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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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The Federal Arbitration Act; Whether there was an “agreement to arbitrate”; The Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (EFAA or the Act); Whether the EFAA allowed plaintiff to take her claim to the courts; 9 USC § 402(a); § 401 application note; When the claim “accrued”; When the “dispute” arose; Olivieri v Stifel, Nicolaus & Co (2d Cir); Famuyide v Chipotle Mexican Grill, Inc (8th Cir); United Wholesale Mortgage (UWM)
[This appeal was from the ED-MI.] In a matter of first impression in this circuit, the court held that “the EFAA applies to claims that accrue after its date of enactment and to disputes, understood as controversies between the parties, that arise after that date.” It reversed the district court’s ruling compelling arbitration and remanded. Plaintiff-Memmer sued her prior employer, defendant-UWM, alleging discrimination, including sexual harassment. UWM moved to dismiss and compel arbitration under their employment agreement. The district court granted the motion. Memmer argued that she had the right to sue under the EFAA regardless of the agreement. UWM argued that her claims accrued before the EFAA was enacted. The court first found that “the district court correctly concluded that Memmer and UWM agreed to arbitrate[,]” and that her claims fell within the scope of that agreement. However, it explained that Congress’s recently enacted EFAA “allows an individual claiming sexual harassment or assault to elect judicial resolution, rather than arbitral resolution of their claims, even if the individual previously agreed to arbitrate such claims if they arose.” In § 401’s application note, Congress stated that this Act “‘shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act,’ which was” 3/3/22. After examining the EFAA’s language, the court held that “the EFAA applies to claims that accrue and disputes that arise on or after” 3/3/22. It concluded that each of these clauses has a separate meaning, citing a Second Circuit case, Olivieri, and an Eighth Circuit case, Famuyide, in support. It then considered whether Memmer’s sexual harassment “claim” accrued, or the “dispute” arose, on or before 3/3/22. It held that her “claim accrued before the date of enactment . . . because she quit her job several months prior, and any injury, therefore, preceded that date. However, all subsequent events, including the filing of a charge with the EEOC, took place after the date of enactment. When the dispute—the controversy between the parties—arose under the facts of this case is a question best answered in the first instance by the district court.” Thus, the court remanded “for the district court to decide and, if needed, obtain a factual record on which to do so.”
Enforceability of an agreement (& amendment to it) between condo associations; Whether the condo association’s board of directors (on behalf of the association) had authority to enter into the agreement & amendment without the co-owners’ approval; The Michigan Condominium Act; MCL 559.190(1) & (2); Arbitration as a matter of contract; Altobelli v Hartmann; Dismissal of the counter claims
Concluding that the agreement at issue in this dispute between two condo associations “did not materially alter the rights of the co-owners,” the court held that it was valid and thus, the trial court did not err in compelling arbitration pursuant to it. Plaintiff-Walden Hills II Condominium Association (Summit View) and defendant-Walden Hills arose from two developments built in the 1960s as one apartment complex. The property included recreational areas collectively known as the community building, the source of this dispute. It is located within defendant’s boundaries. Defendant entered into the agreement (Agreement for Use of Community Facilities) in 1983. “Summit View and Walden Hills shared the community building with no issue for over 30 years.” After a dispute arose, defendant began to operate the building on its own in 2021, “claiming the 1983 agreement and the later amendment were invalid because they were not approved by a two-thirds vote of the condominium owners.” Plaintiff sued, seeking “to compel arbitration pursuant to the agreement.” The court concluded “the trial court did not err in finding the Walden Hills board of directors, on behalf of the Walden Hills Condominium Association, had authority to enter into the agreement and subsequent amendment without approval of the co-owners” in light of MCL 559.190(1). The court held that the “plain language of the 1983 agreement shows that it did not materially alter the rights of the co-owners.” Nothing in the master deed, articles of incorporation, or bylaws prohibited the board from “entering into an agreement with its adjoining condominium association—which enjoys an easement over the recreational areas—to share the administration, regulation, maintenance, and associated costs related to the recreational area though the creation of a governing committee.” The court noted that “the agreement established a method by which the co-owners of Walden Hills and the subsequent co-owners of Summit View, would continue to owe their share of the community building’s expenses. This change in the cost-sharing formula was necessary to carry out the master deed’s intent of having Walden Hills and Summit View share the rights and obligations of the community building, and thus did not materially alter the co-owners’ rights.” Affirmed.
