• Contracts (1)
• Criminal Law (7)
• Family Law (3)
• Negligence & Intentional Tort (1)
• Real Property (1)
• Termination of Parental Rights (1)
• Wills & Trusts (1)

Contracts

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether Appleway's (AW) fraudulent misrepresentation claim against defendants-Sholten (S) and River City (RC) was within an exception to the "economic loss doctrine"; Latham v. Barton Malow Co.; Neibarger v. Universal Coop., Inc.; Whether the "fraudulent inducement' exception to the economic loss doctrine only applies to fraud extraneous to the breach of the contract; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; General Motors Corp. v. Alumi-Bank, Inc.; Woodland Harvesting, Inc. v. Georgia Pac. Corp. (Unpub.); Michigan First Credit Union v. Al Long Ford, Inc.; Whether summary disposition on AW's fraud claim against S was inappropriate where there was a genuine issue of material fact as to S's knowledge of the alleged fraud; Lavey v. Mills; Reduction in capital costs (RCC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Appleway Equip. Leasing, Inc. v. River City Equip. Sales, Inc.

e-Journal Number: 53456

Judge(s): Per Curiam - Talbot, Markey, and Riordan

 

In this case where the crux of plaintiff-AW's claim was that defendant-RC breached the bills of sale by not requiring or obtaining the requisite RCC payments in each of the transactions at issue, the court held that AW's fraudulent misrepresentation claims against RC and S were precluded by the economic loss doctrine. Thus, the trial court properly granted defendants summary disposition. AW is a leasing and financing company located in Spokane, Washington. RC is a Michigan corporation that sells used semi trucks. S is the owner and president of RC. AW occasionally provided financing to RC's customers by purchasing trucks from RC via a bill of sale and leasing them back to the customers. When AW financed transactions for RC, it required RC's customers to pay an RCC as a down payment. Three particular transactions from 2005 for which AW provided financing for RC customers were at issue in the case. AW contended that the RCC payments for each of the three transactions were not made and RC fraudulently misrepresented to AW that the payments were made. In 2010, AW sued RC and S alleging breach of contract by RC, fraudulent misrepresentation, conversion/civil embezzlement, breach of fiduciary duty, and tortious interference of contract against both RC and S. All claims were eventually dismissed on statute of limitation grounds except the fraudulent misrepresentation claim. After the case proceeded on AW's fraudulent misrepresentation claim against RC and S, the trial court granted their motion for summary disposition after finding that AW's fraud claim was barred by the economic loss doctrine and that there was no genuine issue of material fact as to the fraud claim against S. AW challenged the trial court's grant of summary disposition by contending that its fraudulent misrepresentation claim against RC fell within an exception to the economic loss doctrine. The court disagreed based on Neibarger, because the doctrine provides that "where a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only 'economic losses.'" While the rule announced in Neibarger applied to negligence cases, the economic loss doctrine also applies to cases where the aggrieved party to a contract alleges an intentional tort by the breaching party. For the fraudulent inducement exception to the economic loss doctrine apply, the fraud alleged must be extraneous to the alleged breach of contract. The court examined AW's complaint where the crux of the claim was that RC breached its bill of sales, the pertinent contracts, by not requiring or obtaining the requisite RCC payments in each transaction at issue in the appeal. The court found that AW's fraud claim was not extraneous to its breach of contract claim and did not fit within the fraudulent inducement exception to the economic loss doctrine. The claim was not extraneous because AW's fraud claim was "undergirded by factual allegations identical to those supporting the breach of contract counts." Here the crux of the contract claim - the RCC payments were not made - involved essentially the same facts as AW's fraud claim - RC claimed that the RCC payments were made. Thus, the fraud claim was not extraneous and was precluded by the economic loss doctrine. Affirmed.

