Disciplinary action against a doctor for violating MCL 333.16221(a); Whether the disciplinary subcommittee’s (DSC) decision was arbitrary & capricious, or supported by competent, material, & substantial evidence; DSC discretion; Credibility determinations; Administrative law judge (ALJ)

The court held that the DSC’s decision to discipline respondent-doctor was not arbitrary and capricious, and was adequately supported by competent, material, and substantial evidence. The DSC found respondent was subject to disciplinary action under MCL 333.16221(a) based on her drug prescribing practices. On appeal, the court rejected respondent’s argument that the DSC’s decision was arbitrary and capricious, and was not supported by competent, material, and substantial evidence. The “DSC identified ample evidence in the record supporting its decision. [It] accepted the ALJ’s findings of fact as ‘a reiteration and summary of the testimony and evidence presented at the administrative hearing,’ then specifically identified the facts supporting its decision that petitioner had established grounds for discipline under MCL 333.16221(a). That decision was neither arbitrary nor capricious, and the reasoning path of the DSC is apparent from its opinion and supported by specifically identified evidence.” The court also rejected respondent’s claim that the ALJ’s decision must be afforded great deference. She essentially argued “that the DSC should have made the same weight and credibility determinations regarding the evidence that the ALJ apparently did. The DSC, however, was not bound by the determinations of the ALJ and was within its discretion in determining whether a preponderance of the evidence supported the ALJ’s conclusions.” It also noted that it “will not reverse an administrative action by resolving a dispute regarding the credibility of the evidence.” Affirmed.

Unemployment benefits; Overpayment; Waiver of repayment obligation; MCL 421.62(a); Unemployment Insurance Appeals Commission (UIAC); Department of Labor & Economic Opportunity/Unemployment Insurance Agency (UIA); Administrative law judge (ALJ)

The court vacated the circuit court’s order and instructed it to vacate the UIAC’s decision as to repayment of unemployment benefits and remanded “to the UIAC to make factual findings consistent with the requirements of MCL 421.62(a).” The UIA argued the circuit court erred by waiving claimant’s obligation for repayment. The court agreed in part and disagreed in part. It found that in “rendering its decision, the UIAC conflated the language of MCL 421.62(a)(iii), and, in so doing, failed to demonstrate its decision was authorized by law.” The court determined that the UIAC’s reasoning was “incorrect for multiple reasons. First, MCL 421.62(a)(iii) does not ‘permit’ waiver of restitution if repayment would be contrary to equity and good conscience. The statute provides repayment ‘shall’ be waived if repayment would be contrary to equity and good conscience. Thus, waiver is mandatory in such circumstances.” Secondly, the UIAC’s decision appeared “to disagree with the ALJ by implying that the ALJ’s own reasoning is contradictory. But, the fact that claimant did not report his benefits is irrelevant when considered in light of whether the UIA committed an administrative error in paying claimant benefits after being informed of his retirement status. The UIAC’s decision does not explain how its continued payment of benefits was or was not the result of an administrative error. Finally, and most notably, the UIAC misinterpreted the statute by reasoning that claimant’s failure to disclose his pension benefits did not comport with equity and good conscience. It is not claimant who must comport with equity and good conscience under MCL 421.62(a)(iii), it is the UIA. Again, the UIA must waive repayment if the payments were made as the result of an administrative error and repayment would be contrary to equity and good conscience. The UIAC failed to make any findings regarding the UIA’s alleged administrative error. It also failed to make any findings as to whether claimant’s actions rose to the level of ‘an intentional false statement, misrepresentation, or concealment of material information,’ necessary to preclude waiver under MCL 421.62(a). All in all, the UIAC’s decision was not authorized by law, because it failed to make any factual findings to support whether waiver was or was not required under MCL 421.62(a)(iii).”

Class certification; FedRCivP 23; Whether all class members must experience an alleged defect in order to establish Article III injury-in-fact for a proposed class; Whether “diminished value” is sufficient to establish standing; Claims brought under the Michigan Consumer Protection Act; Waiver of arbitration rights

[This case was from the ED-MI.] In an order, a majority of the court voted to grant a petition for rehearing en banc in this case granting class certification in a consumer action. Thus, it ordered the previous decision and judgment (see eJournal # 82194 in the 9/3/24 edition) vacated, the mandate was stayed, and the case was restored to the docket as a pending appeal.