Hearsay; Right of confrontation; Statements offered to explain why the police did what they did; People v Lewis; Reliance on information in the Law Enforcement Information Network (LEIN); Warrantless arrest; MCL 764.14(1)(e); Validity of an arrest warrant; Waiver; Sufficiency of the evidence for a resisting & obstructing a police officer conviction (MCL 750.81d(1)); Ineffective assistance of counsel; Failure to object & to request a limiting jury instruction; Instructions on the elements of resisting and obstructing & when an arrest is legal; Prejudice
The court rejected defendant’s hearsay and Confrontation Clause arguments and held that there was sufficient evidence to support her resisting and obstructing an officer conviction. Her ineffective assistance of counsel claims also failed, as the court found that even assuming deficient performance, she did not show any prejudice. She contended that statements made by the arresting officers’ superiors “—that there was a valid arrest warrant and it was entered in LEIN—constituted inadmissible hearsay and violated the Confrontation Clause.” But under Lewis, as defendant conceded, “the statements could have permissibly been offered ‘to explain why the police did what they did after receiving the report.’ As such, [they] ‘may be properly admitted for purposes other than to show the truth of the matter asserted, such as to show the listeners’ knowledge or motives if relevant to an issue in the case.’” The statements here “explained why the arresting officers went to the house after being informed of the arrest warrant, and as defendant notes, an officer may rely on LEIN information as the basis for an arrest.” The court added that, assuming the statements were offered to prove the truth of the matter asserted, an arrest may occur without a warrant under MCL 764.14(1)(e). One of the arresting officers (T) “was informed by two authoritative sources there was an arrest warrant and it was active on LEIN. The statements did not violate the Confrontation Clause because statements ‘offered to show why police offers acted as they did [are] not hearsay.’” The court found that defendant failed to show plain error affecting any substantial rights as to admission of the statements. As to the sufficiency of the evidence, she challenged the third element, asserting that T “acted unlawfully because the arrest warrant was invalid. This argument lacks merit, as the jury could determine [T] acted lawfully when arresting defendant, as [T] was informed by the superior officers that there was a valid arrest warrant for defendant, which was verified by LEIN. The admissible evidence showed that the arresting officer arrested defendant because there was an outstanding arrest warrant, providing the officer with reasonable cause to believe defendant had committed a crime,” satisfying this element. The evidence, viewed in the light most favorable to the prosecution, allowed a reasonable jury to find T acted lawfully. Affirmed.
Motion to modify child support; Collateral attack on the Judgment of Divorce (JOD) & Uniform Child Support Order (UCSO); Change of circumstances (COC)
The court held that plaintiff-father was not entitled to relief on appeal because his argument was “an impermissible collateral attack on the 2018 JOD and UCSO.” Thus, it affirmed the trial court’s order, entered after a de novo hearing, denying his fourth motion to modify child support. Plaintiff argued that the trial court erred in denying his motion because it “did not comply with the requirements of MCL 552.605(2) when entering the JOD and UCSO.” The only way he “could prevail on appeal is not to attack the validity of the original order, but to instead demonstrate that there was a [COC] to warrant modifying” the award. These “circumstances include changes in the physical custody of a child that the court has not ordered, the child’s needs, the financial conditions of the recipient or payer of support, or that the initial order was based on incorrect facts. In his fourth motion to modify child support, plaintiff alleged that there was a [COC] to justify modification because defendant’s income increased and the children were no longer in daycare or latch key programming. But the trial court did not clearly err in its findings that plaintiff failed to establish a [COC] to warrant modification. Additionally, the order referred parenting time issues to the FOC, and any changes to plaintiff’s parenting time will be taken into consideration in any new child support calculations.”
