Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Breach of contract action by tenured faculty members; The statutory notice provision of the Court of Claims Act; MCL 600.6431(1); Christie v Wayne State Univ; Tolling due to fraudulent concealment; MCL 600.5855; Mays v Snyder (Mays I & II); Dillard v Schlussel; Distinguishing Taylor v University of MI Bd of Regents (Unpub); Affirmative misrepresentations; Reasonable diligence; Successor liability; Foster v Cone-Blanchard Mach Co; Distinguishing Doe v Roman Catholic Archbishop of Archdiocese of Detroit; Leave to amend; Detroit College of Law (DCL)
The court held that the Court of Claims did not err by denying defendant-university’s motion for summary disposition of plaintiffs-law professors’ breach of contract claim. Plaintiffs sued defendant on 9/22/22 alleging it fraudulently concealed a transfer agreement between defendant and DCL by failing to notify them of its existence until 5/22. In their amended complaint they alleged defendant and DCL made affirmative misrepresentations that DCL was the only entity that could be liable for their contract-based claim. Plaintiffs asserted that they relied on these statements to pursue a claim against DCL only. The Court of Claims found their amended allegations supported a claim for fraudulent concealment, which would toll MCL 600.6431’s statutory notice provision, and denied defendant’s summary disposition motion. On appeal, the court rejected defendant’s argument that Mays I and the fraudulent-concealment exception did not apply to plaintiffs’ claims. It noted plaintiffs alleged they did not learn of the agreement and defendant’s “liability until DCL disclosed the agreement on” 5/12/22. Following this disclosure, they filed their complaint against defendant on 9/22/22. “If these allegations are true, the fraudulent-concealment exception applies to the claims, MCL 600.5855 would toll the statutory notice period, and [plaintiffs] properly brought a claim against defendant within two years of” 5/12/22. The court also rejected defendant’s claim that plaintiffs did not adequately plead affirmative misrepresentations that could constitute fraudulent concealment in their amended complaint. It found plaintiffs’ “amended complaint sufficiently alleged that [defendant’s] representative made affirmative misrepresentations that it was not liable for DCL’s contractual obligations on the basis that there was an asset purchase, and that [they] were misled by these misrepresentations until [5/12/22], when the nature of the merger came to light.” This plainly distinguished “Doe from this case.” Accepting plaintiffs’ “allegations as true, a genuine issue of material fact exists regarding whether [defendant’s] representatives fraudulently misrepresented its liability for DCL’s contractual obligations and whether [plaintiffs] relied on those misrepresentations when filing their claim against [defendant] more than one year after the claim accrued.” Affirmed.
Motion to suppress an identification; Due process; Whether a photo array was excessively suggestive; People v Gray; People v Kurylczyk; Ineffective assistance of counsel; Motion to suppress evidence obtained from a search of defendant’s (a parolee) residence; Samson v California; People v Richards; Jury composition; Fair cross-section of the community requirement; People v Bryant; Sentencing; Cruel &/or unusual punishment; 25-year minimum sentence under MCL 769.12(1)(a); People v Burkett; Motion for a mistrial; Parole status reference; Police witness testimony; People v Fomby; MRE 701; Missing-witness jury instruction; MCL 767.40a; Distinguishing People v James; “Listed prior felony” under MCL 769.12
The court held that defendant’s motions to suppress were properly denied where (1) “the photographic identification procedure was not impermissibly suggestive” and (2) as to the evidence obtained from a search of his home, the trial court did not clearly err in finding that he accepted the search condition of his parole. The court rejected his ineffective assistance of counsel claims and found that he failed to show plain error as to his jury composition claim. It also rejected his cruel and/or unusual punishment challenge to his mandatory 25-year minimum sentence pursuant to MCL 769.12(1)(a) and found that he did not show any error occurred related to that statute. It concluded the trial court did not abuse its discretion in denying his motion for a mistrial and his request for a missing-witness instruction, or err in permitting a police witness’s testimony under MRE 701. Thus, the court affirmed his convictions of AWIM, felony-firearm, CCW, and FIP, as well as his sentences (as a fourth-offense habitual offender) to concurrent terms of 300 to 600 months for AWIM, 36 to 120 months for CCW and FIP, and 2 years for felony-firearm. He moved to suppress witness-H’s pretrial identification and any in-court identifications, asserting the police violated his due process rights by presenting “a photo array that was excessively suggestive[.]” The court determined that defendant’s “facial tattoo did not meaningfully differentiate him from the other participants in the lineup. The electronic reproductions of the photo array . . . indicate that if the tattoo was visible to [H], it was not a distinctly prominent element of the” photo. Further, the record showed that H “exhibited ‘100%’ confidence in her identification at the time of the photo array. Additionally, [H] testified that she spoke with the defendant that night, despite not having met him before, and she recounted how he leaned against her car while conversing with her and ‘rolling a blunt.’” As to defendant’s contention “the police conduct in administering the photographic identification procedure was coercive” he did not offer “any binding legal authority supporting his assertion that any of the police actions were legally improper[.]” As to the search of his home, since he “was on parole, he did not have a legitimate expectation of privacy under the Fourth Amendment, and law enforcement officers were constitutionally permitted to conduct a search without any level of suspicion.” Further, it appeared “that the officers had at least reasonable suspicion regarding [his] involvement in” a home invasion.
