• Constitutional Law (1)
• Contracts (2)
• Criminal Law (7)
• Employment & Labor Law (2)
• Family Law (1)
• Healthcare Law (1)
• Litigation (1)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Probate (1)
• Real Property (2)
• Termination of Parental Rights (2)
• Wills & Trusts (1)

Constitutional Law

 

This summary also appears under Municipal

 

Issues: Whether the defendant-county's policies of automatically detaining domestic-assault defendants for 12 hours and using a bond schedule to determine their bail violated the U.S. Constitution; 42 USC § 1983; Local government liability; Bruederle v. Louisville Metro Gov't; "Excessive bail"; U.S. Const. amend. VIII; United States v. Salerno; Carlson v. Landon; United States v. Bajakajian; Bond schedule; Pugh v. Rainwater (5th Cir.); Stack v. Boyle; Glenn v. City of Columbus (Unpub. 5th Cir.); Terrell v. City of El Paso (WD TX); Bail amount as related to offense; Wagenmann v. Adams (1st Cir.); United States v. Beaman; United States v. Leisure (8th Cir.); "Particularized examination"; Galen v. County of Los Angeles (9th Cir.); United States v. Giangrosso (7th Cir.); Whether there is a constitutional right to "speedy bail"; Collins v. Ainsworth (5th Cir.); Woods v. City of MI City (7th Cir.); Procedural due process; U.S. Const. amend. XIV; Women's Med. Prof'l Corp. v. Baird; Creation of liberty interests; Kentucky Dep't of Corr. v. Thompson; Hewitt v. Helms; Gibson v. McMurray; Sandin v. Conner; Sweeton v. Brown; Procopio v. Johnson (7th Cir.); Shango v. Jurich (7th Cir.); Expectation of release; Greenholtz v. Inmates of the NE Penal & Corr. Complex; Wolff v. McDonnell

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Fields v. Henry Cnty., TN

e-Journal Number: 53428

Judge(s): Thapar, Cole, and Kethledge

 

The court held that the district court properly found that the defendant-county's policies of automatically detaining domestic-assault defendants for 12 hours and using a bond schedule to determine their bail was not unconstitutional. Plaintiff was arrested for domestic assault and not allowed to post bail because of defendant's policy of placing a 12-hour hold on all persons arrested for domestic violence regardless of the individual circumstances. Plaintiff later sued defendant, claiming violations of his Eighth and Fourteenth Amendment rights. The district court granted summary judgment for defendant. On appeal, the court rejected plaintiff's argument that defendant violated his Eighth Amendment right to be free from excessive bail. First, it held that defendant's use of a bond schedule to set his bail did not violate his right to be free from excessive bail, noting that there is nothing inherently wrong with bond schedules, and that nothing in the Eighth Amendment requires a particular type of "process" or examination as claimed by plaintiff. Next, it held that defendant's denial of bond for 12 hours did not violate his right to bail, noting that there is no constitutional right to speedy bail. The court also rejected plaintiff's argument that defendant's policy denied him due process. It held that plaintiff could only claim a procedural due process violation if state law created a liberty interest that warrants protection under the Due Process Clause, which was not the case here. Affirmed.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Foreclosure; Whether the trial court correctly determined that the signatures at issue were not forged; Witness credibility assessments; Shann v. Shann; "Weight" given to expert testimony; Krohn v. Sedgwick James of MI, Inc.; Whether the issue was "moot" in light of the redemption and subsequent discharge of the mortgage; Kieta v. Thomas M. Cooley Law Sch.; Claim that plaintiff should have filed a lis pendens to stay the proceedings instead of paying off the mortgage; Ligon v. City of Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Berry v. Myslinski

e-Journal Number: 53440

Judge(s): Per Curiam – Saad, K.F. Kelly, and M.J. Kelly

 

Concluding that the trial court did not clearly err in finding that the plaintiff's witnesses were either not credible or their conclusions were not supported by the evidence, the court upheld the trial court's ruling that the signatures at issue were not forgeries and that the defendant had the right to foreclose on the property. The case arose from alleged mortgages between Nassab Berry and defendant as to a commercial property. Berry is now a protected person and the plaintiff was her conservator. Berry testified that she did not authorize the loans or sign the mortgages. However, on cross-examination, she stated that she had met with defendant but could not remember what the meeting was about. Further, as the trial court pointed out, Berry has suffered from dementia and related memory problems since 2003. Thus, the trial court properly concluded that her testimony was not believable. Berry's sons, Lawrence and Fred (the plaintiff), both testified that the signatures on the mortgages were not their mother's signature. However, there was no indication that they were actually present at any of the signings. Thus, it was not clearly erroneous for the trial court to find their testimony unreliable. Finally, while plaintiff's handwriting expert, K, testified with a high degree of certainty that Berry did not sign the mortgages, "'[t]he [trier of fact] determines the weight given to expert testimony.'" The trial court stated that K's testimony was not reliable because the facts did not support the conclusion that K reached. Further, the trial court reasoned that K had a financial bias because plaintiff was paying him to testify. The court noted that it is not its role to determine the weight of an expert's testimony or judge the witnesses' credibility. The court also held that the trial court did not clearly err in finding that defendant and the notary, M, were credible witnesses. Defendant testified that Berry was present at the two closings. M testified that he actually witnessed Berry sign the 2005 mortgage. The trial court specifically stated that it believed both defendant's and M's testimony. The trial court acknowledged that it considered M's potential bias - M worked with defendant and rented a home from her. However, the trial court did not think that M had enough of a motive to lie for defendant. The court did not have a definite and firm conviction that a mistake was made. Affirmed.

 

This summary also appears under Employment & Labor Law

 

Issues: Claim alleging wrongful termination; Whether the trial court properly granted the defendant-employer (Botsford Hospital) summary disposition under MCR 2.116(C)(7); Timko v. Oakwood Custom Coating, Inc.; Rory v. Continental Ins. Co.; Whether the limitations period at issue should not be enforced due to the language in the "certification" and the "employment offer-letter"; Rasheed v. Chrysler Corp.; Contract interpretation; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Whether the certification plaintiff signed was superseded by the language of the employment offer-letter

Court: Michigan Court of Appeals (Unpublished)

Case Name: Griffin v. Botsford Hosp.

e-Journal Number: 53384

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

 

The court held that the trial court properly granted the defendant-employer summary disposition because the documents at issue (the "certification" and the "employment offer letter") were unambiguous and clearly supported the trial court's rulings that (1) a shortened limitations period contained in a contract must generally be enforced as written, (2) the certification clearly stated that it was a binding contract between the parties even though it also stated that it was not a contract for employment or benefits, and (3) the employment-offer letter merely stated that it superseded other "discussions," not prior contracts. Thus, the court held that the trial court properly enforced the contractual 180-day limitations period and dismissed the lawsuit. In 11/06, plaintiff applied for employment with defendant by filling out an online form, which she ratified by typing her name on the form. Defendant hired her and she started work on 1/29/07. Defendant discharged her on 8/5/09 and she sued on 12/20/10, missing the 180-day limitations period in the certification by over 10 months. Defendant filed a motion for summary disposition based on the limitation period. The trial court granted the motion. Plaintiff argued that the 180-day limitations period should not apply because the certification contained the following sentence - "I also understand that nothing in this application may be construed as a contract between the Botsford Health Care Continuum or its affiliates and myself, for either employment or the provision of any benefits." She also asserted that the certification was superseded by the later employment offer letter which stated - "This letter contains the entire offer to you and supersedes any other discussions you may have had with us. If you believe that there were any other promises made to you that are not outlined in this letter please advise [defendant's Human Resources Coordinator], in writing, prior to signing this letter." The court concluded that the certification clearly and unambiguously set forth a 180-day limitations period and the trial court correctly noted that the certification "clearly states that the Employment Application was a binding contract between" the parties "whereby she would be considered for employment in exchange for the terms contained in the agreement including the shortened limitations period for civil rights claims." The certification was not ambiguous and must be enforced as written. Contrary to plaintiff's implication, the employment offer letter did not purport to supersede any prior contracts, such as the pre-employment contract setting out the 180-day limitations period. It referred to the superseding of "other discussions." The signed certification was more than a "discussion." The words used in the employment-offer letter were clear and the court had to enforce them as written. "The employment-offer letter, by its unambiguous terms, did not negate the earlier pre-employment contract." Affirmed.

