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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Petition for attorney fees under the Equal Access to Justice Act (EAJA); Effect of Congress’s repeal of the program plaintiff challenged before he received the final judgment; A “prevailing party”; Whether the government’s litigating position was “substantially justified”; 28 USC § 2412(d)(1)(A)
In an order, the court denied a petition for rehearing en banc in a case (see e-journal # 82363 in the 10/7/24 edition) in which the original panel held that the government’s position during the “litigation was ‘substantially justified’ within the” meaning of the EAJA.
The Individuals with Disabilities Education Act (IDEA); 20 USC § 1400; A “free appropriate public education”; §§ 1401(29) & 1412(a)(1); Endrew F ex rel Joseph F v Douglas Cnty Sch Dist RE-1; Individualized education plan (IEP); Administrative law judge (ALJ)
The court held that plaintiff-student’s (William) IEP did “not provide him the ‘free appropriate public education’ to which he is entitled” under the IDEA where he graduated from high school unable to read. William, who was diagnosed with a learning disability, met none of his IEP’s fluency goals in reading proficiency from the fifth grade to high school despite receiving speech therapy and one-on-one instruction. In the 11th grade, he was diagnosed with dyslexia. His “parents arranged for him to receive private tutoring from a dyslexia specialist[.]” Defendant-school district rejected her recommendation that William continue with a program designed to help dyslexic persons learn to read as part of his IEP. His parents expressed concern that he was not receiving all the help he needed, and filed an administrative complaint under the IDEA. An ALJ ruled that defendant had deprived William of a “‘free and appropriate public education’” under the IDEA and as compensatory education, ordered it to provide him “with 888 hours of dyslexia tutoring by a trained reading interventionist.” The district court reached the same conclusions as the ALJ and ordered the same relief. On appeal, the court explained that under the IDEA, “the school must offer an [IEP] ‘reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.’” The ALJ and the district court determined that “William’s IEPs were not tailored to his circumstances—because those plans focused on fluency, while bypassing more foundational skills necessary for him to read.” Defendant argued that he did receive his “free and appropriate education” because he was in a general classroom and had over a 3.0 grade average. “But the Supreme Court has never held that ‘every handicapped child advancing from grade to grade’ necessarily receives the free and appropriate education mandated by the IDEA.” The court held that William did not receive the education to which he was entitled. The “most salient ‘circumstance’” here was that he can learn to read, with proper instruction. Defendant did not try “to prove that finding wrong; yet William graduated from high school without being able to read or even to spell his own name. That was because, per the terms of his IEPs, he relied on a host of accommodations that masked his inability to read.” The court concluded that “when a child is capable of learning to read, and his IEP does not aim to help him overcome his particular obstacles to doing so, that IEP does not provide him the ‘free appropriate public education’ to which he is entitled.” Affirmed.
Foreclosure action under the Construction Lien Act (CLA); Whether a failure to redeem renders an appeal of a construction lien foreclosure action moot; Comparing Bryan v JP Morgan Chase Bank (foreclosure by advertisement) & Can IV Packard Square, LLC v Packard Square, LLC (judicial foreclosure); Use of credit bids; MCL 570.1123(3); Bank of Am, NA v First Am Title Ins Co; Disbursement of surplus funds; MCL 570.1118(2); MCL 570.1121(4); Due process; WL Acquisitions (WLA); Revised Judicature Act (RJA)
Addressing an issue of first impression, the court held that defendants’ failure to redeem the property at issue extinguished their rights related to it under the CLA and rendered many of the issues they raised on appeal moot. But it found that defendant-WLA (the title holder) may seek the surplus balance from the foreclosure to the extent any exists. Plaintiff and other claimants sued defendants for outstanding payment of construction services rendered. The trial court ruled for plaintiff and agreed to its foreclosure proposal. Plaintiff purchased the property, the trial court affirmed the sale, and the funds were disbursed among claimants. On appeal, the court largely agreed with plaintiff “that WLA’s failure to redeem within the redemption period render[ed] this case moot, with the exception of” WLA’s argument “regarding the trial court’s responsibility to determine the amount of a surplus (if any).” It noted that while “judicial foreclosures and foreclosures by advertisement are governed by the [RJA], and the foreclosure at issue in this case is governed by the CLA, [there is] no basis to treat the effect of foreclosure under the CLA differently than foreclosures under the RJA. All of these foreclosure statutes contain the same language vesting rights, title, and interest in the grantee of the resulting deed.” As such, “to the extent that WLA seeks to set aside the foreclosure sale,” its appeal was moot. The court then rejected WLA’s argument that the trial court should not have allowed plaintiff to make a credit bid at the foreclosure sale of the property. It found that: (1) “the CLA contemplates credit bids related to receivership foreclosures, and there is no reason not to apply the same provision” to judicial foreclosures, (2) “to prohibit credit bids would undermine the function of the statute,” and (3) “credit bids are allowed in other related contexts, and” there was no reason why they should not apply here. However, “it was an error to allow the credit bid without first determining the amount of” the lien or subsequently determining it. Without making the required findings under MCL 570.1118(2), the trial court “could not determine whether and to what extent WLA could recover surplus proceeds under MCL 570.1121(4).” Finally, the trial court “did not violate WLA’s right to due process by maintaining control over the proceedings with the mild sanction of ordering WLA’s counsel to be muted at times during the oral hearings.” WLA’s right to be heard was not violated. Affirmed in part, reversed in part, and remanded.
