Jurisdiction over a claim of appeal under the Administrative Procedures Act (APA); “Contested case” (MCL 24.203(3)); “Final decision or order”; MCL 24.285; Federal Housing Choice Voucher (HCV) program; Department of Housing & Urban Development (HUD) regulations; Deficiencies as to the Michigan State Housing Development Authority’s (MSHDA) basis for termination & notice; Due process; Public housing agency (PHA)

[This opinion was previously issued as an unpublished opinion on 7/30/26.] The court held that the circuit court erred in dismissing plaintiff-Frye’s claim of appeal for lack of jurisdiction under the APA, and that additional evidence needed to be taken before the agency as to whether she “received sufficient proper notice and was entitled to an informal hearing.” The case arose from defendant-MSHDA’s termination of Frye from the federal HCV program subsidizing rent for low-income individuals. The court first concluded that the circuit court erred in determining there was no contested case. Because “HUD regulations require the PHA to give a participant an opportunity for an informal hearing before terminating housing assistance,” this was a contested case under the APA. In addition, the “APA provides for judicial review in a contested case when a person is aggrieved by a ‘final decision or order.’” In this case, “MSHDA’s counsel clearly stated that MSHDA’s denial of Frye’s request for an informal hearing was its final decision[.]” The court found that “Frye exhausted all available administrative remedies and was aggrieved by MSHDA’s final decision to deny her an informal hearing regarding its termination of her housing assistance in this contested case.” Thus, the circuit court erred in concluding “it did not have jurisdiction to review this matter.” The court also agreed with Frye that the circuit court erred in refusing to review it because the record revealed deficiencies as to “MSHDA’s basis for termination and the notice allegedly provided.” She asserted “that she did not receive the termination notice and thus she could not timely request an informal hearing.” And even assuming there was evidence that the notice was sent to her on 9/13/22, there was a dispute whether it was proper. It stated that her rental assistance was terminated “13 days before the notice was issued.” There was also a dispute whether she “violated any specific program rules regarding use and occupancy of the rental unit.” Reversed and remanded.

Administrative rule challenge; MI Admin Code R 169.28 & 168.314; Exhaustion of administrative remedies; MCL 24.264; Warren Consol Sch Dist v School Dist of Hazel Park; Laches; Election-related civil action; MCL 691.1031; Unclean hands; Candidate affidavit of identity (AOI); False statements; MCL 168.558(4); Michigan Campaign Finance Act (MCFA); Campaign statements; MCL 169.233(1)(c); MCL 169.235(1); Committee dissolution statement; MCL 169.224(7); Late filing fees; MCL 169.233(7); MI Admin Code R 169.4; Mandamus; Declaratory relief

The court held that the Court of Claims properly dismissed plaintiff’s administrative-rule challenges for failure to exhaust administrative remedies and laches, and properly rejected his claim that the nonparty-candidate’s (M) AOI contained false statements. Plaintiff challenged M’s eligibility to appear on the November 2026 ballot, asserting her AOI was false because of unresolved campaign-finance statements and late fees from a prior judicial campaign. The Court of Claims granted summary disposition to defendant. On appeal, the court first held that plaintiff failed to exhaust administrative remedies as to his challenges to two administrative rules, Rule 169.28 and Rule 168.314, because MCL 24.264 requires a party to “first” request a declaratory ruling from the agency, and plaintiff’s same-day demand for a ruling within hours did not show the agency failed to act “expeditiously.” The court also held that laches barred those claims because plaintiff recognized the emergency election deadlines but delayed adding new claims, which “nullif[ied] work already performed at public expense” and left the courts little time for review. As to the AOI, the court held that M’s campaign-statement certification was accurate when signed because she had filed late reports before executing the AOI, and the MCFA does not bar late filing. It also held that M’s late-fee certification was accurate because although the underlying late filings had occurred, the fee had not yet been assessed, and she therefore had not yet been “commanded or compelled to pay” it. Affirmed.

