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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Motion to strike the prosecution’s witness list & exhibits for noncompliance with a pretrial order & MCR 6.201(A) (mandatory disclosure); Motion for nolle prosequi; People v Guthrie; A trial court’s discretion to deny motions for nolle prosequi; People v Walls
Noting that “the trial court did not seem to fully understand defendant’s position or the extent of its discretion” in handling the prosecutor’s motion for nolle prosequi, the court vacated the order and remanded. Defendant was originally charged with OWI causing death and reckless driving causing death. Before trial, he moved to strike the prosecution’s witness list and exhibits, alleging noncompliance with the trial court’s pretrial order and MCR 6.201(A). “The prosecution responded by filing a motion for nolle prosequi, purportedly for the purpose of reassessing the charges.” The trial court granted its motion. It subsequently granted defendant’s motion for reconsideration but reaffirmed its decision to grant the prosecution’s motion without prejudice. On appeal, defendant argued the trial court erred by failing to either deny the motion for nolle prosequi or grant it with prejudice because the prosecution filed the motion in order to circumvent a contrary ruling as to discovery violations. The court noted it “is clear that trial courts have some, albeit limited, discretion to deny motions for nolle prosequi. What is less clear is whether the trial court in this case understood the full extent of its discretion.” The trial court suggested “its only two options were to grant the motion as requested or to grant it with prejudice.” First, given that the prosecutor “brought the motion, granting it with prejudice would not be appropriate.” More importantly, the trial court “failed to recognize that it had limited discretion to simply deny the motion if it believed the prosecution was abusing its power, was acting in a manner that was unconstitutional—i.e., in violation of defendant’s due process rights, or if it believed the action was ultra vires.” Further, it “erroneously stated that defendant ‘agreed the nolle must be granted’ and advocated for granting it with prejudice. On the contrary, defense counsel made it very clear that he wanted to deny the motion and proceed to trial.” Finally, the trial court described the prosecutor’s “actions as ‘clear legal maneuvering and gamesmanship’ but then noted that the record was insufficient ‘to make a ruling on vindictiveness.’” It was unclear from this statement whether the trial “court was simply unpersuaded that the prosecution’s actions were vindictive or if it believed that the record was legally insufficient to support such a finding. If [it] was attempting to communicate the latter, we disagree and conclude that the record is sufficient to support such a finding if the trial court were so persuaded.”
Sentencing for failure to display a valid license; Nonserious misdemeanor convictions; MCL 769.5
In these consolidated appeals, the court vacated each of defendant’s respective sentences and remanded to the district court for resentencing. He argued “that the district court abused its discretion by sentencing him to 30-day jail terms for nonserious misdemeanor convictions for failure to display a valid license without reasonable grounds for rebutting the presumption against jail or probation sentences for nonserious misdemeanors as described in MCL 769.5.” The court noted that “the district court did not explain why the sentence it imposed was more appropriate than a non-jail sentence. While the district court made note of defendant’s criminal record, and seemingly also took into consideration conduct for which [he] had not been convicted, the [district] court failed to take into consideration or to explain why a sentence of jail was more appropriate than a sentence of no jail.” This lack of explanation made it difficult for the court “to review whether the sentence was reasonable or not.”