 

Criminal Law

 

Issues: Sentencing; "Substantial and compelling" reasons for departing from the guidelines; People v. Babcock; MCL 769.34(3); People v. Young; Requirement that the trial court articulate its justification for the extent of the departure; People v. Smith; "Law of the case" doctrine; People v. Hendrick; People v. Fisher; Whether the court was precluded from reviewing all the factors cited by the trial court because it previously ruled that specific previously articulated characteristics provided substantial and compelling reasons to depart; MCL 769.34(3)(b); People v. Petri; Requirement that trial courts score each OV; People v. Bemer; Whether the trial court properly cited the "underscoring" of OVs 7. 8, and 13 as a basis for departing; The trial court's discussion of OV 11; Whether the trial court would have departed to the same degree based on the substantial and compelling reasons alone; People v. Solmonson; Whether the trial court offered proper justification for the extent of the departure; Whether the trial court disregarded the guidelines; Whether the defendant was sentenced based on inaccurate information; "Plain error" review; People v. Kimble; Applicability of People v. Francisco; Ineffective assistance of counsel; People v. Meissner; Trial strategy; People v. Rockey; People v. Horn; Failure to raise a futile objection; People v. Thomas; People v. Mack

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Barnes

e-Journal Number: 53500

Judge(s): Per Curiam – Servitto and Markey; Concurrence – Murray

 

While the trial court erred in citing the "underscoring" of OVs 7, 8, and 13 as a basis for departing upward in sentencing the defendant at the second resentencing, the court held that the trial court did not abuse its discretion in determining that PRV 7 and OVs 4, 10, and 13 did not adequately account for the offender and offense characteristics at issue. Further, the court concluded that the trial court would have departed to the same extent based only on the substantial and compelling reasons it cited for its departure. The court was also persuaded that there was "a clear connection between the trial court's reasons for departure and the extent of departure." Thus, the court affirmed defendant's sentence as a second habitual offender to life imprisonment for each of his four CSC I convictions. The court twice before remanded the case to the trial court, first for resentencing due to an error in scoring OV 11 and then for the trial court to explain the extent of its upward departure from the guidelines. The court held that the trial court erred to the extent it suggested that an upward departure would be justified based on points that could have been assessed under OVs that were not in fact scored. The trial court suggested that points could have been assessed under OVs 7 and 8, and that OV 13 could have been scored at 50 rather than 25 points. While MCL 769.34(3)(b) allows courts to consider characteristics inadequately accounted for or disproportionately weighted as a basis for departure, "this provision does not authorize courts to fail to score or underscore variables and then use the score to depart upward. This practice runs contrary to the basic process the trial court is required to follow in calculating defendant's minimum sentence." However, the trial court also "appropriately considered the scoring of each variable and considered whether that score was reflective of what occurred in this case." The trial court concluded that the 10-point score for OV 4 "did not account for the fact that the victim (defendant's own daughter) became addicted to drugs and needed extensive counseling for years." The trial court also found that "this was a particularly egregious instance of predatory conduct, not accounted for by a scoring of 15 points for OV 10." The trial court noted that "defendant's conduct went 'beyond just predatory conduct,'" and he sexually abused his daughter for a number of years, providing her meth and other drugs in the process. As to OV 13, "there was nothing improper in the trial court considering the extent to which OV 13 (and defendant's PRV score generally) did not adequately account for" his pattern of felonious activity. "The trial court concluded that a score of 25 points for three or more crimes against a person did not even begin to account for the 57 to 114 crimes against a person that defendant perpetrated against his daughter. Similarly, the trial court noted that PRV 7 warranted a score of 20 points for 2 or more subsequent or concurrent convictions." However, defendant had 5 convictions, meaning he had 4 concurrent convictions, 2 of which were not adequately accounted for by PRV 7. "The factors discussed by the trial court in relation to these variables were objective and verifiable and the trial court did not abuse its discretion in determining that these inadequately accounted for characteristics provided substantial and compelling reasons for departure."

