Property division; Separate property; Lawsuit settlement; Compensatory damages; MCL 552.23(1); MCL 552.401; Pickering v Pickering; Spousal support; Richards v Richards; Attorney fees; MCL 552.13(1); MCR 3.206(D)(2)(b); Discovery misconduct; Marital debt; Credibility

The court held that the trial court’s property distribution, spousal-support award, and attorney-fee award in the parties’ divorce judgment were equitable and not an abuse of discretion. Defendant-husband argued the trial court used the property division to punish him, but the court held that the record showed the trial court relied on equity, including the parties’ earning abilities, their current financial status, and the husband’s failure to provide “complete financial documentation.” The court first upheld the award to plaintiff-wife of half the lost-wages portion of the husband’s wrongful termination lawsuit settlement because those wages “would have been earned prior to the divorce.” It also upheld the award of 25% of the compensatory-damages portion, even though such damages are typically separate property, because the trial court could invade separate property under MCL 552.23 and MCL 552.401, and the record showed the husband attempted to conceal information about the lawsuit settlement. The court next held that the husband was properly made solely responsible for alleged loans from his brother because the wife did not know about or consent to them, the loans “lacked any formality,” and the record did not show they were used for marital expenses. The court also upheld spousal support of $500 per month for 12 months because the husband had far greater earning potential, the court found he was “employable,” and he provided no medical documentation supporting his claimed inability to work. Finally, the attorney-fee award was proper under MCR 3.206(D)(2)(b) because the husband’s bad faith failure to disclose financial information “led to a pro-longed litigation process,” and no evidentiary hearing was required where the record was sufficient. Affirmed.

Fraudulent transfer; Michigan’s Uniform Voidable Transactions Act; “Constructive fraud”; MCL 566.35; Dillard v Schlussel; Pursuit of other enforcement actions in other jurisdictions; Motion for enforcement of MCR 2.621(G); “Further proceedings”; Claim for independent relief under MCR 2.612(C)(3); Waiver; Motion for reconsideration

In an issue of first impression, the court interpreted the phrase “further proceedings” in MCR 2.621(G) and held that the court rule does not apply to supplemental proceedings brought in other jurisdictions. It also upheld the trial court’s order that found plaintiff-Schubiner “had engaged in a fraudulent transfer of real estate and” voided the transfer. In Docket No. 371134, the court held that Schubiner’s claim for independent relief under MCR 2.612(C)(3) was waived, and that the trial court did not abuse its discretion in denying his motion for reconsideration. In Docket No. 377133, he and intervenor-305 Associates appealed the trial court’s fraudulent transfer order. The court held that the trial court did not err in determining “Schubiner made a fraudulent transfer of properties[.]” He and 305 challenged the trial court’s finding that he “did not receive reasonably equivalent value in exchange for the transfer.” The court determined that, accepting “that Schubiner’s debt was the same both before and after the refinancing, that does not fully describe the situation: 305 got its debt erased. Thus, the question becomes, ‘In the context of this particular transaction, did 305 give Schubiner anything for the removal of 305’s debt?’ The answer would appear to be ‘no.’ Schubiner’s debt related to these loans remained virtually unchanged after the refinancing. It therefore is highly questionable that he received any ‘value’ for becoming the sole obligor on the loans, with 305 getting its debt eliminated.” The court concluded that, accepting his “and 305’s position that Schubiner had the same debt (related to the loans) before and after the refinancing, the evidence shows that [he] received nothing for 305 being able to eliminate its debt on the loans, with him now taking on the full liability for the loan debts.” Thus, the court was “not left with a definite and firm conviction that the trial court erred” as to its finding. It also rejected Schubiner’s argument that defendant-Can IV had to seek the trial court’s leave before pursuing other enforcement actions in other jurisdictions. The court held that “MCR 2.621(G) does not permit a party to bring multiple supplementary proceedings under MCR 2.621(A) without obtaining leave of the [trial] court. It does not pertain to other types of supplemental proceedings, including those initiated in other jurisdictions.” Affirmed.