 

Criminal Law

 

Issues: Habeas corpus; Anti-Terrorism & Effective Death Penalty Act (AEDPA); 28 USC § 2254; Barker v. Yukins; Williams v. Taylor; Lancaster v. Adams; "Extraneous influences" on the jury; Smith v. Phillips; Remmer v. United States; "Burden of proof" in "juror bias" matters; Phillips v. Bradshaw; United States v. Zelinka

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Middlebrook v. Napel

e-Journal Number: 53397

Judge(s): Donald, Batchelder, and Keith

 

The court held that the district court properly denied petitioner's habeas corpus petition. Petitioner was convicted of assault with intent to murder, felony-firearm, and UDAA. The Michigan Court of Appeals and Michigan Supreme Court denied his application for leave to appeal, and the district court denied his petition for a writ of habeas corpus. On appeal, the court rejected petitioner's argument that his Sixth Amendment and Fourteenth Amendment rights were violated because the jurors were exposed to extraneous influences. It found that, based upon the applicable federal law, it was clear that the trial court conducted the necessary inquiry into the allegation of extraneous influences on the jury. Further, it held that this conclusion was in accordance with the holding of the Michigan Court of Appeals. Thus, the court concluded that the state court's conclusion was not contrary to or an unreasonable application of federal law. The court also rejected petitioner's alternative argument that the alleged inappropriate jury discussions should be characterized as "prejudicial premature deliberations" that violated his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process. The court concluded that his argument lacked merit. The court held that, as provided by AEDPA, clearly established law pertains only to Supreme Court cases. It concluded that the Supreme Court has not entertained a case involving premature deliberations, and this was not a case where the state court unreasonably refused to extend a legal principle to a new context in which it should apply. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of DWLS under a city ordinance comparable to MCL 257.904(1); Whether defendant was notified of his suspension as required by MCL 257.212; People v. Reese; People v. Lanzo Constr. Co.; People v. Droog; Elements of DWLS; People v. Nunley; People v. Nowack; People v. Petrella; People v. Tombs; People v. Harms (Unpub.); Double jeopardy; People v. Watson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People of the City of Dearborn v. Hammoud

e-Journal Number: 53381

Judge(s): Per Curiam - Jansen, Borrello, and Beckering

 

The court held that the trial evidence viewed in a light most favorable to the prosecution was insufficient for the trier of fact to find that the elements of DWLS were proven beyond a reasonable doubt. The prosecution failed to submit sufficient evidence "that the defendant was notified of the revocation or suspension as provided in MCL 257.212." The officer testified that defendant admitted to him that his license was suspended, which showed that he had actual knowledge his license was suspended. However, this did not satisfy the notice element because there was no evidence that he received notice by either personal delivery or first-class U.S. mail as required by the relevant statute. A police officer pulled defendant over for failing to signal a right turn. The officer testified that when he asked defendant for his ID, defendant said that his license was suspended at the time of the stop. The elements of DWLS required the prosecution to prove "(1) that the defendant's license was revoked or suspended," (2) that he was notified of the revocation or suspension as provided in MCL 257.212, and (3) "defendant operated a motor vehicle on a public highway while his or her license was revoked or suspended," as noted in Nunley. Thus, defendant's conviction was reversed and remanded for a judgment of acquittal.

 

Issues: Sufficiency of the evidence to support the defendant's convictions of second-degree fleeing and eluding and resisting and obstructing a police officer; People v. Meissner; People v. Johnson, People v. Davis; People v. Bulmer; People v. Corr; People v. Nichols; "Obstruct" defined; Sentencing; Whether the trial court stated any "substantial and compelling" justification for its departure from the sentencing guidelines and relied on objective and verifiable factors; People v. Babcock; People v. Horn; People v. Smith; Whether defendant's life sentence was proportionate to the seriousness of the circumstances surrounding the offense and the offender; Whether the trial court gave any explanation for the extent of the departure; Whether the trial court abused its discretion when it allowed impeachment with two prior convictions of receiving and concealing stolen property; People v. Meshell; MRE 609(a), (b), and (c); People v. Allen; MRE 609(a)(2)(A) and (B); People v. Thompson; Prosecutorial misconduct; People v. Callon; "Plain error"; People v. Carines; People v. Haywood; People v. Wallen; People v. Dobek; Ineffective assistance of counsel; People v. Unger; People v. Frazier; People v. Rodgers; People v. Toma; People v. Bahoda; Motion to dismiss based on a speedy-trial violation; People v. Waclawski; U.S. Const., Am. VI; Const. 1963, art. 1, § 20; People v. Patton; People v. Rosengren; People v. Williams; People v. Walker

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Alexander

e-Journal Number: 53486

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

 

The court held, inter alia, that there was sufficient evidence to support the defendant's convictions of second-degree fleeing and eluding, and resisting and obstructing a police officer. Defendant contended that there was insufficient evidence to establish the requisite element of "identification" to convict him of fleeing and eluding. The jury was presented with two opposing theories and chose to believe the prosecution's theory, presented through the testimony of the officer. Although there were discrepancies in the officer's description of defendant's clothing, these were matters for the jury to resolve. The jury found the police officer's identification of defendant credible, and the court will not interfere with the jury's role of determining the credibility of the witnesses. Defendant also contended that there was insufficient evidence to prove the essential elements of the crime of resisting and obstructing because the evidence did not establish beyond a reasonable doubt that he resisted or obstructed the officer. The officer testified that he was dressed in his police uniform, driving a marked police vehicle, and activated his lights. When the targeted vehicle sped up, the officer activated his siren, and the vehicle sped up even more. Then, the vehicle slowed a bit and the passenger jumped out. It slowed a bit more and the driver jumped out while the vehicle was still running, and the vehicle crashed into a parked vehicle. The officer chased the driver, lost sight of him for a few seconds as he turned a corner, and then found defendant hiding behind some bushes. The jury determines the credibility of each witness and what weight to give the testimony, and the reviewing court should not disrupt that role. Viewed in the light most favorable to the prosecutor, the officer's testimony was sufficient to create a reasonable inference that defendant had "reasonable cause to believe" that the person chasing him was an officer performing an investigation and that defendant hindered him. Thus, all the essential elements of the crime were proven beyond a reasonable doubt. Affirmed.

