The Fair Credit Reporting Act (FCRA); Statute of limitations; 15 USC § 1681p; Applicability of the FCRA; Commercial business transactions; Bacharach v Suntrust Mtg, Inc (5th Cir)

Holding that plaintiff-Thorpe’s FCRA claim was time-barred and that the FCRA did not apply in this case, which involved his seeking a commercial loan from defendant-bank (EMB), the court affirmed summary disposition for EMB. “When EMB ‘pulled’ Thorpe’s credit report, his credit score was reported as low. As such, EMB required a cosigner for the loan. This upset Thorpe, who maintained that he did not authorize EMB to request his credit report at the time that EMB did so.” He obtained “a loan from another lender. Approximately three years later,” he filed this suit alleging, among other things, that EMB violated the FCRA. On appeal, while the parties did not raise the issue, the court concluded that “Thorpe’s FCRA claim was time-barred” under § 1681p. Further, a consumer report is defined as “a report used to establish credit eligibility ‘primarily for personal, family, or household purposes.’” The court quoted a Fifth Circuit Court of Appeals decision that ruled “FCRA does not cover reports used or expected to be used only in connection with commercial business transactions.’” In this case, Thorpe alleged, among other things, that he sought the loan to buy a drive-in theater, “that he used a commercial realtor for the transaction, he lost revenue as a result of the delay in purchasing the property, team members left the project because of the delay, and his reputation in the industry suffered.” While he asserted there is “a ‘mixed-purpose’ exception to the FCRA’s inapplicability to commercial transactions, his complaint fails to allege that his purchase of the drive-in theater was for any reason other than commercial purposes. Accordingly, the trial court properly dismissed Thorpe’s FCRA claim under MCR 2.116(C)(8).”

Breach of fiduciary duty & conversion claims related to a payroll agreement; Separate & distinct duty limiting tort claims; Rinaldo’s Constr Corp v Michigan Bell Tel. Co; Contractual limitation of remedies & consequential damages; Hart v Ludwig; Treble damages; MCL 600.2919a

The court held that plaintiff-Precision’s fiduciary duty and conversion claims failed because defendant-ADP’s obligations arose solely from the parties’ payroll services contract and the contract’s liability provisions barred the claimed consequential damages. Thus, the trial court properly granted ADP summary disposition and denied reconsideration. Under a payroll agreement, Precision sent funds to ADP to pay its payroll taxes, but ADP failed to remit the taxes or file returns for a period of time, later sending checks to Precision and eventually paying the outstanding taxes only after Precision hired a certified public accountant and an attorney to press the issue. Precision sued for breach of fiduciary duty and conversion, alleging that ADP used approximately $250,000 of Precision’s funds for its own purposes and seeking about $10,776 in professional fees as damages, trebled under MCL 600.2919a. ADP moved for summary disposition, relying on contract provisions that required ADP to correct errors and reimburse penalties or interest while disallowing consequential damages, and arguing that Precision could not repackage a contractual dispute as tort claims. The trial court agreed, ruled that ADP owed no duty separate from the contract, dismissed the tort claims, and invited Precision to replead a contract claim, but Precision instead sought reconsideration. On appeal, the court reaffirmed the separate and distinct duty framework, noting that Precision’s allegations described negligent performance and nondisclosure related to contractual obligations rather than violation of an independent legal duty. It expressly concluded that “Precision failed to allege that ADP violated a duty that it owed Precision separate and distinct from those owed under the contract.” The court further emphasized that the agreement’s limitation of liability clause expressly addressed late payment of tax funds by requiring ADP to reimburse penalties and interest and at the same time excluded consequential damages such as professional fees incurred in connection with the services, explaining that “the contract specifically provided a remedy for the exact scenario that occurred” and that because “Precision incurred its alleged damages in connection with the contract, . . . they were specifically excluded under the contractual language.” Affirmed.

