First Amendment retaliation under 42 USC § 1983; Causation; No-probable-cause rules; Hartman v Moore; Nieves v Bartlett; Criminal citations; Civil parking enforcement; Qualified immunity; Municipal liability under Monell v Department of Soc Servs; Selective-enforcement claims forfeiture; Prior restraint; Permit discretion; Thomas v Chicago Park Dist; Fourth Amendment unreasonable seizure; Community-caretaking impoundment; Standardized criteria

The court held that plaintiff’s First Amendment retaliation claims against defendant-mayor (King), defendant-chief of staff (Smedley), and defendant-City should be revived, while defendant-police chief (Gardner) was entitled to qualified immunity and the remaining constitutional claims failed. Plaintiff-resident (Fambrough) used a sound truck registered to plaintiff-company to broadcast political messages criticizing East Cleveland’s administration and supporting the mayor’s opponent. City officials subsequently enforced parking and noise ordinances against him, impounded the truck, and prosecuted the noise violation. The district court resolved all claims for defendants. On appeal, the court first clarified the causation rules governing the retaliation claims. It concluded that Hartman governed the noise prosecution, Nieves governed the noise citation, and neither rule governed the civil parking citation or impoundment. It explained that “issuing a citation is more like an arrest than a prosecutor’s decision to bring charges” and it “decline[d] to extend either Hartman or Nieves to the parking-related actions here.” As to King and Smedley, plaintiff plausibly alleged an absence of probable cause for noise enforcement and retaliatory causation for the parking actions. The court concluded, taking “Fambrough’s allegations as true, no reasonable official in King’s or Smedley’s position would believe that he was acting lawfully.” As to theCity, the court found plaintiff “raised a genuine dispute of material fact on whether City officials’ retaliatory motive led to the adverse actions.” It vacated and remanded the municipal-liability claim because the district court had not determined whose decisions constituted official policy and directly caused the violation. Gardner, however, received qualified immunity because “we’ve never held that the defendant’s knowledge of another’s retaliatory intent imputes that intent on to the defendant’s actions.” The court also concluded that plaintiff forfeited his selective-enforcement claims by failing to develop them. It rejected the facial prior-restraint challenge because the permit standard “isn’t so vague that the decision to grant or deny an application is left ‘to the whim of the administrator.’” Finally, it affirmed summary disposition on the Fourth Amendment claim. Because the truck was illegally parked on a residential street, “the police had an objective justification for impounding” it, and the city’s impoundment policy was “sufficiently standardized.” Reversed in part, affirmed in part, vacated in part, and remanded.

Summary disposition under MCR 2.116(C)(7) & (I)(1); Sua sponte dismissal; Notice & meaningful opportunity to be heard; Settlement enforcement; Res judicata; Foster v Foster; Adair v State; Dismissal with prejudice; Collateral attack on consent judgment; Same parties or privies; Same transaction; Premature summary disposition

The court held that res judicata barred plaintiff-former priest’s claims for unpaid compensation and related relief, and that the trial court properly dismissed the claims against defendant-parish even though it filed only a concurrence in defendant-Archdiocese’s dispositive motions. Plaintiff served as priest of the parish from approximately 2012 through 2016 and claimed it owed him salary, a housing allowance, and expenses. A 2015 parish resolution purportedly transferred a parish house to him as payment, but the Archdiocese disputed the transfer. In a 2017 action over the property and parish control, plaintiff counterclaimed for unpaid compensation and related expenses. The parties later executed a binding settlement requiring dismissal of the complaint and counterclaim with prejudice, and a consent judgment returned title to the church. Plaintiff filed this action in 2021 seeking compensation again. The trial court dismissed the claims against both defendants. On appeal, the court first rejected plaintiff’s argument that the parish could not obtain summary disposition without filing its own motion. Because its concurrence expressly adopted the Archdiocese’s motions and plaintiff had notice and an opportunity to respond, “[e]ven if the concurrence did not independently satisfy the requirements for a motion, MCR 2.116(I)(1) permitted the trial court to enter judgment in favor of St. Simon.” Turning to res judicata, the court found all three elements satisfied. The prior action was decided on the merits because “[a] voluntary dismissal with prejudice is treated as a decision on the merits for purposes of res judicata.” Plaintiff’s attacks on the authority of parish representatives, entity names, and alleged fraud constituted an impermissible collateral attack on the consent judgment. The same-party-or-privity requirement was also met. Even assuming St. Simon and St. Simeon were technically different legal entities, “the parish in the 2017 action represented the same legal rights that St. Simon asserts here,” and the entities were in privity. Finally, the present claims arose from the same transaction. “A new calculation of damages or a different legal theory, . . . does not create a new transaction.” The loss of the parish house merely changed plaintiff’s asserted damages or means of payment and “did not create a new claim arising from a different transaction.” The court also rejected his prematurity argument because “he has not identified any discovery that could alter the preclusion analysis.” Affirmed.