Workplace retaliation under the ADA (42 USC § 12203(a)) & Title VII (§ 2000e-3(a)); “Protected activity”; Participation; Opposition

The court held that defendants-employer and others were properly granted summary judgment on plaintiff-DiChiara’s Title VII and ADA employment-retaliation claims because she did not establish that she engaged in “protected activity.” DiChiara, a physician, worked for St. Elizabeth Physicians (SEP), a subsidiary of defendant-St. Elizabeth. During COVID-19, her employers announced future mandated vaccinations. What followed was a series of interactions with like-minded individuals, including an attorney who had been disbarred. She also emailed the individual defendants, the presidents and CEOs of SEP and St. Elizabeth. Frustrated with the lack of a policy change, “she arranged for a petition and a summary of the group’s medical concerns and proposed policy changes to be circulated to hospital leadership.” She shared some of the related email communications with the attorney, asking him to keep them private. However, they were attached to the complaint in a lawsuit (to which she was not a party). She apologized to the individual defendants, and later received a religious exemption from the vaccination mandate. She was fired weeks later. Her termination letter alleged “misappropriation of company property, disruptive and unprofessional conduct, and breach of loyalty as ‘for-cause’ reasons for” the decision. On appeal, the court considered her Title VII and ADA retaliation claims under the same standards. It held that she failed to show that she was retaliated against for engaging in protected activity where she did not participate in the Title VII litigation. It concluded that her “pre-lawsuit emails constitute indirect assistance at best” and that this was not enough. The court also determined that without “some objective basis to ground her subjective fear of unlawful activity, DiChiara’s conduct did not amount to protected opposition.” Affirmed.

Contract breach; Motion for JNOV; Genna v Jackson; Motion for a new trial based on the jury’s damages award; MCR 2.611(A)(1)(c), (d), & (e); Professional negligence/malpractice; Statute of limitations; MCL 600.5805(8) & (13); Motions for summary disposition, directed verdict, & JNOV; Damages cap based on interpretation of the contract; Need for U.S. Department of Agriculture’s Rural Utilities Service (RUS) approval for an amendment; 7 CFR §§ 1753.11(a)(2) & (d)

The court held that the trial court improperly granted defendant-Casair’s motion for JNOV on its breach of contract counterclaim, but did not abuse its discretion in denying plaintiff-JDF’s motion for a new trial based on the jury’s damages award for the professional negligence or malpractice counterclaim. The trial court also did not err in denying JDF’s motion for summary disposition of that claim based on the statute of limitations, or its motions for a directed verdict or JNOV. Finally, the court rejected JDF’s argument that the trial court erred in limiting its potential recovery based on its interpretation of the contract. Thus, the court reversed the grant of Casair’s JNOV motion, remanded for correction of the error in “reforming the jury’s verdict to ascribe the damages awarded to a breach of contract claim the jury clearly rejected[,]” and otherwise affirmed. JDF sued for payment for an engineering project. Casair countersued due to alleged “issues with the project. A jury rejected Casair’s claim for breach of contract but found that JDF was liable for professional negligence and awarded $1.5 million in damages.” On appeal, the court first found that the trial court erred in granting Casair’s motion for JNOV. It “was possible to reconcile the jury’s verdict.” The issue was whether JDF breached the contract and caused damages. The court concluded that “reasonable people could differ when determining whether JDF was liable for breach of contract[.]” While the contract required it to, for example, “render its services ‘consistent with sound professional practices,’ it is possible that the jury found that JDF engaged in ‘sound professional practices’ to the extent necessary to abide by the Contract. The evidence demonstrated that the project outside of Big Rapids, for example, was operational.” There was also testimony “that JDF’s invoices were improper but did not violate the Contract. The jury may also have determined that JDF breached the Contract but that the breaches themselves did not cause damages.” The court held that “reasonable jurors could have disagreed about whether JDF was liable for breach of contract[.]” But as to JDF’s motion for a new trial, while “there was no testimony about specific damages of $1.5 million, there was testimony about various amounts of damages and no basis to find that the jury failed to consider the evidence when determining its award.”

