Jurisdiction over a claim of appeal under the Administrative Procedures Act (APA); “Contested case” (MCL 24.203(3)); “Final decision or order”; MCL 24.285; Federal Housing Choice Voucher (HCV) program; Department of Housing & Urban Development (HUD) regulations; Deficiencies as to the Michigan State Housing Development Authority’s (MSHDA) basis for termination & notice; Due process; Public housing agency (PHA)

The court held that the circuit court erred in dismissing plaintiff-Frye’s claim of appeal for lack of jurisdiction under the APA, and that additional evidence needed to be taken before the agency as to whether she “received sufficient proper notice and was entitled to an informal hearing.” The case arose from defendant-MSHDA’s termination of Frye from the federal HCV program subsidizing rent for low-income individuals. The court first concluded that the circuit court erred in determining there was no contested case. Because “HUD regulations require the PHA to give a participant an opportunity for an informal hearing before terminating housing assistance,” this was a contested case under the APA. In addition, the “APA provides for judicial review in a contested case when a person is aggrieved by a ‘final decision or order.’” In this case, “MSHDA’s counsel clearly stated that MSHDA’s denial of Frye’s request for an informal hearing was its final decision[.]” The court found that “Frye exhausted all available administrative remedies and was aggrieved by MSHDA’s final decision to deny her an informal hearing regarding its termination of her housing assistance in this contested case.” Thus, the circuit court erred in concluding “it did not have jurisdiction to review this matter.” The court also agreed with Frye that the circuit court erred in refusing to review it because the record revealed deficiencies as to “MSHDA’s basis for termination and the notice allegedly provided.” She asserted “that she did not receive the termination notice and thus she could not timely request an informal hearing.” And even assuming there was evidence that the notice was sent to her on 9/13/22, there was a dispute whether it was proper. It stated that her rental assistance was terminated “13 days before the notice was issued.” There was also a dispute whether she “violated any specific program rules regarding use and occupancy of the rental unit.” Reversed and remanded.

Breach of contract; Employment contract for a definite duration; Toussaint v Blue Cross & Blue Shield of MI; Gender discrimination & hostile work environment; The Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a); MCL 37.2103; Retaliation claim under the Payment of Wages & Fringe Benefits Act (PWFBA); MCL 408.483(1); Public-policy exceptions to the at-will doctrine; Leave to amend denial; Whistleblowers’ Protection Act (WPA)

The court held that plaintiff sufficiently pled a breach of employment contract claim and a gender discrimination claim under the ELCRA. But it concluded that she failed to state a valid claim for hostile work environment under the ELCRA or a prima facie claim for retaliation under the PWFBA. Finally, it found that the trial court did not abuse its discretion in denying her leave to amend her complaint to add a WPA retaliation claim. The case arose from the termination of her employment at defendant-J.R. Thompson Company. The trial court granted defendants summary disposition of all plaintiff’s claims under MCR 2.116(C)(8). It relied on a severance provision in dismissing her contract claim. On appeal, the court agreed with plaintiff that the severance provision language irreconcilably conflicted with the contract’s term provision and thus, there was a fact question for the jury to decide. “Under the term provision, plaintiff’s five-year term of employment was only terminable for just cause. But the severance provision states that [she] could be terminated by the company with or without cause at any time during the five-year term, which purportedly created an at-will employment contract. If the contract is read to allow [her] employment to be terminable in the absence of just cause during the five-year term, the term provision would be rendered meaningless.” Because the contract language was “ambiguous, the trial court erred by granting” J.R. summary disposition on the “contract claim and abused its discretion by denying plaintiff’s motion for reconsideration.” It also abused its discretion by denying her leave to amend her complaint as to this claim. The court further determined that, while “not artfully pleaded, plaintiff sufficiently pleaded a claim for gender discrimination under the notice-pleading standard.” It found that defendants’ “arguments and the trial court’s conclusion relate to the claim’s factual sufficiency, not its legal sufficiency.” Affirmed in part, reversed in part, and remanded.

