Animal cruelty prosecution; Jury instructions; MCL 768.29; People v Kowalski; Sufficiency of evidence; MCL 750.50; People v Oros; Admission of other acts; MRE 404(b); People v Felton; Ineffective assistance of counsel

The court held that although the jury instructions and verdict form erroneously labeled a separate statutory offense as an alternative count, the error did not result in a miscarriage of justice, and sufficient evidence supported defendant’s conviction for failing to provide adequate care to 25 or more dogs. On appeal, the court held that the instructions were flawed but noted that a conviction is not set aside unless the error “more probably than not was outcome determinative.” The court also held that photographs, deputy observations, and expert testimony permitted the jury to find inadequate sanitary conditions, finding reasonable inferences are drawn in favor of the verdict. The court found no prejudice from admission of the Wisconsin incident under MRE 404(b) because the record supported guilt regardless. It also rejected the ineffective assistance claim and noted defendant must show both deficient performance and a reasonable probability of a different result. The court further held that cumulative error did not warrant reversal because defendant failed to show that correcting the errors would have led a reasonable juror to acquit. Affirmed.

Discharge in violation of public policy; Suchodolski v Michigan Consol Gas Co; Landin v Healthsource Saginaw, Inc; Causal nexus requirement; Age discrimination claim under the Elliott-Larsen Civil Rights Act; MCL 37.2202(1)(a); Prima facie case; Hazle v Ford Motor Co

The court held that plaintiff failed to establish the required causal nexus for her retaliation-based public policy claim. And even if she established a prima facie age discrimination case, she did not identify any evidence that defendant-former employer’s (Kroger) stated reason for her termination was simply a pretext. Thus, the court affirmed summary disposition for defendants. Plaintiff had worked as a pharmacist at a Kroger store. She contended her complaints about the store pharmacy manager’s (nonparty-A) “alleged misconduct constituted reports that [A] was violating the Public Health Code, committing malpractice, and endangering the health and safety of Kroger’s pharmacy customers. Accepting plaintiff’s contentions as true solely for the purposes of this argument,” the court noted that she still had to “provide evidence that there was a causal connection between her reporting this misconduct to Kroger’s management and [her] discharge. Plaintiff does not provide any evidence to substantiate a causal connection beyond the mere temporal proximity of her reports to her termination.” It further noted that a “mere ‘temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action.’” As to her age discrimination claim, the stated reason for her termination was violation of a store policy against sharing computer system credentials. She did “not reference any younger employee in a comparable role, possessing similar levels of oversight responsibility for other pharmacy staff at her location, who was not terminated for similar violations of the” policy. The court found her “assertion that ‘the pretextual nature of the proffered reason for her termination provides additional evidence of age discrimination’ lacks substantiation.” She primarily challenged defendants’ factual findings as to her alleged breaches of the policy and claimed “her age was the motivating factor behind her termination.” But she did not offer “any record evidence establishing a causal link between her age and the decision to terminate her employment; rather, her arguments consist of unsupported and speculative assertions."

Accrual of § 1983 procedural-due-process claim; Wallace v Kato; Statutory 3-year limitations period under MCL 600.5805; Cataldo v US Steel Corp; Effect of prior federal filing on tolling; MCL 600.5856; Heard v Strange; Adequacy of pre- and post-termination procedures § 1983; Cleveland Bd of Educ v Loudermill; Michigan Department of Corrections (MDOC)