Armed robbery; MCL 750.529; Larceny; Self-defense; Inconsistent verdicts; Expert testimony; Posttraumatic stress disorder (PTSD); Diminished capacity; People v Carpenter; People v Yost; Sentencing; Acquitted conduct; People v Beck; OVs 1, 4, & 9; Departure sentence; Proportionality; People v Dixon-Bey

The court held that: 1) sufficient evidence supported defendant’s armed-robbery convictions; 2) the jury did not return impermissibly inconsistent verdicts; 3) PTSD expert testimony was properly excluded; and 4) his departure sentence was reasonable. Defendant was acquitted of murder and AWIM but convicted of two armed robberies and related felony-firearm counts after a drug-sale meeting ended with one victim dead, another severely injured, and defendant taking a backpack containing cash. The trial court denied his motion for judgment of acquittal or a new trial and sentenced him above the guidelines for armed robbery. On appeal, the court held that the armed-robbery evidence was sufficient because defendant did not have to complete the larceny or take the cash “contemporaneously with the use of force or assaultive conduct.” It reasoned that the jury could infer he used the gun to attempt to rob the victims before the shootings, or to put them in fear afterward so he could take the money and escape. The court next rejected defendant’s inconsistent-verdict argument because the record did not show the jury acquitted him on self-defense grounds, and “‘[j]urors are presumed to follow their instructions.’” It also held that his proposed PTSD expert testimony was inadmissible to show he could not form intent because Carpenter bars a diminished-capacity defense, and defendant identified no permissible purpose under Yost. Finally, the court held that the trial court did not rely on acquitted conduct at sentencing because it expressly acknowledged Beck and did not use the shootings as departure reasons. The court found the above-guidelines sentence proportionate where defendant failed to render aid, failed to call police, took advantage of “an opportunity to execute an armed robbery,” and then engaged in conspicuous spending. Affirmed.

Sentencing; Scoring of OVs 3, 9, & 12; MCL 777.33(1)(c); People v Houston; MCL 777.39(1)(c); MCL 777.42(1)(b)

Holding that 25 points were properly scored for OV 3, and that 10 points were properly scored for OVs 9 and 12, the court affirmed defendant’s sentences. He was convicted of manslaughter and felony-firearm. He was sentenced to 8 to 15 years for the manslaughter conviction, and two years for each felony-firearm conviction. He argued that he was entitled to resentencing because the trial court improperly scored OVs 3, 9, and 12. The court disagreed. As to OV 3, because his “sentencing offense was manslaughter, he could not be assessed 100 points for OV 3.” Thus, the trial court assessed him “25 points because ‘[l]ife threatening or permanent incapacitating injury occurred to a victim.’” As to OV 9, a video admitted at trial showed that he was standing only a few feet from the car (a Buick), in which two individuals (B and M) were sitting, when he shot victim-R. “Defendant was facing the Buick and continued to walk in that direction as [R], who sustained six gunshot wounds, collapsed in the street. As such, a preponderance of the evidence shows defendant fired at least six gunshots in the direction of the Buick, placing [B and M] in close proximity to a physically threatening situation[.]” As a result, the trial court did not clearly err in assessing 10 points for OV 9. Finally, the court held that it was reasonable to conclude based on the evidence that “defendant’s intention when shooting at the group helping [R] was to scare them away from following him. Because [his] actions constituting felonious assault were separate acts occurring within 24 hours of the sentencing offense, the trial court did not clearly err when it assessed 10 points for OV 12.”

