Motion to compel arbitration; The Federal Arbitration Act (FAA); The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (EFAA); Sexual harassment/hostile-work-environment claim under Title VII; Americans with Disabilities Act (ADA) claim; FedRCivP 8’s pleading standard; Whether the parties' pre-dispute arbitration agreement was unenforceable “as otherwise provided” in the EFAA; 9 USC §§ 401(4) & 402(a); Rule 12(b)(6) motion to dismiss; Whether the pre-dispute arbitration agreement was unenforceable with respect to the entire case; Johnson v Everyrealm, Inc

In an issue of first impression in this circuit, the court held that where a plaintiff brings multiple claims that include a “sexual assault dispute” or a “sexual harassment dispute” in one suit against a party with whom plaintiff has an otherwise-valid arbitration agreement, the EFAA bars arbitration as to the entire case. It also held that plaintiff-Bruce plausibly alleged a Title VII sexual harassment claim. Bruce formerly worked at defendant (referred to as A&R) as a legal assistant and alleged she was repeatedly sexually harassed by one of the lawyers, giving rise to her sexual harassment claim (which she framed as a hostile-work-environment claim under Title VII). She also asserted ADA claims for “A&R’s failure to accommodate (or participate in an interactive process regarding) her need to take sedatives to sleep, which made it difficult for her to wake up or arrive at the office in a timely manner.” She filed this suit after she was terminated. A&R moved to dismiss her sexual harassment claim and to compel arbitration of her ADA claims. The district court denied both motions, ruling that Bruce adequately stated a sexual harassment claim “and that the EFAA precluded arbitration of her entire case, including” the ADA claims. As to the motion to dismiss, the court gathered and inferred from the complaint that the lawyer in question, “who was among Bruce’s supervisors and responsible for her employment at A&R, consistently and continually directed sexualized comments at her in the presence of other employees at A&R.” The court concluded that Bruce’s complaint “plausibly alleged conduct sufficiently pervasive to sustain a hostile-work-environment claim” and survive A&R’s motion to dismiss. It then turned to the motion to compel arbitration of the ADA claims. A&R argued that only the sexual harassment claim was subject to the EFAA. But the court agreed with the district court and other lower courts that have ruled that when a case alleges a sexual harassment dispute, as defined in the EFAA, that “‘makes pre-dispute arbitration agreements unenforceable with respect to the entire case relating to that dispute.’” Section § 402(a) instructs that a pre-dispute arbitration “agreement is unenforceable ‘with respect to a case which . . . relates to the sexual assault dispute or the sexual harassment dispute.’” Focusing on the word “case,” the court held that all “data point clearly in the direction of ‘case’ encompassing a plaintiff’s entire suit.” Affirmed and remanded.

Prosecutorial misconduct; Other-acts of domestic violence; MCL 768.27b; People v Cameron; Sufficiency of the evidence; People v Xun Wang; Great weight of the evidence; People v Lemmon

The court held that the prosecutor’s closing-argument comment that the complainant had “been in an abusive relationship for years” was a permissible inference from the record and did not constitute prosecutorial misconduct warranting a new trial. The complainant called 911 reporting she was “severely intoxicated,” had “hurt [her] wrist,” and later acknowledged an altercation with defendant, and medical records reflected statements that defendant “hit her multiple times in the head with a closed fist” and that she injured her wrist and thumb “while blocking.” A district-court jury convicted defendant of second-offense domestic violence. His motion for a new-trial was denied. On appeal the circuit court vacated the conviction on prosecutorial-misconduct grounds while otherwise rejecting defendant’s remaining new-trial theories. The court first held that, evaluated “in context of the entire record,” the prosecutor’s argument that the complainant was “terrified” and had “been in an abusive relationship for years” was “a reasonable inference in light of the evidence,” pointing to the 2018 incident she admitted involved a “physical altercation” with bruising and an arrest, her 911 statements that the police could not protect her and her question about “domestic violence,” and her hospital statements about being struck and feeling safe only “[s]ometimes.” The court next held the 2018 incident evidence was admissible under MCL 768.27b because it provided a “full and complete picture” of the parties’ history and its probative value was not “substantially outweighed” by unfair prejudice under MRE 403, particularly given the limited and non-inflammatory nature of the testimony and the need for evidence beyond the complainant’s trial recantation. The court also held the evidence was sufficient for the jury to find an assault under MCL 750.81(2) because the jury could credit the 911 call and medical statements over the complainant’s trial denial, and it rejected the great-weight challenge because credibility disputes generally belong to the jury absent “exceptional circumstances.” Reversed in part and affirmed in part.

