Statute of frauds writing requirement; MCL 566.108; Zurcher v Herveat; One-year provision writing requirement; MCL 566.132(1)(a); Easement essential terms; Greve v Caron; Electronic signature; MCL 450.837(4); Meeting of the minds; Kloian v Domino’s Pizza LLC

Holding that the parties formed an enforceable contract and that the statute of frauds was satisfied by writings electronically signed through counsel, the court affirmed the judgment ordering specific performance and entering declaratory relief. Neighboring property owners negotiated conditions tied to plaintiffs’ special-use permit request, including repaving, a dumpster enclosure, a perpetual shared-access easement, cost sharing for waste removal, and three years of shared landscaping. The township approved the permit “Subject to the Following Conditions,” including “the agreement between [plaintiffs] and [defendants].” The trial court found a binding contract and specified deadlines and logistics to implement performance. On appeal, the court held the statute of frauds was met because the emails contained the essential terms and counsel adopted them. It explained that under MCL 450.837(4), if “a law requires a signature, an electronic signature satisfies the law.” Further, whether a record is signed is a question of fact, and it noted counsel’s statements that the “terms you noted below are correct” and that “we do not need an agreement.” As to the easement, the court concluded the agreement to a “perpetual recorded easement for shared dumpster access” was sufficiently definite because the trial court could supply precise contours and “render[] the easement ‘capable of determinate location under a common sense view of the grant.’” Addressing mutual assent, the court cited an email setting out five terms and plaintiffs’ point-by-point assent, finding a meeting of the minds judged by “‘the express words of the parties and their visible acts[.]’” Finally, the court upheld the trial court’s equitable authority to add reasonable implementation details and new dates where the original ones had expired, explaining that, so “‘long as the essentials are defined by the parties themselves, the law supplies the missing details by construction.’”

Prosecutorial misconduct; Closing argument; Comment that victims “have the right to be believed”; Violation of MCR 6.201(A); Failure to list an expert on the prosecution’s witness list; Remedy; Lack of prejudice

While the court held that the prosecutor plainly erred in stating during closing argument that victims “have the right to be believed,” it concluded defendant was not entitled to relief. The evidence against him was overwhelming, and critically, the jury was properly instructed. Thus, the court affirmed his convictions of CSC I and attempted CSC I. It first found he was correct that the prosecution violated MCR 6.201(A) as to an expert witness. Whie defendant was provided with “the doctor’s report, the prosecutor did not provide the doctor’s CV or designate the doctor as an expert on the witness list.” As to the question of remedy, in ruling on his “objection, the trial court considered what defendant knew and should have known in relation to the doctor’s testimony. [He] knew the doctor was testifying, knew that she was testifying about the report, and knew that the report included an opinion that the lack of physical evidence of abuse was consistent with [victim-]NR’s disclosure. Given this, defendant should have known that the prosecutor was going to elicit testimony from the doctor about the normal exam results, considering that the lack of evidence of abuse was defendant’s main argument in his opening statement. Thus, the trial court did not abuse its discretion in finding that defendant was not prejudiced by the prosecutor’s error.” As to his claims of prosecutorial misconduct in closing argument, the court found that most of the statements were proper. However, it held that “the prosecutor did cross the line when he stated that victims, like NR, ‘have the right to be believed.’ In a court of law, no witness has a free-standing ‘right to be believed’ by the finder of fact.” The court noted that prosecutors “across the country have asserted such a right, and those assertions have been roundly rejected by both federal and state courts.” But it concluded that this plain error did “not warrant reversal. There was overwhelming evidence of defendant’s guilt, including the testimony of NR, her mother, her grandmother, her teachers, the doctor, and police officers. The jury watched the video of defendant’s interview with police, during which he made arguably damning statements.” Further, the trial court’s jury “instructions cured any prejudicial effects that the prosecutor’s comments may have had.”

Joinder; MCR 6.120(B) & (C); People v Williams; Harmless error; Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community; People v Bryant; Duren v Missouri; Sufficiency of the evidence; Self-defense; MCL 780.972(1)(a)