Custody; Proper cause & change of circumstances; Vodvarka v Grasmeyer
The court vacated the trial court’s order denying defendant-mother’s motion for a change in custody and parenting time, and remanded for further proceedings. The parties “share joint physical and legal custody of their biological child.” Defendant argued that because she alleged proper cause and change of circumstances pursuant to Vodvarka, “the trial court erred by denying her motion without first holding an evidentiary hearing on the disputed facts.” She also asserted that it “did not offer a rationale for its decision, and given the lack of findings presented by the trial court, this Court should remand for further proceedings.” The court concluded that although “the trial court was not required to conduct an evidentiary hearing in making the threshold consideration as to proper cause or change in circumstances, . . . it must determine ‘by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion[.]’” It did not fulfill that obligation. At the end of the hearing, the trial “court did not indicate it was accepting as true defendant’s allegations in support of proper cause or change in circumstances. Nor did it require defendant (or plaintiff) to provide an offer of proof. And, finally, it did not hold an evidentiary hearing to determine the veracity of defendant’s evidence (if any) in support of her allegations.” On appeal, the court “must review the trial court’s determination to determine whether ‘the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’” The court noted that this was “not de novo review, and in the absence of any explanation as to why the motion was denied, we cannot conduct our appellate review under these deferential standards of review.” It remanded the case “for the limited purpose of allowing the trial court to present its findings as to why defendant did not establish proper cause or change circumstances[.]” The court retained jurisdiction.
Dismissal of the case without prejudice; Due process; Distinguishing Vincencio v Jaime Ramirez, MD, PC; Sanction of dismissal without prejudice
The court held that plaintiffs “provided no meaningful legal support for their due-process argument.” Also, under the “circumstances, the trial court had no options other than adjourning the trial (while a jury panel was waiting outside the courtroom) or dismissing the case without prejudice, which effectively postponed the trial until after plaintiffs refiled their complaint.” The court held that there was no abuse of discretion. Plaintiffs challenged “the trial court’s dismissal of this case without prejudice on two grounds. First, they insist [its] changes of the trial date amounted to a violation of due process. Second, they claim the trial court abused its discretion by failing to impose a sanction less severe than dismissal without prejudice.” While they alleged a due process violation “in the scheduling of their trial, they neither advanced that argument in the trial court nor explained the nature of that claim in their briefs on appeal.” Thus, their effort to present such a claim fell “prey to the raise-or-waive rule because they failed to assert their claim in the trial court, . . . as well as abandonment principles because they failed to explain their position on appeal.” Plaintiffs relied on Vincencio “for the principle that ‘due process requires that the notice given be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ But here, the trial court scheduled the [3/4/24] trial date months ahead of time, and then ultimately adhered to that trial date by adjusting its schedule by clearing other matters to make room for the trial in this case. To be sure, [it] at first tried to move the trial, but it relented almost immediately after learning that adjourning the trial for one week was unworkable for the parties and their attorneys..” Plaintiffs also complained that it “failed to consider lesser sanctions before dismissing the case without prejudice.” Again, they relied on Vincencio, “but this time for the proposition that ‘[o]ur legal system favors disposition of litigation on the merits.’” The court noted that had “the trial court dismissed this case with prejudice, plaintiffs would have been deprived of a disposition on the merits. But [it] instead dismissed the case without prejudice, allowing [them] the opportunity to promptly refile the case (which they did) and ultimately obtain a disposition on the merits (which they will receive once the stay of the new case pending this appeal is lifted). In sum, the trial court’s dismissal of the case without prejudice has effectively granted plaintiffs the fifth adjournment of trial that they seemed to request in the courtroom on [3/4/24]. Even if the dismissal without prejudice must be reviewed despite the fact that it effectively gave plaintiffs what they wanted on” 3/4/24, the court found no basis for relief. It concluded the trial court did not abuse its “discretion in any of the actions” it took on the morning of the scheduled “trial or in the days leading up to the trial date.” Affirmed.
