Michigan Public Service Commission order granting applications filed by Encana Oil & Gas, Inc. to construct & operate natural gas pipelines; Buggs v. Public Serv. Comm’n (Unpub.); The Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.); State Hwy. Comm’n v. Vanderkloot; Denial of appellants’ second attempt to intervene; Failure to cite supporting authority; Woods v. SLB Prop. Mgmt., LLC; Claim that the PSC in conducting its environmental impact review should have considered the environmental & forest-fragmenting effects in the vicinity of the lines & not simply within the routes & the corridors surrounding the routes; Claim that Encana’s environmental impact assessments were inadequate because they failed to detect the presence of Kirtland Warblers (a bird) in the area; The law of the case doctrine; Reeves v. Cincinnati, Inc. (After Remand); Webb v. Smith (After Second Remand); Ashker v. Ford Motor; Whether the PSC should have considered & found credible information contained in a second affidavit from an individual who averred that he saw dead Kirtland’s Warblers at or near a pipeline construction site

Finding no basis for appellate relief in these consolidated appeals, the court affirmed the order of the Michigan Public Service Commission (PSC) granting applications filed by Encana Oil & Gas to construct and operate natural gas pipelines. Appellants argued that the PSC erred by denying their second attempt to intervene. They asserted that the court’s prior decision vacating the PSC’s previous orders approving the applications for the pipelines vacated the PSC’s previous order denying the first motion to intervene. They also asserted that their interests were affected by the pipelines and they were entitled to intervene on that basis. The court noted that they did not appeal the PSC’s order denying their first motion to intervene. It found that their assertion that by vacating the PSC’s orders granting the applications the court also vacated the PSC’s order denying their motion to intervene was “without factual or legal support. An appellate argument must be supported by citation to appropriate authority or policy.” Also, in the order denying their “second motion to intervene, the PSC reviewed appellants’ position but found that no subsequent developments required it to change its previous conclusion regarding the timeliness of appellants’ motion.” Next, appellants argued that “the PSC, when conducting its environmental impact review, should have considered the environmental and forest-fragmenting effects in the vicinity of the lines and not simply within the routes and the corridors surrounding the routes.” They asserted that “the PSC erred by failing to consider the environmental impact in the vicinity of the pipelines, and cite what they characterize as the ‘federal vicinity rule’ as stated in 18 CFR 380.12(e)(5).” The court held that this argument lacked merit. The PSC conducted proceedings as directed by the court on remand. “Neither MEPA nor the State Hwy Comm’n decision required the PSC to consider the federal vicinity rule when conducting its analysis.” The PSC was required to strictly comply with the court’s instructions on remand and did so. “Nothing more was required.”

Attorney fee award; Calculating a reasonable attorney fee; Smith v. Khouri; Wood v. Detroit Auto. Inter-Ins. Exch.; MRPC 1.5(a); Pirgu v. United Servs. Auto. Ass’n; Whether the trial court’s findings supported a downward adjustment; Principle that the burden of proving the requested amount of fees is reasonable is on the party requesting the fees; Windemere Commons I Ass’n v. O’Brien

Concluding that the trial court sufficiently addressed the Smith framework on remand, and did not clearly err in its findings as to each of the relevant factors under Wood and MRPC 1.5(a), the court held that it did not abuse its discretion by adjusting the requested fees downward. Plaintiff, a nonprofit summer resort owners’ corporation, sued the defendant-estate’s decedent for failure to pay yearly dues and assessments. It obtained a $4,340.65 default judgment. The trial court entered an order allowing installment payments and denying plaintiff’s request for postjudgment attorney fees and costs. In a prior appeal, the court reversed and remanded for the trial court to “determine the reasonableness of the requested attorney fees in accordance with” Smith. On remand, the trial court awarded $4,000 in postjudgment attorney fees. On appeal, plaintiff argued that “the trial court failed to calculate the base number as required by Smith.” While it “did not expressly determine the fee customarily charged in the locality for similar legal services and then multiply that amount by the reasonable number of hours” expended, it found that the hourly rate claimed by plaintiff’s “attorneys was reasonable and that the work was actually performed.” Thus, it appeared to accept “the requested $43,438.38 as the base number. Although express findings would have better facilitated appellate review,” the court found no abuse of discretion in the trial court’s implicit findings. Plaintiff also asserted that it “abused its discretion because it did not expressly consider each and every factor listed in Wood and MRPC 1.5(a).” However, it clearly “expressly considered several factors, but did not consider the factors that it found were not pertinent.” The court again found no abuse of discretion. Finally, plaintiff argued that the trial court’s findings did not support its downward adjustment. The court held that the trial court did not clearly err in determining that the first factor supported a downward adjustment, or in finding that plaintiff’s attorneys “were not precluded from other employment by representing” plaintiff in this case. As to the fourth factor, “the trial court did not clearly err in finding that ‘a rational party does not spend some $44,000 attempting to collection $990.’” Affirmed.