Fourteenth Amendment substantive due process claim; 42 USC § 1983 action by a pretrial detainee for deliberate indifference; Farmer v Brennan; Brawner v Scott Cnty; Kingsley v Hendrickson; Westmoreland v Butler Cnty; Conditions-of-confinement claims; Failure to protect; Subjective or objective standard; Municipal liability; Monell v Department of Soc Servs

In an en banc opinion, the court held that Farmer’s subjective deliberate-indifference standard continues to be the proper one for evaluating pretrial detainee conditions-of-confinement claims, including plaintiff-Poynter’s failure to protect claim. Because the district court applied Westmoreland in considering defendants’ summary judgment motion, the court vacated its order granting their motion, and remanded for the district court to consider whether plaintiff’s claim was viable under Farmer. The original panel on appeal applied the objective-reasonableness-only standard in reversing the district court. The court “granted rehearing en banc to consider whether Farmer or Kingsley should govern Fourteenth Amendment deliberate-indifference claims.” Plaintiff suffered a traumatic brain injury when he was attacked by two cellmates after he was arrested for civil contempt of court. He alleged that by allowing them to stay in the general population, despite their lengthy histories of violence, defendant-County was deliberately indifferent to his safety. The court concluded that, in assessing “whether a pretrial detainee had been punished by the state, we asked the following: Was there a ‘substantial risk of serious harm’ the state knew about and disregarded? If not, the state has not been deliberately indifferent to the detainee’s conditions of confinement. Farmer’s subjective-knowledge requirement plays an important gatekeeping role in this substantive-due-process setting.” It found that cases interpreting Brawner had “discarded a subjective inquiry in favor of an objective-reasonableness-only approach that lowers the threshold of constitutional liability perilously close to negligence—the very thing all of us otherwise seem to agree is insufficient for constitutional liability.” The court determined that “until the Supreme Court says otherwise, Farmer’s recognition of a right against a jailer’s subjective decision to punish” is binding. The district court’s application of Westmoreland here “potentially changed the course of the litigation,” and the parties agreed that vacating and remanding was a permissible course if the court discarded Brawner.

Fourteenth Amendment substantive due process claim; 42 USC § 1983 action by a pretrial detainee for deliberate indifference; Farmer v Brennan; Brawner v Scott Cnty; Kingsley v Hendrickson; Westmoreland v Butler Cnty; Conditions-of-confinement claims; Failure to protect; Subjective or objective standard; Municipal liability; Monell v Department of Soc Servs

In an en banc opinion, the court held that Farmer’s subjective deliberate-indifference standard continues to be the proper one for evaluating pretrial detainee conditions-of-confinement claims, including plaintiff-Poynter’s failure to protect claim. Because the district court applied Westmoreland in considering defendants’ summary judgment motion, the court vacated its order granting their motion, and remanded for the district court to consider whether plaintiff’s claim was viable under Farmer. The original panel on appeal applied the objective-reasonableness-only standard in reversing the district court. The court “granted rehearing en banc to consider whether Farmer or Kingsley should govern Fourteenth Amendment deliberate-indifference claims.” Plaintiff suffered a traumatic brain injury when he was attacked by two cellmates after he was arrested for civil contempt of court. He alleged that by allowing them to stay in the general population, despite their lengthy histories of violence, defendant-County was deliberately indifferent to his safety. The court concluded that, in assessing “whether a pretrial detainee had been punished by the state, we asked the following: Was there a ‘substantial risk of serious harm’ the state knew about and disregarded? If not, the state has not been deliberately indifferent to the detainee’s conditions of confinement. Farmer’s subjective-knowledge requirement plays an important gatekeeping role in this substantive-due-process setting.” It found that cases interpreting Brawner had “discarded a subjective inquiry in favor of an objective-reasonableness-only approach that lowers the threshold of constitutional liability perilously close to negligence—the very thing all of us otherwise seem to agree is insufficient for constitutional liability.” The court determined that “until the Supreme Court says otherwise, Farmer’s recognition of a right against a jailer’s subjective decision to punish” is binding. The district court’s application of Westmoreland here “potentially changed the course of the litigation,” and the parties agreed that vacating and remanding was a permissible course if the court discarded Brawner.

