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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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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Governmental immunity; MCL 691.1407(1); Ultra vires activity; Absolute immunity under MCL 691.1407(5); Petipren v Jaskowski; Age discrimination under the Elliott-Larsen Civil Rights Act; Direct & circumstantial evidence; Stray remarks; The McDonnell Douglas Corp v Green framework; Pretext; Disability discrimination under the Persons with Disabilities Civil Rights Act; Malicious prosecution; Invasion of privacy–false light; Intentional infliction of emotional distress (IIED); Civil conspiracy; Westland Police Department (WPD)
The court held that defendants-city and police chief (Jedrusik) were entitled to governmental immunity on plaintiff-former police officer’s tort claims, and that he failed to establish a genuine issue of material fact as to his tort claims against the other individual defendants. Further, he did not “establish a genuine issue of material fact whether age” or his alleged disability was a motivating factor in the decision to terminate his employment. Thus, the court affirmed summary disposition for defendants. Plaintiff was terminated from the city’s police department (the WPD) “for violating numerous policies and regulations during an incident involving a jail detainee while plaintiff was the supervising sergeant responsible for overseeing the jail and its detainees.” He alleged claims for age discrimination, disability discrimination, malicious prosecution, invasion of privacy–false light, civil conspiracy, and IIED. He asserted the trial court erred in ruling that the city was “entitled to governmental immunity under MCL 691.1407(1) because the city and its officers were engaged in a corrupt investigation, which is not a governmental function” and in ruling that Jedrusik was entitled to absolute immunity under MCL 691.1407(5). The court disagreed. “The city had legal authority to conduct an investigation to determine whether discipline or termination of any of its officers was warranted as a result of the” incident, and it could not “be held liable for the individual defendants’ alleged tortious actions during the investigation.” As to Jedrusik, he “testified that he was the only one with the authority to establish policies and procedures for the WPD.” In addition, he “has the ultimate authority to determine” employee discipline. The court noted “the plain language of MCL 691.1407(5) does not contain a ‘malevolent-heart’ exception to the broad grant of absolute immunity.” As to plaintiff’s age discrimination claim, “nonparties’ references to [him] as ‘old man’ was not sufficient to prove a direct case of age discrimination.” Assuming he established a prima facie case under the McDonnell Douglas framework, “the trial court did not err by concluding that defendants made a sufficient showing that they had legitimate, nondiscriminatory reasons for terminating” him. As to his disability discrimination claim, the court rejected his assertion that he created a genuine issue of material fact whether the reasons proffered “for his termination were merely pretextual.”
Claims under the Elliott-Larsen Civil Rights Act (ELCRA); Failure to comply with MCL 600.6431’s notice-&-verification requirement; Christie v Wayne State Univ; Unverified notice; Fairley v Department of Corrs; Judicial disqualification; Untimely motion to disqualify; Pattern & practice of discrimination evidence; Relevance; Spoliation of evidence; Adverse inference; Ward v Consolidated Rail Corp; Whether evidence should have been excluded under MRE 403; Office of Clinical Affairs (OCA)
The court held that plaintiff’s claims against defendant-University of Michigan Regents related to her former employment with Michigan Medicine failed due to lack of compliance with MCL 600.6431. As to her claims against defendant-former supervisor (Dr. Desmond), the court found there was no abuse of discretion in the denial of her motion to disqualify a trial court judge. Further, the trial court did not abuse its discretion in (1) excluding pattern and practice evidence, (2) denying plaintiff’s request for an adverse-inference instruction, or (3) admitting testimony about her personality and job performance. Thus, the court affirmed the jury’s verdict for defendants. Plaintiff sued for age discrimination, sex discrimination, and retaliation under ELCRA after her position was eliminated. On appeal, defendants argued for the first time that her complaint should be dismissed for failure to comply with MCL 600.6431’s notice-and-verification requirement. The court noted that failure to comply with this requirement requires dismissal. Because “plaintiff did not verify her complaint or file a verified notice with the court of claims, and” the one-year period had long since passed, her “claims against Michigan Medicine would be subject to dismissal, had the jury not already found them not to be liable in this case. Regardless, plaintiff cannot maintain her claims against Michigan Medicine, and her arguments on appeal” as to this defendant failed. Assuming for purposes of the appeal only that her “claims against Dr. Desmond were made in his personal capacity,” the court considered her appellate arguments on those claims. As to her motion to disqualify a trial court judge (which was untimely), the court found that she did not establish “bias or prejudice to warrant disqualification.” As to her pattern and practice evidence, the court found that it “was, at best, minimally relevant to her claims.” Given that it “did not relate to OCA employees who reported to Dr. Desmond, it was not a direct response to defendants’ admission of evidence about the age-and-gender composition of OCA employees.” As to the request for an adverse inference instruction, the court noted that the individual who destroyed the notes in question “provided a reasonable explanation for” doing so, and that an “abuse of discretion is a high bar to show on appeal[.]” Finally, the trial court did not abuse its discretion in not excluding evidence under MRE 403.