Application of a police department’s “photograph & print” (P&P) policy; 42 USC §§ 1981 & 1983; Alleged Fourth Amendment violation; People v. Slaughter; United States v. Dionisio; Terry v. Ohio; Brief detention for fingerprinting based on a reasonable suspicion; Davis v. Mississippi; Hayes v. Florida; Whether fingerprinting & photographing constitutes a search; United States v. Farias-Gonzalez (11th Cir.); Rowe v Burton (D AK); Whether there is a reasonable expectation of privacy in fingerprints; Nuriel v. Young Women’s Christian Ass’n of Metro. Detroit; Photographing a person as they appear in public; Sponick v. Detroit Police Dep’t; Notice pleading; Johnson v. QFD, Inc.; Dacon v. Transue; Fifth Amendment prohibition on the taking of private property without just compensation; AFT MI v. Michigan; Taking of a person’s “image or likeness”; Battaglieri v. Mackinac Ctr. For Pub. Policy; Property obtained under the police power; Bennis v. Michigan; Qualified immunity; Morden v. Grand Traverse Cnty.; Lavigne v. Forshee; Saucier v. Katz; Pearson v. Callahan; Whether the rights asserted were clearly established; White v. Pauly; Municipal liability; Monell v. New York City Dep’t of Soc. Servs.; Payton v. Detroit; Connick v. Thompson; Motion to strike an expert witness; MRE 702; Elher v. Misra; Kumho Tire Co., Ltd. v. Carmichael; Lenawee Cnty. v. Wagley; MRE 401

Concluding that the constitutional infirmities plaintiff alleged in the P&P procedure and the rights he asserted were not clearly established, the court held that the defendants-police officers were entitled to qualified immunity on his Fourth and Fifth Amendment claims. It also upheld summary disposition for the defendant-city on his municipal liability claim, concluding that the evidence did not show that any alleged violation of his constitutional rights was due to an official municipal custom or policy. Finally, it held that the trial court did not err in granting defendants’ motion to strike plaintiff’s expert witness. The court concluded that it was not clearly established in the law that fingerprinting and photographing someone during “an otherwise valid investigatory stop violates the Fourth Amendment. In fact, prior statements from” the U.S. Supreme Court and the court “suggest that such a procedure would be permissible under the Fourth Amendment if the initial stop was justified by a reasonable suspicion.” As to plaintiff’s claim that the P&P procedure constituted an unlawful taking of his image or likeness without just compensation, the court noted that he did not argue “that the value of his likeness was impaired or that any defendant seized title to his likeness. Defendants did not interfere with” his ability to use his likeness or identity for his benefit or the benefit of others and did not prevent him from “carrying out any future endeavors to benefit from his likeness.” Further, his photos and fingerprints “were obtained under the police power rather than power of eminent domain.” Plaintiff’s attorney admitted to finding no case law “stating that police conduct in photographing and fingerprinting [a] person for investigatory purposes constituted a governmental taking.” The court also concluded that the action plaintiff alleged “to have caused the deprivation of his rights, i.e., a P&P during a field interrogation or stop, did not ‘implement[] or execute[] a policy statement, ordinance, regulation, or decision officially adopted and promulgated’ by” the city. Affirmed.

Breach of contract; Burkhardt v. Bailey; Whether defendant breached the terms of a Memorandum of Understanding & Agreement; Ajax Paving Indus., Inc. v. Vanopdenbosch Constr. Co.; Zurich Ins. Co. v. CCR & Co.; A condition precedent; Archambo v. Lawyers Title Ins. Corp.

Holding it could not find that the trial court erred by concluding that the defendant breached the terms of the Memorandum, the court affirmed the trial court’s order granting plaintiff’s motion for summary disposition and quieting title in the six parcels at issue in favor of plaintiff. The parties are siblings and beneficiaries in three estates of their deceased relatives. Defendant argued that the trial court erred in finding that she breached the terms of the parties’ Memorandum, which was created to resolve their disputes about the distribution of the estates. The parties later signed an addendum to the Memorandum. Plaintiff sued for breach of contract, seeking to enforce the Memorandum and quiet title to the six parcels. Defendant argued that “the trial court erred because the contract did not allow plaintiff to accelerate the payment for the six properties absent plaintiff’s agreement to transfer one of the Lake Orion properties.” Instead, she maintained, “after the upfront payments, the contract required plaintiff to make $50,000 payments every six months and required plaintiff to pay [3%] interest on an annual basis on the remaining amount owed.” Essentially, she argued that there was no acceleration clause in the contract and thus, accelerated payment was not permitted. The court concluded that the contractual language clearly conditioned her “relinquishment of her interest in the properties on plaintiff’s satisfaction of the terms of payment.” It was “undisputed that plaintiff paid defendant $300,000 upfront before any of the six-month installment payments were due.” He argued in the trial court that “he had a certified check for $700,000 prepared for defendant plus a $21,000 interest payment,” but she refused to sign over the deeds. “Plaintiff conceded at oral argument that the contract was, at best, unartfully drafted. The terms and conditions of the agreements are written in such a manner as to be confusing, contradictory and misleading.” The court could not “glean the true intent of the parties, except to conclude that for purposes of this particular case,” nothing in the contract specifically prohibited “plaintiff from tendering the entire amount” owed.