Malicious destruction of personal property; MCL 750.377a(1)(b)(i); Possession of bombs with unlawful intent; MCL 750.210(2)(a); Confrontation Clause; Former testimony; Unavailable witness; Physical infirmity; MRE 804(a)(4); MRE 804(b)(1); Crawford v Washington; People v Garland; Sentencing; People v Copeland; Presumptive proportionality; People v Brcic; People v Ventour

The court held that the trial court did not abuse its discretion by admitting the property owner’s preliminary-examination testimony at trial and that defendant failed to show his within-guidelines sentence for possessing explosives was disproportionate. Defendant was convicted after deputies responded to a disturbance, smelled chemicals, heard a scream from inside a garage, saw defendant approach with a box cutter, and later found a “very flammable” substance and a scratched truck. The court first held that the owner was unavailable under MRE 804(a)(4) because he had emergency gallbladder surgery shortly before trial, was taking opioids, had been vomiting, and was still within his doctor’s anticipated recovery period. These facts supported that he could not testify because of a “then-existing infirmity.” The court next held that admitting his preliminary-examination testimony did not violate the Confrontation Clause or MRE 804(b)(1) because defendant had notice of the malicious-destruction charge before the examination, the owner testified about the truck’s value and repair cost, and defense counsel had an “opportunity and similar motive” to cross-examine him. The court reasoned that the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination “‘in whatever way, and to whatever extent, the defense might wish.’” Finally, the court held that defendant did not overcome the presumption that his 180-to-480-month sentence was proportionate where the trial court considered his possible “suicide by cop” motive, but also found he intended “to cause serious injury,” did everything he could “to cause harm and chaos,” and had an extensive criminal history relevant to rehabilitation. Affirmed.

Search & seizure; “Reasonable suspicion” to search a residence; Constitutional challenge to a FIP conviction; United States v Williams

[This appeal was from the WD-MI.] The court affirmed the denial of defendant-Hernandez’s motion to suppress, holding that the officers had a “particularized and objective basis” to suspect that he was engaging in firearm and drug activities at a residence that had not been reported to his probation officer. Hernandez violated his supervised release by living at an unreported residence (the Mahlon House), and a search of the house revealed three firearms and drugs. After the district court denied his motion to suppress, he entered a conditional guilty plea to FIP. On appeal, the court noted that, before the search was conducted, conditions had been added to his supervised release, which “allowed probation officers to monitor his location and search his ‘person, property, house, residence, . . . [and] papers’ whenever ‘reasonable suspicion’ existed that Hernandez ‘violated a condition of supervision and that the areas to be searched contain evidence of this violation.’” His probation officer had conducted surveillance and concluded that Hernandez had failed to report a change of residence. Hernandez argued that the officers could not have “reasonably suspected” that firearm or drug activities were occurring at the Mahlon House. But the court held that there was reasonable suspicion where “officers received a specific statement from a woman that Hernandez put a gun in her face at the Mahlon House and then removed” guns from the house. Even though the report indicated the guns had been removed, “his probation officer reasonably suspected that Hernandez had brought them back.” The court also noted that Hernandez had continually denied residing in that house even though there was evidence to the contrary, and his prior gun offenses were “‘particularly probative’” because they involved the same issue that concerned his probation officer. The court further concluded that the “facts, viewed together, gave officers reasonable suspicion that the residence contained evidence of drug activity.” Because reasonable suspicion existed that firearm and drug activities were occurring at the house, the officers “were entitled to search the house and seize the firearms discovered in the process.” The court also rejected Hernandez’s facial and as applied challenges to his FIP conviction. The facial challenge was foreclosed by Williams, and he failed to prove that he was “not dangerous.”