Setting aside a default judgment; Good cause; Verification of motions & proofs of service; MCR 1.109(D)(3); MCR 2.107(C)(3) & (D); Harmless error; Failure to plead the words of the alleged libel in the complaint; Motion to amend the complaint; Futility
The court concluded the trial court did not err by setting aside the default judgment. Also, defendant-Dr. Shafer’s “motion did not need to be verified, and it was signed in accordance with the court rule.” Further, defendants were properly granted summary disposition under MCR 2.116(C)(8) because plaintiff-Palen “failed to plead the words of the alleged libel in her complaint.” Finally, “the trial court did not abuse its discretion by denying [her] motion to amend because her requested amendment would not include the words she claims were defamatory and, for that reason,” would have been futile. The appeal concerned whether the trial court erred by dismissing plaintiff’s claims that Shafer and defendant-Sparrow Hospital “made libelous statements about her.” Plaintiff argued that “Dr. Shafer failed to show good cause for” setting aside the default judgment entered against her. The court found that “Dr. Shafer served her motion for summary disposition by mailing it on [12/9/22], which was timely under MCR 2.107(C)(3). Dr. Shafer’s motion for summary disposition was an action to defend the case and, therefore, the entry of the default judgment was unwarranted.” As to plaintiff’s assertion that defendants’ motions and proofs of service were not property verified, the court determined that “Sparrow Hospital’s proofs of service complied with MCR 1.109(D)(3)(b), but Dr. Shafer’s proofs of service did not. However, any error in this regard was harmless because there is no dispute that Palen was in fact served with Dr. Shafer’s motion for summary disposition and, indeed, she responded to the motion.” In addition, “the erroneous statement in Dr. Shafer’s original proof of service that the motion was served by certified mail was harmless.” The court noted that she “corrected the error and, in either case, the manner of mailing did not affect the outcome of the proceedings.” Affirmed.
