Alleged breach of contract involving the distribution of proceeds after the sale of a gas station; Motion for judgment notwithstanding the verdict (JNOV) or a new trial; Declaratory relief; Lansing Sch Educ Ass’n v Lansing Bd of Educ (On Remand); Action for an accounting; MCL 450.4503(5); Boyd v Nelson Credit Ctrs, Inc; The 6-year limitations period for breach of contract; MCL 600.5807; Prior breach; Costs & attorney fees under the offer of judgment rule; MCR 2.405; The interest-of-justice exception; Reasonableness; Smith v Khouri

Finding no errors requiring reversal, the court affirmed the trial court’s judgment in this breach of contract case. Plaintiff-Esmael agreed to contribute one-third of the down payment needed to purchase a gas station with defendant-Shekoohfar, and the parties signed an equity agreement. Shekoohfar did not provide quarterly reports to Esmael or a copy of the federal income tax return filed each year, although he did provide tax returns for the previous four tax years in 2012. Plaintiffs filed suit and defendants counterclaimed for breach of contract. The gas station was sold in 2021, and defendants did not provide any portion of the proceeds to plaintiffs. The trial court entered its judgment, after a jury trial, awarding plaintiffs zero dollars and awarding defendants $60,000 plus attorney fees and costs on their counterclaim. It denied plaintiffs' motions for JNOV or a new trial and denied their request that it rule on their claims for declaratory relief and equitable accounting. On appeal, the court found the trial court did not err by denying plaintiffs’ motion for JNOV, noting the parties’ agreement actually entitled plaintiffs “to one-third of any ‘equity that Shekoohfar realizes’ upon the sale. Shekoohfar testified that the gas station business had significant liabilities that needed to be paid from the sale proceeds, and that there was no remaining equity to distribute. Reasonable jurors could have concluded that there was simply no profit or equity to distribute to plaintiffs.” The court also found the trial court did not err by denying plaintiffs’ claims for declaratory relief and an accounting, noting they had “no need for declaratory relief to guide future conduct when their claims for damages were based on alleged breaches of contract that have already occurred.” And they failed to explain how discovery was insufficient. The court further found the trial court did not err by denying their motions regarding defendants’ counterclaim for breach of contract. First, “defendants responded to plaintiffs’ motion by setting forth specific facts that they argued showed a genuine issue of material fact, supported by documentary evidence such as deposition testimony and financial documents.” Second, a “reasonable jury could conclude that plaintiffs suffered no actual damages from Shekoohfar’s breach” nor did they show how his “breach was ‘substantial.’” Finally, the court found the trial court did not by awarding defendants attorney fees under the offer-of-judgment rule, or in its determination of the reasonableness of the award. “[T]he trial court did not abuse its discretion by awarding actual costs and declining to apply the interest-of-justice exception” or by finding “the fees requested were reasonable, notwithstanding the fact that it did not make explicit findings on every Smith factor.”

Age discrimination; The Age Discrimination in Employment Act (ADEA); Whether defendant terminated plaintiff’s employment based on his age; “Disparate impact”; Defendant’s lack of supporting evidence; Whether defendant offered “a legitimate, non-discriminatory reason” for termination; Whether defendant’s internal report was admissible under FRE 901; Plaintiff’s motion for sanctions based on “spoilation of evidence” under FedRCivP 37(e) & (e)(1); Whether defendant was entitled to summary judgment; Whether plaintiff offered sufficient indirect evidence of discrimination to persuade a jury that age was the “but-for cause” of his termination; McDonnell Douglas Corp. v. Green