Persons with Disabilities Civil Rights Act (PWDCRA); Whistleblowers’ Protection Act (WPA); Wrongful discharge; Collateral estoppel; Collective bargaining agreement (CBA)

The court held that the trial court did not err in granting defendant summary disposition given that no genuine issue of material fact remained. Because a “federal court has already found that: (1) plaintiff does not have a disability recognized under the PWDCRA, (2) plaintiff is subject to the CBA, and (3) the CBA allows for a two-year leave of absence before termination ensues, collateral estoppel bars those issues.” Thus, plaintiff could not establish a prima facie claim of discrimination under the PWDCRA, WPA, or common law. The federal court found that plaintiff did not have a disability recognized under the PWDCRA, and he did not assert “that he has developed any new disability. Because plaintiff has already had the opportunity to argue whether he has a disability recognized under the PWDCRA, and because the federal court ultimately determined that he did not, the first two elements of collateral estoppel” were met as to this issue. In addition, “because the same exact parties were involved in the federal case, the third element of collateral estoppel—mutual estoppel—is necessarily met in this case.” Thus, plaintiff was “collaterally estopped from relitigating this issue, and his trial-court PWDCRA claims fail as a matter of law.” As he could not “establish a prima facie claim under the PWDCRA, the ‘additional fact’ of his termination is immaterial.” Accordingly, the trial court did not err in “granting summary disposition on plaintiff’s PWDCRA claims.” His WPA and wrongful-discharge claims were “predicated on the allegation that [he] was terminated in retaliation for reporting workplace safety concerns, filing an EEOC complaint, and testifying in a federal court proceeding.” Because plaintiff had “already had the opportunity to argue the terms of the CBA and whether it applies to his employment, and because the federal court outlined the relevant CBA terms and determined that the CBA applied to plaintiff, the first two elements of collateral estoppel” were also met as to this issue. And the court again held that “because the same exact parties were involved in the federal case, the third element of collateral estoppel— mutual estoppel—is necessarily met in this case.” Aa a result, plaintiff was “collaterally estopped from relitigating this issue.” Taking that fact into account, both his WPA and wrongful-discharge claims failed as a matter of law. Finally, because there was “no genuine issue of material fact, the trial court did not err by granting summary disposition on plaintiff’s wrongful discharge claim.” Affirmed.

First Amendment free speech challenge to MCL 330.1100a(20) & 1901a (HB 4616) (prohibiting licensed therapists from engaging in conversion therapy with a minor); Standing; Denial of injunctive relief; Likelihood of success on the merits; Whether the statute’s restrictions were “content-based”; Application of “strict scrutiny” analysis

[This appeal was from the WD-MI.] The court held that plaintiffs were entitled to a preliminary injunction enjoining enforcement of Michigan statutes (collectively referred to as HB 4616) that restrict a therapist’s speech when counseling minors seeking to orient themselves with their biological sex. Under MCL 330.1100a(20), therapists may counsel a minor “‘undergoing a gender transition.’” But they may not provide a minor “counseling to ‘change’ his ‘behavior or gender expression’ to align with his biological sex,” or they can lose their license. Plaintiff-Catholic Charities employs 16 such counselors who offer “talk therapy.” The other plaintiff had her own counseling practice. The district court denied plaintiffs a preliminary injunction, ruling that the therapy they provided constituted conduct, in the form of treatment, rather than speech. On appeal, the court first held that plaintiffs had standing to challenge HB 4616 where the speech involved “is at least arguably protected by the First Amendment” and they face a “credible threat of enforcement[.]” The State has expressed its intention to enforce this law. Next, the court declined to reserve ruling on this matter pending the resolution of a Supreme Court case involving the same issue. Turning to the merits, it determined that HB 4616 imposes “content-based” regulations on speech and “discriminates based on viewpoint—meaning the law permits speech on a particular topic only if the speech expresses a viewpoint that the government itself approves.” Because content-based restrictions are “presumptively invalid,” defendants had the burden of rebutting the presumption. The court stated that they did “not even attempt to identify any long-settled tradition of regulating speech in the same way that HB 4616 regulates it.” The court rejected their contention that “HB 4616 regulates ‘conduct’ rather than speech.” It concluded that, as “applied to these plaintiffs, . . . the Michigan law restricts speech, not conduct.” The court held that the law was subject to, and could not survive, strict scrutiny. Defendants had to “show that its restrictions on speech are the least restrictive means of achieving a compelling government interest.” They did not do so. They defined “their compelling interests at a high level of generality” and only made “a perfunctory attempt to show a ‘direct causal link’ between harm to those interests, on the one hand, and the speech proscribed by HB 4616, on the other.” Reversed and remanded for entry of a preliminary injunction.

