res judicata; Motion to amend the complaint to add a defendant; MCR 2.207; Kubiak v Hurr; Intentional infliction of emotional distress (IIED); “Extreme & outrageous” conduct; Threats; Sanctions for filing a “frivolous” action; MCL 600.2591(3)(a)(iii); Circumstances at the time a claim was asserted
In these consolidated appeals, the court held that defendant-school did not breach its contract with plaintiffs-parents by expelling their children and that the trial court did not err in granting defendants summary disposition of plaintiffs’ defamation claims. It also found that another claim was barred by res judicata, and that the trial court did not abuse its discretion in denying plaintiffs’ motion to amend the complaint to add a defendant. Further, it upheld summary disposition on the IIED claim under MCR 2.116(C)(8). But it concluded “the trial court’s finding of frivolousness was clearly erroneous.” As to the contract claim, the school “has a ‘Parent Handbook’ that sets out the terms of its relationship with families attending the school. It expressly provides that student dismissal is a possible response for particularly aggravated forms of parental misconduct, and provides a nonexclusive list of qualifying behaviors[.]” One of the individual defendants (the “Head of School”) restricted plaintiff-father’s access to the school property, a directive that was “disobeyed. That is a trespass.” The court held that there was no contract breach because there was no dispute that the father violated the “directive not to continue coming to the school to observe recess; his conduct therefore is on the Parent Handbook’s list of behaviors justifying expulsion.” As to the defamation claims, it concluded all “the remarks which plaintiffs allege defamed them are either not capable of defaming them, were not made with actual malice, or are simply true.” As to the IIED claim, the court found that “a dispute that ripens into the defendants severing their business relationship with plaintiffs is simply not ‘utterly intolerable in a civilized community.’” Reviewing examples of actionable IIED, it determined that the allegations here were “nowhere close to these in severity[.]” As to sanctions, the court noted that a “‘court must determine whether a claim or defense is frivolous on the basis of the circumstances at the time it was asserted.’” It concluded that one of the claims the trial court found frivolous “was not devoid of arguable merit at the time it was filed[,]” and as to another claim, plaintiffs could not have known the identity of the person who made the statement (and that the school could not be held liable for it) when they filed their suit against the school. It affirmed summary disposition for defendants but reversed the sanctions award.
Sentencing after supervised-release revocation; Procedural reasonableness; Consideration of the seriousness of the supervised-release violation; 18 USC § 3583(e) (incorporating most of the § 3553(a) factors); Esteras v United States; United States v Hoyle; Substantive reasonableness; Effect of a within-Guidelines sentence
[This appeal was from the ED-MI.] Holding that the district court did not err in considering the seriousness of defendant-Patterson’s supervised-release violation, the court rejected his procedural and substantive reasonableness challenges to his sentence. While on supervised release after being convicted of drug conspiracy offenses, Patterson murdered a man, which resulted in revocation of his supervised release. The advisory Guidelines range for his supervised-release violation was 51 to 63 months. The district court sentenced him to 60 months, in accordance with a statutory cap. He argued that it “procedurally erred by treating the seriousness of his supervised-release violation as a mandatory factor for consideration.” The court noted that it is true this is not a mandatory factor, but it is “a discretionary factor that may be considered.” And the court saw “no indication that the district court misunderstood its discretion or viewed the seriousness of the violation as a mandatory factor.” Although it “did dwell for some time on the gravity of the murder, it did so because Patterson had argued for a more lenient sentence.” The court discussed the Supreme Court’s decision in Esteras, noting that when “3553(a)(2)(A) speaks of the ‘seriousness of the offense,’ the term ‘offense’ refers to ‘the underlying crime of conviction, not the violation of the supervised-release conditions.’ Courts are forbidden from considering the former, but not necessarily the latter. Here, the district court didn’t consider the seriousness of Patterson’s ‘offense’—the drug conspiracy—as § 3553(a)(2)(A) uses that term. Instead, [it] discussed the seriousness of [his] supervised-release violation—committing murder[,]” which it was permissible to consider. The court found “no procedural error, much less a plain one, in the district court’s decision.” As to Patterson’s substantive reasonableness challenge, the court rejected his claim “the district court placed too much weight on the seriousness of the supervised-release violation[,]” concluding that it did not abuse its discretion in weighing the relevant “factors and imposing a within-Guidelines term of imprisonment. Sixty months for murdering someone while on supervised release isn’t ‘too long.’” Affirmed.
