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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Action involving residential construction contracts; Motion to vacate an arbitration award on the basis that the arbitrator exceeded her powers; MCR 3.602(J)(2)(c); Effect of language giving an arbitrator authority to act under a repealed statute; The Michigan Arbitration Act; Principle that an unambiguous contract should be enforced as written; Lebenbom v UBS Fin Servs, Inc
The court held that the trial court did not err by denying plaintiff’s motion to vacate the arbitration award in this case involving residential construction contracts. He contracted with defendant for construction on his home. He later sued alleging breach of contract and conversion, claiming defendant terminated the contracts and failed to return his deposits. The case went to arbitration and the arbitrator awarded plaintiff $14,500. He then moved to reopen the case and vacate the arbitration award on the basis the arbitrator exceeded her powers. Ultimately, the trial court entered judgment in the amount of $14,500 to reflect the arbitration award and an order denying plaintiff’s prior motion to vacate the award. On appeal, the court rejected plaintiff’s argument that the trial court should not have treated the arbitration award as binding, and erred by upholding it, because the arbitration clause gave the arbitrator authority to act under a repealed statute. “[T]he trial court appropriately found a valid and binding arbitration agreement between the parties. The clause explicitly compels arbitration and provides rules under which the arbitration should be conducted outside of” the Michigan Arbitration Act. Despite the later reference to the statute, “plaintiff can make no legitimate argument that the clause was ambiguous or he did not understand that by signing the contracts, he agreed to arbitrate any and all claims, and the trial court appropriately struck that portion of the clause granting power to the arbitrator under the repealed arbitration statute.” In addition, plaintiff “provided no argument or factual support that the arbitrator exceeded her powers for any reason other than that the arbitration clause contained a repealed statute . . . .” He presented “no evidence that she conducted the arbitration pursuant to that repealed statute, or that the award itself went beyond the material terms of the contract.” Indeed, the trial court’s order “compelling arbitration specifically stated that arbitration should be conducted in accordance ‘with the Construction Industry Arbitration Rules of either the Better Business Bureau or the American Arbitration Association,’ and the award of plaintiff’s security deposit is consistent with another provision in the parties’ contracts . . . .” Finally, the court rejected his argument that the trial court erred by upholding the arbitration award as binding “because ‘[n]owhere in the [American Arbitration Act] Rules do they indicate that a matter is “binding” simply because the matter is arbitrated.’” The arbitration clause itself “explicitly mandated binding arbitration, so we need not specifically examine the rules of the American Arbitration Act.” Affirmed.
Termination; Just cause; Whistleblowers’ Protection Act (WPA); Age discrimination in violation of the Elliott-Larsen Civil Rights Act (ELCRA)
The court concluded that plaintiff failed to establish a genuine issue of material fact as to whether he made false statements that led to his termination. Further, the trial court properly dismissed his WPA claim where even if the “actions constituted protected activity, plaintiff failed to establish the requisite causal connection.” Finally, it held that because he failed to establish a genuine issue of material fact as to “pretext and causation, the trial court properly dismissed plaintiff’s age-discrimination claim.” He argued there was a question of fact as to “whether there was just cause to terminate his employment contract on the basis that he was untruthful with the health department or defendant or that he violated COVID-19 safety rules.” Plaintiff contended “that the trial court incorrectly found that he told a contact tracer that ‘he was in his office all day alone on’” 10/12/20. There was “no dispute that, if plaintiff made this statement, it was false.” He asserted there was a genuine issue of material fact as to “whether he made this statement given that the contact-tracing report” did not include it. The report included a comment that plaintiff had confirmed “‘symptom onset 10/12, last day of work 10/12. No close contacts other than wife within 48 hours before symptom onset.’” The report did “not establish that plaintiff did not say that he was alone his office all day, and, as defendant contends, does not address plaintiff’s activities on” 10/12/20. Rather, it appeared “to be a bottom-line conclusion, which is not inconsistent with the e-mail.” Further, there was “additional evidence indicating that plaintiff did in fact say that he was in his office all day alone.” A witness (T) testified that she was told by another witness, S, “that plaintiff ‘says that he was in his office the whole entire day and that he had talked to the epidemiologist and the epidemiologist said there was no need for anybody to quarantine.’” T clarified that plaintiff told S “‘he was in his office the entire day.’” The court determined that plaintiff did not “establish a genuine issue of material fact regarding whether he made the false statement to the epidemiologist that he was alone in his office all day on” 10/12/20. Affirmed.