Prosecutorial error; People v. Cooper; People v. Aldrich; People v. Noble; Principle that a prosecutor may argue the evidence & all reasonable inferences arising from it; People v. Thomas; Principle that a prosecutor cannot vouch for the credibility of a witness by implying that he or she has some special knowledge concerning a witness’s truthfulness; People v. Bahoda; Prejudice; People v. Callon; Principle that a prosecutor may not appeal to the jury’s sympathy for the victim; People v. Meissner; Ineffective assistance of counsel; Failure to advance a meritless argument or raise a futile objection; People v. Ericksen; Trial strategy; People v. Unger; People v. Rockey

The court held that the prosecutor did not commit error, and the defendant was not denied the effective assistance of counsel. He was convicted of delivering a controlled substance and sentenced to three months in jail. On appeal, the court rejected his argument that the prosecutor committed error by improperly bolstering the confidential informant’s credibility, noting that “even if the prosecutor’s statements regarding [the witness’s] impartiality had constituted improper bolstering of her credibility, this curative instruction, along with the later reminder to the jury that the prosecutor’s arguments are not evidence, alleviated any potential prejudicial effect.” Further, the prosecutor’s comments during closing argument “were based on inferences drawn from the evidence and constituted permissible comment on the credibility of a prosecution witness during closing argument.” Moreover, there was no implication that the prosecutor “had special knowledge that [the witness] was truthful," and her argument “was permissible comment on her credibility based on the evidence in the record.” Finally, the court rejected his claim that his trial counsel was ineffective for failing to object to the prosecutor’s remarks about the witness, noting again that her “remarks were permissible and did not constitute misconduct.” Even if the comments “had been improper, trial counsel’s decision not to object could have been a matter of strategy designed to avoid drawing attention to an improper comment.” Affirmed.

Ineffective assistance of counsel; United States v. Cronic; People v. Toma; People v. LeBlanc; People v. Pickens; Trial strategy; People v. Mitchell; People v. Rockey; Hearsay; MRE 801(c); People v. Garland; Distinguishing People v. Shaw; People v. Eisen; Failure to obtain an expert; Failure to follow up on a pointless investigation; The Sexual Abuse Nurse Examiner (the SANE nurse)

Holding that the defendant was not denied the effective assistance of counsel, the court affirmed. He was convicted of two counts of CSC I and four counts of CSC II. He claimed that his stepdaughter’s (RR) statements to the SANE nurse were hearsay. The nurse testified that she conducted an exam of RR on the day of the last sexual assault. “She stated that she prepared a report and read from the report during her testimony, which contained numerous statements that RR had made during the examination.” Her statements to the nurse were reasonably necessary for her treatment and diagnosis. The “nurse’s testimony was consistent with RR’s in-court version of what occurred, which detailed the sexual assaults RR endured from defendant for two to two-and-a-half years, including the one on the day of the medical” exam. “The nurse testified that obtaining the patient’s medical history was very important because it would influence her findings and direct her on how best to treat the victim.” Based on the exam, she concluded “that her observations on RR’s body were consistent with RR’s history and her description of the assault.” Also, “RR had a self-interested motivation to speak the truth in order to obtain medical treatment.” At the time of the exam, RR was over the age of 10 years old; “thus there was a rebuttable presumption that she understood the need to tell the truth to the nurse.” The fact that she “did not have any immediate apparent physical injuries did not rebut this presumption.” While defendant relied on Shaw, this case was factually distinguishable. Here, unlike in Shaw, “RR was referred for medical examination on the same day that the last sexual assault occurred. Further, unlike in Shaw where the complainant had seen a different physician other than the testifying physician, the SANE nurse was the first medical personnel to examine RR after she reported the sexual assault that occurred on that day.” Thus, the information obtained during the pre-exam/medical interview "was crucial to the SANE nurse’s ability to determine whether RR had been sexually assaulted and was properly admitted under MRE 803(4).” The “statements were admissible, and any objection to their admission would have been futile.” Affirmed.

Motion for a mistrial due to testimony defendant requested a polygraph; People v. Schaw; People v. Nash; People v. Ortiz-Kehoe; People v. Yatooma; Presumption the jury followed its instructions; People v. Unger; Other acts evidence; MRE 404(b)(1); MCL 768.27; People v. VanderVliet; McDougall v. Schanz; People v. Jackson; MRE 403; People v. Watkins; Limiting instruction under MRE 105; People v. Kelly; Logical relevance; People v. Sabin (After Remand); Unfair prejudice; People v. McGhee; Right to an impartial jury; People v. Miller; People v. Rose; Motion for a new trial on the basis a juror knew the trial court’s bailiff; Principle that a jury is to confine its deliberations to the issue of defendant’s guilt or innocence; People v. Goad; Principle that a juror may not testify to impeach a verdict; People v. Fletcher; Distinction between external & internal influences; People v. Budzyn; Claim that the jury’s decision to convict defendant of armed robbery but acquit him of felony-firearm was a compromise; People v. Putnam; People v. Lewis; People v. Avant; People v. Chambers; Motion for a directed verdict; People v. Quinn; Ineffective assistance of counsel; People v. Seals; People v. Armstrong; Matters of trial strategy; People v. Horn; People v. Dunigan; Failure to request instructions on unarmed robbery & larceny from a person; People v. Smith-Anthony; People v. Jones; People v. Reese; People v. Nickson; Sentencing; People v. Lockridge; People v. Milbourn; People v. Steanhouse; MCL 769.34(10); People v. Schrauben

