Motion to vacate an arbitration award; Error in the arbitration demand & the award’s caption; Whether the caption error created an ambiguity; Whether plaintiffs waived the right to claim a procedural error when they did not raise the issue with the arbitrator; Whether the defect was a “curable misnomer”; Whether the district court sua sponte modified the award; Collective bargaining agreement (CBA)

[This appeal was from the WD-MI.] The court held that “where an arbitration demand and the case’s caption misname the party against whom an award is meant to be entered, but there is no ambiguity as to the real identity of that party,” a federal district court may enforce the award. Plaintiff-Holtec Decommissioning International, LLC (HDI) and defendant-Michigan State Utility Workers Council (the Union) were parties to a CBA that provided for arbitration of the Union members’ grievances. When the Union requested arbitration over a member’s discharge, its arbitration demand mistakenly named HDI’s parent company, plaintiff-Holtec International Corporation, with whom the Union had no agreement. HDI participated in the arbitration. After the arbitrator ruled in favor of the Union, HDI did not comply and plaintiffs (collectively Holtec) moved for vacatur based on the misnamed caption. The district court denied the motion, finding that “‘the record is replete with evidence that HDI—not Holtec International—engaged in and intended to be bound by the proceedings.’” It granted the Union summary judgment on its counterclaim seeking confirmation. On appeal, after construing the entire arbitration award, the court agreed “with the district court that the award can be interpreted to have issued only against HDI, as opposed to Holtec International.” It rejected Holtec’s argument that Holtec International’s name in the award caption constituted “a ‘defined term’ that the arbitrator deliberately chose as an expression of the award’s intent.” Instead, the court concluded that the caption was “simply a carryover from the arbitration demand, which pervaded the proceedings.” It additionally noted that Holtec’s attorneys appeared at arbitration and identified themselves as HDI’s representatives. And Holtec did not raise the alleged error before the arbitrator, agreeing that “there were ‘no . . . procedural questions which would preclude a decision[,]’” and that “the matter was ‘procedurally properly before’ the arbitrator ‘for a decision on the merits.’” Thus, Holtec waived any jurisdictional objections. The court also found that the defect in the arbitration demand was a “curable misnomer.” HDI was unable to establish prejudice. Affirmed.

Attorney fee dispute; Breach of contract & unjust enrichment claims; Statute of limitations; Distinguishing Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi; Accrual; Jackson v Estate of Green; Applicability of the parol-evidence rule; Waiver of affirmative defenses; Cole v Ladbroke Racing MI, Inc; Request for remand to a different judge; Bayati v Bayati

In this attorney fee dispute, the court concluded defendant did not waive her statute of limitations defense, but the trial court erred in granting her summary disposition based on the statute of limitations. It also erred in ruling that the parol-evidence rule barred plaintiffs-attorney and law firm’s breach of contract claim. But plaintiffs were not entitled to summary disposition or remand to a different judge. The court reversed summary disposition for defendant and remanded. After her son was killed by a California sheriff’s deputy, defendant allegedly contacted the attorney “to help her persuade California officials to pursue criminal charges against the deputy. In accordance with the parties’ purported oral agreement, plaintiffs claimed they devoted about 73.5 hours of work to defendant’s case at a rate of $350 per hour, totaling about $31,222.46 in costs and attorney fees.” She did not pay, and they filed this action nearly six years later. The court first determined that “defendant’s amendment was properly accepted by the trial court, meaning the statute-of-limitations defense was not waived, and the trial court did not err by considering defendant’s” summary disposition motion. However, as to summary disposition, “plaintiffs’ billing statement and letter to defendant did not specify a specific payment due date. With no set date of performance, [their] claims would have accrued only after a reasonable time had passed. Because such a determination is necessarily a factual question for a jury,” the court held that the trial court erred in granting defendant’s motion. While she relied on Seyburn, the court found the holding in that case distinguishable. “The oral agreement under which plaintiffs seek to recover was not an attorney-client relationship that required judicial approval before it could be terminated; the oral agreement solely governed plaintiffs’ efforts to secure a criminal prosecution of the deputy who shot defendant’s son.” Given that “there was no attorney-client relationship under the oral agreement that necessitated discharge by the trial court, the general rules governing the accrual of a breach-of-contract claim apply, and the trial court erred” in granting defendant summary disposition. But plaintiffs were also not entitled to summary disposition because there was a question of fact as to “the existence, and, by extension, the enforceability, of the alleged oral agreement.”

