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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Search & seizure; Warrantless search; People v Chowdhury; Applicability to commercial premises; New York v Burger; A business owner’s expectation of privacy; People v Donovan; Administrative warrantless searches; People v Barnes; Tallman v Department of Natural Res; “Closely regulated”; Business inspection under the Motor Vehicle Service & Repair Act (MVSRA); MCL 257.1317 & 1318; Execution of an administrative warrant; United States v Grey (9th Cir); Reasonableness of the search
The court held that the trial court erred by dismissing the charges against defendants. Officers conducted a business inspection of defendants’ repair shop under the MVSRA where they found approximately 40 vehicles. A search warrant was sought and obtained to search the premises. When executing the search warrant, officers found four other vehicles that were flagged as stolen. Defendants were charged with receiving and concealing a stolen motor vehicle and operating a chop shop. The trial court dismissed the charges, with prejudice, on defendants’ renewed motion to suppress evidence. On appeal, the court agreed with the prosecution that the trial court erred by granting defendants’ motion because repair shops like the one in question are closely regulated, and the MVSRA is an administrative statute permitting the warrantless inspection of the premises, including the inspection of the gated and locked lot. “In consideration of Barnes and the seven Tallman factors, we readily conclude that police could perform a warrantless search of” defendant’s business, which is “pervasively regulated by the state, without offending either the state or federal constitutions.” First, there is “express statutory authorization to conduct unannounced searches of the premises, parts records and parts inventories of vehicle repair shops.” In addition, “consumer protection and combatting deceptive business practices in an industry where previous abuses have occurred are important governmental interests.” Further, “the vehicle repair industry is, and has been, pervasively regulated for over four decades.” Next, “by permitting unannounced inspections, the act provides the state with the flexibility needed to achieve reasonable compliance with statutory mandates.” And the search was not particularly intrusive, and implied consent was given. Lastly, the court found the search was reasonable. “There was no excessive showing or use of force by police while conducting this otherwise valid warrantless search.” And it is “not constitutionally unreasonable for officers to inspect the VINs of vehicles on the premises when conducting a search of a vehicle repair shop that admittedly has no complying documents for the officers to review.” Moreover, “although ‘the scope of the consent given extends only to reasonable inspections that are limited to that necessary to ensure compliance with the regulatory scheme,’” the trial court erred “in interpreting MCL 257.1317(1) to limit inspections to only those locations where paper records and documents would reasonably be located, which the trial court ruled did not include the gated lot.” Reversed and remanded.
Petition for an ‘‘administrative review” of the Michigan Department of Civil Rights’ denial of a “request to reopen” plaintiff’s complaint with the Department; Due process
The court affirmed the circuit court’s order dismissing plaintiff-Clanton’s “petition for an ‘administrative review’ of the Michigan Department of Civil Rights’ denial of his request to reopen his complaint against” defendants-Sam’s Club and Wal-Mart. The court noted that the “circuit court ordered Clanton to address why his case should be considered an administrative appeal, and why his claims and requested damages should be included within the scope of the appeal. Rather than address why his claims and requested damages should be considered part of the appeal, Clanton asserted the circuit court’s order was ‘at minimum erroneous, misleading, and lacking in merit.’” He claimed the “circuit court was failing to compensate him, and failing to provide him with a fair and impartial forum. Because Clanton deliberately disregarded the circuit court’s order to explain the basis for his appeal, we find that the court did not abuse its discretion by dismissing his petition. And because Clanton had notice of the possible dismissal and an opportunity to defend against it, we conclude his due-process rights were not violated.”
Breach of contract; Personal guarantees; Mutual assent; Consideration; RL Polk Printing Co v Smedley; Motion to extend the case evaluation deadline; Case evaluation sanctions; “Unusual circumstances” for purposes of the interest of justice exception (MCR 2.405(D)(3))
The court held that the “language of the personal guarantees indicated that there was a meeting of the minds between the parties and that the promises and performances of each party were set forth with reasonable certainty.” Thus, the trial court erred in finding that the guarantees lacked mutuality of agreement. But it did not err in concluding they lacked consideration. And it did not abuse its discretion in denying plaintiffs’ motion to extend the case evaluation acceptance/rejection deadline and awarding defendants case evaluation sanctions. The case arose from personal guarantee agreements where defendants guaranteed the contractual obligations of defendant-Raj & Associates, following its purchase of plaintiffs’ laboratory, defendant-Stamp Clinical Laboratory (SCL). Plaintiffs argued that “the personal guarantees signed by each defendant were unambiguous, enforceable contracts.” The trial court held they “lacked mutuality of agreement or meeting of the minds on all essential terms.” The court held that the “guarantee agreements, by their own terms, indicated that there was mutual assent.” It concluded that the “plain language of the guarantees, standing alone, included the material terms necessary to put defendants on notice of their obligations under the agreement and contained an unambiguous expression of the defendants’ intentions to accept that responsibility.” As to whether defendants received consideration for signing the guarantees, the court determined “the personal guarantees and defendants’ agreement to join and invest in” another entity (Stage) “were separate and distinct contracts requiring independent consideration. We cannot accept plaintiffs’ argument that defendants received legal consideration in the form of SCL’s expected future revenue and SCL’s potential merger in NextGen, as defendants bargained for the same when they invested in Stage in the months preceding the guarantees.” The court held that “consideration exchanged in defendants’ prior agreement to invest in Stage cannot form the basis of the guarantee contracts; additional consideration for the subsequent guarantees was required.” Further, it found that “the guarantees themselves failed to identify any obligation undertaken by plaintiff[] in exchange for defendants’ guarantees. Just as plaintiffs did not incur any detriment, defendants received no additional benefit by entering into the personal guarantees.” In addition, the court agreed “with the trial court that the personal guarantees also fail for want of consideration because the personal guarantees were signed sometime after SCL’s sale occurred and were executed solely to secure Raj & Associates’ pre-existing indebtedness.” Affirmed.