 

Issues: Failure to instruct the jury consistent with CJI2d 7.16(3) (which reflects the "no duty to retreat" language in the Self-Defense Act) (MCL 780.971 et seq.); Ineffective assistance of counsel for failure to request the omitted instruction; "Waiver"; People v. Carter; People v. Ginther; People v. Effinger; People v. Armstrong; People v. Riddle; People v. Perkins; People v. Snider; Whether the absence of CJI2d 7.16(3) violated defendant's constitutional right to present a defense; "Plain error"; People v. Carines; People v. Adamski; People v. Hayes

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hilton

e-Journal Number: 53479

Judge(s): Per Curiam – Jansen, Sawyer, and Fort Hood

 

The court held, inter alia, that the trial court did not err by omitting CJI2d 7.16(3) and defense counsel could not be deemed ineffective for failing "to advocate a meritless position." Defendant's convictions arose from an altercation in which 16-year old W and 20-year old H were both shot while at an apartment complex's pool area on 7/5/10. The prosecution's theory was that defendant became involved in an altercation with an unidentified man referred to as "Pep" and, because defendant was losing the fight, he pulled out a semi-automatic handgun and fired multiple shots, injuring W and H. The defense conceded that defendant fired the shots, but claimed that he fired his weapon in self-defense. The defense argued that defendant was unable to retreat because his foot was caught and Pep's associates were standing at the gate. Defendant argued that the trial court erred by failing to instruct the jury consistent with CJI2d 7.16(3), and that defense counsel was ineffective for failing to request the omitted instruction. Defendant acknowledged he did not request a "no duty to retreat" instruction at trial. Defense counsel expressly agreed that it was appropriate to include an instruction on "[d]uty to retreat to avoid using deadly force" when instructing the jury on self-defense. Also, after the trial court completed its final instructions, it asked the parties whether there was "[a]ny objection to the instructions as read." Defense counsel responded, "None, Your Honor." By assenting to the trial court's instructions as given, counsel waived any error. Defendant alternatively argued that defense counsel was ineffective for failing to request CJI2d 7.16(3). Defendant contended that he was entitled to the instruction because he was present in a place where he had a right to be and was not acting illegally. Because defendant did not raise an ineffective assistance of counsel claim in the trial court, the court's review of this issue was limited to mistakes apparent on the record. CJI2d 7.16(3) did not apply because he was "engaged in the commission of a crime" - felon in possession of a firearm - at the time he used deadly force. The defense stipulated that defendant was previously convicted of a felony and was not eligible to possess a firearm on 7/5/10. Further, reviewing the instructions as a whole, the court held that the self-defense instructions given by the trial court adequately protected defendant's rights. The trial court gave a general self-defense instruction pursuant to CJI2d 7.15, and it instructed the jury, pursuant to CJI2d 7.16, that defendant had no duty to retreat from a sudden, fierce, and violent attack, or from an attack with a deadly weapon. These instructions were sufficient to outline his defense under the circumstances. Also, the trial court's general self-defense instructions required the jury to determine whether defendant acted honestly and reasonably in protecting himself. The court held that in light of the self-defense instructions given to the jury, defendant could not establish that even if CJI2d 7.16(3) was applicable, defense counsel's failure to request the additional instruction affected the outcome of the case. Affirmed.

 

Issues: Sufficiency evidence to support defendant's convictions for child sexually abusive activity against 16-year old MS, use of a computer to commit CSC IV against MS, and disseminating sexually explicit material to 15-year old DG; People v. Wolfe; People v. Truong (After Remand); Statutory interpretation; Whether MCL 750.145c is limited to criminalizing the production of sexually abusive material; MCL 750.145c(2); People v. Hill; People v. Dowdy; People v. Holder; "Child sexually abusive activity" as "a child engaging in a listed sexual act"; MCL 750.145c(1)(l); "Child"; MCL 750.145c(1)(b); MCL 750.145c(6);"Listed sexual act"; MCL 750.145c(1)(h); "Child sexually abusive material"; MCL 750.145c(1)(m); People v Adkins; People v. Scotts; People v. Cervi; Haynes v. Neshewat; Whether the child sexually abusive activity statute is unconstitutionally overbroad because it criminalizes consensual sex between partners aged 16 years and older; "Plain error"; People v. Carines; People v. Dillon; People v. Nichols; People v. Roberts; People v. Ward; Sufficiency of the evidence to support defendant used "force or coercion" against MS to commit CSC IV; People v. Brown; People v. Premo; People v. Reid; Admission of forwarded and copied electronic messages; People v. McDaniel; People v. Ford; People v. Yost; People v. Furman; MRE 901(a), (b), (b)(1), and (b)(4); People v. White; "Best evidence" claim; MRE 1003; Late disclosure of certified e-mails; People v. Phillips; MCR 6.201(J); People v. Rose; People v. Taylor; Denial of defense counsel's request for an adjournment; People v. Steele; MCL 768.2; People v. Lawton; People v. Snider; Right of confrontation; People v. Bulmer; People v. Unger; People v. Adamski; People v. Hayes; People v. Sexton; MRE 611(a); Supplemental jury instructions; People v. Bartlett; Whether the trial court properly declined to instruct the jury on the definition of "harmful to minors"; Waiver; People v. Carter; Ineffective assistance of counsel; People v. Ginther; People v. Armstrong

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hoefling

e-Journal Number: 53476

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

 

The court held, inter alia, that the prosecution presented sufficient evidence to support defendant's conviction for child sexually abusive activity against 16-year old MS. The prosecution's theory was that defendant, using his position of trust and authority as a scoutmaster, (1) provided MS with alcohol, used his computer to arrange a meeting with MS to have sexual contact, and fondled MS's genitals on two separate occasions, and (2) had inappropriate sexual conversations with 15-year old DG, and allowed DG to use his computer to observe pornographic material. The defense argued that the victims, who had issues with their sexuality and were uncomfortable talking to their own parents, were not credible witnesses, that their fathers coached them to lie to cause problems for defendant, and that defendant's computer exchanges with the victims could not be interpreted as being sexual in nature. The court rejected defendant's claim that MCL 750.145c is limited to criminalizing the production of sexually abusive material and thus, the evidence was not legally sufficient to support his conviction. "The allegations against defendant squarely place him within the group of persons who arrange child sexually abusive activity on whom MCL 750.145c(2) imposes criminal liability." The court also held that the prosecution presented sufficient evidence to show that defendant arranged for or attempted to arrange for child sexually abusive activity with MS. The evidence showed that defendant held a position of authority and trust as MS's scoutmaster. MS was a senior patrol leader for one year, which required frequent interaction with defendant. Defendant progressively graduated his position of influence over MS, eventually declaring to MS that the boy was one of his "closest friends." Defendant began communicating with MS about personal matters over the phone, and through e-mail and Facebook. They exchanged messages four to five times a week. "Defendant apparently believed that MS was gay and knew that MS had experimented sexually with DG." When MS turned 16, defendant began regularly providing alcohol to him, and arranging to secretly meet with him to drink. Months later, defendant had gained MS's trust. They then went to a store, where defendant bought champagne. Before going to the store, defendant had already supplied MS with alcohol. While in the store's parking lot, defendant and MS retired to the back of defendant's van to consume more alcohol. MS testified that after he became drunk, defendant reached into MS's pants and "grabbed" his penis. MS told defendant that he wanted to go home and defendant dropped MS off in a parking lot near his home to avoid detection by MS's parents. Defendant's convictions of child sexually abusive activity, two counts of CSC IV, two counts of using a computer to commit CSC IV, disseminating sexually explicit material to a minor, and furnishing alcohol to a minor, arising from his inappropriate interaction with two teenagers in his Boy Scout troop, were affirmed.