The Fair Credit Reporting Act (FCRA); Statute of limitations; 15 USC § 1681p; Applicability of the FCRA; Commercial business transactions; Bacharach v Suntrust Mtg, Inc (5th Cir)

Holding that plaintiff-Thorpe’s FCRA claim was time-barred and that the FCRA did not apply in this case, which involved his seeking a commercial loan from defendant-bank (EMB), the court affirmed summary disposition for EMB. “When EMB ‘pulled’ Thorpe’s credit report, his credit score was reported as low. As such, EMB required a cosigner for the loan. This upset Thorpe, who maintained that he did not authorize EMB to request his credit report at the time that EMB did so.” He obtained “a loan from another lender. Approximately three years later,” he filed this suit alleging, among other things, that EMB violated the FCRA. On appeal, while the parties did not raise the issue, the court concluded that “Thorpe’s FCRA claim was time-barred” under § 1681p. Further, a consumer report is defined as “a report used to establish credit eligibility ‘primarily for personal, family, or household purposes.’” The court quoted a Fifth Circuit Court of Appeals decision that ruled “FCRA does not cover reports used or expected to be used only in connection with commercial business transactions.’” In this case, Thorpe alleged, among other things, that he sought the loan to buy a drive-in theater, “that he used a commercial realtor for the transaction, he lost revenue as a result of the delay in purchasing the property, team members left the project because of the delay, and his reputation in the industry suffered.” While he asserted there is “a ‘mixed-purpose’ exception to the FCRA’s inapplicability to commercial transactions, his complaint fails to allege that his purchase of the drive-in theater was for any reason other than commercial purposes. Accordingly, the trial court properly dismissed Thorpe’s FCRA claim under MCR 2.116(C)(8).”

Second-degree murder; Aiding & abetting; People v Robinson; Scoring of OVs 1 & 2 in multiple-offender cases; People v Ventour; MCL 777.32(1)(d) & (2); Entitlement to resentencing; Great weight of the evidence; Due process; Mens rea; The natural & probable-consequences doctrine

The court held that there was sufficient evidence to support defendant’s conviction of second-degree murder on an aiding and abetting theory, and that the conviction was not against the great weight of the evidence. In light of Robinson, it also rejected his claim that his conviction “based on the natural and probable consequences of his actions” violated due process. But it concluded that he was entitled to resentencing because 5 points were erroneously scored for OV 2. The court found the evidence established that his codefendant (R) committed second-degree murder by shooting the victim (J) multiple times. Three witnesses identified R as one of the perpetrators, “and the reasonable inference drawn from defendant’s statements was that [R] was the shooter. This” met the requirement that the crime “‘was committed by the defendant or some other person[.]’” While the parties indicated R was “acquitted of any murder charges, ‘the conviction of a principal is not necessary for the conviction of a party aiding and abetting.’” The evidence was also “sufficient to establish that defendant performed acts or gave encouragement that assisted the commission of the crime.” He admitted he gave R “his gun in the days leading up to the murder.” While R gave him other reasoning for wanting it, “defendant never took it back. Rather, [he] drove [R] to the scene of the crime, even after learning” where they were going and knowing that R intended to confront J “while armed. When they arrived at the apartment complex, defendant parked where [R] directed.” He placed a phone call when R told him to, exited the car, and followed R “to the apartment. Eyewitnesses testified that defendant and [R] were wearing ski masks; defendant told the police he had the hood of his sweatshirt on and pulled up and tied to cover his face.” He drove R away after the shooting, hid his car “in his garage, reported his gun stolen, and changed his phone number.” In addition, a rational fact-finder could conclude that he “either intended to murder [J] or had knowledge that [R] acted with the requisite malice.” But given that there was no evidence he “possessed or used a pistol” during the crime, and because R “was acquitted of murder and not assessed points for OV 2, defendant could not be assessed points in a multiple-offender situation under MCL 777.32(2).” His murder conviction was affirmed but his sentence was vacated. Remanded for resentencing.

