42 USC § 1983; Equal protection; Class-of-one claim; Rockwood Auto Parts, Inc v Monroe Cnty; Disparate treatment; No-conceivable-reason theory; Animus theory; Procedural & substantive due process violation claims; Zinermon v Burch; Protected property interest; Building permits; First Amendment retaliation; Constitutionally protected speech element; Limitations on emailing township board members; Narrowly tailored restriction; Ward v Rock Against Racism

[This appeal was from the ED-MI.] Holding that defendant-Lyon Township did not violate plaintiff-GSL’s equal-protection, due process, or First Amendment free speech rights, the court affirmed summary judgment for defendants. GSL agreed to build a manufacturing facility for a company on a parcel of land in the Township. After it and the Township failed “to reach an agreement that would allow [it] to start building the facility without a septic permit,” GSL sued defendants under § 1983. As to its class-of-one equal protection claim, GSL argued the Township subjected it to disparate treatment. The court concluded that its claim failed because it could not “negate every reason for the Township’s actions, nor can it show that animus or ill will motivated” them. The court noted that the “Township required GSL to obtain a septic permit before the building department would issue a building permit. In the alternative, [it] required GSL to execute a hold-harmless agreement so that GSL could begin construction before the issuance of a building permit. GSL has failed to rebut the presumption that the Township had a rational basis for taking these actions.” GSL identified one “instance in which another entity obtained a building permit before securing the necessary approvals from other agencies. On this record, that is insufficient for us to conclude that the Township lacked a rational basis for enforcing its policies four years later to ensure that GSL’s property had an adequate sanitation system.” Further, GSL lacked evidence that the “building department or any other final decisionmaker harbored animus unrelated to their official duties.” GSL’s procedural and substantive due process claims also failed. It lacked “a property interest because it did not engage in construction work of a substantial character after the alleged issuance of the building permits.” And even if it could overcome that hurdle, it fell “well short of showing that Lyon Township acted arbitrarily or irrationally in not issuing building permits for the property.” GSL failed to comply with the Township’s ordinances. Finally, its First Amendment retaliation claim failed “at the first element.” By advising GSL not to send “further project-related communications to the board of trustees en masse, the Township hoped to shield itself from any potential allegations that its board was engaging in secret, backroom deals with property developers.” Its attorney simply told GSL not to contact all the board members at once via email. This “modest restriction on the way citizens may contact the board passes constitutional muster.”

42 USC § 1983; Equal protection; Class-of-one claim; Rockwood Auto Parts, Inc v Monroe Cnty; Disparate treatment; No-conceivable-reason theory; Animus theory; Procedural & substantive due process violation claims; Zinermon v Burch; Protected property interest; Building permits; First Amendment retaliation; Constitutionally protected speech element; Limitations on emailing township board members; Narrowly tailored restriction; Ward v Rock Against Racism

[This appeal was from the ED-MI.] Holding that defendant-Lyon Township did not violate plaintiff-GSL’s equal-protection, due process, or First Amendment free speech rights, the court affirmed summary judgment for defendants. GSL agreed to build a manufacturing facility for a company on a parcel of land in the Township. After it and the Township failed “to reach an agreement that would allow [it] to start building the facility without a septic permit,” GSL sued defendants under § 1983. As to its class-of-one equal protection claim, GSL argued the Township subjected it to disparate treatment. The court concluded that its claim failed because it could not “negate every reason for the Township’s actions, nor can it show that animus or ill will motivated” them. The court noted that the “Township required GSL to obtain a septic permit before the building department would issue a building permit. In the alternative, [it] required GSL to execute a hold-harmless agreement so that GSL could begin construction before the issuance of a building permit. GSL has failed to rebut the presumption that the Township had a rational basis for taking these actions.” GSL identified one “instance in which another entity obtained a building permit before securing the necessary approvals from other agencies. On this record, that is insufficient for us to conclude that the Township lacked a rational basis for enforcing its policies four years later to ensure that GSL’s property had an adequate sanitation system.” Further, GSL lacked evidence that the “building department or any other final decisionmaker harbored animus unrelated to their official duties.” GSL’s procedural and substantive due process claims also failed. It lacked “a property interest because it did not engage in construction work of a substantial character after the alleged issuance of the building permits.” And even if it could overcome that hurdle, it fell “well short of showing that Lyon Township acted arbitrarily or irrationally in not issuing building permits for the property.” GSL failed to comply with the Township’s ordinances. Finally, its First Amendment retaliation claim failed “at the first element.” By advising GSL not to send “further project-related communications to the board of trustees en masse, the Township hoped to shield itself from any potential allegations that its board was engaging in secret, backroom deals with property developers.” Its attorney simply told GSL not to contact all the board members at once via email. This “modest restriction on the way citizens may contact the board passes constitutional muster.”