Negligence claim for debris ejected from a lawnmower; Exclusion of parts of an expert’s testimony; MRE 702; People v Lemons
Holding “that the trial court correctly discharged its duty as gatekeeper of the expert’s testimony” when it excluded parts of the testimony, the court affirmed the order entered on the jury’s verdict of no cause of action. Plaintiff asserted a negligence claim against defendant, a landscaping business, after he was struck by “debris ejected from defendant’s lawnmower” in a park. He argued on appeal that the trial court erred in excluding parts of his expert’s (G) testimony as to “whether the incident occurred, the cause of the alleged incident, and any subject deemed scientific in nature.” The court disagreed. While the trial court ruled that G “could testify as a person with specialized knowledge in the field of lawn care,” plaintiff wanted to introduce testimony from G “that debris from the mower struck plaintiff, and that the only way that could occur was if defendant had been negligent. The trial court observed that that testimony would require an accident reconstructionist with knowledge of the scientific bases regarding projectiles.” The court concluded that for G to give an opinion as to “causation and negligence would require [G] to rely on scientific expertise he does not possess. Because [G] was not qualified as a scientific expert, and because there was no demonstration of underlying scientific principles supporting his conclusions regarding causation, the trial court did not abuse its discretion by excluding a portion of [G’s] testimony, and plaintiff is not entitled to a new trial.” The court further found that the record supported “the jury’s finding of no cause of action even apart from the issue of” G’s testimony. “A reasonable juror could conclude that plaintiff’s testimony lacked credibility and was unpersuasive that the condition of his left ear was caused by an event on [5/6/21]. He testified that on that day, he suddenly found himself lying on the ground in the park after apparently being hit in the left side of the head.” But witness-S “testified that he heard the mower hit a stick, but did not see anything hit plaintiff, plaintiff did not appear to be injured, and [he] remained at the meeting for another 30 minutes without leaving or seeking medical care.” The court also noted that plaintiff and his mother testified that he injured his ear in late 2020, underwent unsuccessful surgery on his left ear in 3/21, “and that his medical condition was still unresolved on the day of the incident.”
Removal; Risk of harm; MCL 712A.13a(9)(a); MCR 3.965(C)(2)(a); Alternative to removal
Concluding that the trial court did not clearly err by holding that there existed a risk of harm to the child (RW) in respondent-mother’s “care and that no alternatives to removal were reasonably available,” the court affirmed “the trial court’s order authorizing the petition and removing RW from respondent’s care following a preliminary hearing.” Respondent argued that the trial court failed to make factual findings as to “whether allowing RW to remain in her care presented a substantial risk of harm to RW’s life, physical health, or mental well-being under MCL 712A.13a(9)(a) and MCR 3.965(C)(2)(a).” The court disagreed. “The trial court determined that respondent’s mother, with whom respondent lived, had health problems, was confined to a wheelchair, and was unable to care for RW. Nonetheless, respondent repeatedly left RW alone in the home with her mother while she used” meth with RW’s biological father, AG. It recognized that her “conduct created a ‘very dangerous situation.’” The trial court also found that she “had a ‘very dangerous’ relationship with AG, who encouraged her to use” meth. Its findings were not clearly erroneous. The record showed “that respondent’s living environment involves domestic violence and substance abuse.” CPS investigator T “testified that respondent tested positive for meth[] five times after RW’s birth and that she repeatedly left RW in a bassinet and took a baby monitor outside to AG’s vehicle to use” meth with him. Respondent also told T “that AG punched her in the face and that bystanders had called the police. [T] suggested that respondent obtain a personal protection order against AG, but she failed to do so and continued using [meth] with him. Based on respondent’s consistent drug abuse and continued involvement with AG, the trial court did not clearly err by finding that there existed a substantial risk of harm to RW’s life, physical health, or mental well-being in respondent’s care.” Respondent also argued “that the trial court failed to make factual findings regarding whether any service or arrangement except RW’s removal from respondent’s care was reasonably available to safeguard the child from the risk of harm.” The record failed “to support respondent’s argument.” The trial court determined that T “made reasonable efforts to help respondent with her substance abuse and avoid removing RW from respondent’s care.” Its order noted that the DHHS offered her several services. In addition, the trial court recognized that her “environment included ‘triggers’ that made it unsafe for RW to remain in respondent’s home.” The record supported the trial court’s findings. T testified that respondent was still using meth “and failed to comply with the services offered to her. Families First was the most intensive service available, but it was a 28-day program and, at the time of the hearing, respondent’s allotted time with that service was about to expire. [T] also looked into placing RW with family members, but respondent’s mother was unable to care for RW and respondent’s sister was not an option. Therefore, our review of the record shows that the trial court did not clearly err by finding that an alternative to removal was not reasonably available.”