Sufficiency of the evidence; Aggravated domestic violence; MCL 750.81a(2); “Serious or aggravated injury”; Comparing People v Brown; Ineffective assistance of counsel for failure to request that the trial court view the entirety of a deputy’s body-worn camera footage; Trial strategy; Prejudice

The court held that the evidence was sufficient to support defendant’s conviction, and that he was not denied the effective assistance of counsel. He was convicted of aggravated domestic violence, second offense, for assaulting the victim (his former girlfriend) as they drove together in a car. On appeal, the court rejected his argument that the evidence was insufficient to support his conviction, noting the evidence presented regarding the victim’s injuries was “directly comparable to the evidence presented in Brown.” Multiple witnesses described her “injuries, and photographs of the injuries to her head and face were admitted as evidence.” Defendant claimed “injuries such as lumps, bruises, and a chipped tooth” did not establish “a serious or aggravated injury, but that assertion is not supported by caselaw. A trier of fact may reasonably conclude such evidence demonstrated complainant sustained a serious or aggravated injury, as explained in Brown. In rendering its decision, the trial court stated it was ‘clear from all exhibits that [the victim] required immediate medical treatment.’” The trial court “cited the testimonies and photographs detailing [the victim’s] bleeding wounds and it opined that the ‘serious disfigurement in that her tooth is chipped or broken’ established the serious and aggravated injury element of the aggravated domestic violence offense.” In addition, “defendant’s initial argument, that expert testimony should have been required to prove the extent of the injuries in this case, is without merit, as” he conceded such expert testimony was not necessary. The court also rejected his claim that he was denied effective assistance of counsel due to trial counsel’s failure to request that the trial court view the entirety of the deputy’s body-worn camera footage. “Defense counsel could have made a reasonable strategic decision not to play this portion” for the trial court, as it depicted the injured victim “on the ground with agitated defendant yelling in the background. No portion of the video refute[d] the severity of her injuries, and it actually portrays [the deputy] insisting on a medical evaluation by EMS for” the victim. While defendant contended that this was “‘the one piece of evidence that would have shown [the victim] did not suffer a serious or aggravating injury[,]’ this assertion is not supported by the record, and defense counsel’s possible decision not to request this footage be played for the court should be considered sound trial strategy.” And even “if defense counsel’s decision not to play the entirety of the body-worn camera footage fell below the objective standard of reasonableness, defendant was not prejudiced by” it. Affirmed.

Sentencing; Consideration of acquitted conduct; People v Beck; Scoring of OV 13; MCL 777.43(1)(c)

Holding that the trial court relied on acquitted conduct in sentencing defendant, the court vacated his sentence and remanded for resentencing. He was convicted of two counts of CSC II but acquitted of a third count. He was sentenced to concurrent terms of 57 months to 15 years. He argued that the trial court considered acquitted conduct in scoring OV 13 when sentencing him, “and this error aggravated” his recommended minimum sentencing range. The court agreed. It noted that a “trial court may consider uncharged or dismissed conduct” in scoring OV 13. But under Beck, “unlike dismissed charges or uncharged conduct, once a defendant is acquitted of a crime, a defendant is presumed innocent of that crime, and ‘conduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.’” The court concluded from its review of the sentencing hearing “that the trial court expressly relied on the three charged offenses—including the acquitted offense—to score OV 13 at 25 points[.]” The record showed the prosecution asked it to rely on the three charged CSC II counts to score OV 13. The trial court referred “only to ‘the three’ and ‘all three’ counts to score OV 13.” Thus, the court found that it “expressly punished defendant as if he were convicted of all three counts . . . in contravention of Beck.” Given that the scoring of 0 points for OV 13 would have reduced defendant’s minimum guidelines range to 12 to 24 months, and the trial court sentenced him above that range, he was entitled to resentencing.

Sufficiency of evidence; Larceny by conversion; People v Christenson; People v Franz

The court concluded that “viewing the evidence in the light most favorable to the prosecution, the facts of this case did not prove the elements of larceny by conversion. Accordingly, defendant’s conviction of larceny by conversion of property, valued at $20,000 or more,” was vacated. The case arose “from a business defendant operated under the name Momentum Marketing.” Advertising space was sold to businesses in the book (known as the Monkey Book), but defendant never printed a copy of the book to distribute in the year at issue. The court held that this case was “similar to the facts in Christenson rather than the cases involving deposits given to a defendant for acquiring specific goods that were never delivered and no refund was issued, such as Franz.” The court concluded that “the payments the complainants made to Momentum Marketing cannot be construed as deposits of funds to be used for a specific purpose (in this case, publication of the Monkey Book). While the complainants purchased advertising, there is no evidence that the terms of their agreements required that defendant put the money they paid aside to ensure that he could fund the printing of the directories at the end of the year.” Because the case was not like the “cases where deposits were paid to the defendants to procure specific goods, we do not believe that the prosecution proved all of the elements for larceny by conversion. For this reason, the trial court erred when it did not direct a verdict for defendant.”

