In his diverse appellate practice, Michael F. Smith has been involved in appeals in a wide variety of state and federal courts and tribunals, on behalf of parties and amici curiae. (Of course, past results are no guarantee of future success). Noteworthy matters in which he has been involved include:
● Great American Ins. Co. v. E.L. Bailey & Co., Inc., 841 F.3d 439 (6th Cir. 2016). Sixth Circuit resolved two issues of first impression under Michigan law as to proper time and forum for principal to bring bad-faith claim relating to surety’s payments under performance and construction bonds.
● Bar’s Prods., Inc. v. Bars Prods. Int’l, Inc., 2016 U.S. App. LEXIS 19991 (6th Cir. 2016). Judgment for $2.5-million against maker of automotive aftermarket product vacated in part, and company’s original claims revived and remanded for trial.
● Chrysler Group L.L.C. v. Fox Hills Motor Sales, Inc., 776 F.3d 411 (6th Cir. 2015). Michigan and Nevada auto dealer-franchise laws pre-empted by the Consolidated Appropriations Act of 2010, since they bar relief for dealers terminated from old Chrysler's dealer network in bankruptcy who established in subsequent arbitrations that they should be added to the new Chrysler's network.
● Jae Lee v. United States, 582 U.S. __ (2017). On behalf of nonprofit center that promotes best practices in the criminal-justice system, filed amicus curiae brief supporting certiorari petition raising ineffective-assistance-of-counsel claim in immigration context.
● Trahey v. City of Inkster, 311 Mich. App. 582 (2015). Trial-court rulings ordering City to cut water rates and refund $2.6 million to customers vacated; lower court clearly erred in finding rates unreasonable, and City's court-ordered payment of refunds did not moot appeal.
● Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Filed amicus curiae brief on behalf of scholar supporting traditional marriage and opposing judicial override of state marriage laws; brief cited in dissenting opinion of Justice Thomas. Also filed amici curiae briefs in other marriage cases in various federal circuit and district courts.
● Leavitt v. Felton, 2016 Mich. App. LEXIS 1006 (Mich. Ct. App. 2016). Co-counsel on amicus curiae brief supporting summary disposition for defendant-student on First Amendment grounds in defamation action arising from parody Twitter account.
● Kimberlin v. National Bloggers Club, 2015 U.S. Dist. LEXIS 32528 (D. Md. 2015). RICO claims brought by convicted domestic terrorist against nationally prominent conservative commentator and website dismissed.
● Lancia Jeep Hellas v. Chrysler Group Int’l L.L.C., 2016 Mich. App. Lexis 626 (Mich. Ct. App. 2016), app for lv pending. Interlocutory appeal challenging summary disposition of vehicle distributor’s fraudulent-inducement and contract claims against manufacturer arising from settlement of earlier litigation.
● Bank of America, N.A. v. First American Title Ins. Co., 499 Mich. 74 (2016). Filed amicus curiae brief on behalf of national association of title insurers discussing history and relevance and urging retention of full credit-bid rule.
● Dubuc v. Copeland Paving, Inc., 2016 Mich. App. LEXIS 638 (Mich. Ct. App. 2016). Appellate co-counsel in case affirming summary disposition under Construction Lien Act and award of attorney fees for paving contractor.
● City of Dearborn v. Burton-Katzman Dvpmt. Co., 2014 Mich. App. LEXIS 2556 (Mich. Ct. App. 2014). Individuals and entities were wrongly denied summary disposition, and individuals wrongly threatened with contempt and jail, in $30-million commercial-construction dispute. Appellate court earlier had stayed contempt proceedings pending defendants' emergency interlocutory appeal.
● Jackson v. Sedgwick Claims Mgt. Servs., 731 F.3d 556 (6th Cir. 2013) (en banc); Brown v. Ajax Paving Industries, Inc., 752 F.3d 656 (6th Cir. 2014). Summary judgment for doctor and other defendants affirmed against RICO claims arising out of denial of workers-compensation benefits; loss or diminution of such benefits was not injury to "business or property," and Congress gave no clear statement that it intended the sweeping redistribution of state-federal authority that recognition of such claims would impose.