Hearsay; Unavailable declarant exception; People v Barrera; MRE 804(b)(3); Relevance; MRE 401; Statement against penal interest; Trustworthiness
Concluding that witness-H’s hearsay statements satisfied the requirements of MRE 804(b)(3), and thus, it was “more probable than not that the” trial court’s error in failing to admit them was “outcome determinative,” the court held that defendant was entitled to a new trial. Thus, it reversed his convictions and remanded. He was convicted of possession of meth, and fourth-degree fleeing and eluding, as a fourth-offense habitual offender. He argued that because H “was unavailable at trial, and her statements as memorialized in Deputy [L’s] incident report” satisfied MRE 804(b)(3), the trial court abused its discretion by failing to admit them into evidence. The question was whether the exception in MRE 804(b)(3) applied. It was undisputed that H “was unavailable to testify at trial within the meaning of MRE 804.” Thus, the first requirement was satisfied. H “made these admissions while secured in the back of a police cruiser, and she had no way of knowing whether the residue on the assorted drug paraphernalia was sufficient for testing.” The court held that “the declarant—by admitting that the purse belonged to her and that some of the contents of the backpack also were hers—faced a reasonable threat of punishment because of the drug paraphernalia and residue discovered. This, combined with her admission that she used narcotics, that it was all her fault, and that she should have swallowed something, all constitute[d] ‘brick[s] in the wall’ proving her guilt.” The court concluded that the “trial court erred as a matter of law when it narrowly interpreted the Barrera test to require a statement against penal interest be made with respect to the exact charge at trial. It was erroneous to conclude that because some of [H’s] statements concerned cocaine and [defendant] was charged with possession of meth[], they were not against [H’s] penal interest. They could ‘implicate the declarant in a crime,’ and thus they were against her penal interest.” The trial court found that H’s “statements could not be evaluated for trustworthiness on the basis of the information presented and that they were not crucial for” defendant’s defense. But it “clearly erred by making a finding of fact that nothing presented to the trial court allowed it to make a trustworthiness determination, and the trial court made a mistake of law by failing to engage in the totality-of-the-circumstances analysis.” As to the factors favoring admissibility, while H “was speaking to or in the presence of a police officer and not a friend or family, all of [H’s] statements were: (1) voluntarily given; (2) after she was advised of her Miranda rights; (3) not made to curry favor with law enforcement; and (4) made contemporaneously with the events. [H’s] statements asserting that this was her fault, and that she should have swallowed something, were spontaneously given, which favors a finding of trustworthiness.” As to “the factors disfavoring a finding of trustworthiness, [H’s] statements regarding her purse, possessions in the backpack, preference for cocaine, and recent cocaine usage were made at the prompting of law enforcement.” Taken in their totality, H’s “hearsay statements satisfy the trustworthiness requirements of MRE 804(b)(3).”
Unfair labor practices (ULPs); The National Labor Relations Act (NLRA); 29 USC §§ 158(a)(5) & (1); Failure to bargain with the Union before increasing unit employees’ wages by $2 per hour & then rescinding the increase; “Effects-bargaining” obligations related to using non-unit employees to perform unit work & the temporary pay raise; Administrative law judge (ALJ); Certified Nursing Assistants (CNAs)
On application for enforcement of an NLRB order, the court held that defendant-Metro Man did not commit an ULP when it introduced hazard pay at its nursing home during the COVID-19 pandemic without first bargaining with the Union. Metro Man undertook several special hiring and payment practices during the pandemic. The Union had offered proposals on how to meet staffing shortages, but Metro Man did not respond to its suggestions or notify the Union of the measures it was taking. Among those measures was hiring “non-unit, non-certified nursing aides to do work typically performed by unit CNAs.” When the exigent circumstances ended, the Union filed ULP charges, alleging Metro Man committed ULPs by “failing to bargain with the Union before increasing unit employees’ wages by $2 per hour, using non-unit employees to perform unit work and reducing unit employees’ wages when it rescinded the $2-per-hour pay increase.” The NLRB ordered Metro Man to rescind the wage reduction for unit employees and to reinstate the $2-per-hour pay increase. It also required Metro Man to bargain with the Union and to notify it before making future changes in employment terms. Finally, it altered the ALJ’s “remedy to include not just lost earnings and benefits, but also any other direct or foreseeable pecuniary harms suffered as a result of Metro Man’s unlawful acts.” The court held that the “exigent circumstances posed by COVID excused entirely Metro Man’s decisional-bargaining obligations about the hazard pay and hiring of non-licensed CNAs.” But as to Metro Man’s effects-bargaining obligations related “to its decision to hire non-certified nursing aides[,]” the parties agreed that it “was required to bargain over the effects of” this decision. They disagreed whether it fulfilled this obligation. The court concluded the evidence supported the NLRB’s position in this regard. But the court held that “Metro Man did not commit an [ULP] when it failed to bargain with the Union regarding the effects of the temporary pay raise.” Thus, the court affirmed the NLRB’s conclusion as “to Metro Man’s failure to engage in effects-bargaining regarding its decision to hire non-unit, non-certified nursing aides” but reversed the NLRB’s conclusions as “to Metro Man’s alleged failure to engage in effects-bargaining regarding the implementation of the $2-per-hour pay raise and decisional-bargaining regarding its rescission.” It granted in part and denied in part the NLRB’s petition for enforcement, and remanded.