Action under 42 USC § 1983 asserting claims for violation of First Amendment free speech rights; Qualified immunity; Whether each defendant acted within the scope of their “discretionary functions”; Whether a governmental entity’s outside counsel can claim qualified immunity; Cullinan v Abramson; Whether there was a violation of “clearly established law”; Causing an employee’s firing due to his protected speech; Paige v Coyner

The court held that defendant-city councilman (Mendes) was properly denied qualified immunity where his alleged interference with plaintiff-DeLanis’s free speech violated clearly established law. Noting that the allegations against defendant-law firm (Baker Donelson), the city’s outside counsel, presented “a unique situation” it had not previously addressed, it held that the firm was entitled to raise the qualified immunity defense and it did not violate any clearly established law in firing DeLanis, an attorney with the firm. Mendes allegedly threatened to withdraw business from the firm after DeLanis, the chair of the county Election Commission, took a position Mendes did not like on a tax referendum. DeLanis refused the law firm’s requests to oppose the referendum and to abstain on a Commission vote, and the firm fired him. He sued the city, the law firm, and Mendes under § 1983 for First Amendment retaliation and conspiracy to deny him free speech. The district court denied defendants’ motions for qualified immunity. The court first held that Mendes, as a city councilman who allegedly used his position to violate DeLanis’s civil rights, and Baker Donelson, as outside counsel who allegedly fired DeLanis on the city’s behalf, were both eligible for the qualified immunity defense. It rejected DeLanis’s argument that they were acting outside the scope of their “discretionary functions,” holding that both defendants carried out such functions within the scope of their duties when they played their alleged part in his termination. The court also rejected his claim that outside counsel was not eligible for the defense, citing its decision in Cullinan. As to the applicability of the defense, it held that Mendes’s alleged actions while serving as a council member violated clearly established law. He “had ample notice that pressuring an employer to fire an employee in retaliation for his protected speech ran afoul of the Free Speech Clause.” It rejected his claim that DeLanis failed to show that he was the councilman who threatened the law firm, holding that “Mendes’s frustration with DeLanis and hearty opposition to his conduct on the Commission make it plausible that he was one of the Nashville officials, if not the key Nashville official, who threatened Baker Donelson.” As for the firm, “it did not have clear notice that a law firm (or private company) violates the First Amendment by firing an employee when a government client threatens to take its business elsewhere if the employee continues to act adversely to the government.” The court affirmed the denial of qualified immunity for Mendes on the retaliation claims, reversed the denial of qualified immunity to Baker Donelson, and remanded.

Action under 42 USC § 1983 asserting claims for violation of First Amendment free speech rights; Qualified immunity; Whether each defendant acted within the scope of their “discretionary functions”; Whether a governmental entity’s outside counsel can claim qualified immunity; Cullinan v Abramson; Whether there was a violation of “clearly established law”; Causing an employee’s firing due to his protected speech; Paige v Coyner