 

Issues: Expert testimony; Whether the trial court properly qualified a police detective as an expert in cellular-data analysis; People v. Potter; People v. Babcock; MRE 702; People v. Whitfield; Effect of the prosecution's failure to provide the witness's curriculum vitae (CV) pursuant to MCR 6.201(A)(3); MCR 6.201(J); Harmless error; People v. Elston; Ineffective assistance of counsel; People v. Frazier; Review limited to the existing record; People v. Snider; Trial strategy; People v. Unger; Failure to object to alleged prosecutorial misconduct; Statements properly made in response to arguments made by defense counsel during closing argument; People v. Watson; Meritless objections; People v. Thomas; Sentencing; Scoring of OV 14; People v. Hornsby; People v. Elliott

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bentley

e-Journal Number: 53506

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

 

The court held that there was sufficient testimony for the trial court to conclude that the police detective had the education and experience to provide the jury with useful, scientific, or specialized knowledge. Thus, the trial court did not abuse its discretion in qualifying him as an expert in cellular-data analysis. The court also rejected the defendant's ineffective assistance of counsel claim, and held that the evidence supported the trial court's scoring of OV 14 at 10 points. Thus, the court affirmed defendant's convictions and sentences for armed robbery, conspiracy to commit armed robbery, possession of 50 grams or more but less than 450 grams of a controlled substance (cocaine), resisting, obstructing, opposing, or endangering a police officer, third-degree fleeing, felon in possession, and 5 counts of felony-firearm. On the day that N was shot to death, defendant and F drove a van to a plaza to meet N to engage in a drug transaction. A disagreement erupted and N threw the drugs outside of the van. F got out of the van to retrieve the drugs while defendant and N struggled over a gun. Because the door handle in the back of the van was broken, N tried to exit the vehicle through the driver's side window and was shot. Evidence was presented that defendant told F to shoot N. The detective testified to his education and training, explaining that he took the only course on forensic analysis of cellular data available at the time. He also "testified that he had used this knowledge on hundreds of cases, working for other detectives and units. This established not only that he had extensive experience in the area of cellular-data analysis, but also that other police officers relied on his specialized knowledge and experience." Further, the detective "described the methods used in cellular-data analysis, which went beyond the knowledge of an ordinary individual." After a review of the cellular data relevant to the case, he was able to provide the trial court with specific times and duration of calls made between the phones of F, defendant, and N. Defendant also argued that reversal was required because the prosecution failed to provide the detective's CV pursuant to MCR 6.201(A)(3). The court concluded that it was apparent from the record that the prosecution did not provide the CV despite defendant's discovery request. "However, because the detective was properly qualified as an expert witness, the prosecution's violation of the rule was harmless, negating the need for a judicially fashioned remedy."

 

Issues: Sufficiency of the evidence to convict the defendant of second-degree murder; "Malice"; People v. Mendoza; People v. Meissner; People v. Goecke; People v. Dumas; People v. Bulls; Whether the trial court properly admitted witness H's testimony; Whether defendant waived any error; People v. Riley; People v. Gursky; Whether the admission of the testimony violated defendant's Sixth Amendment right of confrontation; People v. Benton

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Harris

e-Journal Number: 53495

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

 

The court held that the evidence was sufficient for the jury to convict the defendant of second-degree murder of the blind victim (C). The evidence established that defendant killed C and did so with malice. C's body showed signs of blunt force trauma to the head. On the night of the murder, after defendant saw that C was unresponsive and had no heart beat, he did not call for help to save her, but went to a store to buy bags and tape to wrap her body. He wrapped her body in 17 layers of plastic to conceal the smell of decomposition. Defendant's brother (J) testified that defendant told him that he killed C. J testified that defendant said that he and C had a fight, he hit her, and she fell and died after the fight. Thus, the jury heard evidence that defendant hit C and that she fell and died after the fight. The jury could conclude from the evidence that defendant caused C's death. Further, a rational jury could have inferred that defendant's conduct in hitting C and his attempt to cover up and conceal her body were clear signs that he both caused her death and acted with malice. Defendant also contended that the trial court abused its discretion when it admitted witness H's testimony as to a conversation he had with C at a hotel. Defendant argued the testimony was hearsay. The court held that defendant waived any error as to H's testimony. Defense counsel asked the trial court to admit H's written statement and then defense counsel called H to testifiy at trial about the out-of-court statements made to him by C. The written statement indicated that sometime before C's murder, H saw her lying on the floor of a stair landing. H testified that C told him that defendant kicked her down the stairs because she would not perform oral sex on him. While H's statements arguably constituted hearsay, defense counsel waived any error because he specifically requested admission of the evidence and called H to testify about C's statements. The court held that defendant "invited error" and his claim on that basis was waived. Affirmed.