 

Issues: Search and seizure; Whether the evidence supported a "reasonable suspicion" of criminal activity; People v. Jenkins; Terry v. Ohio; People v. Nelson; Flight at the approach of police; People v. Shields; Motion to quash; People v. Hotrum

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Reynolds

e-Journal Number: 53425

Judge(s): Per Curiam – Cavanagh, Hoekstra, and Shapiro

 

Holding that the evidence was insufficient to support a reasonable suspicion of criminal activity, the court affirmed the trial court's order dismissing the resisting and obstructing an officer (R) charge against the defendant. The prosecution argued that R had a reasonable suspicion that defendant was about to, or had, placed graffiti on a dumpster in the vacant lot, in violation of a city ordinance. R's suspicion was apparently based on defendant's presence in an area where graffiti was previously applied. However, R testified that in his six-year career as a law enforcement officer, he had never arrested anyone for defacing any location with graffiti. "Under these circumstances, the area could not be characterized as a high crime area." Further, R did not testify to seeing any new graffiti at the location the evening of defendant's arrest, nor did he state that he saw defendant engaged in any movements from which it could be inferred he had applied or was going apply graffiti. Even if R "initially had such a suspicion, that suspicion would have dissipated when he saw that defendant had no paint on his hands or clothing." The court concluded that being in a location at 10:24 PM where old graffiti was present "does not create a particularized suspicion that someone was engaged in defacing property." The prosecution also argued that defendant's running and hiding behind a pickup truck was sufficient to arouse reasonable suspicion. The court concluded that under the circumstances, it was unclear that defendant even knew that R was a police officer when he ran behind the pickup truck. According to R's testimony, the night was very dark, the area was poorly lit, and R could not see defendant's face looking toward him, despite the benefit of headlights. Further, R had done nothing to identify himself, and his vehicle did not have police lights on its roof. R testified that defendant explained he thought R was a "friend of his." Given that R's testimony did not establish a particularized suspicion that defendant was engaged in defacing property, the fact that defendant ran and hid behind the pickup truck was insufficient to support reasonable suspicion. The court also concluded that R's assumption that defendant was about to commit an illegal trespass "was an 'inchoate and unparticularized suspicion or hunch,' an insufficient basis to justify the seizure of a person." The prosecution also argued that R had reasonable suspicion that defendant was committing the crime of public intoxication in violation of a city ordinance. The ordinance provided that "[n]o person shall be intoxicated in a public place and either endanger directly" the safety of another person or of property. The court concluded that while there was minimal evidence that defendant was intoxicated (alleged slurred speech) there were no facts in the record to support an assertion that he was directly endangering the safety of another person or property.

 

Issues: Whether the verdict was against the "great weight of the evidence"; People v. Carines; People v. Williams; People v. Harrison; Whether defendant's case presented an "exceptional" situation; Whether defendant was denied his constitutional right to a unanimous verdict pursuant to Const. 1963, art. 1, § 14; People v. Budzyn; People v. Fletcher

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stanton

e-Journal Number: 53480

Judge(s): Per Curiam – Saad, K.F. Kelly, and M.J. Kelly

 

Concluding, inter alia, that the testimony about which defendant complained was the very kind that should be left for the trier of fact to assess, the court held that he did not show that the verdict was against the great weight of the evidence. Defendant argued that his case presented an "exceptional situation" in which discrepancies in witness testimony entitled him to a new trial. According him, B's testimony was not worthy of belief because he did not come forward immediately and he made inconsistent statements. B died before trial. Thus, at trial, the prosecution offered three pieces of testimonial evidence from B - a signed statement he gave to police, testimony he gave pursuant to an investigative subpoena issued by the Prosecutor's Office, and his testimony at the preliminary examination. Though B's testimony varied in certain respects, his general account of what happened on the night of the crime remained consistent. He consistently testified that he was with CB and "Teddy B" on P Street when defendant drove by in a red Ford Escort and fired several shots at them. A short time later, B was with CB and Teddy B at a nearby gas station when defendant, dressed in the same clothes, opened fire on them with an assault weapon. B was able to observe and identify defendant during both incidents and, throughout the investigation, he consistently identified defendant as the shooter. Defendant took issue with the testimony of W because she had the opportunity to speak with B before she identified defendant in a photographic line-up. Defendant also noted that W did not make a statement to the police until two weeks after the shooting, and only did so at B's request. Again, however, issues of witness credibility are for the trier of fact. This also applied to the testimony of TB. The fact that she did not identify defendant as the shooter at trial did not render the other eyewitness testimony incredible. Importantly, TB never contradicted other testimony by stating that defendant was not the shooter, but simply testified that she did not see the shooter and thus, could not identify him. Defendant's convictions of one count of first-degree premeditated murder, three counts of assault with intent to commit murder, and one count of felony-firearm were affirmed.

 

Employment & Labor Law

 

This summary also appears under Contracts

 

Issues: Claim alleging wrongful termination; Whether the trial court properly granted the defendant-employer (Botsford Hospital) summary disposition under MCR 2.116(C)(7); Timko v. Oakwood Custom Coating, Inc.; Rory v. Continental Ins. Co.; Whether the limitations period at issue should not be enforced due to the language in the "certification" and the "employment offer-letter"; Rasheed v. Chrysler Corp.; Contract interpretation; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Whether the certification plaintiff signed was superseded by the language of the employment offer-letter

Court: Michigan Court of Appeals (Unpublished)

Case Name: Griffin v. Botsford Hosp.

e-Journal Number: 53384

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

 

The court held that the trial court properly granted the defendant-employer summary disposition because the documents at issue (the "certification" and the "employment offer letter") were unambiguous and clearly supported the trial court's rulings that (1) a shortened limitations period contained in a contract must generally be enforced as written, (2) the certification clearly stated that it was a binding contract between the parties even though it also stated that it was not a contract for employment or benefits, and (3) the employment-offer letter merely stated that it superseded other "discussions," not prior contracts. Thus, the court held that the trial court properly enforced the contractual 180-day limitations period and dismissed the lawsuit. In 11/06, plaintiff applied for employment with defendant by filling out an online form, which she ratified by typing her name on the form. Defendant hired her and she started work on 1/29/07. Defendant discharged her on 8/5/09 and she sued on 12/20/10, missing the 180-day limitations period in the certification by over 10 months. Defendant filed a motion for summary disposition based on the limitation period. The trial court granted the motion. Plaintiff argued that the 180-day limitations period should not apply because the certification contained the following sentence - "I also understand that nothing in this application may be construed as a contract between the Botsford Health Care Continuum or its affiliates and myself, for either employment or the provision of any benefits." She also asserted that the certification was superseded by the later employment offer letter which stated - "This letter contains the entire offer to you and supersedes any other discussions you may have had with us. If you believe that there were any other promises made to you that are not outlined in this letter please advise [defendant's Human Resources Coordinator], in writing, prior to signing this letter." The court concluded that the certification clearly and unambiguously set forth a 180-day limitations period and the trial court correctly noted that the certification "clearly states that the Employment Application was a binding contract between" the parties "whereby she would be considered for employment in exchange for the terms contained in the agreement including the shortened limitations period for civil rights claims." The certification was not ambiguous and must be enforced as written. Contrary to plaintiff's implication, the employment offer letter did not purport to supersede any prior contracts, such as the pre-employment contract setting out the 180-day limitations period. It referred to the superseding of "other discussions." The signed certification was more than a "discussion." The words used in the employment-offer letter were clear and the court had to enforce them as written. "The employment-offer letter, by its unambiguous terms, did not negate the earlier pre-employment contract." Affirmed.

