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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Deliberate indifference to student-on-student sexual harassment claims under Title IX; Doe v Metropolitan Gov’t of Nashville & Davidson Cnty; “Before” claims under Title IX & 42 USC § 1983; “After” claim; Forfeiture of issue as to emotional-distress damages; Cummings v Premier Rehab Keller, PLLC; Metro Nashville Public Schools (MNPS)
The court affirmed the district court’s ruling that defendant-MNPS was liable on plaintiff-S.C.’s Title IX “after” claim of deliberate indifference to student-on-student sexual harassment. But because the district court did not have the benefit of Doe, the court vacated as to S.C.’s Title IX and § 1983 “before” claims. S.C. asserted a Title IX claim for deliberate indifference by MNPS before she was assaulted by another student at high school; “a Title IX ‘after’ claim, alleging deliberate indifference by MNPS during the school’s investigation into her harassment; and Fourteenth Amendment equal protection claims” under § 1983. She “was videorecorded engaging in sexual activity with a male student on school property; however, S.C. did not consent to either the sexual contact or its videorecording. The video was rapidly shared on social media and third-party websites[.]” After a meeting was scheduled with S.C and her mother about the incident, students “began harassing and threatening S.C. and her family via social media.” The court noted three other female students had sued MNPS alleging “the same pattern of events[.]” Two of them were the plaintiffs in Doe. In the current appeal, the court held as to S.C’s “before” claim that “a reasonable jury could find ‘that [S.C.’s] unwelcome sexual contact was a result of MNPS’s indifference to the problem of pervasive sexual misconduct in the schools.’” It noted there were over 1,000 instances of sexual misconduct documented at MNPS schools during the 2016-17 school year alone. Under Doe, there is “Title IX liability when a school is deliberately indifferent to a widespread pattern of sexual harassment.” The court noted the “before” claim here was “effectively identical to” those of the Doe plaintiffs, “and the district court did not have the benefit of the proper standard of review when evaluating S.C.’s ‘before’ claim . . . .” As to the “after” claim, the court held that the district court did not clearly err in finding school officials were “aware of the continuing and severe threats made against S.C. and” yet the school took no action “in response to the bullying and threats against S.C. beyond directing her to the police.” Thus, the district court correctly found MNPS “liable under Title IX for its deliberate indifference to the threats made against S.C. and her family.” The court affirmed the $75,000 damages award for loss of educational benefits and emotional distress, despite Cummings, holding that because “the legality of Title IX emotional distress damages remained an open question during the pendency of this case, MNPS forfeited any challenge to the issue by not raising it before the district court.” Affirmed in part, vacated in part, and remanded.
Contract dispute over an allegedly abandoned home construction & renovation project; Motion to adjourn; Rosselott v Muskegon Cnty; Summary disposition
The court held that the trial court did not err by denying defendant an adjournment and granting plaintiff’s motion for summary disposition in this contract dispute action. Plaintiff hired defendant to construct a garage and do some additional work on his home. Plaintiff paid for the work and defendant started the job, but eventually abandoned it. Plaintiff sued alleging several claims. The trial court eventually denied defendant’s motion for an adjournment and granted summary disposition for plaintiff. On appeal, the court found that the trial court properly denied defendant’s motion for an adjournment. “The lack of prior adjournments . . . went hand in hand with defendant’s general lack of vigorous advocacy, and thus does not undercut the trial court’s decision.” In addition, the lack-of-diligence factor strongly supported the trial court’s decision. Further, “in light of defendant’s utter failure to defend this case, or even allude to any substantive defenses he might have, along with his complete lack of diligence in trying to secure counsel in the first place—defendant was not unfairly prejudiced by the denial of an adjournment.” The court also found that the trial court properly granted summary disposition for plaintiff. “Defendant’s wholesale failure to answer the vast majority of the complaint, together with his deficient attempt to answer those few paragraphs for which he checked the ‘denial’ box, constituted an admission to all of plaintiff’s allegations except those concerning the amount of damages, and thus summary disposition” for failure to state a valid defense was appropriate. “And because defendant provided no evidence—nor even a response—in reply to plaintiff’s motion and accompanying documentary evidence, defendant failed to raise any genuine question of material fact about any part of plaintiff’s complaint, and thus summary disposition” was appropriate in that regard as well. Affirmed.
