• Attorneys (1)
• Criminal Law (6)
• Employment & Labor Law (1)
• Insurance (1)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Open Meetings Act (1)
• Termination of Parental Rights (4)

Attorneys

 

This summary also appears under Open Meetings Act

 

Issues: Attorney fee dispute where the plaintiff appealed the trial court's order denying his request for actual attorney fees under the Open Meetings Act (OMA)(MCL 15.261 et seq.) and granting him an alternative amount determined reasonable by the trial court; Limitations on the recovery of "actual " attorney fees; MCL 15.271(4); Statutory analysis; Omdahl v. West Iron Cnty. Bd. of Educ.; Driver v. Naini; People v. Yamat; Manning v. East Lansing; MRPC 1.5(a); MCL 600.904; Evans & Luptak, PLC v. Lizza; Smith v. Khouri; Morris & Doherty, PC v. Lockwood; Whether the trial court should have held an evidentiary hearing as to the claimed attorney fees; Taylor v. Currie; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; The eight factors in MRPC 1.5(a); Herald Co. v. Tax Tribunal; Michigan Farm Bureau v. Department of Envtl. Quality; Whether plaintiff's attorney was required by MCR 2.114(D)(2) to research election law; Van Elslander v. Thomas Sebold & Assoc., Inc.; Burden of proving the amount of fees requested; Tinnin v. Farmers Ins. Exch.

Court: Michigan Court of Appeals (Published)

Case Name: Speicher v. Columbia Twp. Bd. of Election Comm'rs

e-Journal Number: 53576

Judge(s): Per Curiam – Hoekstra, Borrello, and Boonstra

 

The court held, inter alia, that the prohibition of illegal or clearly excessive attorney fees under MRPC 1.5(a) applied to and limits the "actual attorney fees" a party is entitled to under MCL 15.271(4). The court remanded for an evidentiary hearing to determine the appropriate amount of attorney fees and to allow plaintiff to present evidence in support of his claim that the requested fees are not excessive. The burden of proving the fees rests upon the claimant of those fees. Thus, on remand plaintiff has the burden of establishing that his requested fees are not clearly excessive. The court also held that attorney fees awarded under MCL 15.271(4) are limited to fees related to the OMA case. The court remanded for an evidentiary hearing to clarify the exact number of hours allocated to the OMA case because plaintiff's billing statement was ambiguous in that regard. The case arose from plaintiff's successful allegation of OMA violations against the defendant. The trial court granted plaintiff summary disposition, finding that defendant twice violated the OMA. The trial court denied plaintiff's request for injunctive relief but granted his request for actual attorney fees and costs based on MCL 15.271(4). Plaintiff filed a motion requesting fees and costs totaling $32,484.25. Defendant responded arguing that the requested amount of fees was "clearly excessive." The trial court heard arguments, took the matter under advisement, and issued a written opinion, holding that a litigant is entitled to actual attorney fees only if the litigant is successful and the fees are for the action commenced. The trial court also held that the plaintiff was successful, but that some of the fees claimed were not for the OMA case. Thus, plaintiff could only recover those fees. The trial court also held that the requested fees were "clearly excessive" in violation of the MRPC and plaintiff was entitled to recover only $7,500 in attorney fees. The court held that plaintiff should have had the opportunity to defend the amount of fees requested. The record showed that neither party presented evidence as to the eight factors in MRPC 1.5(a). Thus, the court remanded so that trial court can hold an evidentiary hearing and make specific factual findings to support its conclusion as to the amount to be awarded and explain whether and why any greater attorney fee award would be clearly excessive. The court affirmed in part, reversed in part, and remanded.

 

Criminal Law

 

Issues: Whether Michigan's "felon in possession" statute (MCL 750.224f) prevents a police department from delivering lawfully seized noncontraband firearms to the designated agent of a convicted felon; MCL 750.224f(2); People v. Johnson; People v. Flick; United States v. Miller (7th Cir.); Cooper v. City of Greenwood (5th Cir.); Forfeiture (MCL 750.239); "Constructive bailment"; Godfrey v. City of Flint; Persinger v. Holst; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Whether the Court of Appeals properly held that the police department's continued possession of defendant's firearms as a bailee violated his right to due process; Distinction between agent and bailee; United States v. Felici (8th Cir.); Whether the Court of Appeals properly relied on Banks v. Detroit Police Dep't

Court: Michigan Supreme Court

Case Name: People v. Minch

e-Journal Number: 53602

Judge(s): Young, Jr., Markman, M.B. Kelly, and Zahra; Concurring in result only - Cavanagh, M. Kelly, and Hathaway

 