 

This summary also appears under Healthcare Law

 

Issues: The Labor Management Relations Act; 29 USC § 185(a); Triggering of "preemption"; Kitzmann v. Local 619-M Graphic Commc'ns Conference; Smolarek v. Chrysler Corp.; Fox v. Parker Hannifin Corp.; Klepsky v. United Parcel Serv.; Mattis v. Massman; Lingle v. Norge Div. of Magic Chef, Inc.; DeCoe v. General Motors Corp.; Jones v. General Motors Corp.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Paul v. Kaiser Found. Health Plan of OH

e-Journal Number: 53429

Judge(s): McKeague, Merritt, and Stranch

 

The court held that the district court erred in denying plaintiff's motion to remand his case to state court. Plaintiff sued defendant under state law for disability discrimination and retaliation. Defendant removed the case to federal court. The district court denied plaintiff's motion to remand to state court, and granted defendant's motion to dismiss on the pleadings for plaintiff's failure to submit to mandatory arbitration. On appeal, the court found that plaintiff's complaint explicitly asserted rights exclusively under Ohio's anti-discrimination civil rights law. It noted that the CBA was not mentioned in the complaint, and even though it included assurance against handicap-based discrimination and provided that discrimination claims arising from application of CBA provisions would be settled pursuant to the CBA grievance procedures, plaintiff's complaint did not invoke rights or procedures under the CBA. The court explained that plaintiff had pursued her grievance remedies under the CBA through step three, but chose not to pursue CBA remedies in her complaint, which alleged violations of state anti-discrimination law. The court concluded that defendant failed to carry its burden of demonstrating grounds for complete preemption of plaintiff's claim. It held that although plaintiff's claim implicated an employment relationship created and defined by the CBA, defendant did not demonstrate that resolution of the claim was so "inextricably intertwined" with interpretation of CBA terms as to trigger complete preemption. Rather, it found, defendant showed only that provisions of the CBA were tangentially related to plaintiff's claim. However, the court denied plaintiff's request for attorney fees, finding that it could not be said that defendant lacked an objectively reasonable basis for removal. Reversed and remanded.

 

Family Law

 

Issues: Divorce; Parenting time; Shade v. Wright; MCL 722.27a; The trial court's reliance on the FOC's report; In re Stevens; Best interest factor (i); Bowers v. Bowers; Weighing the evidence and making credibility determinations; Shann v. Shann; MCL 722.27a(6); Division of the marital assets; Berger v. Berger; Reed v. Reed; Sparks v. Sparks; Washington v. Washington; Pension benefits; MCL 552.18(1); Valuation and distribution of the marital homes; MCR 3.211(B)(3); The trial court's obligation to put a valuation on the property being awarded; Olson v. Olson; Division of the retirement accounts; McNamara v. Horner; Custody; Whether the trial court considered the children's "established custodial environment" ; Whether the trial court defined the applicable burden of proof; Whether the trial court considered the statutory "best interest" factors; MCL 722.23; Taking contrary positions in the trial and appellate courts; Waiver; Holmes v. Holmes

Court: Michigan Court of Appeals (Unpublished)

Case Name: Edwards v. Edwards

e-Journal Number: 53418

Judge(s): Per Curiam – Jansen, Borrello, and Beckering

 

The court held that while the trial court's ruling went against the great weight of the evidence in adopting the FOC's recommendations on best interest factors (f), (g), and (h), the trial court's decision to grant the defendant-husband parenting time every other weekend, every day from after school until 4:30 PM, and on alternating holidays was not an abuse of discretion. However, in light of the lack of clarity as to the value of the marital homes and the amount of equity each party contributed to them, the court concluded that remand was necessary to properly determine the value of the homes and to distribute them equitably. Defendant argued on appeal, inter alia, that the trial court erred by failing to conduct a best interests analysis before making a determination as to parenting time. The court disagreed, noting that the trial court explicitly relied on the FOC report and adopted its recommendations, and the FOC "thoroughly examined" each of the factors in MCL 722.23. While the FOC found that factor (f) did not favor either party, the court concluded that the evidence showed this factor favored the plaintiff-wife. The court reached the same conclusion as to factor (g). While the FOC found that factor (h) favored plaintiff, the court determined that this factor favored the parties equally. Five of the factors favored plaintiff, four favored both parties equally, two were inapplicable, one favored neither party, and none favored defendant. He also argued that the trial court did not divide the marital assets in a roughly "congruent manner," specifically challenging the division of the parties' retirement accounts and homes. The court concluded that it could not review the trial court's factual findings as to the value of the marital homes because the trial court declined to make any, and there was insufficient evidence to support a determination. The trial court never determined the value of either house, stating only that "[t]here is no equity in either home as both homes are underwater." The court held that it was error for the trial court to decline to make such findings. MCR 3.211(B)(3) requires that "[a] judgment of divorce . . . include . . . a determination of the property rights of the parties[.]" A trial court "is obligated to put a valuation on the property being awarded, and it is clear error for the court to fail to place a value on a disputed portion of marital property." However, the court had no similar concerns as to the parties' retirement accounts and defendant's pension. The trial court allowed each party to keep his or her own retirement accounts, and permitted defendant to keep his pension. While it was true that plaintiff's two retirement accounts contained a higher balance than defendant's 401k, he will also have his pension - an asset that plaintiff never sought to invade - to offset this imbalance. Although the exact value of his pension was not offered in evidence, the court could not say that the trial court erred by determining that the award of plaintiff's two retirement accounts to her would be roughly congruent to the award of defendant's 401k plus his pension to defendant. Affirmed in part, reversed in part, and remanded.

 

Healthcare Law

 

This summary also appears under Employment & Labor Law

 

Issues: The Labor Management Relations Act; 29 USC § 185(a); Triggering of "preemption"; Kitzmann v. Local 619-M Graphic Commc'ns Conference; Smolarek v. Chrysler Corp.; Fox v. Parker Hannifin Corp.; Klepsky v. United Parcel Serv.; Mattis v. Massman; Lingle v. Norge Div. of Magic Chef, Inc.; DeCoe v. General Motors Corp.; Jones v. General Motors Corp.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Paul v. Kaiser Found. Health Plan of OH

e-Journal Number: 53429

Judge(s): McKeague, Merritt, and Stranch

 

The court held that the district court erred in denying plaintiff's motion to remand his case to state court. Plaintiff sued defendant under state law for disability discrimination and retaliation. Defendant removed the case to federal court. The district court denied plaintiff's motion to remand to state court, and granted defendant's motion to dismiss on the pleadings for plaintiff's failure to submit to mandatory arbitration. On appeal, the court found that plaintiff's complaint explicitly asserted rights exclusively under Ohio's anti-discrimination civil rights law. It noted that the CBA was not mentioned in the complaint, and even though it included assurance against handicap-based discrimination and provided that discrimination claims arising from application of CBA provisions would be settled pursuant to the CBA grievance procedures, plaintiff's complaint did not invoke rights or procedures under the CBA. The court explained that plaintiff had pursued her grievance remedies under the CBA through step three, but chose not to pursue CBA remedies in her complaint, which alleged violations of state anti-discrimination law. The court concluded that defendant failed to carry its burden of demonstrating grounds for complete preemption of plaintiff's claim. It held that although plaintiff's claim implicated an employment relationship created and defined by the CBA, defendant did not demonstrate that resolution of the claim was so "inextricably intertwined" with interpretation of CBA terms as to trigger complete preemption. Rather, it found, defendant showed only that provisions of the CBA were tangentially related to plaintiff's claim. However, the court denied plaintiff's request for attorney fees, finding that it could not be said that defendant lacked an objectively reasonable basis for removal. Reversed and remanded.