[This appeal was from the WD-MI.] The court held that because plaintiff-Bozzo’s § 1983 claim was “untimely on its face,” and he could not establish an exception to the statute of limitations, the district court properly dismissed his procedural due process claim. Bozzo, who worked for the MDOC as a prison guard, was discharged for comments to a co-worker. Years after an arbitrator ruled for the MDOC, he sued in federal court alleging various constitutional violations. The district court dismissed his first case without prejudice when he failed to respond to a motion to dismiss. He then refiled, and the district court granted defendants-MDOC officials’ renewed motion to dismiss based on the statute of limitations and his forfeiture of all his constitutional claims except due process, for which he had failed to state a claim. On appeal, he only pursued his procedural due process claim and argued his case should not have been dismissed based on the statute of limitations. The court explained that § 1983 claims borrow the applicable state law limitations period for personal-injury actions, which under Michigan law is three years, and that federal law governs accrual. It reiterated that in this circuit “a claim accrues when a ‘plaintiff knows or has reason to know of the injury which is the basis of his action,’” noted the “apparent contradiction between the Supreme Court’s occurrence-based rule and our discovery rule,” and, because the parties assumed the discovery rule applied, “t[ook] the case as presented.” Considering the elements of a due process claim, it held that his alleged deprivation occurred when he was “formally terminated” via correspondence on 7/31/19, and that his alleged procedural injuries continued only through his post-termination arbitration hearing, which ended on 12/17/20. The court accepted that his first federal complaint, filed near the end of the limitations period, tolled the statute while that action was pending under Michigan law, but held that tolling ceased when the district court dismissed that suit without prejudice and that his waiting more than a month before refiling rendered the present action untimely. It rejected his argument that he did not “fully realize” his injury until the arbitrator’s 2021 decision, noting that he “had already been ‘deprived’ of his job when he attended his arbitration hearing[,]” and that his allegations about the arbitration proceeding amounted “to ‘dissatisf[action] with the result,’ not the process,” so “knowledge of procedural defects is what counts” and the discovery rule did not change the accrual date. It also rejected his equitable-tolling argument, noting that tolling is “unavailable under the Michigan limitations provision at issue here.” Lastly, it held that even if his claim had been timely, he received “everything due process requires before termination” and also “enjoyed the minimal procedures needed for a post-termination hearing.” Affirmed.

Animal cruelty prosecution; Jury instructions; MCL 768.29; People v Kowalski; Sufficiency of evidence; MCL 750.50; People v Oros; Admission of other acts; MRE 404(b); People v Felton; Ineffective assistance of counsel

The court held that although the jury instructions and verdict form erroneously labeled a separate statutory offense as an alternative count, the error did not result in a miscarriage of justice, and sufficient evidence supported defendant’s conviction for failing to provide adequate care to 25 or more dogs. On appeal, the court held that the instructions were flawed but noted that a conviction is not set aside unless the error “more probably than not was outcome determinative.” The court also held that photographs, deputy observations, and expert testimony permitted the jury to find inadequate sanitary conditions, finding reasonable inferences are drawn in favor of the verdict. The court found no prejudice from admission of the Wisconsin incident under MRE 404(b) because the record supported guilt regardless. It also rejected the ineffective assistance claim and noted defendant must show both deficient performance and a reasonable probability of a different result. The court further held that cumulative error did not warrant reversal because defendant failed to show that correcting the errors would have led a reasonable juror to acquit. Affirmed.

Discharge in violation of public policy; Suchodolski v Michigan Consol Gas Co; Landin v Healthsource Saginaw, Inc; Causal nexus requirement; Age discrimination claim under the Elliott-Larsen Civil Rights Act; MCL 37.2202(1)(a); Prima facie case; Hazle v Ford Motor Co

The court held that plaintiff failed to establish the required causal nexus for her retaliation-based public policy claim. And even if she established a prima facie age discrimination case, she did not identify any evidence that defendant-former employer’s (Kroger) stated reason for her termination was simply a pretext. Thus, the court affirmed summary disposition for defendants. Plaintiff had worked as a pharmacist at a Kroger store. She contended her complaints about the store pharmacy manager’s (nonparty-A) “alleged misconduct constituted reports that [A] was violating the Public Health Code, committing malpractice, and endangering the health and safety of Kroger’s pharmacy customers. Accepting plaintiff’s contentions as true solely for the purposes of this argument,” the court noted that she still had to “provide evidence that there was a causal connection between her reporting this misconduct to Kroger’s management and [her] discharge. Plaintiff does not provide any evidence to substantiate a causal connection beyond the mere temporal proximity of her reports to her termination.” It further noted that a “mere ‘temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action.’” As to her age discrimination claim, the stated reason for her termination was violation of a store policy against sharing computer system credentials. She did “not reference any younger employee in a comparable role, possessing similar levels of oversight responsibility for other pharmacy staff at her location, who was not terminated for similar violations of the” policy. The court found her “assertion that ‘the pretextual nature of the proffered reason for her termination provides additional evidence of age discrimination’ lacks substantiation.” She primarily challenged defendants’ factual findings as to her alleged breaches of the policy and claimed “her age was the motivating factor behind her termination.” But she did not offer “any record evidence establishing a causal link between her age and the decision to terminate her employment; rather, her arguments consist of unsupported and speculative assertions."