The court held that the trial court did not abuse its discretion in denying the motion for a mistrial on the basis of an officer’s (S) testimony that defendant requested a polygraph, or in admitting evidence of a prior robbery he committed. He failed to show prejudice warranting a new trial on the basis that a juror knew the trial court’s bailiff. The verdicts convicting him of armed robbery and acquitting him of felony-firearm were not inconsistent, and the court rejected his ineffective assistance of counsel claims. Finally, as he did not allege a guidelines scoring error or reliance on inaccurate information, it affirmed his minimum sentence under MCL 769.34(10). S “told the trial court his reference to a polygraph ‘slipped,’ and the trial court accepted the explanation.” The court gave “due regard” to the trial court’s special opportunity to judge S’s credibility. “Given that the reference was inadvertent, it was not an attempt to bolster” S’s credibility. “There were no repeated references to a polygraph” and S only stated that defendant had requested a polygraph. “The jury was never informed that defendant actually took a polygraph examination, much less told the results.” Further, the trial court instructed the jury to disregard this testimony and to only consider the admitted evidence, an instruction it was presumed to have followed. As to the evidence of the prior robbery, the court found no irreconcilable conflict between MRE 404(b) and MCL 768.27. The prosecution contended that the evidence “was admissible to show defendant’s intent and” system in doing an act. If evidence of the robbery was relevant to his intent or system, “it was admissible under MRE 404(b) and MCL 768.27 and consideration of the evidence was limited to those nonpropensity purposes.” There was a general similarity between the charged and uncharged act, and the court found that the evidence was relevant to negate his claim that he had “innocent intent” when he went to the hospital to meet the victims. It also rejected his claim that the evidence should have been excluded under MRE 403. As to the juror’s failure to disclose she knew the bailiff, the fact that she “knew the bailiff from her employment at the dentist’s office where the bailiff obtained dental services did not establish that the female juror harbored any bias for or against defendant.” Affirmed.

Ineffective assistance of counsel; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; People v. Carbin; Objective standard of reasonableness; People v. Payne; People v. Odom; Trial strategy; People v. Garza; People v. Dixon; People v. Chapo; Failure to investigate the victim’s medical records; Failure to call one of the victim’s sisters as a witness; Failure to adequately inform defendant of the prosecution’s plea officers; People v. Douglas; Abandoned issue; People v. Harris

Holding that defense counsel’s performance did not fall below an objective standard of reasonableness, the court affirmed the defendant’s convictions and sentences. He was convicted of a total of six counts of CSC I and two counts of CSC III. He claimed that he was deprived of his constitutional right to the effective assistance of counsel due to defense counsel’s failure to investigate the victim’s medical records. He provided some medical reports that purportedly reflected that the victim (his adopted daughter) was referred to a gynecologist at some point. Based on these, he generally argued that she underwent a gynecological exam after the sexual assaults took place. According to him, her mother, who is also his “wife and who was called as a defense witness and testified that, in essence, her daughter was lying, is willing to testify on remand that a gynecological examination revealed that the victim’s hymen was intact.” However, he did not provide an affidavit setting forth the mother’s testimony, did not provide a report of the gynecological exam that allegedly occurred, and did not identify when such an exam actually took place. Basically, the only “evidence” identified by him to support his position was “an unsworn assertion as to what his wife would testify about on remand but did not testify about during trial.” In the court’s view, this was simply insufficient. Further, assuming that all of these unsupported assumptions were true, the court was “unaware of any type of authority to support the idea that an intact hymen at an unidentified time during the victim’s childhood, alone, would render the victim’s sexual-assault allegations false as a matter of law.” Thus, the court rejected his argument in this regard. For similar reasons, it also rejected his brief claim that counsel failed to adequately investigate any mental-health issues that the victim may have suffered from during her childhood. Counsel elicited testimony as to her “history of depression, self-harm, and other related behavior in an attempt to attack the victim’s credibility at trial.” There was nothing in the record to suggest that any additional investigation as to her “mental-health records would have made any difference in light of the fact that the jury, at least to an extent, obviously found the victim credible despite the existence of mental-health issues while the sexual assaults at issue were occurring.”

Whether the affidavit established probable cause to search the defendant’s home for evidence of wire fraud & extortion; Franks v. Delaware; United States v. Fowler; United States v. Miller; Illinois v. Gates; United States v. Thomas; Juror questions; United States v. Collins; United States v. Rawlings (DC Cir.); Sentencing; Enhancement for obstruction of justice; United States v. Bazazpour; USSG § 3C1.1; United States v. Carter; United States v. Williams

Where the affidavit to search defendant-Brown’s home established probable cause even without its alleged falsities, he was not entitled to a Franks hearing. Further, the district court did not err in allowing juror questions. However, the court vacated his sentence because the evidence did not support the obstruction of justice enhancement, and remanded for resentencing. The government searched Brown’s home and found evidence that supported his convictions for wire fraud and extortion. On appeal, the court rejected Brown’s claim that the government lacked probable cause for the warrant to search his home, holding that even without the alleged falsities that he claimed plagued the affidavit, there was still a “‘fair probability that contraband or evidence of a crime’” would be found in his home. Brown also argued that the district court erred by allowing the jury to ask questions. However, the court agreed with the district court that the technical and complex nature of some of the evidence—“the Secret Service’s forensic analysis of thumb drives, online posts, and Brown’s computers, as well as the TOR network, Bitcoin, fingerprint matching, and digital photo manipulation”—supported the district court’s decision. Thus, the court affirmed his convictions. However, it held that the decision to enhance Brown’s sentence under § 3C1.1 for obstruction of justice was improper because “a lie to an investigator by itself does not usually warrant an enhancement unless it substantially interferes with the government’s investigation.” Concluding that Brown did not lie, and that the government was unable to show sufficient obstruction or impediment, the court vacated his sentence.