Sentencing; Acquitted conduct; People v Beck; Rational-jury standard; People v Brown; OV 1; MCL 777.31(a); OV 3; MCL 777.33(1)(d); Proportionality; Within-guidelines sentence; PSIR correction; MCR 6.425(D)(2)(a); MCL 771.14(5) & (6)

The court held that the trial court did not improperly rely on acquitted conduct in scoring OVs 1 and 3, defendant’s top-of-the-guidelines sentence was proportionate and reasonable, but his PSIR had to be corrected to reflect rulings made at sentencing. He was convicted of felon-in-possession and felony-firearm but acquitted of AWIM, unarmed robbery, and the related felony-firearm count after he took a gun from former supervisor M during a struggle and the gun discharged, grazing M. On appeal, defendant argued that scoring 25 points for OV 1 improperly treated him as responsible for conduct underlying his acquitted charges. The court disagreed because defendant admitted the gun discharged while he possessed it but maintained it was accidental. Thus, the discharge toward M “was ‘not, in a practical sense, put in dispute at trial,’” and was consistent with acquittals based on a lack of intent to kill or permanently deprive M of the gun. A rational jury could acquit defendant of AWIM and robbery “while still finding that he accidentally discharged the gun toward” M. The same reasoning supported 10 points for OV 3 because M sustained injuries requiring medical treatment, and the injury occurring during defendant’s illegal possession was not inconsistent with the acquittals. The court also held that he failed “to meet his burden of overcoming the presumption that his top-of-guidelines 30-month minimum sentence was proportionate and, thus, reasonable.” He initiated and reinitiated the confrontation, took the loaded gun after a struggle, pointed it at M’s head, and followed M toward the gas station while still armed. But the trial court failed to ensure that the PSIR reflected several successful sentencing objections. Because a PSIR “‘follows the defendant to prison’ and” can affect security classification or parole, it must accurately reflect the trial court’s rulings. The court affirmed the sentence and remanded solely for correction of the PSIR.

Petition for appointment as a child’s guardian; MCL 700.5204(2)(b); Deschane v St Germain; In re Versalle Guardianship; Due process; Service of the probate court’s order; MCR 2.107(A)(1) & (3); Motion to reopen construed as a motion for relief from judgment under MCR 2.612(C); Right to access the court; Motion for reconsideration; MCR 2.119(F)

The court held that the record supported the probate court’s decision to deny petitioner’s guardianship petition for the child in question (OLH) on the ground that MCL 700.5204(2)(b)’s requirements were not met. It also concluded petitioner’s due process rights were not violated, and that the probate court did not err in denying her motion for reconsideration. Petitioner, who was not a relative, sought appointment as OLH’s guardian after caring for the child for several years. Respondents, OLH’s biological parents, opposed the petition. In denying the petition, the probate court “found that the evidence did not establish that respondents intended to permit OLH to permanently reside with petitioner as contemplated by MCL 700.5204(2)(b).” The critical question here was whether they “permitted OLH to reside with petitioner when the guardianship issue arose.” The court noted that, after “they moved from petitioner’s property, respondent-mother filed a police report seeking to have petitioner return OLH. That is powerful evidence that, at the time the petition was filed, permission for OLH to reside with petitioner was not ‘currently occurring.’ Indeed, the petition’s timing indicates that the guardianship issue arose because respondents no longer acquiesced in OLH’s living with petitioner. For these reasons, respondents’ ‘past permission’—that OLH lived with petitioner after respondents moved out of petitioner’s house and onto her property—'is irrelevant.’” In addition, the “probate court reasonably found the parties’ discussions about possible future adoption did not reflect an intent to permit OLH to permanently reside with petitioner.” The mother “repeatedly insisted that she viewed OLH’s living with petitioner as a temporary measure that would allow respondents to get on their feet financially; petitioner adopting OLH was a last resort that had proven to be unnecessary.” As to petitioner’s due process claims, the probate court served the signed order on her attorney by first-class mail, which “satisfied the service requirements in MCR 2.107(A)(1) and” (3), and “the probate court did not deny petitioner’s right to access the court.” Affirmed.

