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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
View Text Opinion Full PDF Opinion
Employment-related claims; Shortened limitations period in the employment application; Timko v Oakwood Custom Coating, Inc; Clark v DaimlerChrysler Corp; Mutuality of agreement; Distinguishing McMillon v Kalamazoo; Electronic signature; The Uniform Electronic Transactions Act (UETA); MCL 450.832(h); Abandoned argument as to the effect of a claim filed with the Michigan Department of Civil Rights (MDCR); Public policy
The court held that under binding case law as it currently stands, the trial court properly granted defendant-former employer summary disposition of plaintiff’s employment-related claims based on a shortened limitations period contained in the employment application. Plaintiff first contended the trial court erred in ruling “that summary disposition was proper under Timko, when the application was filled out before defendant offered” him a job. The court noted the plaintiff in Clark also “signed the application before hire. That distinction itself is not determinative.” Plaintiff next asserted the trial court erred in determining there was mutuality of agreement to establish a contract. But as defendant argued, “plaintiff was hired for the job to which he applied, and, during that process, agreed to the clear term shortening the limitations period by completing his application.” That distinguished this case from McMillon, where “there was a genuine issue of material fact about whether the plaintiff would have known that the same application terms would apply[.]” There was no basis here “to find that plaintiff would question whether his application materials would apply to his employment when he was hired only one month after applying, and for the same job for which he applied. Accordingly, the trial court did not err by distinguishing this situation from that in McMillon.” Plaintiff also contended that a question of fact existed as to whether his “typing his name on the electronic application constituted a signature to create a contract.” But the court held that it did, noting he did “not dispute that he typed his name, agreeing to the conditions of the application. Under the UETA, this was a valid electronic signature.” He next contended “that he notified defendant of his claims by filing” a complaint with the MDCR three months after he was allegedly constructively discharged. The court found this argument was abandoned for failure to develop it, and added that regardless, his “complaint to the MDCR did not toll the contractually agreed-upon limitations period, and plaintiff did not sue defendant within six months of his discharge. The plain language of the contract required a lawsuit within six months.” Finally, he did not establish “that the trial court erred by finding that the clause did not violate public policy.” Affirmed.
Breach of contract; Res judicata; Collateral estoppel; Liability as a guarantor; Garnishment of an appeal bond; Dunn v Bennett; MCR 4.201(N)(4)(b); “Recovery”
The court held that plaintiff-SJI was barred by collateral estoppel from relitigating the issue of whether defendant-Coolidge breached the lease in this action. Also, SJI’s failure to pay rent as provided by ¶ 16 was a breach of the lease contract. Further, the circuit court did not err by imposing liability on third-party defendant-Baydoun as a guarantor. The case arose from a build-to-suit lease agreement. SJI first argued that the circuit court erred when it granted Coolidge’s “motion for summary disposition of SJI’s breach-of-contract claim” based on res judicata. The court concluded that SJI was barred from relitigating the underlying issue based on collateral estoppel. “SJI alleged a breach that resulted in the premises being noncompliant and ‘inoperative.’ This would qualify as a significant breach that would excuse the payment of rent. But, the district court decided this issue” in the eviction proceeding “when it ruled that Coolidge had committed no breach to excuse the payment of rent. It considered and rejected the precise issue presented in the instant case that Coolidge first substantially breached the lease.” SJI next argued the circuit court erred in granting Coolidge summary disposition on Coolidge’s breach-of-contract counterclaim. It was “undisputed that Coolidge validly terminated the lease on [4/5/21], for SJI’s failure to pay rent. Thus, the Term expired on that date. Because the Term was expired, SJI’s continued possession of the premises meant it was considered a holdover tenant under” ¶16 and it breached that provision of the contract. As to the circuit court’s imposition of liability on Baydoun as a guarantor, he argued “that because his obligation as guarantor only arises in conjunction with SJI’s contractual obligations, and because Coolidge’s breach-of-contract claim fails as a matter of law, he cannot be liable.” The court agreed “that the language of the guaranty makes it clear that Baydoun’s liability arises with SJI’s breach of the lease. The trial court properly granted summary disposition of Coolidge’s breach-of-contract counterclaim. It therefore follows that Baydoun is liable as a guarantor under the” agreement. Thus, the court affirmed summary disposition for Coolidge against Baydoun. Finally, SJI argued the circuit court erred in granting Coolidge summary disposition “on its attempt to garnish the $90,000 bond held by the district court.” The situation here was “similar to that in Dunn.” The court concluded “SJI was already entitled to the $90,000 bond. Although counsel helped it defend against Coolidge’s attempt to characterize the bond as an escrow bond, that successful defense did not transform the successful retention of the funds into a ‘recovery.’ As a result, the circuit court did not err by ruling that the attorney lien did not attach to the bond funds.” Affirmed.
