Motion to vacate an arbitration award; Judicial review of arbitration awards; City of Ann Arbor v American Fed’n of State Cnty & Mun Employees Local 369; Whether an arbitrator exceeded his or her powers; MCL 600.5081(2)(c); Collective Bargaining Agreement (CBA); Public Employment Relations Act (PERA); Detroit Police Officers Association (DPOA); Michigan Employment Relations Commission (MERC); Unfair labor practice (ULP)

The court affirmed confirmation of a labor-arbitration award, holding the arbitrator acted within her contractual authority by interpreting the CBA and did not decide a PERA ULP issue. Plaintiff-city announced it would consider officers’ disciplinary histories when deciding eligibility to sit for the 2023 Sergeant and Detective promotional exams. Officer C was deemed ineligible and the DPOA filed a grievance under the parties’ 2022–2027 CBA. After a hearing, the arbitrator ruled for the DPOA. The city sued to vacate, arguing the arbitrator exceeded her powers by deciding PERA issues reserved to MERC and that the award violated public policy. The trial court denied the city’s motion and confirmed the award. On appeal, the court first rejected the city’s argument that the arbitrator exceeded her authority by finding a PERA violation, explaining that “she did not find that the [c]ity engaged in a ULP” and that her passing PERA references merely recognized that promotion-eligibility rules could be a bargaining subject. The court also rejected the city’s claim that public policy required vacatur because the award intruded on MERC’s exclusive jurisdiction, noting the arbitrator’s decision was “clearly grounded upon her interpretation of the CBA, which is plainly within the purview of her authority under Article 8 of the CBA.”

Claims under the Elliott-Larsen Civil Rights Act (ELCRA); Suit against an instrumentality of the state; The Court of Claims Act (COCA); Whether MCL 600.6431(1) (the COCA’s one-year notice provision) or MCL 600.6431(4) (the COCA’s six-month notice provision) applied; Christie v Wayne State Univ; St Juliana v State Police; Case precedent involving claims based on physical harm; “Personal injury” in relation to the COCA; The Revised Judicature Act’s (RJA) definition of the term (MCL 600.6301(b))

The court held that the COCA’s one-year notice provision in MCL 600.6431(1), rather than the six-month provision in MCL 600.6431(4), governed plaintiff’s age and sex discrimination claims under the ELCRA. Thus, governmental immunity did not bar her claims, and the Court of Claims properly denied defendants’ summary disposition motion. The primary issue on appeal was whether MCL 600.6431(1) or 600.6431(4) applied. The court concluded that, despite “defendants’ assertions to the contrary, our Supreme Court’s examination of MCL 600.6431 in Christie, and its holding that reversal was warranted because ‘[i]t s undisputed in this case that plaintiff did not comply with MCL 600.6431(1) within one year of the accrual of her claims,’ underscores that subsection (1), not subsection (4), controls claims advanced under the ELCRA.” While the Supreme Court “did not expressly address MCL 600.6431(4), [it] advanced that MCL 600.6431(5) operated as an exception to the notice requirement.” Further, Michigan “appellate courts have consistently applied MCL 600.6431(1) to determine whether a plaintiff has timely filed” ELCRA claims. The court noted there was “not a single binding, published case holding that ELCRA claims qualify as ‘personal injury’ claims, such that MCL 600.6431(4) governs the notice requirements.” It also noted that in St Juliana, it “recently addressed the significance of the differing notice provisions in MCL 600.6431 in light of the Christie decision.” The court concluded that, despite the Supreme “Court’s holding in Christie, certain types of claims appear to remain subject to the stricter notice requirements set forth in subsection (4). But the context in which this Court has examined whether parties complied with MCL 600.6431(4) has broadly involved claims premised on some sort of physical harm.” It noted that the circumstances in those cases bore little resemblance to those here, involving “plaintiff’s nonreappointment, which prompted her to file [this] suit—or to the usual events giving rise to an employment discrimination claim in violation of the ELCRA.” Considering the RJA’s definition of “personal injury,” the court found “that the ‘personal injuries’ contemplated in MCL 600.6431(4), and thus the resulting claims subject to the six-month notice provision, are those involving physical harm, which is not implicated here.” Affirmed.