Claim of retaliatory discharge in violation of the Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); MCL 15.362; McNeill-Marks v. Midmichigan Med. Ctr.-Gratiot; Causation element; Cuddington v. United Health Servs., Inc.; Temporal proximity; West v. General Motors Corp.; Garg v. Macomb Cnty. Cmty. Mental Health Servs.; Principle that a party opposing a summary disposition motion must present more than conjecture & speculation; Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Establishing causation by circumstantial evidence; Wiley v. Henry Ford Cottage Hosp.; Debano-Griffin v. Lake Cnty.; Pretext; Alleged shifting justifications; Pierson v. Quad/Graphics Printing Corp. (6th Cir.); Principle that the existence of a possible additional non-discriminatory basis for termination does not prove pretext; Tidwell v. Carter Prod. (11th Cir.); Admissibility of a police report; Hearsay; MRE 801(c); MRE 802; In re Forfeiture of a Quantity of Marijuana; A police report not offered for the truth of the matter asserted; International Union, UAW of Am. v. Dorsey; Alleged improper character evidence; Lewis v. LeGrow; MRE 404(b)(1)

Holding that any circumstantial evidence the plaintiff presented did not establish a genuine factual question as to the causation element of his WPA retaliatory discharge claim, and that there was “no basis to apply the shifting justifications reasoning” as to pretext, the court affirmed the trial court’s order granting the defendants summary disposition. It initially addressed evidentiary issues, noting that the admissibility of a police report provided by the defendants was not dispositive because plaintiff did not establish a prima facie case. As to his claim that they submitted improper character evidence, the court found that in the circumstances, the evidence of his “prior ‘bad acts’ was not proffered as a reason for his discharge or termination or pursuant to a propensity theory. Rather, it was provided in response to plaintiff’s contention that his ‘stellar’ employment record led to the incontrovertible assumption that” his termination was due to discriminatory animus based on his filing the report. As to a prima facie case, the timing of his discharge did not, standing alone, establish the required causation. Absent direct evidence of causation, the issue was whether there was any supporting circumstantial evidence. There was no evidence that his filing of the report “adversely impacted defendants.” The report related to a co-worker’s allegedly criminal behavior, not any alleged wrongdoing by defendants. Testimony by people who worked at defendant-Torsion “indicated that defendants did not display a negative response to the filing of the police report, but rather, welcomed the investigation as a means to definitively determine how events transpired.” There was “no factual basis in the record to infer a retaliatory motive on the part of defendants.” Plaintiff also asserted that “the absence of a disciplinary record, coupled with his prior receipt of bonuses and raises,” allowed an inference that there was a retaliatory motive for his discharge. However, the record showed that defendants very rarely used written discipline, and his receipt of bonuses or raises, “commensurate with everyone in Torsion on a routine basis,” did not “diminish or outweigh the evidence” that he “was a difficult employee, often involved in confrontations with multiple” co-workers.

No-Fault Insurance Act (MCL 500.3101 et seq.); Whether the plaintiff brought its claim within the limitations period set forth in MCL 500.3175(3); Allstate Ins. Co. v. Faulhaber; Whether plaintiff’s lawsuit was an action “to enforce rights to indemnity or reimbursement against a third party”; Statutory interpretation; Booker v. Shannon; Rowland v. Washtenaw Cnty. Rd. Comm’n; Haynes v. Neshewat; Indemnity, repay, reimburse, reimbursement & third party defined

The court held that because the plaintiff’s lawsuit was an action “to enforce rights to indemnity or reimbursement against a third party,” it was subject to the limitations period in MCL 500.3175(3). Further, the trial court did not err in granting summary disposition to the medical provider defendants and dismissing plaintiff’s claim on the ground that it did not bring its claim within that limitations period. For the same reason, plaintiff’s argument that the trial court should have granted it summary disposition and that it erred by not doing so was without merit. Thus, plaintiff was not entitled to summary disposition because it did not bring its claim within the applicable limitations period. Plaintiff filed the case against S and four medical care providers who had treated S for his accident-related injuries, seeking reimbursement for payments made pursuant to its mistaken belief that he was entitled to no-fault benefits. It set forth two counts against defendants. It did not plead any fraud against them nor did it assert that they misrepresented any facts in relation to this matter. All assertions of misrepresentation and fraud were against S. The court agreed “with plaintiff that the general statute of limitations period of six years is applicable to the claims of fraud and misrepresentation.” The court held that the action filed by plaintiff was one “to enforce rights to indemnity or reimbursement against a third party.” It paid defendants for the medical services they provided to S. It now sought to recover from defendants the amounts it paid; that was, plaintiff wanted the medical providers to “repay” or “pay back” or “refund” the money plaintiff gave them for the care they provided to S. Plaintiff alleged that it had a right to repayment and sought to enforce that right to repayment against defendants. Notably, for the second and fourth count in its complaint, plaintiff actually used the word “reimbursement” to describe what it sought from defendants, which is the exact same word that is used in MCL 500.3175(3). Plaintiff did the same thing in its first question presented in the appeal, writing that the trial court barred its “claim seeking reimbursement of no-fault benefits paid on behalf of the claimant.” Finally, the term “third party” is broad enough that it would appear to include the medical provider defendants who provided services to S and received from plaintiff payments for those services based upon S’s relationship to the assigned claims plaintiff. In any event, plaintiff never argued that the medical providers were not “third parties” as that term is used in MCL 500.3175(3). Affirmed.