Other acts evidence; MCL 768.27a; MRE 404(b); People v VanderVliet; People v Watkins; “Sexual contact”; Prejudice; MRE 403; Harmless error
Holding that the trial court did not err by admitting the other acts evidence through the testimony of witnesses-MW, ZG, and RI (except in one instance that was harmless), the court affirmed. Defendant-Evink was convicted of CSC I and II. As he did “not dispute, at least some of MW’s testimony pertained to incidents that occurred when she was a minor and constituted listed offenses under MCL 768.27a. Accordingly, the trial court did not abuse its discretion by concluding that such testimony was admissible under” the statute. The court concluded that the evidence was not more prejudicial than probative, and it “gave a limiting instruction to the jury on the proper purpose for the” other acts evidence. Thus, it held that “the trial court did not err by admitting MW’s testimony of her abuse that continued into adulthood under MRE 404(b).” It also found “ZG’s testimony that Evink presented his naked body to her constitute[d] evidence of the offense of indecent exposure,” but it noted that “indecent exposure is not a listed offense,” as the prosecutor conceded. The court held “that the trial court erred by admitting ZG’s testimony about these incidents of exposure under MCL 768.27a. Similarly, Evink’s conduct while feeling ZG’s bed at night did not constitute a listed offense because ZG did not testify that Evink’s physical contact was sexual contact.” Thus, the trial court “erred by admitting ZG’s testimony about this incident under MCL 768.27a.” However, it found “Evink’s act of touching ZG’s buttocks and keeping his hand there after she tried to move away from him constitute[d] ‘sexual contact’ of the ‘intimate parts’ of a person under 13 years old . . . . ” The court found “ZG’s testimony about this touching established that testimony was admissible under MCL 768.27a.” The court held under “VanderVliet, the prosecution identified a proper purpose for the introduction of MW’s allegations that occurred when she was an adult as Evink’s ‘plan or scheme’ to commit the assaults with ‘distinguishing characteristics.’” It found the “evidence also satisfied the second VanderVliet factor of logical relevance under MRE 401 and MRE 402 because [it] was material and had probative value.” And it was also “material because the conduct she described had similar characteristics of his abuse of multiple victims when they were asleep and under covers, which showed a likelihood that the assaults alleged by the victim occurred.” Further, RI’s claim “that Evink rubbed his penis on [her] hands constituted ‘sexual contact’ with someone under the age of 13” for purposes of CSC II, because ‘“sexual contact’ requires touching of a victim or actor’s ‘intimate parts,’ which are ‘the primary genital area, groin, inner thigh, buttock, or breast.’” Further, it appeared “that RI’s testimony that Evink stood over her while naked, though not technically a listed offense alone under MCL 768.27a, was part of [his] conduct in making sexual contact with her.” Also, “the evidence offered through the testimony of MW, ZG, and RI under MCL 768.27a was not overly prejudicial . . . .”