Employment contract breach; Implied covenant of good faith & fair dealing; Hammond v United of Oakland, Inc; Kircher v Boyne USA, Inc; Speculation; Condition precedent; Real Estate One v Heller; Prevention of performance

The court held that plaintiff did not identify a contractual benefit that defendant-former employer (1) denied him through a bad-faith exercise of contractual discretion or (2) breached by terminating his employment or later changing its national accounts approach. Thus, it affirmed summary disposition for defendant on plaintiff’s contract breach claim. He contended “defendant violated the covenant of good faith and fair dealing.” The question was whether it “exercised authority granted by the parties’ agreement in a manner that deprived” him of a contractual benefit. He asserted that “defendant failed to provide him with a 2023 sales target and then fired him for failing to meet” it. The court found that the evidence did not support this claim. He “was terminated before defendant typically distributed annual targets.” The record also showed that it relied on his “failure to generate sufficient sales during 2021 and 2022. More importantly, defendant’s offer of employment expressly provided that plaintiff’s employment was at will. It also stated that variable compensation was not guaranteed and was subject to change. The implied covenant cannot transform those provisions into a promise of continued employment or guaranteed variable compensation.” The parties’ dispute over whether a compensation plan was final was immaterial. Even “accepting plaintiff’s testimony about the plan’s status, no reasonable fact-finder could conclude that defendant withheld compensation” he earned under either the disputed 2022 plan or the lower threshold he acknowledged. As to his unattainable sales targets claim, he had to offer some evidence allowing a reasonable fact-finder to “infer that defendant manipulated his sales targets or terminated him to avoid paying commissions.” He did not. Finally, whether “defendant viewed the targets as compensation thresholds, performance expectations, or both, its decision to end plaintiff’s employment did not violate any express contractual limitation. The covenant of good faith and fair dealing cannot supply the limitation the parties omitted.” As to his condition precedent/performance prevention argument, the prevention doctrine did “not excuse his failure to satisfy the requirements for variable compensation.”

Motion to quash bindover order; Search & seizure; Fourth Amendment; Automobile exception to the warrant requirement; Investigatory traffic stop; Reasonable suspicion; Navarette v California; Terry v Ohio; Parking in the curtilage of one’s home; United States v Dunn; Distinguishing Collins v Virginia; People v Lyons; Attempted seizure initiated on the roadway before defendant turned into his driveway; “Be on the look out” (BOLO)