● BP1, L.L.C. v. Coventry Real Estate Fund II, L.L.C., 2014 Mich. App. LEXIS 1805 (Mich. Ct. App. 2014). No-cause verdict for defendant nationwide REIT and others affirmed on appeal in contract dispute seeking more than $200 million in damages.
● C.A. Hull Co., Inc. v. Dep't of Transportation, 2014 Mich. App. LEXIS 2575 (Mich. Ct. App. 2014). Summary disposition for state reversed based on contract ambiguity and matter remanded to Court of Claims for trial on contractor's claims arising from painting of more than one mile of I-675 bridge.
● Holton v. Ward, 303 Mich. App. 718 (2014). Summary disposition affirmed for landowner in riparian property dispute; denial of sanctions reversed on cross-appeal and landowner awarded attorney fees for both trial court defense and on appeal.
● In re Byrne Estate, 2014 Mich. App. LEXIS 493 (Mich. Ct. App.), lv denied, 856 NW2d 25 (2014). JNOV affirmed in favor of longtime business manager and friend of decedent, against attempt by bank/personal representative to take $1.6 million gifted and bequeathed to her by decedent.
● Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), DeLeon v. Perry, 5th Cir. Case No. 14-50196 (pending); Brenner v. Armstrong, 11th Cir. Case No. 14-14061 (pending); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014). Filed brief amici curiae on behalf of three scholars in support of traditional marriage and opposing judicial override of state marriage laws.
● T.R. Pieprzak Co., Inc. v. City of Troy, 2014 Mich. App. LEXIS 1191 (Mich. Ct. App. 2014). Co-counsel for contractor; summary disposition for defendant-city affirmed in dispute arising from water and storm-sewer main replacement project.
● 1473219 Ontario Limited v. Alternative Aviation Servs., Inc., 2013 U.S. Dist. LEXIS 75331 (E.D. Mich. 2013), stayed pending appeal (8/21/13 Order), dismissed on stipulation. Co-counsel for defendant aircraft mechanic in dispute over hundreds of thousands of dollars of repair/restoration work; district court stayed own order permitting release of aircraft to plaintiff given substantial legal issue raised on appeal and questions over sufficiency of bond.
● Hani & Ramiz, Inc v. North Pointe Ins. Co., 494 Mich. 873 (2013). On emergency basis, Michigan Supreme Court reversed Court of Appeals and ordered case stayed pending insurer's appeal of adverse judgment in $2 million coverage dispute.
● United States v. Banks, 2013 U.S. App. LEXIS 19182 (4th Cir. 2013). District court's finding that defendant violated terms of supervised release vacated and remanded; court committed plain error in admitting hearsay without conducting inquiry required by Fed. R. Crim. P. 32.1.
● Schuette v. Coalition to Defend Affirmative Action,134 S. Ct. 1623 (2014). Filed amicus curiae briefs in 6th Circuit and U.S. Supreme Court on behalf of four former attorneys of Department of Justice, Civil Rights Division, arguing that voter-approved Michigan Constitution provision barring use of racial preferences in university admissions does not violate Equal Protection Clause.
● Wayne County Employees Ret. Sys. v. Wayne County, 497 Mich. 36 (2014). Filed brief amicus curiae on behalf of nationwide association of public-pension funds in dispute over payment of annual "13th check."
● Gilardi v. United States, 733 F.3d 1208 (D.C. Cir. 2013), vacated and remanded, 134 S. Ct. 2902 (2014). Filed brief amicus curiae on behalf of Life Legal Defense Foundation in support of plaintiffs' challenge to contraceptive mandate of Affordable Care Act.
● Stryker Corp. v. XL Insurance America, 681 F.3d 806 (6th Cir. 2012). Filed brief amicus curiae on behalf of American Insurance Association urging court that under Erie doctrine, Michigan Supreme Court ruling on which District Court relied in disregarding aggregate liability limit under insurance policy was no longer valid statement of Michigan law on the issue.