Auto negligence; Coverage dispute; Identity of the vehicle; Identity of the driver; Duty

In Docket Nos. 368595 and 368596, the court held “that the trial court erred by denying the defendants’ motions for summary disposition,” and thus reversed and remanded “for the entry of an order or orders granting [defendant-]Kimberly and the estate summary disposition under MCR 2.116(C)(10).” In Docket No. 368622, it reversed “the portion of the trial court’s order denying [plaintiff-]Home-Owners’s motion for summary disposition regarding its duty to indemnify its insured, but [affirmed] the trial court’s denial of summary disposition regarding Home-Owners’s duty to defend its insured;” it accordingly affirmed in part, reversed in part, and remanded “for entry of an order granting Home-Owners partial summary disposition under MCR 2.116(C)(10)[.]” The three appeals arose from the same incident. Defendants argued “that the trial court erred by not granting their motions for summary disposition, because [plaintiff-]Stevens did not establish a genuine issue of material fact regarding whether Kimberly’s vehicle was the one that struck Stevens.” Although the court ultimately agreed “that the trial court erred by not granting defendants’ motions, on this specific issue we agree with the trial court that a genuine issue of material fact existed regarding whether Kimberly’s HHR was the vehicle that struck Stevens.” The court found that a reasonable juror could find “Kimberly’s HHR was the vehicle that struck Stevens.“ But it agreed with defendants that “even if there was a genuine issue of material fact regarding whether Kimberly’s HHR struck Stevens, Stevens did not establish a genuine issue of material fact regarding whether Brittney was driving the HHR at the time.” It found that the “evidence at summary disposition was insufficient to establish a genuine issue of material fact regarding whether Brittney was driving the HHR when it struck Stevens.” As to Home-Owners, it concluded that “the trial court erred by denying Home-Owner’s motion for summary disposition with respect to coverage under the policy. “ The court agreed that “Home-Owners has no duty to indemnify in this case.” It then considered “Home-Owners’s argument that Kimberly failed to perform her duties under the policy in response to a loss or claim, insofar as that argument might impact Home-Owners’s duty to defend.” The court agreed “with the trial court that Home-Owners is not entitled to judgment as a matter of law concerning Kimberly’s’ alleged breach of the insurance policy.” Finally, because reversal “regarding Home-Owners’s duty to provide coverage under the policy does not relieve Home-Owners of its duty to defend its insured, and because Home-Owners has not otherwise established that it has no duty to defend Kimberly,” the court reversed “the trial court denial of summary disposition on the issue of coverage, but” affirmed the denial of summary disposition as to “Home-Owners’s duty to defend.”

Jurisdiction to consider claims on appeal; Mootness; Dismissal based on res judicata & compulsory joinder; MCR 2.203(A); Conversion; The law of the case doctrine; Jode Invs LLC v Burning Tree Props, LLC (Unpub) (Jode Invs I & II)

The court held that it did “not have jurisdiction to consider plaintiffs’ claims of error” as to defendants’ counterclaims. It also concluded “the trial court did not err by dismissing plaintiffs’ claims.” The case involved “disputes between various investors in a golf club property[.]” On appeal, plaintiffs argued “the trial court erred by dismissing several of their claims under the doctrine of res judicata and compulsory joinder.” They also argued that it erred in “refusing to dismiss defendants’ counterclaims on the basis of res judicata, compulsory joinder, and the statute of limitations.” The court found that plaintiffs “expressly reserved the right to appeal claims already dismissed by the trial court before entry of the stipulated final order.” Thus, their “claims of error related to Counts I and Counts IV through VII of their complaint” were properly before the court. But they “did not reserve the right to appeal the claims and counterclaims that were dismissed in the stipulated order, which included all of defendants’ counterclaims. After agreeing to dismiss the remaining claims and counterclaims in this case, plaintiffs are not an aggrieved party.” Additionally, it found that “because the final stipulated order dismissing defendants’ counterclaims against plaintiffs with prejudice was in plaintiffs’ favor, plaintiffs are no longer aggrieved by the trial court’s earlier opinions and orders denying summary disposition of those counterclaims.” It found that the “stipulated order of dismissal also rendered plaintiffs’ claims of error related to the counterclaims moot.” Plaintiffs further argued the trial court erred by holding “that their claims were barred by the doctrines of compulsory joinder and res judicata.” The court disagreed. They contended there was “a genuine issue of fact when defendants refused to allow plaintiffs to become members” of defendants-Club Golf entities. This argument lacked merit. Plaintiffs “knew of defendants’ alleged failure to make them members of the Club Golf entities when they filed their counterclaims against [defendant-]Jode Investments and the Club Golf entities and third-party complaint against [defendants-]Marrocco and Fanelli on [4/27/11] and should have joined these claims.” Plaintiffs also contended “that their breach-of-contract claim could not have been raised until [6/4/12], when the trial court dissolved” two other “entities and plaintiffs could no longer seek specific performance of the agreement.” This argument also had no merit. “Because plaintiffs were able to, but failed to join Counts IV through VII of their complaint in the 2011 case, the trial court did not err by granting summary disposition of these claims on the basis of compulsory joinder.” Affirmed.