Whether claims were barred by the policy's limitations period
Holding that the trial court did not err by finding that plaintiff’s claims were barred by the policy’s limitations period, and thus, that summary disposition was appropriate, the court affirmed. “Plaintiff owns residential buildings for lease. Defendants issued to plaintiff a businessowner’s insurance policy that covered plaintiff’s buildings (the policy). In [3/17], a storm caused interior and exterior damage to fifteen buildings leased by plaintiff.” As to the limitations provision itself, it was “undisputed that plaintiff failed to bring an action within two years of the date on which the loss occurred.” Thus, the court concluded that “by the plain and unambiguous language of the policy provision, plaintiff was barred from bringing legal action against defendants under the policy, unless the time period is tolled.” Notwithstanding the plain language of the provision, plaintiff argued “that defendants may not rely on the limitations period because they allegedly failed to fully comply with the policy—specifically, plaintiff argues that defendants failed to respond appropriately to plaintiff’s demands for an appraisal of the amount of the loss.” Plaintiff’s argument was nonsensical. “The limitations provision provides two conditions that must be met before defendants can be sued under the policy. Plaintiff’s argument that defendants did not comply with the policy, even if correct, is irrelevant to the determination of whether the limitations period bars plaintiff’s claims. Nothing in the language of the provision requires defendants to fully comply with a demand for appraisal in order to assert the limitations period as a defense; indeed, at its most basic level, an action against defendants under the policy is a claim that defendants did not comply with the policy.” Further, the court held that “regardless of how the phrase ‘[t]here has been full compliance with all of the terms of this insurance’ is interpreted, the fact remains that plaintiff’s suit was filed well outside the two-year limitations period.” The court concluded that plaintiff’s “claim could only be saved by the tolling provision, if at all. The trial court did not err by determining that the limitations period was not tolled long enough for plaintiff’s action to be timely.” Plaintiff argued “that defendants never formally denied liability for its claims, characterizing defendant’s correspondence as a disagreement on the amount of the loss that should have been resolved by the appraisal process, not a denial of coverage.” The court disagreed. It concluded plaintiff’s “invocation of the appraisal process under the policy did not affect whether defendants had formally denied plaintiff’s claims.”
Motion to file a second amended complaint; MCR 2.118(A)(2); Futility; Adding parties; Prejudice; Whether an ordinance was a regulatory ordinance rather than a zoning ordinance; Natural Aggregates Corp v Brighton Twp; Procedural due process; Property right; Whether consideration of an application was arbitrary & capricious; Claim an ordinance was void because it conflicted with the Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27959(4); Yellow Tail Ventures, Inc v City of Berkley; “Competitive process”
In these consolidated appeals, the court held that (1) the trial court did not abuse its discretion in denying motions to file amended complaints, (2) the ordinance at issue was regulatory, not zoning, (3) defendant-city did not act arbitrarily and capriciously in scoring plaintiff-1864’s license application, and (4) the city’s ordinance did not conflict with the MRTMA. The case related to the issuance of licenses for marijuana retailers, provisioning centers, and designated consumption establishments in the city. In one of these appeals, plaintiff-BRT argued the trial court abused its discretion in denying BRT’s motion to file a second amended complaint. The court was inclined to agree the “proposed amended complaint would not be ‘futile.’” But it found no abuse of discretion “for two reasons. First, the amended complaint would have added parties to this litigation. Thus, this litigation would not merely have expanded the legal issues already pending, the matter would have expanded the parties involved in” it. Second, while the trial court did not expressly discuss it, “several of the intervenors would have been unduly prejudiced if the amended complaints were allowed to be filed.” In another appeal, intervenor-Trucenta argued the trial court erred in granting “summary disposition because the ordinance at issue is a regulatory ordinance, not a zoning ordinance.” The court disagreed. Apart from an ordinance specifically stating that the provisions of the article were “‘regulatory in nature and not intended to be interpreted as zoning laws[,]’” the city’s zoning ordinances were found in Chapter 52. Further, nearly all “the provisions of the ordinance at issue concern the operation of marijuana facilities, not where those facilities must operate.” The court could not “identify a particular provision in the ordinance that expressly limits where a marijuana facility may, or may not, operate within the municipality. Such provisions are separately found in Chapter 52.” It concluded that, on balance, the ordinance was regulatory rather than zoning. In another appeal, 1864 also argued the trial court erred in granting summary disposition. The court rejected its claim that it had a property interest in having its application properly scored. Further, it determined the plain language of the ordinance supported the city’s decision not to “award 10 points to 1864’s application for a structure exceeding 2,000 square feet.” Affirmed.