 

Litigation

 

This summary also appears under Real Property

 

Issues: Foreclosure; Motion to amend the complaint; Whether the amendment would have been "futile"; Weymers v. Khera; Effect of the fact the plaintiff lost all right, title, and interest in the property when she failed to redeem it by the expiration of the redemption period; Piotrowski v. State Land Office Bd.; Whether filing the complaint tolled the redemption period; Schulthies v. Barron; "Standing"; MOSES, Inc. v. Southeast MI Council of Gov'ts; Right result reached for the wrong reason; Coates v. Bastian Bros., Inc.; Temporary restraining order (TRO)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Furlong v. Bank of Am. N.A.

e-Journal Number: 53455

Judge(s): Per Curiam – O’Connell, Cavanagh, and Donofrio

 

Holding that amending the complaint would have been futile, the court affirmed the trial court's order granting the defendant-bank's summary disposition motion and denying the plaintiff's request to amend her complaint in this foreclosure case. Defendant, the mortgage holder on plaintiff's real property, initiated foreclosure proceedings in 2/10. According to defendant, it sent plaintiff notice of her default and her rights under Michigan's foreclosure by advertisement statute as required by MCL 600.3205a. When plaintiff failed to request a meeting to attempt to arrange a loan modification, defendant proceeded with the foreclosure and purchased the property at a foreclosure sale on 9/23/10. Plaintiff had until 3/23/11 to redeem the property. She sued for declaratory and injunctive relief on 3/16/11, asserting deficiencies in the foreclosure proceedings in violation of Michigan's foreclosure relief statutes. She alleged that defendant failed to provide her with the notice required under MCL 600.3205a and failed to properly review her loan for a modification pursuant to MCL 600.3205c. Plaintiff submitted an affidavit averring that she never received the requisite notice. Moving for summary disposition, defendant argued that plaintiff's claim that she did not receive the notice was false. Defendant asserted that she received the notice as demonstrated by a certified mail delivery record showing that plaintiff signed for the notice. In response, plaintiff argued that her former attorney's lack of foreclosure experience and her misunderstanding of the affidavit that she signed led to the filing of her complaint. She admitted that she received the notice and that her claim could not be supported. However, she requested leave to amend her complaint to allege several new claims as to purported deficiencies in the foreclosure process. The court noted that plaintiff lost all right, title, and interest in the property when she failed to redeem it by the expiration of the redemption period on 3/23/11. "Although plaintiff filed her complaint before the redemption period expired, the filing of her complaint did not toll the redemption period." Further, although the trial court entered a TRO and a preliminary injunction "suspending" the running of the redemption period, the suspension expired 60 days after the trial court entered the preliminary injunction on 4/4/11. Thus, on 9/6/11, when plaintiff filed her response to defendant's summary disposition motion requesting to amend her complaint, she had no right, title, or interest in the property. Because she had no interest in the property, she lacked standing to assert the claims in her proposed amended complaint.

 

Municipal

 

This summary also appears under Constitutional Law

 

Issues: Whether the defendant-county's policies of automatically detaining domestic-assault defendants for 12 hours and using a bond schedule to determine their bail violated the U.S. Constitution; 42 USC § 1983; Local government liability; Bruederle v. Louisville Metro Gov't; "Excessive bail"; U.S. Const. amend. VIII; United States v. Salerno; Carlson v. Landon; United States v. Bajakajian; Bond schedule; Pugh v. Rainwater (5th Cir.); Stack v. Boyle; Glenn v. City of Columbus (Unpub. 5th Cir.); Terrell v. City of El Paso (WD TX); Bail amount as related to offense; Wagenmann v. Adams (1st Cir.); United States v. Beaman; United States v. Leisure (8th Cir.); "Particularized examination"; Galen v. County of Los Angeles (9th Cir.); United States v. Giangrosso (7th Cir.); Whether there is a constitutional right to "speedy bail"; Collins v. Ainsworth (5th Cir.); Woods v. City of MI City (7th Cir.); Procedural due process; U.S. Const. amend. XIV; Women's Med. Prof'l Corp. v. Baird; Creation of liberty interests; Kentucky Dep't of Corr. v. Thompson; Hewitt v. Helms; Gibson v. McMurray; Sandin v. Conner; Sweeton v. Brown; Procopio v. Johnson (7th Cir.); Shango v. Jurich (7th Cir.); Expectation of release; Greenholtz v. Inmates of the NE Penal & Corr. Complex; Wolff v. McDonnell

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Fields v. Henry Cnty., TN

e-Journal Number: 53428

Judge(s): Thapar, Cole, and Kethledge

 

The court held that the district court properly found that the defendant-county's policies of automatically detaining domestic-assault defendants for 12 hours and using a bond schedule to determine their bail was not unconstitutional. Plaintiff was arrested for domestic assault and not allowed to post bail because of defendant's policy of placing a 12-hour hold on all persons arrested for domestic violence regardless of the individual circumstances. Plaintiff later sued defendant, claiming violations of his Eighth and Fourteenth Amendment rights. The district court granted summary judgment for defendant. On appeal, the court rejected plaintiff's argument that defendant violated his Eighth Amendment right to be free from excessive bail. First, it held that defendant's use of a bond schedule to set his bail did not violate his right to be free from excessive bail, noting that there is nothing inherently wrong with bond schedules, and that nothing in the Eighth Amendment requires a particular type of "process" or examination as claimed by plaintiff. Next, it held that defendant's denial of bond for 12 hours did not violate his right to bail, noting that there is no constitutional right to speedy bail. The court also rejected plaintiff's argument that defendant's policy denied him due process. It held that plaintiff could only claim a procedural due process violation if state law created a liberty interest that warrants protection under the Due Process Clause, which was not the case here. Affirmed.

 

Negligence & Intentional Tort

 

Issues: Personal injury involving natural gas toxicity; Statute of limitations; Auto Club Group Ins. Co. v. Burchell; MCL 600.5805(1) and (10); MCL 600.5827; "Wrong"; Chase v. Sabin; Schaendorf v. Consumers Energy Co.; Whether the trial court properly determined that plaintiff's cause of action was not timely under the "fraudulent concealment" statute; MCL 600.5855; Fraudulent concealment defined; Lemson v. General Motors Corp.; Whether the trial court properly dismissed the entire cause of action when defendant allegedly committed additional acts of negligence within the period of limitations; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Whether trial court properly found that the period of limitations was not tolled under the common law "discovery rule" and "continuing wrong theory"; "Plain error"; Kern v. Blethen-Coluni; Trentadue v. Buckler Automatic Lawn Sprinkler Co.; Garg v. Macomb Cnty. Cmty. Health Servs.; MCL 600.5869; Whether the applicable statute of limitations was reasonable and constitutional; Bay Cnty. Prosecutor v. Nugent; Forest v. Parmalee

Court: Michigan Court of Appeals (Unpublished)

Case Name: Seger v. CMS Energy Corp.

e-Journal Number: 53457

Judge(s): Per Curiam - O’Connell, Cavanagh, and Donofrio

 

Concluding, inter alia, that the plaintiff's action was untimely as a matter of law where her claim accrued more than three years before the filing of her complaint, the court affirmed the trial court's grant of summary disposition in favor of the defendant. The facts as alleged in plaintiff's complaint indicated that defendant supplied natural gas to her home. Beginning in 2003, plaintiff began smelling natural gas in her home. Defendant's agent came to the home, but determined that there was no gas leak in the house. Defendant's agent informed plaintiff that exposure to natural gas would not be harmful to her health. She continued to smell natural gas, and defendant sent agents to her home on several occasions. Defendant's agents concluded that there was no gas leak in plaintiff's home, until a 2009 visit uncovered a gas leak in the basement. Plaintiff filed suit in 2010, alleging that defendant was negligent in failing to discover the gas leak at an earlier date. She alleged that she had suffered deteriorating health since 2004 and that her health problems were directly related to long-term natural gas toxicity and defendant's failure to discover the gas leak in a timely fashion. Plaintiff asserted that defendant negligently failed to identify the gas leak in her home as far back as 2003, and that she suffered deteriorating health due to natural gas toxicity as far back as 2004. The court held that the wrong alleged in plaintiff's complaint occurred more than three years before the filing of her complaint, and the complaint was untimely as a matter of law. She argued that she could not file a complaint until 2009, the year the gas leak was discovered by defendant, citing Schaendorf. In Schaendorf the court upheld the trial court's denial of the power company's summary disposition motion on statute of limitations grounds, but specifically found that a potential source of stray voltage was a new building constructed on the farm within the limitations period. The court in Schaendorf also explicitly found that "the power company's statements that there was no stray voltage problem did not affect the question of when the farmer's complaint accrued. . . ." The court held that there was no potential intervening cause in this case. Defendant's multiple test results of no leaking gas did not go to the question of accrual, but rather to the existence of any leak at all on the dates of those tests. "The negligent act alleged by plaintiff occurred in 2003, and the harm alleged to have resulted from that negligence occurred in 2004."