In this case where the issue was whether Michigan's "felon in possession" statute prevents a police department from delivering lawfully seized noncontraband firearms to the designated agent of a convicted felon, the court held that it does. The statute, however, does not prevent a court from appointing a successor bailee to maintain possession of a defendant's weapons during his/her period of legal incapacity. Thus, the court reversed the Court of Appeals judgment, vacated the trial court's order of 11/24/10, and remanded the case to the trial court for entry of an order consistent with the opinion that clarifies its disposition of the firearms. After a domestic disturbance, the police executed a search warrant and lawfully seized 87 firearms from defendant's home. Of these, he lawfully owned 86, but he illegally possessed one short-barreled shotgun. Defendant was charged with and pleaded guilty to one count of possession of a short-barreled shotgun and one count of felony-firearm. After his sentencing, he moved to have all of his lawfully owned weapons, which were still in the police department's possession, returned to his mother, as designated by defendant in his proposed Durable Power of Attorney. Defense counsel informed the trial court that defendant and counsel "would advise" his mother to sell the weapons in accordance with the authority conveyed in the power of attorney. The trial court granted the motion over the prosecution's objection. The prosecution appealed and the Court of Appeals affirmed the trial court's decision in a published opinion per curiam, holding that "denying defendant's designee the right to take possession of the weapons would deprive him of his property without due process of law." Having heard oral argument on the prosecution's application for leave to appeal, the court reversed the Court of Appeals and remanded the case to the trial court for further proceedings. While MCL 750.224f(2) suspends a felon's possessory interest in his/her firearms until the statutorily enumerated conditions are met, nothing in the statute severs a felon's ownership in the firearms. A felon continues to own the firearms but may not actually or constructively possess them or engage in any of the other prohibited activities listed in the statute. Thus, neither the police department's lawful seizure of the firearms nor its continued possession of them deprived defendant of his ownership rights in them. The court agreed with the prosecution that a constructive bailment was created between defendant and the police. Thus, the police department was charged with all the attendant duties and obligations of a bailee. Nothing in the statute precludes the appointment of a successor bailee to maintain possession of a felon's weapons for the duration of the felon's incapacity. Defendant's mother, who had a durable power of attorney to attend to his affairs while he was incarcerated, may possess the firearms as long as she does so as a bailee and not as his agent. If no replacement bailee is willing to hold the firearms in accordance with the court's conditions, then the police department may retain possession until defendant is lawfully entitled to possession of his firearms.

 

Issues: Sentencing; Scoring of OVs 3 & 9; Whether two firefighters and the defendant's neighbor were "victims"; People v. Laidler; People v. Albers; Legislative intent; People v. Gardner; MCL 777.39(2)(a); Restitution; People v. Gahan; People v. Bell; The Crime Victim's Rights Act (CVRA)(MCL 780.751 et seq.); The CVRA definition of "victim" (MCL 780.766(1)); Whether the insurer was a victim under the CVRA for restitution purposes; People v. Norman; The scope of the insurer's recovery under the CVRA; People v. Allen; People v. Gubachy

Court: Michigan Court of Appeals (Published)

Case Name: People v. Fawaz

e-Journal Number: 53575

Judge(s): Per Curiam – Stephens, Owens, and Murray

 

The court held that first responders can be "victims" for purposes of OV 3. Further, the two firefighters at issue (C and R) as well as the defendant's next door neighbor (F) were all victims under the unambiguous language of OV 9. Thus, the trial court erred in scoring both OVs at zero. The court also held that the trial court erred in excluding some costs requested by the victim-insurer from the amount of restitution. Thus, the court remanded the case for resentencing consistent with its opinion. Defendant was convicted of one count of arson of a dwelling house, one count of arson of insured property, and two counts of making false statements about material matters for an insurance claim. C and R, who responded to the fire at defendant's house, suffered heat exhaustion requiring medical care from the advanced life support units at the scene. R received intravenous fluid and was placed on a heart monitor. C received oxygen and intravenous therapy. F, defendant's elderly neighbor, had to be carried from her home by a police officer after her home filled with smoke. F's house stood only about four feet from defendant's house. The trial court assigned 0 points for both OV 3 and 9, and sentenced defendant to 5 years' probation plus fines, costs, and $29,408.74 in restitution. Finding Laidler and Albers instructive, the court concluded that nothing in the text of MCL 777.33 indicated a legislative intent to limit the term "victim" to exclude first responders. Also, "neither Laidler nor Albers gave any indication that the term 'victim' should be limited to exclude first responders" - in fact, both cases broadly defined "victim" under OV 3 as "any person" harmed by a defendant's actions. The court concluded that the trial court should have scored 10 points for OV 3. Further, the court held that the statutory language defining "victim" under OV 9 was susceptible to only one interpretation - "'each person who was placed in danger of physical injury or loss of life' by a defendant's actions is a 'victim' under OV 9." Thus, the trial court should have scored 10 points for OV 9 because C, R, and F were each placed in "danger of physical injury or loss of life" due to the fire defendant started. The court also held that the insurer was a victim under the CVRA for restitution purposes, and that the trial court erred in finding that the insurer's costs for "Origin and Cause Investigation," "Lab Analysis," and "Investigation Expenses," should not be included in the restitution amount. The court reversed that portion of the trial court's restitution order and directed the trial court to include these costs at resentencing. However, the court concluded that the prosecution failed to meet its burden to show that the insurer's legal and court reporter fees related to defendant's deposition were investigatory under Allen and Gubachy. These costs appeared connected to the insurer's defense of a civil suit defendant filed against it, presumably after the insurer denied her claim because it had already determined it was fraudulent. The trial court did not clearly err in finding that these costs should be excluded from the restitution award.

 

Issues: Jury instruction; Whether the trial court properly denied the defendants' request to instruct the jury on entering without permission as a lesser included offense of entering with intent to commit larceny; People v. Wilder; MCL 768.32(1); People v. Cornell; People v. Silver; People v. Mendoza; Whether entering without permission is necessarily included in entering with intent to commit larceny; People v. St. Lawrence; Whether the prosecution violated defendant's due process rights when it failed to preserve the tread pattern of the tracks leading away from the site of the alleged crime; People v. Dupree; People v. Carines; Arizona v. Youngblood; People v. Leo; People v. Hanks; Ineffective assistance of counsel; People v. LeBlanc; People v. Odom; People v. Hoag; Strickland v. Washington; People v. Pickens; People v. Fonville; Whether counsel was ineffective for failing to object when the officers opined about defendant's alleged guilt based on defendant's statement to an officer; People v. Row; MRE 701; People v. Mitchell; People v. Matuszak

Court: Michigan Court of Appeals (Published)

Case Name: People v. Heft

e-Journal Number: 53574

Judge(s): Per Curiam – Whitbeck, Fitzgerald, and Beckering

 