PIP liability for a motorcyclist’s injuries; Motor vehicle involvement requirement; MCL 500.3114(1) & (5); “Involved” in the accident; Turner v Auto Club Ins Ass’n; Detroit Med Ctr v Progressive MI Ins Co; Displaced air from a moving semi-trailer truck

Holding that “the semi at issue was not ‘involved’ in” the motorcycle accident that gave rise to this case by virtue of an “aerodynamic wake” it created, the court held that the motorcyclist’s (nonparty-R) no-fault insurer (defendant) was “not liable under § 3114(1) or (5) for PIP benefits to” plaintiff-healthcare provider for the services it provided to R. Thus, it reversed the trial court’s order denying defendant’s summary disposition motion and granting in part plaintiff’s motion. Pursuant to Turner, for “a motor vehicle to be ‘involved’ in an accident, it ‘must actively, as opposed to passively, contribute to the accident.’” What R’s husband (and passenger) said disrupted R “was the ‘turbulence [semis] can make’—a recognition of this as a normal incident of semis traveling on the expressway. Even if a jury believed their testimony, what they described was the physical byproduct of ordinary highway operation of a semi. This is exactly the sort of ‘passive’ contribution to an accident that Turner contemplated.” The court concluded that if “this semi were construed to be ‘involved,’ it would seemingly be impossible for a moving vehicle to ‘passively . . . contribute’ to an accident. Without a motor vehicle that is ‘involved’ in the accident, there is no liability under § 3114(5). As a result, the trial court erred—even if a jury did believe that the motorcycle was affected by the wind, the wind created by passive use of the semi on the freeway does not, as a matter of law, render the semi ‘involved’ in the accident.” MCL 500.3114(1) applied here, but it also “requires that a motor vehicle be ‘involved.’” Because that provision “requires that the injury ‘arise from a motor vehicle accident,’ and § 3101(3)(j) defines a motor vehicle accident as one that ‘involves’ a motor vehicle, Turner’s ‘involvement’ standard still applies. As a result, plaintiff cannot claim benefits under § 3114(1) any more than it can under § 3114(5).”

Partition; Effect of the death of a party; Joint tenancy with full rights of survivorship; Albro v Allen; Lack of an order of partition; Jackson v Estate of Green; Motion for relief from judgment; Party substitution; Notice; “Must be dismissed” provision in MCR 2.202(A)(1)(b)

The court held that defendant was entitled to relief from judgment in this partition action where the parties owned the property in question as joint tenants with full rights of survivorship, and “plaintiff died before the sale of the property and without entry of an order of partition[.]” They had agreed to a “final stipulated order” to sell the property and split the proceeds. After plaintiff subsequently filed motions for defendant to show cause, he died. The trial court later conducted a hearing on the show-cause motions, and permitted the parties’ daughter, E, “to appear with plaintiff’s attorney. At no point” did any party or E, “as plaintiff’s purported representative, file a motion for substitution under MCR 2.202(A)(1)(a).” After the trial court ordered defendant to vacate the house, she unsuccessfully moved for relief from judgment. The issue on appeal was whether the trial court erred in denying her motion due to plaintiff’s death during the litigation. The court first rejected defendant’s suggestion, based on “the ‘must be dismissed’ provision” in MCR 2.202(A)(1)(b), that dismissal was “in order due to the lack of a motion for substitution.” The court found that language “unambiguous: it does not become operable until a statement of the fact of the death is filed and served.” That did not occur here, and defendant offered no case law “supporting the notion that the oral notification apparently given by plaintiff’s attorney of plaintiff’s death suffices to trigger the dismissal requirement[.]” But the court found the parties’ ownership status was “outcome determinative—when plaintiff died, his pending claim for partition extinguished.” Pursuant to Jackson, absent “completion of the sale contemplated by the stipulated order and subsequent relinquishment of ownership, the parties needed an order of partition, without which ‘the joint tenancy has not been severed.’” As a result, “plaintiff’s interest in the property vested by operation of law in defendant as a joint tenant with rights of survivorship” and the trial court committed an error of law in not granting her relief from judgment. Reversed and remanded for entry of an order dismissing the action in defendant’s favor.

