Age discrimination; The Elliott-Larsen Civil Rights Act (ELCRA); Town v Michigan Bell Tel Co; Qualified for the position requirement; Lack of a covering physician as a nondiscriminatory reason to not grant clinical privileges; Michigan Antitrust Reform Act violation; MCL 445.772; Conspiracy; Tortious interference with a business relationship; Waiver by release; Lack of any malicious acts in bad faith; Dalley v Dykema Gossett, PLLC; Motion to extend discovery & compel response to discovery requests; MCR 2.301(B)(4); Timeliness; Prejudice

The court held that the trial court did not err in (1) denying plaintiff’s motion to extend discovery and compel defendant to respond to discovery requests or (2) granting defendant summary disposition on plaintiff’s age discrimination, antitrust, and tortious interference claims. Plaintiff, who was born in 1942, is a doctor. The case arose from his “application for clinical privileges at Beaumont Wayne Hospital (Beaumont Wayne), which defendant operates.” On appeal, the court first considered plaintiff’s arguments as to discovery. It noted that he “waited until less than a month before the close of discovery to submit [his] first document production request to defendant. For its part, defendant did not produce documents or respond to” his request for production until “two months after the discovery cutoff.” The court further noted that “plaintiff’s counsel waited another month after the response to move to extend discovery. Discovery had been closed for three months when plaintiff filed his motion, and nearly five months when the trial court denied the motion. Stated simply, plaintiff was dilatory in pursuing discovery. Given the significant delay before [he] moved to extend discovery, the trial court did not abuse its discretion by ruling the motion was untimely. [It] also did not err by ruling defendant would be prejudiced by extending discovery.” As to the trial court’s summary disposition rulings, plaintiff’s age discrimination claim failed because he did not show “he was qualified for clinical privileges.” There was no “dispute that proof of a covering physician was necessary to grant clinical privileges,” and the individual who initially agreed to serve as plaintiff’s covering physician later declined to do so. “There was no evidence plaintiff obtained another covering physician agreement.” The court added that “his lack of a covering physician was a nondiscriminatory reason to not grant him clinical privileges.” As to his antitrust and tortious interference claims, the court concluded the trial court did not err in “applying the release of liability in this matter.” While the release “only waived liability for defendant’s acts performed in good faith and without malice[,]” the court found that dismissal of the claims was proper “because defendant did not perform any malicious acts in bad faith relevant to either claim.” Affirmed.

Tortious interference; Contractual relations; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Wrongful act; Knight Enters v RPF Oil Co; Business relationship or expectancy; Improper motive; BPS Clinical Labs v Blue Cross & Blue Shield (On Remand)

The court held that plaintiff failed to establish a genuine issue of material fact on its tortious-interference claims arising from the termination of pharmacy services agreements with defendants-nursing facilities. Plaintiff provided pharmacy services to nursing homes referred to as the Saint Facilities under five-year agreements. After plaintiff declined to provide requested capital, the facilities transitioned their pharmacy work to defendant-OneCare, whose principals (also defendants) allegedly provided funding connected to other facility operations. On appeal, the court first explained that the parties did not dispute the existence of the relevant contracts or business relationships and knowledge of them. The dispute centered on whether the OneCare defendants unjustifiably instigated a breach or intentionally induced termination of the relationship. The court held that plaintiff failed to show instigation or intentional inducement because the record indicated that one of the facilities’ principals (nonparty-R) “had already intended to seek an alternative pharmacy services provider prior to his discussions with defendants,” and the other principal “was not involved in the termination decisions.” The court also held that plaintiff failed to show wrongful or malicious conduct because R testified that he had complaints about plaintiff’s service, wanted “somebody local, with a small provider,” and denied that the OneCare defendants demanded the Saint contracts in exchange for investment. Although they solicited the business and knew there were “things to finish with the other pharmacy,” the court reasoned that this did not show improper interference because conduct “‘motivated by legitimate business reasons’” is not improper and does not become tortious merely because a defendant “‘takes the initiative to gain an advantage over the competition.’” Plaintiff’s cease-and-desist letter did not change the result because the OneCare defendants received it only days before the transition and already had a signed contract. Affirmed.

