Attorney fees & fines under FOIA; Intentional & willful noncompliance; MCL 15.240b; “Shall”; Arbitrary & capricious noncompliance; MCL 15.240(7); Moot cross-appeal

The court affirmed the trial court’s orders denying plaintiffs' claim for attorney fees and civil fines under the FOIA. These appeals arose “from plaintiffs’ multiple requests for defendant to produce records about defendant’s communications and decisions in the performance of its duties.” The trial court concluded “that plaintiff’s lawsuit was not reasonably necessary to compel production, and that [it] did not have the requisite ‘substantial causative effect on production of the requested information.’” The court found that despite “the delays caused by defendant’s inexperience, and the illness of an administrative worker, defendant was responsive to plaintiffs’ communications between” 11/1/23 and 12/14/23, the date the first lawsuit was filed. “Defendant made the documents available for plaintiffs’ inspection by [1/3/24], but plaintiffs’ counsel did not go to the office to inspect the production. Plaintiffs blame defense counsel for not answering their follow-up questions on” 1/3/24. Plaintiffs were correct “that defendant’s actions after the lawsuit was filed do not negate the necessity of filing the lawsuit to obtain the records.” But defendant’s actions on 1/3/24 “can be interpreted as evidence that defendant was continuing the efforts it made before, and that the production was in progress and would have been completed without plaintiffs’ lawsuit. On the other hand, defendant’s failure to (1) respond to plaintiffs’ inquiries about the production in their [1/3/24] e-mail, (2) accurately cite statutory authority for the claimed exemption, and (3) produce all requested documents even after the [3/22/24] orders, could be interpreted as evidence that defendant would not have voluntarily complied without plaintiffs’ lawsuit.” Although the trial “court might have decided the factual issue differently, the finding it made was supported by evidence.” The court also held that the “trial court did not clearly err in finding that defendant did not engage in conduct warranting imposition of a fine under MCL 15.240b.” Finally, the trial “court did not err in denying assessment of a fine under MCL 15.240(7).”

Retaliation in violation of the Elliott-Larsen Civil Rights Act (ELCRA); “Protected activity”; Causation

The court affirmed the trial court’s order granting defendants-City of Flat Rock Fire Department and the City of Flat Rock summary disposition under MCR 2.116(C)(10) in this employment case involving allegations of retaliation in violation of ELCRA. Plaintiff argued “that he established the prima facie elements of an ELCRA retaliation claim and that defendants’ proffered legitimate reason for the employment action was purely pretextual.” The court disagreed. It concluded that “a trier of fact could reasonably infer from” the deposition testimony of a nonparty former fire department employee (C) that plaintiff supported C’s “harassment and discrimination claim against defendants and thus engaged in protected activity.” It also found that “a trier of fact could reasonably infer that defendants had knowledge that plaintiff supported [C’s] harassment and discrimination claim against defendants.” But it determined that “the evidence does not establish a causal connection between [C’s] deposition and plaintiff’s placement on administrative leave.” Finally, plaintiff did not “present sufficient evidence from which a fact-finder could reasonably infer that defendants’ decisions to place plaintiff on administrative leave and to continue his leave had a retaliatory basis.” To the extent “the trial court concluded that plaintiff established a prima facie claim of retaliation under the ELCRA,” the court disagreed because he “failed to present sufficient evidence of a causal connection.” But the court found that its holding was “the same: plaintiff failed to establish a genuine issue of material fact whether defendants had a legitimate reason to place him on administrative leave and to continue his leave.”