Negligence; Whether a county road commission is immune from suit for an accident caused by a county snowplow that operated on the wrong side of the road; MCL 257.603 & 257.634; Principle that while drivers are excused from following the “rules of the road” under certain circumstances, they must do so in a reasonable manner that looks out for the safety of others on the road; Fiser v. Ann Arbor; Kalamazoo v. Priest; McKay v. Hargis; Whether defendant was entitled to invoke the motor vehicle exception to governmental immunity; Principle that an unsworn, unsigned affidavit cannot be considered on a motion for summary disposition; Gorman v. American Honda Motor Co., Inc.; Principle that a court has discretion to consider late filed documents; Prussing v. General Motors Corp.; Radeljak v. DaimlerChrysler Corp.

The court held that the trial court did not err by denying the defendant-county road commission’s motion for summary disposition in the plaintiff’s negligence action. Plaintiff sued defendant for injuries she sustained when her vehicle collided with one of defendant’s plow trucks. She claimed the driver was driving too fast for the conditions and crossed the centerline of the road. On appeal, the court noted that MCL 257.603 and 257.634 do not establish “a sort of immunity from suit or an excuse to be negligent. Rather, they merely recognize that drivers, under the covered circumstances, are not violating these particular provisions of the motor vehicle code.” Their applicability to a “lawsuit arising out of a collision involving one of these vehicles is minimal. It might lead to the conclusion that a plaintiff could not successfully base an argument on negligence per se for the violation (because there would be no violation), but it would not lead to the conclusion that the operator of the emergency or road work vehicle cannot be considered negligent because the operator did not have to follow the rules of the road.” The court then rejected defendant’s argument that it was entitled to summary disposition because the submissions upon which plaintiff relied were untimely, and, even if not untimely, they did not establish a genuine issue of material fact. It noted that defendant’s first argument was “premised on the assumption that MCL 257.603 or MCL 257.634(1)(c) effectively granted defendant immunity,” but that argument lacked merit. Further, any discrepancy in plaintiff’s submissions as to accident reconstruction had no bearing on whether there was a genuine issue of fact. Finally, the court concluded that “the degree to which the snowplow allegedly crossed the centerline and whether doing so was proper in light of the driver’s ability to see oncoming traffic because of variables like the weather and the curve in the roadway, could allow a reasonable jury to conclude that the snowplow was negligently operated at the time of the accident.” Affirmed.

Application of a police department’s “photograph & print” (P&P) policy; 42 USC §§ 1981 & 1983; Alleged Fourth Amendment violation; People v. Slaughter; United States v. Dionisio; Terry v. Ohio; Brief detention for fingerprinting based on a reasonable suspicion; Davis v. Mississippi; Hayes v. Florida; Whether fingerprinting & photographing constitutes a search; United States v. Farias-Gonzalez (11th Cir.); Rowe v Burton (D AK); Whether there is a reasonable expectation of privacy in fingerprints; Nuriel v. Young Women’s Christian Ass’n of Metro. Detroit; Photographing a person as they appear in public; Sponick v. Detroit Police Dep’t; Notice pleading; Johnson v. QFD, Inc.; Dacon v. Transue; Fifth Amendment prohibition on the taking of private property without just compensation; AFT MI v. Michigan; Taking of a person’s “image or likeness”; Battaglieri v. Mackinac Ctr. For Pub. Policy; Property obtained under the police power; Bennis v. Michigan; Qualified immunity; Morden v. Grand Traverse Cnty.; Lavigne v. Forshee; Saucier v. Katz; Pearson v. Callahan; Whether the rights asserted were clearly established; White v. Pauly; Municipal liability; Monell v. New York City Dep’t of Soc. Servs.; Payton v. Detroit; Connick v. Thompson; Motion to strike an expert witness; MRE 702; Elher v. Misra; Kumho Tire Co., Ltd. v. Carmichael; Lenawee Cnty. v. Wagley; MRE 401

Concluding that the constitutional infirmities plaintiff alleged in the P&P procedure and the rights he asserted were not clearly established, the court held that the defendants-police officers were entitled to qualified immunity on his Fourth and Fifth Amendment claims. It also upheld summary disposition for the defendant-city on his municipal liability claim, concluding that the evidence did not show that any alleged violation of his constitutional rights was due to an official municipal custom or policy. Finally, it held that the trial court did not err in granting defendants’ motion to strike plaintiff’s expert witness. The court concluded that it was not clearly established in the law that fingerprinting and photographing someone during “an otherwise valid investigatory stop violates the Fourth Amendment. In fact, prior statements from” the U.S. Supreme Court and the court “suggest that such a procedure would be permissible under the Fourth Amendment if the initial stop was justified by a reasonable suspicion.” As to plaintiff’s claim that the P&P procedure constituted an unlawful taking of his image or likeness without just compensation, the court noted that he did not argue “that the value of his likeness was impaired or that any defendant seized title to his likeness. Defendants did not interfere with” his ability to use his likeness or identity for his benefit or the benefit of others and did not prevent him from “carrying out any future endeavors to benefit from his likeness.” Further, his photos and fingerprints “were obtained under the police power rather than power of eminent domain.” Plaintiff’s attorney admitted to finding no case law “stating that police conduct in photographing and fingerprinting [a] person for investigatory purposes constituted a governmental taking.” The court also concluded that the action plaintiff alleged “to have caused the deprivation of his rights, i.e., a P&P during a field interrogation or stop, did not ‘implement[] or execute[] a policy statement, ordinance, regulation, or decision officially adopted and promulgated’ by” the city. Affirmed.