Jurisdiction; MCR 7.203(A)(1); MCR 7.202(6); Whether the court has jurisdiction over a party’s claim of appeal even though the party, in agreeing to a stipulated order of dismissal, did not reserve the right to appeal an earlier order relating to another party; Conflict between Jaber v P & P Hospitality, LLC (Jaber I) & Sandoval v Farmers Ins Exch; Comparing Estate of Sliger v Bonno (Unpub), Deda v Winters (Unpub), Estate of Wells v State Farm Fire & Cas Co (Unpub), & Gallagher v Northland Farms LLC (Unpub); “Aggrieved party” requirement; MCR 7.203(A)(1); Whether plaintiff suffered “a concrete and particularized injury”; 1373 Moulin, LLC v Wolf; Alleged violation of the Dramshop Act (DSA); The DSA’s exclusive remedy provision; MCL 436.1801(9); Vicarious liability; Hamed v Wayne Cnty; Special conflict panel; MCR 7.215(J)
A special conflict panel of the court held that an appellant may raise issues arising out of an earlier order relating to one party, even if the appellant failed to reserve the right to appeal in a subsequent, stipulated order of dismissal as to another party. As such, the court had jurisdiction. And on the merits, plaintiff was correct that summary disposition was not proper under the DSA’s exclusive remedy provision. Plaintiff sued defendants-P & P and Randall (who she alleged was overserved at P & P’s establishment). The trial court granted P & P’s motion for summary disposition, ruling that the exclusive remedy provision of the DSA precluded, and the caselaw did not create, an independent cause of action for negligence under the facts. In a prior appeal, plaintiff challenged only the earlier grant of summary disposition in P & P’s favor, distinguishing this case from Sandoval, and urging the court to follow the dissent in Sandoval. The court explained that, but for Sandoval, it would conclude that it had jurisdiction over the appeal. It then dismissed the appeal for lack of jurisdiction because it was bound to do so by Sandoval. In the present appeal, the special conflict panel found that the panel in Jaber I correctly analyzed the issue, and followed that reasoning rather than that contained in Sandoval. “We agree that plaintiff was aggrieved by the order granting summary disposition to P & P. Plaintiff suffered ‘a concrete and particularized injury,’ by the trial court’s dismissal of P & P from this action.” And plaintiff “remained aggrieved when the court entered the final order dismissing Randall.” The court rejected “the notion that the failure to add reservation language to a stipulated order in these circumstances should operate as a trap for the unwary and bar appellate jurisdiction. After convening this special panel, we adopt the position advocated by the Jaber I Court and hold that an aggrieved party may raise on appeal issues arising from an earlier order relating to one party.” Turning to the merits of plaintiff’s appeal, the court found that the “trial court erred by determining that summary disposition was proper under the DSA’s exclusive remedy provision regarding plaintiff’s common-law negligence claims. P & P was not entitled to summary disposition on those claims based on the exclusive remedy provision of the DSA.” Reversed in part, and remanded.
Ethnic intimidation; MCL 750.147b(3); Vicarious liability; “Person”; Intentional infliction of emotional distress (IIED); Civil conspiracy; Michigan Penal Code (MPC)
The court held that plaintiffs failed to state an ethnic intimidation “claim upon which relief could be granted as to” defendant-United Electrical. As to their claims for IIED and civil conspiracy, it concluded that “no genuine issue of material fact exists as to whether defendant is liable, even when the evidence is viewed in the light most favorable to plaintiffs.” Thus, the court concluded “the trial court erred when it denied defendant’s motion for summary disposition of plaintiffs’ ethnic intimidation,” IIED, and civil conspiracy claims. That order was reversed and the court “remanded for entry of an order granting defendant’s motion, thereby dismissing this case against” it with prejudice. Further, it held that “plaintiffs’ claims against the purported Doe defendants must be dismissed as well; however, because the Doe defendants were never served with the summons and complaint, the dismissal as to the Doe defendants, only, shall be without prejudice.” Defendant argued, among other things, “that it was entitled to summary disposition because it cannot be held vicariously liable under MCL 750.147b(3) for the purported conduct of its employees, including the Doe defendants, even if their alleged acts did constitute violations of the ethnic intimidation statute. That is so because, according to the statute, plaintiffs may only ‘bring a civil cause of action against the person who commits the offense . . . .’” In response, plaintiffs asserted “that defendant may be held liable because it is a ‘person’ for purposes of the [MPC], which includes MCL 750.147b.” The court agreed with defendant’s argument. “Certainly, defendant may be a ‘person’ for purposes of the [MPC]. However, ‘the fact that defendant is a legal person does not automatically make it criminally liable for the acts of other persons.’” And the court noted that “as written, MCL 750.147b(3) only affords a civil cause of action against the person who commits the offense. If defendant could not be held criminally liable for committing the offense, it also cannot be subject to a civil cause of action under MCL 750.147b.” The court concluded that in “this case, through MCL 750.147b the Legislature did not intend to impose vicarious liability upon an employer whose employees committed acts that constituted ethnic intimidation during the course of their employment. Further, ethnic intimidation is a specific-intent crime, requiring that the person ‘maliciously, and with specific intent to intimidate or harass another person . . .’ commit the prohibited acts. Thus, the crime must have been committed either purposefully or knowingly.”