Motion to suppress; Whether a juvenile in a school or a principal’s office is in custody for purposes of the Miranda v Arizona warnings; People v Mayes; JDB v North Carolina; In the Matter of DAH (NC App); Holguin v Harrison (ND CA); MH v State (FL App); BA v State (IN); In re LG (OH App); NC v Commonwealth (KY); In re Welfare of MAK (MN App)
Noting that no binding Michigan case law had substantively addressed the situation at issue, the court held that the trial court properly suppressed respondent-NC’s statements made to police in the school principal’s office, finding the interview custodial and Miranda warnings were required. As there was no binding Michigan case law on the role of “questioning a juvenile in a school or a principal’s office” in the Miranda custody analysis, the court considered cases from other jurisdictions. Finding those cases persuasive, the court held “that while the fact that police questioning occurred at school or in a principal’s office alone is not dispositive of custody, it is still a highly relevant factor to consider in a Miranda custody analysis involving juveniles at school. Indeed, the movements of a juvenile at school are generally restricted in ways not ordinarily applicable to adults. Thus, that a juvenile was interviewed by law enforcement at school or in a principal’s office, along with the circumstances surrounding the questioning, are relevant considerations in a custody analysis.” In this case, “the trial court found that the totality of the circumstances supported that” the police chief (N) who questioned him “subjected NC to a custodial interrogation, and” the court was “not firmly and definitely convinced this determination was mistaken.” The facts sufficiently supported that N “subjected NC to a custodial interrogation. Specifically, the location of the interview, NC’s young age, the manner in which the interview was initiated and conducted, the school’s lockdown, and the failure to inform NC that he was free to leave or free to refuse to answer [N’s] questions support that NC was in police custody.” The court noted that NC was 13 at the time of the questioning. He was removed from his classroom by “the principal, who was accompanied by [N], an armed police officer in full uniform.” The trial court acknowledged that “some facts weigh against a finding of custody. But we find no clear error in the trial court’s finding that under the totality of the circumstances, Miranda warnings were required.” Affirmed.
Tether fees; MCL 769.1k(2); Requirement that the trial court state on the record the sentence being imposed; MCR 6.425(D)(1)(d); Whether an error warranted reversal
The court concluded that tether “fees are statutorily permissible under MCL 769.1k(2), and that the trial court did not violate defendant’s substantial rights by imposing them.” While the trial court plainly erred by failing to “state on the record that it was imposing $615 related to” her tether fees, reversal was not warranted. She was convicted of possession of meth and sentenced to serve 12 months. She was also ordered to pay court costs. Defendant argued the tether “fees are not authorized by statute.” Alternatively, she claimed that reversal was “warranted because the trial court failed to state on the record the entire sentence imposed.” The court held that there “were sufficient facts demonstrating the GPS tether was to secure defendant’s appearance at later court hearings, and the trial court did not err when it imposed this fee at” her resentencing. Thus, there was “nothing patently erroneous with the trial court’s imposition of tether-related fees in defendant’s sentence.” But the court noted that “the trial court failed to state on the record its intention to impose fees related to defendant’s tether. ‘At sentencing, the court must, on the record . . . state the sentence being imposed . . . .’” The court concluded that the “trial court plainly erred when it did not state on the record that it was imposing $615 related to defendant’s tether fees.” The question was whether this error warranted reversal. The “error did not result in the conviction of an actually innocent defendant. Similarly, it did not affect ‘the fairness, integrity or public reputation’ of the proceedings.” The court noted the “$615 tether fee was discussed at length at the resentencing hearing and defendant admitted to owing the fee. Further, [she] promised to pay the fee, and promptly paid it the following day. Because [she] acknowledged—and satisfied—her obligation to pay these fees, the trial court’s failure to state on the record its imposition of tether fees is not a reversible error.” Affirmed.