The court reversed summary judgment for defendant-Brinker International in this age-discrimination dispute, holding that plaintiff-Kean established an issue whether “age” was the but-for cause of his termination where Brinker’s internal report (TMR Report) supporting the termination was improperly admitted under Rule 901 because of questions regarding its “authenticity” and its “accuracy.” Brinker terminated Kean, a 59-year-old General Manager at a Chili’s restaurant in Tennessee, and replaced him with a 33-year-old with no managerial experience. Brinker explained that it terminated Kean “for creating a toxic ‘culture’ and not ‘living the Chili’s way.’” However, the facts indicated that the restaurant was “a top performer” and was even used for training purposes. Kean sued for age discrimination under the ADEA. Brinker based its defense primarily on an internal document known as a “TMR Report” in Brinker’s parlance. However, the nature and compilation of this document was unknown. The district court granted Kean fees and costs based on Brinker’s failure to maintain the original electronic material and its lack of supporting evidence, but found this failure was not intentional and that the award of fees and costs should cure any prejudice under Rule 37(e)(1). It granted Brinker summary judgment, ruling that it had offered a legitimate non-discriminatory reason for firing Kean—Chili’s “culture.” The court first found the TMR Report was inadmissible under the FRE because Brinker was unable to authenticate it under FRE 901. The authorship of the document was never established, and any original emails had long been destroyed. “Brinker’s lack of a document-retention policy and subsequent failure to implement a litigation hold has contributed almost exclusively to this gap in the record.” There were also reasons to question its authenticity and the accuracy of the information contained in it. The court then ordered the district court to review Kean’s motion for sanctions, which it only partially granted, and reconsider the “spoilation of evidence” argument to determine whether additional sanctions beyond excluding the TMR Report were appropriate. The court reversed summary judgment for Brinker, holding that plaintiff offered sufficient indirect evidence of discrimination to “‘persuade a reasonable juror that age was the but-for cause of [his] termination.’” It then held that because the TMR was inadmissible, the district court erred by relying on it when considering Brinker’s proffered nondiscriminatory reason for terminating Kean. Thus, Kean successfully rebutted Brinker’s explanation. The court noted Brinker’s failure to offer any “objective metrics” for evaluating the term “culture” in its work setting, and found Kean “produced evidence that Brinker was cultivating a youthful ‘culture’ at Chili’s that Kean did not fit into.”

Consideration of claims raised in a Standard 4 brief

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal # 82455 in the 10/23/24 edition), the court remanded the case to the Court of Appeals to consider the claims raised in defendant’s Standard 4 brief. While the Court of Appeals granted “defendant’s motion to extend the time for filing his Standard 4 brief and accepted the brief” he submitted for filing, its judgment did “not address the claims raised in that brief.”

Sentencing; First-degree murder; People v Czarnecki; People v Poole; People v Taylor

In an order, in lieu of granting leave to appeal, the court reversed Part III of the Court of Appeals judgment (see eJournal # 81272 in the 3/29/24 edition), vacated the defendant’s sentence for first-degree murder, and remanded for resentencing in light of Taylor.

Sentencing for first-degree murder; People v Taylor

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal # 83396 in the 4/7/25 edition), the court vacated defendant’s first-degree murder sentence and remanded the case to the trial court for resentencing in light of Taylor. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Sentencing; People v Taylor; First-degree murder

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal #80310 in the 10/18/23 edition), the court reversed that court’s judgment, vacated defendant’s sentence for first-degree murder, and remanded the case to the circuit court for resentencing in light of Taylor.

Sentencing; People v Taylor; First-degree murder

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal #80447 in the 11/14/23 edition), the court reversed that court’s judgment, vacated defendant’s sentence for first-degree murder, and remanded the case to the circuit court for resentencing in light of Taylor.

Sentencing for first-degree murder; People v Czarnecki; People v Taylor; People v Poole

In an order in lieu of granting leave to appeal, the court reversed Part III of the Court of Appeals judgment (see eJournal # 81659 in the 6/6/24 edition), vacated defendant’s first-degree murder sentence, and remanded the case to the trial court for resentencing in light of Taylor. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.

Sentencing; First degree murder; People v Czarnecki; People v Poole; People v Taylor

In an order, in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 80824 in the 1/17/24 edition), vacated the defendant’s sentence for first-degree murder, and remanded for resentencing in light of Taylor.