Ineffective assistance of counsel; Failure to present evidence that complainant’s mother was arrested before the complainant accused defendant of sexual abuse; Prejudice; Strickland v Washington; People v Trakhtenberg
In an order in lieu of granting leave to appeal, the court vacated Part III.A of the Court of Appeals judgment (see e-Journal # 77453 in the 6/1/22 edition) and remanded for reconsideration of the ineffective assistance of counsel claim considered in that section. It concluded that while “the Court of Appeals cited the correct standard for assessing prejudice under” Strickland, it failed to apply it. The court noted that “defendant was not required to show that, but for counsel’s deficient performance, he would have been acquitted. Rather, prejudice is established where a defendant shows that ‘but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.’” The court directed the Court of Appeals on remand to resolve defendant’s claim (that his trial counsel was ineffective for failing to present evidence that the complainant’s mother was arrested before the complainant accused defendant of sexual abuse) under this standard. The court denied leave to appeal in all other respects because it was not persuaded that it should consider the remaining question presented.
Unlawful imprisonment; MCL 750.349b; “Restrain”; MCL 750.349b(3)(a); “Forcibly,” “Forcible,” & “Force”; “Psychological threat” & “psychological power”; Principle that nonphysical force can constitute “restraint” under MCL 750.349b; Sufficiency of the evidence; Jackson v Virginia; Ineffective assistance of counsel; Failure to make a futile objection; People v Unger; Constitutionality of the Sex Offenders Registration Act (SORA); Whether SORA’s lifetime registration requirement violates the prohibition on cruel or unusual punishment; People v Lymon; Tier III offender status; Principle that legislatively mandated sentences are presumptively proportional & presumptively valid; People v Brown
The court held that the trial court did not err by finding defendant unlawfully imprisoned the victim, and that SORA’s lifetime registration requirement was not unjustifiably disproportionate under the circumstances of this case. He was convicted of unlawful imprisonment and CSC I for sexually abusing and psychologically exploiting the victim, who was working as an independent escort. On appeal, the court rejected his argument that the trial court erred by finding the restraint element of unlawful imprisonment was satisfied by evidence of his imposing “psychological power” over the victim. It noted defendant’s “interpretation of the unlawful imprisonment statute reads in a ‘physical force’ requirement that is unsupported by the plain language.” Further, “the facts as found by the trial court were sufficient to support the court’s determination that [defendant] knowingly restrained the victim, and that the restraint occurred by means of a weapon and to facilitate the commission of” CSC I. “Together, the evidence of credible threats of harm, along with other testimony about nonconsensual sexual activity, was sufficient to support the trial court’s finding of proof beyond a reasonable doubt that [defendant] unlawful[ly] imprisoned the victim.” And counsel was “not ineffective by failing to make a futile objection.” The court also rejected defendant’s constitutional challenge to SORA, disagreeing with his contention that its lifetime registration requirement violates the prohibition on cruel or unusual punishment. First, “considering the heinous facts underlying [his] convictions, and given that [he] faced a statutory maximum life sentence for his CSC I convictions, we cannot conclude that a lifetime registration requirement for Tier III offenders like [defendant] is unjustifiably disproportionate to the offense.” Second, his “mandatory lifetime sex offender registration is not unduly harsh as compared to penalties imposed for other offenses in Michigan.” Third, comparing the penalty “to that imposed by other states, mandatory lifetime sex offender registration is not unique to Michigan.” Finally, while lifetime registration under SORA “does not advance the goal of rehabilitation, the other three factors strongly support that such a punishment is neither cruel nor unusual as applied to” defendant’s CSC I convictions. Affirmed.