Restitution; Amendment of a restitution order based on “new or updated information” about the losses; MCL 780.766(22); MCR 6.430(A)

The court held that an insurance company’s request, made before sentencing, for restitution to cover the costs used to make the victim whole was not new information that allowed amendment of a restitution order under MCL 780.766(22) and MCR 6.430(A). Thus, the trial court erred in granting “the prosecution’s motion to reopen the record and amend defendant’s sentence to include $3,640 in restitution.” He pled no contest to larceny of $1,000 or more but less than $20,000, He was initially sentenced to 24 months’ probation and 365 days in jail, with the balance of jail time temporarily suspended. He argued the trial court erred in granting the prosecution’s later motion for restitution. The court agreed. Pursuant to MCL 780.766(22), “a ‘court may amend an order of restitution . . . on a motion by the prosecuting attorney, the victim, or the defendant based upon new information related to the injury, damages, or loss for which the restitution was ordered.’” In addition, MCR 6.430(A) permits “amendment of a restitution order based on ‘new or updated information’ regarding the losses.” The court noted “the insurance company’s request predated defendant’s sentence by four months.” Another four months passed after his sentencing before the prosecution moved to request restitution. Thus, “the information contained in the request was at least eight months old before the prosecution presented it to the trial court. A plain interpretation of this situation indicates that the information had not recently come into existence.” While the prosecution asserted this was “immaterial because the information was new to the trial court, . . . MCR 6.430(A) and MCL 780.766(22) do not specify that the information’s ‘newness’ must be from the” trial court’s perspective. Further, the only reason “the trial court did not consider the insurance company’s request at sentencing was because the prosecution failed to bring that information to [its] attention despite the information being readily available, and the prosecution bears the burden to present restitution-request information to the trial court.” Reversed and remanded for amendment of “defendant’s sentence to remove the restitution order.”

Unemployment benefits; Overpayment; Waiver of repayment obligation; MCL 421.62(a); Unemployment Insurance Appeals Commission (UIAC); Department of Labor & Economic Opportunity/Unemployment Insurance Agency (UIA); Administrative law judge (ALJ)

The court vacated the circuit court’s order and instructed it to vacate the UIAC’s decision as to repayment of unemployment benefits and remanded “to the UIAC to make factual findings consistent with the requirements of MCL 421.62(a).” The UIA argued the circuit court erred by waiving claimant’s obligation for repayment. The court agreed in part and disagreed in part. It found that in “rendering its decision, the UIAC conflated the language of MCL 421.62(a)(iii), and, in so doing, failed to demonstrate its decision was authorized by law.” The court determined that the UIAC’s reasoning was “incorrect for multiple reasons. First, MCL 421.62(a)(iii) does not ‘permit’ waiver of restitution if repayment would be contrary to equity and good conscience. The statute provides repayment ‘shall’ be waived if repayment would be contrary to equity and good conscience. Thus, waiver is mandatory in such circumstances.” Secondly, the UIAC’s decision appeared “to disagree with the ALJ by implying that the ALJ’s own reasoning is contradictory. But, the fact that claimant did not report his benefits is irrelevant when considered in light of whether the UIA committed an administrative error in paying claimant benefits after being informed of his retirement status. The UIAC’s decision does not explain how its continued payment of benefits was or was not the result of an administrative error. Finally, and most notably, the UIAC misinterpreted the statute by reasoning that claimant’s failure to disclose his pension benefits did not comport with equity and good conscience. It is not claimant who must comport with equity and good conscience under MCL 421.62(a)(iii), it is the UIA. Again, the UIA must waive repayment if the payments were made as the result of an administrative error and repayment would be contrary to equity and good conscience. The UIAC failed to make any findings regarding the UIA’s alleged administrative error. It also failed to make any findings as to whether claimant’s actions rose to the level of ‘an intentional false statement, misrepresentation, or concealment of material information,’ necessary to preclude waiver under MCL 421.62(a). All in all, the UIAC’s decision was not authorized by law, because it failed to make any factual findings to support whether waiver was or was not required under MCL 421.62(a)(iii).”

Child custody; Established custodial environment (ECE); MCL 722.27(1)(c); Marik v Marik; Great weight of the evidence; MCL 722.28; Berger v Berger; Child’s best interests; MCL 722.23; Best interest factors (a), (b) and (l)

The court held that the trial court did not err by finding the child (TMR) only had an ECE with plaintiff-mother, or in its findings as to best-interest factors (a), (b) and (l). In the judgment of divorce, the parties were granted joint legal custody, but plaintiff was granted physical custody of the parties’ child, TMR. On appeal, the court rejected defendant-father’s argument that the trial court erred by finding that there was only an ECE with plaintiff. Although there was evidence that he “‘stepped up’” after the parties’ separation, he “only did this for limited windows of time during the seven months under the temporary order. Plaintiff continued to be the primary caregiver by caring for TMR during her weeks and for portions of defendant’s weeks.” The evidence also “supported that although defendant expressed love and affection to TMR after the separation, TMR did not reciprocate that affection. This evidence supported that TMR was not under defendant’s care ‘over an appreciable time.’” In addition, the trial court did not err “by considering the entirety of TMR’s life in its” ECE determination, or by finding defendant “needed plaintiff’s assistance for childcare because he was required to utilize her assistance under the temporary order.” Defendant failed “to point to any evidence that clearly preponderates against the trial court’s finding that the child had an [ECE] with plaintiff alone.” The court also rejected his claim that the trial court’s findings regarding three of the best-interest factors were against the great weight of the evidence. As to factor (a), it “credited defendant’s decision not to spend time with TMR during the marriage for the lack of emotional ties between them after the separation.” He could not show that the evidence preponderated against the trial court’s finding that this factor favored plaintiff. As to factor (b), it “acknowledged that defendant started actively parenting TMR after the parties separated, but cited plaintiff’s testimony that defendant did not spend more time with TMR when he was laid off in the winter and that TMR attended daycare when defendant was home during the marriage.” Because the record supported this, the court could not “conclude that the trial court’s finding was against the great weight of the evidence.” Finally, as to factor (l), there was testimony that defendant “had a negative impact on TMR during defendant’s weeks, including a crabby mood, taking more naps than usual, constipation, and behavioral issues such as biting and hitting. These behaviors did not occur during plaintiff’s weeks. This finding was not against the great weight of the evidence.” Affirmed.