Prosecutorial error; Eliciting character evidence; MRE 404(a) & (b)(1); Opening the door; Unresponsive answers from witnesses; Ineffective assistance of counsel; Failure to raise a futile objection; Sentencing; Moot arguments

The court rejected defendant-Carey’s prosecutorial error and ineffective assistance of counsel claims, and found that his sentencing arguments were moot. Thus, it affirmed his resisting or obstructing a police officer conviction and his 2 to 4-year sentence. The case arose after his neighbors called the police because he “was playing loud music and yelling. After police officers arrived,” officers attempted to arrest him on “outstanding warrants, but he resisted and” tried to run into his house. He argued on appeal “that the prosecutor committed prosecutorial error by eliciting improper character evidence from his neighbors at trial.” As to the exchange he cited between the prosecutor and witness-T, Carey failed to acknowledge that it “occurred during the prosecutor’s redirect examination of [T] and was in response to the questions defense counsel asked [T] during cross-examination.” The court concluded that, reviewing “the questions in context, the prosecutor’s questions that Carey challenges were in response to defense counsel’s questions regarding previous incidents involving Carey’s conduct at his home. . . . Because defense counsel opened the door to evidence” about prior incidents involving defendant, Carey did not establish plain error as to T’s testimony. As to the challenged testimony of witness-H, “the prosecutor did not elicit improper character evidence from [H]. Rather, [H’s] reference to other nights involving loud music, yelling, and ‘drunk absurdity’ was unresponsive to the prosecutor’s question. ‘Unresponsive answers from witnesses are generally not prosecutorial error.’” Thus, Carey again failed to show plain error. Further, defense counsel was not ineffective for failing to raise futile objections given that no error occurred. Finally, his sentencing arguments were moot because he had served his sentence and was not on parole, having been discharged in July.

Other acts evidence; MRE 404(b); Relevance; Unfair prejudice; MRE 403; MCL 768.27b(1); Motion for an adjournment; Prejudice; Ineffective assistance of counsel; Failure to move for a mistrial after complainant’s testimony; People v Horton; People v Serges

The court concluded that (1) the trial court did not err in admitting other acts evidence as to defendant-Peyerk’s conduct toward the complainant’s mother, (2) Peyerk did not show “that he was prejudiced by the trial court’s denial of his request for adjournment on the basis of the production of pertinent medical records[,]” and (3) he was not denied the effective assistance of counsel. Thus, it affirmed his convictions of CSC III and CSC IV. The court noted that for the first prong of the applicable test, “the prosecution contended, during the lower court proceedings, that the other-acts evidence was being offered to prove a plan, scheme, or system of behavior, which is a proper purpose listed under MRE 404(b)(1).” Concerning the second prong, it found that the trial court properly held that the challenged “testimony was similar enough to the charged conduct in this case ‘to support an inference that they are manifestations of a common plan, scheme, or system.’” The court determined that it was “evident that the alleged sexual assault of complainant’s mother was similar to the charged conduct in this case, and amounted to more than ‘a series of similar spontaneous acts . . . .’” As to the third prong, it held “that the trial court’s decision to allow evidence of Peyerk’s other acts did not unfairly prejudice Peyerk at trial.” The court determined that “the danger of unfair prejudice caused by the other-acts evidence did not ‘substantially outweigh’ its significant probative value; thus, the evidence was not excludable under MRE 403.” As to the final prong, the court noted that “the trial court provided a limiting instruction regarding how the evidence was to be used by the jury.” Finally, it concluded that “even if the trial court had erred in its original admission of evidence, Peyerk’s arguments concerning MRE 404(b) appear to be harmless because the contested evidence was admissible under MCL 768.27b(1).”