Sentencing; Indeterminate sentencing for first-time felony offenses that are punishable by a term of imprisonment; MCL 769.8(1); People v Austin; People v Weaver; People v Tyrpin (Unpub); People v Frank; Distinguishing People v Martin; Imposition of a departure sentence; MCL 769.34(3)(a); Intermediate sanctions; MCL 769.31(b); MCL 769.34(4); Probationary sentence; MCL 771.1(1)
Holding on remand that the trial court erred by imposing an impermissible determinate six-month jail term for a serious sexual offense, the court vacated defendant’s sentence and remanded. He pled guilty to CSC III after having sexual intercourse with the minor victim on three occasions, once while the young girl was unconscious, and getting her pregnant. The trial court departed from the guidelines range and imposed a six-month jail term rather than a prison sentence with a minimum and maximum term. In doing so, it noted that another man had intercourse with the victim during the same timeframe and was not criminally charged, and that the prisons were not equipped to manage his disabling eye condition. On appeal, the court noted that “the indeterminate sentencing statute requires a court to impose an indeterminate sentence with a minimum and a maximum term when a defendant is convicted for a first-time felony and the violated statute provides for imprisonment in a state prison.” A court “may depart from the recommended minimum guidelines range as provided in MCL 769.34(3)(a). But a court is limited in the departure sentence it may impose. MCL 771.1(1) precludes the court from imposing a probationary sentence for a defendant convicted of CSC III. MCL 769.34(4)(c) limits the imposition of an ‘intermediate sanction’ by right to situations where the low end of the defendant’s minimum sentencing guidelines range is below 12 months.” The court concluded that, in this case, the “minimum sentencing guidelines range was 21 to 35 months.” As such, defendant “did not have a statutory right to an intermediate sanction. The trial court was entitled to depart from the guidelines range, but still must impose an indeterminate sentence.” Thus, the trial court “erred in arguing that it would have been entitled to sentence [defendant] to a jail term had his offense and prior record variables been lower, placing him in a straddle cell in the Class B offense grid.” Rather, it “was required to impose a minimum and maximum sentence, either within or outside of the recommended sentencing guidelines range.”
Right of confrontation; People v Fackelman; Testimonial statement; Crawford v Washington, Implied hearsay; Mason v Scully (2d Cir); Ryan v Miller (2d Cir); United States v Kizzee (5th Cir); The “corpus delicti” rule; People v Cotton; Canadian Customs & Border Service Agency (CBSA); United States Customs & Border Protection (USCBP)
Holding that defendant was denied his right of confrontation, and that the error was not harmless, the court vacated his conviction and remanded for a new trial. Defendant was arrested by a CBSA agent (L) after he avoided paying a bridge toll on his way to Canada. L brought him back to the American side of the bridge and reported that he was wearing a bulletproof vest under his shirt. He was charged with being a violent felon in possession of body armor. At trial, the prosecution questioned a USCBP officer (S) about his communications with L, thus admitting L’s unconfronted testimony that defendant possessed the body armor. Defendant was convicted. On appeal, the court agreed that his right of confrontation was violated. L’s “‘affirmation’ that [defendant] was wearing the body armor, communicated through [S], was testimonial.” L told S “about the body armor ‘to establish or prove past events potentially relevant to later criminal prosecution.’” And defendant never had an opportunity to confront L. The court then held that “[e]vidence directly implying the substance of a testimonial, out-of-court statement made by an unavailable witness and offered to prove its truth is inadmissible because it violates the Sixth Amendment of the United States Constitution, and Article 1, § 20 of Michigan’s Constitution.” Finally, the court found the error was not harmless. “Without direct or circumstantial evidence that [defendant] possessed the vest, the prosecution had no evidence that any crime had been committed. Likely the prosecution was aware of this problem and questioned [S] regarding his ‘communications’ with [L] in an attempt to work around it. Regardless, we cannot conclude beyond a reasonable doubt that [defendant] would have been convicted had the inadmissible testimony been excluded.”