● Whitesell Int'l Corp. v. Whitaker (On Recon), 2011 Mich. App. LEXIS 99 (Mich. Ct. App.), lv denied, 490 Mich. 911, 805 N.W.2d 197 (2011). On reconsideration, Court of Appeals vacated its earlier ruling affirming a $9-million judgment for defendant/counter-plaintiff in antitrust and tortious-interference case, and held that the trial court reversibly erred in directing a verdict on a key trade-secret issue as the case was about to go to the jury after 25 days of trial. Lead appellate counsel for defendant/counter-plaintiff.
● Muti v. Univ. of Md. Med. Sys. Corp., 426 Md. 358, 44 A.3d 380 (2012). Filed amicus curiae brief on behalf of Maryland Defense Counsel, Inc., in case involving issue of statutory interpretation under state Wrongful Death Act.
● People of the State of Michigan v. Dean Scott Yanna, 297 Mich. App. 137 (2012). As co-counsel for amicus curiae Arming Women Against Rape and Endangerment (AWARE), assisted with brief arguing that Michigan's statutory ban on private stun-gun possession violates Second Amendment to U.S. Constitution and analogous state constitutional provision.
● Blake v. Baltimore County, Md., 439 Fed. Appx. 208 (4th Cir. 2011). Jury award of $225,000 in compensatory damages to undercover police detective for claim under medical-testing and inquiry provision of Americans with Disabilities Act affirmed; county failed to renew Rule 50 motion post-judgment and district court did not err in denying remittitur.
● Stone Computer, Inc. v. UAW-Chrysler National Training Center, 2010 Mich. App. LEXIS 848 (Mich. Ct. App. 2010). No-cause verdict for defendant in dispute over $2.2 million in computers affirmed; any error in the admission of evidence regarding settlement of prior lawsuit was harmless given plaintiff's failure to present evidence establishing claims for conversion or unjust enrichment.
● Singer v. Sreenivasan, 488 Mich. 893 (2010). Filed amicus curiae brief on behalf of Michigan Defense Trial Counsel urging Supreme Court to affirm Court of Appeals' interpretation of case-evaluation court rule awarding "reasonable attorney fee"; following oral argument by the parties, grant of leave vacated.
● Brightwell v. Fifth Third Bank of Michigan, 487 Mich. 151 (2010). Michigan Supreme Court overruled Barnes v. Int'l Business Machines Corp., 212 Mich. App. 223 (1995) and held that, for purposes of venue under the Elliott-Larsen Civil Rights Act, violation "occurs" when the discriminatory decision is made and the adverse employment action implemented. Co-counsel for defendant-bank.
● Ricci v. DeStefano, 557 U.S. 557 (2009). In white firefighters' challenge to city's refusal to certify promotional exam results, filed amicus curiae brief on behalf of Anti-Defamation League urging Court to require employers to have "strong basis in evidence" for fearing litigation in order to avoid Title VII/Equal Protection liability for race-conscious action.
● United States v. Randy Edward Hayes, 555 U.S. 415 (2009). Co-counsel for respondent; Court held 7-2 that predicate "misdemeanor crime of domestic violence" disqualifying one from firearm possession under 18 U.S.C. 922(g)(9) need not have as an element a domestic relationship between offender and victim.
● Township of Grosse Ile v. L. D'Agostini & Sons, Inc., Michigan Court of Appeals Docket No. 300226 (Order 11/22/10). Trial court's denial of township's motion for summary disposition based on governmental immunity peremptorily reversed.
● CMACO Automotive Sys., Inc. v. Wanxiang America Corp., 589 F.3d 235 (6th Cir. 2009). Summary judgment affirmed for auto parts maker on contract and other claims brought by supply partner; Michigan's borrowing statute required application of California's four-year contractual limitation period, rather than Michigan's six-year period.
● Atwater Entertainment Assocs., L.L.C. v. Doss, 2010 Mich. App. LEXIS 736 (Mich. Ct. App. 2010). Trial court abused its discretion in granting defendant summary disposition in declaratory-judgment action regarding casino membership units, since the parties' dispute met the "actual controversy" requirement.
● Butler v. Cooper Standard Automotive, Inc., 2010 U.S. App. LEXIS 8968 (6th Cir. 2010). Summary judgment affirmed for individual supervisor on plaintiff's claims for race discrimination, hostile work environment and retaliation.
