Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Motion to vacate an arbitration award; DAIIE v. Gavin; MCR 3.602(J)(2)(c); Claim the arbitrator exceeded his authority by committing an error of law; Miller v. Miller; Common-law conversion; Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc.; Calculation of damages; Conversion of websites; Sarver v. Detroit Edison Co.; Expert testimony; MCR 3.602(A) (incorporating provisions in the Uniform Arbitration Act (MCL 691.1681 et seq.)); MCL 691.1695(1); Principle that questions of the admissibility of evidence are for the arbitrator to decide; Gozdor v. Detroit Auto. Inter-Ins. Exch.; Defendants’ individual liability
The court rejected defendants’ claim that the arbitrator committed an error of law as to conversion or the calculation of damages, and held that the arbitrator correctly applied Sarver in ruling that the websites plaintiffs set up and operated for years could be the subject of a conversion action. Further, the trial court correctly refused to vacate the arbitration award based on the arbitrator’s consideration of expert testimony. But in his supplemental opinion, the arbitrator did not fully comply with the trial court’s remand order to address defendants’ individual liability for conversion. Thus, the court affirmed in part the denial of defendants’ motion to vacate the arbitration award, and remanded for clarification of the original award as to each defendants’ liability. The case involved a dispute over business assets. “The arbitrator found that plaintiffs proved a claim for common-law conversion and awarded plaintiffs damages of $120,750, plus costs, fees, and judgment interest. Defendants moved to vacate or modify the award, and the parties stipulated to remand the matter to the arbitrator for clarification of the award. After the arbitrator issued a supplemental opinion, defendants” unsuccessfully again moved to vacate the award. They argued that the arbitrator committed an error of law by determining that they could be liable for conversion of property plaintiffs had surrendered to a bank. The court rejected this claim because “the arbitrator did not find that plaintiffs had surrendered the property at issue to the Bank[.]” Rather, the arbitrator determined that they “were the lawful owners of the intangible assets at issue in this case, including, but not limited to, intellectual property, trade names, e-mail accounts, customer lists and related data, websites, promotional materials, bidding data, telephone numbers, and signage. The arbitrator found that the Bank had the right to seize the intangible assets under the terms of its surrender agreement with plaintiffs, but that the Bank released its lien on those assets, which meant that plaintiffs retained their ownership over” them. Given that he concluded, as a matter of fact, that they retained ownership over those intangible assets, there was no error of law in finding that defendants could be liable for converting those assets.
Age discrimination under the Age Discrimination in Employment Act; 29 USC § 623(a)(1); Gross v. FBL Fin. Servs., Inc.; Burden-shifting framework; McDonnell Douglas Corp. v. Green; Miles v. South Cent. Human Res. Agency, Inc.; Prima facie case; George v. Youngstown State Univ.; Alexander v. CareSource; Highfill v. City of Memphis (Unpub. 6th Cir.); Jackson v. VHS Detroit Receiving Hosp., Inc.; Romano v. Hudson City Sch. Dist. (Unpub. 6th Cir.); Brown v. City of Cleveland (Unpub. 6th Cir.); Hedrick v. Western Reserve Care Sys.; Pretext; Provenzano v. LCI Holdings, Inc.; Wexler v. White’s Fine Furniture, Inc.; Gray v. Toshiba Am. Consumer Prod., Inc.; Geiger v. Tower Auto.; The “cat’s paw” theory of discrimination; Staub v. Proctor Hosp.; Chattman v. Toho Tenax Am., Inc.