Prosecutorial misconduct; Closing argument; People v Lane; Prejudice; Sufficiency of the evidence for an AWIGBH conviction; MCL 750.84(1)(a); People v Parcha; The assault element; People v Dillard
The court found no reversible error in the prosecutor’s closing argument and held that there was sufficient evidence to support defendant’s AWIGBH conviction. The victim was his ex-girlfriend. He argued on appeal that the prosecutor argued facts not in evidence during closing argument, relying on the remark that “And that’s what she gets according to what he told her, that’s what you get for not letting me in your house. You’re just going to get beat, and that’s exactly what happened.” Defendant took the comment “literally, arguing that the prosecutor improperly stated that defendant actually told the victim that he would assault her if she did not let him into the house. More likely, the prosecutor was indicating that defendant figuratively told the victim, through his actions and his vulgar name-calling, ‘[T]hat’s what you get for not letting me into your house.’ The victim testified that after she refused to let defendant into her house, he called her a ‘stupid b****’ and assaulted her.” The court noted that it was the prosecution’s theory “that defendant was angry that the victim denied him entry into her home and wanted to make her regret it. When the remark is reviewed in context, it appears that the prosecutor did not intend for his remark to be taken literally.” The court further concluded that even if the “remark was improper,” reversal was unwarranted. The remark took up “two sentences of a closing argument that spanned six transcript pages. Such brief remarks are generally seen as inadequate to prejudice a defendant,” and the court found it highly unlikely that it “had such a substantial impact as to prejudice defendant.” It noted that the “remark was made in reference to the charge of aggravated domestic violence,” and he was acquitted of this charge. The court also rejected defendant’s argument that he was only guilty of aggravated assault, concluding a “reasonable jury could view the evidence sufficient to find that defendant intended to inflict great bodily harm.” He knocked one of the victim’s teeth out, broke another “in half, and jammed two more into her gums. It is obvious that forcefully kicking an individual in the face with a work boot while she lies defenseless on the ground would cause serious injury. The fact that defendant did such kicking supports an inference that he intended to cause a serious injury.” Affirmed.
Motion for a directed verdict; Meth possession; MCL 333.7403(1) & (2)(b); People v Baham; Third-degree fleeing & eluding a police officer; MCL 257.602a(1) & (3); People v Grayer
The court held that the evidence was sufficient to support the finding “that defendant knowingly or intentionally possessed the” meth in his pants pocket, and to establish all the elements of third-degree fleeing and eluding. Thus, it concluded the trial court did not err in denying his motion for a directed verdict on the meth possession and third-degree fleeing and eluding charges against him. He was convicted of both offenses. The case arose from a high-speed chase that “ended when defendant crashed the motorcycle into the yard of a private residence.” A later search of his clothes turned up suspected meth “and two syringes in the right front pocket of” his pants. The evidence was not discovered “at the crash scene because the searching officer did not want to exacerbate defendant’s injury by forcing defendant to lean on his injured left leg to facilitate a more thorough search of his right pants pocket. Deputies accompanied defendant to the hospital and defendant’s clothes were secured in a hospital bag. When defendant was preparing to leave the hospital,” a deputy found the meth in the “pants pocket that had not been fully searched at the crash scene. Defendant informed the officer that he used meth[] two days earlier and that if drugs were in his pocket, ‘it would most likely be meth,’ confirming that defendant knew of the presence and character of the controlled substance found in” his pocket. As to the fleeing and eluding charge, the deputies (M and O) who pursued defendant “were in uniform during the chase, were on duty, and were driving a marked police vehicle.” M signaled for him to stop by using the police vehicle’s emergency lights and siren. M and O “testified that defendant looked back over his shoulder toward” them after M turned on the emergency lights. “Defendant later told an officer that he knew [they] were following him and he was trying to get away by driving over 100 mph because he believed [they] were prohibited from pursuing at that speed. This evidence was sufficient for a jury to find that defendant knew the police were pursuing him.” Affirmed.
Medical malpractice action under the Wrongful-Death Act; MCL 600.2922(1), (2), (3)(a), & (6); Damages; Wesche v Mecosta Cnty Rd Comm’n; Endykiewicz v State Hwy Comm’n; Denney v Kent Cnty Rd Comm’n; Baker v Slack; Speculative damages; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Claim by parents for a child’s lost earning potential; Lincoln v Detroit & M. Ry Co; Personal representative (PR)
The court held that the trial court did not err by denying defendants-healthcare providers’ summary disposition of plaintiff-PR’s medical malpractice claim. Plaintiff’s decedent, J, who was 13 years old, died of bacterial meningitis shortly after being treated by defendants. Plaintiffs claimed they committed medical malpractice by failing to diagnose and treat his condition. The trial court denied defendants’ motion for summary disposition, in which they asserted that plaintiff’s claims for lost future earnings were speculative. On appeal, the court first found that “pursuant to Denney, plaintiffs may recover damages for [J’s] lost future earnings to the same extent [he] could have recovered those damages had he survived.” It then noted that “a child’s expected future earning potential is not inherently too speculative to permit recovery.” The court found it “highly likely that the future earning potential of a 13-year-old can be proven with reasonable certainty based on personal characteristics and influences known at the time,” and “unequivocally reject[ed] the proposition that the future earning potential of a 13-year-old categorically cannot be proven with reasonable certainty.” However, the court expressed no opinion as to J specifically. “We granted leave to appeal limited to the issues in defendants’ application, which in turn was limited to the argument that lost future earning potential was inherently impermissible or speculative for a 13-year-old who was neither working nor supporting anyone.” The trial court “correctly denied defendants’ motion for summary disposition. Whether [J’s] future earning potential can be proven with reasonable certainty is a matter for the parties to address in the trial court on remand.” Affirmed.