Sentencing; Whether the imposition of a $125,000 fine violated the Eighth Amendment’s Excessive Fines Clause; Whether defendants’ claims were barred by their appellate waivers; Proportionality of the fines

The court held that defendants in their appellate waiver waived the right to make reasonableness challenges to the fines imposed at sentencing, and that their challenge under the Eighth Amendment’s Excessive Fines Clause failed on the merits where their $125,000 fines were “not grossly disproportional.” They each pled guilty to “making false statements relating to health care matters with identical plea agreements containing appellate waivers.” They stipulated to submitting “2,986 claims to government health care benefit programs for ‘medically unnecessary’” drug screens and admitted receiving $166,632.22 from the programs for them. The district court sentenced them to 5 years of probation, “restitution of $166,632.22 to be paid jointly and severally, and a fine of $125,000 each.” They argued that the imposition of $125,000 fines was unreasonable and unconstitutional under the Eighth Amendment. The court noted it has “repeatedly held that procedural and substantive reasonableness challenges to a sentence fall within the scope of a general appellate waiver like the ones at issue here.” It concluded that they “knowingly and voluntarily agreed to their appellate waivers, so the waivers bar review of their procedural and substantive reasonableness challenges.” As to their Eighth Amendment challenge, the court has “never adopted the defendants’ position that appellate waivers ‘do not preclude review of sentences that exceed lawful bounds or are unconstitutional.’” It was unnecessary to determine if one of the recognized limited exceptions applied here because their Eighth Amendment claim failed on the merits. The court held “that the plea agreements’ stipulated facts define the offense for our Excessive Fines Clause analysis.” The nature of their “offense was an extensive fraudulent billing scheme that lasted an entire year and defrauded government benefits programs of $166,632.22.” The $125,000 fine was more than double the top of the advisory Guidelines range. “But the maximum fine that the district court could have imposed was the greater of $250,000 or twice the loss amount, meaning $333,264.44.” Thus, the fine imposed “was less than half the statutory maximum.” In addition, the “restitution award compensated the government for the monetary loss suffered, but the additional fines punished defendants for their intangible harm to the healthcare system and served as a potential deterrent to similar misconduct by others.” Affirmed.

Retaliation in violation of the Elliott-Larsen Civil Rights Act (ELCRA); “Protected activity”; Causation

The court affirmed the trial court’s order granting defendants-City of Flat Rock Fire Department and the City of Flat Rock summary disposition under MCR 2.116(C)(10) in this employment case involving allegations of retaliation in violation of ELCRA. Plaintiff argued “that he established the prima facie elements of an ELCRA retaliation claim and that defendants’ proffered legitimate reason for the employment action was purely pretextual.” The court disagreed. It concluded that “a trier of fact could reasonably infer from” the deposition testimony of a nonparty former fire department employee (C) that plaintiff supported C’s “harassment and discrimination claim against defendants and thus engaged in protected activity.” It also found that “a trier of fact could reasonably infer that defendants had knowledge that plaintiff supported [C’s] harassment and discrimination claim against defendants.” But it determined that “the evidence does not establish a causal connection between [C’s] deposition and plaintiff’s placement on administrative leave.” Finally, plaintiff did not “present sufficient evidence from which a fact-finder could reasonably infer that defendants’ decisions to place plaintiff on administrative leave and to continue his leave had a retaliatory basis.” To the extent “the trial court concluded that plaintiff established a prima facie claim of retaliation under the ELCRA,” the court disagreed because he “failed to present sufficient evidence of a causal connection.” But the court found that its holding was “the same: plaintiff failed to establish a genuine issue of material fact whether defendants had a legitimate reason to place him on administrative leave and to continue his leave.”

Attorney fees & fines under FOIA; Intentional & willful noncompliance; MCL 15.240b; “Shall”; Arbitrary & capricious noncompliance; MCL 15.240(7); Moot cross-appeal