Quiet title; Jurisdiction to set aside the foreclosure; Notice; MCL 211.78i(7); Discovery; Surplus proceeds; MCL 211.78t

The court concluded that “the trial court did not err by granting summary disposition to the county defendants on plaintiff’s claims to quiet title and for inverse condemnation.” However, it reversed “the trial court’s grant of summary disposition to the county defendants regarding plaintiff’s claim for surplus proceeds and remand[ed] to the trial court to make specific findings whether [defendant-County Treasurer] provided plaintiff with constitutionally adequate notice of its right to claim surplus proceeds in accordance with MCL 211.78t.” Plaintiff argued “that the trial court erred by concluding that it did not have jurisdiction to set aside the judgment of foreclosure because genuine issues of material fact exist whether the Wayne County Treasurer’s attempts to provide notice were constitutionally sufficient and whether the Wayne County Treasurer failed to take reasonable additional steps to provide notice.” Plaintiff contended “that the notices did not meet minimum due process standards because two of the certified mailings were not delivered and notice was not sent to plaintiff’s Florida address.” Plaintiff further argued “that the foreclosure notices did not satisfy due process regarding the deprivation of proceeds from the tax sale.” The court found no merit in this argument. The record did “not reflect that plaintiff’s Florida address, or any other address, was filed with LARA at any time before the foreclosure proceedings.” The court found that although “some of the statutory information was missing from the notices, the Wayne County Treasurer satisfied the minimum constitutional due process requirements by following the statutory scheme and notifying plaintiff of the show-cause and foreclosure hearings.” It also rejected “plaintiff’s argument that summary disposition was prematurely granted because it did not have an opportunity to engage in discovery.” The court concluded that “none of the hearing notices contained the statutory language informing plaintiff of its right to claim surplus proceeds in accordance with MCL 211.78t. However, the language was included in the certificates of forfeiture filed with the register of deeds several months before the foreclosure hearing.” After the “judgment of foreclosure was entered, the Wayne County Treasurer purportedly mailed notices to each property address advising plaintiff of its right to claim surplus proceeds. But there is no proof of mailing in the record.” The only “evidence that plaintiff was provided notice of its right to claim surplus proceeds was the statement included on the certificates of foreclosure. However, the trial court did not analyze whether this was constitutionally adequate notice because it concluded that it did not ‘have jurisdiction to do anything but grant’” the motion. Affirmed in part, reversed in part, and remanded.

Auto negligence; Coverage dispute; Identity of the vehicle; Identity of the driver; Duty