Medical malpractice; Standard of care (SOC) expert; MCL 600.2169(1)(a); Stokes v Swofford; “Specialty” & “subspecialty”; Woodard v Custer; MCL 600.2169(2) & (3); American Board of Medical Specialties (ABMS); The American Osteopathic Association (AOA); The American Board of Physician Specialties (ABPS)

On remand from the Supreme Court for reconsideration of the admissibility of plaintiff’s SOC expert (Dr. N) in light of Stokes, the court held that “the ‘specialties’ matched for purposes of satisfying MCL 600.2169(1) under Stokes[.]” Thus, it vacated in part and affirmed in part the trial court’s order granting defendants’ summary disposition motion, and remanded. This medical malpractice case arose from a hernia repair surgery. The Supreme Court concluded in Stokes “that the Woodard Court ‘incorrectly conflated the terms “specialty” and “subspecialty” in a manner that is inconsistent with the plain language of’” MCL 600.2169, and “‘essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under Subsection (1).’ . . . As used in MCL 600.2169(1), the terms ‘specialist’ and ‘specialties’ ‘are defined as the specialties recognized by the’” ABMS, the AOA, the ABPS, or other such entities. It also determined “that ‘the “matching” requirement under MCL 600.2169 follows the listed general board certifications, which are the baseline “specialties” recognized by such entities for certification purposes.’” The court here concluded the trial court erred in ruling there was a question of fact as to whether defendant-Dr. Abbassi “was practicing in surgical critical care or general surgery. The general board certification forming the baseline specialty was general surgery. The American Board of Surgery recognizes surgical critical care as a subspecialty of the specialty of general surgery.” In this case, Abbassi “was working as a resident under board-certified general surgeon” defendant-Dr. Yaldo “and was a resident in the general surgery program and could, therefore, potentially obtain board certification in that specialty. In addition,” N was a board-certified general surgeon. As a result, the trial court’s order had to be vacated on this basis. The court noted that no party raised any arguments in the trial court “under MCL 600.2169(2) or (3), and the trial court did not consider either provision” in denying defendants’ motion. Thus, on remand, “consistent with Stokes, the trial court shall, ‘at minimum,’ evaluate the” criteria set forth in MCL 600.2169(2)(a)-(c) as to N. Further, pursuant to MCL 600.2169(3), it has “discretion on remand to ‘disqualify an expert witness on grounds other than the qualifications set forth in [MCL 600.2169].’” It is also to address an argument raised by defendants that it did not decide.

Disciplinary action against a doctor for violating MCL 333.16221(a); Whether the disciplinary subcommittee’s (DSC) decision was arbitrary & capricious, or supported by competent, material, & substantial evidence; DSC discretion; Credibility determinations; Administrative law judge (ALJ)

The court held that the DSC’s decision to discipline respondent-doctor was not arbitrary and capricious, and was adequately supported by competent, material, and substantial evidence. The DSC found respondent was subject to disciplinary action under MCL 333.16221(a) based on her drug prescribing practices. On appeal, the court rejected respondent’s argument that the DSC’s decision was arbitrary and capricious, and was not supported by competent, material, and substantial evidence. The “DSC identified ample evidence in the record supporting its decision. [It] accepted the ALJ’s findings of fact as ‘a reiteration and summary of the testimony and evidence presented at the administrative hearing,’ then specifically identified the facts supporting its decision that petitioner had established grounds for discipline under MCL 333.16221(a). That decision was neither arbitrary nor capricious, and the reasoning path of the DSC is apparent from its opinion and supported by specifically identified evidence.” The court also rejected respondent’s claim that the ALJ’s decision must be afforded great deference. She essentially argued “that the DSC should have made the same weight and credibility determinations regarding the evidence that the ALJ apparently did. The DSC, however, was not bound by the determinations of the ALJ and was within its discretion in determining whether a preponderance of the evidence supported the ALJ’s conclusions.” It also noted that it “will not reverse an administrative action by resolving a dispute regarding the credibility of the evidence.” Affirmed.