Felonious assault; AWIGBH; Jury instruction; Intent to inflict great bodily harm; M Crim JI 17.7; MCL 750.84; People v McKewen; The mutually exclusive verdicts doctrine; People v Davis (Davis II)

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal #69821 in the 3/5/19 edition), the court reversed that part of the judgment that addressed the mutually exclusive verdicts doctrine and reinstated defendant’s conviction of felonious assault. The jury was instructed that to convict the defendant of AWIGBH it must find that, at the time of the assault, he “intended to cause great bodily harm.” However, the “jury was not instructed that it must find [he] acted without the intent to inflict great bodily harm with respect to felonious assault. Regardless of whether this state’s jurisprudence recognizes the principle of mutually exclusive verdicts, that issue is not presented here.” Because as “to the felonious-assault conviction, the jury never found . . . defendant acted without the intent to cause great bodily harm, a guilty verdict for that offense was not mutually exclusive to [his] guilty verdict for [AWIGBH], where the jury affirmatively found [he] acted with the intent to do great bodily harm.” As such, “the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate the defendant’s felonious-assault conviction.”

Sentencing; First degree murder; People v Czarnecki; People v Poole; People v Taylor

In an order, pursuant to MCR 7.305(I)(1), in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see eJournal # 81147 in the 3/8/24 edition), vacated the defendant’s sentence for first-degree murder, and remanded the case for resentencing in light of Taylor.

Age discrimination; The Age Discrimination in Employment Act (ADEA); Whether defendant terminated plaintiff’s employment based on his age; “Disparate impact”; Defendant’s lack of supporting evidence; Whether defendant offered “a legitimate, non-discriminatory reason” for termination; Whether defendant’s internal report was admissible under FRE 901; Plaintiff’s motion for sanctions based on “spoilation of evidence” under FedRCivP 37(e) & (e)(1); Whether defendant was entitled to summary judgment; Whether plaintiff offered sufficient indirect evidence of discrimination to persuade a jury that age was the “but-for cause” of his termination; McDonnell Douglas Corp. v. Green

The court reversed summary judgment for defendant-Brinker International in this age-discrimination dispute, holding that plaintiff-Kean established an issue whether “age” was the but-for cause of his termination where Brinker’s internal report (TMR Report) supporting the termination was improperly admitted under Rule 901 because of questions regarding its “authenticity” and its “accuracy.” Brinker terminated Kean, a 59-year-old General Manager at a Chili’s restaurant in Tennessee, and replaced him with a 33-year-old with no managerial experience. Brinker explained that it terminated Kean “for creating a toxic ‘culture’ and not ‘living the Chili’s way.’” However, the facts indicated that the restaurant was “a top performer” and was even used for training purposes. Kean sued for age discrimination under the ADEA. Brinker based its defense primarily on an internal document known as a “TMR Report” in Brinker’s parlance. However, the nature and compilation of this document was unknown. The district court granted Kean fees and costs based on Brinker’s failure to maintain the original electronic material and its lack of supporting evidence, but found this failure was not intentional and that the award of fees and costs should cure any prejudice under Rule 37(e)(1). It granted Brinker summary judgment, ruling that it had offered a legitimate non-discriminatory reason for firing Kean—Chili’s “culture.” The court first found the TMR Report was inadmissible under the FRE because Brinker was unable to authenticate it under FRE 901. The authorship of the document was never established, and any original emails had long been destroyed. “Brinker’s lack of a document-retention policy and subsequent failure to implement a litigation hold has contributed almost exclusively to this gap in the record.” There were also reasons to question its authenticity and the accuracy of the information contained in it. The court then ordered the district court to review Kean’s motion for sanctions, which it only partially granted, and reconsider the “spoilation of evidence” argument to determine whether additional sanctions beyond excluding the TMR Report were appropriate. The court reversed summary judgment for Brinker, holding that plaintiff offered sufficient indirect evidence of discrimination to “‘persuade a reasonable juror that age was the but-for cause of [his] termination.’” It then held that because the TMR was inadmissible, the district court erred by relying on it when considering Brinker’s proffered nondiscriminatory reason for terminating Kean. Thus, Kean successfully rebutted Brinker’s explanation. The court noted Brinker’s failure to offer any “objective metrics” for evaluating the term “culture” in its work setting, and found Kean “produced evidence that Brinker was cultivating a youthful ‘culture’ at Chili’s that Kean did not fit into.”