Extending a PPO; Nondomestic PPO; MCL 600.2950a(2)(b); Interference or impairment with petitioner’s educational environment; MCL 600.2950a(3)(e) & (k); Claim that respondent had no option but to attend the same school as petitioner; MCL 380.1311(2) & (6) (petition for reinstatement of an expelled student); Educational alternatives; MCL 380.1311(4)
Holding that the trial court did not err in extending or continuing the PPO at issue given that respondent-BD “insisted on attending the same high school as” petitioner-EM, the court affirmed. The trial court issued the order after an evidentiary hearing on BD’s motion to terminate the PPO, which was originally entered based on “EM’s allegations that BD had sexually assaulted her during class while in middle school. In part, the PPO prohibited BD from interfering with EM at school and from engaging in conduct that impaired her educational relationship and environment. Although no criminal charges were ever pursued, BD was expelled from school for a year after a Title IX investigation.” The school district later permitted him to return, resulting in the two attending the same high school. The trial court concluded reasonable cause existed to continue the PPO. It “reasoned that because of the severe anxiety and migraines suffered by EM upon seeing BD, his mere presence at the high school constituted conduct impairing EM’s educational environment when the evidence” showed that they regularly crossed paths. The court found “no clear error in the trial court’s factual findings,” and no error as to its “reasoning and legal analysis. The trial court properly operated on the premise that BD had sexually assaulted EM in class by way of digital-vaginal penetration when she was 13 years old. Under those circumstances, it is quite understandable that EM would suffer severe anxiety upon seeing BD. Indeed, there was no evidence contradicting or undermining EM’s claims regarding the effect that BD had on her when she saw him, even from a distance.” As to BD’s argument he had no option but to re-enroll in the school district, there “are options available to an expelled student such that he or she can still obtain an education without returning to the classroom or school from which” he or she was expelled. And the court saw “nothing in the plain language of MCL 380.1311 that would bar his enrollment in a different school district.” As a result, it rejected his “argument that his observation of EM was not his fault because he was required to” attend that high school “or because his parents were forced to seek” his reinstatement. It added that he “could not escape the reach of the PPO even assuming he otherwise had a right to be reinstated at and attend” the high school.
Disbursement of remaining tax-foreclosure proceeds under MCL 211.78t; Rafaeli, LLC v Oakland Cnty; Notice; MCL 211.78t(2); Comparing In re Petition of Muskegon Cnty Treasurer for Foreclosure; The harsh-and-unreasonable consequences exception; Substantial compliance; Constitutionality of MCL 211.78t; Unjust enrichment; Jurisdiction; Standing; “Aggrieved party”; Distinguishing Federated Ins Co v Oakland Cnty Rd Comm’n
The court held that the trial court erred as to its interpretation and application of MCL 211.78t when it granted claimants’ motions for disbursement of remaining tax-foreclosure proceeds. It also held that none of claimant-Schwerin’s alternative arguments were valid. Petitioner-State Treasurer foreclosed on real property in which claimants had an interest. The trial court granted claimants’ separate motions for disbursement of remaining proceeds. As a preliminary matter on appeal, the court found that claimants “failed to raise a meritorious jurisdictional challenge.” Next, it agreed with petitioner that the trial court erred by granting claimants’ motions because they failed to comply with the requirements of MCL 211.78t. It noted the effective date of the foreclosure here was 3/31/21. “Similar to the respondents in Muskegon Treasurer, claimants failed to provide timely notice of their intention to claim the remaining proceeds, as is required pursuant to MCL 211.78t(2).” As such, similar to “the respondents in Muskegon Treasurer, [they] forfeited their rights to obtain remaining proceeds.” Finally, the court rejected Schwerin’s alternative arguments for affirmance of the trial court’s order, finding (1) application of the harsh-and-unreasonable consequences exception was not warranted, (2) “neither logic nor caselaw supports Schwerin’s contention that noncompliance with § 78t(2)’s notice requirements may be deemed substantial compliance[,]” (3) his constitutional challenges were meritless, and (4) “an equitable remedy such as the imposition of a constructive trust would contravene the Legislature’s clearly stated intent and essentially nullify MCL 211.78t.” Reversed and remanded.