[This appeal was from the WD-MI.] The court affirmed summary judgment for defendant-employer (WestRock) in this age discrimination case where plaintiff-Flowers did not meet the job qualifications and, except for “age-based considerations, the ADEA does not empower job applicants to second-guess” a potential employer’s job qualifications. Flowers applied for a pipe-fitting job with WestRock. Based on factors relating to his prior employment, WestRock rejected his application without giving him an interview. Flowers, who was 71 years old, sued for age discrimination. The district court granted WestRock summary judgment, ruling that Flowers was not “otherwise qualified for the job” where he admitted that he could not read blueprints or select pipe sizes, and he had previously expressed an unwillingness to weld. The district court also determined that even if he had made his prima facie case, he failed to establish that WestRock’s reasons for not hiring him were pretextual. The court first held that Flowers failed to establish a prima facie case of discrimination where he did not establish that he was “otherwise qualified” for the job. He countered that the abilities WestRock required where not really “necessary,” but the court declined to override an employer’s determination as to job requirements. It noted that while there may be cases where an employer’s alleged non-discriminatory considerations might hide discriminatory motives, that was likely not the situation here where Flowers admitted that “he lacks a specific skill or experience required by the employer.” The court found no indication that age discrimination factored into WestRock’s decision not to hire Flowers. Also, there was no evidence that WestRock hired “a virtually identical individual outside the protected class . . . .” His claim under the “cat’s paw” theory of discrimination was also unsuccessful. The court declined to apply the theory to a situation involving job applicants. Additionally, it noted that there was no evidence that the supervisors in this case engaged in age bias.
A municipality’s decision to deny a franchise for electrical service; Const. 1963, art. 7, § 29; TCG Detroit v. City of Dearborn; City of Lansing v. State; Whether such a decision is subject to judicial review for reasonableness; Union Twp. v. City of Mount Pleasant; Due process; U.S. Const. amend. XIV; Delmarva Power & Light Co. v. City of Seaford (DE); Procedural due process; Cummings v. Wayne Cnty.; Galien Twp. Sch. Dist. v. Department of Educ. (On Remand); Property interest; Board of Regents of State Colls. v. Roth; Principle that a franchise is a contractual agreement; City of Niles v. Michigan Gas & Elec. Co.; City of Detroit v. Detroit United R.R.; Consumers Power Co. v. Michigan Consol. Gas Co.; Unfair competition; In re MCI Telecomm. Corp. Complaint; Burns v. Schotz; Tortious interference with a business expectation; Cedroni Ass’n, Inc. v. Tomblinson, Harburn Assoc., Architects & Planners, Inc.; Constitutional takings claim; Inverse condemnation; Blue Harvest, Inc. v. Department of Transp.; In re Certified Question; Town of Castle Rock v. Gonzales
The court held that the trial court did not err by granting defendants-village, power company, and sales representative summary disposition of plaintiff-utility company’s claims. Plaintiff alleged a variety of claims after the village declined to renew plaintiff’s franchise to provide electrical service in the village. On appeal, the court rejected plaintiff's argument that the trial court erred by ruling that a municipality's decision to deny a franchise under Const. 1963, art. 7, § 29, is not subject to judicial review for reasonableness. "[M]erely because a village’s decision related to a utility’s use of the village’s right-of-way is subject to a reasonableness standard, that does not mean that the same standard should apply to the village’s decision related to whether the utility is authorized to conduct business within the village.” In addition, plaintiff “failed to allege facts to show that it was denied due process.” Further, although plaintiff “may have had a unilateral expectation that it would be issued another franchise, that is all it had.” When plaintiff’s franchise with the village expired, "it had no 'right' to continue servicing" those customers. "And without this right, it had no legitimate claim to service those customers, which is fatal to any claim of a protected interest." The court also rejected plaintiff’s contention that the trial court erred by granting defendants summary disposition of its unfair competition claim. Not only was plaintiff “not given an exclusive right to service the” village, it “was only permitted to service customers who were unable to obtain electric service” from the village. It next upheld summary disposition for defendants on plaintiff’s tortious interference with a business expectation claim, finding plaintiff had no valid business expectation, and there was nothing improper about the village “starting to plan for life without” plaintiff before the franchise was set to expire. Finally, as to plaintiff's contention that the trial court should have ruled that the village's acquisition of its customers constituted an unconstitutional taking, requiring that it be compensated, plaintiff could not “establish the necessary property right because after the franchise expired, which is when [the] property purportedly was taken, it had no ‘right’ to provide electric service to any customers” in the village. Affirmed.