Right to a speedy trial; Barker v Wingo factors; Admission of an “unavailable” witness’s preliminary exam testimony; MCL 768.26; MRE 804(b)(1); MRE 804(a)(5); Effect of the fact the witness later appeared; Hearsay; MRE 806; MRE 613; MRE 803(3); Ineffective assistance of counsel; Failure to make a meritless objection; Trial strategy

The court held that defendant did not establish plain error as to his speedy trial violation claim. Further, the trial court did not err in declaring a witness (S) unavailable and admitting her preliminary exam testimony. The court also rejected his hearsay challenges to the admission of several statements made by S, and his related ineffective assistance of counsel claim. Thus, it affirmed his convictions of felony murder, second-degree arson, mutilation of a human body, and torturing an animal. As to his speedy trial claim, the prosecution conceded that prejudice was presumed because the delay exceeded 18 months. Turning to the second Barker factor, “given the overwhelming record evidence indicating that the delay was caused by either COVID-19 or the defense, any minimal delay caused by the reassignment of the case from one judge to another is not sufficient to warrant weighing the reasons for the delay in favor of the defense.” The third factor also did not weigh in defendant’s favor. While he “raised other delay-related issues, he stated on the record at multiple hearings that he was waiving those challenges because he wanted to adjourn the matter for reasons related to one of his multiple lawyers’ failure to appear for trial and his withdrawal as counsel.” Finally, as to the fourth factor, the court held that he could not establish “he suffered prejudice to his defense.” He asserted “the delay caused the loss of [S’s] in-person testimony. Yet, . . . the prosecution expended considerable efforts to bring [S] to trial. And, although she was declared an unavailable witness on the second day of trial, she appeared on the third day” and the trial “court ordered that she be available to testify if the defense desired to call her as a witness. The defense ultimately chose not to do so.” As to her preliminary exam testimony, defendant contended “that due diligence must not have been exercised because [S] appeared on the third day of the trial.” But the court noted that this “did not render her available for trial on the day and time that she was compelled to appear.” And there was no indication “that she communicated to the prosecutor that she had unilaterally decided to arrive on the third day of trial instead of the second day.” As to her statements that defendant challenged as hearsay, the court held that they were admissible under MRE 806 and 613 or 803(3).

Sentencing; Whether a “Cash Express” (a payday lender providing loans & check cashing services) is considered a “financial institution” for purposes of USSG § 2B3.1(b)(1); Enhancement for being in a “leadership role” (3B1.1(c)); Reduction for “acceptance of responsibility” (§ 3E1.1(a)); Whether the government breached the plea agreement by not moving for the reduction; Procedural & substantive reasonableness

The court joined two other circuits and held that businesses such as the Cash Express at issue here, a payday lender that provides loans and check cashing services, qualify as a “financial institution” for purposes of the sentencing enhancement under USSG § 2B3.1(b)(1). Defendant-Glover robbed a Cash Express and pled guilty to Hobbs Act robbery. His plea agreement provided that the government would not oppose a reduction for acceptance of responsibility under § 3E1.1(a). However, it also contained the caveat that the government would not be held to this if he acted inconsistently with accepting responsibility. “Eleven days after signing his plea agreement, an image of a rat in the crosshairs of a riflescope was posted on his Facebook profile.” He did not receive the § 3E1.1(a) reduction and did receive the enhancement under § 2B3.1(b)(1) and an enhancement for having a “leadership role.” He argued that a Cash Express is not a “financial institution” for purposes of § 2B3.1(b)(1). The court applied the dictionary definition of financial institution and held that a Cash Express fell under this definition. It also upheld his sentencing enhancement for being in a leadership role where he exercised control over his partner/then-girlfriend “through fear.” As to the denial of the acceptance of responsibility reduction, the “district court properly relied on the rat picture posted on Glover’s Facebook page to find that he was not entitled to the reduction.” He argued that the government breached the plea agreement by not supporting the reduction. The court disagreed. “Under the plea agreement’s terms, our inquiry turns on whether Glover engaged in conduct or made statements that permitted the government to oppose the reduction. . . . the rat picture was a sufficient indicator of a rejection of responsibility.” The court also rejected his challenges to the procedural and substantive reasonableness of his sentence. Affirmed.