The court held that entering without permission is not a necessarily included lesser offense of entering without breaking with the intent to commit larceny. The court also held that defendant did not demonstrate that the prosecution failed to preserve exculpatory evidence, or that defense counsel's alleged errors were objectively unreasonable. Thus, the court affirmed defendant's jury trial convictions of entering without breaking with intent to commit a larceny and conspiracy to commit entering with the intent to commit a larceny. C testified that about 1:30 AM in January, he heard pounding noises that he believed were coming from his home on C Street. His mother called 911 and two police officers responded to the dispatch. Officer W testified that he noticed that two people in the area were running, but began walking, which he considered suspicious. Officers W and M contacted the people, separated them, and took them into patrol vehicles to investigate. W testified that defendant-Heft told him that he was just walking around, and he and codefendant-Kinville had walked from CR Street. W testified that since CR Street was several miles away, it was the early morning, and the temperature was about zero degrees, but Heft was breathing hard and perspiring, he "felt like something was not right." M questioned Kinville and based on his statement and the same facts, he "didn't think he was being truthful." The officers testified that they found tracks in the snow and traced them back to a house next door to C's house. W testified that he compared Heft's boots to snow prints and they were similar. The house's front door was broken. Inside the officers saw fresh snow tracks and a pile of heating registers and a hot water heater was broken off from the pantry. C testified that the house had been empty for months, that he was in the house while it was vacant, and he was able to just walk in. Kinville stated that he went into the house to check on it because his grandfather owned it. Kinville later told the officers that his vehicle was around the corner and the officers discovered a van parked about a block away. Heft had the keys to the van, which contained tools that a person could use to acquire scrap metal. The court held that under the elements applicable to the case, the trial court did not err when if refused to instruct the jury on entering without permission because entering without permission is not a necessarily included lesser offence of entering (without breaking) with the intent to commit a larceny.

 

Issues: Whether MCL 768.27b conflicts with MRE 404(b) and infringes on the Supreme Court's constitutional authority to establish the practice and procedure of the judiciary; People v. Carines; People v. Schultz; People v. Watkins; "Other acts" evidence of defendant's prior domestic assaults against the victim; MRE 403; People v. Mardlin; People v. Yost; People v. Cameron; MRE 401; People v. McGhee; People v. Pattison; People v. Starr; Whether the prosecution presented sufficient evidence to disprove defendant's claim of "self-defense"; People v. Lanzo Constr. Co.; People v. Wolfe; People v. Solmonson; People v. Roper; People v. Riddle; Sentencing; Scoring of OVs 1, 3, and 19; People v. Harris; People v. Hornsby; People v. McDonald; People v. Passage; People v. Endres; People v. Greene; People v. Francisco; People v. Kimble

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Flanagan

e-Journal Number: 53349

Judge(s): Per Curiam - Owens, Talbot, and Wilder

 

The court held, inter alia, as to the defendant's claim that MCL 768.27b conflicts with MRE 404(b) and infringes on the Supreme Court's authority to establish practice and procedure of the judiciary, that it was bound by Schultz and must follow its precedence. As defendant acknowledged, the court has concluded "that MCL 768.27b prevails over MRE 404(b) because it is a substantive rule that does not infringe upon the Supreme Court's constitutional authority to enact administrative rules governing practice and procedure of the judiciary." Further, defendant failed to provide an explanation or reasoned argument as to why Schultz was improperly decided. In analyzing a sister statute, in Watkins, the Supreme Court concluded that "MCL 768.27a is a valid enactment of substantive law to which MRE 404(b) must yield." The defendant's jury trial convictions of felonious assault, domestic assault, and malicious destruction of personal property less than $200 arose from a domestic dispute between defendant and the victim, who was his girlfriend and the mother of his son. In 7/10, he stood in the street and threw a steel brake drum, weighing about 10 pounds, through the front windshield of the victim's car as she drove past him. Prior to trial, the prosecution moved pursuant to MCL 768.27(b) and MRE 404(b) to admit evidence of four previous instances in which defendant allegedly committed domestic assault against the victim. The trial court granted the motion under MCL 768.27b without addressing the evidence's admissibility under MRE 404(b). The court held that defendant failed to establish any plain error in admitting the evidence of the prior domestic assaults. Further, the court held that the other issues defendant raised on appeal had no merit and affirmed.

 

Issues: Sufficiency of evidence to support the defendant's conviction of first-degree retail fraud; People v. Nowack; Aiding and abetting; People v. Kanaan; People v. Wolfe

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Lacy

e-Journal Number: 53407

Judge(s): Per Curiam – Sawyer, Saad, and Meter

 

The court held that there was sufficient evidence to support the defendant's conviction of first-degree retail fraud. During business hours, defendant accompanied B into a store. B had been in the store before and had talked to employee A about buying a two-carat diamond. A testified that he did not think B could afford the 2-carat diamond because it would cost about $15,000, so A showed B a less expensive 1.77-carat diamond. A placed the 1.77-carat diamond and the 2-carat diamond on the shop counter, so B could look at both. B picked up both diamonds in the same hand. Defendant, who was standing behind B, took the 2-carat diamond from B's hand, and moved it behind B's back. Because B was in front of defendant, A temporarily lost sight of the diamond. Defendant then placed a stone back into B's open hand. A testified that he immediately recognized that the stone defendant put in B's hand was not the diamond, and that he thought defendant had switched the diamond with a cubic zirconia stone. A also testified that he saw on the store's security camera footage, which was also shown at trial, that defendant and B "threw everything back" on the counter after they saw A go to lock the store's front door. Defendant then pushed and shoved in an attempt to leave. Two cubic zirconia stones were later found in B's pockets. Defendant argued that B was the sole perpetrator and he did not know about his criminal intent. However, based on A's testimony, a reasonable jury could conclude that defendant executed the swap when he picked up the diamond and deposited a different, synthetic stone in B's hand. If defendant executed the swap, a reasonable jury could conclude that defendant had the intent to permanently deprive the store of the diamond, or to aid in doing the same. A defendant's state of mind "can be inferred from all the evidence presented." Further, although defendant proclaimed his innocence at trial, it is not the court's role to weigh the evidence and make credibility determinations. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's convictions for assault with intent to do great bodily harm less than murder (AWIGBH), assault with intent to commit murder (AWIM), and armed robbery under an aiding and abetting theory; People v. Wolfe; People v. Truong (After Remand); People v. Nowack; People v. Parcha; People v. Hoffman; People v. Izarraras-Placante; People v. Robinson; People v. Carines; People v. Lawton; People v. Williams; People v. Hall; Sentencing; Scoring of OVs 4 and 5; "Plain error"; People v. Kimble; People v. Davenport (After Remand); People v. Endres; People v. Francisco; Court costs; People v. Dotson; MCL 769.1j(a); MCL 769.1k(1)(a); MCL 780.905(1)(a); MCL 769.1k(1)(b)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stinnett