The Racketeer Influenced & Corrupt Organizations Act (RICO); Sufficiency of the evidence; RICO conspiracy; Jury instruction; Indictment match; Charges related to a kidnapping & murder; Drug & money-laundering conspiracy; Distribution, possession, & conspiracy charges; Benefit required by the kidnapping statute; Violent Crimes in Aid of Racketeering (VICAR) statute; Jury empaneling; Expert testimony; Plain error review; FRE 403; Harmless error; Trial delay; Confrontation Clause; Mistrial motion; Severance; Prejudice; Theory-of-defense instruction; Constructive amendment; Duplicity; Nexus to interstate commerce; New trial motion; Pronouncement of sentence; Procedural reasonableness; Base offense level; Money laundering, leadership, & drug premises enhancements; Manager or supervisor enhancement; Substantive reasonableness; Effect of a within Guidelines sentence

In this RICO case involving a 75-count indictment and 7 defendants, the court held that there was sufficient evidence to support convictions of (among other things) RICO conspiracy; kidnapping and murder in aid of racketeering; drug and money-laundering conspiracy; distribution and possession with intent to distribute Oxymorphone; and convictions under the VICAR. It rejected their challenges related to the trial and its procedures under the plain error standard, and to their sentences. Defendants-Forrester, Frazier, Hern, Santiago, Stanley, Boylston, and Meyerholz were members or associates of a Tennessee chapter of the Mongols Motorcycle Club. On appeal, the court first upheld the RICO conspiracy convictions of Boylston, Frazier, Meyerholz, and Santiago. As to whether there was sufficient evidence of a criminal enterprise, it agreed “with the district court that defendants did ‘not come close to even raising a question about whether the Clarksville Mongols were functioning as an enterprise in the Spring of 2015.’” Further, the court has previously held that “‘an agreement to associate with and participate in a yet-to-be-formed racketeering enterprise that would affect interstate commerce constitutes a completed’ RICO conspiracy.” Finally, much of the group’s “criminal activity either affected interstate commerce or was conducted in interstate commerce.” Defendants’ issues related to the trial included a Confrontation Clause claim due to a three-week delay between direct and cross-examinations of a witness (H). The court focused on their ability to conduct cross-examination. Defense counsel was given “‘wide latitude’” to question H, which normally satisfies the right to confrontation. “And the cross-examinations gave the jury the information necessary to assess the defense’s theory of the case through an interrogation of [H’s] credibility, motives, and possible bias. So, no violation occurred.” The court noted that “jurors might be more likely to remember the more-recently presented cross than the three-week-old direct when they enter deliberations.” As to sentencing, the court rejected the challenges related to “the pronouncement of Frazier’s sentence,” procedural reasonableness, and substantive reasonableness. Affirmed.

Motion to suppress; Fourth Amendment; Investigatory stop; Reasonable suspicion; Flight risk; Handcuffing during stop; United States v Jacob; Search incident to arrest; Vehicle search; Arizona v Gant; Reasonable belief evidence of crime of arrest will be found; Stalking; 18 USC § 2261A; Possession of unregistered firearm silencer; 26 USC §§ 5861(d) & 5871; 18 USC § 921(a)(3)(C); Forfeiture; Magistrate judge’s report & recommendation

The court held that officers did not unlawfully arrest defendant by handcuffing him during an investigatory stop and that the vehicle search was justified as a search incident to arrest. He was charged with possession of an unregistered firearm silencer and stalking after officers stopped him in a Kroger parking lot near the workplace of his estranged wife, saw binoculars and a gun magazine in his vehicle, and then found firearms, including one with a silencer. The district court denied his motion to suppress, and he pled guilty to the silencer count. On appeal, the court first held that the initial handcuffing did not convert the stop into an arrest. It reasoned the officer had reasonable suspicion because he knew of a “possible domestic situation” and “possibly a factor of stalking,” and he reasonably believed defendant was a flight risk because call notes stated he would flee, his vehicle briefly backed up, and he did not immediately comply with commands. Thus, the handcuffing was “a reasonable use of force.” The court next held that the vehicle search was valid because, after defendant was arrested for stalking, it was reasonable to believe the vehicle contained evidence of stalking. It concluded the binoculars alone were enough, explaining the issue was “not a close call” because they were on the center console, were discovered shortly after defendant had driven near the victim’s workplace, and were unlikely to have an innocent use in a Kroger parking lot. The court rejected his challenge to the district court’s interpretation of testimony about binoculars because the issue was forfeited and, in any event, the relevant question was whether the binoculars provided a “reasonable basis to believe” the vehicle contained other evidence of stalking. Affirmed.