Governmental immunity; Highway exception; Presuit notice; MCL 691.1404(1); “Names of the witnesses known at the time by the claimant”; Witness whose name is unknown; Statutory interpretation

Addressing the issue for the first time, the court held that MCL 691.1404(1) requires a claimant’s presuit notice to identify a witness by name only when the claimant knows the witness’s name. Thus, plaintiff’s failure to identify an unnamed witness did not render her notice insufficient. Plaintiff alleged that she was injured after stepping into a large depression in a Detroit sidewalk. Her timely notice identified several witnesses, but at her deposition she also testified that an unidentified homeless man saw her fall. Defendant-City sought summary disposition based on governmental immunity, asserting that plaintiff’s failure to disclose him violated the requirement that the presuit notice specify “the names of the witnesses known at the time by the claimant.” On appeal, the court concluded that plaintiff had “the better argument.” Reading the statutory language in context, it determined that “under MCL 691.1404(1), the notice must specify the name of a witness only when the witness’s name is known at the time by the claimant.” The alternative interpretation would completely bar recovery whenever a claimant knew someone witnessed an accident but did not know that person’s name, a result inconsistent with the notice requirement’s purposes of permitting a prompt investigation and correction of the defect. The court also rejected the City’s contention that an unnamed witness must at least be described or otherwise identified. Although that approach might have “substantial appeal from a policy perspective,” it found “no support in the language of MCL 691.1404(1).” The statute requires “names,” and courts cannot add a requirement that the Legislature did not include. The court clarified that “names” does not mean legal names, so a known first name, last name, stage name, or nickname must be disclosed. But “[i]f a claimant does not know the name of a witness, there is no requirement under the statute that the notice disclose, include, list, identify, or refer to the witness in some other way.” Because there was no evidence plaintiff knew the homeless man’s name, her notice was sufficient. Affirmed.

Governmental immunity; Highway exception; Presuit notice; MCL 691.1404(1); “Names of the witnesses known at the time by the claimant”; Witness whose name is unknown; Statutory interpretation

Addressing the issue for the first time, the court held that MCL 691.1404(1) requires a claimant’s presuit notice to identify a witness by name only when the claimant knows the witness’s name. Thus, plaintiff’s failure to identify an unnamed witness did not render her notice insufficient. Plaintiff alleged that she was injured after stepping into a large depression in a Detroit sidewalk. Her timely notice identified several witnesses, but at her deposition she also testified that an unidentified homeless man saw her fall. Defendant-City sought summary disposition based on governmental immunity, asserting that plaintiff’s failure to disclose him violated the requirement that the presuit notice specify “the names of the witnesses known at the time by the claimant.” On appeal, the court concluded that plaintiff had “the better argument.” Reading the statutory language in context, it determined that “under MCL 691.1404(1), the notice must specify the name of a witness only when the witness’s name is known at the time by the claimant.” The alternative interpretation would completely bar recovery whenever a claimant knew someone witnessed an accident but did not know that person’s name, a result inconsistent with the notice requirement’s purposes of permitting a prompt investigation and correction of the defect. The court also rejected the City’s contention that an unnamed witness must at least be described or otherwise identified. Although that approach might have “substantial appeal from a policy perspective,” it found “no support in the language of MCL 691.1404(1).” The statute requires “names,” and courts cannot add a requirement that the Legislature did not include. The court clarified that “names” does not mean legal names, so a known first name, last name, stage name, or nickname must be disclosed. But “[i]f a claimant does not know the name of a witness, there is no requirement under the statute that the notice disclose, include, list, identify, or refer to the witness in some other way.” Because there was no evidence plaintiff knew the homeless man’s name, her notice was sufficient. Affirmed.