e-Journal Number: 53404

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

The court held, inter alia, that there was sufficient evidence to support the defendant's convictions for AWIGBH, AWIM, and armed robbery under an aiding and abetting theory. Defendant's convictions arose from his participation in the armed robberies and assaults of R and T. The prosecutor's theory was that defendant aided and abetted his codefendants RR, AH, and DH, who were also charged. Of the four men, only defendant did not have a gun. The four waited outside a market for R, whom they knew was a drug dealer, to exit. When he emerged, they approached. T, who was waiting in his truck for R, exited and tried to intervene on R's behalf. AH and DH turned their attention to T and ordered him back into his vehicle, directed him to empty his pockets, and shot him when he failed to comply. AH stole T's keys, and the men fled the scene together. Meanwhile, defendant and RR were attempting to rob R. Defendant actively tried to keep R from leaving the area and ordered him to "run his pockets." Although nothing was taken from R, RR shot him in the abdomen and the leg. Pursuant to plea agreements, AH and DH testified for the prosecution. The defense theory was that defendant was merely present, had no knowledge of an intended robbery, cautioned RR against shooting R, and was unaware of T's presence. Defendant claimed that there was insufficient evidence to support his convictions for AWIGBH against R and AWIM against T. First, there was no dispute that RR attempted to rob R while using a handgun. Second, there was sufficient evidence that defendant assisted RR in the armed robbery attempt. The evidence established that defendant, inter alia, (1) agreed with men to rob R, (2) encouraged the group by urging, "Let's do it," (3) laid in wait with the men, (4) worked in cooperation with them in blocking R from leaving the area, (5) stood close by as RR shot at R's feet to prevent him from leaving, (8) directed RR to "Run his pockets," and (9) joined RR in chasing R as he attempted to escape. Third, the evidence was sufficient to show that defendant knew and intended for the men to commit an armed robbery against R. The evidence established that they waited and openly discussed robbing R. Further, because defendant knew that firearms would be used in some manner in carrying out the robbery, the eventual AWIGBH on R was a natural and probable consequence of the commission of the originally intended robbery offense. The evidence was also sufficient to show that AH and DH committed AWIM by shooting T with handguns in the legs and torso, resulting in life-threatening injuries that would have been fatal without surgical intervention. Defendant argued that because he was unaware of T's presence, he could not have assisted, encouraged, intended, or had knowledge of any crimes against T. Contrary to what defendant argued, under the circumstances, it was not relevant that he did not know T or did not know that T might become a victim of the defendants' intended armed robbery. Viewing the facts in a light most favorable to the prosecution, the court held that an AWIM against someone attempting to intervene on behalf of R was a natural and probable consequence of the commission of the intended offense. Affirmed in part and vacated in part.

 

Employment & Labor Law

 

Issues: Railway Labor Act (RLA); 45 USC §§ 151-153; Union Pac. R.R. Co. v. Sheehan; National Labor Relations Act; 29 USC § 151 et seq.; Reviewability of labor arbitration decisions; Airline Prof'ls Ass'n of Int'l Bhd. of Teamsters, Local Union No. 1224, AFL-CIO v. ABX Air, Inc.; United Steelworkers of Am. v. Warrior & Gulf Navigation Co.; United Steelworkers of Am. v. American Mfg. Co.; United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc.; Major League Baseball Players Ass'n v. Garvey; Michigan Family Res., Inc. v. Service Employees Int'l Union Local 517M; Cement Divs., National Gypsum Co. (Huron) v. United Steelworkers of Am., AFL-CIO-CLC, Local 135; Arbitrator's authority; International Ass'n of Machinists & Aerospace Workers v. Tennessee Valley Auth.; Johnston Boiler Co. v. Local Lodge No. 893, Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO; Goal of labor arbitration; Titan Tire Corp. of Bryan v. United Steelworkers of Am., Local 890L

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Brotherhood of Locomotive Eng'rs & Trainmen v. United Transp. Union

e-Journal Number: 53376

Judge(s): Stranch, Guy, and Daughtrey

 

