Breach of warranty of title; MCL 565.151; McCausey v Oliver; Breach of contract; Bank of Am v First Am Title Ins Co; Fraud; The economic-loss doctrine; Sullivan Indus, Inc v Double Seal Glass Co, Inc; The Seller Disclosure Act; Bergen v Baker; Reformation; Johnson Family Ltd P’ship v White Pines Wireless; Mutual mistake; Attorney fees under the warranty deed; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Fagerberg v LeBlanc; Discovery sanctions; MCR 2.302; MCR 2.401

The court held that the trial court properly granted summary disposition on the warranty-of-title claim but erred by awarding attorney fees on all claims and by denying summary disposition to third-party-defendant-Goodman on the breach-of-contract claim. The case arose from a long-running boundary dispute. In 2016, Goodman and her now-deceased husband sold property to defendants, the Sywaks, by warranty deed. After the sale, the Sywaks’ neighbor, plaintiff-Wehner, sued over a strip of land between driveways. Goodman executed an affidavit acknowledging acquiescence to Wehner’s use. The Sywaks and Wehner later entered a consent judgment establishing a new boundary and permanently enjoining trespass. The Sywaks then pursued a variety of claims against Goodman. The trial court granted summary disposition for the Sywaks, later entering judgment against Goodman for $100,000 in attorney fees. On appeal, the court first agreed that summary disposition for the Sywaks was proper on the warranty-of-title claim. Because Wehner’s claims and Goodman’s affidavit led to the Sywaks being “legally dispossessed of a portion of the property that was conveyed to them,” there was “an eviction and a breach of the covenant of warranty.” But the panel reversed as to breach of contract, concluding that attorney fees were not available under the clause requiring Goodman to vacate the entirety of the property. She did not fail to vacate, and attorney fees were not “warranted under the above contract provision.” As to fraud, the court rejected Goodman’s reliance on the economic-loss doctrine, noting it applies to “transactions in goods” under the UCC, not land. It further held that the Seller Disclosure Act imposed “a separate and distinct duty” apart from the contract, and Goodman’s disclosure statement, later contradicted by her affidavit, supported the fraud claim. The panel also upheld dismissal of Goodman’s reformation counterclaim, finding no mutual mistake. “[T]he Sywaks believed that they were receiving the full 1.08 acres. Goodman did not share that belief.” Turning to evidentiary issues, the court held that the trial court did not abuse its discretion in admitting late-disclosed attorney-fee documentation and testimony. Goodman had long notice the Sywaks were pursuing fees, and exclusion would have been tantamount to striking damages. Finally, the court vacated the $100,000 attorney-fee award, holding the trial court erred by awarding fees for all claims instead of limiting them to those directly tied to breach of warranty, and by failing to follow the Smith/Pirgu framework. On remand, the trial court must recalculate the award under the proper legal standard. The panel also rejected reliance on Fagerberg, since those damages were not of the type recognized there. Affirmed in part, reversed in part, vacated in part, and remanded.

Whether Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics could be extended to give plaintiff a right to sue for damages; Egbert v Boule; “Context” of the claim; Alternative remedies; Fourth Amendment claim for a warrantless arrest outside the home & in the context of immigration enforcement; Fifth Amendment equal protection claim; Davis v Passman; Fifth Amendment due process deprivation claim; United States Immigration & Customs Enforcement (ICE); The Deferred Action for Childhood Arrivals (DACA)