Foreclosure; Redemption; MCL 600.3140(1) & (7)
Concluding nothing in the record showed that plaintiffs were entitled to equitable or legal relief in this case involving a sheriff’s sale of foreclosed property, the court affirmed summary disposition for defendant. The sale was conducted on 9/29/22. The property was sold “to the highest bidder, defendant, for $117,184.38.” A sheriff’s deed was executed on 10/13/22. It contained “the date of the sale, the purchase amount, and the identity of the purchaser. The deputy” who conducted the sale “also executed an affidavit of auctioneer, which stated that the deed would become operative at the expiration of six months from the date of the sale, on [3/29/23], if plaintiffs did not redeem the property. The deputy’s affidavit and defendant’s affidavit of purchaser also included information about the date of the sale, the final date of the redemption period, contact information for a redemption calculation, the purchase price, interest rate, and the amount of the redemption servicing fee.” Plaintiffs filed this action on 6/20/23. Their appellate arguments rested “on their assertions that the sheriff’s sale occurred on [10/13/22], the redemption period for the property expired on [4/13/23], and defendant failed to provide a redemption calculation within the redemption period.” But the court found that the record did not support their assertions. Rather, it showed “that defendant followed the proper procedure after the sheriff’s sale and properly calculated the statutory redemption period and that plaintiffs and their title company did not. It appears that plaintiffs’ title company had a practice of calculating the redemption period from the date the Sheriff’s Deed was signed and not the date of the sale but, . . . this calculation does not comply with Michigan laws regarding how the redemption period is calculated.” In addition, defendant “provided plaintiffs and the title company with the Sheriff’s Deed containing the actual date of the sale and the last date of the redemption period. In light of the clear documentation reflecting the date of the sheriff’s sale, the end of the redemption period, and the redemption amount,” plaintiffs were not entitled to relief.
Reasonable reunification efforts; § 19b(3)(c)(i); Child’s best interests
Concluding the trial court did not clearly err by finding that the DHHS made reasonable efforts to provide services to reunify respondent-mother and her child, KKA, that termination was warranted under § (c)(i), and that termination was in KKA’s best interests, the court affirmed. Respondent “repeatedly failed to engage in services throughout this case, including parenting time visits with the child, and mental health and substance abuse counseling. The trial court did not clearly err by finding that the DHHS made reasonable efforts to provide services to reunify [respondent] and KKA, but that [respondent] ‘refused to participate.’” As to § (c)(i), the court held that “the trial court’s findings were supported by clear and convincing evidence in the record. KKA had drugs in his system at birth, [respondent] tested positive for cocaine in the one drug screen she submitted in this case, and she gave birth to another child in 2023 who also tested positive for cocaine. [Respondent] did initially engage with some services, including a psychological evaluation and reportedly some outpatient therapy, but she failed to follow the recommendations from her psychological evaluation, which were to participate in neurological and psychiatric evaluations, to demonstrate sobriety, and to benefit from outpatient services.” The court noted that she “had a psychiatric evaluation and received a diagnosis of bipolar disorder, but she failed to treat her condition or show benefit from other offered services because she continuously refused to submit to drug testing or participate with verified outpatient therapy.” No evidence showed that she “was sober and, because she chose not to attend the termination hearing, the trial court had no indication that she would rectify the conditions within a reasonable time. Evidence also showed that KKA was in foster care for most of his life by the time of the termination hearing. Further, because KKA was diagnosed with autism, he needed to attend regular therapy sessions, additional medical appointments, and would need ongoing supports for his speech delay and other special needs throughout his life. [Respondent] could not provide a safe or stable home for KKA without addressing her substance abuse problems.” Moreover, her “failure to regularly visit KKA” and to appear for the termination hearing “showed that she would not provide the consistency that KKA will need to address his cognitive and emotional needs over time.”