42 USC § 1983 action; Fourth Amendment excessive force claim; “Seizure”; Brendlin v California; Torres v Madrid; Lack of intent to restrain; Stewart v City of Middletown (Unpub 6th Cir); Kilnapp v City of Cleveland; “Actual control”; Failure to rule on a sanctions motion based on alleged evidentiary misconduct; Harmless error

[This appeal was from the WD-MI.] Holding that plaintiff-Arthur was not subjected to a Fourth Amendment “seizure,” and that any error by the district court in failing to rule on her sanctions motion before granting defendants summary judgment was harmless, the court affirmed. Plaintiff, a prison employee, was injured while participating in a prison hostage training exercise. Defendants-VanderWeele and Wemple were corrections officers who also participated in it. The only claim at issue on appeal was plaintiff’s § 1983 claim for excessive force in violation of the Fourth Amendment. Her primary argument was “that she was seized by force when she was collaterally injured during Defendants’ attempt to subdue” the deputy warden who was playing her mock hostage taker. The court rejected this claim on the basis that defendants “lacked the necessary intent to restrain. The dispositive fact” (which distinguished this case from unintended-target cases) was that their “use of force occurred during a training exercise rather than during an actual law-enforcement operation.” While the court had never issued a published decision squarely addressing this issue, it addressed it in an unpublished case, Stewart. There, it rejected the injured officer’s excessive force claim on the ground that the action that resulted in his injuries “was not ‘intentional[.]’” While that decision predated “Brendlin and Torres, it applied the same intent-to-restrain analysis[.]” And more recently, in a published decision, Kilnapp, the court “endorsed Stewart’s rationale under that framework, albeit in dicta.” The court also noted that other “circuits have reached similar conclusions.” Thus, it held that plaintiff “was not seized within the meaning of the Fourth Amendment because Defendants did not act with the necessary intent to restrain.” As to her motion for sanctions for alleged evidentiary misconduct, her request to strike VanderWeele’s pleadings and for a default judgment failed “because such a sanction would be grossly disproportionate to the alleged misconduct at issue[.]” And even if the district court had granted her adverse inference request, “the summary-judgment analysis would remain unchanged.”

42 USC § 1983 action; Fourth Amendment excessive force claim; “Seizure”; Brendlin v California; Torres v Madrid; Lack of intent to restrain; Stewart v City of Middletown (Unpub 6th Cir); Kilnapp v City of Cleveland; “Actual control”; Failure to rule on a sanctions motion based on alleged evidentiary misconduct; Harmless error

[This appeal was from the WD-MI.] Holding that plaintiff-Arthur was not subjected to a Fourth Amendment “seizure,” and that any error by the district court in failing to rule on her sanctions motion before granting defendants summary judgment was harmless, the court affirmed. Plaintiff, a prison employee, was injured while participating in a prison hostage training exercise. Defendants-VanderWeele and Wemple were corrections officers who also participated in it. The only claim at issue on appeal was plaintiff’s § 1983 claim for excessive force in violation of the Fourth Amendment. Her primary argument was “that she was seized by force when she was collaterally injured during Defendants’ attempt to subdue” the deputy warden who was playing her mock hostage taker. The court rejected this claim on the basis that defendants “lacked the necessary intent to restrain. The dispositive fact” (which distinguished this case from unintended-target cases) was that their “use of force occurred during a training exercise rather than during an actual law-enforcement operation.” While the court had never issued a published decision squarely addressing this issue, it addressed it in an unpublished case, Stewart. There, it rejected the injured officer’s excessive force claim on the ground that the action that resulted in his injuries “was not ‘intentional[.]’” While that decision predated “Brendlin and Torres, it applied the same intent-to-restrain analysis[.]” And more recently, in a published decision, Kilnapp, the court “endorsed Stewart’s rationale under that framework, albeit in dicta.” The court also noted that other “circuits have reached similar conclusions.” Thus, it held that plaintiff “was not seized within the meaning of the Fourth Amendment because Defendants did not act with the necessary intent to restrain.” As to her motion for sanctions for alleged evidentiary misconduct, her request to strike VanderWeele’s pleadings and for a default judgment failed “because such a sanction would be grossly disproportionate to the alleged misconduct at issue[.]” And even if the district court had granted her adverse inference request, “the summary-judgment analysis would remain unchanged.”