Motion to compel arbitration; The Federal Arbitration Act (FAA); The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (EFAA); Sexual harassment/hostile-work-environment claim under Title VII; Americans with Disabilities Act (ADA) claim; FedRCivP 8’s pleading standard; Whether the parties' pre-dispute arbitration agreement was unenforceable “as otherwise provided” in the EFAA; 9 USC §§ 401(4) & 402(a); Rule 12(b)(6) motion to dismiss; Whether the pre-dispute arbitration agreement was unenforceable with respect to the entire case; Johnson v Everyrealm, Inc

In an issue of first impression in this circuit, the court held that where a plaintiff brings multiple claims that include a “sexual assault dispute” or a “sexual harassment dispute” in one suit against a party with whom plaintiff has an otherwise-valid arbitration agreement, the EFAA bars arbitration as to the entire case. It also held that plaintiff-Bruce plausibly alleged a Title VII sexual harassment claim. Bruce formerly worked at defendant (referred to as A&R) as a legal assistant and alleged she was repeatedly sexually harassed by one of the lawyers, giving rise to her sexual harassment claim (which she framed as a hostile-work-environment claim under Title VII). She also asserted ADA claims for “A&R’s failure to accommodate (or participate in an interactive process regarding) her need to take sedatives to sleep, which made it difficult for her to wake up or arrive at the office in a timely manner.” She filed this suit after she was terminated. A&R moved to dismiss her sexual harassment claim and to compel arbitration of her ADA claims. The district court denied both motions, ruling that Bruce adequately stated a sexual harassment claim “and that the EFAA precluded arbitration of her entire case, including” the ADA claims. As to the motion to dismiss, the court gathered and inferred from the complaint that the lawyer in question, “who was among Bruce’s supervisors and responsible for her employment at A&R, consistently and continually directed sexualized comments at her in the presence of other employees at A&R.” The court concluded that Bruce’s complaint “plausibly alleged conduct sufficiently pervasive to sustain a hostile-work-environment claim” and survive A&R’s motion to dismiss. It then turned to the motion to compel arbitration of the ADA claims. A&R argued that only the sexual harassment claim was subject to the EFAA. But the court agreed with the district court and other lower courts that have ruled that when a case alleges a sexual harassment dispute, as defined in the EFAA, that “‘makes pre-dispute arbitration agreements unenforceable with respect to the entire case relating to that dispute.’” Section § 402(a) instructs that a pre-dispute arbitration “agreement is unenforceable ‘with respect to a case which . . . relates to the sexual assault dispute or the sexual harassment dispute.’” Focusing on the word “case,” the court held that all “data point clearly in the direction of ‘case’ encompassing a plaintiff’s entire suit.” Affirmed and remanded.