Workplace retaliation under the ADA (42 USC § 12203(a)) & Title VII (§ 2000e-3(a)); “Protected activity”; Participation; Opposition

The court held that defendants-employer and others were properly granted summary judgment on plaintiff-DiChiara’s Title VII and ADA employment-retaliation claims because she did not establish that she engaged in “protected activity.” DiChiara, a physician, worked for St. Elizabeth Physicians (SEP), a subsidiary of defendant-St. Elizabeth. During COVID-19, her employers announced future mandated vaccinations. What followed was a series of interactions with like-minded individuals, including an attorney who had been disbarred. She also emailed the individual defendants, the presidents and CEOs of SEP and St. Elizabeth. Frustrated with the lack of a policy change, “she arranged for a petition and a summary of the group’s medical concerns and proposed policy changes to be circulated to hospital leadership.” She shared some of the related email communications with the attorney, asking him to keep them private. However, they were attached to the complaint in a lawsuit (to which she was not a party). She apologized to the individual defendants, and later received a religious exemption from the vaccination mandate. She was fired weeks later. Her termination letter alleged “misappropriation of company property, disruptive and unprofessional conduct, and breach of loyalty as ‘for-cause’ reasons for” the decision. On appeal, the court considered her Title VII and ADA retaliation claims under the same standards. It held that she failed to show that she was retaliated against for engaging in protected activity where she did not participate in the Title VII litigation. It concluded that her “pre-lawsuit emails constitute indirect assistance at best” and that this was not enough. The court also determined that without “some objective basis to ground her subjective fear of unlawful activity, DiChiara’s conduct did not amount to protected opposition.” Affirmed.

Property division; Separate property; Lawsuit settlement; Compensatory damages; MCL 552.23(1); MCL 552.401; Pickering v Pickering; Spousal support; Richards v Richards; Attorney fees; MCL 552.13(1); MCR 3.206(D)(2)(b); Discovery misconduct; Marital debt; Credibility

The court held that the trial court’s property distribution, spousal-support award, and attorney-fee award in the parties’ divorce judgment were equitable and not an abuse of discretion. Defendant-husband argued the trial court used the property division to punish him, but the court held that the record showed the trial court relied on equity, including the parties’ earning abilities, their current financial status, and the husband’s failure to provide “complete financial documentation.” The court first upheld the award to plaintiff-wife of half the lost-wages portion of the husband’s wrongful termination lawsuit settlement because those wages “would have been earned prior to the divorce.” It also upheld the award of 25% of the compensatory-damages portion, even though such damages are typically separate property, because the trial court could invade separate property under MCL 552.23 and MCL 552.401, and the record showed the husband attempted to conceal information about the lawsuit settlement. The court next held that the husband was properly made solely responsible for alleged loans from his brother because the wife did not know about or consent to them, the loans “lacked any formality,” and the record did not show they were used for marital expenses. The court also upheld spousal support of $500 per month for 12 months because the husband had far greater earning potential, the court found he was “employable,” and he provided no medical documentation supporting his claimed inability to work. Finally, the attorney-fee award was proper under MCR 3.206(D)(2)(b) because the husband’s bad faith failure to disclose financial information “led to a pro-longed litigation process,” and no evidentiary hearing was required where the record was sufficient. Affirmed.

Fraudulent transfer; Michigan’s Uniform Voidable Transactions Act; “Constructive fraud”; MCL 566.35; Dillard v Schlussel; Pursuit of other enforcement actions in other jurisdictions; Motion for enforcement of MCR 2.621(G); “Further proceedings”; Claim for independent relief under MCR 2.612(C)(3); Waiver; Motion for reconsideration