Medical malpractice action under the Wrongful-Death Act; MCL 600.2922(1), (2), (3)(a), & (6); Damages; Wesche v Mecosta Cnty Rd Comm’n; Endykiewicz v State Hwy Comm’n; Denney v Kent Cnty Rd Comm’n; Baker v Slack; Speculative damages; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Damages for future economic losses; MCL 600.1483(2); Taylor v Kent Radiology; Hannay v Department of Transp; Thompson v Ogemaw Cnty Bd of Road Comm’rs; Causation; “Excessive uterine tone”; Expert testimony; MRE 702; MCL 600.2955; Gonzalez v St John Hosp & Med Ctr (On Reconsideration); Teal v Prasad; Gilbert v DaimlerChrysler Corp; Caesarian section (C-section); Standard of care (SOC)
The court held that defendants-doctors were entitled to summary disposition as to plaintiff’s claims for lost future earning potential, but not as to the claims regarding untimely commencement of the C-section. Plaintiff sued defendants for medical malpractice after one of her twins (R) died during her C-section. The trial granted in part and denied in part defendants’ motion for summary disposition. On appeal, defendants argued that because R had no dependents or spouse, and was not providing support to any other person, plaintiff may not recover damages for R’s potential future earnings. The court disagreed, “in part because this wrongful death action is fundamentally to recover [R’s] lost future earning potential rather than specifically [R’s] lost future wages.” But it agreed with defendants that any calculation of potential future wages for an infant who was born 10 “weeks premature and who died a few weeks after birth is necessarily impermissibly speculative.” The court found that “Denney is controlling, and pursuant to Denney, plaintiff may recover damages for [R’s] lost future earnings to the same extent [R] could have recovered those damages had she survived.” However, there was “simply no way to know anything about [R’s] interests, aspirations, personality, strengths and weaknesses, academic performance, or any other characteristic that could be extrapolated. [R] was born prematurely and, implicitly, may have been conscious for two hours, if that. [R] never had the chance to display any individual personality whatsoever, and we think it too speculative to extrapolate from her parents or sibling. Unfortunately, on these facts, we must agree with defendants that there is no possible evidence of [R’s] potential for future earnings.” Defendants also contended that “the experts, including plaintiff’s experts, agreed that excessive uterine tone was a rare and unpredictable event, and plaintiff had no evidence supporting her assertion that the delay caused the excessive uterine tone.” But the court agreed with the trial court that defendants failed “to appreciate that unpredictability has degrees.” While it agreed with defendants “to the extent they argue that plaintiffs’ experts failed to establish that an earlier C-section would have prevented her excessive uterine tone . . . , because plaintiffs’ experts did establish that an earlier C-section would have reduced the likelihood of her excessive uterine tone,” the trial court properly denied summary disposition on this basis. Finally, the court found the trial court erred by failing to dismiss plaintiff’s claims based on defendants’ alleged failure to provide appropriate neonatal resuscitation, as she “provided no expert evidence showing that defendants breached the” applicable SOC. Affirmed in part, reversed in part, and remanded.
Application for deferral of removal; Whether the Board of Immigration Appeals (the BIA or the Board) abused its discretion in assessing the likelihood of torture in Iraq; Whether the denial of a motion to remand to consider new evidence was an abuse of discretion; Convention Against Torture (CAT)
The court upheld the BIA’s denial of petitioner-Yousif’s application for deferral of removal and motion to remand, concluding there was substantial evidence supporting the denial and that any allegedly new evidence could not help him establish a “particularized threat of torture.” Yousif was a lawful permanent resident when he was convicted of conspiracy to distribute 100 kilograms or more of marijuana. He applied for withholding of removal (and in the alternative, deferral of removal), alleging that if he were returned to Iraq, he would be persecuted because of his Christian religious beliefs. The IJ rejected his application, and he did not appeal. He instead moved to reopen his application on the basis of changed conditions in Iraq, asserting “he would face torture because of ‘his Christian religion, long residence in the U.S. [and] . . . his ethnicity.’” The IJ reopened the case but ruled that Yousif failed to establish the likelihood of torture. The BIA agreed, and also denied his motion for remand to offer new evidence. The court agreed with the Board that Yousif only offered evidence of “generalized violence and political unrest in Iraq” and that “while reports show the ‘existence of discrimination [and] harassment against Christians in some regions in Iraq,’ this ‘would not amount to torture.’” The court declined to rule whether the BIA was required to apply the “aggregate approach” in this circuit as “the BIA did an aggregate analysis” here. The court also upheld the BIA’s denied of Yousif’s motion to remand, finding no abuse of discretion where the allegedly new evidence was “cumulative of the evidence already presented in the record.” In addition, it determined that his “expressed fears of various security forces in his briefing” did not show a particularized threat. And his “new, proffered declarations and reports, even if taken at face value, do not show that it is ‘more likely than not’ that Yousif himself would be tortured within the meaning of CAT.” The court denied his petition for review.