● Ford Motor Co. v. State Tax Comm’n., 274 Mich. App. 108 (2007), rev'd in part sub. nom, DaimlerChrysler Corp. v. State Tax Comm'n., 482 Mich. 220 (2008). Represented automaker and engine manufacturer challenging administrative denial of pollution-control tax exemption for $170 million of test-cell equipment installed to comply with EPA standards.
● Zaluski v. United American Healthcare Corp., 527 F.3d 564 (6th Cir. 2008). Summary judgment for individual defendant affirmed on claim under § 20(a) of Securities Exchange Act of 1934; statements were not material but rather predictions and soft information not giving rise to duty to disclose.
● American Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534 (6th Cir. 2007), cert.denied, 552 U.S. 1242 (2008). District court's rulings setting aside $420-million default judgment against Lebanon and dismissing plaintiff’s action based on Foreign Sovereign Immunities Act affirmed.
● Dep't. of Revenue of Ky. v. Davis, 553 U.S. 328 (2008). Filed amicus curiae brief on behalf of 13 state-specific municipal-bond mutual funds urging Court to find that preferential income-tax treatment of in-state municipal bond interest does not violate the Commerce Clause.
● Detroit Thermal, L.L.C. v. Highgate Hotels, Inc., 2009 Mich. App. LEXIS 40 (Mich. Ct. App. 2009). Judgment for plaintiff reversed in $311,000 breach-of-contract action, and $12,000 in appellate costs taxed in defendant's favor by Court of Appeals and Supreme Court.
● Detroit Free Press and Detroit News v. City of Detroit (Orders, 2008). In emergency appeals to Michigan Court of Appeals and Supreme Court, successfully defended trial court’s ruling ordering disclosure of secret documents relating to $8.4-million settlement of whistleblower claim involving Detroit Mayor Kwame Kilpatrick.
● Ford Motor Co. v. Allianz Ins. Co., Michigan Court of Appeals No. 242760 (2003). Emergency interlocutory leave to appeal the denial of summary disposition granted to insurer in $308-million coverage dispute arising from powerhouse explosion and fire at the Rouge automotive complex; case settled on appeal.
● Flagstar Bank v. Harbor Northwestern-30800, 2006 Mich. App. LEXIS 1151, lv denied, 477 Mich. 913 (2006). In a dispute over a landlord’s failure to deliver premises to a bank, obtained a reversal of summary disposition for the landlord and judgment for the bank, along with $250,000 and 12-percent interest under a liquidated-damage provision.
● Dunn v. Savage (In re Saffady), 524 F.3d 799 (6th Cir. 2008). Appeals dismissed for lack of jurisdiction where neither the common-law exception to 28 U.S.C. § 1292(1)(a) nor the collateral-order doctrine applied.
● LIOBMedia v. DataFlow Alaska, Inc., 2009 U.S. App. LEXIS 16005 (4th Cir. 2009). Represented appellant in dispute over teaming agreement to pursue government contract; judgment as a matter of law for appellee affirmed.
● Rooyakker & Sitz, P.L.L.C. v. Plante & Moran, P.L.L.C., 276 Mich. App. 146 (2007) (published after release). Dismissal of CPAs' claims against former employer affirmed; parties' agreement contained valid clause for irrevocable statutory arbitration and its no-solicitation provision did not violate Michigan Antitrust Reform Act.
● Mueller v. Gallina, 137 Fed. Appx. 847 (6th Cir. 2005). Summary judgment for former DEA agent-in-charge affirmed in Bivens action; district court had urged plaintiff to appeal issue of first impression.
● Sherrod v. Genzyme Corp., 170 Fed. Appx. 375 (6th Cir. 2006). Summary judgment for employer affirmed in case of first impression; requirement that employee sign non-compete agreement does not violate anti-kickback statutes, since such covenants are authorized by the Michigan Antitrust Reform Act.
● Dillon-Barber v. Regents of the University of Michigan, 2005 Mich. App. Lexis 1400, lv denied, 474 Mich. 1069 (2006). In a case involving an issue of first impression regarding medical-testing claims under Michigan's Persons with Disabilities Civil Rights Act, interlocutory leave to appeal was granted and the denial of summary disposition to defendants university and supervisors reversed, with judgment directed for defendants.