 

Issues: Whether the prosecution's failure to provide defendant with the recording of the 911 call constituted a denial of due process; People v. Terrell; People v. Schumacher; People v. Stanaway; Youngblood v. West Virginia; Ineffective assistance of counsel; People v. LeBlanc; People v. Pickens; Strickland v. Washington; Sentencing; Scoring of 50 points for OV 7; People v. Lechleitner; People v. Steele; People v. Glenn; The Freedom of Information Act (FOIA) (MCL 15.231 et seq.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hoyt

e-Journal Number: 53551

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

 

Holding that there was no reasonable probability that the outcome of the proceedings would have been different if defendant had known about the 911 call recording before trial and that the trial court's assessment of 50 points for OV 7 was not an abuse of discretion, the court affirmed his conviction of felonious assault and sentence. Defendant's conviction arose from an altercation with his father (the victim). The victim testified that defendant became angry when he refused to allow him to take two bicycle tires from the victim's home. Defendant struck the victim in the head with a crescent wrench. He ended up receiving six stitches. After the victim fell to the ground, defendant began punching and kicking him. The victim's neighbor also testified about the assault. The victim testified that after the assault, defendant took both bicycle tires and rode away. The victim told a neighbor to call 911, and waited for the police to arrive. There was no specific testimony during trial as to who called 911 or what the caller reported to the 911 operator. The responding officer testified that the victim had obvious head wounds and that there was a lot of blood. A crescent wrench covered in skin and hair was located just inside of the apartment door. After his conviction and sentencing, defendant elected to appeal. His appointed appellate counsel filed a request pursuant to FOIA and acquired a recording of the 911 call as to the incident. In the recording, an unknown caller reports that "the black man in number 4 is beating up the guy in number 8." Defendant, who is not African American, filed a motion for new trial based on the newly discovered 911 recording. The trial court found that the recording was exculpatory, but nonetheless denied his request for a new trial, stating - "It all seems . . . to the court that this evidence wouldn't make a difference, particularly in the absence of any evidence of the presence of anyone else at or near the location at the time of the occurrence." Initially, the court noted that on appeal the prosecutor did not challenge the trial court's finding that the 911 recording was exculpatory. Further, it was not disputed that police investigators or the prosecutor had knowledge of the 911 recording. Thus, the determinative issue was whether the evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. The victim and the victim's neighbor, who is defendant's ex-girlfriend and who has a continuing friendship with him, unequivocally identified defendant as the assailant. Also, defendant admitted he was visiting his father the day of the incident, and that they argued over bicycle tires. In light of the strong evidence identifying defendant as the assailant, it was unlikely that an anonymous 911 call suggesting that the assailant was an African American man would have affected the outcome of the proceedings. Thus, the court held that defendant failed to demonstrate any violation of his right to due process because the allegedly suppressed evidence could not "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Thus, he did not demonstrate a Brady violation.