Motion for judgment notwithstanding the verdict (JNOV); Jury instructions on nuisance per se; Waiver; The Michigan Zoning Enabling Act (MZEA); MCL 125.3407; Effect of road commission rules; Sufficiency of the evidence to support nuisance claims; Nuisance in fact; Adams v Cleveland-Cliffs Iron Co; Private nuisance; Adkins v Thomas Solvent Co

The court held that the trial court did not err by (1) addressing errors of law in the jury instructions and correcting them in ruling on defendants’ motion for JNOV, (2) concluding a violation of county road commission rules did not support a nuisance per se claim, or (3) determining that the trial evidence “did not support a finding of nuisance in fact as a matter of law.” Thus, the court affirmed the trial court’s grant of defendant’s motion for JNOV. The case arose after defendants bought a vacant lot next to plaintiffs’ home and built a house on the lot. A “jury found defendants liable for nuisance per se” related to their “driveway and nuisance in fact based on the placement of their docks.” The trial court granted defendants’ motion for JNOV, a conditional new trial, and remittitur. On appeal, the court first found that while plaintiffs contended “defendants waived any challenge to the jury instructions and could not” assert that they were erroneous in their JNOV motion, the “key issue was not whether defendants waived their right to challenge the jury instructions. It was the trial court’s subsequent determination that the jury instructions did not reflect the applicable law and its exercise of discretion to correct that error. Therefore, the trial court did not err by addressing errors of law in the jury instructions and correcting those errors in ruling on defendants’ motion for JNOV.” The court also rejected plaintiffs’ argument “that the jury was properly instructed” on the nuisance claims. It determined that a “review of the MZEA does not disclose a zoning ordinance or regulation adopted under it that would constitute a nuisance per se for violation of a road commission rule.” Further, the court did not find “another statute or caselaw that would qualify as ‘otherwise provided by law,’ to support a nuisance per se under MCL 125.3407. Moreover, plaintiffs failed to establish that the MZEA conferred any authority to the Road Commission rules that equated with a zoning ordinance. Therefore, the trial court did not err by determining that a violation of the Road Commission rules did not support a claim of nuisance per se.” As to the sufficiency of the evidence for nuisance in fact, the court held that “plaintiffs failed to establish that defendants’ primary and secondary docks unreasonably interfered with plaintiffs’ use and enjoyment of their property and caused substantial harm.” 

Class certification; FedRCivP 23; Whether all class members must experience an alleged defect in order to establish Article III injury-in-fact for a proposed class; Whether “diminished value” is sufficient to establish standing; Claims brought under the Michigan Consumer Protection Act; Waiver of arbitration rights

[This case was from the ED-MI.] In an order, a majority of the court voted to grant a petition for rehearing en banc in this case granting class certification in a consumer action. Thus, it ordered the previous decision and judgment (see eJournal # 82194 in the 9/3/24 edition) vacated, the mandate was stayed, and the case was restored to the docket as a pending appeal.

Medical malpractice; Standard of care (SOC) expert; MCL 600.2169(1)(a); Stokes v Swofford; “Specialty” & “subspecialty”; Woodard v Custer; MCL 600.2169(2) & (3); American Board of Medical Specialties (ABMS); The American Osteopathic Association (AOA); The American Board of Physician Specialties (ABPS)

On remand from the Supreme Court for reconsideration of the admissibility of plaintiff’s SOC expert (Dr. N) in light of Stokes, the court held that “the ‘specialties’ matched for purposes of satisfying MCL 600.2169(1) under Stokes[.]” Thus, it vacated in part and affirmed in part the trial court’s order granting defendants’ summary disposition motion, and remanded. This medical malpractice case arose from a hernia repair surgery. The Supreme Court concluded in Stokes “that the Woodard Court ‘incorrectly conflated the terms “specialty” and “subspecialty” in a manner that is inconsistent with the plain language of’” MCL 600.2169, and “‘essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under Subsection (1).’ . . . As used in MCL 600.2169(1), the terms ‘specialist’ and ‘specialties’ ‘are defined as the specialties recognized by the’” ABMS, the AOA, the ABPS, or other such entities. It also determined “that ‘the “matching” requirement under MCL 600.2169 follows the listed general board certifications, which are the baseline “specialties” recognized by such entities for certification purposes.’” The court here concluded the trial court erred in ruling there was a question of fact as to whether defendant-Dr. Abbassi “was practicing in surgical critical care or general surgery. The general board certification forming the baseline specialty was general surgery. The American Board of Surgery recognizes surgical critical care as a subspecialty of the specialty of general surgery.” In this case, Abbassi “was working as a resident under board-certified general surgeon” defendant-Dr. Yaldo “and was a resident in the general surgery program and could, therefore, potentially obtain board certification in that specialty. In addition,” N was a board-certified general surgeon. As a result, the trial court’s order had to be vacated on this basis. The court noted that no party raised any arguments in the trial court “under MCL 600.2169(2) or (3), and the trial court did not consider either provision” in denying defendants’ motion. Thus, on remand, “consistent with Stokes, the trial court shall, ‘at minimum,’ evaluate the” criteria set forth in MCL 600.2169(2)(a)-(c) as to N. Further, pursuant to MCL 600.2169(3), it has “discretion on remand to ‘disqualify an expert witness on grounds other than the qualifications set forth in [MCL 600.2169].’” It is also to address an argument raised by defendants that it did not decide.