Preliminary exam procedure; MCR 6.110; Relevance; MRE 401 & 402; People v Morgan; Evidence of an alleged victim’s past sexual conduct & instances of sexual activity; MRE 404(a)(2)(C); People v Makela; Applicability of the rape-shield statute’s (MCL 750.520j) procedural requirements; People v Masi; Applicability of harmless error analysis

In an interlocutory appeal, the court held that under the plain language of MCL 750.520j, the statute’s post-arraignment procedural requirements do not apply during a preliminary exam. Thus, it reversed the district court’s order ruling to the contrary. Both the statute and MRE 404(a)(2)(C) allow admission of evidence of an alleged CSC “victim’s past sexual conduct with the defendant or evidence of a specific instance of sexual activity showing the source or origin of semen, pregnancy, or disease.” But in contrast to MRE 404, “the statute imposes the procedural requirement of filing a written motion and offer of proof when seeking to admit” such evidence. The court found that “the clear and unambiguous language of the statute provides that a written motion and offer of proof anticipated under MCL 750.520j is required only after arraignment on the information occurs, and because this arraignment occurs only after the defendant is bound over to the circuit court, the written motion and offer of proof provision of MCL 750.520j is a procedural step that is imposed by the statute only after a preliminary examination either occurs or is waived.” The court noted that it held in Makela “that the applicable authority for determining whether evidence of the complainant’s past sexual activity was admissible during a preliminary” exam was MRE 404(a)(2)(C), not MCL 750.520j, which it “observed did not appear ‘on its face’ to apply to preliminary” exams. It concluded here that the district court erred in ruling that the statute’s procedural requirements applied during the preliminary exam. Finally, while the prosecution argued that any error by the district court was harmless under MCL 769.26, the court concluded that a harmless error analysis did not apply here.

The Armed Career Criminal Act (ACCA); Whether the government constructively amended the indictment by failing to charge ACCA’s occasions-different element; Erlinger v United States; Forfeited argument; Plain-error review

Addressing a novel “argument that the government constructively amended the indictment by failing to charge ACCA’s occasions-different element[,]” the court held that defendant-Starling’s claim failed on the fourth prong of plain-error review – he did not show the “Erlinger error seriously affected the fairness, integrity, or reputation of” the proceedings. He was convicted of FIP. On appeal, in addition to raising an issue related to Tennessee law, he raised “two Erlinger arguments.” One was “a garden-variety argument” about the requirement that a “jury had to unanimously find ACCA’s occasions-different element fulfilled beyond a reasonable doubt.” But he waived his jury trial right, “and the district court found the element beyond a reasonable doubt at the bench trial. So the real dispute” centered on his constructive-amendment Erlinger argument. The court applied plain-error review because he failed “to timely raise his argument before the district court.” Applying that standard, it found that his claim failed on the fourth prong for two reasons. First, the evidence that his “previous offenses took place on separate occasions ‘was overwhelming and essentially uncontroverted.’ The three convictions—from 2003, 2006, and 2011—were too far apart in time to avoid the conclusion that they occurred on separate occasions.” In addition, he “was on notice that ACCA was part of the case from his initial appearance onward. He didn’t ignore the magistrate judge’s warning at that hearing, either. In his motion to dismiss his indictment (on other grounds), Starling acknowledged that he ‘has three prior felony convictions that appear to enhance his mandatory minimum sentence.’” Further, in his trial brief, he “acknowledged that ‘[t]he government believes that [he] is an Armed Career Criminal for purposes of sentencing.’” The court held that was enough under its “constructive-amendment caselaw.” Affirmed.

Breach of contract; Employment contract for a definite duration; Toussaint v Blue Cross & Blue Shield of MI; Gender discrimination & hostile work environment; The Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a); MCL 37.2103; Retaliation claim under the Payment of Wages & Fringe Benefits Act (PWFBA); MCL 408.483(1); Public-policy exceptions to the at-will doctrine; Leave to amend denial; Whistleblowers’ Protection Act (WPA)