The court held that the district court properly granted summary judgment for the defendant-United Transportation Union (UTU) and the respondent-employer (Norfolk Southern Railway Company) because the arbitration board acted within its authority. UTU filed a grievance on behalf of two of its members at Norfolk who alleged that they lost their seniority upon promotion from trainmen to engineers. An arbitration board heard the grievance and decided in the employees' favor. Petitioner-Brotherhood of Locomotive Engineers and Trainmen (BLET) sought to vacate the arbitration award but the district court granted summary judgment for UTU and Norfolk. On appeal, the court first held that the arbitration board did not exceed its authority by resolving a dispute not committed to arbitration. The court concluded that having submitted to the board a seniority dispute that required it to interpret several contract provisions, the parties failed to unambiguously limit the board's power to construe them in settling the underlying seniority issue. It held that because the board's view of the issues it must decide was due the same deference as its award on the merits, and because it did not cross any clear line the parties set before it, the board did not exceed its authority when it interpreted the seniority provision in BLET's CBA. Further, the court found the board's award "did not encroach upon BLET's representational province because its interpretation of the grievants' rights under the UTU agreement required consideration of the BLET agreement, and vice versa." The court also held that the board was "arguably construing or applying" the contract in resolving the dispute, and concluded that the board's award "was not so ignorant of or so untethered from the engineer seniority rule at issue 'as to make implausible any contention that the arbitrator was construing the contract.'" It concluded that the board offered an interpretation that construed an ambiguity it perceived in BLET's contractual provisions in light of the parties' practices and language in both unions' agreements. It noted that it was not the appellate court's job to determine whether the board's reading was the best reading, and it was not required to resolve whether it would offer the same interpretation if it were to decide the dispute in the first instance. In this case, the court said, it was confident that the board's interpretation "was built of the raw materials it considered." Finally, the court allowed the board's award to stand "to give effect to the Congressional policy of respecting arbitration of collective bargaining disputes, both generally and as specifically articulated in the RLA." It found that the parties bargained for "the 'arbitrator's construction,' not three layers of federal judicial review," and deferred to "that delegation of decision-making authority." Affirmed.

 

Insurance

 

Issues: Priority dispute among insurers as to PIP benefits; The dispute turned on where the injured person (E) was "domiciled"; Goldstein v. Progressive Cas. Ins. Co.; Dairyland Ins. Co. v. Auto-Owners Ins. Co.; MCL 500.3114(1); MCL 500.3115(1)(a); Whether E was domiciled in her mother's (S) household at the time of the accident; Fowler v. Auto Club Ins. Ass'n; Workman v. DAIIE; Whether the theory that "every person has a domicile" was applicable here; Beecher v. Common Council of Detroit; People v. Dowdy; Whether the relevant factors supported a conclusion that E was domiciled with her mother; Dobson v. Maki

Court: Michigan Court of Appeals (Unpublished)

Case Name: Auto Club Ins. Ass'n v. Frankenmuth Mut. Ins. Co.

e-Journal Number: 53348

Judge(s): Per Curiam - Murphy, O'Connell, and Whitbeck

 

The court held that in this priority case, as in Dobson, although a number of factors weighed against a finding that E was domiciled in (her mother) S's household at the time of the accident, the trial court did not err in finding that she was domiciled in S's household. The record indicated that, although E moved around quite often and did not intend to live indefinitely at her mother's house, the home remained the one constant in her young troubled life and the place to which she repeatedly returned. The case presented "a very close call" and after weighing the competing factors, the court affirmed the trial court's ruling. Thus, plaintiff-ACIA was entitled to summary disposition in this priority dispute. On 10/15/09, an automobile struck and seriously injured E as she attempted to walk across a highway. ACIA insured the driver of the vehicle that struck E and paid no-fault PIP benefits to and behalf of E. ACIA later learned that defendant-Frankenmuth insured a vehicle owned by E's mother at the time of the accident. ACIA sued Frankenmuth seeking reimbursement for its PIP payments under the theory that E was "domiciled in the same household" as S and thus, Frankenmuth had statutory priority over ACIA as to the payment of PIP benefits pursuant to MCL 500.3114(1) and 3115(1). The parties did not dispute the pertinent facts and each moved for summary disposition under MCR 2.116(C)(10). After a hearing, the trial court held, as a matter of law, that E was domiciled in S's household when the accident occurred thus, Frankenmuth was the highest priority insurer and was obligated to pay the PIP benefits. The trial court granted summary disposition for ACIA. The court found it unnecessary to analyze the principle espoused in Dowdy and Beecher that "every person has a domicile," and held that ACIA was entitled to summary disposition even without accepting the principle as to domicile, concluding that the only possible domicile was S's home. The court found that some of the factors in the case supported a conclusion that E was domiciled with S, while other factors supported the opposite conclusion. E testified that she always considered the room in her mother's house to be "her room." She also believed she had a room in her mother's house at the time of the accident. She also testified that S's house was the only place that she ever considered to be her home and that she viewed her lodging in motels with friends as merely temporary places of abode. Affirmed.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Trip and fall; The "highway exception" to governmental immunity; MCL 691.1402(1); Nawrocki v. Macomb Cnty. Rd. Comm'n; Scope of the phrase "improved portion of the highway designed for vehicular travel"; Grimes v. Department of Transp.; Effect of the fact nothing precluded drivers from using the "parallel parking lanes" as a thoroughfare; MCL 257.637(1)(a) & (b); Whether the defendant-DOT had no duty to repair or maintain areas outside the minimum lane width required under federal standards

Court: Michigan Court of Appeals (Published)

Case Name: Yono v. Department of Transp.

e-Journal Number: 53577

Judge(s): M.J. Kelly and Beckering; Dissent – Talbot

 