Concluding that the patrol officer initiated the investigatory stop and seizure of defendant on the roadway, before he turned into his driveway, the court held that the trial court did not abuse its discretion in denying his motion to quash the bindover order. He argued “he was subject to unconstitutional seizure and investigation when the police” seized him in the curtilage of his home, and that he was “entitled to the suppression of any evidence obtained” as a result. In determining whether there was reasonable suspicion for a Terry stop, the court considered all the evidence up to when he “complied with the command to remain in the vehicle. Accordingly, considering the totality of the circumstances, including, but not limited to, defendant driving his vehicle multiple times on the white parking line, nearly striking a curb while turning, his refusal to stop his vehicle until about 9 to 10 seconds after the police cruiser’s flashers were illuminated, and the BOLO call, the officer had reasonable suspicion that defendant was operating his vehicle while intoxicated[.]” The officer testified that defendant stopped his vehicle “in the curtilage of his home.” While defendant relied on Collins, the court found it distinguishable. The officer communicated to him “that he was being seized for purposes of a traffic stop on the roadway, i.e., the attempted seizure was initiated on the public roadway, not in the curtilage[.]” The court concluded “no reasonable person would believe that they were free to leave at the time the officer turned on her overhead lights.” The incident took place late at night with “no other traffic on the road.” Thus, any reasonable person “at that time would have known they were required to pull over to the side of the road as soon as the flashers were illuminated behind them. At that moment, the officer was exercising her lawful authority to stop defendant, just like the officer in Lyons. Instead of complying with the officer, [he] ignored her, pulled into his driveway, and did not stop until he was at the curtilage of his” home. MCL 257.653 very clearly “does not say that a driver may pull into a driveway when the emergency vehicle approaches with flashing lights, it says they must immediately pull to the side of the road and stop.” Affirmed.

Employment contract breach; Implied covenant of good faith & fair dealing; Hammond v United of Oakland, Inc; Kircher v Boyne USA, Inc; Speculation; Condition precedent; Real Estate One v Heller; Prevention of performance

The court held that plaintiff did not identify a contractual benefit that defendant-former employer (1) denied him through a bad-faith exercise of contractual discretion or (2) breached by terminating his employment or later changing its national accounts approach. Thus, it affirmed summary disposition for defendant on plaintiff’s contract breach claim. He contended “defendant violated the covenant of good faith and fair dealing.” The question was whether it “exercised authority granted by the parties’ agreement in a manner that deprived” him of a contractual benefit. He asserted that “defendant failed to provide him with a 2023 sales target and then fired him for failing to meet” it. The court found that the evidence did not support this claim. He “was terminated before defendant typically distributed annual targets.” The record also showed that it relied on his “failure to generate sufficient sales during 2021 and 2022. More importantly, defendant’s offer of employment expressly provided that plaintiff’s employment was at will. It also stated that variable compensation was not guaranteed and was subject to change. The implied covenant cannot transform those provisions into a promise of continued employment or guaranteed variable compensation.” The parties’ dispute over whether a compensation plan was final was immaterial. Even “accepting plaintiff’s testimony about the plan’s status, no reasonable fact-finder could conclude that defendant withheld compensation” he earned under either the disputed 2022 plan or the lower threshold he acknowledged. As to his unattainable sales targets claim, he had to offer some evidence allowing a reasonable fact-finder to “infer that defendant manipulated his sales targets or terminated him to avoid paying commissions.” He did not. Finally, whether “defendant viewed the targets as compensation thresholds, performance expectations, or both, its decision to end plaintiff’s employment did not violate any express contractual limitation. The covenant of good faith and fair dealing cannot supply the limitation the parties omitted.” As to his condition precedent/performance prevention argument, the prevention doctrine did “not excuse his failure to satisfy the requirements for variable compensation.”

Admissibility of evidence arising from a nolo contendere plea under MRE 410(a)(2); Sex Offenders Registration Act (SORA) registration; Parental-rights termination order; Lichon v American Universal Ins Co; Permissible use of fact of conviction; Impeachment under MRE 609; MCL 768.27a(1); MRE 401, 403, & 404(b); Harmless error