Discrimination & retaliation claims under Title I & Title V of the Americans with Disabilities Act (ADA); Board of Trs of Univ of AL v Garrett; Sovereign immunity; State law claims under Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA) & for intentional infliction of emotional distress (IIED): Dismissal without prejudice; Appellate jurisdiction; Premature notice of appeal; Supplemental jurisdiction over state law claims; Motion to amend
[This appeal was from the WD-MI.] In an issue not yet considered by the Supreme Court or the Sixth Circuit, the court held, among other things, that the States are entitled to immunity from claims brought under Title V of the ADA. Defendant-WMU terminated plaintiff-Stanley’s employment after one month for “tardiness and failure to follow proper clocking-in procedures.” Stanley, who has “severe ADHD,” sued for retaliation and discrimination under the ADA, and asserted state law claims for discrimination under Michigan’s PWDCRA, and IIED. The district court dismissed his claims “with prejudice.” The court first held that it had jurisdiction to review the case even though Stanley’s notice of appeal was premature because the judgment became final before disposition of the appeal. The court then considered the dismissal of his federal claims based on Eleventh Amendment sovereign immunity. It explained that WMU was chartered under the Michigan Constitution and is considered to be “‘part of the state government[,]’” It noted that the Supreme Court held in Garrett “that an employee cannot maintain an action under Title I of the ADA against the State.” The court rejected Stanley’s attempt to invoke the Ex parte Young exception to Eleventh Amendment immunity as the exception “does not allow suits ‘against the state itself.’” The individual defendants were entitled to the same immunity in their “official capacities,” and were not subject to liability under the ADA in their personal capacities. The court next held that his ADA retaliation claims also failed, concluding “[b]ecause Congress’s legislative findings and the congressional record do not reflect a history and pattern of retaliation by the States against public employees for opposing disability discrimination, . . . Congress did not have authority under § 5 of the Fourteenth Amendment to remove States’ Eleventh Amendment immunity for ADA retaliation claims predicated on a violation of Title I of the ADA.” The court noted that in so holding, it joined every circuit to have considered the issue. But it found that the ADA claims should have been dismissed without prejudice because the dismissal was based on lack of subject-matter jurisdiction. Stanley’s state law claims should have also been dismissed without prejudice because the district court did not have jurisdiction to decide them given that it “‘lacked subject matter jurisdiction over any federal issues.’” Finally, the court concluded the district court did not err in denying Stanley’s motion to amend his complaint. The court affirmed the dismissal of his ADA claims and the denial of his motion for leave to amend his complaint. It vacated the judgment dismissing his federal and state-law claims with prejudice and remanded to the district court with instructions to dismiss those claims without prejudice.
Right to present a defense; Relevance; MRE 401; Hearsay; MRE 801(c); MRE 106; Expert witness; Distinguishing People v Thorpe; Ineffective assistance of counsel; Failure to consult with or retain an expert witness; Failure to object to the trial court’s evidentiary ruling as to the right to present a defense; Cumulative effect of alleged errors
The court concluded that defendant’s constitutional right to present a defense was not “violated by the trial court’s evidentiary ruling to exclude his recorded police interview.” Also, the trial court did not err by permitting expert testimony where “it was not akin to Thorpe, and, contrary to [his] assertion on appeal, it did not ‘cross the line’ established by our Supreme Court.” Further, he was not denied the effective assistance of counsel. Finally, the cumulative effect of the alleged errors did not warrant reversal. He was convicted of CSC I and II. As to his constitutional right to present a defense, the court concluded that the “evidence was relevant, because it tended to make the existence of a fact that was of consequence to the determination of defendant’s wrongdoing more probable or less probable than it would be without the evidence.” But the court held that “it constituted hearsay because it included statements ‘other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’” Further, although there were “exceptions and exclusions to the bar on hearsay, defendant fails on appeal to cite any exception or exclusion that applies to the statements that he made during his interview with police.” Moreover, the court held that there was “no applicable exception or exclusion that would allow this evidence to bypass MRE 802.” Thus, in order for his “statements to be admissible, such statements must have been admissible through a different means.” Defendant claimed that this evidence was admissible under MRE 106. “The trial court properly determined that his entire recorded interview with police was inadmissible under MRE 106 because MRE 106 was inapplicable.” The court noted that the “prosecution did not introduce any portion of a written or recorded statement, but rather, questioned [a detective] about his recollection of the interview that he conducted with defendant.” The fact that the “police interview was recorded does not automatically implicate MRE 106 because the prosecution never sought to introduce defendant’s recorded interview as evidence itself.” Thus, the trial court did not abuse its discretion by excluding the evidence and he could not “establish that his entire recorded interview constituted admissible evidence.” The court held that because “the right to present a defense extends only to relevant and admissible evidence,” he could not “establish that the trial court’s evidentiary ruling deprived him of his constitutional right to present a defense.” Affirmed.
