Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202; Sex discrimination; Direct evidence; Hecht v National Heritage Acads, Inc; Limitations period; Campbell v Human Servs Dep’t; Mixed motives; Sniecinski v Blue Cross & Blue Shield of MI; Indirect evidence; McDonnell Douglas Corp v Green; Legitimate nondiscriminatory reason; Pretext; White v Department of Transp

The court held that plaintiff failed to establish sex discrimination under the ELCRA because she did not present direct evidence of discrimination or show that defendants’ legitimate reason for the pay disparity was pretextual. Plaintiff sued her former employer after contract negotiations failed, alleging she was paid less than a male counterpart and that employees had made comments about her forehead. The trial court granted defendants summary disposition. On appeal, the court first held that the forehead comments were not direct evidence of sex discrimination. They were made outside the limitations period and did not explicitly reference sex, meaning they would require “additional inference or presumption” to show discriminatory bias. The court next analyzed the pay-disparity claim under McDonnell Douglas. Assuming plaintiff could establish a prima facie case, defendants offered a legitimate, nondiscriminatory reason for the disparity: the male counterpart had major-market experience with a direct competitor and valuable contacts from prior work with the FBI, and the disparity continued through percentage-based contract raises. The court held that plaintiff failed to show pretext. Although she relied on her prior experience and Emmy awards, she did not show her experience was comparable or that Emmy awards were relevant to defendants’ compensation decisions. The court also noted it was difficult to prove intentional discrimination where plaintiff was paid more than every male multimedia journalist except “one sole comparison male counterpart.” Affirmed.

Breach of contract; Contract terms; Allen v Michigan State Univ; Negligence; Economic loss doctrine; Neibarger v Universal Coops, Inc; Separate & distinct legal duty; Rinaldo’s Constr Corp v Michigan Bell Tel Co; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Nuisance; Abandonment on appeal; Amendment of complaint; MCR 2.118

The court held that plaintiffs failed to state a breach-of-contract claim and abandoned their nuisance claim, but sufficiently alleged a negligence claim based on defendant’s separate legal duty not to make the asbestos condition in their home worse. Plaintiffs contracted with defendant-flooring company to remove existing flooring and install new flooring in their home. Their complaint alleged that defendant’s workers discovered possible asbestos, failed to follow proper protocols, and spread asbestos throughout the home. The trial court granted defendant summary disposition on the breach-of-contract, negligence, and nuisance claims. On appeal, the court first affirmed dismissal of the contract claim because the contract documents contained “no reference to asbestos,” and plaintiffs still did “not cite or reference any contractual provision that required Defendant to take any action regarding asbestos.” But the court reversed dismissal of the negligence claim. It reasoned that the trial court erred in relying on the economic loss doctrine after finding the contract created no asbestos-related duty because plaintiffs alleged a “legal duty separate and distinct from any contractual obligations.” Once defendant allegedly identified possible asbestos while removing flooring, it had “a legal duty to not make the condition of plaintiffs’ home worse.” The court held that these allegations were “sufficient to state a negligence claim.” It affirmed dismissal of the nuisance claim because plaintiffs “failed to brief the issue,” and left any renewed request to amend for the trial court on remand. Affirmed in part, reversed in part, and remanded.

New trial; CSC I; MCL 750.520b; Sexual penetration; MCL 750.520a(r); Penile-oral penetration; Fellatio; People v Johnson; Ineffective assistance of counsel; Failure to request specific-unanimity instruction; People v Trakhtenberg

The court held that the trial court did not abuse its discretion by granting defendant a new trial because the prosecution failed to challenge an independent ineffective-assistance ground for that ruling. Defendant was convicted of four counts of CSC I involving allegations of penile-vaginal and/or penile-oral penetration. The trial court granted his motion for a new trial, finding insufficient evidence of penile-oral penetration and ineffective assistance based on counsel’s failure to object to the jury instruction and request a specific-unanimity instruction. On appeal, the prosecution challenged the sufficiency analysis and claimed judicial prejudice, but the court declined to reach those arguments. It noted the trial court’s order made “clear that defense counsel’s failure to request a specific-unanimity instruction was an independent basis for granting a new trial” regardless of whether there was sufficient evidence of penile-oral penetration. Because the prosecution did not challenge that ineffective-assistance ruling, the court concluded the trial court did not abuse its discretion by granting a new trial. The court added that, if defendant is retried on a penile-oral penetration theory, the trial court must apply Johnson’s binding definition of “fellatio” requiring “penetration or intrusion of the penis into the mouth,” rather than “mere kissing or contact.” Affirmed.