Sufficiency of the evidence for a kidnapping conviction; MCL 750.349(1)(d); “Restraint” (MCL 750.349(2)); Great weight of the evidence; Sentencing; Scoring of PRV 5 & OVs 4, 10, & 14; MCL 777.55(1)(d); People v Love; MCL 777.34(1)(a) & (2); MCL 777.40(1)(a); “Predatory conduct”; People v Cannon; MCL 777.44(1)(a); “Lead”; Multiple offender situation; People v Ackah-Essien; Ineffective assistance of counsel; Failure to present evidence an earlier conviction was obtained without counsel & to object to the scoring of OV 14; Failure to make a futile argument or objection
The court held that there was sufficient evidence to support defendant-Nardini’s kidnapping conviction and that the conviction was not against the great weight of the evidence. As to his sentencing, it concluded the trial court did not err in scoring 5 points for PRV 5, 10 points for OVs 4 and 14, and 15 points for OV 10. Further, it rejected his claim his attorney “was ineffective for failing to present evidence that his earlier conviction was obtained without counsel” and for not objecting to the scoring of OV 14. He was also convicted of absconding or forfeiting bond. He was sentenced as a second-offense habitual offender to concurrent terms of 2 to 6 years for that conviction and 20 to 60 years for kidnapping. The case arose from his kidnapping of his biological child, LN. His estranged wife (P) is LN’s mother. Nardini had previously taken “physical custody of LN. There was not a formal custody agreement or court order,” P stated that on 1/9/23, while Nardini was incarcerated on other charges, “she went to her attorney to seek an ex parte order for LN’s return. The ex parte order provided, ‘Ex-parte Order for Minor Child to be Returned to the Plaintiff’s Care Until Further Order of the Court.’ The order was served on Nardini in jail before his release.” Thus, when he took LN out of state after he was released from jail, “he did so without legal authority, satisfying part of the statutory definition of ‘restraint,’ i.e., without lawful authority.” In addition, his “own testimony provided evidence of restraint. At trial Nardini stated that he took control of LN at a fast food restaurant, put her in her car seat, and buckled her in. When asked if LN was free to leave, Nardini replied ‘[s]he was buckled in her car seat.’ . . . When the prosecution asked Nardini, ‘You weren’t going to let her wander off out of that car seat and start walking down the road, were you?’ Nardini replied, ‘Absolutely not.’ In short, he intended to take LN wherever he wanted, ‘no matter what LN would have said . . . [.]’ These actions meet the statutory definition of restraint because LN’s movements were restricted and she was confined.” The court added that police located and arrested him in Ohio. “During his arrest, he admitted to taking LN outside of the state, thus satisfying the relevant remaining element of kidnapping.” Affirmed.
Sentence reduction; USSG §§ 1B1.10(a) & (d); 18 USC §§ 3553(a) & 3582(c)(2); Dillon v United States; Eligibility for a reduction; The Sentencing Commission’s Amendment 821 to the Sentencing Guidelines; Whether the district court adequately explained its discretionary denial of relief
[This appeal was from the ED-MI.] The court held that the district court did not abuse its discretion by using a form order with a few sentences of analysis in denying defendant-Davis-Malone’s request for a sentence reduction under Amendment 821 to the Sentencing Guidelines. Defendant pled guilty to FIP and the district court sentenced him to 60 months, which at the time was below his Guidelines range. Months later, the Sentencing Commission passed Amendment 821, which changed the way that district courts should calculate defendants like Davis-Malone’s criminal history score where they committed their offense while still serving a sentence for a prior offense. This change was retroactive and resulted in a reduced guidelines range of 57 to 71 months. Although the parties stipulated to a three-month reduction, the district court declined to reduce his sentence. Applying the two-step approach in Dillon, the court explained that the district court had to first determine whether defendant was eligible for the reduction and then determine whether he warranted “a shorter sentence as a matter of the court’s residual discretion.” The court first rejected Davis-Malone’s claim that the district court ruled he was ineligible for a reduction, holding that the district court’s “reasoning shows that it recognized Davis-Malone’s eligibility and denied him relief because its original sentence continued to represent the proper punishment.” It also held that the district court adequately explained its denial of discretionary relief. It is not necessary for district courts to “issue a written opinion engaging in a point-by-point rebuttal of every argument for every sentence-modification motion.” The court noted that this “is especially true when a defendant’s original sentence remains within the amended guidelines range even after accounting for the relevant amendment.” Moreover, it reasoned that just because the district court did not “mention his post-sentencing rehabilitation efforts,” did not mean that it “did not consider these efforts (as it had to do).” Affirmed.
