Breach of contract for business machines; Contract interpretation; Village of Edmore v Crystal Automation Sys Inc; Incorporation of drawings; MCL 440.2202 & 440.2209(2); Express warranty & failure of limited remedy; Repair-or-replace clause under MCL 440.2719; Anticipatory repudiation; Fraudulent inducement/innocent misrepresentation; Particularity; Reasonable reliance; Contractual attorney-fee clause; Zeeland Farm Servs, Inc v JBL Enters, Inc

The court held that the trial court erred in finding plaintiff-Bekum did not breach the parties’ H-121S contract or its express warranty, but did not err by finding that defendant-Scantibodies anticipatorily breached the three 707D contracts, failed to prove misrepresentation, and that Bekum may recover its contractual “actual attorneys’ fees and expenses” pursuant to the contracts Thus, the court affirmed in part, vacated in part, and remanded. Scantibodies bought one H-121S and three 707D machines to make pipettes. Disputes arose over whether the machines had to meet the dimensions in Scantibodies’ technical drawing (the SLI drawing) and dispense a specified volume of liquid. On appeal, the court held “that the SLI drawing was a part of the parties’ H-121S contract[,]” and the record presented a triable issue whether the machine “consistently met the requirements of the SLI drawing.” Because that fact issue also bore on whether the written limited remedy warranty was breached, the court directed reconsideration of the warranty issue. It noted that a repair-or-replace clause is enforceable under MCL 440.2719, but “‘commendable efforts alone do not relieve a seller of his obligation to repair[,]’” and a limited remedy may fail of its essential purpose. However, the court affirmed summary disposition on the 707D contracts, concluding the SLI drawing and volume term could not be added to these contracts and that Scantibodies “anticipatorily breached the 707D contracts by unequivocally cancelling its purchase of” those machines. Its fraud and innocent-misrepresentation theories failed because they were not pleaded with particularity. Finally, the attorney-fee award stood because “the contracts’ plain language unambiguously provided for the recovery [of] ‘actual attorneys’ fees and expenses’” and the trial court properly enforced them as written.

Breach of contract for business machines; Contract interpretation; Village of Edmore v Crystal Automation Sys Inc; Incorporation of drawings; MCL 440.2202 & 440.2209(2); Express warranty & failure of limited remedy; Repair-or-replace clause under MCL 440.2719; Anticipatory repudiation; Fraudulent inducement/innocent misrepresentation; Particularity; Reasonable reliance; Contractual attorney-fee clause; Zeeland Farm Servs, Inc v JBL Enters, Inc

The court held that the trial court erred in finding plaintiff-Bekum did not breach the parties’ H-121S contract or its express warranty, but did not err by finding that defendant-Scantibodies anticipatorily breached the three 707D contracts, failed to prove misrepresentation, and that Bekum may recover its contractual “actual attorneys’ fees and expenses” pursuant to the contracts Thus, the court affirmed in part, vacated in part, and remanded. Scantibodies bought one H-121S and three 707D machines to make pipettes. Disputes arose over whether the machines had to meet the dimensions in Scantibodies’ technical drawing (the SLI drawing) and dispense a specified volume of liquid. On appeal, the court held “that the SLI drawing was a part of the parties’ H-121S contract[,]” and the record presented a triable issue whether the machine “consistently met the requirements of the SLI drawing.” Because that fact issue also bore on whether the written limited remedy warranty was breached, the court directed reconsideration of the warranty issue. It noted that a repair-or-replace clause is enforceable under MCL 440.2719, but “‘commendable efforts alone do not relieve a seller of his obligation to repair[,]’” and a limited remedy may fail of its essential purpose. However, the court affirmed summary disposition on the 707D contracts, concluding the SLI drawing and volume term could not be added to these contracts and that Scantibodies “anticipatorily breached the 707D contracts by unequivocally cancelling its purchase of” those machines. Its fraud and innocent-misrepresentation theories failed because they were not pleaded with particularity. Finally, the attorney-fee award stood because “the contracts’ plain language unambiguously provided for the recovery [of] ‘actual attorneys’ fees and expenses’” and the trial court properly enforced them as written.