Ineffective assistance of counsel; Strickland v Washington; Failure to investigate & call witnesses; People v Trakhtenberg; Ginther hearing; People v Ginther; Self-defense; MCL 780.972(1)(a); Concession of guilt; Closing argument; Alternative defense theories; Expert testimony; Forensic pathologist; People v Unger

The court held that defendant failed to establish ineffective assistance of counsel based on counsel’s failure to investigate or call proposed witnesses, alleged concession of guilt, or failure to object to expert testimony. Defendant was convicted of first-degree murder and firearm offenses after a fatal shooting at a neighborhood block party. The court remanded for a Ginther hearing on whether counsel was ineffective for failing to investigate or call two proposed defense witnesses, and the trial court denied a new trial. On appeal, the court held that the proposed testimony would not have changed the verdict because much of it was cumulative to trial evidence that the victim was intoxicated, had argued with others, had threatened someone, and may have had a gun. The court also agreed the proposed witnesses were “not credible,” noting inconsistencies, jail communications with defendant, possible collusion, and one witness’s motive after pleading no contest to accessory after the fact. Although the witnesses would have testified the victim fired first, the court held the trial court did not clearly err in finding their testimony unlikely to affect the outcome. The court next rejected defendant’s claim that counsel conceded guilt in closing. Viewed in context, counsel did not abandon self-defense and reasonably pursued alternative theories of insufficient evidence and self-defense without admitting defendant shot the victim. Finally, counsel was not ineffective for failing to object to the forensic pathologist’s opinion that the manner of death was homicide because a forensic pathologist is qualified to opine on manner of death, and any objection would have been futile. Affirmed.

Felon in possession of a firearm (FIP); MCL 750.224f; Felony-firearm; MCL 750.227b; Sentencing; OV 1; Firearm discharged at or toward a human being; MCL 777.31(1)(a); Firearm pointed at or toward a victim; MCL 777.31(1)(c); Weapon displayed; MCL 777.31(1)(e); Guidelines scoring error; People v Francisco

The court held that the trial court erred by assessing 25 points for OV 1 because the record did not support a finding that defendant discharged a firearm at or toward the victim. He pled guilty to FIP and felony-firearm after a road-rage incident in which the victim reported hearing two gunshots as he drove away. Police later found a firearm with two missing rounds in defendant’s vehicle. The trial court scored OV 1 at 25 points, finding circumstantial evidence showed defendant discharged the gun at or toward a person. On appeal, the court held that the record supported only a 5-point score for display of a weapon. It noted there was “substantial evidence that a firearm was discharged,” including the missing rounds and the victim hearing two gunshots, but “no evidence in the record of the direction that the firearm was discharged or aimed.” The victim did not state that the firearm was aimed at him before or during the discharge, and no physical evidence showed the gun was fired at him, such as bullet holes in his vehicle. The court rejected speculation based on road rage and defendant’s hostility, reasoning that those facts were “not alone sufficient to conclude that defendant shot at the victim.” Because the only supported OV 1 category was defendant’s “display of that firearm,” and the corrected score changed the guidelines range, defendant was entitled to resentencing. Reversed and remanded.

Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202; Sex discrimination; Direct evidence; Hecht v National Heritage Acads, Inc; Limitations period; Campbell v Human Servs Dep’t; Mixed motives; Sniecinski v Blue Cross & Blue Shield of MI; Indirect evidence; McDonnell Douglas Corp v Green; Legitimate nondiscriminatory reason; Pretext; White v Department of Transp

The court held that plaintiff failed to establish sex discrimination under the ELCRA because she did not present direct evidence of discrimination or show that defendants’ legitimate reason for the pay disparity was pretextual. Plaintiff sued her former employer after contract negotiations failed, alleging she was paid less than a male counterpart and that employees had made comments about her forehead. The trial court granted defendants summary disposition. On appeal, the court first held that the forehead comments were not direct evidence of sex discrimination. They were made outside the limitations period and did not explicitly reference sex, meaning they would require “additional inference or presumption” to show discriminatory bias. The court next analyzed the pay-disparity claim under McDonnell Douglas. Assuming plaintiff could establish a prima facie case, defendants offered a legitimate, nondiscriminatory reason for the disparity: the male counterpart had major-market experience with a direct competitor and valuable contacts from prior work with the FBI, and the disparity continued through percentage-based contract raises. The court held that plaintiff failed to show pretext. Although she relied on her prior experience and Emmy awards, she did not show her experience was comparable or that Emmy awards were relevant to defendants’ compensation decisions. The court also noted it was difficult to prove intentional discrimination where plaintiff was paid more than every male multimedia journalist except “one sole comparison male counterpart.” Affirmed.