Consecutive sentences
Holding that the trial court “articulated particularized reasons that demonstrated that the ‘strong medicine’ of consecutive sentencing was warranted,” the court affirmed. Defendant’s claim “that the sentencing guidelines adequately accounted for his criminal history” was unavailing. As the trial court noted, he “had six prior felony convictions and 25 misdemeanor convictions. Even though PRV 2 accounted for four prior felony convictions,” it did not account for his two remaining felony convictions. In addition, although PRV 5 accounted for seven prior misdemeanor convictions, it “did not account for defendant’s remaining 18 misdemeanor convictions. Finally, neither PRV 2 nor PRV 5 accounted for defendant’s propensity to commit theft-related and property-related offenses.” Further, the record did not support his claim “that the trial court failed to adequately explain its reasons for imposing consecutive sentences.” Rather, the record showed “that the trial court articulated several particularized reasons in support of its decision.” The court noted that the “trial court’s first reason for imposing consecutive sentences was defendant’s disregard for others while he was in the midst of these crime sprees.” This consideration was supported with specific facts and by defendant’s own statement that he stole to support his daily meth use and that he hurt a lot of people who believed in him. The next factor considered was deterrence of others. “‘The purpose of consecutive-sentencing statutes is to deter persons from committing multiple crimes by removing the security of concurrent sentencing.’” Thus, the court held that “the trial court properly cited deterrence as a justification for imposing consecutive sentences. The trial court next considered the nature of [his] criminal conduct. The court’s findings pertaining to the nature of defendant’s criminal conduct were supported by specific details from this case, and this Court has recognized that the circumstances surrounding the sentencing offense are an appropriate consideration in imposing consecutive sentences.” Finally, the court found “the trial court properly considered defendant’s extensive criminal history, which provided ample justification for the imposition of consecutive sentences.”
Motion to quash writs of garnishment; Whether a dispute over a bad-faith refusal to settle can be litigated in a writ of garnishment; Rutter v King; MCR 3.101(L), (M)(1), & (M)(3); Sanctions; Frivolous claim or filing; MCL 600.2591(3)(a)(ii) & (iii); MCR 1.109(E)(5)(b); Improper purpose; MCL 600.2591(3)(a)(i); MCR 1.109(E)(5)(c)
The court held that Rutter was controlling and that the trial court abused its discretion in granting garnishee defendants’ motions to quash the writs at issue on the basis “a dispute over a bad-faith refusal to settle could not be litigated in a writ of garnishment.” It also held that the trial court abused its discretion in imposing sanctions against plaintiff-Hairston to the extent it did so based on a finding his writ was frivolous, but “did not clearly err to the extent that it determined that Hairston interposed the writs for an improper purpose.” The appeal arose from his efforts to collect an approximately $13.5 million judgment he obtained against defendant-Specialty Industries after he was seriously injured in a work accident. Specialty was insured by the garnishee defendants, who paid approximately $9.7 million of the judgment. Hairston sought to collect the remaining balance from them after Specialty assigned him its right to pursue legal action against them. The trial court found Rutter did not control because it was decided before the current court rules were promulgated. “It reasoned that Michigan’s courts had not relied on Rutter since the enactment of MCR 3.101.” But the court noted that its published opinions, even those decided before 11/1/90, bind “lower courts and tribunals under the rule of stare decisis.” Thus, its decision in Rutter should not have been disregarded. “Rutter decided as a point of law that a garnishee plaintiff who had been assigned a claim of bad-faith refusal to settle could litigate whether an insurer was liable for an excess judgment in a garnishment proceeding.” As a result, this “point of law was a matter of stare decisis.” The court also disagreed with the trial court’s conclusion that its more recent decisions undermined Rutter’s holding. And it was “unavailing to distinguish the facts in Rutter from the facts” here. The court found Rutter “established a workable format that provided parties with flexibility and afforded them adequate and efficient processes for resolving” a dispute involving claims of bad-faith refusal to settle. The garnishee defendants did not convince the court it “should discard this long-settled precedent beyond a preference for compelling an assignee to litigate the claim in a separate and drawn-out proceeding.” Thus, it reversed the order granting the motions to quash and dismissing the writs. But it affirmed the order awarding sanctions. On remand, the trial court is to address possible dismissal under MCR 2.116(C)(6).