The court held that plaintiff-Enriquez-Perdomo could not rely on Bivens to establish the right to sue defendants-ICE agents for damages because her Fourth and Fifth Amendment claims constituted “new Bivens contexts” and she had alternative remedies. She entered the U.S. illegally as a child. She received protection under the DACA, which made her order of removal non-enforceable. As an adult, she often visited a local ICE facility to post bond for those in custody. On one visit, ICE detained her “without a warrant or probable cause, despite her DACA status. [She] was then repeatedly moved to different locations across the country until she was finally released eight days later.” She sued the ICE agents for violating her constitutional rights, relying on Bivens to establish her implied federal cause of action. At issue here were her Fourth and Fifth Amendment claims. The district court granted defendants summary judgment. The court explained that a two-step test applied. First, courts must consider whether a case presents a new Bivens situation that is “meaningfully different” from those in which the Supreme Court has implied a damages action. “Importantly, the mere fact that the claim is for a violation of the Fourth or Fifth Amendment does not make [it] similar enough to Bivens or Davis—instead it is the context of the claim that matters.” The Supreme Court has “noted some specific differences to look for in deciding a new context.” Second, if a court finds “a new context, a ‘Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to’” assess whether a damages action should be allowed. One such factor is if “‘Congress already has provided, or has authorized the Executive to provide,’” an alternative remedy. The court held that plaintiff’s Fourth and Fifth Amendment claims “constitute new contexts to which Bivens cannot extend.” Her Fourth Amendment claims were “materially different from those in Bivens” — she was arrested “outside her home and in the context of immigration enforcement.” Further, she had “two alternate remedies—an administrative complaint procedure and habeas[.]” As for her Fifth Amendment claims, the comparator case was Davis. The court held that her equal protection claim also presented a new context where it occurred outside of the employment context and involved “a federal officer of a different rank and in a different branch of government.” Further, the habeas alternative remedy was also available. Finally, she did “not have a valid Bivens cause of action” as to her due process violation claim and “a Fifth Amendment due process claim is clearly a materially different context from a Fifth Amendment equal protection claim.” Also, she had an adequate alternative remedy. Affirmed.

Employment-related claims; Effect of a 180-day limitations period agreed to in an employment application; Rayford v American House Roseville I, LLC

Noting that the trial court in this employment dispute “did not have the benefit of the legal framework” in the Michigan Supreme Court’s recent Rayford decision when it made its ruling here, the court reversed summary disposition for defendant-former employer and remanded. There was no dispute “that plaintiff was terminated from his employment on” 1/11/19 and that he filed this case exactly three years later. The trial court ruled that his “claims were barred by the contractual 180-day limitations period contained in the employment application that plaintiff completed and in which he explicitly agreed to the 180-day limitation period.” The only issue before the court was “whether the contractual 180-day limitation period is valid and enforceable because, if it is, plaintiff’s action was clearly filed well beyond the expiration of this limitation period.” The plaintiff in Rayford “signed an Employee Handbook Acknowledgment one week after she was hired by the defendant. . . . The acknowledgment contained a provision in which the plaintiff agreed that any lawsuit arising out of her employment with the defendant ‘must be filed no more than 180 days after the date of [the] employment action that is the subject of the claim or lawsuit’ and waived any longer statute of limitations that may exist.” She sued defendant a few months short of three years after she was terminated from her employment. The Supreme Court held “‘that the employee here lacked bargaining power when she was presented with a boilerplate employment agreement that contained a shortened limitations period of 180 days. The contract was adhesive and, as a result, warrants close judicial scrutiny of the challenged shortened limitations provision.’” Thus, the Supreme Court remanded the case “‘to the trial court so that the record can be further developed to determine the reasonableness of the shortened limitations period and whether the provision was unconscionable.’”

Child custody dispute; Established custodial environment (ECE); MCL 722.27; Sabatine v Sabatine; Best-interest factors; MCL 722.23; Kuebler v Kuebler; Change of domicile; MCL 722.31; Rains v Rains; Parenting time modification; Shade v Wright