Whether the administrative & executive orders issued at the beginning of the COVID-19 pandemic tolled the application of the “one-year-back rule” under MCL 500.3145(2) past a date agreed to by the parties in a stipulated order entered before the pandemic began; Executive Order No. 2020-4; Administrative Order No. 2020-8; The one-year-back rule; MCL 500.3145(2); Joseph v Auto Club Ins Ass’n; Devillers v Auto Club Ins Ass’n; Tolling; MCR 1.108
Addressing an issue of first impression, the court held that the administrative and executive orders issued at the beginning of the COVID-19 pandemic did not toll deadlines that were set forth in stipulated court orders unrelated to the commencement of actions. Thus, the court affirmed the trial court’s grant of summary disposition for defendant-insurer as to plaintiff’s claim for PIP benefits incurred prior to one year before the filing of his complaint. Plaintiff entered into a stipulated order of dismissal of his complaint for PIP benefits in which the parties agreed that if he refiled his complaint by 4/3/20 none of his claims would be barred by the one-year-back rule. He failed to do so, and the trial court granted summary disposition for defendant with respect to claims for PIP benefits incurred prior to one year before the filing of his complaint. On appeal, the court rejected plaintiff’s argument that the trial court erred when it dismissed his claims for PIP benefits incurred prior to 6/8/19, because the orders issued during the pandemic tolled the date by which he was to refile his complaint to avoid application of the one-year-back rule. “The Michigan Supreme Court’s administrative order did not impact the filing deadlines for all pleadings and papers filed in the trial court. Rather, by its terms, the order tolled the ‘deadlines applicable to the commencement of all civil and probate case-types,’ and was ‘intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency . . . .’” While it is “regrettable that plaintiff’s claims for PIP benefits are limited by the timing of when his complaint was filed, this Court is not empowered to broaden the scope of orders issued by the Michigan Supreme Court. We are keenly aware of the challenges everyone in this State faced during the COVID-19 state of emergency, and therefore understand the reluctance of litigants and their attorneys to engage with the court during that time. Nevertheless, the trial court was not closed for filing, and plaintiff and his attorney proceeded at their own peril by ignoring the deadline they agreed to in the stipulated order.”
Notice provision of MCL 600.6431(1); Whether applying the notice requirement of MCL 600.6431 to a constitutional claim is unlawful; Applicability of MCL 211.78t; Rafaeli, LLC v Oakland Cnty; Proctor v Saginaw Cnty Bd of Comm’rs; Class certification; Whether the notice requirements of MCL 600.6431(1) applied to the inverse condemnation claims of the class
In Docket No. 356501 of these consolidated appeals, the court concluded that the Court of Claims properly held that plaintiff-Breiner’s complaint was barred by the notice provision in MCL 600.6431(1). It also held that “MCL 600.6431 applies to all claims filed in the Court of Claims, including constitutional claims.” In Docket No. 356850, the court concluded the Court of Claims properly held that MCL 211.78t did not apply to the Hathon plaintiffs’ claims and did not abuse its discretion by certifying the class. Also, as to plaintiffs' cross-appeal, the “Court of Claims did not err by holding that MCL 600.6431(1) applies to the inverse condemnation claims of the class.” Thus, it affirmed in both appeals. In Docket No. 356501, Breiner argued that “the Court of Claims erred by concluding that the notice provision of MCL 600.6431(1) applied to her claims, and that Breiner did not satisfy the requirements of that provision.” She argued that notice of her claims against the state was provided on 7/31/15, “because she was a putative class member in a takings case filed by the plaintiffs in another matter.” The Court of Claims held that her “attempt to satisfy MCL 600.6431(1) through a complaint filed by the plaintiffs in that case was ineffective because the class was never certified and because Breiner was not a claimant in that case.” The court agreed. Breiner did “not cite any authority in support of her assertion that notice was ‘fulfilled’ or ‘alternatively substantially complied with under these circumstances.’” To comply with MCL 600.6431(1), she “needed to file a notice of intent, or bring a claim against the state, within one year of” 8/7/14. In Docket No. 356850, the state argued that the Court of Claims erred by concluding MCL 211.78t did not apply to the Hathon plaintiffs’ claims. The court disagreed. It determined that “the Hathon plaintiffs made their claims and raised and preserved the pertinent issue before the Rafaeli decision and before the enactment of 2020 PA 256. Even before the Rafaeli decision, the Court of Claims in this case had concluded that the Hathon plaintiffs could pursue an action for the taking of their real property. In light of Proctor, the Court of Claims properly concluded that PA 256 did not apply to the claims of the Hathon plaintiffs and the class as certified.”