The court held that defendant-city councilman (Mendes) was properly denied qualified immunity where his alleged interference with plaintiff-DeLanis’s free speech violated clearly established law. Noting that the allegations against defendant-law firm (Baker Donelson), the city’s outside counsel, presented “a unique situation” it had not previously addressed, it held that the firm was entitled to raise the qualified immunity defense and it did not violate any clearly established law in firing DeLanis, an attorney with the firm. Mendes allegedly threatened to withdraw business from the firm after DeLanis, the chair of the county Election Commission, took a position Mendes did not like on a tax referendum. DeLanis refused the law firm’s requests to oppose the referendum and to abstain on a Commission vote, and the firm fired him. He sued the city, the law firm, and Mendes under § 1983 for First Amendment retaliation and conspiracy to deny him free speech. The district court denied defendants’ motions for qualified immunity. The court first held that Mendes, as a city councilman who allegedly used his position to violate DeLanis’s civil rights, and Baker Donelson, as outside counsel who allegedly fired DeLanis on the city’s behalf, were both eligible for the qualified immunity defense. It rejected DeLanis’s argument that they were acting outside the scope of their “discretionary functions,” holding that both defendants carried out such functions within the scope of their duties when they played their alleged part in his termination. The court also rejected his claim that outside counsel was not eligible for the defense, citing its decision in Cullinan. As to the applicability of the defense, it held that Mendes’s alleged actions while serving as a council member violated clearly established law. He “had ample notice that pressuring an employer to fire an employee in retaliation for his protected speech ran afoul of the Free Speech Clause.” It rejected his claim that DeLanis failed to show that he was the councilman who threatened the law firm, holding that “Mendes’s frustration with DeLanis and hearty opposition to his conduct on the Commission make it plausible that he was one of the Nashville officials, if not the key Nashville official, who threatened Baker Donelson.” As for the firm, “it did not have clear notice that a law firm (or private company) violates the First Amendment by firing an employee when a government client threatens to take its business elsewhere if the employee continues to act adversely to the government.” The court affirmed the denial of qualified immunity for Mendes on the retaliation claims, reversed the denial of qualified immunity to Baker Donelson, and remanded.

Attorney fee dispute; Breach of contract & unjust enrichment claims; Statute of limitations; Distinguishing Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi; Accrual; Jackson v Estate of Green; Applicability of the parol-evidence rule; Waiver of affirmative defenses; Cole v Ladbroke Racing MI, Inc; Request for remand to a different judge; Bayati v Bayati

In this attorney fee dispute, the court concluded defendant did not waive her statute of limitations defense, but the trial court erred in granting her summary disposition based on the statute of limitations. It also erred in ruling that the parol-evidence rule barred plaintiffs-attorney and law firm’s breach of contract claim. But plaintiffs were not entitled to summary disposition or remand to a different judge. The court reversed summary disposition for defendant and remanded. After her son was killed by a California sheriff’s deputy, defendant allegedly contacted the attorney “to help her persuade California officials to pursue criminal charges against the deputy. In accordance with the parties’ purported oral agreement, plaintiffs claimed they devoted about 73.5 hours of work to defendant’s case at a rate of $350 per hour, totaling about $31,222.46 in costs and attorney fees.” She did not pay, and they filed this action nearly six years later. The court first determined that “defendant’s amendment was properly accepted by the trial court, meaning the statute-of-limitations defense was not waived, and the trial court did not err by considering defendant’s” summary disposition motion. However, as to summary disposition, “plaintiffs’ billing statement and letter to defendant did not specify a specific payment due date. With no set date of performance, [their] claims would have accrued only after a reasonable time had passed. Because such a determination is necessarily a factual question for a jury,” the court held that the trial court erred in granting defendant’s motion. While she relied on Seyburn, the court found the holding in that case distinguishable. “The oral agreement under which plaintiffs seek to recover was not an attorney-client relationship that required judicial approval before it could be terminated; the oral agreement solely governed plaintiffs’ efforts to secure a criminal prosecution of the deputy who shot defendant’s son.” Given that “there was no attorney-client relationship under the oral agreement that necessitated discharge by the trial court, the general rules governing the accrual of a breach-of-contract claim apply, and the trial court erred” in granting defendant summary disposition. But plaintiffs were also not entitled to summary disposition because there was a question of fact as to “the existence, and, by extension, the enforceability, of the alleged oral agreement.”

Sufficiency of the evidence; Second-degree murder; MCL 750.317; People v Goecke; Identity; Voluntary manslaughter instruction; MCL 750.321; People v Mendoza; Sentencing guidelines; OV scoring; MCL 777.35; People v Calloway; Within-guidelines proportionality; Acquitted-conduct limits; MCL 769.34; People v Beck