Ineffective assistance of counsel; Shell-casing evidence; People v Coy; United States v Brown; Failure to make a futile objection; Victim’s motive to lie; Trial strategy; Gunshot residue; Lay opinion testimony; MRE 701; Evidence of a negative gunshot-residue test; Failure to obtain an expert
The court held that defendant was not denied the effective assistance of counsel. He was convicted of AWIGBH, FIP, and felony-firearm for an incident in which defendant stopped his car in front of the victim’s car and fired shots at the victim. On appeal, the court rejected his argument that he was denied the effective assistance of counsel. First, it rejected his claim that defense counsel was ineffective for “failing to properly investigate the science supporting analysis of shell casings as well as failing to object to the prosecution’s expert witness, who testified that certain shell casings came from the same firearm, and the prosecutor’s argument that those shell casings were a ‘match.’” It found that any objection to statements made by the prosecution’s firearms and toolmark expert or by the prosecution during closing argument would have been futile because they were acceptable under Brown. “Beyond that, defendant has presented no authority, binding or otherwise, from a Michigan court on the subject of shell-casing evidence.” Second, the court rejected his contention that defense counsel was ineffective for “failing to present evidence showing that the victim had a motive to lie about defendant’s involvement in the shooting.” Defense counsel “made a sound strategic decision not to introduce evidence that would have revealed defendant’s motive to shoot at” the victim. Third, the court rejected his argument that defense counsel was ineffective for “the manner in which he handled evidence of a gunshot-residue test.” It found that: (1) defendant failed to show that an objection to the testimony at issue would have been successful, (2) defense counsel did everything he could to make use of the negative gunshot-residue test, and (3) without a showing that an expert would have benefited defendant, defense counsel cannot be characterized as ineffective. Affirmed.
Upward departure sentence; Reasonableness & proportionality; People v Steanhouse; People v Walden; Reassigning a case on remand; People v Walker; Operating while intoxicated, third offense (OWI 3rd)
The court held that the trial court abused its discretion in resentencing defendant on remand, and that remand to a different judge was necessary. He pled guilty to OWI 3rd and was sentenced above the recommended guidelines range (0 to 6 months) to 36 to 60 months. The court previously vacated his “sentence and remanded for the trial court to articulate a basis for the upward departure or to resentence” him. On remand, the trial court sentenced him to 396 days with 396 days’ credit for time served and “to a two-year term of home detention.” In this appeal, the court concluded the “trial court abused its discretion by solely justifying its sentencing decision on its disagreement over the severity of punishment for OWI 3rd recommended by the” guidelines. In the prior appeal, the court stated that to the extent the trial court relied “on its policy disagreement with the sentencing guidelines, such reasoning was insufficient to support an upward departure from” them. It concluded the other reasons the trial court gave for its departure “either did not support an upward departure or the extent of the particular upward departure in this case. On remand, the trial court did not expand on its reasoning in support of the sentence imposed. Instead, [it] expressly and exclusively justified its sentencing decision on its previously-stated disagreement over the severity of punishment for OWI 3rd advised by the” guidelines. Thus, it sentenced defendant to a departure sentence based on its belief that the “guidelines generally do not punish those convicted of OWI 3rd severely enough. This is not a proper basis for an upward departure. This reasoning does not consider anything particular about defendant or his offense as required under the principle of proportionality.” The court noted that despite its specific instructions, the trial court on remand failed to “explain how the departure sentence was proportional, by articulating how the circumstances of this offense and offender would result in a sentence of 396 days’ imprisonment and a two-year term of home detention.” Further, applying the Walker factors, the court determined that it was “unreasonable to expect the original judge to be able to put previously-expressed subjective views out of mind without substantial difficulty were we to remand this case to that judge for a third time.” Vacated and remanded to a different judge.