Negligence; Whether a county road commission is immune from suit for an accident caused by a county snowplow that operated on the wrong side of the road; MCL 257.603 & 257.634; Principle that while drivers are excused from following the “rules of the road” under certain circumstances, they must do so in a reasonable manner that looks out for the safety of others on the road; Fiser v. Ann Arbor; Kalamazoo v. Priest; McKay v. Hargis; Whether defendant was entitled to invoke the motor vehicle exception to governmental immunity; Principle that an unsworn, unsigned affidavit cannot be considered on a motion for summary disposition; Gorman v. American Honda Motor Co., Inc.; Principle that a court has discretion to consider late filed documents; Prussing v. General Motors Corp.; Radeljak v. DaimlerChrysler Corp.

The court held that the trial court did not err by denying the defendant-county road commission’s motion for summary disposition in the plaintiff’s negligence action. Plaintiff sued defendant for injuries she sustained when her vehicle collided with one of defendant’s plow trucks. She claimed the driver was driving too fast for the conditions and crossed the centerline of the road. On appeal, the court noted that MCL 257.603 and 257.634 do not establish “a sort of immunity from suit or an excuse to be negligent. Rather, they merely recognize that drivers, under the covered circumstances, are not violating these particular provisions of the motor vehicle code.” Their applicability to a “lawsuit arising out of a collision involving one of these vehicles is minimal. It might lead to the conclusion that a plaintiff could not successfully base an argument on negligence per se for the violation (because there would be no violation), but it would not lead to the conclusion that the operator of the emergency or road work vehicle cannot be considered negligent because the operator did not have to follow the rules of the road.” The court then rejected defendant’s argument that it was entitled to summary disposition because the submissions upon which plaintiff relied were untimely, and, even if not untimely, they did not establish a genuine issue of material fact. It noted that defendant’s first argument was “premised on the assumption that MCL 257.603 or MCL 257.634(1)(c) effectively granted defendant immunity,” but that argument lacked merit. Further, any discrepancy in plaintiff’s submissions as to accident reconstruction had no bearing on whether there was a genuine issue of fact. Finally, the court concluded that “the degree to which the snowplow allegedly crossed the centerline and whether doing so was proper in light of the driver’s ability to see oncoming traffic because of variables like the weather and the curve in the roadway, could allow a reasonable jury to conclude that the snowplow was negligently operated at the time of the accident.” Affirmed.

Michigan Public Service Commission order granting applications filed by Encana Oil & Gas, Inc. to construct & operate natural gas pipelines; Buggs v. Public Serv. Comm’n (Unpub.); The Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.); State Hwy. Comm’n v. Vanderkloot; Denial of appellants’ second attempt to intervene; Failure to cite supporting authority; Woods v. SLB Prop. Mgmt., LLC; Claim that the PSC in conducting its environmental impact review should have considered the environmental & forest-fragmenting effects in the vicinity of the lines & not simply within the routes & the corridors surrounding the routes; Claim that Encana’s environmental impact assessments were inadequate because they failed to detect the presence of Kirtland Warblers (a bird) in the area; The law of the case doctrine; Reeves v. Cincinnati, Inc. (After Remand); Webb v. Smith (After Second Remand); Ashker v. Ford Motor; Whether the PSC should have considered & found credible information contained in a second affidavit from an individual who averred that he saw dead Kirtland’s Warblers at or near a pipeline construction site

Finding no basis for appellate relief in these consolidated appeals, the court affirmed the order of the Michigan Public Service Commission (PSC) granting applications filed by Encana Oil & Gas to construct and operate natural gas pipelines. Appellants argued that the PSC erred by denying their second attempt to intervene. They asserted that the court’s prior decision vacating the PSC’s previous orders approving the applications for the pipelines vacated the PSC’s previous order denying the first motion to intervene. They also asserted that their interests were affected by the pipelines and they were entitled to intervene on that basis. The court noted that they did not appeal the PSC’s order denying their first motion to intervene. It found that their assertion that by vacating the PSC’s orders granting the applications the court also vacated the PSC’s order denying their motion to intervene was “without factual or legal support. An appellate argument must be supported by citation to appropriate authority or policy.” Also, in the order denying their “second motion to intervene, the PSC reviewed appellants’ position but found that no subsequent developments required it to change its previous conclusion regarding the timeliness of appellants’ motion.” Next, appellants argued that “the PSC, when conducting its environmental impact review, should have considered the environmental and forest-fragmenting effects in the vicinity of the lines and not simply within the routes and the corridors surrounding the routes.” They asserted that “the PSC erred by failing to consider the environmental impact in the vicinity of the pipelines, and cite what they characterize as the ‘federal vicinity rule’ as stated in 18 CFR 380.12(e)(5).” The court held that this argument lacked merit. The PSC conducted proceedings as directed by the court on remand. “Neither MEPA nor the State Hwy Comm’n decision required the PSC to consider the federal vicinity rule when conducting its analysis.” The PSC was required to strictly comply with the court’s instructions on remand and did so. “Nothing more was required.”