The court held that defendant’s convictions and within-guidelines sentences for second-degree murder and related firearm offenses were proper and therefore affirmed. The case arose from defendant’s shooting of the victim inside a store after defendant entered wearing a mask and distinctive clothing, walked toward the door, then turned and opened fire. The jury convicted him of second-degree murder and the related firearm offenses, and the trial court imposed a minimum term of 65 years for murder plus a consecutive 5-year felony-firearm sentence. On appeal, the court held that ample circumstantial evidence supported identity because the prosecution presented testimony that defendant admitted the shooting, routinely used a white SUV like the one seen fleeing, wore a hat and jacket matching the shooter, and walked with a similar limp, and “a reasonable jury could use the circumstantial evidence introduced at trial to find defendant was the shooter in the video and that he was guilty of second-degree murder beyond a reasonable doubt.” The court also found that no rational view of the evidence supported voluntary manslaughter, emphasizing that witness-T’s account that defendant was “scared” did not establish “adequate provocation” or a lack of cooling time and that “there was nothing in the record to support a voluntary-manslaughter conviction.” It further held that OV 5 and OV 9 were properly scored given evidence of serious psychological injury to family members and at least 10 people in the store, that the presumption of proportionality for a within-guidelines sentence was not rebutted where defendant was in his thirties and had a lengthy record, and that the trial court honored the jury’s verdict so its comments about first-degree murder did not violate Beck because it “sentence[d] defendant within the guidelines range for second-degree murder[.]”

Cancellation of removal; Preconditions for relief from removal under 8 USC § 1229b(b)(1)(A)-(D); “Exceptional & extremely unusual hardship” to a qualifying child; § 1229b(b)(1)(D); Child defined (§1101(b)(1)); At what stage in the proceedings the qualifying child’s age is determined; Huerta v Garland (Unpub 6th Cir); Immigration judge (IJ); Board of Immigration Appeals (BIA)

In an issue of first impression in the Sixth Circuit, the court held that “the correct time to ascertain the age of a qualifying ‘child’ under § 1229b(b)(1)(D) on an application for cancellation of removal is when the IJ issues its decision[.]” As a result, it granted petitioner-Perez-Perez’s petition for review and reversed the BIA’s decision vacating the IJ’s grant of cancellation of removal under § 1229b(b)(1)(D). The qualifying child was 17 years old in 2020 when the IJ made its ruling. But the child reached the age of 21 during the approximately five-year delay between the IJ’s ruling and the BIA’s resolution of the case. Cancellation of removal can occur under §§ 1229b(b)(1)(D) if it would cause “‘exceptional and extremely unusual hardship to a [noncitizen’s] . . . child’)[.]” Section 1101(b)(1) defines “‘child’ as ‘an unmarried person under’” 21 years of age. Perez-Perez argued that the relevant time for determining the qualifying child’s age should be when the IJ made the decision or when the administrative record is closed. The government argued that it should be when the BIA issues its decision on appeal. The court noted that the statute is silent on this issue, but that it held in an unpublished opinion last year (Huerta) that “the plain meaning of § 1229b(b)(1)(D) instructs courts to assess the age of a qualifying ‘child’ at the time of removal for purposes of removal cancellation proceedings.” Section 1229b(b)(1)(D) requires the applicant for “cancellation of removal to ‘establish[]’ that his removal ‘would result in exceptional and extremely unusual hardship to the [noncitizen’s] . . . child, who is a citizen of the United States[.]’” Accordingly, the statute “mandates that the qualifying child must be a child at the time the noncitizen’s removal is adjudicated by the IJ.”

Petition to reopen proceedings; 8 USC § 1229a(c)(7)(C)(iv); Jurisdiction; Review of a Board of Immigration Appeals (BIA) determination that a petitioner failed to present “extraordinary circumstances” necessary for a discretionary reopening of a Violence Against Women Act (VAWA) applicant’s removal proceedings; § 1229a(c)(7)(C)(iv)(III); “Safe harbor” provision (§ 1252(a)(2)(D)); Whether Congress intended to leave the issue of extraordinary circumstances exclusively to the Attorney General (AG); Whether petitioner qualified for reopening under the VAWA; Immigration judge (IJ)