Administrative rule challenge; MI Admin Code R 169.28 & 168.314; Exhaustion of administrative remedies; MCL 24.264; Warren Consol Sch Dist v School Dist of Hazel Park; Laches; Election-related civil action; MCL 691.1031; Unclean hands; Candidate affidavit of identity (AOI); False statements; MCL 168.558(4); Michigan Campaign Finance Act (MCFA); Campaign statements; MCL 169.233(1)(c); MCL 169.235(1); Committee dissolution statement; MCL 169.224(7); Late filing fees; MCL 169.233(7); MI Admin Code R 169.4; Mandamus; Declaratory relief

The court held that the Court of Claims properly dismissed plaintiff’s administrative-rule challenges for failure to exhaust administrative remedies and laches, and properly rejected his claim that the nonparty-candidate’s (M) AOI contained false statements. Plaintiff challenged M’s eligibility to appear on the November 2026 ballot, asserting her AOI was false because of unresolved campaign-finance statements and late fees from a prior judicial campaign. The Court of Claims granted summary disposition to defendant. On appeal, the court first held that plaintiff failed to exhaust administrative remedies as to his challenges to two administrative rules, Rule 169.28 and Rule 168.314, because MCL 24.264 requires a party to “first” request a declaratory ruling from the agency, and plaintiff’s same-day demand for a ruling within hours did not show the agency failed to act “expeditiously.” The court also held that laches barred those claims because plaintiff recognized the emergency election deadlines but delayed adding new claims, which “nullif[ied] work already performed at public expense” and left the courts little time for review. As to the AOI, the court held that M’s campaign-statement certification was accurate when signed because she had filed late reports before executing the AOI, and the MCFA does not bar late filing. It also held that M’s late-fee certification was accurate because although the underlying late filings had occurred, the fee had not yet been assessed, and she therefore had not yet been “commanded or compelled to pay” it. Affirmed.

Disputes over nominating petitions; MCL 168.552; Mandamus; Holliday v Board of State Canvassers; Distinguishing Wilcoxon v City of Detroit Election Comm’n & Protecting MI Taxpayers v Board of State Canvassers; Qualified voter file (QVF)

In this dispute over nominating petitions and placement on the November ballot, the court held that plaintiff-candidate failed to show she was entitled to the extraordinary mandamus remedy. Thus, it affirmed the trial court’s denial of that requested relief. Plaintiff sought to be included on the ballot as a candidate for a seat on the Wayne County Probate Court. She submitted 5,494 signatures on her nominating petitions, but after a review defendant-Wayne County Clerk determined that the “petitions were not supported by at least” the required 4,000 valid elector signatures. Defendant ultimately found a total of 3,432 valid signatures. On appeal, the court noted that MCL 168.552 provides the procedures for investigating and resolving nominating petition disputes. While plaintiff disputed “the findings of the Clerk and her staff, her mere supposition that the signature comparison and review might not have actually occurred as described in the” Clerk’s staff reports was only speculative. To the extent that she disagreed “with the methodology employed by the Clerk and her staff as described in the reports, those critiques are misplaced—at least as an argument concerning entitlement to mandamus, rather than a policy argument directed to the Legislature—given the discretionary nature of the signature-comparison process.” She did not identify any authority supporting “that this methodology failed to account for any mandatory duties of the Clerk and/or her staff.” She also failed to identify “authority establishing that the Clerk had a clear legal duty to provide particular documents or information in support of her determination beyond what the record presently reflects, or to afford plaintiff access to the QVF for purposes of having her own expert conduct an independent signature comparison.” The court noted that she failed to “explain how, in light of the fact-based disputes she has identified, she” could meet her burden of showing she was entitled to the requested writ. It found that the cases on which she relied, Wilcoxon and Protecting MI Taxpayers, were distinguishable and unpersuasive.