 

Probate

 

This summary also appears under Wills & Trusts

 

Issues: Whether the trial court properly exercised jurisdiction over the trust; MCL 700.7201(1); MCR 2.117(A) and (B); MCL 700.1302(b); Whether the trust was properly characterized as a "support" trust; A "discretionary" trust; In re Hertsberg Inter Vivo Trust; Miller v. Department of Mental Health

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Guardianship of Thomas Norbury

e-Journal Number: 53350

Judge(s): Per Curiam – Jansen, Stephens, and Riordan

 

Holding that the trial court did not have jurisdiction over the trust at issue, the court vacated the trial court's order providing that the trust had to pay certain fees and expenses claimed by appellee-Fraleigh, respondent-Norbury's guardian. The settlor executed the trust agreement in 1993, with appellant-Seidel serving as trustee. Norbury is Seidel's sibling. Norbury was declared legally incapacitated in 2010, and Fraleigh was appointed as his guardian. The dispute arose in 4/11, when Fraleigh submitted an accounting of his fees and incurred expenses to the trial court from the first year of his guardianship. The trial court concluded that under the terms of the trust, because Norbury was legally incapacitated, the trustee had an obligation to provide for his support, including paying for Fraleigh's services. The court noted that the record showed the trust was not a party to any litigation at the time the trial court held its hearing on Fraleigh's petition for an annual accounting. Seidel was present at the hearing and was not assisted by an attorney. She did not indicate that she was present in her capacity as trustee, as opposed to her capacity as Norbury's sibling. Fraleigh argued that Seidel appeared at the hearing in her capacity as trustee and that, pursuant to MCR 2.117, she "submitted" to the trial court's jurisdiction. However, Fraleigh neglected "to acknowledge the applicability of MCR 2.117(B), which provides that 'filing an appearance without taking any other action toward prosecution or defense of the action neither confers not [sic] enlarges the jurisdiction of the court over the party.'" Thus, "whether Seidel initially appeared before the court in her individual capacity or in her capacity as trustee is without consequence when determining whether the probate court had jurisdiction over the trust, because Seidel never invoked that jurisdiction." Since an interested party did not invoke the trial court's jurisdiction, MCL 700.7201(1) showed that jurisdiction only existed if it was specifically provided for by law. The court concluded that the proceeding at issue did not fall under the statutory umbrella of MCL 700.1302(b), and because no other legal provision supporting jurisdiction was identified, the trial court lacked jurisdiction over the trust. The court further noted that even if it were to determine that the trial court properly exercised jurisdiction over the trust, it would still vacate the trial court's order because the trial court also erred in concluding that the trust was properly characterized as a support trust and that the trust could be ordered to pay Fraleigh's expenses. The trust language clearly showed that the settlor intended the trust to be discretionary as to Norbury, and because the trust was discretionary, the trial court erred in ruling that the trust could be ordered to pay for Fraleigh's services. The court reversed the trial court's order denying Seidel's motion for reconsideration and vacated its order related to the trust's obligation to pay Fraleigh's expenses and fees.

 

Real Property

 

This summary also appears under Contracts

 

Issues: Foreclosure; Whether the trial court correctly determined that the signatures at issue were not forged; Witness credibility assessments; Shann v. Shann; "Weight" given to expert testimony; Krohn v. Sedgwick James of MI, Inc.; Whether the issue was "moot" in light of the redemption and subsequent discharge of the mortgage; Kieta v. Thomas M. Cooley Law Sch.; Claim that plaintiff should have filed a lis pendens to stay the proceedings instead of paying off the mortgage; Ligon v. City of Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Berry v. Myslinski

e-Journal Number: 53440

Judge(s): Per Curiam – Saad, K.F. Kelly, and M.J. Kelly

 

Concluding that the trial court did not clearly err in finding that the plaintiff's witnesses were either not credible or their conclusions were not supported by the evidence, the court upheld the trial court's ruling that the signatures at issue were not forgeries and that the defendant had the right to foreclose on the property. The case arose from alleged mortgages between Nassab Berry and defendant as to a commercial property. Berry is now a protected person and the plaintiff was her conservator. Berry testified that she did not authorize the loans or sign the mortgages. However, on cross-examination, she stated that she had met with defendant but could not remember what the meeting was about. Further, as the trial court pointed out, Berry has suffered from dementia and related memory problems since 2003. Thus, the trial court properly concluded that her testimony was not believable. Berry's sons, Lawrence and Fred (the plaintiff), both testified that the signatures on the mortgages were not their mother's signature. However, there was no indication that they were actually present at any of the signings. Thus, it was not clearly erroneous for the trial court to find their testimony unreliable. Finally, while plaintiff's handwriting expert, K, testified with a high degree of certainty that Berry did not sign the mortgages, "'[t]he [trier of fact] determines the weight given to expert testimony.'" The trial court stated that K's testimony was not reliable because the facts did not support the conclusion that K reached. Further, the trial court reasoned that K had a financial bias because plaintiff was paying him to testify. The court noted that it is not its role to determine the weight of an expert's testimony or judge the witnesses' credibility. The court also held that the trial court did not clearly err in finding that defendant and the notary, M, were credible witnesses. Defendant testified that Berry was present at the two closings. M testified that he actually witnessed Berry sign the 2005 mortgage. The trial court specifically stated that it believed both defendant's and M's testimony. The trial court acknowledged that it considered M's potential bias - M worked with defendant and rented a home from her. However, the trial court did not think that M had enough of a motive to lie for defendant. The court did not have a definite and firm conviction that a mistake was made. Affirmed.

 

This summary also appears under Litigation

 

Issues: Foreclosure; Motion to amend the complaint; Whether the amendment would have been "futile"; Weymers v. Khera; Effect of the fact the plaintiff lost all right, title, and interest in the property when she failed to redeem it by the expiration of the redemption period; Piotrowski v. State Land Office Bd.; Whether filing the complaint tolled the redemption period; Schulthies v. Barron; "Standing"; MOSES, Inc. v. Southeast MI Council of Gov'ts; Right result reached for the wrong reason; Coates v. Bastian Bros., Inc.; Temporary restraining order (TRO)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Furlong v. Bank of Am. N.A.

e-Journal Number: 53455

Judge(s): Per Curiam – O’Connell, Cavanagh, and Donofrio

 