 

Issues: Sufficiency of the evidence to support the defendant's unlawfully driving away an automobile (UDAA) conviction; People v. Hendricks; People v. Raper; The elements of unlawful use of an automobile (UUA); People v. Hayward; The court's authority to direct the trial court to enter a conviction for a lesser offense; People v. Bearss; "Other acts" evidence; Waiver; People v. Carter; Ineffective assistance of counsel; People v. Pickens; People v. Grant; People v. Matuszak; Futile objections; People v. Payne; Sentencing; "Plain error" review; People v. Kimble; People v. Carines; Blakely v. Washington; People v. Osby; Whether the trial court satisfied the "articulation requirement"; People v. Conley; Whether defendant was entitled to a lesser sentence due to alleged mental illness; "Substantial and compelling" reasons for a departure from the guidelines; People v. Babcock; "Cruel and unusual punishment"; Presumptive proportionality of a sentence within the guidelines range; People v. Powell; Credit for time served; MCL 769.11b; People v. Seiders; People v. Idziak; Attorney fees; MCL 769.1k(1)(b)(iii); People v. Dunbar; People v. Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hurd

e-Journal Number: 53502

Judge(s): Per Curiam – Talbot, Markey, and Riordan

 

Holding that there was insufficient evidence that the defendant's possession of the vehicle was without authority, the court reversed his UDAA conviction and remanded the case for the trial court to enter a conviction for the lesser included offense of UUA and to resentence defendant on that offense. He was also convicted of transporting or possessing an open container of alcohol in a motor vehicle, and resisting and obstructing. The court noted that it was "undisputed that the victim allowed defendant to enter the vehicle and listen to the radio. More importantly, the victim gave defendant the keys. Thus, defendant had actual possession of the keys, permission to occupy the vehicle, and permission to use the vehicle at least for the limited purpose of listening to the radio." While he did not have authority or permission to drive the vehicle, he had authority or permission to possess it. Thus, the court agreed with defendant's claim that there was insufficient evidence to support his UDAA conviction. However, the court noted that the elements of UUA are - (1) the automobile did not belong to defendant, (2) he had lawful possession of the automobile, and (3) he intentionally used the automobile beyond his lawful authority, knowing he did not have lawful authority to use it in that manner. UUA is a lesser included offense of UDAA. When a conviction for a greater offense is reversed on grounds that affect only the greater offense, the court may direct the trial court to enter a conviction for the lesser offense. Given that the basis for reversal was that there was insufficient evidence that defendant's possession of the vehicle was without authority, this did not affect the lesser included offense of UUA - a defendant can be convicted of UUA if he possessed the automobile lawfully but used it beyond his lawful authority. Noting that defendant waived his argument as to the other acts evidence, the court rejected his ineffective assistance of counsel claims and concluded that his challenges to his resisting and obstructing sentence lacked merit. He also waived his credit for time served claim, and the trial court correctly determined that he was not entitled to a jail credit for time served since he was on parole when he committed the offenses in this case. He also failed to establish any violation of due process or equal protection related to the trial court's order requiring him to reimburse the county for his attorney fees. Affirmed in part, reversed in part, and remanded.

 

Issues: Sentencing; Amount of sentence credit to which defendant was entitled under MCL 769.11b; People v. Patton; MCR 6.425(E)(1)(d); People v. Prieskorn; People v. Ovalle; People v. McKnight; People v. Hawthorne

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Inman

e-Journal Number: 53554

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

 