In an issue of first impression in the Sixth Circuit, the court held that it had jurisdiction to review the BIA’s determination that petitioner-Sarkisov did not show the “extraordinary circumstances” required for application of the special rule for VAWA’s petitioners as to an untimely motion to reopen proceedings. But because it concluded the BIA’s decision was not erroneous, it denied his petition for review. Sarsikov, an undocumented Russian citizen living in the U.S. for at least 20 years who was subject to a final order of removal, successfully petitioned for a visa under the VAWA. He then moved to reopen his immigration proceedings under a special rule for VAWA petitioners that gives the AG discretion to waive the applicable time limitation for filing a motion to reopen for “‘an alien who demonstrates extraordinary circumstances or extreme hardship to the alien’s child.’” He claimed that the “‘cumulative psychological effects of the abuse from his former wife constitutes extraordinary circumstances[,]’” justifying the over 6-year delay between the final removal order and the motion to reopen. An IJ found “there were no ‘extraordinary circumstances’ warranting an exercise of discretion to reopen the removal proceedings.” The BIA affirmed. On his petition for review, the court first held that it had jurisdiction to review here because the issue fell under the “safe harbor” for judicial review of “‘constitutional claims or questions of law.’” It concluded “that whether ‘extraordinary circumstances’ warrant waiver of the deadline for reopening immigration proceedings is a mixed question of law and fact.” It rejected the AG’s argument that Congress intended to leave the issue of extraordinary circumstances exclusively to the AG, determining that what “constitute ‘extraordinary circumstances’ warranting waiver of a filing deadline is not so unmanageable that it evades review.” The court held that the legal standard here was “susceptible to meaningful review.” After discussing what kind of circumstances are extraordinary, the court turned to the merits. It agreed with the BIA that Sarkisov failed to establish extraordinary circumstances where, as the BIA found, “‘the abuse and resulting psychological effects could explain some reasonable delay in filing the motion to reopen,’ but ‘they did not constitute extraordinary circumstances excusing the 6-year delay between the finality of the order of removal and the filing of the motion to reopen.’”

Prescriptive easement; Privity; Adverse or hostile; Mutuality; Continuous; Lamkin v Hartmeier; Judicial disqualification; Mootness

The court held that defendants “have a prescriptive easement on Island Shore Drive that they can enjoy as found and outlined by the trial court, and that the trial court did not err in dismissing plaintiffs’ claims when defendants did not overburden or exceed the scope of their easement.” Plaintiffs first argued “that there was no privity of estate between defendants and [previous owner-trustees-]the Gosses, and so, defendants cannot tack their possessory period onto the Gosses using the second option[.]” The court affirmed the finding of privity, noting that defendants and the Gosses “understood the use of the road to transfer with the purchase of the property,” that there was a “historical lack of an alternative access,” and that the Gosses made parol statements at conveyance indicating the right to use the road transferred. The trial court also found defendants were well-acquainted with the property at purchase. These findings were not erroneous, and the trial court properly held that privity existed and tacking was permitted. Next, plaintiffs argued that defendants could not “tack onto the Gosses’s use or acquire their vested prescriptive easement,” asserting their use was permissive. The court noted that when “defendants or their predecessors-in-interest adversely use the property 'in excess of the prescriptive period for a substantial period of time,' the burden shifts to plaintiffs to show that the use was merely permissive.” The Gosses “testified that they used Island Shore Drive since the 1960s, a substantial excess of the 15-year-statutory period, thereby shifting the burden to plaintiffs to show that the Gosses’s use was permissive, rather than adverse.” Plaintiffs also argued “that defendants’ and the Gosses’s use was not hostile or adverse because of the mutuality of Island Shore Drive.” The Gosses “did not acknowledge that a section of it belonged to plaintiffs; they had no idea that they needed plaintiffs’ permission because they thought it was a road,” and use of the road was not a convenience for plaintiffs. Thus, the trial court did not err in finding the use “hostile and adverse,” that defendants “had no express, written right to use” the drive, and that “the use was not permissive.” As to continuity, plaintiffs argued “that the Gosses’s infrequent trips to the property are insufficient for a prescriptive easement.” The court noted that the “trial court found that the use was continuous because defendants and their predecessors used Island Shore Drive in the nature and character of a private road for access, attendant uses typical of a residential neighborhood, and ancillary uses, such as for invitees.” It concluded that this “was not clearly an error considering the Supreme Court’s order in Lamkin[.]” It held that the “trial court did not clearly err in making these findings and did not err in concluding that the Gosses’ and defendants’ uses satisfied the elements for a prescriptive easement. With that said, even if defendants established they have a prescriptive easement over Island Shore Drive, plaintiffs could still have a claim for trespass or nuisance if defendants exceeded the scope of the easement or overburdened the easement.”