Breach of contract; Contract terms; Allen v Michigan State Univ; Negligence; Economic loss doctrine; Neibarger v Universal Coops, Inc; Separate & distinct legal duty; Rinaldo’s Constr Corp v Michigan Bell Tel Co; Loweke v Ann Arbor Ceiling & Partition Co, LLC; Nuisance; Abandonment on appeal; Amendment of complaint; MCR 2.118

The court held that plaintiffs failed to state a breach-of-contract claim and abandoned their nuisance claim, but sufficiently alleged a negligence claim based on defendant’s separate legal duty not to make the asbestos condition in their home worse. Plaintiffs contracted with defendant-flooring company to remove existing flooring and install new flooring in their home. Their complaint alleged that defendant’s workers discovered possible asbestos, failed to follow proper protocols, and spread asbestos throughout the home. The trial court granted defendant summary disposition on the breach-of-contract, negligence, and nuisance claims. On appeal, the court first affirmed dismissal of the contract claim because the contract documents contained “no reference to asbestos,” and plaintiffs still did “not cite or reference any contractual provision that required Defendant to take any action regarding asbestos.” But the court reversed dismissal of the negligence claim. It reasoned that the trial court erred in relying on the economic loss doctrine after finding the contract created no asbestos-related duty because plaintiffs alleged a “legal duty separate and distinct from any contractual obligations.” Once defendant allegedly identified possible asbestos while removing flooring, it had “a legal duty to not make the condition of plaintiffs’ home worse.” The court held that these allegations were “sufficient to state a negligence claim.” It affirmed dismissal of the nuisance claim because plaintiffs “failed to brief the issue,” and left any renewed request to amend for the trial court on remand. Affirmed in part, reversed in part, and remanded.

Charitable institution property tax exemption (MCL 211.7o); Qualifying as a charitable institution; Wexford Med Group v City of Cadillac; Entity performing consolidated administrative duties for nonprofit hospitals; Hospital Purchasing Serv of MI v City of Hastings; Occupancy of the property; Liberty Hill Hous Corp v City of Livonia; Award of summary disposition under MCR 2.116(C)(10) for a tax year unsupported by any evidence; Tax Tribunal (TT)

The court held that the TT did not err in finding no genuine issue of material fact existed that petitioners are charitable institutions, but did err in granting summary disposition as to the charitable institution exemption’s occupancy requirement beyond petitioner-Hospital’s use of 5,381 square feet of the commercial building at issue. It also erred in granting summary disposition as to tax year 2022 when it was not included in the summary disposition motion and no evidence was presented for that year. Thus, the court affirmed in part and reversed in part as to tax years 2020 and 2021, and reversed as to tax year 2022. Petitioner-Trinity Health-Michigan, a nonprofit hospital, owns the 115,996-square-foot building on land located in respondent-City. Petitioner-Trinity Health Corporation, its parent-nonprofit organization, started using the building in 2019. The issues on appeal were whether they “were nonprofit charities and whether they occupied the property for their incorporated purposes.” As to the first issue, the court noted that it held in Hospital Purchasing in 1968 “that an entity that performs consolidated administrative duties for nonprofit hospitals may constitute a charity.” It saw no reason to depart from that holding and followed it as binding. It further concluded that, taken “together, the Wexford factors show that petitioners are charitable institutions under MCL 211.7o.” As to the occupancy issue, it found that a genuine issue of material fact existed as “to the extent of petitioners’ occupancy—specifically, whether [they] occupied the entire portion of the property or left some portion as dedicated vacant space.” Before 2019, much of it was “vacant and on the city’s tax rolls.” Based on the record, it was possible that after the Corporation entered the property, it “actually occupied the entire remaining portion of 110,615 square feet; it is also equally possible that [it] actually occupied some subset of this square footage and that a portion of what was vacant” before 2019 remained so in 2020 and 2021. Thus, while the Hospital “established that it occupied 5,381 square feet of the property solely for its charitable purpose,” entitling it to summary disposition as to that portion, a question of material fact existed as to the remaining square feet “on whether either petitioner actually occupied the space.”