Concluding that the undisputed evidence about the actual physical features of the improvement at issue - the area on M-22 designated for parallel parking - showed that the parking lanes were designed for vehicular travel, the court held that defendant-DOT had a duty to maintain that portion of the highway in reasonable repair under the highway exception to governmental immunity. Thus, the court affirmed the trial court's order denying DOT's summary disposition motion. The plaintiff parked in a parallel parking spot along M-22 across the street from a business she wished to patronize. She went to the business, discovered that it was closed, and crossed back to her car. As she was nearing the sidewalk next to her car, she stepped into a depression, rolled her ankle, and fell. She suffered a broken ankle and other injuries. On appeal, DOT argued that the parallel parking lanes were not designed for vehicular travel. The DOT contended "that parking lanes are necessarily not travel lanes because vehicles do not use those lanes as a thoroughfare." However, the court noted that "the Legislature did not limit the duty to maintain and repair highways under the highway exception to a particular type of travel lane, such as a thoroughfare" - it "imposed a duty to repair and maintain any part of the highway that was specifically designed for vehicular travel." While the Supreme Court in Grimes "refused to give the term 'travel' its broadest possible definition, it also did not narrow it to exclude specialized, dual-purpose, or limited access travel lanes." The court noted that under the DOT's preferred definition, "it would have no duty to repair or maintain a variety of highway improvements that were plainly designed for vehicular travel, but nevertheless not part of that portion of the highway commonly used as the thoroughfare. . . ." The court could not give MCL 691.1402(1) "a contrived meaning that contravenes its plain and ordinary sense." The highway here, including the portion designated for parallel parking, was a contiguous whole - the portion where parallel parking was permitted was not physically separated from the center of the highway by a median, driveway, or other barrier. "Absent the painted markings, the area for parallel parking would be indistinguishable from the remainder of the highway." The lanes designated for parking were designed both to allow vehicles to merge from the center lanes to the parking lanes and from the parking lanes to the center lanes. M-22, at the site of plaintiff's fall, was "an extra wide two-lane or, alternatively, four-lane thoroughfare that contains paint markings in that portion of the highway closest to the curb to facilitate the orderly parking of vehicles." The court concluded that the fact a driver may legally park in this portion of the highway, and obstruct its use as a thoroughfare, did not alter its character - "it is still plainly designed for regular, if limited, vehicular travel." The court distinguished this area from the shoulder at issue in Grimes. The parallel parking areas here were "integrated into the highway's main travel lanes and were designed for regular vehicular travel in a variety of contexts." They also plainly served a dual purpose - it was legal to park in the lanes and legal to use them for travel beyond accessing them for parking. However, a highway shoulder is not designed for regular or continuous travel and it is illegal to use it for those purposes.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Trip and fall; The "highway exception" to governmental immunity; MCL 691.1402(1); Nawrocki v. Macomb Cnty. Rd. Comm'n; Scope of the phrase "improved portion of the highway designed for vehicular travel"; Grimes v. Department of Transp.; Effect of the fact nothing precluded drivers from using the "parallel parking lanes" as a thoroughfare; MCL 257.637(1)(a) & (b); Whether the defendant-DOT had no duty to repair or maintain areas outside the minimum lane width required under federal standards

Court: Michigan Court of Appeals (Published)

Case Name: Yono v. Department of Transp.

e-Journal Number: 53577

Judge(s): M.J. Kelly and Beckering; Dissent – Talbot

 

Concluding that the undisputed evidence about the actual physical features of the improvement at issue - the area on M-22 designated for parallel parking - showed that the parking lanes were designed for vehicular travel, the court held that defendant-DOT had a duty to maintain that portion of the highway in reasonable repair under the highway exception to governmental immunity. Thus, the court affirmed the trial court's order denying DOT's summary disposition motion. The plaintiff parked in a parallel parking spot along M-22 across the street from a business she wished to patronize. She went to the business, discovered that it was closed, and crossed back to her car. As she was nearing the sidewalk next to her car, she stepped into a depression, rolled her ankle, and fell. She suffered a broken ankle and other injuries. On appeal, DOT argued that the parallel parking lanes were not designed for vehicular travel. The DOT contended "that parking lanes are necessarily not travel lanes because vehicles do not use those lanes as a thoroughfare." However, the court noted that "the Legislature did not limit the duty to maintain and repair highways under the highway exception to a particular type of travel lane, such as a thoroughfare" - it "imposed a duty to repair and maintain any part of the highway that was specifically designed for vehicular travel." While the Supreme Court in Grimes "refused to give the term 'travel' its broadest possible definition, it also did not narrow it to exclude specialized, dual-purpose, or limited access travel lanes." The court noted that under the DOT's preferred definition, "it would have no duty to repair or maintain a variety of highway improvements that were plainly designed for vehicular travel, but nevertheless not part of that portion of the highway commonly used as the thoroughfare. . . ." The court could not give MCL 691.1402(1) "a contrived meaning that contravenes its plain and ordinary sense." The highway here, including the portion designated for parallel parking, was a contiguous whole - the portion where parallel parking was permitted was not physically separated from the center of the highway by a median, driveway, or other barrier. "Absent the painted markings, the area for parallel parking would be indistinguishable from the remainder of the highway." The lanes designated for parking were designed both to allow vehicles to merge from the center lanes to the parking lanes and from the parking lanes to the center lanes. M-22, at the site of plaintiff's fall, was "an extra wide two-lane or, alternatively, four-lane thoroughfare that contains paint markings in that portion of the highway closest to the curb to facilitate the orderly parking of vehicles." The court concluded that the fact a driver may legally park in this portion of the highway, and obstruct its use as a thoroughfare, did not alter its character - "it is still plainly designed for regular, if limited, vehicular travel." The court distinguished this area from the shoulder at issue in Grimes. The parallel parking areas here were "integrated into the highway's main travel lanes and were designed for regular vehicular travel in a variety of contexts." They also plainly served a dual purpose - it was legal to park in the lanes and legal to use them for travel beyond accessing them for parking. However, a highway shoulder is not designed for regular or continuous travel and it is illegal to use it for those purposes.