Promissory estoppel; Harmless error; MCR 2.116(G)(5); Breach of a guaranty contract; Statute of frauds; Consideration; Training & Treatment Innovations, Inc. (TTI)
The court held that the trial court erred in failing to consider an affidavit in deciding whether there was a question of fact as to plaintiff’s reliance on defendant-TTI’s “assurances; however, because plaintiff cannot establish a viable claim for promissory estoppel, the error was harmless.” It also concluded the trial court did not rely on a violation of the statute of frauds in granting TTI summary disposition. Finally, any error related to its findings as to the lack of consideration was harmless. “Plaintiff is the owner of residential rental properties. TTI is a nonprofit agency that provides, among other things, housing assistance to its clients.” After receiving correspondence from TTI, plaintiff rented a property to defendant-Walker. It argued on appeal, among other things, that the trial court erred in granting TTI summary disposition of its promissory estoppel claim because it failed to consider the affidavit of E, “an individual ‘affiliated with plaintiff,’” in which he “stated that as part of his responsibilities, he handled the rental properties, dealt with potential renters, and approved them to lease plaintiff’s properties.” E asserted “that Walker was only approved to lease the property because of the assurances provided by TTI and that but for these assurances, he would not have approved the rental of the property by Walker.” The court found that it was clear from the record that the trial “court failed to consider the [E] affidavit because it did not sufficiently review the parties’ briefs and the exhibits attached thereto.” It concluded that considering the existing record, the trial “court’s denial of reconsideration on the grounds stated was an abuse of discretion, exalting form over substance.” It further determined that “the trial court’s actions contravened the requirements of MCR 2.116(G)(5).” But the court held that while “the trial court abused its discretion when it failed to consider the [E] affidavit when ruling on the cross-motions for summary disposition, any error in this regard was harmless. Because there was no clear and definite promise to be financially responsible for Walker’s actions, plaintiff’s promissory estoppel claim must fail.” In addition, “the trial court correctly ruled, as a matter of law, that the” letters from a housing program manager with TTI “were insufficient to constitute a binding guarantee by TTI.” Affirmed.
Admission of incriminating statements defendant made at a proffer session; FRE 410; Waiver; Whether defendant offered evidence or arguments “inconsistent” with his proffers; Whether invoking the Fifth Amendment implies the falsity of a prior admission; Whether defendant’s direct testimony that he was not a drug dealer or a felon in possession was inconsistent with his proffer statement that he owned the drugs in a vehicle; United States v Rosemond (2d Cir); Whether the proffers were admissible as res gestae evidence; Whether error was harmless
The court held that the admission of defendant-Grogan’s proffer confessing ownership of drugs was improper and harmful, requiring reversal of his convictions. It concluded that invoking the Fifth Amendment does not imply a prior admission was false and that “questioning whether the government can prove that” a defendant did something does not amount to a denial that defendant did it. Grogan was convicted of FIP, possessing a firearm in furtherance of drug trafficking, and possessing fentanyl with intent to distribute. Before trial, he made several statements at a proffer session, including an admission that he owned the drugs found in a car. The government used this evidence at trial. Grogan argued that its admission was contrary to the proffer agreement, which provided that a particular statement from the proffer session could be introduced only if he “testified or presented arguments inconsistent with that statement.” The government argued as to some statements that he “testified inconsistently when he invoked the Fifth Amendment at trial[.]” The court disagreed. It noted that “a defendant's refusal to testify has no factual content that could contradict a purportedly different factual statement.” And Supreme Court precedent provides “that ‘no inferences whatever can be legitimately drawn’ from invoking the Fifth Amendment.” The government also argued his testimony that he was not a drug dealer or a felon in possession was inconsistent with his proffer statement that he owned the drugs. The court found that it was a “close” call but disagreed. “Grogan’s testimony primarily tried to undermine the sufficiency and reliability of the government’s evidence generally, not the accuracy of the specific facts.” The question became “does questioning whether the government can prove that you did something amount to a denial that you did it?” The court agreed with the Second Circuit in Rosemond that it does not. “Because Grogan neither made statements nor offered arguments inconsistent with his proffer that the drugs belonged to him, the trial court’s admission of the proffer statement was improper and an abuse of discretion.” The court also held that some of the other challenged statements were improperly admitted. Further, it rejected the government’s argument that the proffers were admissible as res gestae evidence. Finally, it found that the error was not harmless where “even if the government’s remaining evidence makes it implausible that anyone else owned the drugs, its heavy reliance on the proffer––a confession in which Grogan admits the drugs were his––undermines our confidence that ‘the judgment was not substantially swayed by the error.’” Reversed and remanded.