● Progress Energy, Inc. v. Taylor, U.S. Supreme Court No. 07-539. Filed amicus curiae brief on behalf of two nationwide organizations representing human resource professionals, urging court to grant petition for certiorari to consider validity of private releases under Family and Medical Leave Act.
● C.C. Mid West v. McDougall, 470 Mich. 878, cert. denied, 544 U.S. 999 (2005). Trucking company’s tortious-interference suit against Teamster pension-fund trustees reinstated by Michigan Supreme Court after being dismissed on ERISA preemption grounds, and trustees’ petition for certiorari denied.
● Village of Milford v. K-H Holding Corp., 390 F.3d 926 (6th Cir. 2004). In trespass and CERCLA/state-law cost-recovery action over contaminated wells, district-court rulings for defendant corporations affirmed in part, vacated in part and remanded.
● General Security Servs. Corp. v. N.L.R.B., 187 F.3d 641 (8th Cir. 1999); Mt. Clemens General Hosp. v. N.L.R.B., 328 F.3d 837 (6th Cir. 2003). Represented employers in petitions for review of National Labor Relations Board orders finding unfair labor practices.
● Ford v. Architectural Door & Millwork, 2004 Mich. App. LEXIS 3533 (Mich. Ct. App. 2004). Trial court’s finding of no coverage under CGL policy reversed and millwork company on remand awarded $256,000 fees, costs and interest from insurer for defense of suit alleging sale of defective wood moldings; no-cause verdict for company in underlying case also affirmed.
● Barlow v. M.J. Waterman & Assocs. (In re M.J. Waterman & Assocs.), 227 F.3d 604 (6th Cir. 2000). Reversal of district court’s ruling treating creditor’s pre-bar date filings as an informal proof of claim.
● Vredevelt v. GEO Group, Inc., 145 Fed. Appx. 122 (6th Cir. 2005). Summary judgment affirmed for defendant-employer against gender-discrimination and sexual-harassment claims.
● Tolbert v. City of Pontiac, 139 Fed. Appx. 706 (6th Cir. 2005). Summary judgment affirmed for city and police officers in § 1983 wrongful-death action.
● Six Clinics Holding Corp. II v. Cafcomp Sys., Inc., 119 F.3d 393 (6th Cir. 1997). District court properly enjoined arbitration brought by benefit-plan administrator terminated for violating ERISA fiduciary duties.
● Anton v. United States, 252 F. Supp. 2d 770 (E.D. Mich. 2002). Represented former grocery owner in appeal of civil money transfer penalty imposed following disqualification from food-stamp program.
● In several class actions, obtained emergency interlocutory leave to appeal class-certification rulings and a stay of proceedings pending appellate review. Waldron v. Republic Svcs. of Michigan, Michigan COA Nos. 284253 and 290205 (order certifying class of thousands of residents near landfill peremptorily vacated; after class was re-certified, leave granted and appeal currently pending); Coponen v. Wolverine Pipe Line Co., Michigan COA No. 235692 (class of 1,200 evacuees from 71,000-gallon gasoline spill); Foulks v. Usher Oil Co., COA No. 258997 (thousands of residents within one-mile radius of oil-recycling facility); Agurs v. Diversified Distribution Sys., COA No. 231380 (class of 2,000 job applicants alleging discrimination based on gender, race, religion, disability and national origin).
● Mich. Dep’t. of Transp. v. McQuade, 2006 Mich. App. LEXIS 1446 (Mich. Ct. App. 2006). Jury’s award of $1.1 million in just compensation to owners of Detroit parking lot taken by eminent domain affirmed.
● Ansari v. Gold, 2006 Mich. App. LEXIS 388 (Mich. Ct. App. 2006), lv. denied, 477 Mich. 1076 (2007). On interlocutory appeal in $180-million legal-malpractice action, appellate court reversed trial court and directed judgment for defendants, after granting their motion to supplement record on appeal.