Holding that amending the complaint would have been futile, the court affirmed the trial court's order granting the defendant-bank's summary disposition motion and denying the plaintiff's request to amend her complaint in this foreclosure case. Defendant, the mortgage holder on plaintiff's real property, initiated foreclosure proceedings in 2/10. According to defendant, it sent plaintiff notice of her default and her rights under Michigan's foreclosure by advertisement statute as required by MCL 600.3205a. When plaintiff failed to request a meeting to attempt to arrange a loan modification, defendant proceeded with the foreclosure and purchased the property at a foreclosure sale on 9/23/10. Plaintiff had until 3/23/11 to redeem the property. She sued for declaratory and injunctive relief on 3/16/11, asserting deficiencies in the foreclosure proceedings in violation of Michigan's foreclosure relief statutes. She alleged that defendant failed to provide her with the notice required under MCL 600.3205a and failed to properly review her loan for a modification pursuant to MCL 600.3205c. Plaintiff submitted an affidavit averring that she never received the requisite notice. Moving for summary disposition, defendant argued that plaintiff's claim that she did not receive the notice was false. Defendant asserted that she received the notice as demonstrated by a certified mail delivery record showing that plaintiff signed for the notice. In response, plaintiff argued that her former attorney's lack of foreclosure experience and her misunderstanding of the affidavit that she signed led to the filing of her complaint. She admitted that she received the notice and that her claim could not be supported. However, she requested leave to amend her complaint to allege several new claims as to purported deficiencies in the foreclosure process. The court noted that plaintiff lost all right, title, and interest in the property when she failed to redeem it by the expiration of the redemption period on 3/23/11. "Although plaintiff filed her complaint before the redemption period expired, the filing of her complaint did not toll the redemption period." Further, although the trial court entered a TRO and a preliminary injunction "suspending" the running of the redemption period, the suspension expired 60 days after the trial court entered the preliminary injunction on 4/4/11. Thus, on 9/6/11, when plaintiff filed her response to defendant's summary disposition motion requesting to amend her complaint, she had no right, title, or interest in the property. Because she had no interest in the property, she lacked standing to assert the claims in her proposed amended complaint.

 

Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(ii) and (iii), (g), and (j); In re Trejo Minors; In re BZ; "Penetration" defined; People v. Bristol; Best interests of the child

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Baker

e-Journal Number: 53396

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to her daughter where the statutory bases for termination were established by clear and convincing evidence. Further, termination was in clearly in the best interests of the minor child. Petitioner sought termination alleging that the child's putative father physically and sexually abused the child, that the mother knew of the abuse, and did not immediately remove the child from the dangerous situation. Testimony at the termination hearing indicated that respondent had difficulty recognizing that the father's actions were wrong and when respondent spoke with service workers she did not seem terribly upset about the incidents. Respondent argued that she did everything she could to protect the baby, but the evidence showed that she only removed the child from the father's care after a fourth incident of abuse during which he rubbed the baby's genital and made a lewd comment. Before this, he had abused the child two times sexually and once physically. During the physical abuse incident he was angry with the baby for crying, so he swore at her and bounced her violently on a bed to the point where her "eyes rolled to the back or side of her head and stared off and then had rolled forward" and looked abnormal. Evidence showed that respondent had difficulty comprehending that his actions posed a danger to the child and she did not take timely action to protect her child. Also, a service worker testified that there was evidence that respondent was maintaining contact with the father. The record adequately supported the trial court's conclusion that clear and convincing evidence existed to terminate respondent's parental rights under §§ 19b(3)(b)(ii) and (iii). Not only had the father abused the child, and had sexually assaulted her, he also had killed family pets. Given respondent's behavior and lack of adequate earlier response, the evidence supported a finding that the child would remain at risk in respondent's custody where she failed to protect her child. Affirmed.

 

Issues: Termination pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Hudson; In re Ellis; In re BZ; In re Trejo Minors; The best interests of the minor children; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Williams/Thompson

e-Journal Number: 53422

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to her minor children where clear and convincing evidence established the statutory grounds for termination. Further, the trial court correctly held that termination was in the minor children's best interests. The trial court found that respondent failed to provide a suitable home and could not demonstrate legal, reliable, continuous, and sufficient income. However, she planned to live with CT, which concerned a Child Help worker because he had a criminal history, a doctor found he had a propensity for domestic violence, failed to comply with numerous requirements of the PAA, and had warrants for his arrest. Respondent said that she was willing to plan without CT, but had no plans to live anywhere else and he provided her with financial support. She also failed to consistently provide proof that she paid her rent. The trial court did not err in finding clear and convincing evidence that the conditions continued to exist and there was no reasonable likelihood that they would be rectified within a reasonable time. Respondent was unemployed at the time of trial, but had a job planned for when she is released from jail. She will be unable to work in her prior profession as a dog groomer for three years because a condition of her sentence on a plea for animal cruelty was that she could not work around animals for three years. Further, the trial court did not clearly err in finding that there was clear and convincing evidence to terminate her parental rights to both children where the trial court found that the children were bonded with other people and respondent made rash decisions and puts herself and her children at risk. Further, the trial court found that she did not make her children a priority and she had a pattern of legal and criminal trouble. The trial court found that the children needed a place of safety, permanency, and stability that she could not or would not provide. Affirmed.

 

Wills & Trusts

This summary also appears under Probate

 

Issues: Whether the trial court properly exercised jurisdiction over the trust; MCL 700.7201(1); MCR 2.117(A) and (B); MCL 700.1302(b); Whether the trust was properly characterized as a "support" trust; A "discretionary" trust; In re Hertsberg Inter Vivo Trust; Miller v. Department of Mental Health

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Guardianship of Thomas Norbury

e-Journal Number: 53350

Judge(s): Per Curiam – Jansen, Stephens, and Riordan

 

Holding that the trial court did not have jurisdiction over the trust at issue, the court vacated the trial court's order providing that the trust had to pay certain fees and expenses claimed by appellee-Fraleigh, respondent-Norbury's guardian. The settlor executed the trust agreement in 1993, with appellant-Seidel serving as trustee. Norbury is Seidel's sibling. Norbury was declared legally incapacitated in 2010, and Fraleigh was appointed as his guardian. The dispute arose in 4/11, when Fraleigh submitted an accounting of his fees and incurred expenses to the trial court from the first year of his guardianship. The trial court concluded that under the terms of the trust, because Norbury was legally incapacitated, the trustee had an obligation to provide for his support, including paying for Fraleigh's services. The court noted that the record showed the trust was not a party to any litigation at the time the trial court held its hearing on Fraleigh's petition for an annual accounting. Seidel was present at the hearing and was not assisted by an attorney. She did not indicate that she was present in her capacity as trustee, as opposed to her capacity as Norbury's sibling. Fraleigh argued that Seidel appeared at the hearing in her capacity as trustee and that, pursuant to MCR 2.117, she "submitted" to the trial court's jurisdiction. However, Fraleigh neglected "to acknowledge the applicability of MCR 2.117(B), which provides that 'filing an appearance without taking any other action toward prosecution or defense of the action neither confers not [sic] enlarges the jurisdiction of the court over the party.'" Thus, "whether Seidel initially appeared before the court in her individual capacity or in her capacity as trustee is without consequence when determining whether the probate court had jurisdiction over the trust, because Seidel never invoked that jurisdiction." Since an interested party did not invoke the trial court's jurisdiction, MCL 700.7201(1) showed that jurisdiction only existed if it was specifically provided for by law. The court concluded that the proceeding at issue did not fall under the statutory umbrella of MCL 700.1302(b), and because no other legal provision supporting jurisdiction was identified, the trial court lacked jurisdiction over the trust. The court further noted that even if it were to determine that the trial court properly exercised jurisdiction over the trust, it would still vacate the trial court's order because the trial court also erred in concluding that the trust was properly characterized as a support trust and that the trust could be ordered to pay Fraleigh's expenses. The trust language clearly showed that the settlor intended the trust to be discretionary as to Norbury, and because the trust was discretionary, the trial court erred in ruling that the trust could be ordered to pay for Fraleigh's services. The court reversed the trial court's order denying Seidel's motion for reconsideration and vacated its order related to the trust's obligation to pay Fraleigh's expenses and fees.

 

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