Child support arrearage calculation; MCL 552.603; Clarke v Clarke; Malone v Malone; Retroactive modification; MCL 552.605c; Conversion of weekly amounts into monthly amounts; 2025 Michigan Child Support Formula (MCSF) 4.06(A); Determining daily amounts; 2025 MCSF 4.06(B); State disbursement unit; MCL 400.236(1) & (2); Friend of the Court (FOC); Michigan State Disbursement Unit (MiSDU); Michigan Child Support Enforcement System (MCSES)

Holding that the trial court erred in calculating defendant-father’s child support arrearage, the court reversed and remanded. Plaintiff-mother obtained an ex parte interim child-support order in 1988. A later Notice of Arrearage stated defendant had $2,100 in arrearages due. After a temporary support order was entered, the parties divorced in 1989. The judgment provided that all accrued support arrearages were preserved, and set child support at $420 a week. A second 1989 Notice of Arrearage showed that $28,980 had accumulated. In 1990, an order entered in the Virgin Islands where he was living with the two older children ordered defendant to pay plaintiff $350 a month in child support for the youngest child. The parties then agreed to a modified divorce judgment. Before 1999, he paid plaintiff a total of $8,011 in child support, and made no other payments until 2023, when a MCSES report listed a remaining “Payee Balance” of $70,935.64 and a “State Balance” of $2,642.50. The order at issue on appeal calculated that he owed plaintiff $8,774. It “did not mention the ex parte support order, the notices of arrears, the divorce judgment’s preservation of arrears or provisions for custody and support for all three children, or the amounts of total arrears calculated by MCSES or MiSDU.” The original judgment fixed the arrearage amount due before its entry, and “could not properly be retroactively modified.” The only event that could establish the date from which a new amount would apply was the filing of “a petition for modification.” But defendant did not file one “while the support payments were being assessed.” Thus, the support agreement provisions controlled. The rate before the judgment was the same it later set, $420 a week, which was owed from 8/31/89 to 5/31/90. From 6/1/90 to 12/9/90, the Virgin Islands order assessing $350 a month was in effect. The modified judgment with that amount then took effect. The court also found that the trial court erred in calculating the end of the youngest child’s time with plaintiff, in subtracting the amount due to the state from the amount due to plaintiff, and to the extent “it adjusted defendant’s obligation to account for where the children were living at the time.” He had to act “while the payments were being assessed if he wished to change the support order on” that basis.

Medical malpractice; Vicarious liability; Ostensible agency; Independent contractor; Grewe v Mt Clemens Gen Hosp; Emergency-room treatment; Markel v William Beaumont Hosp; Consent form

The court held that plaintiffs established a genuine issue of material fact as to whether defendant-hospital could be vicariously liable for defendant-Dr. Sachwani’s alleged negligence under an ostensible-agency theory. Plaintiffs alleged the hospital was vicariously liable for the doctor’s negligence after the decedent (Nelson) entered its emergency department with a head injury, underwent surgery and a tracheostomy, and later died after bleeding around the tracheostomy site. The trial court granted the hospital summary disposition, ruling plaintiffs failed to show Nelson reasonably believed the doctor was the hospital’s agent. On appeal, the court held that Grewe and Markel required reversal because a patient has a “reasonable belief” that a doctor is the hospital’s agent when the patient “presents for treatment at a hospital emergency room” and is treated by a doctor with no prior relationship unless the hospital “does something to dispel that belief.” The court reasoned it was undisputed Nelson entered through the emergency room, had no prior relationship with the doctor, and was assigned to the doctor while receiving emergency care. Although the consent form said “some physicians” were not agents or employees of the hospital, the court found the language “equally suggests” that some doctors were employees and did not identify which doctors were independent contractors. Thus, a fact question existed whether Nelson was “advised and understood” that the doctor was not the hospital’s agent. Vacated and remanded.

Automobile insurance policy limits; MCL 500.3009(1) & (5); Minimum residual liability limits; Progressive Marathon Ins Co v Espinoza-Solis; Progressive Marathon Ins Co v Pena; State Farm Mut Auto Ins Co v Estate of Fortin; Out-of-state policy; Vehicle registered or principally garaged outside Michigan; Nonresident motor vehicle coverage; MCL 500.3102(1); MCL 500.3131(2); Husted v Dobbs; Policy terms; Meemic Ins Co v Fortson