Motion to vacate an arbitration award; Judicial review of arbitration awards; City of Ann Arbor v American Fed’n of State Cnty & Mun Employees Local 369; Whether an arbitrator exceeded his or her powers; MCL 600.5081(2)(c); Collective Bargaining Agreement (CBA); Public Employment Relations Act (PERA); Detroit Police Officers Association (DPOA); Michigan Employment Relations Commission (MERC); Unfair labor practice (ULP)

The court affirmed confirmation of a labor-arbitration award, holding the arbitrator acted within her contractual authority by interpreting the CBA and did not decide a PERA ULP issue. Plaintiff-city announced it would consider officers’ disciplinary histories when deciding eligibility to sit for the 2023 Sergeant and Detective promotional exams. Officer C was deemed ineligible and the DPOA filed a grievance under the parties’ 2022–2027 CBA. After a hearing, the arbitrator ruled for the DPOA. The city sued to vacate, arguing the arbitrator exceeded her powers by deciding PERA issues reserved to MERC and that the award violated public policy. The trial court denied the city’s motion and confirmed the award. On appeal, the court first rejected the city’s argument that the arbitrator exceeded her authority by finding a PERA violation, explaining that “she did not find that the [c]ity engaged in a ULP” and that her passing PERA references merely recognized that promotion-eligibility rules could be a bargaining subject. The court also rejected the city’s claim that public policy required vacatur because the award intruded on MERC’s exclusive jurisdiction, noting the arbitrator’s decision was “clearly grounded upon her interpretation of the CBA, which is plainly within the purview of her authority under Article 8 of the CBA.”

Divorce; Ex parte & custody orders; Barretta v Zhitkov; MCR 3.207(B)(5); Review of a referee’s recommended order after a custody hearing; MCR 3.215(F)(2); De novo hearing; MCR 3.215(F)(1); Established custodial environment (ECE); MCL 722.27(1)(c); Sabatine v Sabatine; Best-interest findings; MCL 722.23(i); Quint v Quint

The court affirmed the trial court’s order granting a motion by defendant-ex-husband to change custody of the parties’ children. Plaintiff-ex-wife first argued “that the trial court clearly erred by improperly addressing her objections to the ex parte order entered in [7/23], as well as the referee’s recommendations and order entered in” 11/23. The court disagreed. It held that because the ex parte order “plainly fell within MCR 3.207(B)(5), and because the order contained the notice requirements as required, plaintiff’s argument” that the trial court failed to conduct “a hearing on her objection within 21 days as required under MCR 3.207(B)(6)(a)” lacked merit. It added that she ignored “that: (1) she did not file a timely objection; (2) before she filed her late objection, the trial court had already set the matter for a hearing with the referee on the issues of custody, parenting time, and child support; and (3) the FOC subsequently filed a notice that it would also consider plaintiff’s objection to the ex parte order at the upcoming hearing. Having shown no plain error, [she] is not entitled to relief on this issue.” Plaintiff also raised “various arguments about the referee’s recommended order after the custody hearing and the trial court’s handling of [her] objection.” The court found that the fact “plaintiff chose not to present documentary evidence or other exhibits on” various issues was not the trial court’s fault. She further asserted “that the trial court impermissibly delayed the de novo hearing.” Contrary to her claim, “none of the delays to the de novo hearing can be attributed to any trial court errors.” She next asserted that it “erred by failing to find that the children had an [ECE] with her.” Again, the court disagreed. It found that absent “a showing that the evidence weighed significantly in the other direction, plaintiff has not established grounds to reverse the trial court’s decision. Because plaintiff has not met (or even addressed) her burden in her discussion of the evidence,” the court declined to further address her claim. Finally, she argued that the trial court erred in applying the best-interest factors. The court found that “the trial court had ample evidence to decide the children’s reasonable preferences; therefore, plaintiff is not entitled to reversal on” the basis the trial court failed to interview the children at, or before, the de novo hearing.

Slip & fall in a hospital shower during the COVID-19 pandemic; Medical malpractice/negligence; Immunity for non-COVID medical care under the Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475(5); Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for the City of Flint; Meaning of “in support of this state’s response to the COVID-19 pandemic”; “Health care services” (MCL 691.1473(d)); Jokinen v Beaumont Hosp Troy; Gross negligence; Tarlea v Crabtree