Governmental immunity; Governmental Tort & Liability Act (GTLA); Duty; “Gross negligence”; Proximate cause

In this gross negligence action involving a claim of governmental immunity by defendant-Wilson, the court held that plaintiffs did not establish that he “owed them a common-law duty without regard to his status as a government employee.” Also, plaintiffs’ evidence in support of establishing a fact question was unsupported by the record. Finally, “his conduct was not ‘the’ proximate cause of plaintiffs’ damages.” Thus, the court reversed the trial court’s order denying his motion for summary disposition and remanded. The case arose “out of the renovation, rental inspection, and eventual sale of a condemned property.” Defendant (“the building official of the city’s Building Safety Department”) contended that “plaintiffs failed to establish a genuine issue of material fact as to whether his conduct amounted to gross negligence that was the proximate cause of plaintiffs’ injury.” Specifically, defendant argued: “1) he did not owe a legal duty to plaintiffs, 2) no reasonable jury would conclude that his conduct amounted to gross negligence, and 3) his actions were not the proximate cause of plaintiffs’ alleged harm.” The court agreed. As to duty, regarding “the relationship of the parties, while defendant knew the prior homeowner of the Frank Street property, he did not know that the house was eventually sold to plaintiffs. Accordingly, defendant had no relationship with plaintiffs until they arrived in the office to request a rental certificate. Defendant testified that he did not know of the involved events and ‘until that first day when [plaintiff-Mr. Abney] came in, [defendant] saw nothing. [Defendant] knew nothing about it until that day.’ Thus, the parties lacked a relationship, which weighs against the finding of a duty. Nor was the harm to plaintiffs foreseeable.” Further, the court noted that “defendant testified that the burden of individually tracking condemned properties 'would take probably five full-time people . . . on a daily basis,' and that the demolition list 'had over a thousand properties on it.'” Thus, imposing the burden to disclose a property’s condemnation status on defendant would be severe. This is bolstered by the fact that this duty is already imposed on a property seller by the city’s municipal code: ‘The seller or transferor of any property . . . shall give written notice, on forms distributed by the city and available from the city assessor’s office, whether the residential property in question is currently condemned or subject to demolition procedure[.]’” The court concluded that especially “in light of this existing seller obligation, the nature of the risk presented to plaintiffs is mitigated through other actors and does not suggest imposition of a duty on defendant.” As to gross negligence, the court held that while “reasonable minds could differ regarding whether defendant’s conduct was negligent, it does not amount to gross negligence under the GTLA.” Finally, as to proximate cause, the court held that “especially in light of the fact that the duty of disclosure is on the seller of a property, defendant is not the ‘most immediate, efficient, and direct cause of the [plaintiff’s] injuries.’ ”

Governmental immunity; Governmental Tort & Liability Act (GTLA); Duty; “Gross negligence”; Proximate cause

In this gross negligence action involving a claim of governmental immunity by defendant-Wilson, the court held that plaintiffs did not establish that he “owed them a common-law duty without regard to his status as a government employee.” Also, plaintiffs’ evidence in support of establishing a fact question was unsupported by the record. Finally, “his conduct was not ‘the’ proximate cause of plaintiffs’ damages.” Thus, the court reversed the trial court’s order denying his motion for summary disposition and remanded. The case arose “out of the renovation, rental inspection, and eventual sale of a condemned property.” Defendant (“the building official of the city’s Building Safety Department”) contended that “plaintiffs failed to establish a genuine issue of material fact as to whether his conduct amounted to gross negligence that was the proximate cause of plaintiffs’ injury.” Specifically, defendant argued: “1) he did not owe a legal duty to plaintiffs, 2) no reasonable jury would conclude that his conduct amounted to gross negligence, and 3) his actions were not the proximate cause of plaintiffs’ alleged harm.” The court agreed. As to duty, regarding “the relationship of the parties, while defendant knew the prior homeowner of the Frank Street property, he did not know that the house was eventually sold to plaintiffs. Accordingly, defendant had no relationship with plaintiffs until they arrived in the office to request a rental certificate. Defendant testified that he did not know of the involved events and ‘until that first day when [plaintiff-Mr. Abney] came in, [defendant] saw nothing. [Defendant] knew nothing about it until that day.’ Thus, the parties lacked a relationship, which weighs against the finding of a duty. Nor was the harm to plaintiffs foreseeable.” Further, the court noted that “defendant testified that the burden of individually tracking condemned properties 'would take probably five full-time people . . . on a daily basis,' and that the demolition list 'had over a thousand properties on it.'” Thus, imposing the burden to disclose a property’s condemnation status on defendant would be severe. This is bolstered by the fact that this duty is already imposed on a property seller by the city’s municipal code: ‘The seller or transferor of any property . . . shall give written notice, on forms distributed by the city and available from the city assessor’s office, whether the residential property in question is currently condemned or subject to demolition procedure[.]’” The court concluded that especially “in light of this existing seller obligation, the nature of the risk presented to plaintiffs is mitigated through other actors and does not suggest imposition of a duty on defendant.” As to gross negligence, the court held that while “reasonable minds could differ regarding whether defendant’s conduct was negligent, it does not amount to gross negligence under the GTLA.” Finally, as to proximate cause, the court held that “especially in light of the fact that the duty of disclosure is on the seller of a property, defendant is not the ‘most immediate, efficient, and direct cause of the [plaintiff’s] injuries.’ ”