The court held that (1) the trial court did not abuse its discretion in joining defendant’s two cases for one trial, (2) he was not entitled to relief based on the racial composition of the jury venire, and (3) a rational fact-finder could conclude that the prosecution disproved his self-defense claim beyond a reasonable doubt. In one of the cases, he was convicted of discharging a firearm from a motor vehicle causing serious bodily impairment, CCW, AWIGBH, and felony-firearm. In the other case he was convicted of assaulting, resisting, or obstructing a police officer and CCW. As to his joinder argument, the “July 11 charges arose directly from law enforcement’s attempt to arrest defendant on a warrant issued for the July 5 offenses. And while temporal proximity is not required to establish that offenses are related, . . . it is a relevant consideration under MCR 6.120(B)(1).” Further, the record supported “a reasonable inference that the semiautomatic handgun and extended magazine recovered during the arrest linked the offenses.” In addition, there was “significant overlapping proof. Defendant’s attempt to flee arrest on July 11 was admissible in connection with the July 5 offenses as ‘[e]vidence of flight[.]’” And because a showing that the officers acted lawfully when trying to arrest him was required for the resisting or obstructing charge, evidence explaining that they “were executing an arrest warrant based on the July 5 shooting was directly relevant to the July 11 charges.” As to his jury venire argument, he failed to satisfy “the second and third prongs of the Duren test.” Finally, the evidence he presented in support of his self-defense claim did not “create a reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm to defendant or another person.” Further, even assuming that a witness’s “testimony and defendant’s statement to police were sufficient to establish a prima facie claim of self-defense, the prosecution presented ample evidence to disprove that defense beyond a reasonable doubt.” Affirmed.

Sentencing; “Acceptance of responsibility” reduction; USSG § 3E1.1(a) & cmt n 2; Discrepancies in sentencing with defendant’s co-conspirators; Mitigating evidence; Supervised release conditions; Discretionary reduction under USSG app C supp, amend 821; Reassignment; Motion for relief under 28 USC § 2255

The court held that the district court properly declined to reduce defendant-Coleman’s sentence for acceptance of responsibility under § 3E1.1(a) where it was offered five years after his sentencing. It also rejected his claims as to sentencing disparities, consideration of mitigating evidence, and supervised release conditions. But it remanded for consideration under Amendment 821. A jury convicted Coleman of conspiracy to distribute drugs. At sentencing, he “didn’t present any mitigating evidence or take accountability for his actions.” His recommended Guidelines range, including a career-offender enhancement, was 262 to 327 months. The district court varied upwards and sentenced him to 340 months. He later successfully moved for relief under § 2255 based on ineffective assistance of counsel related to the career-offender enhancement. His recommended Guidelines range without that enhancement was 135 to 168 months. This time, Coleman presented evidence of childhood hardship and submitted a written apology, taking responsibility for his actions. The district court considered this evidence at resentencing. It sentenced him to 168 months, reimposed the same fine, and reduced his supervised-release term to six years with the same conditions. On appeal, Coleman argued that it erred by relying on the Guidelines commentary to deny him a two-level sentencing reduction for acceptance of responsibility. The court noted that § 3E1.1 cmt. n.2 “clarifies that the adjustment ‘is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.’” The court rejected Coleman’s assertion that the district court was “‘reflexively defer[ing]’” to Note 2, finding that “the district court properly applied the plain text of § 3E1.1(a).” The court concluded the “guideline’s text, history, and purpose unambiguously foreclose Coleman’s efforts to receive a reduction for post-sentencing acceptance of responsibility.” It also rejected his sentencing disparity argument, noting that the “district court didn’t err by focusing on national sentencing disparities” and that his co-conspirators, unlike Coleman, pled guilty and cooperated with law enforcement. It also held that the district court did not commit plain error by concluding “there was ‘no causal connection between the mitigating evidence and the crime.’” The court also upheld the challenged conditions of his supervised release. Lastly, it remanded for consideration under Amendment 821, but it denied his request to reassign the case to a different judge. Affirmed and remanded.

The National Labor Relations Act (NLRA); Unfair labor practice (ULP); Discharge of an employee due to organizing activity; 29 USC § 158(a) (§ 8(a)); Burden-shifting process; Prima facie case; Anti-union animus; Disparate treatment; Timing; Whether the employer showed the employee would have been fired absent the union activity; Substantial evidence; Remedy; § 160(c) (§ 10(c)); “Affirmative action” to remedy NLRA violations; Thryv, Inc (NLRB); Equitable relief; Award of “direct or foreseeable” monetary damages; The jury trial right

The court held that substantial evidence supported petitioner-Board’s decision that respondent-employer (Starbucks) committed an ULP because it discharged an employee (nonparty-W) due to her union organizing activity. But “the Board exceeded its statutory authority in awarding [W] ‘direct or foreseeable’ monetary damages[.]” Thus, the court granted the Board enforcement of its decision that Starbucks committed an ULP but vacated the remedy and remanded. It first determined that substantial evidence supported the Board’s finding “that anti-union animus motivated Starbucks’s conduct.” The court concluded “several pieces of evidence indicate that termination was not the anticipated or common penalty for this infraction, and that at least one other employee engaged in the same conduct as [W] but” was not fired as a result. As to timing, “while it may be merely coincidental that Starbucks fired [W] during or shortly after her protected activity,” the court determined that record evidence supported the Board’s conclusion. And a district manager’s “conduct could suggest a general hostility toward” intervenor-union’s organizing efforts, of which he knew W was a supporter. As the Board established its prima facie case, the burden shifted to Starbucks to prove it would have fired W despite her union activity. “No silver bullet decisively establishes Starbucks’s improper motive in discharging [W]. But under our precedent, it is enough that, taking the record as a whole, substantial evidence supports the Board’s prima facie case and defeats the company’s affirmative defenses.” The issue as to the remedy was “whether Congress used ‘affirmative action’ as a phrase of art referring only to equitable remedies, . . . or instead as a literal phrase encompassing all types of relief, including those legal in nature[.]” The court found that “all signs point to the former.” Thus, it held that “the Board’s authority under § 10(c) to order employers to take ‘affirmative action’ encompasses only equitable remedies.” And it concluded the remedy the Board imposed here “reflects legal relief amounting to money damages, to which a jury trial right attaches.” The court did “not doubt the Board’s authority to tailor monetary payments so that they serve solely ‘to restore the status quo,’ rendering them equitable.” But the Board was “measuring monetary relief from the standpoint of the employee’s loss, indicating its compensatory nature, rather than the employer’s gain, which invokes equitable considerations.” In doing so, it “impermissibly shifted from equity to law.”