Holding that the PSIR correctly stated the amount of sentence credit to which defendant was entitled, the court affirmed. On 4/19/11, defendant and his ex-wife were involved in an altercation that culminated in him approaching a police officer with photographs of his ex-wife's meth laboratory. During the subsequent investigation, defendant admitted to purchasing Sudafed for his ex-wife's meth production. Police took him into custody for reasons apparently unrelated to his admission. Defendant was arrested on 7/27/11, for operating or maintaining a meth laboratory. His bond was set the following day. On 8/30/11, he pleaded guilty to operating or maintaining a meth laboratory pursuant to a plea agreement involving additional charges not related to the present offense. At sentencing on 10/13/11, on the charge to which defendant pleaded guilty, he objected to receiving only 78 days worth of credit for time served. He contended that he should have received credit for time served while he was in jail on unrelated charges that were dismissed as part of his plea agreement in this case. Defendant also claimed he was entitled to credit for time served from 4/19/11, until his sentencing. The prosecution disagreed with his contention on the ground that the time spent in jail before 7/27/11, was unrelated to the offense for which defendant was convicted. The trial court stated that it would send the file back to the probation department to calculate the amount of time to which defendant was entitled, but the trial court entered 78 days of credit on the judgment of sentence. The trial court also stated at sentencing that it would remove from the PSIR "the characterization of defendant's methamphetamine use as 'daily.'" The PSIR still contained this characterization. The court granted his delayed application for leave to appeal in part on the issue of the amount of sentence credit to which he was entitled under MCL 769.11b. Defendant was arrested on the charge for which he pleaded guilty on 7/27/11. The court held that his time spent in jail would not be "for the offense of which he is convicted" until he had been arrested for that offense. Thus, the earliest the clock could have started running on defendant's sentence credit was 7/27/11. Defendant's sentencing was on 10/13/11. His incarceration from July 27 to October 13 was 78 days - the same amount of time for which defendant received credit in the judgment of sentence. Any error that occurred as a result of the trial court's failure to state on the record the amount of sentence credit to which defendant was entitled pursuant to MCR 6.415(E)(1)(d) was harmless because the outcome would not have changed had the trial court complied with MCR 6.415(E)(1)(d).

 

Issues: Sentencing; Whether the defendant was denied the right to a "meaningful" sentencing allocution due to a lack of competency; Whether the trial court should have delayed sentencing until defendant's psychiatric evaluation was completed; "Plain error" review; People v. Carines; Presumption that criminal defendants are competent; MCL 330.2020(1); People v. Mette; MCL 330.2024; People v. Johnson; Whether defendant had an opportunity to exercise his right to allocute at sentencing; People v. Parks

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Pegues

e-Journal Number: 53501

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

 

Holding that the defendant was granted a meaningful sentencing allocution, the court rejected his claim that the trial court erred in sentencing him before a psychiatric evaluation. Defendant was convicted after a bench trial of unarmed robbery and sentenced to two years' probation. He argued on appeal that the trial court should not have proceeded with sentencing until his psychiatric evaluation was completed. He did not claim that he was, in fact, incompetent. The court concluded that the trial court did not plainly err when it failed, sua sponte, to determine whether defendant was competent before proceeding with sentencing because there were insufficient facts to create a bona fide doubt about his competency. He did not raise the issue during the trial orally or by motion. Also, nothing in the record suggested that defendant was incompetent. A review of the trial transcript and sentencing transcript "did not reveal any unusual or inappropriate conduct or statements by defendant that would indicate his mental condition rendered him incapable of understanding the nature and object of the proceedings or of assisting in his defense in a rational manner." Further, his receipt of Social Security benefits did not rise to the level of bona fide doubt that he was incompetent "because there are multiple explanations for an individual's receipt of Social Security benefits. The receipt of Social Security benefits for a purported 'mental issue' does not suggest that defendant is necessarily incompetent." The court also concluded that he had an opportunity to exercise his right to allocute at sentencing. The trial court asked him whether he wanted to say something. Defendant replied, "No. I'm sorry for, your honor." Further, there was no indication that the trial court determined a sentence before sentencing. "Thus, defendant exercised his right of allocution before sentencing." Affirmed.

 

Family Law

 

Issues: Divorce; Custody; Whether the trial court's finding of a "change of circumstances" was against the great weight of the evidence; Corporan v. Henton; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Whether the issue of the parties' child missing school was a "change" that occurred after entry of the last custody order; Dailey v. Kloenhamer; Guardian ad litem (GAL) fees; Taking different positions in the trial court and in an appellate court; Holmes v. Holmes; Whether the trial court properly required the defendant-mother to pay the GAL fees out of her spousal support; Gates v. Gates; Myland v. Myland

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gusmano v. Gusmano

e-Journal Number: 53504

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

 