Lay opinion testimony; Plain error review; People v. Carines; People v. Randolph; People v. Manwell (Unpub.); People v. Thorpe; People v. Harbison; MRE 702; Bolstering the victim’s credibility; Children’s Protective Services (CPS)
On remand from the Supreme Court to reconsider its holdings in parts III and IV of Manwell as to the testimonies of CPS worker R and Detective N in light of the consolidated cases of Thorpe and Harbison, the court again affirmed. Defendant was convicted of sexually abusing his daughter, D. The court found that the challenged trial testimony of both R and N was “admissible lay opinion testimony under MRE 701, that the testimony did not constitute improper vouching for [D’s] credibility, and that defendant failed to establish plain error affecting his substantial rights.” The court held that Thorpe and Harbison did not affect the analysis in Part III of the court’s original opinion. Part IV of the court’s opinion addressed defendant’s argument that R and N improperly bolstered D’s credibility. The court previously determined that the testimony that the victim “appeared to be ashamed and confused was not a pronouncement on her credibility.” Nothing in Thorpe or Harbison altered this conclusion. Thus, defendant failed to establish plain error affecting his substantial rights.
Sufficiency of the evidence for a conviction of possession of child sexually abusive material (CSAM); MCL 750.145c(1)(c) & (4); People v. Flick; Credibility; People v. Mikulen; Great weight of the evidence; Prosecutorial misconduct; Attacking the credibility of the defense; People v. McLaughlin; People v. Kennebrew; Whether the prosecutor argued facts that were not substantiated by evidence; People v. Unger; Presumption jurors follow their instructions; People v. Mahone; Misrepresenting evidence; People v. Watson; Sentencing; Scoring of OV 13; MCL 777.43(1)(c) & (2)(a); People v. Harmon; Alleged violation of Brady v. Maryland; People v. Chenault; Juror misconduct; People v. Dunigan; People v. Rose; People v. Fletcher; Ineffective assistance of counsel; People v. Carbin; Failure to interview two witnesses; People v. Trakhtenberg; People v. Jurewicz; Failure to become familiar with the facts of the case; People v. Grant; Failure to get an expert to examine defendant’s cell phone or the cell phone extraction report; Trial strategy; People v. Payne; Failure to provide defendant with all the discovery materials; Failure to either suppress or clarify statements defendant made during a polygraph exam; Whether counsel should have moved to suppress defendant’s statement; Failing to advance a meritless position; People v. Snider
The court held that there was sufficient evidence to support defendant’s convictions for possession of CSAM, and that they were not against the great weight of the evidence. Further, the prosecution did not engage in misconduct, OV 13 was accurately scored at 25 points, there was no Brady violation, the jury was not exposed to extraneous information, and defendant failed to show that defense counsel rendered ineffective assistance. The case arose out of a search warrant executed at the house of defendant’s fiancée to investigate his involvement in a financial crime. “Eleven images of CSAM were found on defendant’s computer, and there was evidence that defendant intentionally searched for the CSAM.” Although he “testified that the images and search terms were the result of pop-ups, the jury ultimately determined that” the testimony of two detectives was more credible than his testimony. On the basis of the CSAM images found on his laptop and testimony that he “searched for terms that could be interpreted as searching for CSAM, the jury was able to reasonably infer that defendant downloaded the CSAM during those searches, and, thus, the jury determined that defendant knowingly possessed CSAM.” As to the scoring of OV 13, the court noted that he was convicted of five counts of CSAM possession. Even if his “assertion that all the CSAM was downloaded at once is true, Harmon nonetheless requires an assessment of 25 points because defendant was convicted of more than three crimes against a person.” There also was no Brady violation when the prosecution failed to provide the defense with a data report because the report was not favorable to the defense. Affirmed.