The court held that the PHCIA did not bar plaintiff-estate’s ordinary negligence claim and that no reasonable jury could find gross negligence on this record. The decedent (R) was hospitalized in 4/20 during the early COVID months, tested negative for COVID-19, and was never treated for it. While preparing for discharge, he asked to shower. A nurse assistant stayed with him for most of the shower, then briefly stepped out to grab towels after warning him to remain seated on the shower chair. In those few moments, he stood, slipped, suffered a traumatic subdural hemorrhage, and died two days later. The trial court granted the hospital summary disposition of plaintiff’s negligence claim under the PHCIA, but allowed an amended gross negligence claim to proceed. On appeal, the court first rejected PHCIA immunity, emphasizing the statute’s nexus requirement and finding this case “closer to Skipper-Baines and Jokinen than to Franklin.” It stressed that the decedent “did not have COVID-19, and defendant did not treat him for it,” that there was “no evidence that the shower was mandated or required in response to the COVID-19 pandemic,” and that the assistant left only “to retrieve an extra towel because the shower curtain did not adequately divert water from the floor.” It concluded that “the trial court erred in granting immunity to defendant under the PHCIA.” It also rejected the gross negligence claim, holding that the assistant’s conduct in providing a chair and rails, remaining for most of the shower, instructing the decedent to stay seated, and stepping out for roughly 15 seconds, did not show the “almost a willful disregard” required. “No reasonable juror could conclude defendant displayed such apathy for [R] as to rise to the level of gross negligence,” and the record showed “that the nurse assistant’s conduct was not ‘so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” Reversed and remanded.

Claims under the Elliott-Larsen Civil Rights Act (ELCRA); Suit against an instrumentality of the state; The Court of Claims Act (COCA); Whether MCL 600.6431(1) (the COCA’s one-year notice provision) or MCL 600.6431(4) (the COCA’s six-month notice provision) applied; Christie v Wayne State Univ; St Juliana v State Police; Case precedent involving claims based on physical harm; “Personal injury” in relation to the COCA; The Revised Judicature Act’s (RJA) definition of the term (MCL 600.6301(b))

The court held that the COCA’s one-year notice provision in MCL 600.6431(1), rather than the six-month provision in MCL 600.6431(4), governed plaintiff’s age and sex discrimination claims under the ELCRA. Thus, governmental immunity did not bar her claims, and the Court of Claims properly denied defendants’ summary disposition motion. The primary issue on appeal was whether MCL 600.6431(1) or 600.6431(4) applied. The court concluded that, despite “defendants’ assertions to the contrary, our Supreme Court’s examination of MCL 600.6431 in Christie, and its holding that reversal was warranted because ‘[i]t s undisputed in this case that plaintiff did not comply with MCL 600.6431(1) within one year of the accrual of her claims,’ underscores that subsection (1), not subsection (4), controls claims advanced under the ELCRA.” While the Supreme Court “did not expressly address MCL 600.6431(4), [it] advanced that MCL 600.6431(5) operated as an exception to the notice requirement.” Further, Michigan “appellate courts have consistently applied MCL 600.6431(1) to determine whether a plaintiff has timely filed” ELCRA claims. The court noted there was “not a single binding, published case holding that ELCRA claims qualify as ‘personal injury’ claims, such that MCL 600.6431(4) governs the notice requirements.” It also noted that in St Juliana, it “recently addressed the significance of the differing notice provisions in MCL 600.6431 in light of the Christie decision.” The court concluded that, despite the Supreme “Court’s holding in Christie, certain types of claims appear to remain subject to the stricter notice requirements set forth in subsection (4). But the context in which this Court has examined whether parties complied with MCL 600.6431(4) has broadly involved claims premised on some sort of physical harm.” It noted that the circumstances in those cases bore little resemblance to those here, involving “plaintiff’s nonreappointment, which prompted her to file [this] suit—or to the usual events giving rise to an employment discrimination claim in violation of the ELCRA.” Considering the RJA’s definition of “personal injury,” the court found “that the ‘personal injuries’ contemplated in MCL 600.6431(4), and thus the resulting claims subject to the six-month notice provision, are those involving physical harm, which is not implicated here.” Affirmed.