Hearsay; MRE 801(c); Present sense impression; MRE 803(1); “Personal perception”; Excited utterance; MRE 803(2); Lay opinion; MRE 701

In this interlocutory appeal, the court concluded that the trial court abused its discretion by allowing the admission of Officer P’s statement, reversed “the trial court’s order denying in part the prosecution’s motion in limine” and remanded. Defendant sought to admit P’s “statement to establish the truth of the matter asserted, i.e., that the decedent attacked her.” It was also clear that P’s “statement qualifies as an unsworn, ‘out-of-court’ statement.” Thus, the prosecutor correctly represented that the statement was “inadmissible hearsay unless the statement falls under one of the recognized hearsay exceptions.” The court noted that “approximately 30 minutes after the altercation occurred, [P] made his statement when viewing an accelerated playback of a security camera recording. Therefore, he did not personally perceive the event; he only perceived a video of the event.” Consequently, the court found that “his statement was not the product of his own perceptions of the altercation, but rather a product of viewing the video’s content that was being played back at an accelerated speed.” Additionally, when P “initially arrived at the scene, he assisted an officer on the third floor before obtaining the surveillance footage. Considering that the officer he assisted was the officer who helped medical personnel load the decedent onto a stretcher, it is likely that [P] knew that the decedent was seriously injured or deceased at the time that he obtained the surveillance footage.” Accordingly, P’s “impression of the video may have been impacted by the knowledge that he gleaned at the scene before watching the video.” The court concluded that under “these circumstances, the trial court abused its discretion to the extent that it found that the statement was admissible as a present sense impression.” Also, it noted that “the startling event was the altercation. [P] was not present when the startling event occurred. Rather, he merely viewed an accelerated video of the event after assisting an officer at the crime scene.” Because P “was not present at the startling event, he cannot have been under the stress or excitement caused by the event when he made his statement. Under these circumstances, the trial court abused its discretion to the extent that it found that the statement was admissible as an excited utterance.” Finally, the statement that P “made in the body-camera recording would not assist the jury in determining who the aggressor was in the altercation. [P’s] statement was made when viewing the security video at an accelerated speed, and there was no indication that he ever viewed the video at a normal speed. But on retrial, the jury will be able to view the original recording, which the trial court noted clearly portrayed the event, to determine each party’s actions. Under these circumstances, [P’s] statement would not be helpful to the determination of a fact in issue.” Thus, the court found that “the trial court abused its discretion to the extent it found that the statement was admissible under MRE 701.”

Motion to set aside a conviction; People v Butka; MCL 780.621d(13)

The court vacated the order denying defendant-Woodcox’s application to set aside his convictions and remanded for analysis under the legal framework stated in Butka. He was convicted by guilty plea of CSC IV. The prosecutor conceded "that the trial court abused its discretion when it denied his set-aside application by failing to conduct the proper analysis outlined in” Butka. The court concluded that as “a threshold issue, Butka applies in full to the trial court’s consideration of Woodcox’s application.” Turning to the facts, the trial “court found Woodcox otherwise eligible for expungement before exercising its discretion under MCL 780.621d(13) to deny his application. In so ruling, the trial court did not properly apply and account for each element of the two-part standard.” First, the court found that “the trial court’s analysis did not properly account for whether Woodcox’s postconviction ‘circumstances and behavior[,]’ warranted setting aside the convictions.” Second, it held that “the trial court’s analysis did not properly account for whether setting aside Woodcox’s convictions would be ‘consistent with the public welfare . . . .’” The court held that because the trial “court’s decision denying Woodcox’s application was based upon errors of law, the [trial] court necessarily abused its discretion when reaching the decision.”

Persons with Disabilities Civil Rights Act (PWDCRA); Whistleblowers’ Protection Act (WPA); Wrongful discharge; Collateral estoppel; Collective bargaining agreement (CBA)