The court affirmed the trial court’s orders denying plaintiffs' claim for attorney fees and civil fines under the FOIA. These appeals arose “from plaintiffs’ multiple requests for defendant to produce records about defendant’s communications and decisions in the performance of its duties.” The trial court concluded “that plaintiff’s lawsuit was not reasonably necessary to compel production, and that [it] did not have the requisite ‘substantial causative effect on production of the requested information.’” The court found that despite “the delays caused by defendant’s inexperience, and the illness of an administrative worker, defendant was responsive to plaintiffs’ communications between” 11/1/23 and 12/14/23, the date the first lawsuit was filed. “Defendant made the documents available for plaintiffs’ inspection by [1/3/24], but plaintiffs’ counsel did not go to the office to inspect the production. Plaintiffs blame defense counsel for not answering their follow-up questions on” 1/3/24. Plaintiffs were correct “that defendant’s actions after the lawsuit was filed do not negate the necessity of filing the lawsuit to obtain the records.” But defendant’s actions on 1/3/24 “can be interpreted as evidence that defendant was continuing the efforts it made before, and that the production was in progress and would have been completed without plaintiffs’ lawsuit. On the other hand, defendant’s failure to (1) respond to plaintiffs’ inquiries about the production in their [1/3/24] e-mail, (2) accurately cite statutory authority for the claimed exemption, and (3) produce all requested documents even after the [3/22/24] orders, could be interpreted as evidence that defendant would not have voluntarily complied without plaintiffs’ lawsuit.” Although the trial “court might have decided the factual issue differently, the finding it made was supported by evidence.” The court also held that the “trial court did not clearly err in finding that defendant did not engage in conduct warranting imposition of a fine under MCL 15.240b.” Finally, the trial “court did not err in denying assessment of a fine under MCL 15.240(7).”

Preliminary injunction to enforce a noncompete agreement; Mootness

Concluding that a decision here would only answer an abstract legal question, and that the case did not involve a matter of public significance, the court dismissed the appeal as moot. Defendants appealed the trial court’s grant of a preliminary injunction to plaintiff that ordered defendant-doctor “to not provide radiation-oncology services to a competing hospital.” The professional-services agreement the doctor had signed with plaintiff prevented him “from providing services to a competing hospital for one year after its termination, which occurred on” 1/2/25. While plaintiff asked the trial court to extend the restriction by the amount of time the doctor “had worked at the competing hospital, the court’s order did not do so.” As a result, even if the court “were to affirm the trial court’s order requiring [him] to comply with the noncompetition agreement, our decision would answer only an abstract legal question because the order no longer had a practical effect as of” 1/2/26. It also determined that no exception to the mootness doctrine warranted “considering the issue on the merits.”

Negligence; Food contamination; Causation; Skinner v Square D Co; Implied warranty; Defect at sale; Computer Network, Inc v AM Gen Corp; Adulterated food; MCL 289.5101; Spoliation

The court held that plaintiff failed to present evidence creating a genuine issue of material fact that the wire removed from her small intestine came from the hamburger she bought at defendants’ fast food restaurant. Plaintiff ate the hamburger on a Friday afternoon, developed abdominal pain that night, and underwent surgery Sunday morning, when doctors removed a three-centimeter piece of wire from her small intestine. The trial court granted summary disposition under MCR 2.116(C)(10) on plaintiff’s negligence, implied-warranty, and Food Law claims after finding her theory of causation speculative. On appeal, the court held that although causation may be proven circumstantially, the evidence must support “reasonable inferences of causation, not mere speculation,” and “the mere possibility of causation is insufficient to survive summary disposition.” The court found plaintiff did not meet that standard because the surgeon testified that the inflammatory response showed the wire had been lodged there for “at least a couple of days,” that it could have been in plaintiff for “a couple of years,” and that it was unlikely she ingested it Friday and showed that level of inflammation by Sunday. The court also noted that although the doctor said the wire’s shape “could have originated from a brush,” he agreed that linking it to defendants’ restaurant was “speculation.” The court further held that plaintiff’s own testimony did not bridge the gap because she did not taste, feel, or see metal while eating. Because plaintiff failed to show that the hamburger was defective or adulterated, her implied-warranty and MCL 289.5101 claims failed as well. The court declined to reach the spoliation argument because even proof that wire brushes existed in defendants' restaurant would not establish the missing causal link. Affirmed.