● Crawford-Sachs v. Goodyear Tire & Rubber Co., 2007 Mich. App. LEXIS 880 (Mich. Ct. App. 2007) (summary judgment for manufacturer affirmed on products-liability claim alleging tire failure andvehicle rollover); Ducharme v. A&S R.V. Center, Inc., 127 Fed. Appx. 204 (6th Cir. 2005) (breach of warranty).
● LaPorte v. William Beaumont Hosp., COA No. 262856 (filed and decided May 24, 2005). In a $280-million medical malpractice case, sought and obtained on behalf of defendant-hospital emergency review of trial court’s May 23 rulings on jury instructions and verdict form, prior to case going to the jury May 24.
● Actively participated in briefing and/or arguing numerous appeals affirming summary judgment for employer in employment-related actions, including Sobieski v. Takata Seat Belts, Inc., 2006 Mich. App. LEXIS 2470, lv. denied, 477 Mich. 985 (2007) (age discrimination); Henning v. Verizon Wireless, 2005 Mich. App. LEXIS 168 (Mich. Ct. App. 2005) (gender discrimination, retaliation).
● Money Source Fin. Servs., Inc. v. Ann Arbor Commerce Bank, 2006 Mich. App. LEXIS 3455 (Mich. Ct. App. 2006). Denial of summary judgment reversed in a U.C.C. Article 3 dispute and judgment for bank directed based on the “intended payee” defense, despite bank’s breach of its presentment warranties.
● Grievance Administrator v. Potts,No. 03-61-GA (Mich. Atty. Disc. Bd., September 28, 2005). Summary judgment for attorney affirmed in alleged conflict of interest under MRPC 1.7(a); Board “strongly disagreed” with Grievance Administrator’s position that law firms may not delegate conflict checks to general counsel.
● DiLorenzo v. Kirkpatrick, 2006 Mich. App. LEXIS 385 (Mich. Ct. App.), lv. denied, 475 Mich. 889 (2006). Summary disposition affirmed for individual defendant in case seeking $7.5-million in damages for alleged breach of contract, misrepresentation, fraud and conspiracy arising from a bank failure.
● Ottevaere v. Tweddle, 2005 Mich. App. LEXIS 3196 & 3216 (Mich. Ct. App. 2005). Trial court’s two findings that ex-husband violated Personal Protection Order, and its imposition of two jail sentences, affirmed on appeal, and defendant ordered to pay ex-wife’s attorney fees and costs for both appeals.
● Schenden v. Addison Twp., 2004 Mich. App. LEXIS 2281 (Mich. Ct. App. 2004). Township’s order shutting down construction of a bridge to island on which husband and wife wished to build their home reversed on appeal, and judgment directed for couple. The appellate court also awarded sanctions for the township’s vexatious motion for reconsideration and, on the couple’s motion, gave its opinion immediate effect so the bridge could be finished before ice set in and state permits expired.
● Family Independence Agc’y. v. Unger (In re MU), 264 Mich. App. 270 (2004). Defended father against prosecutor’s attempt to terminate parental rights by proving “criminality” in a civil proceeding prior to the filing of criminal charges.
● Guidot v. Dolan, 2007 Mich. App. LEXIS 1729 (Mich. Ct. App. 2007). Circuit Court’s ruling refusing to vacate arbitration award in divorce affirmed on appeal.
● Ford Motor Credit Co. v. City of Detroit, 254 Mich. App. 626 (2003). City may impose liability on auto lessor for parking tickets written to vehicle lessees, but lessor under statute is entitled to an individual hearing on all 22,000 tickets, at which it may try to establish lessee’s responsibility.
● Johnson v. Johnson (Aft Rem), 2007 Mich. App. LEXIS 861 (Mich. Ct. App. 2007). Trial-court rulings on property distribution, spousal support and attorney fees reversed for second time, after lower court failed to follow remand directives in Johnson v. Johnson, 2004 Mich. App. LEXIS 3153 (Mich. Ct. App. 2004).
● Olson v. Olson, 256 Mich. App. 619 (2003). Divorce-judgment provisions directing husband to give ex-wife half of control share in S corporation and $50,000 in monthly alimony reversed.