Race discrimination; The Elliott-Larsen Civil Rights Act (ELCRA); Circumstantial evidence; Burden-shifting approach; McDonnell Douglas Corp v Green; Hazle v Ford Motor Co; “Adverse employment action”; Articulation of a legitimate, nondiscriminatory reason; Pretext; Major v Village of Newberry; Tortious interference with a business relationship; Intentional interference; Dalley v Dykema Gossett, PLLC; Michigan High School Athletic Association (MHSAA)

Holding that the trial court properly dismissed plaintiff’s ELCRA race discrimination and tortious interference with a business relationship claims, the court affirmed. He was the varsity girls’ basketball coach for a high school (Heritage) in defendant-school district (STCS). Defendant-Kraatz was STCS’s athletic director and defendant-Aimar was the athletic director for a high school (John Glenn) in a nearby city. The case arose after Kraatz submitted a report to the MHSAA “implying that plaintiff had improperly recruited a high-school basketball player . . . from John Glenn to Heritage and allowed her to participate in” team activities with “her athletic eligibility to do so being in doubt.” Applying the McDonnell Douglas framework to plaintiff’s ELCRA claim, the court concluded he “established the four elements of his prima facie case” and it agreed with “defendants that they articulated a legitimate, nondiscriminatory reason for their actions.” That left the issue of whether plaintiff created a triable issue as to pretext. The court found that he failed to do so, and that he did not establish “a question of fact as to whether defendants engaged in unlawful discrimination.” It determined that the record failed to create “such a question of fact. The investigation initiated and conducted by Aimar, Kraatz, and the STCS administration was reasonably within the bounds of what a person would expect in this matter. Plaintiff has not cited any act or omission by defendants in the course of this investigation that is so unexplained or unusual that it would suggest that unlawful discrimination is the true, underlying reason for the sanctions imposed against plaintiff.” The court found that the facts of the case arguably did “not show that defendants even engaged in conduct that was ‘wrong or mistaken,’ much less that their actions were motivated by an unlawful intent.” As to his tortious interference with a business relationship claim against Aimar, the court concluded that “Aimar’s actions were justified by MHSAA regulations and its requirement that an investigation be undertaken. Plaintiff” failed to show “that Aimar acted with malice or otherwise engaged in illegal, unethical, or fraudulent conduct by initiating this investigation.”

Ineffective assistance of counsel; Failure to request certain jury instructions; Accident instructions; M Crim JI 7.1 or 7.3a; Self-defense instruction as to felony-firearm (M Crim JI 11.34c); Distinguishing People v Goree & People v Kilgore; Voluntary manslaughter instruction (M Crim JI 16.9); Failure to call additional experts; Failure to object to an in-court identification; Instruction given on duty to retreat; Due process claim based on the in-court identification; People v Gray; Cumulative error

The court rejected defendant-Gray’s ineffective assistance of counsel claims. It also held that the trial court did not abuse its discretion in giving jury instructions on the duty to retreat or in not giving instructions on voluntary manslaughter as a lesser offense and self-defense for felony-firearm. While it found that it was an obvious error to allow a witness’s in-court identification of Gray, it concluded he failed to show prejudice warranting reversal. Finally, it rejected his cumulative error claim. He was convicted of second-degree murder, AWIGBH, FIP, and felony-firearm, second offense. He argued on appeal that his trial counsel was ineffective for, among other things, not requesting jury instructions on accident, self-defense as to felony-firearm, and voluntary manslaughter. But the court held that trial “counsel was not ineffective for failing to request jury instructions on accident. Accident was not a defense that was reasonably supported by the evidence.” It noted that “Gray explicitly testified that he aimed the gun and intentionally shot” one of the victims (W). It also held that trial “counsel was not ineffective for failing to request self-defense instructions in regard to felony-firearm.” It found that this case was distinguishable from Goree and Kilgore, and that the “applicable self-defense law was clearly presented to the jury.” The court further determined that it “was reasonable for trial counsel to not request instructions on voluntary manslaughter when this charge was not supported by the evidence.” There was no evidence that Gray “acted out of emotional excitement, other than fear, which related to self-defense.” And trial counsel’s “strategy was to focus on Gray’s claim of self-defense.” As to the challenged in-court identification, applying plain error review and considering the eight Gray factors as a whole, the court concluded the witness’s “identification of Gray was of questionable reliability.” But another witness identified him “at trial, trial counsel stated in his opening statement that Gray was at [W’s] home, and Gray testified that he was present at [W’s] home when the shooting occurred. There was” also circumstantial evidence placing him there. Affirmed.