Right to present a complete defense; Hearsay; Unavailable declarant exception; MRE 804(b)(1); Whether the prosecution had a similar motive & opportunity to cross-examine the witness; People v Farquharson; Right to a properly instructed jury; Flight instruction; M Crim JI 4.4; Prosecutorial misconduct; Comparing People v Buckey; Cumulative error; Comparing People v Dobek
The court held that (1) defendant’s right to present a complete defense was not infringed, (2) the trial court did not abuse its discretion by reading the flight instruction under M Crim JI 4.4, (3) the prosecution did not commit misconduct, and (4) he could not show a cumulative effect of any errors that denied him a fair trial. He was convicted of possession of less than 25 grams of heroin and fentanyl, FIP, felony-firearm, and maintaining a drug house after a raid on his home. On appeal, the court rejected his argument that the trial court misapplied MRE 804(b)(1) and deprived him of his right to present a defense when it refused to admit his codefendant-turned-witness’s (Arnold) full testimony from her plea hearing given that she passed away before the trial. “Once Arnold had established her own guilt, she faced no further consequences and lacked the incentive to speak truthfully. Determining that the prosecution did not have a similar motive or opportunity to cross-examine Arnold was not outside the range of principled outcomes, and, therefore, was not an abuse of discretion.” Defendant was not “precluded in any way from making a complete defense because he did, in fact, make the defense he claims to have been prevented from making.” The court also rejected his claim that the trial court abused its discretion when it gave the jury a flight, concealment, escape, or attempted escape instruction. “A rational view of the evidence . . . could lead a person to believe [he] knew there was a warrant out for his arrest, and therefore, wished he stayed inside at home the day he was arrested so he could have avoided arrest. Similarly, the conversations [he] had with his sister over the phone, where he insisted he would not attempt to flee if released on bond, can rationally indicate the idea of fleeing had crossed [his] mind and was, at least at one time, under consideration.” The court next rejected his contention that the prosecution committed misconduct by questioning him about whether a police officer lied and by making inflammatory statements during closing arguments. “Even if the prosecution’s conduct was prejudicial, it would not have changed the outcome in this case given the copious amounts of evidence presented during trial that defendant possessed firearms, possessed drugs, and maintained a drug house.” Finally, the court rejected his argument that the cumulative effect of the prosecution’s errors was so prejudicial that it warranted a new trial. “While the prosecution asked improper questions during defendant’s cross-examination and made improper comments during closing arguments, neither resulted in unfair prejudice[.]” Affirmed.
The Setting Aside Convictions Act (SACA); Mootness
Given that defendant-Tull’s felony conviction had “been automatically set aside under MCL 780.621g(2),” the court concluded his appeal from the circuit court’s denial of his application under the SACA was now moot. Thus, it dismissed the appeal. The trial court register of actions for the offense in question indicated “the Michigan State Police automatically set aside Mr. Tull’s conviction on” 7/18/23 under MCL 780.621g, the SACA’s automatic expungement provision. Because the conviction was set aside after the court “granted leave to appeal, this issue has become moot.” There was no controversy for the court “to decide, because Mr. Tull has already obtained his requested relief via MCL 780.621g(2) and it would, therefore, be impossible for [it] to fashion a remedy.”
Sufficient evidence for a third-degree child abuse conviction; MCL 750.136b(5); People v Lawhorn; “Physical injury”; State of mind; Void for vagueness; People v Gregg; Ineffective assistance of counsel; Failure to request a special jury instruction defining reasonable force
The court held that (1) there was sufficient evidence to support defendant’s third-degree child abuse conviction, (2) the statute is not void for vagueness, and (3) her trial counsel was not ineffective for failing to request a special jury instruction on reasonable force. She was also convicted of domestic violence. The victim was her daughter, J. Defendant challenged the sufficiency of the evidence as to the state of mind element of MCL 750.136b(5), asserting there was no evidence she “intended to cause physical harm. However, ‘[m]inimal circumstantial evidence is sufficient to prove an actor’s state of mind.’” The court noted that she admitted to hitting J “with a belt, and there was evidence she also hit [J] with a phone charger. ‘[A] jury may presume that a person intended the natural consequences of their actions.’” The court found the fact that she hit J “with a belt and phone charger with sufficient force to cause scars still present two years later is enough evidence for a rational finder of fact to conclude that defendant intended to cause physical harm.” She emphasized evidence that she was trying to hit J’s buttocks, but J “squirmed, causing defendant to hit her legs. There are three problems with this argument. First, defendant told the detective that she would sometimes hit [J’s] arms and legs. Second, a jury could infer that any reasonable person would anticipate that a young child would squirm in anticipation of being hit. Third, it is not clear to us how defendant’s purported intent to hit [J’s] buttocks helps her case; there is no evidence suggesting that the skin on [J’s] buttocks was less susceptible to injury than the skin on her legs. Defendant also relies on MCL 750.136b(9), suggesting that the prosecution did not prove that her actions did not constitute reasonable parent discipline. However, a jury could rationally conclude that hitting a child with a belt and a phone charger hard enough to leave scars is not a reasonable use of force.” As to her void for vagueness challenge, the court has considered and rejected this argument before and it declined her request to declare a conflict with Gregg and Lawhorn. Finally, as to her ineffective assistance argument, among other things the court concluded “an instruction essentially repeating the statute adequately apprised the jury. Second, a special instruction could have invaded the province of the jury because whether force is reasonable is a question of fact.” Affirmed.