In Docket Nos. 368595 and 368596, the court held “that the trial court erred by denying the defendants’ motions for summary disposition,” and thus reversed and remanded “for the entry of an order or orders granting [defendant-]Kimberly and the estate summary disposition under MCR 2.116(C)(10).” In Docket No. 368622, it reversed “the portion of the trial court’s order denying [plaintiff-]Home-Owners’s motion for summary disposition regarding its duty to indemnify its insured, but [affirmed] the trial court’s denial of summary disposition regarding Home-Owners’s duty to defend its insured;” it accordingly affirmed in part, reversed in part, and remanded “for entry of an order granting Home-Owners partial summary disposition under MCR 2.116(C)(10)[.]” The three appeals arose from the same incident. Defendants argued “that the trial court erred by not granting their motions for summary disposition, because [plaintiff-]Stevens did not establish a genuine issue of material fact regarding whether Kimberly’s vehicle was the one that struck Stevens.” Although the court ultimately agreed “that the trial court erred by not granting defendants’ motions, on this specific issue we agree with the trial court that a genuine issue of material fact existed regarding whether Kimberly’s HHR was the vehicle that struck Stevens.” The court found that a reasonable juror could find “Kimberly’s HHR was the vehicle that struck Stevens.“ But it agreed with defendants that “even if there was a genuine issue of material fact regarding whether Kimberly’s HHR struck Stevens, Stevens did not establish a genuine issue of material fact regarding whether Brittney was driving the HHR at the time.” It found that the “evidence at summary disposition was insufficient to establish a genuine issue of material fact regarding whether Brittney was driving the HHR when it struck Stevens.” As to Home-Owners, it concluded that “the trial court erred by denying Home-Owner’s motion for summary disposition with respect to coverage under the policy. “ The court agreed that “Home-Owners has no duty to indemnify in this case.” It then considered “Home-Owners’s argument that Kimberly failed to perform her duties under the policy in response to a loss or claim, insofar as that argument might impact Home-Owners’s duty to defend.” The court agreed “with the trial court that Home-Owners is not entitled to judgment as a matter of law concerning Kimberly’s’ alleged breach of the insurance policy.” Finally, because reversal “regarding Home-Owners’s duty to provide coverage under the policy does not relieve Home-Owners of its duty to defend its insured, and because Home-Owners has not otherwise established that it has no duty to defend Kimberly,” the court reversed “the trial court denial of summary disposition on the issue of coverage, but” affirmed the denial of summary disposition as to “Home-Owners’s duty to defend.”

Quiet title; Jurisdiction to set aside the foreclosure; Notice; MCL 211.78i(7); Discovery; Surplus proceeds; MCL 211.78t

The court concluded that “the trial court did not err by granting summary disposition to the county defendants on plaintiff’s claims to quiet title and for inverse condemnation.” However, it reversed “the trial court’s grant of summary disposition to the county defendants regarding plaintiff’s claim for surplus proceeds and remand[ed] to the trial court to make specific findings whether [defendant-County Treasurer] provided plaintiff with constitutionally adequate notice of its right to claim surplus proceeds in accordance with MCL 211.78t.” Plaintiff argued “that the trial court erred by concluding that it did not have jurisdiction to set aside the judgment of foreclosure because genuine issues of material fact exist whether the Wayne County Treasurer’s attempts to provide notice were constitutionally sufficient and whether the Wayne County Treasurer failed to take reasonable additional steps to provide notice.” Plaintiff contended “that the notices did not meet minimum due process standards because two of the certified mailings were not delivered and notice was not sent to plaintiff’s Florida address.” Plaintiff further argued “that the foreclosure notices did not satisfy due process regarding the deprivation of proceeds from the tax sale.” The court found no merit in this argument. The record did “not reflect that plaintiff’s Florida address, or any other address, was filed with LARA at any time before the foreclosure proceedings.” The court found that although “some of the statutory information was missing from the notices, the Wayne County Treasurer satisfied the minimum constitutional due process requirements by following the statutory scheme and notifying plaintiff of the show-cause and foreclosure hearings.” It also rejected “plaintiff’s argument that summary disposition was prematurely granted because it did not have an opportunity to engage in discovery.” The court concluded that “none of the hearing notices contained the statutory language informing plaintiff of its right to claim surplus proceeds in accordance with MCL 211.78t. However, the language was included in the certificates of forfeiture filed with the register of deeds several months before the foreclosure hearing.” After the “judgment of foreclosure was entered, the Wayne County Treasurer purportedly mailed notices to each property address advising plaintiff of its right to claim surplus proceeds. But there is no proof of mailing in the record.” The only “evidence that plaintiff was provided notice of its right to claim surplus proceeds was the statement included on the certificates of foreclosure. However, the trial court did not analyze whether this was constitutionally adequate notice because it concluded that it did not ‘have jurisdiction to do anything but grant’” the motion. Affirmed in part, reversed in part, and remanded.