Contract breach damages; Whether a genuine issue of material fact existed

The court held that the trial court did not err in granting plaintiff partial summary disposition and entering a damages award because the affidavit and deposition testimony presented by defendant-Chalmers Square did not raise a genuine issue of material fact. The trial court’s judgment ordered Chalmers to pay plaintiff, a property restoration company, “$416,380.91 for restoration work, in addition to $44,665.13 in costs and attorney fees[.]” Chalmers owns a residential apartment building on which plaintiff performed restoration services. Chalmers is co-owned by nonparty-L. There was no dispute that a contract existed or over whether it was breached. The dispute concerned the amount of damages to which plaintiff was entitled. Chalmers asserted “the trial court erred by ruling on the issue of damages” because the issue was contested and a material fact dispute existed. It relied on statements by L in his deposition and an affidavit. But the court found that his deposition testimony did “not raise a genuine issue of material fact because it fails to go beyond mere allegations. Stating the bill for services was deficient only provides [L’s] opinion without any factual support for such a contention, as does [L’s] comparison between the price of restoration services and the cost of general building. Chalmers presents no evidence suggesting the prices for the services rendered were inconsistent with plaintiff’s estimates for the repairs or the rates for each of the specific services provided.” As to his affidavit, Chalmers contended L’s comments as to “plaintiff’s reliance on insurance proceeds and its unnecessary services are sufficient.” However, the court determined that, much “like his deposition testimony, [L’s] statements do not raise a genuine issue of material fact because they fail to go beyond mere conjecture. [He] does not point to any specific services he believes were unnecessary or provide any basis for the assertion plaintiff went beyond the scope of the work agreement. There is no indication by Chalmers or [L] that plaintiff’s services were exaggerated compared to what is described in the scope of work, or that the charges did not comport with the rate schedule.” Thus, Chalmers did not show how L’s affidavit raised a genuine issue of material fact. Affirmed.

Sentencing; Proportionality; People v Milbourn; Within-guidelines sentence; People v Posey; Mitigating factors; People v Bailey; Ineffective assistance of counsel; Sentencing mitigation; People v Yeager

The court held that defendant’s within-guidelines sentences were proportionate and that he was not denied the effective assistance of counsel at sentencing. Defendant was sentenced as a fourth-offense habitual offender to concurrent minimum terms of 46 months for assaulting, resisting, or obstructing an officer and third-degree fleeing and eluding after he drove a van without a license plate, refused to stop, fled through residential areas, and later fought with an officer who found him in the van outside a bar. On appeal, the court first held that defendant failed to overcome the presumption of proportionality attached to his within-guidelines sentences because “much of the information provided in defendant’s post-sentencing motion was either presented in the PSIR or discussed at trial,” including his disabilities, substance use, housing situation, and volunteer work. The court emphasized that the trial court was not required to “expressly discuss these potentially mitigating facts[.]” It also noted that his record included “12 misdemeanor convictions and eight felony convictions,” five prison sentences, and the offenses here were committed while he was on bond for domestic violence against his “blind-and-deaf sister.” The court also found the offenses “particularly dangerous” because defendant fled “through residential neighborhoods at an excessive speed.” The court next held that counsel was not ineffective because the PSIR was “thorough and contained several potentially mitigating facts,” making further investigation arguably unnecessary. He also failed to show prejudice because the trial court later stated that the mitigation report “would not have changed its determination of the appropriate sentence.” Affirmed.

The Freedom of Information Act (FOIA); Whether some documents were properly withheld from disclosure under 5 USC §§ 552(b)(4) & (5); Whether the withheld information was “commercial” in nature; Whether some of the information was “obtained from a person” rather than generated by the agency; Whether information was confidential; “Invasion of personal privacy”; § 552(b)(6); In camera review; Attorney fees; Whether plaintiff was a “prevailing party”; § 552(a)(4)(E)(ii)

In this FOIA case, the court held that the substance of some “documents, with any other protected material appropriately redacted, should not have been withheld under Exemption Four.” But it held that other information was within the protection of Exemption Four and Exemption Six. It remanded for further proceedings as to some of the withholdings and as to plaintiff-Energy and Policy Institute’s (EPI) request for attorney fees under the FOIA. EPI sought documents from defendant-TVA concerning industry groups and an insurance policy. The TVA complied as to some of the documents, partially redacted some, and withheld others. EPI sued. The TVA released more documents during the litigation. The district court granted judgment to the TVA on the remaining documents. It also denied EPI’s motion for attorney fees based on its role in obtaining the mid-litigation release. On appeal, EPI first challenged the TVA’s decision to withhold some of the requested documents and redact others. The court held as to Exemption Four (§ 552(b)(4)) that some of the documents, but not all, were “commercial or financial” in nature. Exemption Four also requires that the information be “obtained from a person” and that it be confidential in order to be withheld. The court held that some withholdings were “proper even if TVA was one of the contributing [industry group’s] members because the information involved would not be reasonably segregable from the protected information.” As to confidentiality, it found that information about the insurance policy “was properly withheld under Exemption Four” but that remand was required for the district court to direct the TVA to clear up an ambiguity as to other information. The court also found that the district court correctly ruled that some information was protected by Exemption Six, and upheld its decision to deny in camera review of certain documents. As to EPI’s attorney fees request, the court remanded for the district court to determine “(1) whether the filing of the suit caused the release of the documents, directly or indirectly, (2) whether EPI’s claim was ‘not insubstantial,’ and (3) whether EPI is entitled to fees under the traditional equitable standards that govern an award.” Affirmed in part, reversed in part, and remanded.