Jury instructions; MCR 2.512(B)(2); “Lady Bird” deeds; Harmless error; Remedies; Deed reformation & revocation; Specific performance; Zurcher v Herveat
The court concluded plaintiff could not show that any error in not instructing the jury on the operation of Lady Bird deeds was outcome-determinative. It also held that the trial court did not abuse its discretion in reforming a 2018 deed and revoking a 2019 deed related to the property at issue. After plaintiff was injured in an auto accident, defendant moved into plaintiff’s home and “plaintiff offered to leave defendant the house in exchange for defendant providing plaintiff with help.” While this agreement was not reduced to writing, in 2018 “plaintiff executed a ‘Lady Bird’ warranty deed granting a future interest in the property to defendant and her son[.]” Plaintiff subsequently executed the 2019 deed, a “Lady Bird quitclaim deed, revoking the transfer of interest to defendant and her son, and instead giving a future interest in the property to plaintiff’s friend,” R. Plaintiff sought to evict defendant, who counterclaimed for breach of contract and promissory estoppel, among other claims. A jury found in defendant’s favor on those claims. As to plaintiff’s jury instruction argument, the court noted the “jury was asked to determine whether plaintiff and defendant had an agreement under which plaintiff would give defendant the house in exchange for assistance and whether plaintiff breached that agreement. The jury answered those questions in the affirmative. Whether the underlying deed was a Lady Bird deed or otherwise was immaterial to this question.” Further, by affirmatively approving the trial “court’s instructions (with the exception of the explanation of the Lady Bird deeds), plaintiff waived any claim of instructional error on appeal.” As to her challenge to the trial court’s remedies, she contended specific performance was not appropriate “because the 2019 quitclaim deed gave the property to [R], who was a good-faith purchaser[.]” As a result, plaintiff argued “defendant was only entitled to receive what she would have on rescission, i.e., the amount already paid plus interest.” However, this ignored the fact that the trial “court had the discretion, if equity required, to order specific performance in lieu of money damages. The jury found that [she] breached the agreement she made with defendant to leave her the property after she died.” To effectuate this promise, the trial “court exercised its discretion and reformed the 2018 warranty deed. This was not an abuse of [its] discretion.” Affirmed.
Wrongful-death claim based on allegations of medical malpractice; Causation; Expert testimony; St. Joseph Mercy Hospital (SJM); Internal Medical Specialists (IMS); Personal representative (PR)
In this medical malpractice case, the court affirmed the trial court’s orders granting summary disposition in favor of the SJM and IMS defendants. Plaintiff-PR filed a wrongful-death claim grounded in medical malpractice. She argued that the trial court erred by holding that she did not present evidence sufficient to establish the element of causation. As to the SJM defendants, the court held that there was no dispute that the injury to the decedent’s (Patterson) “arm was caused by an extravasation, and the picture of Patterson’s injury leaves no reasonable room to doubt that it was significant. Michigan medical malpractice jurisprudence requires plaintiff to have expert medical testimony to establish that the nurses’ alleged negligence caused the worsening of Patterson’s extravasation injury and the resultant pain and suffering. In the absence of expert testimony to establish causation, plaintiff cannot show that the trial court erred by granting” the SJM defendants summary disposition. As to the IMS defendants, plaintiff did not establish that, but-for defendant-Dr. Dreslinski’s “resumption of Patterson’s Xarelto prescription, Patterson would not have suffered internal bleeding on January 25. Without establishing that Dr. Dreslinski committed medical malpractice, plaintiff cannot sustain a wrongful-death action against the IMS defendants.” Thus, the court concluded “that the trial court did not err by granting summary disposition of plaintiff’s claims in favor of the IMS defendants.”
Termination with consent; Matter of Toler; Best interests analysis; MCL 712A.19b(5); Waiver
The court held that respondent-mother waived her argument as to the trial court’s analysis of the children’s best interests. Her rights were terminated on the basis of her drug abuse. On appeal, the court rejected her argument that although she consented to termination, the trial court erred by making its best-interests determination without providing any analysis. “At the termination hearing, respondent clearly conceded that termination was in the best interests of her children. She was directly asked, ‘do you agree that termination of your parental rights is in the best interest of your children?’ and she responded, under oath, ‘Yes.’” The trial court found that her “release was given freely and understandingly, which she does not challenge on appeal, and respondent signed a release form.” As such, she waived this issue on appeal. Affirmed.