Motion for judgment notwithstanding the verdict (JNOV); Jury instructions on nuisance per se; Waiver; The Michigan Zoning Enabling Act (MZEA); MCL 125.3407; Effect of road commission rules; Sufficiency of the evidence to support nuisance claims; Nuisance in fact; Adams v Cleveland-Cliffs Iron Co; Private nuisance; Adkins v Thomas Solvent Co

The court held that the trial court did not err by (1) addressing errors of law in the jury instructions and correcting them in ruling on defendants’ motion for JNOV, (2) concluding a violation of county road commission rules did not support a nuisance per se claim, or (3) determining that the trial evidence “did not support a finding of nuisance in fact as a matter of law.” Thus, the court affirmed the trial court’s grant of defendant’s motion for JNOV. The case arose after defendants bought a vacant lot next to plaintiffs’ home and built a house on the lot. A “jury found defendants liable for nuisance per se” related to their “driveway and nuisance in fact based on the placement of their docks.” The trial court granted defendants’ motion for JNOV, a conditional new trial, and remittitur. On appeal, the court first found that while plaintiffs contended “defendants waived any challenge to the jury instructions and could not” assert that they were erroneous in their JNOV motion, the “key issue was not whether defendants waived their right to challenge the jury instructions. It was the trial court’s subsequent determination that the jury instructions did not reflect the applicable law and its exercise of discretion to correct that error. Therefore, the trial court did not err by addressing errors of law in the jury instructions and correcting those errors in ruling on defendants’ motion for JNOV.” The court also rejected plaintiffs’ argument “that the jury was properly instructed” on the nuisance claims. It determined that a “review of the MZEA does not disclose a zoning ordinance or regulation adopted under it that would constitute a nuisance per se for violation of a road commission rule.” Further, the court did not find “another statute or caselaw that would qualify as ‘otherwise provided by law,’ to support a nuisance per se under MCL 125.3407. Moreover, plaintiffs failed to establish that the MZEA conferred any authority to the Road Commission rules that equated with a zoning ordinance. Therefore, the trial court did not err by determining that a violation of the Road Commission rules did not support a claim of nuisance per se.” As to the sufficiency of the evidence for nuisance in fact, the court held that “plaintiffs failed to establish that defendants’ primary and secondary docks unreasonably interfered with plaintiffs’ use and enjoyment of their property and caused substantial harm.” 

Whether Open Meetings Act (OMA) violations were cured; Due process; Laches; Public policy & timing; Ripeness; Actual attorney fees under MCL 15.271(4); Estoppel; Order enforcing the judgment; Whether the trial court had the authority to invalidate licenses issued as part of a settlement agreement

In this consolidated case, on remand from the Supreme Court to consider, among other things, whether the open meetings held by the defendant-Review Committee cured prior OMA violations, the court held that (1) defendants and intervening defendants did not identify “any errors warranting relief in the trial court’s resolution of the OMA claims[,]” (2) the trial court did not err in determining “that plaintiffs were not entitled to actual attorney fees under the OMA[,]” (3) plaintiffs did not identify “any errors warranting relief in the trial court’s resolution of their claims involving due process[,]” but (4) the trial court abused its discretion in ruling that defendant-City violated its 4/20 Opinion and Order by reissuing the medical marijuana “licenses to intervening defendants and scheduling a show-cause hearing.” Thus, the court affirmed in Docket Nos. 355989, 355994, 355995, 356005, 356011, 356017, 356023, vacated in Docket Nos. 359269 and 359285, and remanded. The City and other appellants argued “that the trial court lacked the authority to invalidate the Review Committee’s decision because the Review Committee reenacted any decisions made in violation of the OMA from March to [7/19] at the open meetings held on” 9/20/19 and 10/7/19. The court disagreed. “The Review Committee conducting two meetings open to the public, which lasted a combined total of fifty-nine (59) minutes, after conducting 13 substantive closed meetings does not, on the record before us, cure the OMA violations.” The trial court did not err when it concluded “that the Review Committee had not reenacted the relevant decisions and granted” plaintiff-Happy Trails “summary disposition on its claim requesting the invalidation of the Review Committee’s decisions.” The City and others also maintained “that the trial court erred when it invalidated the scores and rankings for the individual applicants because those scores were not made at the closed meetings and were not subject to invalidation under the OMA.” But the court held that “the trial court had the authority to invalidate those decisions as decisions that were not made in compliance with the OMA.” The intervening defendants appealed “the trial court’s order invalidating the City’s decision to reissue licenses to them as part of a settlement agreement” they entered into with the City in a different case. The court concluded “the trial court abused its discretion by invalidating the City’s decision to reissue the licenses and scheduling a show-cause hearing.”