Subject-matter jurisdiction; Whether the Tax Tribunal Act (TTA) repealed by implication MCL 207.15 of the Public Utility Tax Act (PUTA); Whether there is an irreconcilable conflict between MCL 207.15 & MCL 205.731; “Property tax laws”; MCL 205.703(f); Whether the case involved an assessment; Distinguishing Grand Trunk W Ry Co v Department of Treasury; Powers of equity; Due process; Timely-filed petition; Wells Fargo Rail Corp (WFRC)
The court held that the Court of Claims correctly found it lacked subject-matter jurisdiction over this case because the TTA implicitly repealed MCL 207.15. It also found that “WFRC’s timely-filed complaint in the Court of Claims and timely-filed appeal equitably tolled the period of limitations.” Thus, it affirmed the Court of Claims’ conclusion that it lacked subject-matter jurisdiction but remanded to the Michigan Tax Tribunal (MTT). Plaintiff-WFRC’s complaint was remanded for consideration as a timely-filed petition. The case arose from a dispute over tax credits related to railcars plaintiff owns. It argued that the Court of Claims erred when it held that the TTA repealed by implication MCL 207.15. The case turned “on whether an irreconcilable conflict exists between the jurisdictional grants within the PUTA and the TTA.” The court held that despite “a presumption against repeal by implication, the Court of Claims correctly concluded that the TTA implicitly repealed MCL 207.15.” It determined that “the Court of Claims correctly concluded that there is an irreconcilable conflict between MCL 207.15 and MCL 205.731.” The court agreed with the Court of Claims that the two statutes conflict as to “their jurisdictional provisions because one states that a taxpayer 'may sue the state in the'” Court of Claims, MCL 207.15, while the other “directs such challenges to the MTT by virtue of MCL 205.731 and deprives other forums of jurisdiction by virtue of MCL 205.774.” The court determined that although “there is a strong presumption against a repeal by implication,” the Court of Claims properly held that “the Legislature intended for the TTA to occupy the entire field of property tax disputes, thereby divesting the Court of Claims of jurisdiction of cases under the PUTA. MCL 205.731 provides that the MTT’s jurisdiction is ‘exclusive and original’ over proceedings for direct review of agency decisions relating to assessments ‘under the property tax laws of this state.’” The Court of Claims correctly found that this case involved an assessment. WFRC also argued that “it was deprived of due process because the Court of Claims’ finding that MCL 207.15 was repealed by implication by the enactment of the TTA effectively denies WFRC judicial review. We agree that without allowing WFRC to now file in the correct forum, the implicit repeal of MCL 207.15 would effectively deny WFRC judicial review, because a petition in the MTT would now be time-barred. Acknowledging that WFRC’s filing in the Court of Claims did not toll the period of limitations to file in the MTT, we find that the period is tolled as a matter of equity.”
Mandamus; The Department of Transportation’s (DOT) obligation to develop & implement a life-cycle cost analysis for certain pavement projects; MCL 247.651h; Declaratory relief; Injunctive relief; Whether the Legislature intended to provide parties such as plaintiff with a private cause of action; MCL 600.2041(3); Groves v Department of Corrs
Finding no errors warranting reversal, the court affirmed the order of the Court of Claims granting defendant-DOT summary disposition and “denying plaintiff’s requests for preliminary injunction, declaratory relief, and writ of mandamus.” The Court of Claims, quoting MCL 247.651h(1) and (3), held that “the action that plaintiff sought to compel was not ministerial in nature, explaining that ‘the execution of MDOT’s duties under the statute requires MDOT to exercise a great degree of discretion,’ including ‘making judgments and comparing “equivalent designs,” as well as making assessments about utilizing funds “as efficiently as possible.”’” The court agreed. Plaintiff sought “a writ of mandamus in order to ‘compel MDOT to suspend the use of the New Program until MDOT corrects the material flaws and known calibration defects in the New Program so the New Program produces accurate results that comport with the [statutory] requirement to employ a life-cycle cost analysis that compares equivalent designs in determining pavement designs.’” The court noted that on appeal, plaintiff “retreated from seeking to compel defendant specifically to implement a life-cycle cost analysis under Subparagraph (3) and has shifted to seeking to compel defendant to choose between the two alternatives in Subsection (4).” In effect, plaintiff admitted defendant had “discretion under MCL 247.651h(1) and (3), defeating its request for mandamus under those parts, and now hopes to revive that request by injecting a new factual predicate in order to compel defendant to proceed in accordance with MCL 247.651h(4). Having asked the Court of Claims for a writ of mandamus in order to ‘compel MDOT to suspend the use of the New Program until MDOT corrects the material flaws and known calibration defects’ under the statutory duty to ‘employ a life-cycle cost analysis that compares equivalent designs in determining pavement designs,’ then arguing on appeal that mandamus is proper only to compel defendant to choose among the procedures in MCL 247.651h(4), defendant is not challenging the Court of Claims’s decision, but rather is putting forward a new basis for seeking mandamus. Because there was no decision below on whether defendant was obliged to proceed under MCL 247.651h(4), as opposed to Subsection (3),” the court declined to consider this argument on appeal.