Alleged breach of contract involving the distribution of proceeds after the sale of a gas station; Motion for judgment notwithstanding the verdict (JNOV) or a new trial; Declaratory relief; Lansing Sch Educ Ass’n v Lansing Bd of Educ (On Remand); Action for an accounting; MCL 450.4503(5); Boyd v Nelson Credit Ctrs, Inc; The 6-year limitations period for breach of contract; MCL 600.5807; Prior breach; Costs & attorney fees under the offer of judgment rule; MCR 2.405; The interest-of-justice exception; Reasonableness; Smith v Khouri

Finding no errors requiring reversal, the court affirmed the trial court’s judgment in this breach of contract case. Plaintiff-Esmael agreed to contribute one-third of the down payment needed to purchase a gas station with defendant-Shekoohfar, and the parties signed an equity agreement. Shekoohfar did not provide quarterly reports to Esmael or a copy of the federal income tax return filed each year, although he did provide tax returns for the previous four tax years in 2012. Plaintiffs filed suit and defendants counterclaimed for breach of contract. The gas station was sold in 2021, and defendants did not provide any portion of the proceeds to plaintiffs. The trial court entered its judgment, after a jury trial, awarding plaintiffs zero dollars and awarding defendants $60,000 plus attorney fees and costs on their counterclaim. It denied plaintiffs' motions for JNOV or a new trial and denied their request that it rule on their claims for declaratory relief and equitable accounting. On appeal, the court found the trial court did not err by denying plaintiffs’ motion for JNOV, noting the parties’ agreement actually entitled plaintiffs “to one-third of any ‘equity that Shekoohfar realizes’ upon the sale. Shekoohfar testified that the gas station business had significant liabilities that needed to be paid from the sale proceeds, and that there was no remaining equity to distribute. Reasonable jurors could have concluded that there was simply no profit or equity to distribute to plaintiffs.” The court also found the trial court did not err by denying plaintiffs’ claims for declaratory relief and an accounting, noting they had “no need for declaratory relief to guide future conduct when their claims for damages were based on alleged breaches of contract that have already occurred.” And they failed to explain how discovery was insufficient. The court further found the trial court did not err by denying their motions regarding defendants’ counterclaim for breach of contract. First, “defendants responded to plaintiffs’ motion by setting forth specific facts that they argued showed a genuine issue of material fact, supported by documentary evidence such as deposition testimony and financial documents.” Second, a “reasonable jury could conclude that plaintiffs suffered no actual damages from Shekoohfar’s breach” nor did they show how his “breach was ‘substantial.’” Finally, the court found the trial court did not by awarding defendants attorney fees under the offer-of-judgment rule, or in its determination of the reasonableness of the award. “[T]he trial court did not abuse its discretion by awarding actual costs and declining to apply the interest-of-justice exception” or by finding “the fees requested were reasonable, notwithstanding the fact that it did not make explicit findings on every Smith factor.”

Premises liability; Failure to adequately plead a claim of ordinary negligence; Motion for reconsideration of a motion to amend the complaint; Denial of leave to amend/reconsideration