Request for a poverty tax exemption; MCL 211.7u; Deviation from the poverty income standards; MCL 211.7u(5); Principle that the Michigan Tax Tribunal (TT) lacks equitable powers; VanderWerp v Charter Twp of Plainfield; “Competent, material, & substantial evidence”; Social Security Disability (SSD) benefits

The court held that the TT did not err by denying petitioner’s request for a poverty exemption on the ground that her household income exceeded the limit established by respondent-city. Respondent’s Board of Review denied petitioner’s request for a poverty exemption from her 2022 property tax obligation. The TT affirmed. On appeal, the court rejected her argument that the TT’s decision was erroneous. The TT “found that two occupants resided in petitioner’s residence: petitioner and her adult son, [B]. Petitioner’s annual household income for the applicable tax year was $35,832, with $26,304 from [her SSD] income, and $9,528 from [B’s SSD] income. These findings were supported by petitioner’s [3/26/22] application for a poverty exemption, in which [she] attested that she received $2,192 monthly in [SSD] benefits, and by her testimony at the hearing before the” TT that B “received $794 monthly in [SSD] income. At the hearing, petitioner testified that she received $2,102 [in SSD] benefits each month, which is lower than the income amount stated on her application. However, even if her annual income was calculated using the $2,102 monthly income to which petitioner testified, petitioner’s annual income of $25,224 combined with [B’s] annual income of $9,528 exceeded the maximum income for a two-person household to receive a poverty exemption.” As such, the TT’s finding that her “annual income exceeded the maximum income for a two-person household to receive a whole or partial exemption from her 2022 property tax obligation was supported by competent, material, and substantial evidence.” In addition, it was “immaterial that petitioner submitted the requisite paperwork for the exemption and was granted the exemption in previous tax years, and that respondent failed to appear for hearings before the [TT]. Petitioner bore the burden of demonstrating by a preponderance of the evidence that she was entitled to a poverty exemption for her 2022 property taxes.” To be eligible, she had to show “that her household income did not exceed the eligibility guidelines set forth in” the relevant city ordinance. She “did not meet this burden because the evidence presented by petitioner demonstrated that her household income exceeded the maximum household income to be eligible for a poverty exemption.” Affirmed.

Request for a poverty tax exemption; MCL 211.7u; Deviation from the poverty income standards; MCL 211.7u(5); Principle that the Michigan Tax Tribunal (TT) lacks equitable powers; VanderWerp v Charter Twp of Plainfield; “Competent, material, & substantial evidence”; Social Security Disability (SSD) benefits

The court held that the TT did not err by denying petitioner’s request for a poverty exemption on the ground that her household income exceeded the limit established by respondent-city. Respondent’s Board of Review denied petitioner’s request for a poverty exemption from her 2022 property tax obligation. The TT affirmed. On appeal, the court rejected her argument that the TT’s decision was erroneous. The TT “found that two occupants resided in petitioner’s residence: petitioner and her adult son, [B]. Petitioner’s annual household income for the applicable tax year was $35,832, with $26,304 from [her SSD] income, and $9,528 from [B’s SSD] income. These findings were supported by petitioner’s [3/26/22] application for a poverty exemption, in which [she] attested that she received $2,192 monthly in [SSD] benefits, and by her testimony at the hearing before the” TT that B “received $794 monthly in [SSD] income. At the hearing, petitioner testified that she received $2,102 [in SSD] benefits each month, which is lower than the income amount stated on her application. However, even if her annual income was calculated using the $2,102 monthly income to which petitioner testified, petitioner’s annual income of $25,224 combined with [B’s] annual income of $9,528 exceeded the maximum income for a two-person household to receive a poverty exemption.” As such, the TT’s finding that her “annual income exceeded the maximum income for a two-person household to receive a whole or partial exemption from her 2022 property tax obligation was supported by competent, material, and substantial evidence.” In addition, it was “immaterial that petitioner submitted the requisite paperwork for the exemption and was granted the exemption in previous tax years, and that respondent failed to appear for hearings before the [TT]. Petitioner bore the burden of demonstrating by a preponderance of the evidence that she was entitled to a poverty exemption for her 2022 property taxes.” To be eligible, she had to show “that her household income did not exceed the eligibility guidelines set forth in” the relevant city ordinance. She “did not meet this burden because the evidence presented by petitioner demonstrated that her household income exceeded the maximum household income to be eligible for a poverty exemption.” Affirmed.