Statute of limitations; The General Property Tax Act (GPTA)
Concluding that plaintiff-appellant’s claim was barred by the statute of limitations where the claim was untimely, the court affirmed. “Appellant’s claim accrued when it suffered harm, not when it was damaged.” Under the GPTA, “if the property is not redeemed by March 31 of the year of foreclosure, all liens are extinguished, and title is vested in the foreclosing governmental unit. MCL 211.78k(5)(c). Therefore, any alleged claim for a taking accrued when the foreclosure judgment became final and appellant’s lien was extinguished on” 3/31/14. During oral arguments, appellant, for the first time below or on appeal, claimed that Administrative Order No. 2020-18, “which tolled the statutory limitation periods as a result of the COIVD-19 pandemic from [3/10/20], until [6/20/20], affected the timeliness of” the complaint. Considering AO 2020-18, appellant was required to file their claim by 7/13/20, and their 1/6/21 claim was time barred.
Negligence; Duty; The three-year limitations period; MCL 600.5805(2); Tolling; MCL 600.5856; Relation back; MCL 600.2957(2); Vicarious liability; Reeves v Kmart Corp; Agency; Distinguishing Thomas v Checker Cab Co, Inc; Products liability; Misuse; MCL 600.2947(2); Foreseeability
The court held that the trial court properly granted defendants-manufacturer (ICON), delivery company (XPO), and delivery/installation subcontractor (CMC) summary disposition of plaintiff’s negligence and products liability claims. Plaintiff sued defendants in state court after the federal court dismissed her claims. She was injured when she fell off a treadmill and became trapped between the running tread and a wall. The trial court found her claims against CMC were time-barred and dismissed them with prejudice. It also dismissed the claims as to XPO, finding there was no genuine issue of material fact that CMC was an independent contractor and that XPO was not liable for any negligence by CMC. Finally, it dismissed ICON, finding that the defense of product misuse was dispositive. On appeal, the court rejected plaintiff’s argument that the trial court erred by finding her claim against CMC was time-barred. “[A]lthough CMC was identified as a nonparty in the prior federal lawsuit and plaintiff’s federal complaint was timely as to CMC under MCL 600.2957(2), the relation-back provision of MCL 600.2957(2) is not applicable between separate lawsuits such that it renders plaintiff’s state-court complaint against CMC timely.” Because she filed her complaint in this case “against CMC outside the limitations period, plaintiff’s complaint was untimely and the [trial] court did not err” in dismissing it. The tolling provision “does not change this outcome and equitable tolling does not apply.” The court next rejected her claim the trial court erred by finding that XPO could not be held vicariously liable for CMC’s negligence because CMC was an independent contractor. “[N]o factual dispute exists that XPO did not have the power or ability to control CMC’s method of completing its delivery and assembly services.” As to the dismissal of the negligence claim against XPO, “plaintiff failed to demonstrate that a question of fact existed whether XPO owed plaintiff a duty under the present circumstances and, thus, plaintiff cannot sustain a direct negligence claim against XPO.” Finally, the court rejected her argument the trial court erred by dismissing the products-liability claim against ICON because its misuse defense presented questions of fact as to “whether it knew, or should have known, the treadmill would be used without the safety clip.” Plaintiff failed to show that ICON was “not entitled to the statutory defense of misuse, which bars all of [her] products-liability claims.” Affirmed.
Reasonable reunification efforts; Whether aggravated circumstances existed; MCL 712A.19a(2)(a); MCL 722.638(1)
The court vacated the trial court order terminating respondent-father’s parental rights to the children and remanded “for the trial court to make a determination whether aggravated circumstances exist or order that reasonable efforts be made.” Respondent argued that “the trial court erred by terminating his parental rights at initial disposition without first finding that aggravated circumstances or reasonable efforts to reunify the family had occurred, and moreover, aggravated circumstances did not exist in this case.” From the record, the court held that it was clear “the trial court did not engage in any meaningful analysis or articulate a factual finding that aggravated circumstances existed. Under MCL 712A.19a(2)(a), there must be a ‘judicial determination that the parent has subjected the child to aggravated circumstances’ before DHHS is excused from making reasonable efforts.” The court retained jurisdiction.