The court held that the trial court did not abuse its discretion by excluding evidence of defendant-father’s CSC IV conviction, SORA registration, and termination of parental rights because plaintiff-mother sought to use those consequences of his nolo contendere plea as substantive proof that he sexually abused AC, a use prohibited by MRE 410(a)(2). He had pled nolo contendere to CSC IV after being charged based on the same alleged abuse underlying plaintiff’s civil claims for assault, battery, and intentional infliction of emotional distress. As a result, he registered as a Tier III sex offender and later voluntarily consented to termination of his parental rights under MCL 712A.19b(3)(m). Before trial, plaintiff sought to admit the conviction, SORA registration, and termination order to show that defendant had molested AC. The trial court excluded the evidence under MRE 410, and the jury found defendant not liable. On appeal, the court concluded that plaintiff’s proposed use of the evidence was impermissible. Although a conviction resulting from a nolo contendere plea may sometimes be admitted when “the fact of conviction” is itself legally significant, plaintiff sought to use the evidence to prove the underlying misconduct. The court explained this “amounted to the impermissible collateral use of defendant’s plea as an admission of misconduct, which MRE 410 prohibits.” It further emphasized that, at “bottom, plaintiff sought to present defendant’s conviction, his SORA registration, and the order terminating his parental rights as proof of an admission that he sexually molested his daughter.” Those proofs therefore constituted “‘evidence of’ defendant’s nolo contendere plea” whose proposed use was barred by MRE 410. Plaintiff’s new impeachment theory was waived and, in any event, she did not show that CSC IV satisfied MRE 609. The court also rejected her reliance on MCL 768.27a because that provision applies to criminal cases. Finally, plaintiff failed to show that any error was outcome determinative given the evidence actually presented to the jury. Affirmed.

Summary disposition under MCR 2.116(C)(7) & (I)(1); Sua sponte dismissal; Notice & meaningful opportunity to be heard; Settlement enforcement; Res judicata; Foster v Foster; Adair v State; Dismissal with prejudice; Collateral attack on consent judgment; Same parties or privies; Same transaction; Premature summary disposition

The court held that res judicata barred plaintiff-former priest’s claims for unpaid compensation and related relief, and that the trial court properly dismissed the claims against defendant-parish even though it filed only a concurrence in defendant-Archdiocese’s dispositive motions. Plaintiff served as priest of the parish from approximately 2012 through 2016 and claimed it owed him salary, a housing allowance, and expenses. A 2015 parish resolution purportedly transferred a parish house to him as payment, but the Archdiocese disputed the transfer. In a 2017 action over the property and parish control, plaintiff counterclaimed for unpaid compensation and related expenses. The parties later executed a binding settlement requiring dismissal of the complaint and counterclaim with prejudice, and a consent judgment returned title to the church. Plaintiff filed this action in 2021 seeking compensation again. The trial court dismissed the claims against both defendants. On appeal, the court first rejected plaintiff’s argument that the parish could not obtain summary disposition without filing its own motion. Because its concurrence expressly adopted the Archdiocese’s motions and plaintiff had notice and an opportunity to respond, “[e]ven if the concurrence did not independently satisfy the requirements for a motion, MCR 2.116(I)(1) permitted the trial court to enter judgment in favor of St. Simon.” Turning to res judicata, the court found all three elements satisfied. The prior action was decided on the merits because “[a] voluntary dismissal with prejudice is treated as a decision on the merits for purposes of res judicata.” Plaintiff’s attacks on the authority of parish representatives, entity names, and alleged fraud constituted an impermissible collateral attack on the consent judgment. The same-party-or-privity requirement was also met. Even assuming St. Simon and St. Simeon were technically different legal entities, “the parish in the 2017 action represented the same legal rights that St. Simon asserts here,” and the entities were in privity. Finally, the present claims arose from the same transaction. “A new calculation of damages or a different legal theory, . . . does not create a new transaction.” The loss of the parish house merely changed plaintiff’s asserted damages or means of payment and “did not create a new claim arising from a different transaction.” The court also rejected his prematurity argument because “he has not identified any discovery that could alter the preclusion analysis.” Affirmed.