Plea validity requirements; MCR 6.302; People v Cole; Post-sentence withdrawal; MCR 6.310(C)(1); People v Brinkey; Cobbs evaluation compliance; MCR 6.310(B)(2)(b); People v Cobbs
The court held that defendant’s guilty plea was knowing and voluntary and that he had no absolute right to withdraw it because the sentence imposed fell within the trial court’s Cobbs evaluation of the “bottom one-third” of the guidelines. Defendant pled guilty to CSC III after the trial court gave a Cobbs evaluation that it would sentence within “the bottom one-third of the guidelines whatever they may be at the time of sentencing.” The guidelines minimum range later calculated was 87 to 181 months, and the court imposed 118 to 270 months after correcting an initial 120-month minimum. The trial court denied defendant’s motion to withdraw his plea, rejecting his alternative computations of the “bottom one-third.” On appeal, the court held that the plea was understanding and voluntary, explaining that a defendant “must be fully aware of the direct consequences of the plea,” and that the record showed the trial court promised only to sentence within the bottom third once the range was known. No “express range was articulated in the trial court’s preliminary evaluation.” The court noted that defendant “could not have fairly interpreted the Cobbs evaluation that his sentence would fall within ‘the bottom one-third of the guidelines,’ to require a sentence entirely and significantly below his guidelines range.” It also found that withdrawal was not required post-sentence because the Cobbs evaluation was honored, reiterating that a defendant has an absolute right to withdraw only “if the judge later determines that the sentence must exceed the preliminary evaluation.” Affirmed.
When is a parked car “involved” in an accident; Property protection insurance (PPI) benefits; Turner v Auto Club Ins Ass’n; MCL 500.3121(1); Insurer priority; MCL 500.3125; Personal protection insurance (PIP) case law; Miller v Auto-Owners Ins Co; Heard v State Farm Mut Auto Ins Co; Distinguishing “spontaneous combustion cases” & “traffic cases”; Whether the vehicles in those cases were “parked”; Amy v MIC Gen Ins Corp
Holding that the vehicle at issue “was not ‘involved in the accident’ under MCL 500.3125” and thus, defendant-State Farm was not liable for PPI benefits, the court affirmed summary disposition for State Farm. The issue on appeal was whether a properly parked vehicle (a Ford Escape) “that was struck by a moving car and propelled into a pizzeria was ‘involved in the accident’ for purposes of assigning responsibility for PPI benefits under MCL 500.3125.” The vehicle owner was insured through State Farm. Plaintiffs-insurers “provided property insurance to the building owner and the pizzeria[.]” The court concluded that a line of Michigan Supreme Court cases – Miller, Heard, and Turner – determined the outcome of this case. Under those decisions, “a parked vehicle is generally treated as a stationary object—akin to a tree, signpost, or building—when determining whether it was ‘involved’ in an accident under Michigan’s no-fault statute. While those cases also suggest that a parked vehicle may be considered ‘involved’ if one of the parked vehicle exceptions in MCL 500.3106(1) applies, that provision is specific to PIP claims and does not expressly extend to PPI benefits.” The court added that none of those exceptions applied here in any event. It was unpersuaded by plaintiffs’ arguments based on groups of cases that it referred to as the “spontaneous combustion cases” and the “traffic cases,” finding them distinguishable. Rather, it concluded that “because the Escape was properly parked, unoccupied, not in use as a motor vehicle, and played no active role in the accident, it was not ‘involved’ within the meaning of MCL 500.3125.”
Reimbursement cap under no-fault; MCL 500.3157(2); Central Home Health Care Servs v Progressive MI Ins Co; No-Medicare-rate cap; MCL 500.3157(7); Unpreserved MCL 500.3157(8) argument; AAA Life Ins Co v Department of Treasury
The court held that the trial court correctly applied MCL 500.3157(2) to cap payments for the claimant’s home-health-aide and skilled-nursing services and affirmed the grant of partial summary disposition. The patient was injured in 2020 and received in-home care provided by plaintiff. After the 2021 no-fault amendments defendant-insurer reduced the hourly reimbursement. The trial court ruled that Medicare provides amounts payable for the services, so subsection (2) controls. It granted plaintiff’s motion for partial summary disposition. On appeal, the court held that the dispositive inquiry is whether Medicare provides an amount payable and explained that “the simple question to answer is whether Medicare covers the service at issue,” not how Medicare calculates payment. It noted Medicare billing codes for the services and the insurer’s use of those codes, concluding that there are amounts payable under Medicare and that subsection (2) applies. The court found defendant’s reliance on distinctions between fee-for-service and prospective payment systems immaterial because the statute defines Medicare “‘without regard to the limitations unrelated to the rates in the fee schedule . . . .’” It further found defendant’s subsection (8) limitation argument waived because it was raised for the first time on reconsideration. The court declined to overlook preservation given factual disputes about 2019 average charges.