The court held that the trial court did not err in denying defendant-mother’s request to change custody and domicile, in finding that one child had an ECE with both parents, or in modestly adjusting plaintiff-father’s parenting time. The parties never married but shared joint legal and physical custody under a 2017 order providing equal parenting time. In 2023, defendant sought to relocate the children to Ohio with her new fiancé and requested sole physical custody, while plaintiff sought to enforce parenting time after conflicts with his older child, MDL. Following hearings, the trial court found that MDL had an ECE with defendant, but that the younger child, BSL, maintained one with both parents. Thus, defendant bore the burden of proving by clear and convincing evidence that custody and domicile changes were in the children’s best interests. Reviewing the statutory factors under MCL 722.23, the court concluded defendant failed to meet that burden, particularly as to BSL, where many factors either favored plaintiff or were equal. While defendant argued that relocation to Ohio would improve her circumstances, the trial court found the alleged benefits to the children “speculative” and noted the disruption to their ECE and relationship with plaintiff. As to change of domicile, the court applied MCL 722.31 and Rains and determined that defendant did not show the move would improve the children’s quality of life or preserve their relationship with plaintiff, particularly given his ongoing involvement in BSL’s daily care and activities and his efforts to rebuild his bond with MDL. The trial court also modestly increased plaintiff’s parenting time with MDL by three hours every other week, outside the presence of his girlfriend, reasoning that “more frequent contact… will assist in mending their bond.” It denied contempt, makeup parenting time, and a return to equal weeks with MDL, instead preserving the cautious temporary schedule and ordering continued counseling. On appeal, the panel deferred to the trial court’s credibility determinations, rejected defendant’s challenges to the ECE and best-interest findings, and held that the parenting-time adjustment did not alter MDL’s ECE. Affirmed.

Whether Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics could be extended to give plaintiff a right to sue for damages; Egbert v Boule; “Context” of the claim; Alternative remedies; Fourth Amendment claim for a warrantless arrest outside the home & in the context of immigration enforcement; Fifth Amendment equal protection claim; Davis v Passman; Fifth Amendment due process deprivation claim; United States Immigration & Customs Enforcement (ICE); The Deferred Action for Childhood Arrivals (DACA)

The court held that plaintiff-Enriquez-Perdomo could not rely on Bivens to establish the right to sue defendants-ICE agents for damages because her Fourth and Fifth Amendment claims constituted “new Bivens contexts” and she had alternative remedies. She entered the U.S. illegally as a child. She received protection under the DACA, which made her order of removal non-enforceable. As an adult, she often visited a local ICE facility to post bond for those in custody. On one visit, ICE detained her “without a warrant or probable cause, despite her DACA status. [She] was then repeatedly moved to different locations across the country until she was finally released eight days later.” She sued the ICE agents for violating her constitutional rights, relying on Bivens to establish her implied federal cause of action. At issue here were her Fourth and Fifth Amendment claims. The district court granted defendants summary judgment. The court explained that a two-step test applied. First, courts must consider whether a case presents a new Bivens situation that is “meaningfully different” from those in which the Supreme Court has implied a damages action. “Importantly, the mere fact that the claim is for a violation of the Fourth or Fifth Amendment does not make [it] similar enough to Bivens or Davis—instead it is the context of the claim that matters.” The Supreme Court has “noted some specific differences to look for in deciding a new context.” Second, if a court finds “a new context, a ‘Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to’” assess whether a damages action should be allowed. One such factor is if “‘Congress already has provided, or has authorized the Executive to provide,’” an alternative remedy. The court held that plaintiff’s Fourth and Fifth Amendment claims “constitute new contexts to which Bivens cannot extend.” Her Fourth Amendment claims were “materially different from those in Bivens” — she was arrested “outside her home and in the context of immigration enforcement.” Further, she had “two alternate remedies—an administrative complaint procedure and habeas[.]” As for her Fifth Amendment claims, the comparator case was Davis. The court held that her equal protection claim also presented a new context where it occurred outside of the employment context and involved “a federal officer of a different rank and in a different branch of government.” Further, the habeas alternative remedy was also available. Finally, she did “not have a valid Bivens cause of action” as to her due process violation claim and “a Fifth Amendment due process claim is clearly a materially different context from a Fifth Amendment equal protection claim.” Also, she had an adequate alternative remedy. Affirmed.

Breach of warranty of title; MCL 565.151; McCausey v Oliver; Breach of contract; Bank of Am v First Am Title Ins Co; Fraud; The economic-loss doctrine; Sullivan Indus, Inc v Double Seal Glass Co, Inc; The Seller Disclosure Act; Bergen v Baker; Reformation; Johnson Family Ltd P’ship v White Pines Wireless; Mutual mistake; Attorney fees under the warranty deed; Smith v Khouri; Pirgu v United Servs Auto Ass’n; Fagerberg v LeBlanc; Discovery sanctions; MCR 2.302; MCR 2.401