Premises liability; Duty; Whether a co-owner of a common area in a condo complex can be an invitee or licensee for purpose of a premises liability claim; Janini v London Townhouses Condo Ass’n (overruling Francescutti v Fox Chase Condo Ass’n)
On remand from the Supreme Court, the court held that the trial court erred by awarding summary disposition for defendant-condo association because it relied on the holding in Francescutti “that a co-owner of ‘the common areas of [a] condominium’ development ‘is neither a licensee nor an invitee’ as to the common areas even if the co-owner does not control the common areas.” In a prior appeal, the court affirmed the trial court’s grant of summary disposition for defendant based on Francescutti. However, the Supreme Court held that the court erred by finding that “‘a condominium co-owner is neither a licensee nor an invitee and thus is precluded from bringing a premises liability claim against a condominium association simply because the condominium co-owner holds an interest in those common elements.’” It overruled Francescutti and “clarified ‘that the proper inquiry when considering the duty owed in a premises-liability context is who holds possession and control over the land where a person was injured and not merely who owned the land.’” On remand, the court found that the trial court’s summary disposition award for “defendant was in error because it relied on the holding in Francescutti that a co-owner of ‘the common areas of [a] condominium’ development ‘is neither a licensee nor an invitee’ as to the common areas even if the co-owner does not control the common areas.” The incident in this case “occurred on a common area of the condominium development when [plaintiff] allegedly pried off a cover of a standpipe, fell headfirst into the standpipe, and drowned. Although [she] was a co-owner of a condominium unit, that fact does not bar a premises-liability claim based upon her status as a licensee or an invitee.” Reversed and remanded.
Petition to terminate parental rights based on sexual abuse; MCL 722.638(1)(a)(ii); Jurisdiction; MCL 712A.2(b); In re SLH; Abandonment of an issue
Holding that the trial court did not err when it declined to exercise jurisdiction over the children, the court affirmed the order dismissing the DHHS’s petition to terminate respondent-father’s parental rights. The DHHS petitioned for termination after respondent was charged with CSC I for assaulting his stepdaughter. On appeal, the court rejected its argument that the trial court erred by dismissing the petition at the pretrial hearing without conducting a fact-finding adjudication. The trial court’s findings reasonably led it to conclude that the children “were not ‘subject to a substantial risk of harm,’ and that their ‘home or environment’ was not ‘an unfit place’ for them to live.” As such, because the DHHS “did not prove a statutory ground . . . the trial court correctly declined to assume jurisdiction over the children.” It was “correct to point out that it properly filed a petition for termination pursuant to MCL 722.638(1)(a)(ii), but because the trial court found that the statutory grounds for jurisdiction” were not met, it “was unable to continue with the proceedings.” The court also found that the DHHS abandoned its claim that the trial court was obligated to hear the evidence at an adjudication hearing, as it did “not present any authority in support of this argument.” And the record was “clear that the DHHS had ample opportunity to present evidence and argument to establish a statutory ground for the trial court to assume jurisdiction, but failed to do so.”
Termination under § 19b(3)(i); Child’s best interests; MCL 712A.19b(5); In re LaFrance; Relative placement; In re Atchley
Holding that § (i) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of homelessness and neglect, failure to seek adequate prenatal care, and her prior CPS history and terminations. In a prior appeal, the court remanded “for clarification of the evidence on which the trial court relied in support of its finding of statutory grounds, and an explanation for why those factual findings supported a conclusion that the DHHS established a statutory ground for termination by clear and convincing evidence.” On remand, the trial court complied with the remand order. In the present appeal, the court concluded the trial court did not err in its findings as to statutory grounds or best interests. “[A]t the adjudication and statutory grounds stage, there was ample testimony referenced by the trial court on remand that respondent . . . did not rectify the housing problem that led to her prior terminations.” In addition, “housing issues still persisted beyond the adjudication and statutory grounds hearing, such that there was no meaningful change in the conditions that led to adjudication.” Finally, although respondent highlighted “her visitation record and bond with [the child], improvements in her housing situation, and her willingness to participate in a service plan, these factors [did] not overcome the evidence that termination of” her parental rights was in the child’s best interests. The record showed her parenting ability was “compromised by her poor decision making and minimization of behaviors that led to her prior terminations.” And although relative placement generally weighs against termination and the child was placed with a relative, the trial court found that under the relative’s care, all of the child’s needs were met, and the relative was able to provide the child “with permanency, safety, stability, and a bond with his other siblings.”