Adverse possession; MCL 600.5801(4); Marlette Auto Wash, LLC v Van Dyke SC Props, LLC; Hostility element; Wengel v Wengel; Acquiescence for statutory period; Houston v Mint Group, LLC; Damages on a trespass claim; Attorney fees for pro se attorney; MCL 600.2591; FMB-First MI Bank v Bailey; Requests to admit sanctions; MCR 2.313(C)(2); Waiver; Braverman v Granger

The court held that the trial court applied an incorrect legal standard to the “hostility” element of adverse possession and failed to resolve a key factual dispute bearing on accrual, requiring vacatur of the quiet-title judgment and remand for additional findings. But it affirmed the rejection of acquiescence and the denial of trespass damages and attorney fees sought by the pro se attorney-owner plaintiff. The dispute concerned a roughly 20-by-10-foot area along neighboring parcels where defendant claimed ownership based on long-term encroachment that included fencing and related improvements. The trial court quieted title in favor of plaintiff. It found defendant failed to prove adverse possession or acquiescence, that there was a trespass but awarded zero damages, and denied post-trial motions for damages and attorney fees. On appeal, the court noted that adverse possession requires “actual, continuous, open, notorious, exclusive, hostile, and uninterrupted” possession for 15 years, and that “hostile” use is “inconsistent with the right of the owner, without permission asked or given” – it does not relate to the owner’s hostility toward the possessor. The court concluded the trial court erred by starting the 15-year clock based on a subsequent owner’s objection in 6/13 and by not determining when the allegedly encroaching fence was constructed, which would establish hostility and start the 15-year period. It therefore vacated the adverse-possession ruling and quiet-title judgment and remanded for factual findings on the existing record (or additional proceedings in the trial court’s discretion). The court affirmed rejection of defendant’s acquiescence claim because a prior owner’s testimony supported that he did not accept the purported boundary line. It also affirmed denial of (1) trespass damages for lack of admitted evidentiary support and (2) attorney fees, holding a pro se litigant, even if a licensed attorney, does not “incur” attorney fees under MCL 600.2591 and plaintiff could not recover fees for representing a predecessor when she repeatedly stated she did not represent him. It further concluded sanctions were unwarranted because defendant had reasonable grounds to believe she might prevail. Affirmed in part, vacated in part, and remanded.

Premises liability; Slip & fall; Failure to consider a late-filed affidavit; Constructive notice; Hearsay; Duty to inspect the premises for hazards

The court held that viewed in the light most favorable to plaintiff-Bitkowski, the evidence only established “that there was a puddle of water present, not that” defendant-Andiamo West had constructive notice of the condition. Thus, the trial court did not err by granting Andiamo West summary disposition. Bitkowski argued “that the trial court abused its discretion by not considering an affidavit from her sister, [S]. Bitkowski submitted the affidavit weeks after she filed her response to the motion for summary disposition, Andiamo West moved to strike it as untimely,” and the trial court declined to consider it. Bitkowski’s submission of S’s “affidavit was an attempt to supplement her response to the summary disposition motion. As a result, the standard seven-day timeline for submission of such documents applied. Although Bitkowski filed the affidavit nine days before the hearing on the motion for summary disposition, the affidavit was not the first document that she filed in response to that motion. Indeed, [she] had already filed her response brief three weeks before she filed the affidavit. According to MCR 2.116(G)(1)(a)(iv), she needed leave of the court to submit supplemental materials. [She] did not request permission, nor did the court order an alternate timeline for submission of affidavits in support of or opposition to the motion for summary disposition. As such, the affidavit was untimely filed.” While it had discretion to consider untimely documents, the trial court elected not to do so. Bitkowski next argued that the trial court erred in granting Andiamo West summary disposition. She “was an invitee, so Andiamo West had a duty to keep the premises safe. However, in response to [its] motion for summary disposition, Bitkowski failed to provide sufficient evidence to establish a fact question regarding constructive notice. Apart from [S’s] affidavit, which was properly excluded, Bitkowski contends a question of fact existed on the basis of her own testimony regarding the puddle of water; her husband’s observations; and the comments of Andiamo West’s manager, as relayed to her by her husband. But Bitkowski testified that she saw the puddle only after she slipped and that others saw or commented on the puddle while rendering aid. That a puddle may have existed when she fell does not demonstrate the duration of the hazard or that the nature of the puddle was such that Andiamo West should have been aware of it.” The court held that her “reliance on her husband’s observations and statements made to him is misplaced because the only evidence of what [he] claimed to have seen and heard was Bitkowski’s own testimony.” Her testimony as to his “statements and observations, as well as the statements he heard from the manager, described out-of-court statements Bitkowski’s husband made to her. The statements were offered to prove that the observations of Bitkowski’s husband and his recollection of the manager’s comments were true. Thus, Bitkowski’s testimony on this subject constituted inadmissible hearsay, which could not be considered for purposes of summary disposition.”