Modification of joint custody; Inclusion of a “tie-breaking authority” provision in a Georgia custody order; The Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA)
Noting that Michigan law does not permit a parent to serve as a tie breaker, the court concluded the circuit court did not err by reaffirming “that the parties have joint-legal custody and” stripping out the tie-breaking provision in their Georgia custody order. They had joint-legal custody of their child under the “Georgia court order. In that state, a court can designate one parent as having ‘tie-breaking authority’ in the case of a dispute, and the Georgia court designated” defendant-mother as the tie breaker. When the parties moved to Michigan with the child, defendant unsuccessfully sought to modify the order to give her sole-legal custody. She argued “the circuit court’s decision was an improper change of custody because she maintains that the Georgia order effectively granted her sole-legal custody.” Plaintiff-father disagreed. The court determined he had the stronger position. “First, the language of the Georgia order plainly suggests that the Georgia court meant for the parties to have joint-legal custody.” Second, the court found that “authority to break a tie under the Georgia order speaks only to when the parents have an explicit disagreement over a major, non-emergency decision involving the child.” The court concluded it was “clear that the Georgia court granted the parties joint-legal custody of the child, and only in the limited circumstance of an explicit disagreement between the parents involving a subset of matters affecting the child, did the Georgia court grant defendant authority to break the tie.” Defendant contended “the circuit court improperly changed the custody because the Georgia order should be enforced with the same effect in Michigan under the UCCJEA.” But she herself recognized “that a tie-breaker provision is not permissible under Michigan law—what she really wants, and asks for, is sole legal custody, something different than what is provided under the Georgia order.” There was no dispute “this state was the home state for the child and both parents at the time of the proceeding. Thus, the circuit court had the jurisdiction to modify the Georgia order under the UCCJEA because this matter was an initial child-custody determination for purposes of this state, and both parties and the child lived in this state at the time of the proceeding. The circuit court modified the Georgia order by preserving the main objective of the Georgia order (joint-legal custody) and omitting the one aspect of that order that was inconsistent with Michigan law (tie-breaking authority).” Affirmed.
Medical malpractice; Statute of limitations; Notice of Intent (NOI); Interpreting administrative orders (AOs); Whether AO 2020-3 excluded the 102-day emergency period for statutory limitations periods that expired after the emergency period ended; Carter v DTN Mgmt Co; Linstrom v Trinity Health-MI; Armijo v Bronson Methodist Hosp; Constitutional authority for the AOs
The court deemed “Armijo to be the controlling and binding authority” and, following it, concluded “that AO 2020-3 did not apply to the statute of limitations in this case (which expired after the exclusion period of the AOs) . . . .” Thus, the court affirmed the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(7). The parties’ primary dispute in this medical malpractice case was “whether AO 2020-3 excluded the 102-day emergency period for statutory limitations periods that expired after the emergency period ended, as defendants” argued and the trial court ruled. The court found that because “of the seeming conflict brought about by Carter’s out-of-hand dismissal of Armijo,” it had to decide which decision was binding here. It concluded “that Carter’s analysis of Armijo was faulty, that Armijo’s analysis of the NOI issue was not ‘dispositive of that appeal,’” and in addition “that Carter’s dismissal of Armijo as ‘nonbinding dicta’ was in error. The Armijo Court was indeed presented with the issue of whether the AO’s tolled an NOI period, and concluded that they did not. But that was not the full extent of Armijo’s holding. To the contrary, Armijo’s holding necessarily also encompassed the additional conclusion that the AOs did not toll statutes of limitation that fell outside the exclusion period of the AOs.” The court determined that “Carter and Linstrom improperly failed to follow Armijo[.]” The court concluded that as “we are confronted with two seemingly-binding yet conflicting precedents issued by this Court, we as an intermediate appellate court are compelled to follow Armijo.” Defendants alternatively contended that it was beyond the Michigan “Supreme Court’s constitutional authority to extend the statute of limitations.” The court agreed. But it was nonetheless “obliged to follow Carter’s holding to the contrary,” although doing so did “not affect the outcome of this case because . . . the AOs simply did not apply in these circumstances.” Affirmed.