In an issue of first impression, the court interpreted the phrase “further proceedings” in MCR 2.621(G) and held that the court rule does not apply to supplemental proceedings brought in other jurisdictions. It also upheld the trial court’s order that found plaintiff-Schubiner “had engaged in a fraudulent transfer of real estate and” voided the transfer. In Docket No. 371134, the court held that Schubiner’s claim for independent relief under MCR 2.612(C)(3) was waived, and that the trial court did not abuse its discretion in denying his motion for reconsideration. In Docket No. 377133, he and intervenor-305 Associates appealed the trial court’s fraudulent transfer order. The court held that the trial court did not err in determining “Schubiner made a fraudulent transfer of properties[.]” He and 305 challenged the trial court’s finding that he “did not receive reasonably equivalent value in exchange for the transfer.” The court determined that, accepting “that Schubiner’s debt was the same both before and after the refinancing, that does not fully describe the situation: 305 got its debt erased. Thus, the question becomes, ‘In the context of this particular transaction, did 305 give Schubiner anything for the removal of 305’s debt?’ The answer would appear to be ‘no.’ Schubiner’s debt related to these loans remained virtually unchanged after the refinancing. It therefore is highly questionable that he received any ‘value’ for becoming the sole obligor on the loans, with 305 getting its debt eliminated.” The court concluded that, accepting his “and 305’s position that Schubiner had the same debt (related to the loans) before and after the refinancing, the evidence shows that [he] received nothing for 305 being able to eliminate its debt on the loans, with him now taking on the full liability for the loan debts.” Thus, the court was “not left with a definite and firm conviction that the trial court erred” as to its finding. It also rejected Schubiner’s argument that defendant-Can IV had to seek the trial court’s leave before pursuing other enforcement actions in other jurisdictions. The court held that “MCR 2.621(G) does not permit a party to bring multiple supplementary proceedings under MCR 2.621(A) without obtaining leave of the [trial] court. It does not pertain to other types of supplemental proceedings, including those initiated in other jurisdictions.” Affirmed.

Notice requirements of the Indian Child Welfare Act (ICWA) & Michigan’s Indian Family Preservation Act (MIFPA); In re Morris; In re Williams; When the notice requirements were triggered; “Removal”; In re Detmer/Beaudry; Safe-harbor provision (MCL 712B.19); “Active efforts” requirement; MCR 3.002(1); Timing & sufficiency

The court held that respondent-mother failed to show error as to the notice requirements of the ICWA and MIFPA. She also did not show error as to the timing or sufficiency of the required active efforts to prevent the breakup of her family. Thus, the court affirmed the trial court’s order authorizing the petition as to her children. She first argued that the trial court reversibly erred by proceeding on a removal petition without complying with the notice provisions of the ICWA and MIFPA. The court noted that Morris makes it clear that “the ICWA-notice requirements apply only to involuntary foster-care placements. Before CPS was involved with the family, respondent voluntarily placed the children with” their maternal grandmother, “and this voluntary placement continued until respondent revoked her consent to” it at the preliminary hearing in 5/25. Thus, because the placement was voluntary until then, “ICWA’s notice requirement was not yet implicated.” And by the time it was triggered, “DHHS had already sent the required notices to the relevant tribes and the [trial] court had received the green return receipt cards more than 10 days before the hearing.” Thus, respondent failed to show the trial court erred in concluding “DHHS complied with ICWA’s notice requirements.” The court noted that “the distinction between voluntary and involuntary proceedings is not present in the text of MIFPA[.]” Under MCL 712B.9(2), the trial “court was not permitted to hold a proceeding regarding a foster care placement, i.e., the removal of the children from respondent’s care, until 10 days after receiving the green return receipt card from the tribes.” However, by the time the children were removed from respondent’s “care under the definition in Detmer/Beaudry, the MIFPA-notice requirements were satisfied.” As to her claim regarding the timing of the required active efforts, the court found that she was not entitled to relief given that she did not challenge the trial “court’s conclusion under MCL 712B.19 that continued custody was appropriate because of the substantial and immediate danger to the children if returned to her care.” Finally, the court found that “the testimony presented at the preliminary hearing indicated that DHHS completed the active efforts required by both ICWA and MIFPA.”