Motion for restoration of appellate rights under MCR 6.428; People v Byars; Invalid affidavit; Judgments of sentence (JOS)

On remand from the Supreme Court, the court held that the trial court did not abuse its discretion in denying defendant-Green’s motion to restore his appellate rights under MCR 6.428. In 2020 he pled guilty to armed robbery in two different cases. He later requested “appointment of an attorney to represent him in” filing an application for leave. The trial court appointed an attorney (K) to represent him but no appeal was ever filed. Green filed his motion to restore pro se about four years later. He contended that K “should have filed an appeal and that his appellate rights should be restored because [K] neglected to file an application for leave to appeal.” But Green did not present any evidence that he asked K “to pursue an application for leave to appeal after the entry of his” JOS. As the trial court recognized, Green asserted that he retained another attorney (R) to seek the appeal. Given this record, Green did not show “any errors or omissions by [K] that barred him from filing an appeal.” The court held that, as to R, “the trial court properly determined that Green failed to provide proof that there was ever an attorney-client relationship between” them. He did not offer “such evidence with his motion for restoration of his appellate rights, and there was no proof of a notice of appearance or a motion to substitute counsel.” The court found the record did “not support Green’s contention that [R] was responsible for filing an application or that Green even took the necessary steps for [R] to file an application for leave to appeal on his behalf.” While Green attached a purported affidavit to his delayed application, the document was not signed by him or notarized, so it was not a valid affidavit. The court added that, even to the extent it was considered, it did “not establish that Green requested either” R or K to file an application for leave to appeal. The court concluded that his “lack of an appeal was the product of his own actions, and not the fault of counsel or some factor outside of defendant’s control.” Affirmed.

Ineffective assistance of counsel; People v Ginther; Failure to call expert; People v Ackley; Sufficiency of the evidence; Felony murder; MCL 750.316(1)(b); Malice; People v Carines; Unlawful imprisonment; MCL 750.349b; People v Jarrell

The court held that defendant was not denied the effective assistance of counsel and that sufficient evidence supported his felony murder conviction. He was convicted of felony murder after the prosecution presented evidence that he beat the victim in a vehicle after a barn party, tried to remove blood from the rental car, burned the victim’s clothing, and later helped burn the victim’s body in an abandoned house. On appeal, the court first held that counsel was not ineffective for failing to call a forensic pathologist with toxicology expertise because counsel had consulted another forensic pathologist, contacted toxicologists, and the proposed expert’s own report acknowledged that “extreme heat and the significant degree of postmortem decomposition” complicated any overdose assessment. The court distinguished Ackley because the medical testimony was not “the only evidence against” defendant. The prosecution also presented evidence of beating, cleanup, concealment, and phone-location data. The court also held that counsel was not ineffective for failing to call a toxicologist as defendant’s own witness because the codefendant called her, the jury was free to consider her testimony as to both defendants, and defendant could not show a different outcome was probable. As to sufficiency, the court held that the jury could infer malice because defendant beat the victim, cleaned blood from the car, and burned evidence. The court further held that the jury could find unlawful imprisonment because defendant asked to put the victim in the trunk, the victim was stripped of clothing, and blood was found in the trunk, permitting an inference that defendant restrained the victim “to facilitate the commission of his murder.” Affirmed.

Slip & fall; Premises liability; Kandil-Elsayed v F & E Oil, Inc; Liability waiver; Public policy; Cudnik v William Beaumont Hosp; Contracting against liability for ordinary negligence; Skotak v VicTanny Int’l, Inc; Gross negligence; Xu v Gay; Reckless conduct; Tarlea v Crabtree