The court held that the trial court properly granted summary disposition on the warranty-of-title claim but erred by awarding attorney fees on all claims and by denying summary disposition to third-party-defendant-Goodman on the breach-of-contract claim. The case arose from a long-running boundary dispute. In 2016, Goodman and her now-deceased husband sold property to defendants, the Sywaks, by warranty deed. After the sale, the Sywaks’ neighbor, plaintiff-Wehner, sued over a strip of land between driveways. Goodman executed an affidavit acknowledging acquiescence to Wehner’s use. The Sywaks and Wehner later entered a consent judgment establishing a new boundary and permanently enjoining trespass. The Sywaks then pursued a variety of claims against Goodman. The trial court granted summary disposition for the Sywaks, later entering judgment against Goodman for $100,000 in attorney fees. On appeal, the court first agreed that summary disposition for the Sywaks was proper on the warranty-of-title claim. Because Wehner’s claims and Goodman’s affidavit led to the Sywaks being “legally dispossessed of a portion of the property that was conveyed to them,” there was “an eviction and a breach of the covenant of warranty.” But the panel reversed as to breach of contract, concluding that attorney fees were not available under the clause requiring Goodman to vacate the entirety of the property. She did not fail to vacate, and attorney fees were not “warranted under the above contract provision.” As to fraud, the court rejected Goodman’s reliance on the economic-loss doctrine, noting it applies to “transactions in goods” under the UCC, not land. It further held that the Seller Disclosure Act imposed “a separate and distinct duty” apart from the contract, and Goodman’s disclosure statement, later contradicted by her affidavit, supported the fraud claim. The panel also upheld dismissal of Goodman’s reformation counterclaim, finding no mutual mistake. “[T]he Sywaks believed that they were receiving the full 1.08 acres. Goodman did not share that belief.” Turning to evidentiary issues, the court held that the trial court did not abuse its discretion in admitting late-disclosed attorney-fee documentation and testimony. Goodman had long notice the Sywaks were pursuing fees, and exclusion would have been tantamount to striking damages. Finally, the court vacated the $100,000 attorney-fee award, holding the trial court erred by awarding fees for all claims instead of limiting them to those directly tied to breach of warranty, and by failing to follow the Smith/Pirgu framework. On remand, the trial court must recalculate the award under the proper legal standard. The panel also rejected reliance on Fagerberg, since those damages were not of the type recognized there. Affirmed in part, reversed in part, vacated in part, and remanded.

Termination under § 19b(3)(c)(i); Children’s best interests

Concluding that § (c)(i) existed and that the trial court did not err by finding termination of respondent-father’s parental rights was in the children’s best interests, the court affirmed. As to § (c)(i), it was “undisputed that more than 182 days elapsed since the initial dispositional order was entered. Moreover, the conditions leading to adjudication included the deplorable conditions in the house and [his] domestic violence.” The record reflected “that the conditions had not been rectified at the time of the termination hearing. Respondent had obtained housing, but it was unfurnished and he lacked sufficient income to support the children. [He] did not have food or other necessities for the children. He was closed out of a program aimed to help him with housing issues for noncompliance.” Further, although respondent “completed an anger management class, he reported that he still had desires to fight people and was not taking his prescribed medication. Moreover, although additional anger management classes were recommended after his release from incarceration, the record reflects that he took himself off of the list.” Given this record, the court was “not left with ‘a definite and firm conviction that a mistake has been committed,’ because ‘the totality of the evidence amply’ supports respondent ‘had not accomplished any meaningful change’ in the conditions that led to adjudication.” The record also supported that “he would be unable to rectify this issue within a reasonable time considering the children’s ages.” The children “had been in care for over a year when respondent’s parental rights were terminated and he had not demonstrated improvement. Instead, he removed himself from an anger management class, continued to want to fight people, and was terminated from services for noncompliance.” Given his “lack of participation in important parts of the reunification plan and his lack of benefit from the services that he did participate in, the trial court did not clearly err by finding that respondent would be unable to rectify the condition in a reasonable time considering the ages of his children.” As to their best interests, they were bonded with the father. However, “both children were bonded with the foster parents, who were willing and able to provide for their needs and to give them stability and permanency.”