Contract breach; Motion for JNOV; Genna v Jackson; Motion for a new trial based on the jury’s damages award; MCR 2.611(A)(1)(c), (d), & (e); Professional negligence/malpractice; Statute of limitations; MCL 600.5805(8) & (13); Motions for summary disposition, directed verdict, & JNOV; Damages cap based on interpretation of the contract; Need for U.S. Department of Agriculture’s Rural Utilities Service (RUS) approval for an amendment; 7 CFR §§ 1753.11(a)(2) & (d)

The court held that the trial court improperly granted defendant-Casair’s motion for JNOV on its breach of contract counterclaim, but did not abuse its discretion in denying plaintiff-JDF’s motion for a new trial based on the jury’s damages award for the professional negligence or malpractice counterclaim. The trial court also did not err in denying JDF’s motion for summary disposition of that claim based on the statute of limitations, or its motions for a directed verdict or JNOV. Finally, the court rejected JDF’s argument that the trial court erred in limiting its potential recovery based on its interpretation of the contract. Thus, the court reversed the grant of Casair’s JNOV motion, remanded for correction of the error in “reforming the jury’s verdict to ascribe the damages awarded to a breach of contract claim the jury clearly rejected[,]” and otherwise affirmed. JDF sued for payment for an engineering project. Casair countersued due to alleged “issues with the project. A jury rejected Casair’s claim for breach of contract but found that JDF was liable for professional negligence and awarded $1.5 million in damages.” On appeal, the court first found that the trial court erred in granting Casair’s motion for JNOV. It “was possible to reconcile the jury’s verdict.” The issue was whether JDF breached the contract and caused damages. The court concluded that “reasonable people could differ when determining whether JDF was liable for breach of contract[.]” While the contract required it to, for example, “render its services ‘consistent with sound professional practices,’ it is possible that the jury found that JDF engaged in ‘sound professional practices’ to the extent necessary to abide by the Contract. The evidence demonstrated that the project outside of Big Rapids, for example, was operational.” There was also testimony “that JDF’s invoices were improper but did not violate the Contract. The jury may also have determined that JDF breached the Contract but that the breaches themselves did not cause damages.” The court held that “reasonable jurors could have disagreed about whether JDF was liable for breach of contract[.]” But as to JDF’s motion for a new trial, while “there was no testimony about specific damages of $1.5 million, there was testimony about various amounts of damages and no basis to find that the jury failed to consider the evidence when determining its award.”

Common work area doctrine; Funk v General Motors Corp; Ormsby v Capital Welding, Inc; General contractor; Retained control; Readily observable & avoidable danger; Significant number of workers; Workers’ Disability Compensation Act (WDCA); Direct employer; Statutory employer; MCL 418.171; McQueer v Perfect Fence Co

The court held that the trial court erred by granting defendants summary disposition of plaintiff’s common-work-area and WDCA claims arising from injuries he suffered when inadequately braced roof trusses fell on him. As to the common-work-area claim, the court first held that a fact question existed whether defendant-VanderArk was the general contractor or an owner who retained control because he selected subcontractors, visited the site, paid subcontractors directly, provided equipment, and made decisions that had “an actual effect on the manner in which the workers performed the construction.” The court next held that the trial court erred by finding no readily observable danger based on VanderArk’s absence from the site and defendant-JonBuilt’s superior knowledge because a general contractor’s duty is to take reasonable steps to ensure “safety precautions are taken,” and that duty is not discharged by a subcontractor’s presence. The court also rejected defendants’ alternative arguments, reasoning that a fact question existed whether 7 to 10 workers were exposed to the risk of falling trusses, and that the area was common because workers from multiple subcontractors were “subject to the same risk or hazard.” As to the WDCA claims, the court held that a fact question existed whether defendants directly employed plaintiff because he worked daily at the ranch, VanderArk allegedly set his wage and directed him to leave, and defendant-Mid-Michigan asserted it hired and paid plaintiff “at VanderArk’s request and for efficiency purposes[.]” The court also held that the trial court’s conclusion that MCL 418.171 was “inapplicable to the facts of this case” was not legally supportable because plaintiff alleged the type of principal-contractor relationship the statute covers. Vacated and remanded.