The court held that plaintiff’s signed shower-facility waiver was not void as against public policy and that plaintiff failed to establish gross negligence. Plaintiff slipped and fell after showering at defendant’s physical-therapy facility. She argued that the waiver she signed was unenforceable under Cudnik or, alternatively, that defendant’s conduct amounted to gross negligence. On appeal, the court first held that Cudnik did not invalidate the waiver because that case involved medical malpractice and “negligence related to a patient’s medical care,” while this case involved premises liability arising from plaintiff’s use of a shower facility where defendant “would not be assisting plaintiff in the shower[.]” The court emphasized that Michigan generally permits parties to contract against liability for ordinary negligence, and “our courts have upheld waivers relating to premises liability.” The waiver was enforceable because both parties were competent, it gave plaintiff options, there was no evidence of duress or fraud, and there were “no indicia of an unlawful adhesion contract.” The court also held that plaintiff failed to show gross negligence because the shower had mats, handrails, regular cleaning, and periodic anti-slip treatment. Although plaintiff argued defendant could have done more, the court noted that “‘[s]imply alleging that an actor could have done more is insufficient’” and defendant here “actively attempted to minimize the potentially slippery nature of the floor.” Thus, defendant’s conduct did not show “‘a substantial lack of concern for whether an injury results.’” Affirmed.

Race discrimination; The Elliott-Larsen Civil Rights Act (ELCRA); Circumstantial evidence; Burden-shifting approach; McDonnell Douglas Corp v Green; Hazle v Ford Motor Co; “Adverse employment action”; Articulation of a legitimate, nondiscriminatory reason; Pretext; Major v Village of Newberry; Tortious interference with a business relationship; Intentional interference; Dalley v Dykema Gossett, PLLC; Michigan High School Athletic Association (MHSAA)

Holding that the trial court properly dismissed plaintiff’s ELCRA race discrimination and tortious interference with a business relationship claims, the court affirmed. He was the varsity girls’ basketball coach for a high school (Heritage) in defendant-school district (STCS). Defendant-Kraatz was STCS’s athletic director and defendant-Aimar was the athletic director for a high school (John Glenn) in a nearby city. The case arose after Kraatz submitted a report to the MHSAA “implying that plaintiff had improperly recruited a high-school basketball player . . . from John Glenn to Heritage and allowed her to participate in” team activities with “her athletic eligibility to do so being in doubt.” Applying the McDonnell Douglas framework to plaintiff’s ELCRA claim, the court concluded he “established the four elements of his prima facie case” and it agreed with “defendants that they articulated a legitimate, nondiscriminatory reason for their actions.” That left the issue of whether plaintiff created a triable issue as to pretext. The court found that he failed to do so, and that he did not establish “a question of fact as to whether defendants engaged in unlawful discrimination.” It determined that the record failed to create “such a question of fact. The investigation initiated and conducted by Aimar, Kraatz, and the STCS administration was reasonably within the bounds of what a person would expect in this matter. Plaintiff has not cited any act or omission by defendants in the course of this investigation that is so unexplained or unusual that it would suggest that unlawful discrimination is the true, underlying reason for the sanctions imposed against plaintiff.” The court found that the facts of the case arguably did “not show that defendants even engaged in conduct that was ‘wrong or mistaken,’ much less that their actions were motivated by an unlawful intent.” As to his tortious interference with a business relationship claim against Aimar, the court concluded that “Aimar’s actions were justified by MHSAA regulations and its requirement that an investigation be undertaken. Plaintiff” failed to show “that Aimar acted with malice or otherwise engaged in illegal, unethical, or fraudulent conduct by initiating this investigation.”

The General Sales Tax Act; Exemption for “prosthetic device[s]”; MCL 205.54a(1)(k); MCL 205.51a(q); Effect of former MI Admin Code, R 205.139 (Rule 89); Concept that “taxation is the rule” & exemptions are the “exception”; Guardian Indus Corp v Department of Treasury; “Replacement, corrective, or supportive device”