Change of venue; Transfer fee under MCR 2.223; Dismissal for nonpayment of the required fee; Relief from judgment; Excusable neglect under MCR 2.612(C)(1)(a); Catch-all under MCR 2.612(C)(1)(f); Principle that attorney negligence is attributable to the client; Finality versus fairness

The court affirmed dismissal for failure to pay the transfer filing fee and affirmed denial of relief from judgment. Plaintiff-law firm filed this action seeking unpaid legal fees. After stipulating to transfer the case from Washtenaw County to Oakland County under MCR 2.223, plaintiff was twice notified by the Oakland County Clerk that the $150 fee was due within 28 days. When payment still was not made, the circuit court dismissed the case without prejudice. On appeal, the court rejected plaintiff’s argument that the dismissal should be set aside on the basis that “its failure to timely pay the change-of-venue filing fee was because of ‘excusable neglect,’” noting the rule plainly warns of dismissal, counsel received clear written notices, and misunderstanding by counsel is not “excusable neglect.” In addition, attorney errors are attributed to the client. The court also declined catch-all relief, finding no “extraordinary circumstances.” Counsel’s oversight was not “‘a circumstance so unexpected and unusual’ that would warrant setting aside the order of dismissal.” It also noted a lack of diligence (untimely service and a long delay seeking a hearing). Although plaintiff argued the statute of limitations would bar refiling, finality and the absence of exceptional facts controlled, and dismissal, entered 54 days after notice, was within the trial court’s discretion.

Slip & fall in a hospital shower during the COVID-19 pandemic; Medical malpractice/negligence; Immunity for non-COVID medical care under the Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475(5); Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for the City of Flint; Meaning of “in support of this state’s response to the COVID-19 pandemic”; “Health care services” (MCL 691.1473(d)); Jokinen v Beaumont Hosp Troy; Gross negligence; Tarlea v Crabtree

The court held that the PHCIA did not bar plaintiff-estate’s ordinary negligence claim and that no reasonable jury could find gross negligence on this record. The decedent (R) was hospitalized in 4/20 during the early COVID months, tested negative for COVID-19, and was never treated for it. While preparing for discharge, he asked to shower. A nurse assistant stayed with him for most of the shower, then briefly stepped out to grab towels after warning him to remain seated on the shower chair. In those few moments, he stood, slipped, suffered a traumatic subdural hemorrhage, and died two days later. The trial court granted the hospital summary disposition of plaintiff’s negligence claim under the PHCIA, but allowed an amended gross negligence claim to proceed. On appeal, the court first rejected PHCIA immunity, emphasizing the statute’s nexus requirement and finding this case “closer to Skipper-Baines and Jokinen than to Franklin.” It stressed that the decedent “did not have COVID-19, and defendant did not treat him for it,” that there was “no evidence that the shower was mandated or required in response to the COVID-19 pandemic,” and that the assistant left only “to retrieve an extra towel because the shower curtain did not adequately divert water from the floor.” It concluded that “the trial court erred in granting immunity to defendant under the PHCIA.” It also rejected the gross negligence claim, holding that the assistant’s conduct in providing a chair and rails, remaining for most of the shower, instructing the decedent to stay seated, and stepping out for roughly 15 seconds, did not show the “almost a willful disregard” required. “No reasonable juror could conclude defendant displayed such apathy for [R] as to rise to the level of gross negligence,” and the record showed “that the nurse assistant’s conduct was not ‘so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” Reversed and remanded.

Retroactive application of Rafaeli, LLC v Oakland Cnty; MCL 211.78t; Limitations period for surplus-proceeds claims; MCL 211.78l; Schafer v Kent Cnty; Exclusivity of state procedure & prematurity of federal takings claims; 42 USC § 1983; Hathon v State of Michigan; Due-process notice triggering use of §78t; In re Kent Cnty Treasurer for Foreclosure; Measure of recovery limited to “remaining proceeds”; MCL 211.78t(12)(b); Effect of Nelson v City of NY & Tyler v Hennepin Cnty, MN on surplus proceeds; Foreclosing governmental unit (FGU)