The court held that the trial court did not err in granting defendant summary disposition given that no genuine issue of material fact remained. Because a “federal court has already found that: (1) plaintiff does not have a disability recognized under the PWDCRA, (2) plaintiff is subject to the CBA, and (3) the CBA allows for a two-year leave of absence before termination ensues, collateral estoppel bars those issues.” Thus, plaintiff could not establish a prima facie claim of discrimination under the PWDCRA, WPA, or common law. The federal court found that plaintiff did not have a disability recognized under the PWDCRA, and he did not assert “that he has developed any new disability. Because plaintiff has already had the opportunity to argue whether he has a disability recognized under the PWDCRA, and because the federal court ultimately determined that he did not, the first two elements of collateral estoppel” were met as to this issue. In addition, “because the same exact parties were involved in the federal case, the third element of collateral estoppel—mutual estoppel—is necessarily met in this case.” Thus, plaintiff was “collaterally estopped from relitigating this issue, and his trial-court PWDCRA claims fail as a matter of law.” As he could not “establish a prima facie claim under the PWDCRA, the ‘additional fact’ of his termination is immaterial.” Accordingly, the trial court did not err in “granting summary disposition on plaintiff’s PWDCRA claims.” His WPA and wrongful-discharge claims were “predicated on the allegation that [he] was terminated in retaliation for reporting workplace safety concerns, filing an EEOC complaint, and testifying in a federal court proceeding.” Because plaintiff had “already had the opportunity to argue the terms of the CBA and whether it applies to his employment, and because the federal court outlined the relevant CBA terms and determined that the CBA applied to plaintiff, the first two elements of collateral estoppel” were also met as to this issue. And the court again held that “because the same exact parties were involved in the federal case, the third element of collateral estoppel— mutual estoppel—is necessarily met in this case.” Aa a result, plaintiff was “collaterally estopped from relitigating this issue.” Taking that fact into account, both his WPA and wrongful-discharge claims failed as a matter of law. Finally, because there was “no genuine issue of material fact, the trial court did not err by granting summary disposition on plaintiff’s wrongful discharge claim.” Affirmed.

Insurer priority; MCL 500.3114(5); Effect of an insured’s election to decline PIP coverage pursuant to MCL 500.3109a(2); MCL 500.3114(6); Eligibility to decline PIP coverage under MCL 500.3107d; Exclusion under MCL 500.3109(2); MCL 500.3109a; MCL 500.3107c; Whether a vehicle was “involved” in the accident; Detroit Med Ctr v Progressive MI Ins Co; Greater Flint HMO v Allstate Ins Co

On remand from the Supreme Court, the court held that there was no exclusion under MCL 500.3109a(2) that could apply as to plaintiff’s claim. Thus, defendant-Auto Club Group Insurance was “not excluded from the order of priority in MCL 500.3114(5) under MCL 500.3114(6).” It also held that a genuine issue of material fact existed as to whether a specific vehicle was “involved” in the accident for purposes of MCL 500.3114(5). Thus, it affirmed the trial court’s denial of Auto Club’s summary disposition motion and of summary disposition to defendants-Citizens Insurance Company of the Midwest and Hanover Insurance as to whether a Volkswagen Jetta allegedly insured by one of them was “involved” in the accident. Plaintiff, a motorcyclist, was in an accident involving multiple motor vehicles. Auto Club argued it was not in the order of priority as to plaintiff because its insured, defendant-Rudolph, “had elected to decline PIP coverage in her policy pursuant to MCL 500.3109a(2) and such policies are excluded from the order of priority set forth in MCL 500.3114(5) by operation of” 500.3114(6). The court concluded that MCL 500.3107c(1)(b) and “500.3109a(2) expressly work in tandem and can be understood as providing both a limit on PIP coverage and a separate exclusion from any PIP coverage available only to certain designated individuals meeting certain conditions. The limit applies to anyone with a right to claim PIP benefits under the policy. , , , However, any exclusion under MCL 500.3109a ‘must apply only to benefits payable to the person named in the policy, the spouse of the insured, and any relative of either domiciled in the same household.’” There was no dispute that plaintiff did “not fall within the category of individuals eligible for this exclusion. Accordingly, the statutory scheme plainly does not provide the option, after choosing the coverage level of $250,000 in MCL 500.3107c(1)(b), to then choose to exclude anyone from eligibility for PIP benefits other than ‘the person named in the policy, the spouse of the insured, and any relative of either domiciled in the same household.’” As to the issue of the Jetta, the court found that “a jury could reasonably conclude that the driver approaching from behind at an excessive speed for the stop-and-go traffic caused each driver in that driver’s path, including [nonparty-F], to take emergency action in response to the hazard, which contributed to the crash that caused injuries to the motorcyclist plaintiff. If the jury so found, then [F’s] vehicle would be ‘involved’ in the accident.”