Unfair labor-practices; Damages; Vaca v Sipes; Bowen v United States Postal Serv; Waiver; Law of the case doctrine; Distinguishing Rott v Rott; Police Officers Association of Michigan (POAM); Michigan Employment Relations Commission (MERC); Administrative Law Judge (ALJ)
The court concluded that MERC did not err by apportioning any damages to respondent-POAM. Also, it found no error in MERC’s conclusion that even if the waiver of POAM’s argument as to the arbitrability of the charging party’s grievance “was timely raised the result would not have changed.” Finally, MERC did not err by applying the law of the case. “Charging party initiated unfair labor-practices charges against his former employer,” and respondent. “According to respondent, charging party failed to demonstrate how any of his damages stemmed from respondent’s failure to pursue a grievance on his behalf.” The court “already affirmed MERC’s prior determination that charging party was terminated without just cause.” Thus, MERC correctly found “that the ALJ did not need to analyze whether charging party’s grievance would have been successful on the merits because this had already been decided by this Court on appeal and prior to MERC’s remand order. Moving to the apportionment of damages, we discern no error in MERC’s reasoning.” The court held that “it was incorrect for the ALJ to focus solely on the fact that charging party’s damages stemmed from his termination by the City because respondent’s actions increased such damages.” It determined that “the fact that charging party sought economic damages was also not dispositive because nothing in Vaca, Bowen, or their progeny suggest that the type of damages being sought has any bearing on the matter. Furthermore, MERC’s calculation of the damages was not erroneous.” Contrary to respondent’s claims, “MERC did not apportion all possible damages to respondent. Rather, by utilizing a hypothetical date on which an arbitrator could have rendered a decision in charging party’s favor, MERC only apportioned those damages that were increased as a result of respondent’s actions, along with any interim earnings subtracted.” The court also found “no error in the date MERC used for the hypothetical arbitration award.” Respondent argued “that MERC erred by determining that it had waived its argument regarding the arbitrability of charging party’s grievance.” While the court agreed “that respondent raised this issue early in this case, we discern no error in MERC’s conclusion that even if was timely raised the result would not have changed.” Finally, respondent argued “that MERC erred by applying the law-of-the-case doctrine regarding whether charging party was terminated without just cause.” The court found that “Rott does not support respondent’s argument that courts may freely depart from the law-of-the-case doctrine if their prior decision was clearly erroneous and would result in manifest injustice.” Further, it concluded that even assuming “that the prior panel misstated MERC’s decision, the fact that respondent failed to follow any of the procedures in place to rectify mistakes made by this Court precludes a conclusion that the application of this doctrine would work a manifest injustice.” Affirmed.
Duty; National Fire Protection Association (NFPA) standards
[This opinion was previously released as an unpublished opinion on 11/14/24.] The court reversed the portion of the trial court’s order denying defendant’s motion for summary disposition as to a claim of negligence, and remanded. Plaintiff-Wilcomes’ “propane that had leaked out of a corroded pipe in their attic exploded, damaging the premises.” They dedicated “one line in their complaint regarding defendant’s duty.” Specifically, they claimed defendant “had a duty to perform a leak check pursuant to [NFPA] sections 54 and 58.” In the next line, plaintiffs claimed “that defendant breached that duty by failing to conduct a leak check of” their system. “Defendant moved for summary disposition under MCR 2.116(C)(8), arguing plaintiffs’ complaint was deficient because duties cannot arise from the NFPA industry standards.” Plaintiffs’ complaint was “deficient because it relied exclusively on NFPA standards as the sole basis of defendant’s duty. The trial court should have granted summary disposition under MCR 2.116(C)(8) on this basis and it erred when it concluded otherwise.”
Reasonable reunification efforts; Accommodations under the Americans with Disabilities Act (ADA)
The court held that “respondent-father failed to engage in, and benefit from, the services offered by the DHHS.” There was no indication he “would have fared better if the DHHS had offered other services, additional services, or additional accommodations.” Thus, the court found that “the trial court did not err when it determined that the DHHS made reasonable efforts to promote reunification.” Respondent contended that the DHHS “failed to make reasonable accommodations or provide him with transportation assistance.” Further, he claimed that the DHHS did not accommodate him under the ADA. The record established “that the DHHS made reasonable efforts to accommodate [father’s] anger-management issues based on the recommendations of his psychological evaluation.” The record further revealed that he “failed to adequately participate in, or benefit from, the services provided to him.” He did “not argue that the services the DHHS provided in response to his psychological evaluation were unreasonable, nor [did] he explain how any different services would have better accommodated him.” Because respondent merely asserted “that the services offered to him were not sufficient because of his disability, without identifying how they were insufficient or identifying any services that would have been appropriate when considering that disability, he has not identified plain error affecting substantial rights.” As to his “claim that the DHHS failed to accommodate his work schedule, the record reveals the exact opposite.” Respondent also argued “that the DHHS did not provide him with proper bus passes.” Although it appeared that he “did not receive proper bus passes, that does not amount to clear error affecting the trial court’s finding that reasonable efforts at reunification were made.” The DHHS accommodated him “by arranging for transportation to parenting-time visits and permitting him to complete a different version of anger management, but [he] did not benefit from any of those services provided to him.” Affirmed.