Guardianship & conservatorship termination; Evidentiary hearing; Authentication of evidence; MRE 901(a)

Noting that the probate court did conduct an evidentiary hearing, the court concluded that it “did not abuse its discretion by relying on testimony from” the protected individual (GJB) and her daughter in “determining that GJB no longer required a guardian or conservator.” Thus, the court affirmed the opinion and order terminating the guardianship and conservatorship. The daughter (appellee) was appointed GJB’s guardian and conservator after GJB suffered a traumatic brain injury. Appellant was GJB’s daughter-in-law. She “petitioned to replace the daughter as GJB’s guardian and conservator. In response, the daughter filed counterpetitions to terminate the guardianship and conservatorship because GJB had largely recovered from her injury[.]” Appellant asserted that the probate “court abused its discretion by terminating GJB’s conservatorship and guardianship without conducting an evidentiary hearing.” However, the record was clear that the probate court conducted “an evidentiary hearing before making its opinion. Evidentiary hearings involve the presentation of evidence by the parties about contested factual questions so that the trial court can make sufficiently informed decisions.” In this case, “GJB and her daughter provided sworn testimony at the hearing, which was subjected to cross-examination by” appellant, who was also given an opportunity to call witnesses, but declined to do so. The court found that the probate “court controlled the hearing in an orderly and efficient manner.” And appellant agreed with its “suggested course of action and participated fully in the hearing, even providing cross-examination and closing arguments.” Thus, she waived any challenge to how the probate court conducted the evidentiary hearing. As to her claim that it “erred in not considering documentary evidence submitted before the hearing[,]” the court noted that she “did not move to admit and authenticate any medical reports or other documentary evidence that she wanted” it to consider.

Easement scope; Little v Kin; Dock-length restriction; Historical use; Smith v Straughn; Littoral-use restrictions; Water access rights; Dyball v Lennox; Nuisance liability; Private nuisance elements; Terlecki v Stewart

The court held that the trial court erred by imposing dock-length and use restrictions not supported by the easement language or the historical use of the property. It also held that the verdict against defendant-Association on plaintiffs-homeowners’ nuisance claim could not stand. Plaintiffs owned one of the servient parcels burdened by a 1920 easement giving subdivision owners lake access and “the use of the dock in front of said land.” The trial court limited the dock to 30 feet, confined certain activities to the east side of the dock, and found the Association liable for nuisance. On appeal, the court held that the 30-foot limit was improper because an expired 1992 supplemental order issued in prior litigation no longer controlled and because “neither the language of the easement itself nor past practice supports that restriction.” The court next held that the trial court improperly restricted swimming, wading, and fishing because the subdivision owners historically used the easement, dock, and moored boats for those activities. Further, littoral-use easements include “‘an unrestricted right of access to the use of the waters’ for ‘the purpose of swimming, fishing, bathing, wading[,] and boating.’” The court also held that the east-side-only restriction was procedurally flawed because it shifted activity toward the other servient parcel “without allowing any opportunity for that property owner to be heard.” Finally, it held that the nuisance judgment against the Association had to be vacated because the trial court made “no findings of fact concerning plaintiffs’ nuisance claim.” In addition, “no evidence established that the conduct depicted in” a photo “could be attributed to the Association itself[.]” It vacated the judgments, reversed the verdict against the Association, and remanded.

Reunification efforts; Abandonment & waiver; In re Hudson; Best interests; In re Gonzales/Martinez; Anticipatory neglect; In re Mota

The court held that respondent-mother abandoned and waived any challenge to reunification efforts, and that the trial court did not err by finding termination of her parental rights was in child-CCMB’s best interests. The case arose after respondent drove a car she knew was in disrepair, without a license or insurance, while impaired by marijuana, and with her 6-year-old daughter and 4-year-old son unsecured (she left their booster seats in the trunk). After the brakes failed and the car crashed, the son was ejected and died. Respondent later entered a no-contest plea to jurisdiction and statutory grounds. On appeal, the court held that any reunification argument was abandoned because it was not included in the statement of questions presented and was supported by only a single undeveloped citation. The court next held that the issue was waived because, during the plea colloquy, the trial court told respondent that if termination did not occur after the best-interests hearing, it would then order her “to do certain things” before the child could be returned to her care, making clear that the next step was the best-interests hearing. On the best-interests issue, the court held that although the record showed a bond between respondent and CCMB, that factor was outweighed by respondent’s poor parenting judgment and the danger she posed to the child’s safety. The court also held that any reliance on anticipatory neglect was proper because CCMB herself had been placed at the same risk as her brother, and the neglect did not depend on any difference between the children. Affirmed.