Whether a broadcasting tower sitting upon foreclosed property was personal property or a fixture; “Fixture” defined; Kent Storage Co. v. Grand Rapids Lumber Co.; Wayne Cnty. v. Britton Trust; Morris v. Alexander; “Annexation” defined; 35 Am Jur 2d, Fixtures, § 5, p 703; Principle that attachment may be “slight”; Wood Hydraulic Hoist & Body Co. v. Norton; Colton v. Michigan Lafayette Bldg. Co.; Peninsular Stove Co. v. Young; Principle that an item may be constructively annexed to the property due to its size & character; Granger Land Dev. Co. v. Department of Treasury; “Adaptation” defined; Premonstratensian Fathers v. Badger Mut. Ins. Co. (WI); Purpose of the object; 35 Am Jur 2d, Fixtures, § 12, p 708; Intent; Michigan Nat’l Bank, Lansing v. Lansing; Lord v. Detroit Sav. Bank; Reconsideration; MCR 2.119(F)(3); Churchman v. Rickerson

The court held that the trial court did not err by summarily granting the plaintiff-county land bank a declaratory judgment that a broadcasting tower sitting upon foreclosed real property was a fixture that was transferred along with the land. The county foreclosed on land owned by defendant-broadcasting company (Great Northern). It later sought a declaratory judgment that the tower, which had been erected by defendant-cellular company (Verizon), was a fixture that transferred to the county during the foreclosure process. The trial court agreed. On appeal, the court rejected Great Northern’s argument that the tower was personal property, not a fixture, finding the tower was “annexed” to the realty. “The subject tower sat on a cement slab buried in the ground. It was held in place by three wires that latched to anchors in the ground.” Even if it was “possible to remove the tower by unlatching the wires,” property can be considered “affixed, and thus annexed, to property even where the attachment is ‘slight.’” It noted that “[a] heating system, window shades, awnings, storm doors, and stoves can all be removed from real property with relative ease compared to a 450-foot tower sitting on a cement slab buried in the ground. If such items can be considered annexed to the property, so too may a cellular tower.” Further, the tower was “a useful adjunct to the realty” and defendants intended it as a fixture. “Because the tower was attached to the property, was a useful adjunct to the property’s use for radio signal broadcasting, and the lease contemplated the tower would remain in place while Verizon used it (and potentially forever),” the trial court did not err in finding it was a fixture. Finally, the court rejected Great Northern’s claim that the trial court erroneously denied its motion for reconsideration, noting that because certain evidence “could have been presented the first time the issue was argued,” there was “no abuse of discretion in the [trial] court’s decision not to grant reconsideration based on this evidence.” Affirmed.

Termination under §§ 19b(3)(g), (j), & (k)(ii); In re HRC; In re Olive/Metts Minors; In re JK; Whether the trial court properly assumed jurisdiction over the child under MCL 712A.2(b); In re BZ; Credibility determinations; In re Miller; Principle that a sexual assault may be proven based on a CSC victim’s uncorroborated evidence; People v. Lemmon; Child’s best interests; In re Moss Minors; In re White; In re Powers; Claim that the investigating officer’s testimony improperly vouched for the child’s credibility; People v. Peterson; People v. Beckley; People v. Musser; Lay witness testimony; MRE 701; People v. Heft

The court held that the trial court did not clearly err in deciding to exercise jurisdiction over the child, or in finding that §§ (g), (j), and (k)(ii) were established by clear and convincing evidence. Further, the trial court properly ruled that terminating the respondent-father’s parental rights was in the child’s best interests, and the court rejected his claim that the investigating officer improperly vouched for the child’s credibility. The court noted that while “there was no other evidence to substantiate the sexual assault, it is well established that a sexual assault may be proven based ‘on the uncorroborated evidence of a CSC victim[.]’” The court was “not definitely and firmly convinced” that the trial court “made a mistake in its credibility determination.” In addition, “based on the child’s account of the serious sexual assault perpetrated on her by respondent,” the court agreed that “a preponderance of the evidence established a statutory basis” for the trial court to assume jurisdiction over her under MCL 712A.2(b)(1) and (2). As to the statutory grounds for termination, “the child’s testimony that respondent sexually assaulted her when she was a young child while visiting him at her grandmother’s farmhouse and that the assault started with him touching her chest area and vagina and then escalated to penetration of her vagina with his penis, clearly and convincingly established that respondent abused” her and the abuse included CSC involving penetration or attempted penetration under § (k)(ii). This testimony also supported that he clearly failed to provide proper care and custody, and that “there was no reasonable expectation that respondent, who denied the abuse, would be able to provide proper care and custody for the child within a reasonable time, especially given that the child was 16 years old at the time of the termination hearing.” The court also held that a preponderance of the evidence supported that termination was in her best interests, and that the officer’s testimony about his investigation was permissible under MRE 701. Affirmed.