The court held that defendant-insured’s (Kobir) out-of-state policy with plaintiff-insurer (GEICO) was not required to conform to Michigan’s $250,000/$500,000 default residual liability limits because MCL 500.3009 did not apply to a New York policy covering a New York-registered and principally garaged vehicle. After defendant-Lewis filed the underlying negligence action against Kobir and another defendant, GEICO filed this declaratory action seeking a ruling that Kobir’s New York policy limits were $25,000 per person and $50,000 per occurrence. The trial court granted GEICO summary disposition. On appeal, the court held that the policy’s out-of-state-insurance provision did not increase coverage because it applied only to coverage “required of out-of-state motorists by local law,” and Michigan law required no increase on these facts. The court reasoned that MCL 500.3009 applies only to a policy “delivered or issued for delivery in this state” with respect to a motor vehicle “registered or principally garaged in this state,” while Kobir’s policy was issued in New York and his vehicle was registered and garaged there. It also rejected Lewis’s reliance on Michigan minimum-limit cases because they did not address whether an out-of-state policy covering an out-of-state vehicle must include Michigan’s default limits or an election of lower limits. The court further held that MCL 500.3102(1) did not mandate Michigan no-fault coverage because it applies only if the nonresident vehicle was operated in Michigan “for an aggregate of more than 30 days in any calendar year,” and it was undisputed that Kobir did not meet that threshold. Because neither statute mandated higher coverage, “the terms of his policy control,” leaving the $25,000/$50,000 policy limits in place. Affirmed.

Jurisdiction over a claim of appeal under the Administrative Procedures Act (APA); “Contested case” (MCL 24.203(3)); “Final decision or order”; MCL 24.285; Federal Housing Choice Voucher (HCV) program; Department of Housing & Urban Development (HUD) regulations; Deficiencies as to the Michigan State Housing Development Authority’s (MSHDA) basis for termination & notice; Due process; Public housing agency (PHA)

[This opinion was previously issued as an unpublished opinion on 7/30/26.] The court held that the circuit court erred in dismissing plaintiff-Frye’s claim of appeal for lack of jurisdiction under the APA, and that additional evidence needed to be taken before the agency as to whether she “received sufficient proper notice and was entitled to an informal hearing.” The case arose from defendant-MSHDA’s termination of Frye from the federal HCV program subsidizing rent for low-income individuals. The court first concluded that the circuit court erred in determining there was no contested case. Because “HUD regulations require the PHA to give a participant an opportunity for an informal hearing before terminating housing assistance,” this was a contested case under the APA. In addition, the “APA provides for judicial review in a contested case when a person is aggrieved by a ‘final decision or order.’” In this case, “MSHDA’s counsel clearly stated that MSHDA’s denial of Frye’s request for an informal hearing was its final decision[.]” The court found that “Frye exhausted all available administrative remedies and was aggrieved by MSHDA’s final decision to deny her an informal hearing regarding its termination of her housing assistance in this contested case.” Thus, the circuit court erred in concluding “it did not have jurisdiction to review this matter.” The court also agreed with Frye that the circuit court erred in refusing to review it because the record revealed deficiencies as to “MSHDA’s basis for termination and the notice allegedly provided.” She asserted “that she did not receive the termination notice and thus she could not timely request an informal hearing.” And even assuming there was evidence that the notice was sent to her on 9/13/22, there was a dispute whether it was proper. It stated that her rental assistance was terminated “13 days before the notice was issued.” There was also a dispute whether she “violated any specific program rules regarding use and occupancy of the rental unit.” Reversed and remanded.

Disputes over nominating petitions; MCL 168.552; Mandamus; Holliday v Board of State Canvassers; Distinguishing Wilcoxon v City of Detroit Election Comm’n & Protecting MI Taxpayers v Board of State Canvassers; Qualified voter file (QVF)