Voluntary dismissal conditions & notice; MCR 2.504(A)(2); McKelvie v City of Mt. Clemens; Attorney withdrawal discretion; MCR 2.117(C)(2); Keywell & Rosenfeld v Bithell

The court held that the trial court abused its discretion by dismissing plaintiff’s case with prejudice without ensuring that plaintiff knowingly accepted that condition. Plaintiff brought a third-party automobile negligence action that proceeded through discovery and was scheduled for trial when both original counsel and co-counsel moved to withdraw, citing a breakdown in the attorney-client relationship. The trial court denied withdrawal and told plaintiff she must either proceed to trial or dismiss her case. When plaintiff responded that the trial court could dismiss the case, it immediately stated that it was dismissing the matter, and an order prepared by defense counsel was later entered dismissing the case “with prejudice.” On appeal, the court explained that a dismissal at a plaintiff’s request is governed by MCR 2.504(A)(2), which allows dismissal only “on terms and conditions the court deems proper.” Citing McKelvie, the court reiterated that “a party seeking a voluntary dismissal must be given a choice to either proceed to trial or accept a dismissal on the terms and conditions established by the trial court.” The court found that plaintiff was never informed that dismissal would be with prejudice, never advised of the legal consequences of such a dismissal, and never given the opportunity to reject those terms. The court rejected defendant’s argument that plaintiff’s statement constituted consent, explaining that “the issue of whether the dismissal would be with or without prejudice was not even mentioned at the hearing.” Although the court affirmed the denial of counsel’s motions to withdraw given the age of the case and the imminent trial date, it concluded that the dismissal procedure violated MCR 2.504(A)(2) and required reversal and remand.

Premises liability; Kandil-Elsayed v F&E Oil, Inc; Tenant’s slip & fall; Duty owed to an invitee; Open & obvious; Ambs v Family Counseling & Shelter Servs of Monroe Cnty, Inc (Unpub); Causation

The court held that there were genuine issues of material fact as to whether defendant-landlord (NOM) breached the duty it owed plaintiff-tenant (Murray) as an invitee, and as to causation. Thus, it concluded the trial court erred in granting NOM summary disposition of Murray’s premises liability claim arising from her slip and fall from a porch that lacked a handrail on one side of the stairs. Murray asserted that NOM breached its duty to her “by failing to keep the handrails in good repair” while NOM contended it did not owe a “duty to have handrails on the porch in the first place, so the fallen handrail did not have to be kept in reasonable repair. A jury must decide whether a defendant’s conduct fell below the general standard of care,” and as a result, “the trial court erred by deciding that summary disposition was warranted based upon the analysis of duty.” The court found that it “further erred by relying on the legal analysis in Ambs regarding open-and-obvious conditions after our Supreme Court overturned that analysis in Kandil-Elsayed.” As to the issue of causation, “Murray testified during her deposition that she does not know why she slipped, but as she was falling she tried to grab the missing handrailing on the side of the porch to arrest her fall.” The court noted that while this “assertion of causation is circumstantial, what constitutes a question for the trier of fact in open-and-obvious premises-liability disputes has shifted since” Kandil-Elsayed was issued. “Seemingly, once it is established that a property owner owes a duty and a plaintiff has been injured, everything from breach, to causation, to comparative negligence is reserved for the jury so long as the plaintiff has provided some evidence supporting those elements.” There was a genuine issue of material fact here because Murray claimed “she would not have fallen, or at least not have fallen to the degree she did, if the handrail had been in place, so summary disposition pursuant to MCR 2.116(C)(10) was not warranted.” Reversed and remanded.

Breach of fiduciary duty & conversion claims related to a payroll agreement; Separate & distinct duty limiting tort claims; Rinaldo’s Constr Corp v Michigan Bell Tel. Co; Contractual limitation of remedies & consequential damages; Hart v Ludwig; Treble damages; MCL 600.2919a