Due-process right to a fair trial; Police failure to locate the unknown donor of DNA; People v Dickinson; Applicability of Brady v Maryland; Police testimony; MRE 701; Failure to disclose a video recording; People v Chenault; Ineffective assistance of counsel; Failure to make a futile objection; Sufficiency of the evidence of defendant’s identity as the perpetrator; Great weight of the evidence

The court held that (1) defendant was not entitled to relief based on his claims of due-process or Brady violations, (2) defense counsel did not provide ineffective assistance, (3) there was sufficient evidence of his identity as the perpetrator to support his convictions, and (4) “the jury’s verdicts were not against the great weight of the evidence.” He was convicted of armed robbery, FIP, fourth-degree fleeing and eluding a police officer, and felony-firearm for the robbery of a convenience store and gas station. The court found that the gravamen of his first argument on appeal was “that the police’s failure to locate the unknown donor of DNA to the mask seized from the car used in the robbery denied his due-process right to a fair trial. It did not.” While he relied on Brady, that case did not support his claim. He “had no due-process right to have the police search for or develop any evidence.” And there was no misrepresentation about the DNA evidence. “The jury heard testimony that, in addition to defendant’s DNA on the mask,” the DNA of a second, unidentified donor was also present. The “DNA analyst testified that she did not know which donor contributed the most DNA, or when or how the DNA was contributed. The jury also heard [a police witness, P] testify that he did not obtain any additional DNA reference samples to send to the laboratory for analysis. The defense was free to attack the adequacy of the police investigation in an effort to argue that deficiencies in the investigation undermined the weight and strength of the prosecution’s case.” The court also rejected defendant’s related ineffective assistance of counsel claim, noting “that any objection that defense counsel would have raised on the basis that police failed to look for the unknown DNA donor would have been futile.” Next, the court determined that challenged testimony from P fell “comfortably within testimony allowed by MRE 701.” As to defendant’s Brady claim related to a video recording, he did not show “that the prosecution or the police ever actually possessed video footage of the robbery that also contained audio, let alone suppressed” it, and he failed to establish that had it “existed, it would have been favorable to him.” The court further concluded that, based on “the circumstantial evidence in this case, a rational jury could conclude beyond a reasonable doubt that defendant was guilty of the charged crimes.” Affirmed.

Retaliatory discharge; The Whistleblowers’ Protection Act (WPA); Debano-Griffin v Lake Cnty; Causation; Hearsay; Applicability of MRE 801(d)(2) (party-opponent admission); Pretext; Motion for judgment notwithstanding the verdict (JNOV); Harmless error; Motion for remittitur; The Michigan Occupational Safety & Health Administration (MIOSHA)

The court held that defendant-former employer in this WPA action for retaliatory discharge was properly denied summary disposition because plaintiff-former employee established a prima facie case. While it concluded that some statements were inadmissible under MRE 801(d)(2), another statement qualified as a party admission and supported a finding of causation. Plaintiff also presented evidence of pretext sufficient to survive summary disposition. Finally, while the court upheld the denial of defendant’s motion for JNOV, it determined the jury’s finding of economic damages was inconsistent with the evidence and defendant was entitled to remittitur. Plaintiff’s suit alleged that defendant terminated his employment in retaliation for making a MIOSHA complaint. A jury returned a verdict for plaintiff, awarding him $50,000 in economic damages and $50,000 in noneconomic damages. On appeal, defendant first argued that the trial court erred in denying its summary disposition motion. It contended that plaintiff did not establish a causal connection between his MIOSHA report and his termination, only a temporal one. The court disagreed, finding he offered evidence supporting “that in the brief period between [his] MIOSHA report on [6/5/21], and the termination of [his] employment on [7/8/21], plaintiff was downgraded from a reliable employee to a disloyal and disgruntled employee.” Defendant next argued that he relied on inadmissible hearsay to support the causation element. The court held that statements by two of defendant’s employees were inadmissible under MRE 801(d)(2) and could not support plaintiff’s prima facie case. But a statement by a third employee (K) qualified “as a party admission because [K] was plaintiff’s supervisor, and plaintiff’s standing with” defendant’s president/CEO and one of its vice presidents “was a matter within the scope of [K’s] employment. [K’s] statements thus were admissible under MRE 801(d)(2)(D).” But the court agreed with defendant that the trial court erred in “denying its motion for remittitur because plaintiff did not offer proof of economic damages in excess of $25,000.” Thus, it vacated the judgment as to the award of economic damages, affirmed it in all other respects, and remanded “for entry of an amended judgment for $25,000 in economic damages, and $50,000 in noneconomic damages.”