Notice requirements of the Indian Child Welfare Act (ICWA) & Michigan’s Indian Family Preservation Act (MIFPA); In re Morris; In re Williams; When the notice requirements were triggered; “Removal”; In re Detmer/Beaudry; Safe-harbor provision (MCL 712B.19); “Active efforts” requirement; MCR 3.002(1); Timing & sufficiency

The court held that respondent-mother failed to show error as to the notice requirements of the ICWA and MIFPA. She also did not show error as to the timing or sufficiency of the required active efforts to prevent the breakup of her family. Thus, the court affirmed the trial court’s order authorizing the petition as to her children. She first argued that the trial court reversibly erred by proceeding on a removal petition without complying with the notice provisions of the ICWA and MIFPA. The court noted that Morris makes it clear that “the ICWA-notice requirements apply only to involuntary foster-care placements. Before CPS was involved with the family, respondent voluntarily placed the children with” their maternal grandmother, “and this voluntary placement continued until respondent revoked her consent to” it at the preliminary hearing in 5/25. Thus, because the placement was voluntary until then, “ICWA’s notice requirement was not yet implicated.” And by the time it was triggered, “DHHS had already sent the required notices to the relevant tribes and the [trial] court had received the green return receipt cards more than 10 days before the hearing.” Thus, respondent failed to show the trial court erred in concluding “DHHS complied with ICWA’s notice requirements.” The court noted that “the distinction between voluntary and involuntary proceedings is not present in the text of MIFPA[.]” Under MCL 712B.9(2), the trial “court was not permitted to hold a proceeding regarding a foster care placement, i.e., the removal of the children from respondent’s care, until 10 days after receiving the green return receipt card from the tribes.” However, by the time the children were removed from respondent’s “care under the definition in Detmer/Beaudry, the MIFPA-notice requirements were satisfied.” As to her claim regarding the timing of the required active efforts, the court found that she was not entitled to relief given that she did not challenge the trial “court’s conclusion under MCL 712B.19 that continued custody was appropriate because of the substantial and immediate danger to the children if returned to her care.” Finally, the court found that “the testimony presented at the preliminary hearing indicated that DHHS completed the active efforts required by both ICWA and MIFPA.”

Common work area doctrine; Funk v General Motors Corp; Ormsby v Capital Welding, Inc; General contractor; Retained control; Readily observable & avoidable danger; Significant number of workers; Workers’ Disability Compensation Act (WDCA); Direct employer; Statutory employer; MCL 418.171; McQueer v Perfect Fence Co

The court held that the trial court erred by granting defendants summary disposition of plaintiff’s common-work-area and WDCA claims arising from injuries he suffered when inadequately braced roof trusses fell on him. As to the common-work-area claim, the court first held that a fact question existed whether defendant-VanderArk was the general contractor or an owner who retained control because he selected subcontractors, visited the site, paid subcontractors directly, provided equipment, and made decisions that had “an actual effect on the manner in which the workers performed the construction.” The court next held that the trial court erred by finding no readily observable danger based on VanderArk’s absence from the site and defendant-JonBuilt’s superior knowledge because a general contractor’s duty is to take reasonable steps to ensure “safety precautions are taken,” and that duty is not discharged by a subcontractor’s presence. The court also rejected defendants’ alternative arguments, reasoning that a fact question existed whether 7 to 10 workers were exposed to the risk of falling trusses, and that the area was common because workers from multiple subcontractors were “subject to the same risk or hazard.” As to the WDCA claims, the court held that a fact question existed whether defendants directly employed plaintiff because he worked daily at the ranch, VanderArk allegedly set his wage and directed him to leave, and defendant-Mid-Michigan asserted it hired and paid plaintiff “at VanderArk’s request and for efficiency purposes[.]” The court also held that the trial court’s conclusion that MCL 418.171 was “inapplicable to the facts of this case” was not legally supportable because plaintiff alleged the type of principal-contractor relationship the statute covers. Vacated and remanded.