The court held that plaintiff-Precision’s fiduciary duty and conversion claims failed because defendant-ADP’s obligations arose solely from the parties’ payroll services contract and the contract’s liability provisions barred the claimed consequential damages. Thus, the trial court properly granted ADP summary disposition and denied reconsideration. Under a payroll agreement, Precision sent funds to ADP to pay its payroll taxes, but ADP failed to remit the taxes or file returns for a period of time, later sending checks to Precision and eventually paying the outstanding taxes only after Precision hired a certified public accountant and an attorney to press the issue. Precision sued for breach of fiduciary duty and conversion, alleging that ADP used approximately $250,000 of Precision’s funds for its own purposes and seeking about $10,776 in professional fees as damages, trebled under MCL 600.2919a. ADP moved for summary disposition, relying on contract provisions that required ADP to correct errors and reimburse penalties or interest while disallowing consequential damages, and arguing that Precision could not repackage a contractual dispute as tort claims. The trial court agreed, ruled that ADP owed no duty separate from the contract, dismissed the tort claims, and invited Precision to replead a contract claim, but Precision instead sought reconsideration. On appeal, the court reaffirmed the separate and distinct duty framework, noting that Precision’s allegations described negligent performance and nondisclosure related to contractual obligations rather than violation of an independent legal duty. It expressly concluded that “Precision failed to allege that ADP violated a duty that it owed Precision separate and distinct from those owed under the contract.” The court further emphasized that the agreement’s limitation of liability clause expressly addressed late payment of tax funds by requiring ADP to reimburse penalties and interest and at the same time excluded consequential damages such as professional fees incurred in connection with the services, explaining that “the contract specifically provided a remedy for the exact scenario that occurred” and that because “Precision incurred its alleged damages in connection with the contract, . . . they were specifically excluded under the contractual language.” Affirmed.

Termination under § 19b(3)(c)(i); In re Frey; Failure to rectify housing conditions; Reasonable efforts

The court held that clear and convincing evidence supported termination of respondent-father’s parental rights under § (c)(i) because the condition leading to adjudication continued without reasonable likelihood of timely rectification. Respondent admitted jurisdiction based on lack of stable housing, and the trial court adopted a service plan requiring housing, assessments, counseling, and drug screening. More than 182 days later, respondent remained homeless, alternating between couch surfing, a homeless encampment, and sleeping outdoors. The panel emphasized that termination is proper when “the totality of the evidence amply supports that [the respondent] had not accomplished any meaningful change” and failed to benefit from services. The court noted repeated testimony that respondent did not follow through with referrals, failed to maintain contact, and did not clarify his living situation despite opportunities to do so. Addressing respondent’s argument that immigration and documentation barriers prevented compliance, the court explained that the record showed “significant efforts by petitioner to work with respondent,” and that those efforts were “hampered by respondent’s lack of communication and failure to follow through.” Because respondent was in essentially the same position at termination as at adjudication, the trial court did not err in finding no reasonable likelihood of rectification within a reasonable time. Affirmed.

Reasonable reunification efforts; MCL 722.638; Aggravated circumstances; MCL 712A.19a(2)

The court concluded that “under MCL 712A.19a(2)(a), [the DHHS] was not required to make reasonable efforts to reunite respondent[-father] with [child, SR], and respondent’s argument that [the DHHS] failed to make reasonable efforts has no merit.” Thus, the trial court’s order terminating his parental rights was affirmed. The DHHS sought termination of his “parental rights at the initial disposition hearing pursuant to MCL 722.638 because of respondent’s alleged sexual abuse of SR. At the adjudication of the petition, the trial court found by a preponderance of the evidence that grounds to assume jurisdiction over SR existed on the basis of SR’s undisputed testimony about respondent making SR perform fellatio on him when she was 10 years old.” The court also noted that the trial court found “SR’s testimony provided clear and convincing evidence that the allegations of abuse in the petition were true and established that respondent had subjected SR to sexual abuse including [CSC] involving penetration, which constituted statutory grounds for termination pursuant to MCL 712A.19b(3)(k)(ii), as well as other statutory grounds. The [trial] court also determined that termination was in SR’s best interests.” The court held that “the trial court satisfied the MCR 3.977(E) requirements necessary to terminate respondent’s rights at the initial dispositional hearing.” It held that “the trial court explicitly found by clear and convincing evidence that respondent’s conduct met the definition of [CSC] involving penetration and that there was ‘no question’ that respondent, SR’s legal father, subjected SR to sexual abuse and penetration ‘as defined by law.’” When making those findings, the trial “court was aware of the issue concerning the exceptions stated under MCL 712A.19a(2), resolved the dispute, and supported its resolution with adequate factual findings to permit appellate review. ‘These findings amount to a judicial determination that respondent subjected [SR] to aggravated circumstances as provided in [MCL 722.638(1)(a)(ii)] and (2).’”