Adverse possession; MCL 600.5801(4); Marlette Auto Wash, LLC v Van Dyke SC Props, LLC; Hostility element; Wengel v Wengel; Acquiescence for statutory period; Houston v Mint Group, LLC; Damages on a trespass claim; Attorney fees for pro se attorney; MCL 600.2591; FMB-First MI Bank v Bailey; Requests to admit sanctions; MCR 2.313(C)(2); Waiver; Braverman v Granger

The court held that the trial court applied an incorrect legal standard to the “hostility” element of adverse possession and failed to resolve a key factual dispute bearing on accrual, requiring vacatur of the quiet-title judgment and remand for additional findings. But it affirmed the rejection of acquiescence and the denial of trespass damages and attorney fees sought by the pro se attorney-owner plaintiff. The dispute concerned a roughly 20-by-10-foot area along neighboring parcels where defendant claimed ownership based on long-term encroachment that included fencing and related improvements. The trial court quieted title in favor of plaintiff. It found defendant failed to prove adverse possession or acquiescence, that there was a trespass but awarded zero damages, and denied post-trial motions for damages and attorney fees. On appeal, the court noted that adverse possession requires “actual, continuous, open, notorious, exclusive, hostile, and uninterrupted” possession for 15 years, and that “hostile” use is “inconsistent with the right of the owner, without permission asked or given” – it does not relate to the owner’s hostility toward the possessor. The court concluded the trial court erred by starting the 15-year clock based on a subsequent owner’s objection in 6/13 and by not determining when the allegedly encroaching fence was constructed, which would establish hostility and start the 15-year period. It therefore vacated the adverse-possession ruling and quiet-title judgment and remanded for factual findings on the existing record (or additional proceedings in the trial court’s discretion). The court affirmed rejection of defendant’s acquiescence claim because a prior owner’s testimony supported that he did not accept the purported boundary line. It also affirmed denial of (1) trespass damages for lack of admitted evidentiary support and (2) attorney fees, holding a pro se litigant, even if a licensed attorney, does not “incur” attorney fees under MCL 600.2591 and plaintiff could not recover fees for representing a predecessor when she repeatedly stated she did not represent him. It further concluded sanctions were unwarranted because defendant had reasonable grounds to believe she might prevail. Affirmed in part, vacated in part, and remanded.

Child’s best interests; In re Olive/Metts; In re Gonzales/Martinez

Holding that a preponderance of the evidence supported that it was in the child’s (CD) best interests to terminate respondent-father’s parental rights, the court concluded the trial court did not clearly err in doing so. He primarily argued “that he had a genuine bond with CD and” thus, terminating his rights was not in her best interests. He also emphasized “that he had made progress in finding suitable housing and ‘was seeking employment.’” The trial court acknowledged the parent-child bond and that he “rectified the housing barrier.” But it found that he “failed to rectify other service-plan requirements, including barriers related to transportation, employment, substance abuse, and mental health. The trial court properly focused on CD during the best-interest determination. It noted that CD experienced trauma from the two removals from respondent’s care and found that CD had trauma-related mental-health needs.” In addition, it “found respondent’s parenting ability ‘very questionable’ considering that he physically disciplined CD twice after reunification and continued abusing substances. [It] also considered the length of time that CD had been in DHHS custody, noting that she had spent more time in care than she had with respondent.” The court further concluded that the trial court “did not make its best-interest determination based on financial status.” Based on the facts of the case, “the trial court could properly find that plasma donation and food stamps failed to provide the ‘permanency, stability, and finality’ that CD required.” The trial court also “did not make its best-interest determination based on” respondent’s alcoholism alone. His “substance abuse was the most significant barrier to reunification, but the record demonstrated that the trial court considered all the evidence and many factors in making its” determination. Affirmed.