Setting aside a default & default judgment of divorce (JOD); Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Shawl v. Spence Bros., Inc.; MCR 3.210(B)(3) & (6)(a); Good cause; Koy v. Koy; Order to attend a settlement conference; MCR 2.401(F)(1); MCR 2.401(G)(1); “Manifest injustice”; Culpable negligence; Factual findings; Rettig v. Rettig; MCR 3.210(B)(5); Applicability of Harvey v. Harvey; Sparks v. Sparks; Custody & parenting time orders & judgments; MCL 722.28; Shade v. Wright; Kessler v. Kessler; Best interest factors; MCL 722.23; Spires v. Bergman; MCL 722.27a(1) & (3); Spousal support; Loutts v. Loutts; Olson v. Olson; Myland v. Myland; Child support; Stallworth v. Stallworth; Reed v. Reed; Voluntary unexercised ability to earn; Ghidotti v. Barber
The court affirmed the trial court’s decisions to deny defendant-ex-husband’s motion to set aside the default and the default JOD. But it vacated the portions of the default JOD as to the “distribution of marital property, custody, parenting time, spousal support, and child support” and remanded for the trial court to “make the required factual findings and conclusions of law” as to these issues. It noted that the trial court must comply with MCR 3.210(B)(5) on remand. Considering the totality of the circumstances, it first found that “the trial court did not abuse its discretion when it held that the motor vehicle accident was not a reasonable excuse to set aside the” default. The 10/19 settlement conference was the second one “that defendant had failed to attend in a timely manner. Defendant missed the [7/19] settlement conference because he claimed that he had suffered a concussion from a head injury sustained while riding his bicycle the night before the settlement conference. Although the trial court was unsure whether defendant’s claim was a ruse, and although defendant failed to attend the hearing on the motion to set aside the [7/19] default, the trial court granted” his motion. As to the 10/19 settlement conference, he was already late when he was in the car accident he claimed caused his failure to attend. Although his attorney was present, “the trial court had specifically ordered defendant to attend the settlement conference.” Moreover, because he “had once worked as a trial attorney, it reasonably follows that he was aware of the importance of complying with the trial court’s directives.” Thus, the court held that the trial court did not abuse its discretion by denying his motion to set aside the 10/19 default. Additionally, although he “moved to set aside the default judgment within the requisite 21 days and the judgment results in ongoing liability,” the court held that a totality of circumstances supported the trial court’s denial of that motion as well. But remand was required for the trial court to make factual findings on several issues.
Action by healthcare providers against a no-fault insurer for payment of billed expenses; Whether defendant’s insured complied with the notice provisions of MCL 500.3145(1); Perkovic v. Zurich Am. Ins. Co.; Walden v. Auto Owners Ins. Co.; The remedial purpose of the No-Fault Act; In re Geror; Personal injury protection (PIP)
The court held that the insured (nonparty-TF) complied with the notice requirements in MCL 500.3145(1) when she contacted defendant-insurer’s claims representative (F) and timely provided “a description of the accident, the place of the accident, and the nature of her injuries.” Thus, plaintiffs-healthcare providers’ claim for payment of billed expenses was not barred by the No-Fault Act’s one-year statute of limitations. About two weeks after the accident, TF spoke with F on the phone. In a claim file opened for TF, F noted the claim was “for PIP only,” and described the injury as “neck pains.” F testified at deposition that while she did “not recall her conversation with [TF], ‘based on that entry and my note, [TF] told me she was injured.’” F also testified that TF relayed “her version of the accident. [F] confirmed that after speaking with [TF], she knew [TF’s] name, knew where she lived, and knew how and when the accident happened that led to [TF’s] alleged injuries.” F ordered and reviewed a copy of the accident police report. She routed the information to defendant’s PIP department for follow up. Employees there closed the claim file after unsuccessful attempts to contact TF. A sufficient notice under the statute “must substantively contain ‘the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.’” The record showed defendant had written notice that substantially complied with these requirements, and it did not argue “it lacked any of the statutorily required information.” Rather, it relied on Perkovic to contend that F’s written record did not fulfill the notice requirement because an oral statement written down by its employee did not constitute written notice to defendant, and F, as its claims representative, was not acting on TF’s behalf. The court rejected both arguments. The information TF directly provided to defendant sufficed for it “to open a PIP claim file and to attempt to re-contact [TF] to discuss her options. That [TF] did not elect to file a claim at that time does not render her notice somehow ineffective.” The court also declined to adopt the assumption that an insurer’s representatives “cannot simultaneously act on behalf of their employers and in the interests of their insureds, even in the absence of a dispute.” It reversed summary disposition for defendant and remanded.