The court held that plaintiff sufficiently pled a breach of employment contract claim and a gender discrimination claim under the ELCRA. But it concluded that she failed to state a valid claim for hostile work environment under the ELCRA or a prima facie claim for retaliation under the PWFBA. Finally, it found that the trial court did not abuse its discretion in denying her leave to amend her complaint to add a WPA retaliation claim. The case arose from the termination of her employment at defendant-J.R. Thompson Company. The trial court granted defendants summary disposition of all plaintiff’s claims under MCR 2.116(C)(8). It relied on a severance provision in dismissing her contract claim. On appeal, the court agreed with plaintiff that the severance provision language irreconcilably conflicted with the contract’s term provision and thus, there was a fact question for the jury to decide. “Under the term provision, plaintiff’s five-year term of employment was only terminable for just cause. But the severance provision states that [she] could be terminated by the company with or without cause at any time during the five-year term, which purportedly created an at-will employment contract. If the contract is read to allow [her] employment to be terminable in the absence of just cause during the five-year term, the term provision would be rendered meaningless.” Because the contract language was “ambiguous, the trial court erred by granting” J.R. summary disposition on the “contract claim and abused its discretion by denying plaintiff’s motion for reconsideration.” It also abused its discretion by denying her leave to amend her complaint as to this claim. The court further determined that, while “not artfully pleaded, plaintiff sufficiently pleaded a claim for gender discrimination under the notice-pleading standard.” It found that defendants’ “arguments and the trial court’s conclusion relate to the claim’s factual sufficiency, not its legal sufficiency.” Affirmed in part, reversed in part, and remanded.

Jurisdiction over a claim of appeal under the Administrative Procedures Act (APA); “Contested case” (MCL 24.203(3)); “Final decision or order”; MCL 24.285; Federal Housing Choice Voucher (HCV) program; Department of Housing & Urban Development (HUD) regulations; Deficiencies as to the Michigan State Housing Development Authority’s (MSHDA) basis for termination & notice; Due process; Public housing agency (PHA)

The court held that the circuit court erred in dismissing plaintiff-Frye’s claim of appeal for lack of jurisdiction under the APA, and that additional evidence needed to be taken before the agency as to whether she “received sufficient proper notice and was entitled to an informal hearing.” The case arose from defendant-MSHDA’s termination of Frye from the federal HCV program subsidizing rent for low-income individuals. The court first concluded that the circuit court erred in determining there was no contested case. Because “HUD regulations require the PHA to give a participant an opportunity for an informal hearing before terminating housing assistance,” this was a contested case under the APA. In addition, the “APA provides for judicial review in a contested case when a person is aggrieved by a ‘final decision or order.’” In this case, “MSHDA’s counsel clearly stated that MSHDA’s denial of Frye’s request for an informal hearing was its final decision[.]” The court found that “Frye exhausted all available administrative remedies and was aggrieved by MSHDA’s final decision to deny her an informal hearing regarding its termination of her housing assistance in this contested case.” Thus, the circuit court erred in concluding “it did not have jurisdiction to review this matter.” The court also agreed with Frye that the circuit court erred in refusing to review it because the record revealed deficiencies as to “MSHDA’s basis for termination and the notice allegedly provided.” She asserted “that she did not receive the termination notice and thus she could not timely request an informal hearing.” And even assuming there was evidence that the notice was sent to her on 9/13/22, there was a dispute whether it was proper. It stated that her rental assistance was terminated “13 days before the notice was issued.” There was also a dispute whether she “violated any specific program rules regarding use and occupancy of the rental unit.” Reversed and remanded.

Governmental Tort Liability Act (GTLA); Individual governmental immunity; Intentional torts; Ross v Consumers Power Co (On Rehearing); Odom v Wayne Cnty; False arrest; False imprisonment; Malicious prosecution; Intentional infliction of emotional distress (IIED); Probable cause; Misdemeanor stalking; MCL 750.411h; Collateral estoppel; Vicarious liability