 

Open Meetings Act

 

This summary also appears under Attorneys

 

Issues: Attorney fee dispute where the plaintiff appealed the trial court's order denying his request for actual attorney fees under the Open Meetings Act (OMA)(MCL 15.261 et seq.) and granting him an alternative amount determined reasonable by the trial court; Limitations on the recovery of "actual " attorney fees; MCL 15.271(4); Statutory analysis; Omdahl v. West Iron Cnty. Bd. of Educ.; Driver v. Naini; People v. Yamat; Manning v. East Lansing; MRPC 1.5(a); MCL 600.904; Evans & Luptak, PLC v. Lizza; Smith v. Khouri; Morris & Doherty, PC v. Lockwood; Whether the trial court should have held an evidentiary hearing as to the claimed attorney fees; Taylor v. Currie; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; The eight factors in MRPC 1.5(a); Herald Co. v. Tax Tribunal; Michigan Farm Bureau v. Department of Envtl. Quality; Whether plaintiff's attorney was required by MCR 2.114(D)(2) to research election law; Van Elslander v. Thomas Sebold & Assoc., Inc.; Burden of proving the amount of fees requested; Tinnin v. Farmers Ins. Exch.

Court: Michigan Court of Appeals (Published)

Case Name: Speicher v. Columbia Twp. Bd. of Election Comm'rs

e-Journal Number: 53576

Judge(s): Per Curiam – Hoekstra, Borrello, and Boonstra

 

The court held, inter alia, that the prohibition of illegal or clearly excessive attorney fees under MRPC 1.5(a) applied to and limits the "actual attorney fees" a party is entitled to under MCL 15.271(4). The court remanded for an evidentiary hearing to determine the appropriate amount of attorney fees and to allow plaintiff to present evidence in support of his claim that the requested fees are not excessive. The burden of proving the fees rests upon the claimant of those fees. Thus, on remand plaintiff has the burden of establishing that his requested fees are not clearly excessive. The court also held that attorney fees awarded under MCL 15.271(4) are limited to fees related to the OMA case. The court remanded for an evidentiary hearing to clarify the exact number of hours allocated to the OMA case because plaintiff's billing statement was ambiguous in that regard. The case arose from plaintiff's successful allegation of OMA violations against the defendant. The trial court granted plaintiff summary disposition, finding that defendant twice violated the OMA. The trial court denied plaintiff's request for injunctive relief but granted his request for actual attorney fees and costs based on MCL 15.271(4). Plaintiff filed a motion requesting fees and costs totaling $32,484.25. Defendant responded arguing that the requested amount of fees was "clearly excessive." The trial court heard arguments, took the matter under advisement, and issued a written opinion, holding that a litigant is entitled to actual attorney fees only if the litigant is successful and the fees are for the action commenced. The trial court also held that the plaintiff was successful, but that some of the fees claimed were not for the OMA case. Thus, plaintiff could only recover those fees. The trial court also held that the requested fees were "clearly excessive" in violation of the MRPC and plaintiff was entitled to recover only $7,500 in attorney fees. The court held that plaintiff should have had the opportunity to defend the amount of fees requested. The record showed that neither party presented evidence as to the eight factors in MRPC 1.5(a). Thus, the court remanded so that trial court can hold an evidentiary hearing and make specific factual findings to support its conclusion as to the amount to be awarded and explain whether and why any greater attorney fee award would be clearly excessive. The court affirmed in part, reversed in part, and remanded.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (i); In re Trejo Minors; In re Hudson; In re Utrera; The best interests of the child

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ayers

e-Journal Number: 53395

Judge(s): Per Curiam – Sawyer, Saad, and Meter

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. The trial court also did not clearly err in determining that termination was in the child's best interests. Respondent has a long history of substance abuse, and this child was born addicted to the prescription medication Suboxone, the withdrawals from which required extensive hospitalization. The trial court also cited respondent's criminal history, which will keep her incarcerated until at least 4/13. Also, her two older children were removed from her custody and her rights to her older daughter were terminated. Respondent argued that the child was born addicted to Suboxone because her obstetrician prescribed the drug. While this may be true, respondent failed to report her prescription for the drug to petitioner-DHS and admittedly obtained the drug illegally on at least one occasion. Further, the trial court's finding was based on much more than the Suboxone prescription. The trial court cited respondent's recidivist criminal history, her consistent association with substance abusers and criminals, and her failure to complete any previous substance abuse treatment during her 10-year history with DHS. She testified that she wanted to achieve sobriety to retain her parental rights to the child. However, she failed to do so in the case of her other children. The trial court had ample basis to terminate respondent's rights even absent the Suboxone issue. Evidence showed that she rarely visited the child. DHS provided respondent with bus passes and coordinated visitation times around her schedule. She offered a variety of vague excuses for her failure to visit. These excuses were unsubstantiated and contradicted respondent's assertion that she would do anything to retain her parental rights to the child. Further, her earliest possible release date from prison would occur when the child is nearly two years old. Considering the child's age and respondent's history as a parent, the trial court did not clearly err in finding statutory grounds for termination under § 19b(3)(g). Affirmed.