In this dispute over nominating petitions and placement on the November ballot, the court held that plaintiff-candidate failed to show she was entitled to the extraordinary mandamus remedy. Thus, it affirmed the trial court’s denial of that requested relief. Plaintiff sought to be included on the ballot as a candidate for a seat on the Wayne County Probate Court. She submitted 5,494 signatures on her nominating petitions, but after a review defendant-Wayne County Clerk determined that the “petitions were not supported by at least” the required 4,000 valid elector signatures. Defendant ultimately found a total of 3,432 valid signatures. On appeal, the court noted that MCL 168.552 provides the procedures for investigating and resolving nominating petition disputes. While plaintiff disputed “the findings of the Clerk and her staff, her mere supposition that the signature comparison and review might not have actually occurred as described in the” Clerk’s staff reports was only speculative. To the extent that she disagreed “with the methodology employed by the Clerk and her staff as described in the reports, those critiques are misplaced—at least as an argument concerning entitlement to mandamus, rather than a policy argument directed to the Legislature—given the discretionary nature of the signature-comparison process.” She did not identify any authority supporting “that this methodology failed to account for any mandatory duties of the Clerk and/or her staff.” She also failed to identify “authority establishing that the Clerk had a clear legal duty to provide particular documents or information in support of her determination beyond what the record presently reflects, or to afford plaintiff access to the QVF for purposes of having her own expert conduct an independent signature comparison.” The court noted that she failed to “explain how, in light of the fact-based disputes she has identified, she” could meet her burden of showing she was entitled to the requested writ. It found that the cases on which she relied, Wilcoxon and Protecting MI Taxpayers, were distinguishable and unpersuasive.

Medical malpractice; Vicarious liability; Ostensible agency; Independent contractor; Grewe v Mt Clemens Gen Hosp; Emergency-room treatment; Markel v William Beaumont Hosp; Consent form

The court held that plaintiffs established a genuine issue of material fact as to whether defendant-hospital could be vicariously liable for defendant-Dr. Sachwani’s alleged negligence under an ostensible-agency theory. Plaintiffs alleged the hospital was vicariously liable for the doctor’s negligence after the decedent (Nelson) entered its emergency department with a head injury, underwent surgery and a tracheostomy, and later died after bleeding around the tracheostomy site. The trial court granted the hospital summary disposition, ruling plaintiffs failed to show Nelson reasonably believed the doctor was the hospital’s agent. On appeal, the court held that Grewe and Markel required reversal because a patient has a “reasonable belief” that a doctor is the hospital’s agent when the patient “presents for treatment at a hospital emergency room” and is treated by a doctor with no prior relationship unless the hospital “does something to dispel that belief.” The court reasoned it was undisputed Nelson entered through the emergency room, had no prior relationship with the doctor, and was assigned to the doctor while receiving emergency care. Although the consent form said “some physicians” were not agents or employees of the hospital, the court found the language “equally suggests” that some doctors were employees and did not identify which doctors were independent contractors. Thus, a fact question existed whether Nelson was “advised and understood” that the doctor was not the hospital’s agent. Vacated and remanded.

Jurisdiction; MCL 712A.2(b)(1); Adequate factual findings; Removal; MCL 712A.13a(9); MCR 3.965(C)(2)

Holding that the evidence supported the assumption of jurisdiction over the child and that MCL 712A.13a(9)’s conditions were satisfied, the court affirmed the trial court’s order authorizing the petition under MCL 712A.2(b) and removing the child from respondent-mother’s custody. On appeal, respondent first challenged the adequacy of the trial court’s factual findings to support authorizing the petition. The trial court found “that respondent having custody of the child presented a substantial risk of harm to the child’s life, physical health, and mental well-being. [It] considered the information from all of the testimony and evidence that was introduced at the preliminary hearing,” which included “that respondent was using THC and ecstasy while the child was in utero, that [she] was placed into involuntary mental-health treatment one month prior to the child’s birth, that [she] was given a psychological evaluation six months before the child’s birth, and that [she] had other children with whom she was only allowed to have supervised parenting time.” The child also tested positive for THC at birth. The court was “not left with a firm and definite conviction that” the trial court made a mistake in authorizing the petition and taking jurisdiction based on the evidence indicating “respondent was engaged in conduct that did not appropriately account for the well-being of the child.” As to the child’s removal, the trial court addressed MCL 712A.13a(9)(a)-(e). It “recorded its contrary-to-welfare findings on the order itself. [Its] removal order detailed numerous factors supporting that maintaining custody of the child with respondent would present a substantial risk of harm to the child.” It also did not clearly err in finding that no option other than removal “would safeguard the child from risk of harm.” And the court was not convinced that a mistake was made in the trial court’s findings that MCL 712A.13a(9)(c), (d), and (e) were also met.