Holding that “the prescription medical items at issue that plaintiff sold to disabled persons are not ‘prosthetic device[s]’ eligible for” the sales tax exemption in MCL 205.54a(1)(k), the court affirmed the Court of Claims order granting defendant partial summary disposition. After an audit, defendant determined “that plaintiff owed sales tax for sales of items generally categorized as prescription bandages, prescription incontinence devices/briefs, prescription medical gauze, prescription medical tape, prescription medical gloves, prescription wound dressing materials, prescription patient lubricants, prescription underpads, and prescription patient body wipes.” Plaintiff had treated those sales as exempt under MCL 205.54a(1)(k), MCL 205.51a(q), and former Rule 89. The court reviewed the statutes, including the definition of a prosthetic device (MCL 205.51a(q)), and Rule 89. It noted that the exemption statute, MCL 205.54a(1)(k), has been amended, and Rule 89 has been rescinded. While it technically remained in effect until 2023, “an administrative rule cannot broaden the scope of the statutory exemption.” Thus, the court focused on the statutory definition of a prosthetic device. “The statute’s plain language requires that a prosthetic device replace, correct, or support a specific body part.” It found critical “the statutory requirement that a prosthetic device must be a ‘replacement, corrective, or supportive device.’” Consulting a dictionary to define those terms, the court concluded that “a ‘prosthetic device,’ for purposes of the statute, is a piece of equipment or mechanism, designed to serve the special purpose or perform the special function of taking the place of a ‘missing portion of the body,’ altering or adjusting a ‘physical deformity or malfunction of the body’ to bring it to standard condition, or assisting in keeping a ‘weak or deformed portion of the body’ going.” It determined that the “device must do more than merely treat the symptoms of the condition; it must operate as a substitute or restore the affected body part to something approaching ordinary functionality.” And the court found that plaintiff failed to show that any of the items for which it claimed the exemption “were designed to accomplish any of” the statute’s listed purposes.

Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; MCL 712A.18f; In re MJC; Ineffective assistance of counsel; Failure to object; People v Abcumby-Blair; Children’s best interests; Individualized findings; In re Olive/Metts Minors

The court held that: 1) the DHHS made reasonable reunification efforts, 2) respondent-mother was not denied the effective assistance of counsel, 3) statutory grounds supported termination, and 4) termination was in the children’s best interests. The DHHS petitioned after the mother had untreated mental-health concerns, unstable housing, a history of domestic violence, prior CPS involvement, and a prior termination. Substance abuse later became an additional barrier when a child tested positive for cocaine and amphetamines at birth. On appeal, the court first held that the trial court did not err by finding reasonable efforts because the “DHHS prepared and updated case service plans pursuant to MCL 712A.18f(2) and (5),” the parties had the reports during the proceedings, and the DHHS offered “individual therapy, parenting classes, parenting time, domestic violence counseling, substance abuse testing, and a variety of referrals for employment and housing assistance.” The court emphasized that the mother “was offered a plethora of services” but “simply failed to consistently engage in, or benefit from, them.” The court also found no ineffective assistance from counsel’s failure to object to the service-plan issue because the plans existed and the mother could not establish prejudice. As to statutory grounds, the court held that the case lasted more than three years, the DHHS offered services, and the mother “continued to abuse substances and be with partners who perpetrated violence against her[.]” Finally, the court held that termination was in the children’s best interests because the trial court “specifically acknowledged” the need for an individual analysis, considered each child’s bond or lack of bond, and found that “the children needed ‘stability and permanence to break the cycle.’” Affirmed.

Child’s best interests; Failure to consider child’s relative placement; In re Mota; In re Olive/Metts; In re Boshell/Shelton; Motion to adjourn; MCR 3.923(G); In re Utrera

While the court held that the trial court did not abuse its discretion in denying respondent-father’s motion to adjourn, it remanded for further proceedings because in making its best-interests determination, the trial court failed to consider the child’s relative placement as weighing against termination. Respondent asserted “there was good cause to adjourn based on his criminal attorney’s belief that his criminal convictions may be overturned on appeal.” However, this “argument was speculative at best” and did not constitute good cause under MCR 3.923(G)(1). The court also noted the trial court properly took the child’s best interests into consideration, and reasonably concluded they “would not be served by an indefinite adjournment given the child’s interest in finality.” Turning to respondent’s claim that the trial court erred in finding that termination was in the child’s best interests, the court disagreed that the trial court lacked “sufficient evidence to adequately consider the child’s bond with” him. It also rejected his assertion that “the trial court improperly relied on the caseworker’s testimony because she was not qualified as an expert witness. [She] testified as a lay witness, not as an expert, because she discussed observations she made and opinions she developed while working directly with the child.” However, the court agreed with respondent that the trial court did not “give proper consideration to the child’s placement with her mother.” At best, it gave “a generalized statement regarding the child’s placement, stating that ‘[t]he child is with her biological mother and is being cared for there.’ But there was no specific finding as to how this placement factored into [its] best-interest determination nor did [it] expressly consider it as weighing against” terminating respondent’s parental rights. Thus, the factual record “was inadequate to support a best-interest determination because it failed to account for the child’s placement with her mother.” Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.