Trust dispute; The Estates & Protected Individuals Code (EPIC); Standing; “Interested persons” (MCL 700.1105(c)); MCL 700.1205(1)(a) & (b); MCR 5.125; “Child” (MCL 700.1103(h)); “Heir” (MCL 700.1104(p)); Res judicata; Applicability of Reich v State (Reich II); Temporary restraining order (TRO); Judgment of divorce (JOD)
Holding that petitioners were not “interested persons” under the EPIC and that res judicata barred their claims, the court affirmed the probate court’s order granting respondents summary disposition in this dispute over a trust. Petitioner-Haist “is the ex-wife of decedent Dennis Haist.” They were before the court in a divorce action when the decedent died. The court dismissed that appeal. Respondents and petitioner-Kuhl are the decedent’s daughters. Petitioners filed a combined complaint and petition requesting that respondents “be examined about trust property pursuant to MCL 700.1205(1), and trust assets that were improperly distributed and should be returned pursuant to MCL 700.391.” Haist contended she was “an interested person because she is a judgment creditor of the estate.” This claim was “based on her allegation that the decedent violated the terms of the TRO issued during the divorce proceedings. That claim was previously rejected by the circuit court” in an order that she unsuccessfully appealed to the court. Given that she “never filed an application for leave to appeal with the Michigan Supreme Court in” the divorce case, her “avenues for seeking appellate relief from that decision have been exhausted.” Kuhl asserted she was “an interested person because she is the decedent’s child and heir, as those terms are defined in EPIC.” The parties stipulated that she was an heir. But “any interest she had in the estate was foreclosed by provisions of the decedent’s [8/31/21] will, in which [he] specifically disinherited” her. The court added that this proceeding concerned “Haist’s recovery of assets she claims were due her under the terms of the JOD. Petitioners have not established that Kuhl has any financial interest in those assets.” As to the applicability of res judicata, the court rejected their argument that no final order was entered in the prior case due to the decedent’s death. The circuit court in that case “disposed of all of Haist’s claims because they lacked merit” and the court dismissed her appeal not because of the decedent’s death but because “Haist took no action within the time prescribed in MCR 2.202(A)(1) to substitute a proper party.” The court further noted that she “was a party to the prior litigation, and the issues presented in this case are the same issues she presented in the prior case.” It found that the probate court properly ruled that res judicata applied.
Immunity under the Governmental Tort Liability Act (GTLA); Odom v Wayne Cnty; Gross negligence; MCL 691.1407(8)(a); Proximate cause; Ray v Swager; Intentional infliction of emotional distress (IIED); Graham v Ford; Presumption of good faith; The Social Welfare Act; MCL 400.11c(1); Adult Protective Services (APS)
The court held that the trial court erred by denying defendant-APS employee summary disposition of plaintiffs’ negligence claims, but did not err by denying him summary disposition of their IIED claim. Plaintiffs sued defendant and others after their relative, a developmentally disabled adult, died while receiving inpatient medical care and supervision. On appeal, the court agreed with defendant that the trial court erred by denying him summary disposition of plaintiffs’ negligence-based tort claims because it misapplied the proximate-causation standard under the GTLA. “Although the trial court articulated the operative proximate-causation standard in a . . . footnote, it applied the incomplete proximate-causation articulated in the body of its written opinion and order when it concluded that there remained genuine issues of material fact as to whether” defendant proximately caused plaintiffs’ alleged injures. “[T]he trial court erroneously failed to consider whether [defendant] was the ‘the one most immediate, efficient, and direct cause’ of plaintiffs’ alleged injuries.” However, the court rejected defendant’s claim that the trial court erred by denying him summary disposition of plaintiffs’ IIED claim because he acted in good faith. Even if he “was presumed to have acted in good faith, plaintiffs’ allegations, if proven, would be sufficient to overcome the presumption.” Affirmed in part, vacated in part, and remanded.