The court held that defendant-deputy was entitled to individual governmental immunity and, alternatively, summary disposition due to lack of a genuine issue of material fact on plaintiff’s intentional-tort claims, and that defendant-county was also entitled to summary disposition. Plaintiff sued after the deputy arrested him near his former employer’s premises following threatening voicemails about unpaid wages, prior warnings not to contact or return to the business, and reports from staff that plaintiff had returned and was yelling or gesturing near the building. The trial court granted summary disposition to the county but denied summary disposition to the deputy. On appeal, the court first held that the deputy satisfied the Odom immunity test because he acted within the course and scope of employment, made a discretionary arrest decision, and acted in good faith. It reasoned that “the escalating facts in the record” gave him an “honest, good-faith basis” to believe plaintiff was engaging in illegal threatening behavior. It noted that the criminal court, in dismissing that case, had stated, “I understand why the officer was concerned” with plaintiff’s behavior. The court next held that the false arrest, false imprisonment, and malicious prosecution claims failed on the merits because probable cause existed for misdemeanor stalking. It reasoned that plaintiff’s voicemails, threat to follow staff to their homes and schools, reference to a workplace shooting, later appearance near the business, and conduct toward staff constituted “two or more separate acts demonstrating a continuity of purpose of harassment.” The court also rejected the IIED claim because the deputy “acted reasonably and understandably,” not outrageously. Finally, the court held that the county could not be vicariously liable because the deputy committed no intentional tort and, in any event, the county was immune because no GTLA exception applied. Affirmed in part, reversed in part, and remanded for summary disposition for all defendants.

Governmental Tort Liability Act (GTLA); Individual governmental immunity; Intentional torts; Ross v Consumers Power Co (On Rehearing); Odom v Wayne Cnty; False arrest; False imprisonment; Malicious prosecution; Intentional infliction of emotional distress (IIED); Probable cause; Misdemeanor stalking; MCL 750.411h; Collateral estoppel; Vicarious liability

The court held that defendant-deputy was entitled to individual governmental immunity and, alternatively, summary disposition due to lack of a genuine issue of material fact on plaintiff’s intentional-tort claims, and that defendant-county was also entitled to summary disposition. Plaintiff sued after the deputy arrested him near his former employer’s premises following threatening voicemails about unpaid wages, prior warnings not to contact or return to the business, and reports from staff that plaintiff had returned and was yelling or gesturing near the building. The trial court granted summary disposition to the county but denied summary disposition to the deputy. On appeal, the court first held that the deputy satisfied the Odom immunity test because he acted within the course and scope of employment, made a discretionary arrest decision, and acted in good faith. It reasoned that “the escalating facts in the record” gave him an “honest, good-faith basis” to believe plaintiff was engaging in illegal threatening behavior. It noted that the criminal court, in dismissing that case, had stated, “I understand why the officer was concerned” with plaintiff’s behavior. The court next held that the false arrest, false imprisonment, and malicious prosecution claims failed on the merits because probable cause existed for misdemeanor stalking. It reasoned that plaintiff’s voicemails, threat to follow staff to their homes and schools, reference to a workplace shooting, later appearance near the business, and conduct toward staff constituted “two or more separate acts demonstrating a continuity of purpose of harassment.” The court also rejected the IIED claim because the deputy “acted reasonably and understandably,” not outrageously. Finally, the court held that the county could not be vicariously liable because the deputy committed no intentional tort and, in any event, the county was immune because no GTLA exception applied. Affirmed in part, reversed in part, and remanded for summary disposition for all defendants.

Reasonable reunification efforts; Accommodations for disabilities; In re Hicks/Brown; Children’s best interests; In re Olive/Metts; Guardian ad litem (GAL)

The court held that the trial court did not clearly err in finding that the DHHS made reasonable reunification efforts and that terminating respondent-father’s parental rights was in the children’s best interests. He did not challenge the finding that a statutory ground supported termination. As to the reasonable reunification efforts issue, the trial court provided him with a GAL “to help him navigate the court process and the reunification process. Respondent also had a Pathways case manager to help him with medication management, case management, counseling, and paperwork.” He did not “assert what accommodations” for his mental-health challenges the DHHS should have made, or show “that he would have fared better in mitigating his barriers to reunification had any such accommodations been made.” The court also found that the record belied his arguments as to parenting time, noting that it revealed he “did not participate in the parenting time offered to him[.]” In addition, it supported the trial “court’s finding that respondent was provided with housing applications and assistance as a reasonable effort toward reunification.” The court further determined that a preponderance of evidence supported the trial court’s conclusion that termination was in each child’s best interests. It made findings as to each child, and as to all three children, it “looked to the advantages that [their] foster placement offered over” their return to respondent’s custody. The record supported its finding that they “were thriving under the foster parents’ care.” Allegations in the petitions supported its findings that the children had “witnessed violence between the parents in the household” and the court noted that while he asserted he was bonded with the children, the record evidence reflected the opposite. Affirmed.