Product misuse under MCL 600.2947(2); Iliades v Dieffenbacher N Am, Inc; Design-defect standards; Rebuttable presumption of nonliability under MCL 600.2946(4); Compliance with federal safety standards; Alternative feasible designs; Failure to warn under MCL 600.2948(2); Greene v AP Prods, Ltd; Owens v Allis-Chalmers; Obvious risks

Holding that defendant-Ford was entitled to summary disposition because the decedents’ deaths resulted from the driver’s failure to place the vehicle in park, not from a product defect, the court affirmed dismissal of all product liability claims. The case arose when the vehicle rolled into a pond after the driver exited with the engine running and transmission in drive, causing two passengers to drown. Plaintiff, representing their estates, alleged design, manufacturing, and failure-to-warn defects, contending the vehicle lacked a “return-to-park” system, automatic brake, or effective audible and visual warnings. Ford moved for summary disposition, arguing misuse barred the claims under MCL 600.2947(2) and that the vehicle complied with all federal safety standards. The trial court found product misuse was a factual issue but held plaintiff failed to establish a design or warning defect. On appeal, the court agreed, explaining that misuse generally operates as a defense, not a claim, and that a manufacturer’s duty extends only to eliminating “‘unreasonable risk of foreseeable injury,’” not to guarding against all misuse. It held that Ford was entitled to the presumption of nonliability under MCL 600.2946(4) because the vehicle met all applicable federal safety standards. Plaintiff’s expert conceded that the proposed alternative designs, automatic parking brake or return-to-park feature, were not required by regulation and defendant’s expert testified they were uncommon in vehicles of that model year. The court found no evidence that the design was defective or that omission of such features rendered the product unreasonably unsafe. As to failure to warn, the court held that the risk of exiting a car left in drive was “‘obvious to a reasonably prudent’” driver under MCL 600.2948(2), noting that the owner’s manual warned, “Always fully apply the parking brake and make sure you shift into park (P). Failure to follow this instruction could result in personal injury or death.” As to plaintiff’s reliance on Owens, it ruled that MCL 600.2948(2) displaced the common-law rule principles that governed in that case.

Statute of frauds writing requirement; MCL 566.108; Zurcher v Herveat; One-year provision writing requirement; MCL 566.132(1)(a); Easement essential terms; Greve v Caron; Electronic signature; MCL 450.837(4); Meeting of the minds; Kloian v Domino’s Pizza LLC

Holding that the parties formed an enforceable contract and that the statute of frauds was satisfied by writings electronically signed through counsel, the court affirmed the judgment ordering specific performance and entering declaratory relief. Neighboring property owners negotiated conditions tied to plaintiffs’ special-use permit request, including repaving, a dumpster enclosure, a perpetual shared-access easement, cost sharing for waste removal, and three years of shared landscaping. The township approved the permit “Subject to the Following Conditions,” including “the agreement between [plaintiffs] and [defendants].” The trial court found a binding contract and specified deadlines and logistics to implement performance. On appeal, the court held the statute of frauds was met because the emails contained the essential terms and counsel adopted them. It explained that under MCL 450.837(4), if “a law requires a signature, an electronic signature satisfies the law.” Further, whether a record is signed is a question of fact, and it noted counsel’s statements that the “terms you noted below are correct” and that “we do not need an agreement.” As to the easement, the court concluded the agreement to a “perpetual recorded easement for shared dumpster access” was sufficiently definite because the trial court could supply precise contours and “render[] the easement ‘capable of determinate location under a common sense view of the grant.’” Addressing mutual assent, the court cited an email setting out five terms and plaintiffs’ point-by-point assent, finding a meeting of the minds judged by “‘the express words of the parties and their visible acts[.]’” Finally, the court upheld the trial court’s equitable authority to add reasonable implementation details and new dates where the original ones had expired, explaining that, so “‘long as the essentials are defined by the parties themselves, the law supplies the missing details by construction.’”