Dismissal under MCR 2.504(B)(1) (for failure to comply with rules or court order); Application of MCR 2.314(C)(1); The Vicencio v Ramirez factors

The court held that the trial court abused its discretion in granting defendant’s motion to dismiss under MCR 2.504(B)(1) because it “did not properly apply MCR 2.314(C)(1) and this inaccurate application permeated its analysis of the Vicencio factors.” Thus, the court vacated and remanded for “the trial court to determine whether dismissal was warranted under the facts when applying MCR 2.314(C)(1)(d) properly.” It appeared the trial court, in determining dismissal was the appropriate sanction, “relied heavily on its conclusion that plaintiff had an obligation to provide requested medical records to defendant.” But the court noted that “MCR 2.314(C)(1)(d) specifically allows a party to satisfy its obligation by providing an authorization. Defendant had been in possession of the authorizations for the medical information he was requesting since 2021, and plaintiff’s counsel had resubmitted the authorizations in 2023. The trial court’s reliance on the supposed failure of plaintiff’s counsel to understand his obligation to provide discovery as a primary reason for choosing the sanction of dismissal was an abuse of discretion because it misapplied the court rule.”

Appellate jurisdiction; Mootness; Equity Funding, Inc v Village of Milford; Whether a controversy remains where a competitor obtained a certificate of occupancy & a marijuana business license invoking a 1,000-foot buffer; Exception to mootness for issues of public significance likely to recur yet evade review; In re Tchakarova; Authorities regarding competitive licensing; Cary Invs, LLC v City of Mount Pleasant

Holding that the appeal was moot because the court could fashion no relief once a nearby competitor received a certificate of occupancy and a marijuana business license, thereby triggering the ordinance’s 1,000-foot buffer, the court affirmed the grant of summary disposition to defendants. Plaintiff sought mandamus, superintending control, and injunctive relief over defendant’s handling of its retail-marijuana application. The court noted that by the time the planning commission or the city council addressed plaintiff’s application, a competitor had already secured a certificate of occupancy (and later a license), which “effectively secured the buffer” and precluded any other retailer “within 1,000 feet.” The court reiterated that an “‘issue is moot when this Court’s decision can have no practical effect on a controversy or it is impossible for this Court to fashion a remedy.’” Here, any order compelling further review would still be blocked by the buffer and by a separate injunction that barred action inconsistent with defendant’s buffer rules. The court declined to invoke the public-interest/evading-review exception, noting plaintiff applied knowing competitors were a year ahead, received a planning-commission recommendation, and defendant’s city council “engaged in an 18-minute discussion” and gave reasons for denial. Moreover, ordinance amendments clarified the application consideration sequence and left no live controversy. Because no effective relief could be granted, the court declined “to consider the substantive issues of this case,” and the appeal was dismissed as moot.

Whether defendant’s withdrawal of the public-safety advisory at issue mooted plaintiffs’ case; The voluntary cessation & capable of repetition yet evading review exceptions to mootness; Whether the possibility of another administration changing the 2025 position kept the case alive; Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF)