The court held that “the trial court did not err by concluding that plaintiff’s claim sounded in premises liability, and that [she] failed to adequately plead a claim of ordinary negligence.” Also, the trial court did not abuse its discretion by denying her motions to amend and for reconsideration. She argued “that the trial court erred by holding that plaintiff had failed to adequately plead a claim for ordinary negligence in her original complaint, and accordingly erred by granting defendants’ motions for summary disposition, albeit with an opportunity for plaintiff to file a motion to amend her complaint.” Plaintiff claimed “that her complaint also alleged that defendants owed a ‘separate and distinct’ duty to plaintiff, and highlights for this Court portions of the complaint using the term ‘active negligence.’” It was true that her complaint contained “a few paragraphs that refer to an unspecified ‘separate and distinct duty’ to plaintiff and the ‘active negligence’ of defendants.” But reading the complaint as a whole, it was clear that her allegation was “that she was injured by a condition on the land possessed and controlled by defendants.” The court noted that it “is well-settled that a plaintiff may not transform a premises-liability claim into one of ordinary negligence merely by alleging that the dangerous condition on the defendant’s land was created by the defendant’s action or inaction.” Further, although she vaguely claimed “the existence of some duty owed by defendants to plaintiff that was not dependent on their alleged status as premises owners or possessors, plaintiff never specified that duty.” Plaintiff also argued “that, even if the trial court did not err by granting defendants’ motions for summary disposition, it erred by denying her motion for leave to amend, and by denying reconsideration of that denial.” The court found that her “motion to amend and brief in support did not contain a specific description of the proposed amendment or a clear statement of” her claim; she “merely noted that she had argued in opposition to defendants’ motions for summary disposition that she ‘could allege a claim for ordinary negligence based on Defendants’ conduct in creating a hazard.’” In her brief in support of her motion, she “argued that the amendment would not be futile, and she recited the elements of a negligence claim but did not allege a specific duty owed to plaintiff by defendants.” In fact, she stated that it would be “[p]remature to reach any conclusion whether Plaintiff can and will plead a legally sufficient claim for ordinary negligence.” It appeared that she “expected the trial court to grant her motion to amend without knowing precisely what amendments plaintiff planned on making.” Also, her “motion for reconsideration, although it was accompanied by a proposed amended complaint, did not explain why her motion to amend was not accompanied by a proposed amended complaint or at least a clear description of plaintiff’s proposed amendments.” Instead, she faulted “the trial court for not explicitly informing plaintiff that it would be unable to grant her motion if she failed to provide enough information for the trial court to determine if the proposed amendment was justified.” The court found “no abuse of discretion in the trial court’s denial of reconsideration.” Affirmed.

Class certification; FedRCivP 23; “Common questions” of fact or law; Whether the district court properly applied the “commonality” analysis; Whether the common questions predominated over non-common ones; Whether the district court properly applied the “predominance” analysis; Breach of express & implied warranties; State consumer protection statutes; Arbitration agreements

[This appeal was from the ED-MI.] In an en banc opinion, the court vacated the district court’s class certification order in this action alleging problems with a transmission in some of defendant-GM’s vehicles and remanded for the district court to conduct an “element-by-element commonality analysis” to determine which questions are truly central to which claims and whether “those questions predominated over individual ones.” Plaintiffs alleged defects in GM’s 8L transmissions in vehicles offered between 2015 to 2019. “The district court certified 26 statewide subclasses with a total of 59 state-law claims on behalf of roughly 800,000 individual car buyers.” On appeal, the court framed two issues: whether the district court properly (1) identified “common questions of fact or law” and (2) ruled that “those questions predominated over individual ones[.]” The court explained that the commonality requirement is not met “if the answer requires ‘evidence that varies from member to member.’” The district court found that “‘three readily discernible common questions that are crucial to the pleaded causes of action’ exist: whether the transmissions have shift and shudder defects; whether GM knew about them; and whether the defects are material.” It pointed out that every claim demanded “‘proof of a defect in the vehicles’ transmission design.’” Because it concluded “that these questions lend themselves to a common answer and feature ‘prominently in the disposition of the case,’ it found commonality satisfied.” The court held that this did “not suffice. A court may not simply ask whether generalized questions yield a common answer.” Rather, an “element-by-element commonality analysis” was required. Without it, the court could not “effectively review which questions are truly central to which claims.” The predominance requirement analysis required a “claim-by-claim comparison of the common and non-common questions to see which ones, if any, predominate.” Considering the four causes of action, the court concluded it was “doubtful that the common questions predominate over the non-common ones” as to the express and implied warranty claims. The claims under various states’ consumer protection statutes faced “two general hurdles. The first is a requirement in some states that a product defect must manifest before a consumer may bring such a lawsuit. The second is a requirement in some states that a consumer must show he actually relied on a merchant’s misrepresentation or omission. Only the state regimes that impose neither requirement avoid these predominance pitfalls.” The court also ordered the district court to consider whether “arbitration questions overwhelm the common ones in this” 800,000-car class.