Tortious interference; Contractual relations; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Wrongful act; Knight Enters v RPF Oil Co; Business relationship or expectancy; Improper motive; BPS Clinical Labs v Blue Cross & Blue Shield (On Remand)

The court held that plaintiff failed to establish a genuine issue of material fact on its tortious-interference claims arising from the termination of pharmacy services agreements with defendants-nursing facilities. Plaintiff provided pharmacy services to nursing homes referred to as the Saint Facilities under five-year agreements. After plaintiff declined to provide requested capital, the facilities transitioned their pharmacy work to defendant-OneCare, whose principals (also defendants) allegedly provided funding connected to other facility operations. On appeal, the court first explained that the parties did not dispute the existence of the relevant contracts or business relationships and knowledge of them. The dispute centered on whether the OneCare defendants unjustifiably instigated a breach or intentionally induced termination of the relationship. The court held that plaintiff failed to show instigation or intentional inducement because the record indicated that one of the facilities’ principals (nonparty-R) “had already intended to seek an alternative pharmacy services provider prior to his discussions with defendants,” and the other principal “was not involved in the termination decisions.” The court also held that plaintiff failed to show wrongful or malicious conduct because R testified that he had complaints about plaintiff’s service, wanted “somebody local, with a small provider,” and denied that the OneCare defendants demanded the Saint contracts in exchange for investment. Although they solicited the business and knew there were “things to finish with the other pharmacy,” the court reasoned that this did not show improper interference because conduct “‘motivated by legitimate business reasons’” is not improper and does not become tortious merely because a defendant “‘takes the initiative to gain an advantage over the competition.’” Plaintiff’s cease-and-desist letter did not change the result because the OneCare defendants received it only days before the transition and already had a signed contract. Affirmed.

Age discrimination; The Elliott-Larsen Civil Rights Act (ELCRA); Town v Michigan Bell Tel Co; Qualified for the position requirement; Lack of a covering physician as a nondiscriminatory reason to not grant clinical privileges; Michigan Antitrust Reform Act violation; MCL 445.772; Conspiracy; Tortious interference with a business relationship; Waiver by release; Lack of any malicious acts in bad faith; Dalley v Dykema Gossett, PLLC; Motion to extend discovery & compel response to discovery requests; MCR 2.301(B)(4); Timeliness; Prejudice

The court held that the trial court did not err in (1) denying plaintiff’s motion to extend discovery and compel defendant to respond to discovery requests or (2) granting defendant summary disposition on plaintiff’s age discrimination, antitrust, and tortious interference claims. Plaintiff, who was born in 1942, is a doctor. The case arose from his “application for clinical privileges at Beaumont Wayne Hospital (Beaumont Wayne), which defendant operates.” On appeal, the court first considered plaintiff’s arguments as to discovery. It noted that he “waited until less than a month before the close of discovery to submit [his] first document production request to defendant. For its part, defendant did not produce documents or respond to” his request for production until “two months after the discovery cutoff.” The court further noted that “plaintiff’s counsel waited another month after the response to move to extend discovery. Discovery had been closed for three months when plaintiff filed his motion, and nearly five months when the trial court denied the motion. Stated simply, plaintiff was dilatory in pursuing discovery. Given the significant delay before [he] moved to extend discovery, the trial court did not abuse its discretion by ruling the motion was untimely. [It] also did not err by ruling defendant would be prejudiced by extending discovery.” As to the trial court’s summary disposition rulings, plaintiff’s age discrimination claim failed because he did not show “he was qualified for clinical privileges.” There was no “dispute that proof of a covering physician was necessary to grant clinical privileges,” and the individual who initially agreed to serve as plaintiff’s covering physician later declined to do so. “There was no evidence plaintiff obtained another covering physician agreement.” The court added that “his lack of a covering physician was a nondiscriminatory reason to not grant him clinical privileges.” As to his antitrust and tortious interference claims, the court concluded the trial court did not err in “applying the release of liability in this matter.” While the release “only waived liability for defendant’s acts performed in good faith and without malice[,]” the court found that dismissal of the claims was proper “because defendant did not perform any malicious acts in bad faith relevant to either claim.” Affirmed.