[This appeal was from the ED-MI.] The court vacated the district court’s judgment, holding that this case was moot. Because defendant-ATF has withdrawn the public-safety advisory that plaintiffs challenged, there is no longer a “live controversy warranting federal judicial intervention[.]” Plaintiffs-Gun Owners and Roberts sued defendants over a 2020 public-safety advisory the ATF issued providing that Michigan concealed-pistol licenses could no longer allow gun purchasers to be exempt from a separate federal background check. Plaintiffs requested an injunction to prohibit enforcement of the advisory and a declaration that the ATF exceeded its authority by issuing it. The district court ruled for the ATF, but the court previously vacated and remanded for additional review of state law requirements. The district court then dismissed Roberts’ complaint for lack of standing. After that ruling, under the new administration, the ATF issued a new advisory providing that Michigan licenses are “an acceptable Brady Act alternative.” On appeal, the court reviewed Article III’s case and controversy requirements, which limit judicial power to “live disputes.” It held that this case was moot where the ATF had withdrawn the 2020 public-safety advisory. Additionally, “[n]either the superseded 2020 advisory nor the outcome of this lawsuit has the potential to affect Roberts. He sought only forward-looking relief—a declaratory judgment and injunction—not money damages to compensate him for past injuries.” Further, neither of the mootness exceptions applied. As to the voluntary cessation exception, the court saw “no basis for thinking the ATF will snap back to the old 2020 policy once freed from this litigation.” It also noted that several other circuits have considered the argument that “a future administration could change course” and rejected it, reasoning that “‘the mere possibility a successor official may shift course does not necessarily keep a case live.’” As to the capable of repetition yet evading review exception, even “if the ATF reissued an advisory substantially similar to the 2020 one, the federal courts would be fully capable of providing effective relief.” And it found that “[i]f the mere possibility that a defendant could again hypothetically restart and then ‘re-cease’ a policy sufficed to prevent mootness, the exception would envelop the rule.” Remanded with instructions to dismiss the case as moot.

Appellate jurisdiction; Mootness; Equity Funding, Inc v Village of Milford; Whether a controversy remains where a competitor obtained a certificate of occupancy & a marijuana business license invoking a 1,000-foot buffer; Exception to mootness for issues of public significance likely to recur yet evade review; In re Tchakarova; Authorities regarding competitive licensing; Cary Invs, LLC v City of Mount Pleasant

Holding that the appeal was moot because the court could fashion no relief once a nearby competitor received a certificate of occupancy and a marijuana business license, thereby triggering the ordinance’s 1,000-foot buffer, the court affirmed the grant of summary disposition to defendants. Plaintiff sought mandamus, superintending control, and injunctive relief over defendant’s handling of its retail-marijuana application. The court noted that by the time the planning commission or the city council addressed plaintiff’s application, a competitor had already secured a certificate of occupancy (and later a license), which “effectively secured the buffer” and precluded any other retailer “within 1,000 feet.” The court reiterated that an “‘issue is moot when this Court’s decision can have no practical effect on a controversy or it is impossible for this Court to fashion a remedy.’” Here, any order compelling further review would still be blocked by the buffer and by a separate injunction that barred action inconsistent with defendant’s buffer rules. The court declined to invoke the public-interest/evading-review exception, noting plaintiff applied knowing competitors were a year ahead, received a planning-commission recommendation, and defendant’s city council “engaged in an 18-minute discussion” and gave reasons for denial. Moreover, ordinance amendments clarified the application consideration sequence and left no live controversy. Because no effective relief could be granted, the court declined “to consider the substantive issues of this case,” and the appeal was dismissed as moot.

Reasonable reunification efforts; Effect of aggravated circumstances; MCL 712A.19a(2)(a); MCL 722.638; In re Sanborn; Termination under § 19b(3)(b)(ii); Children’s best-interests; MCL 712A.19b(5); In re Moss Minors

Holding that the trial court did not err in finding that reasonable reunification efforts were made, that clear and convincing evidence supported termination under § (b)(ii), and that it was in the children’s best interests, the court affirmed termination of respondent-father’s parental rights. After the children disclosed repeated sexual abuse by the paternal grandfather to the father, he allegedly disbelieved them. The children were placed with their maternal aunt and uncle. At adjudication, the father pled no contest to petition allegations. At disposition, the foster-care specialists testified he continued to reside with the grandfather, refused one of the children’s medication authorization, provided no support, blocked a home inspection, and did not engage in services. The court found “there was likely sufficient evidence in the record to conclude that reasonable efforts were not necessary because of the aggravated circumstances.” But the trial court did not make this finding on the record. In any event, reasonable-efforts attempts were thwarted by the father’s noncommunication. As to statutory grounds, he had the opportunity to prevent abuse but failed to act, and there was a reasonable likelihood of harm if returned, satisfying § (b)(ii). Finally, as to best interests, the children (aged 17 and 15) expressed fear and anger toward the father, had stabilized in a relative placement, and needed permanency and safety. Their father’s disbelief and continuing cohabitation with the alleged abuser weighed heavily against reunification.