On remand from the Michigan Supreme Court, the court held that: (1) claimants seeking surplus proceeds from pre-Rafaeli tax-foreclosure sales must use the exclusive state procedure in MCL 211.78t, (2) circuit courts must apply Schafer’s limitations framework and decide whether the FGUs provided constitutionally sufficient notice, (3) federal takings and interest claims are premature, and (4) recovery is limited to “remaining proceeds” as defined in §78t. The consolidated cases involved former owners whose properties were foreclosed and sold. In Proctor I, the Court of Appeals recognized viable state claims to surplus proceeds and potential interest, but the Supreme Court vacated Parts II-B and II-C and remanded for reconsideration in light of Schafer and Hathon. On appeal, the court first explained that Rafaeli applies retroactively and, critically, that §78t “‘applies retroactively to all claims that arise from tax-foreclosure sales prior to Rafaeli[,]’” making it the path plaintiffs must follow. By statute, that “‘section is the exclusive mechanism for a claimant to claim and receive any applicable remaining proceeds under the laws of this state.’” The court directed trial courts to use Schafer’s limitations rule permitting claims “filed within the balance of time remaining under the applicable statutes of limitations as of” 12/22/20, running from the date of Schafer, and to account for any tolling during the appellate proceedings. Relying on Hathon (and Nelson), the court held that “properly notified claimants must first utilize the statutory process provided by MCL 211.78t” before pursuing § 1983 remedies or interest. The court remanded for fact-finding on: (1) whether plaintiffs preserved their rights by giving §78t notice, and (2) whether the FGUs provided constitutionally adequate notice sufficient to trigger plaintiffs’ obligation to use §78t, noting the lower courts may consider arguments about “actual notice.” Finally, the court reaffirmed that compensation under Michigan law is limited to “remaining proceeds” as defined in §78t(12)(b), rejecting claims for additional sums such as loss of equity. Reversed in part and remanded.

Retroactive application of Rafaeli, LLC v Oakland Cnty; MCL 211.78t; Limitations period for surplus-proceeds claims; MCL 211.78l; Schafer v Kent Cnty; Exclusivity of state procedure & prematurity of federal takings claims; 42 USC § 1983; Hathon v State of Michigan; Due-process notice triggering use of §78t; In re Kent Cnty Treasurer for Foreclosure; Measure of recovery limited to “remaining proceeds”; MCL 211.78t(12)(b); Effect of Nelson v City of NY & Tyler v Hennepin Cnty, MN on surplus proceeds; Foreclosing governmental unit (FGU)

On remand from the Michigan Supreme Court, the court held that: (1) claimants seeking surplus proceeds from pre-Rafaeli tax-foreclosure sales must use the exclusive state procedure in MCL 211.78t, (2) circuit courts must apply Schafer’s limitations framework and decide whether the FGUs provided constitutionally sufficient notice, (3) federal takings and interest claims are premature, and (4) recovery is limited to “remaining proceeds” as defined in §78t. The consolidated cases involved former owners whose properties were foreclosed and sold. In Proctor I, the Court of Appeals recognized viable state claims to surplus proceeds and potential interest, but the Supreme Court vacated Parts II-B and II-C and remanded for reconsideration in light of Schafer and Hathon. On appeal, the court first explained that Rafaeli applies retroactively and, critically, that §78t “‘applies retroactively to all claims that arise from tax-foreclosure sales prior to Rafaeli[,]’” making it the path plaintiffs must follow. By statute, that “‘section is the exclusive mechanism for a claimant to claim and receive any applicable remaining proceeds under the laws of this state.’” The court directed trial courts to use Schafer’s limitations rule permitting claims “filed within the balance of time remaining under the applicable statutes of limitations as of” 12/22/20, running from the date of Schafer, and to account for any tolling during the appellate proceedings. Relying on Hathon (and Nelson), the court held that “properly notified claimants must first utilize the statutory process provided by MCL 211.78t” before pursuing § 1983 remedies or interest. The court remanded for fact-finding on: (1) whether plaintiffs preserved their rights by giving §78t notice, and (2) whether the FGUs provided constitutionally adequate notice sufficient to trigger plaintiffs’ obligation to use §78t, noting the lower courts may consider arguments about “actual notice.” Finally, the court reaffirmed that compensation under Michigan law is limited to “remaining proceeds” as defined in §78t(12)(b), rejecting claims for additional sums such as loss of equity. Reversed in part and remanded.