Petition for appointment as a child’s guardian; MCL 700.5204(2)(b); Deschane v St Germain; In re Versalle Guardianship; Due process; Service of the probate court’s order; MCR 2.107(A)(1) & (3); Motion to reopen construed as a motion for relief from judgment under MCR 2.612(C); Right to access the court; Motion for reconsideration; MCR 2.119(F)

The court held that the record supported the probate court’s decision to deny petitioner’s guardianship petition for the child in question (OLH) on the ground that MCL 700.5204(2)(b)’s requirements were not met. It also concluded petitioner’s due process rights were not violated, and that the probate court did not err in denying her motion for reconsideration. Petitioner, who was not a relative, sought appointment as OLH’s guardian after caring for the child for several years. Respondents, OLH’s biological parents, opposed the petition. In denying the petition, the probate court “found that the evidence did not establish that respondents intended to permit OLH to permanently reside with petitioner as contemplated by MCL 700.5204(2)(b).” The critical question here was whether they “permitted OLH to reside with petitioner when the guardianship issue arose.” The court noted that, after “they moved from petitioner’s property, respondent-mother filed a police report seeking to have petitioner return OLH. That is powerful evidence that, at the time the petition was filed, permission for OLH to reside with petitioner was not ‘currently occurring.’ Indeed, the petition’s timing indicates that the guardianship issue arose because respondents no longer acquiesced in OLH’s living with petitioner. For these reasons, respondents’ ‘past permission’—that OLH lived with petitioner after respondents moved out of petitioner’s house and onto her property—'is irrelevant.’” In addition, the “probate court reasonably found the parties’ discussions about possible future adoption did not reflect an intent to permit OLH to permanently reside with petitioner.” The mother “repeatedly insisted that she viewed OLH’s living with petitioner as a temporary measure that would allow respondents to get on their feet financially; petitioner adopting OLH was a last resort that had proven to be unnecessary.” As to petitioner’s due process claims, the probate court served the signed order on her attorney by first-class mail, which “satisfied the service requirements in MCR 2.107(A)(1) and” (3), and “the probate court did not deny petitioner’s right to access the court.” Affirmed.

Partition; Effect of the death of a party; Joint tenancy with full rights of survivorship; Albro v Allen; Lack of an order of partition; Jackson v Estate of Green; Motion for relief from judgment; Party substitution; Notice; “Must be dismissed” provision in MCR 2.202(A)(1)(b)

The court held that defendant was entitled to relief from judgment in this partition action where the parties owned the property in question as joint tenants with full rights of survivorship, and “plaintiff died before the sale of the property and without entry of an order of partition[.]” They had agreed to a “final stipulated order” to sell the property and split the proceeds. After plaintiff subsequently filed motions for defendant to show cause, he died. The trial court later conducted a hearing on the show-cause motions, and permitted the parties’ daughter, E, “to appear with plaintiff’s attorney. At no point” did any party or E, “as plaintiff’s purported representative, file a motion for substitution under MCR 2.202(A)(1)(a).” After the trial court ordered defendant to vacate the house, she unsuccessfully moved for relief from judgment. The issue on appeal was whether the trial court erred in denying her motion due to plaintiff’s death during the litigation. The court first rejected defendant’s suggestion, based on “the ‘must be dismissed’ provision” in MCR 2.202(A)(1)(b), that dismissal was “in order due to the lack of a motion for substitution.” The court found that language “unambiguous: it does not become operable until a statement of the fact of the death is filed and served.” That did not occur here, and defendant offered no case law “supporting the notion that the oral notification apparently given by plaintiff’s attorney of plaintiff’s death suffices to trigger the dismissal requirement[.]” But the court found the parties’ ownership status was “outcome determinative—when plaintiff died, his pending claim for partition extinguished.” Pursuant to Jackson, absent “completion of the sale contemplated by the stipulated order and subsequent relinquishment of ownership, the parties needed an order of partition, without which ‘the joint tenancy has not been severed.’” As a result, “plaintiff’s interest in the property vested by operation of law in defendant as a joint tenant with rights of survivorship” and the trial court committed an error of law in not granting her relief from judgment. Reversed and remanded for entry of an order dismissing the action in defendant’s favor.