Reconsideration standard; Shenandoah Ridge Condo Ass’n v Bodary; Late response to a summary disposition motion; MCR 2.116(G)(1)(a)(ii)
The court held that the trial court did not abuse its discretion in denying plaintiff’s motion for reconsideration after plaintiff failed to file a timely response to a motion for summary disposition. Plaintiff sued his insurer, a municipality, and an officer after two crashes. The trial court issued a hearing date for the municipal defendants’ summary disposition motion, but a scheduling order was misfiled and not provided to plaintiff. The trial court decided the motion on the merits without oral argument when plaintiff filed no response, and later denied reconsideration. On appeal, the court explained that a party seeking reconsideration must show a palpable error and that correction would yield a different result. The court noted that, absent a court-set period, MCR 2.116(G)(1)(a)(ii) provides that a response is due at least seven days before the hearing, and that the misfiled order did not relieve plaintiff of complying with that rule. The court observed that plaintiff undisputedly had notice of the hearing date, so the failure to respond remained a violation of the filing deadline. The trial court did not have to consider plaintiff’s late responsive arguments. Because no palpable error was shown, the court affirmed.
Action to quiet title; Right to use & maintain the disputed portion of a public right of way; MCL 224.19b(1); “Adjacent”; Rights of an owner of property abutting upon a street; 2000 Baum Family Trust v Babel; Trespass; Easement claim; Alleged violation of MCL 247.2413 & 750.382(1); Equitable & injunctive relief; Waiver; Monroe County Road Commission (MCRC)
The court held that “there was no genuine issue of material fact that defendants did not trespass by” (1) trimming tree branches overhanging the public road right of way (ROW) at issue or (2) landscaping the ROW. As to plaintiffs’ claims for equitable relief, they waived review of any claim of error related to the trial court’s order as to landscaping and future tree branch trimming. And “the trial court’s determination of the parties’ mowing responsibilities was not outside the range of reasonable and principled outcomes.” It also did not err in denying plaintiffs injunctive relief as they did not establish “they had an exclusive right of possession of the public road [ROW] adjacent to their property.” In this quiet title action, plaintiffs appealed “the trial court’s order denying their motion for an injunction, dismissing their trespass claims, and granting the parties authority to maintain the public” ROW, subject to the restrictions of the county road commission (nonparty-MCRC) and the local township. Plaintiffs contended genuine issues of material fact existed as to “who has the right to use and maintain the disputed portion of the public” ROW and the relief to which they were entitled. The court disagreed. They “claimed an easement in the [ROW] between their property line and Washington Boulevard and contended that defendants trespassed on their easement.” However, they failed to offer evidence establishing “that they hold a private easement in the [ROW]. Rather, MCRC holds a public easement for the road.” They further “alleged that defendants trespassed by trimming trees that overhang” the ROW. The trial court ruled “that neither of the parties owned the [ROW] and, as adjacent property owners, defendants were authorized to maintain” it. The court noted that MCL 224.19b(1) provides that an “‘adjacent property owner is not required to obtain a permit for work incidental to the maintenance of the [ROW] lying outside of the shoulder and roadway.’” The statute does not define adjacent so the court consulted Black’s Law Dictionary (12th ed), which defines the word “as ‘[l]ying near or close to, but not necessarily touching.’ Consistent with this definition, defendants are adjacent property owners.” And the court found that none “of the provisions cited by plaintiffs grant them a right of exclusive possession of the” ROW. Affirmed.
Termination under § 19b(3)(c)(i); In re Williams; Reasonable reunification efforts
Holding that the trial court did not err in (1) finding that the DHHS made reasonable reunification efforts or (2) terminating respondent-mother’s parental rights under § (c)(i), the court affirmed. As to her unpreserved claim related to reunification efforts, respondent alleged that it was “‘unclear’ what, ‘if any,’ services DHHS provided to assist her with housing, employment, or transportation, but” she failed to “actually allege no services were offered or explain how, if they were, the offered services were deficient.” She further contended that it “failed to locate, or pay for, her substance abuse treatment. However, the record reflects that respondent was referred to substance-abuse treatment, but failed to uphold her ‘commensurate responsibility’ to engage in and benefit from it.” Her assertion that the “DHHS should have found, and paid for, treatments that did not require Medicaid because she failed to apply for it until late in the proceedings also” lacked merit. The “DHHS is required to make reasonable efforts—not limitless or excessive ones.” Further, the record showed it made several “attempts to work with respondent to help her apply for Medicaid so that she could pursue more services, but [she] nonetheless failed to do so.” As to § (c)(i), over 182 days had passed since the initial disposition. The children were removed “because of improper care and supervision, substance abuse, and untreated mental health issues. Respondent was referred to numerous services throughout the lengthy lower court proceedings to address these issues, but failed to timely participate in, or benefit from, them. As a result, [she] failed to address her mental health and substance abuse issues. When DHHS ultimately petitioned” to terminate her parental rights, she “had missed 59 of the 69 substance screenings she was offered. Seven of the tests [she] did complete were positive for illegal substances.” In addition, she “failed to address her issues with parenting skills[,]” stopped attending parenting time visits, and “still lacked stable housing.”