Claims arising from testimony about plaintiff’s answers to medical screening questions during his booking in a criminal case; The physician-patient privilege (MCL 600.2157); People v. Bland; Bassil v. Ford Motor Co.; Privileged communications under the Mental Health Code (MCL 330.1001 et seq.); MCL 330.1750; “Patient”; McLean v. McElhaney; “Privileged communication”; MCL 330.1700(h); Solicitation of personal injury claims (MCL 750.410); The wrongful disclosure provision of the Health Insurance Portability & Accountability Act (HIPAA) (42 USC § 1320d-6); People v. Carrier; “Covered entities”; 45 CFR § 160.103; Holman v. Rasak; Reliance on MCL 767.5a(2); “Medical examination”; MI Admin R 791.731 & 732; Intentional or negligent infliction of emotional distress; Hayley v. Allstate Ins. Co.; Breach of implied contract; Invasion of privacy; Governmental immunity; Odom v. Wayne Cnty.; “Gross negligence”; MCL 691.1407(8)(a); Outrageousness; Rosenberg v. Rosenberg Bros. Special Account; Teadt v. Lutheran Church MO Synod; Absolute immunity for witness testimony; Maiden v. Rozwood; A governmental entity’s vicarious liability; Ross v. Consumers Power Co.; Whether summary disposition was premature; Discovery “fishing expeditions”; Augustine v. Allstate Ins. Co.; Promissory estoppel; Zaremba Equip., Inc. v. Harco Nat’l Ins. Co.; Sanctions for frivolous claims; MCR 2.625(A)(2); MCL 600.2591; “Shall”; People v. De La Mater; Ability to pay; Distinguishing People v. Herrera; Applicability of Sales v. Marshall (6th Cir.)
Holding that none of defendant-Allen’s testimony at plaintiff’s criminal trial consisted of privileged information, and that plaintiff did not show that Allen or defendant-Osier committed any tort, the court affirmed summary disposition for defendants. It also affirmed the trial court’s award of sanctions for defendants on the basis his claims were frivolous, noting that neither MCR 2.625(A)(2) nor MCL 600.2591 reference a party’s ability to pay. Defendant-Ogemaw County Correctional Facility (OCCF) is defendant-Ogemaw County’s jail. Osier is the jail administrator, and Allen is a corrections officer. After plaintiff was arrested in a criminal matter, Allen booked him into OCCF. “Pursuant to a health screening procedure, Allen asked plaintiff some basic health questions during the booking procedure. Allen then testified at plaintiff’s criminal trial. Plaintiff” asserted that his “testimony constituted, among other things, damaging and emotionally traumatic disclosure of privileged information.” The court first noted that while he characterized “the health-related questions Allen asked during the booking procedure as a ‘medical examination,’ it was not. Administrative Rule R 791.731 requires a screening by a ‘trained staff member.’ In contrast, Administrative Rule R 791.732 requires a subsequent health appraisal by a ‘trained health care person.’ In any event,” no evidence suggested “Allen did anything more invasive than make a superficial observation of plaintiff’s outward appearance and record plaintiff’s self-reported responses to a series of form questions.” As to his assertion of a physician-patient privilege, the court concluded that “no privilege under MCL 600.2157 can arise where plaintiff never sought any kind of medical treatment from, or medical communications with, a person authorized to practice medicine or surgery. The extremely limited circumstances under which plaintiff could assert an agency theory never arose.” In addition, he could not “possibly have been a ‘patient’ under the Mental Health Code because, pursuant to his own answers, he was neither suffering from any apparent mental health illness or condition, nor was he receiving treatment for that any such illness or condition.” As to HIPPA’s wrongful disclosure provision, “none of the defendants could be considered a health care provider.”