First Amendment retaliation under 42 USC § 1983; Causation; No-probable-cause rules; Hartman v Moore; Nieves v Bartlett; Criminal citations; Civil parking enforcement; Qualified immunity; Municipal liability under Monell v Department of Soc Servs; Selective-enforcement claims forfeiture; Prior restraint; Permit discretion; Thomas v Chicago Park Dist; Fourth Amendment unreasonable seizure; Community-caretaking impoundment; Standardized criteria

The court held that plaintiff’s First Amendment retaliation claims against defendant-mayor (King), defendant-chief of staff (Smedley), and defendant-City should be revived, while defendant-police chief (Gardner) was entitled to qualified immunity and the remaining constitutional claims failed. Plaintiff-resident (Fambrough) used a sound truck registered to plaintiff-company to broadcast political messages criticizing East Cleveland’s administration and supporting the mayor’s opponent. City officials subsequently enforced parking and noise ordinances against him, impounded the truck, and prosecuted the noise violation. The district court resolved all claims for defendants. On appeal, the court first clarified the causation rules governing the retaliation claims. It concluded that Hartman governed the noise prosecution, Nieves governed the noise citation, and neither rule governed the civil parking citation or impoundment. It explained that “issuing a citation is more like an arrest than a prosecutor’s decision to bring charges” and it “decline[d] to extend either Hartman or Nieves to the parking-related actions here.” As to King and Smedley, plaintiff plausibly alleged an absence of probable cause for noise enforcement and retaliatory causation for the parking actions. The court concluded, taking “Fambrough’s allegations as true, no reasonable official in King’s or Smedley’s position would believe that he was acting lawfully.” As to theCity, the court found plaintiff “raised a genuine dispute of material fact on whether City officials’ retaliatory motive led to the adverse actions.” It vacated and remanded the municipal-liability claim because the district court had not determined whose decisions constituted official policy and directly caused the violation. Gardner, however, received qualified immunity because “we’ve never held that the defendant’s knowledge of another’s retaliatory intent imputes that intent on to the defendant’s actions.” The court also concluded that plaintiff forfeited his selective-enforcement claims by failing to develop them. It rejected the facial prior-restraint challenge because the permit standard “isn’t so vague that the decision to grant or deny an application is left ‘to the whim of the administrator.’” Finally, it affirmed summary disposition on the Fourth Amendment claim. Because the truck was illegally parked on a residential street, “the police had an objective justification for impounding” it, and the city’s impoundment policy was “sufficiently standardized.” Reversed in part, affirmed in part, vacated in part, and remanded.

Admissibility of evidence arising from a nolo contendere plea under MRE 410(a)(2); Sex Offenders Registration Act (SORA) registration; Parental-rights termination order; Lichon v American Universal Ins Co; Permissible use of fact of conviction; Impeachment under MRE 609; MCL 768.27a(1); MRE 401, 403, & 404(b); Harmless error

The court held that the trial court did not abuse its discretion by excluding evidence of defendant-father’s CSC IV conviction, SORA registration, and termination of parental rights because plaintiff-mother sought to use those consequences of his nolo contendere plea as substantive proof that he sexually abused AC, a use prohibited by MRE 410(a)(2). He had pled nolo contendere to CSC IV after being charged based on the same alleged abuse underlying plaintiff’s civil claims for assault, battery, and intentional infliction of emotional distress. As a result, he registered as a Tier III sex offender and later voluntarily consented to termination of his parental rights under MCL 712A.19b(3)(m). Before trial, plaintiff sought to admit the conviction, SORA registration, and termination order to show that defendant had molested AC. The trial court excluded the evidence under MRE 410, and the jury found defendant not liable. On appeal, the court concluded that plaintiff’s proposed use of the evidence was impermissible. Although a conviction resulting from a nolo contendere plea may sometimes be admitted when “the fact of conviction” is itself legally significant, plaintiff sought to use the evidence to prove the underlying misconduct. The court explained this “amounted to the impermissible collateral use of defendant’s plea as an admission of misconduct, which MRE 410 prohibits.” It further emphasized that, at “bottom, plaintiff sought to present defendant’s conviction, his SORA registration, and the order terminating his parental rights as proof of an admission that he sexually molested his daughter.” Those proofs therefore constituted “‘evidence of’ defendant’s nolo contendere plea” whose proposed use was barred by MRE 410. Plaintiff’s new impeachment theory was waived and, in any event, she did not show that CSC IV satisfied MRE 609. The court also rejected her reliance on MCL 768.27a because that provision applies to criminal cases. Finally, plaintiff failed to show that any error was outcome determinative given the evidence actually presented to the jury. Affirmed.