 

Issues: Termination under §§ 19b(3)(g), (h), (j), and (n)(ii); The children's best interests; In re Trejo Minors; In re BZ; MCL 712A.19b(5); In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Duncan

e-Journal Number: 53392

Judge(s): Per Curiam – Fitzgerald, Murray, and Gleicher

 

On remand from the Supreme Court as to whether termination of the respondent-father's parental rights was in the best interests of the four minor children, the court held that it found no error in the trial court's assessment of the children's best interests under MCL 712A.19b(5). Further, the evidence of his current inability to provide for the children, the uncertainty of his future, and the children's need for stability and permanency, established that termination of respondent's parental rights was in the children's best interests and supported the trial court's termination decision. Respondent asserted that termination of his parental rights was not in the children's best interests. He maintained that he and his children had bonded and that they know and love him. Respondent emphasized his regular contact with the children through letters and telephone calls. He contended that his poor life choices alone did not cause the children to become temporary wards and that the trial court erred in assuming that he will continue to make poor choices. He contended that he has family support and that he was participating in services and with the case plan to regain custody of his children. The trial court considered the children's bond with respondent. Only the eldest had any relationship with respondent. Another child was only 2 years old when respondent was arrested, and another child was an infant. Neither child had seen respondent for two years. A fourth child was born while respondent was in prison and had never met him. Respondent never participated in "hands-on parenting" and did not have any "day-today hand in bringing up these children." Although respondent had maintained contact with them through letters and telephone calls, no evidence suggested that they had developed a strong bond to him. The trial court found that respondent was unable to parent the children. Because he is in prison, respondent cannot nurture the children. He is unable to provide a home or financial assistance. He had taken no steps to establish a guardianship for them with their grandmother. Also, the trial court expressed concern that a guardianship would not ensure that the children's financial needs would be met. The trial court's concern for the children's need for permanency, stability, and finality also militated in favor of termination. At the time of the termination hearing, respondent was at least four years from being able to parent the children. Even if he were to be released on the earliest possible date in 7/14, which the court found unlikely in light of respondent's serious misconduct while in prison, he admitted that he would need a year to become ready to assume custody of the children. The court recognized the possibility that respondent might never be able to parent the children if he serves his maximum sentence. They will have reached the age of majority by then. Even the best-case scenario for respondent's release from prison "is not within a reasonable time," and, given the ages of the children, "is just too long for them to reasonably expect to wait." Affirmed.

 

Issues: Termination under §§ 19b(3)(b)(ii), (g), (i), (j), and (l); In re Olive/Metts; In re Fried; In re LE; Hunter v. Hunter; In re Trejo Minors; In re JK; Whether since the trial court placed the child with his father he was no longer in danger of harm; McCormick v. Carrier; The child's best interests; In re Jones

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ludwig

e-Journal Number: 53424

Judge(s): Per Curiam – Sawyer, Saad, and Meter

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. The trial court also did not clearly err in determining that termination was in the child's best interests. Pursuant to § (3)(g), respondent did not provide proper care and custody for the child. She allowed the year-and-a-half year old child to live in a home that had animal urine and feces covering the floor. The house was so cluttered that there was only a narrow path to navigate through the house. Respondent left medicine and cleaning products within the child's reach. Also, the animals in the home were diseased and they had to be removed and euthanized. Respondent did not bathe the child regularly and he contracted scabies. Evidence also established that she did not properly treat the child's diaper rash and it developed into a yeast infection. Further, there was no reasonable expectation that respondent would be able to provide proper care and custody for the child in the future given the child's age. She argued that, if the petitioner-DHS provided her with rehabilitation services, she could properly care for the child. However, respondent has had many chances to correct her behavior. The DHS provided her with time to clean up the house, yet she failed to do so. Further, respondent has a long history of providing her children with improper housing. She has been offered rehabilitation services on at least two previous occasions. The services and previous terminations of her rights to four other children have had no effect on her behavior. Respondent did not accept responsibility for failing to take proper care of her children. She denied that the house needed cleaning, or that it was her responsibility to clean. Disturbingly, she also denied the existence of her previous children and termination of her rights to those children. This did not bode well for the future. Also, pursuant to MCL 712A.18f(1)(b), the DHS was not required to provide respondent with services because it sought termination in the initial petition. Affirmed.

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Rood; In re BZ; In re Williams; In re Mason; In re La Flure

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re May

e-Journal Number: 53327

Judge(s): Per Curiam - Sawyer, Saad, and Meter

 

The court held that the trial court properly terminated the parental rights of the respondent-mother to her minor children where the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. Her involvement with petitioner-CPS began in 2001 with a substantiated complaint that she left her oldest daughter, then a newborn, in the care of the maternal grandmother, who had a long history of abuse and neglect. The children remained in the mother's care, and petitioner provided services to the family. In 2007, CPS again provided services after substantiating complaints that respondent's oldest daughter was molested by her maternal aunt and that respondent was addicted to prescription drugs, lacked suitable housing, and she was physically abusing the children. In 2008, she received additional services from CPS because her third child, who was not at issue in the appeal, tested positive for THC shortly after birth. Before this case, the mother was provided with counseling, parenting education, and anger management along with intensive home services to address issues of parenting education and substance abuse treatment. The conditions that led to the children's removal in 1/10 were her alleged continued substance abuse and neglect, and her failure to protect the children from harm. In 12/10, her oldest daughter told her that a family friend had touched her breast and vagina. Initially, respondent did not believe the child. However, after further discussions with the child, respondent filed a police report. She reportedly tried to get the alleged molester high on marijuana so that she could enact her vengeance upon him. Respondent admitted using marijuana while in the children's presence. She did not comply with her PAA and continued to abuse drugs and the conditions that led to the children's removal continued to exist. She had ongoing struggles with substance abuse, unemployment, and inadequate housing through the duration of the case. The caseworker had at least 10 conversations with respondent abut the importance of complying with the court orders and completing drug treatment. However, she was never able to get her life together to properly parent her children and did not address her substance abuse issues. A psychologist and qualified expert in child abuse and neglect opined that respondent was incapable of parenting the children and incapable of completing a reunification program within a reasonable length of time. She also opined that respondent lacked minimal parental insight and it was not in the best interests of the children to wait any longer for permanency. It was in the children's best interests to terminate respondent's parental rights rather than continue long-term foster care with respondent having access to the children. The trial court did not clearly err in concluding that respondent, without regard to intent, was unable to permanently provide the children with a stable and safe living environment and that returning them to her would likely be harmful to their well being. Affirmed.

 

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