Uncapping of the taxable value (TV) of real property; Const 1963, art. 9, § 3; MCL 211.27a; Effect of the transfer of shares in petitioner-property owner (a co-operative); Whether evidence was substantial, material, & competent; Motion for reconsideration; IRS guidance on the cost-basis of the transferred shares; Tax Tribunal (TT)
The court held that the TT did not err in upholding respondent-township’s uncapping of the TV of petitioner-co-operative’s real property after a threshold of petitioner’s shares were cumulatively transferred in one calendar year. Petitioner “owns a ‘family cottage’ for its shareholders’ use.” Two individuals owned 24% of its shares and then bought another 48%. After this “purchase, and in the same calendar year,” they sold 20% of the shares to others. Respondent “determined that 68% of petitioner’s ownership had been conveyed in the same calendar year, and, under MCL 211.27a(6)(h), an uncapping was triggered because more than 50% of petitioner’s ownership interest had been conveyed.” Petitioner contended the TT erred in “interpreting MCL 211.27a(6)(h) to consider conveyances cumulatively when discerning whether 50% of the ownership interest of the corporation had been conveyed.” Reading the provision as a whole, the court found this argument was “misplaced because MCL 211.27a(6)(h)(ii) would be rendered surplusage if MCL 211.27a(6)(h) prohibited a cumulative accounting of the conveyances for all corporations.” Thus, the court held that the TT did not err in ruling “that respondent correctly considered the conveyances cumulatively when uncapping petitioner’s cottage under MCL 211.27a(6)(h).” Next, the court rejected petitioner’s argument the evidence relied on by the TT was not substantial, material, or competent. The TT “was presented with affidavits of transfer that were signed by petitioner’s shareholders,” which indicated the amount of its shares that were transferred. And there was no dispute “there was one conveyance for 48% of petitioner’s shares and one for an additional 20% within a single year, which indicated that more than 50% of the shares were transferred.” Finally, petitioner asserted the TT “incorrectly relied on IRS guidance concerning the cost-basis of the shares that were transferred.” But the TT did not rely “on the IRS guidance to state that the shareholders must have structured their conveyances in a particular way, but rather that petitioner had not provided any evidence for its proposition that the shares that were subsequently sold were the same shares that were first purchased that same year. If shareholders intend a specific conveyance to be from a specific source for tax purposes, then they need to specify and justify it.” Affirmed.