Premises liability; Failure to adequately plead a claim of ordinary negligence; Motion for reconsideration of a motion to amend the complaint; Denial of leave to amend/reconsideration

The court held that “the trial court did not err by concluding that plaintiff’s claim sounded in premises liability, and that [she] failed to adequately plead a claim of ordinary negligence.” Also, the trial court did not abuse its discretion by denying her motions to amend and for reconsideration. She argued “that the trial court erred by holding that plaintiff had failed to adequately plead a claim for ordinary negligence in her original complaint, and accordingly erred by granting defendants’ motions for summary disposition, albeit with an opportunity for plaintiff to file a motion to amend her complaint.” Plaintiff claimed “that her complaint also alleged that defendants owed a ‘separate and distinct’ duty to plaintiff, and highlights for this Court portions of the complaint using the term ‘active negligence.’” It was true that her complaint contained “a few paragraphs that refer to an unspecified ‘separate and distinct duty’ to plaintiff and the ‘active negligence’ of defendants.” But reading the complaint as a whole, it was clear that her allegation was “that she was injured by a condition on the land possessed and controlled by defendants.” The court noted that it “is well-settled that a plaintiff may not transform a premises-liability claim into one of ordinary negligence merely by alleging that the dangerous condition on the defendant’s land was created by the defendant’s action or inaction.” Further, although she vaguely claimed “the existence of some duty owed by defendants to plaintiff that was not dependent on their alleged status as premises owners or possessors, plaintiff never specified that duty.” Plaintiff also argued “that, even if the trial court did not err by granting defendants’ motions for summary disposition, it erred by denying her motion for leave to amend, and by denying reconsideration of that denial.” The court found that her “motion to amend and brief in support did not contain a specific description of the proposed amendment or a clear statement of” her claim; she “merely noted that she had argued in opposition to defendants’ motions for summary disposition that she ‘could allege a claim for ordinary negligence based on Defendants’ conduct in creating a hazard.’” In her brief in support of her motion, she “argued that the amendment would not be futile, and she recited the elements of a negligence claim but did not allege a specific duty owed to plaintiff by defendants.” In fact, she stated that it would be “[p]remature to reach any conclusion whether Plaintiff can and will plead a legally sufficient claim for ordinary negligence.” It appeared that she “expected the trial court to grant her motion to amend without knowing precisely what amendments plaintiff planned on making.” Also, her “motion for reconsideration, although it was accompanied by a proposed amended complaint, did not explain why her motion to amend was not accompanied by a proposed amended complaint or at least a clear description of plaintiff’s proposed amendments.” Instead, she faulted “the trial court for not explicitly informing plaintiff that it would be unable to grant her motion if she failed to provide enough information for the trial court to determine if the proposed amendment was justified.” The court found “no abuse of discretion in the trial court’s denial of reconsideration.” Affirmed.

Modification of an ex parte personal protection order (PPO); Mootness; Errors made by the trial court; Constitutionally protected activities; Matter of public concern; Right to attend court hearings; Legitimate public purpose; Act of confronting petitioner; Two or more acts; Michigan Department of Corrections (MDOC)

The court affirmed the trial court’s order modifying an ex parte PPO against respondent. He was a corrections officer for the MDOC. “Petitioner worked as an Internal Affairs investigator for the MDOC.” The court noted “two important facts relevant to our review of this matter. First, petitioner did not provide any written materials to this Court, and second, most of respondent’s challenges are moot.” For clarity and completeness, the court assumed he was “disputing the original PPO, as its validity pertains to his argument in favor of sanctions. Nonetheless, . . . at least some of the provisions in the original PPO were not erroneous; therefore, respondent’s challenges to any additional provisions pertain more to the scope of the PPO rather than its validity, ultimately rendering them moot.” The court held that “after reviewing the context and circumstances surrounding this case, it is evident that none of these errors are significant enough to justify a reversal of the trial court’s decision. Each error, while noted, falls short of impacting the overall outcome.” Also, after “reviewing all of the evidence, the trial court did not err in concluding that, while some of respondent’s conduct may have constitutional protection, respondent transgressed into areas of illegitimate and unprotected harassment and intimidation that served no legitimate purpose.” Finally, the record plainly revealed “that respondent’s conduct was harassment of petitioner that continued over a period of time. Accordingly, the trial court did not err by issuing the original PPO. Therefore, all of respondent’s other challenges are moot.”