Reasonable reunification efforts; MCL 712A.19a(2); In re Hicks/Brown; Whether entry of a no-contest plea as to the statutory grounds waives the right to contest the adequacy of reunification efforts; In re Rood; In re Fried; Effect of the DHHS’s failure to prepare a written case service plan & to regularly update it; MCL 712A.18f; Plain error review; Prejudice; Adequacy of provided services; Child’s best interests; MCL 712A.19b(5); Effect of a relative placement
The court held that “respondent-father’s waiver of his right to contest the statutory grounds for termination did not also waive his right to contest the adequacy of DHHS’s reunification efforts.” Further, it concluded the “DHHS violated the relevant statutory provisions by failing to prepare and regularly update a case service plan.” But the court found this error did not require reversal because he could not show prejudice given that he was offered adequate services and reasonable reunification efforts were made. Finally, it held that the trial court did not clearly err in finding that termination was in the child’s best interests. Thus, it affirmed the order terminating his parental rights. The DHHS contended his entry of a no-contest plea as to the statutory grounds for termination constituted a waiver of his right to contest the adequacy of its reunification efforts. But the court noted there was no binding authority supporting this position. While the DHHS cited the lead opinion in Rood, the court noted stating “that the quality of reunification efforts may bear on whether there is sufficient evidence to terminate a parent’s rights is a far cry from saying that statutory grounds and reasonable efforts are so inextricably linked that one may not concede the former but contest the latter.” The court found that “Rood stands for the proposition that the quality of services offered might sometimes be probative of whether a statutory ground has been established.” The court further determined Fried did “not stand for the proposition for which DHHS cites it. The statutory framework makes clear that the Legislature did not intend for reasonable efforts to be linked to the statutory grounds in the manner suggested by DHHS.” The court concluded the reasonable reunification efforts requirement “is distinct from the requirement that at least one statutory ground for termination of parental rights be established by clear and convincing evidence.” it next found that the “DHHS flouted its statutory obligations by failing to prepare a written case service plan and to update” it every six months. But while this was error and it was plain, respondent was not entitled to relief because the DHHS offered him “significant services and made adequate efforts toward reunification; however, [he] was chronically noncompliant and wholly failed to benefit from the services offered.” As a result, he could not show “he would have successfully attained reunification if a proper case service plan had been prepared and regularly updated.”
Termination under §§ 19b(3)(c)(i), (i), & (j); Reasonable reunification efforts; In re Hicks/Brown Minors; Reasonable accommodations tailored to a respondent’s disability; Children’s best interests; In re Payne/Pumphrey/Fortson Minors; In re White; Social Security Disability (SSD)
The court held that the evidence established statutory grounds for terminating respondent-mother’s parental rights where it showed she would be unable to provide her children with proper care and custody and that they would be harmed if returned to her. It further concluded the trial court did not clearly err in finding that termination was in the children’s best interests. Respondent “was diagnosed with bipolar depression, schizoaffective disorder, psychosis, and deliria, and received SSD income based on her mental illness.” In light of her disability and the DHHS’s awareness “of her mental illness, she was entitled to reasonable accommodations tailored to her disability in her service plan.” And the record showed the DHHS repeatedly tried to provide her services “based on her mental health needs, including supportive visitation, individual therapy, and mental health treatment specifically to address her specialized needs and diagnoses.” But she failed repeatedly “to engage with and benefit from these services or follow through with additional referrals.” Although she contended the DHHS did not accommodate her disability, she failed “to explain how the services provided were inadequate or how she would have fared better if” offered others. She asserted the trial court did not consider her commitment “to regaining custody of her children.” However, the court found no clear error by the trial court. Regardless of her “subjective level of commitment, the record shows that despite numerous and repeated referrals from petitioner, [she] missed the children’s medical appointments, was terminated from individual therapy, parenting classes, and supportive visitation, completed only eight of 42 required drug screens, attended only 14 of 54 visits with the children, had not seen [them] in-person in over eight months, and had not been taking her medication since” 5/22. As to the children’s best interests, respondent’s foster care worker testified that they had never lived with respondent, and because she had not seen them “in-person in over eight months, they were not bonded to her and had bonded with their foster parent instead.” The court found that this, together with the length of time they had been in care, respondent’s inability to give them stability and permanency, and her “failure to comply with her service plan,” supported the trial court’s best-interests determination. Affirmed.