Holding, inter alia, that the trial court's finding of a change of circumstances was against the great weight of the evidence, the court reversed the trial court's order awarding sole legal and physical custody of the parties' child to the plaintiff-father. The trial court determined that plaintiff established a change of circumstances based on the defendant-mother causing the child to miss several days of school in 9/10. However, the court concluded that the "issue of the child missing school was not a 'change' that occurred after the entry of the last custody order." The prior custody order, entered on 2/4/10, indicated that the child missing school was an already-existing issue. That order specifically provided, in relevant part - "The minor child has missed several days of school. Based on the testimony[,] Plaintiff indicates that Defendant tends to over exaggerate [the child's] medical issues resulting in excessive absences, while Defendant insists that the child has only been out when medically necessary." This situation was "precisely the same situation that plaintiff and the trial court relied upon later to modify custody. Even plaintiff conceded in his motion for a change of custody that '[t]his behavior continue[d] from the inception of this action in 2008.'" While the specifics of the incidents (absences occurring in 9/10 as opposed to absences occurring before 2/10) were different events, "the underlying 'cause' or 'reason' remains the same (defendant allegedly has kept the child out of school when not medically necessary)." The court noted that the fact some characteristic or circumstance may have been present in some form before the entry of a prior custody order "does not necessarily bar the later presence of that same characteristic or circumstance from ever being considered a 'change in circumstances.'" However, the trial court here "did not make a finding that the absences were an escalation of the condition that existed at the time of the previous custody order. Instead, the trial court merely relied on the fact that there were several absences that it attributed to defendant." The court rejected defendant's claim that the trial court erred in requiring her to be solely responsible for the GAL fees, concluding that "she willingly went along with the arrangement to pay for the GAL." Further, she admitted to the trial court that she could afford to pay the GAL fees. The court remanded the case to the trial court for proceedings consistent with the court's opinion.

 

Issues: Divorce; Custody; Best-interest factor (i); The trial court's failure to interview the minor children or make a finding as to why an interview was not warranted; Bowers v. Bowers; Whether the trial court properly suspended plaintiff-father's parenting time; Pierron v. Pierron; Referee hearing and recommendation; Unpreserved issue; General Motors Corp. v. Department of Treasury; Whether the referee complied with MCL 552.505(1)(g); Rivette v. Rose-Molina; Berger v. Berger; In re Archer; The "law of the case doctrine"; Shade v. Wright; Whether the referee's recommendation was supported by the evidence; Whether the trial court properly adopted the referee's recommendation without an evidentiary hearing; Neville v. Neville; "Proper cause" or a "change in circumstances"; Shann v. Shann; Holmes v. Holmes; Vodvarka v. Grasmeyer; Burden of proof; Dailey v. Kloenhamer; Best-interest factors (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), and (l); Fletcher v. Fletcher; "Judicial bias"; In re Contempt of Henry; In re MKK; Schellenberg v. Rochester Elks

Court: Michigan Court of Appeals (Unpublished)

Case Name: Jackson v. Jackson

e-Journal Number: 53566

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

 

Solely because of the trial court's failure to interview the minor children for purposes of factor (i), or make a finding as to why an interview was not warranted, the court reversed and remanded the order denying the plaintiff-father custody of the parties' minor children and suspending his parenting time. The referee recommended that defendant-mother be given sole physical custody of the children, and plaintiff be given parenting time on alternative weekends, which the trial court adopted. The court noted that plaintiff previously appealed issues arising from this case, and the court had previously remanded. Factor (i) addresses "[t]he reasonable preference of the child, if the court considers the child to be of sufficient age to express preference." The trial court did not interview the children. Plaintiff argued that the trial court's failure to interview the children was reversible error. The court agreed. At the time of the trial court's first determination, the children were 11 and 6 years old. At the time of the order on remand, they were 13 and 8 years old. Thus, they "were old enough to have their preferences considered." The court held that the trial court's failure to interview them and consider their preferences was error requiring reversal. The court reversed and remanded to the trial court as to factor (i), with instructions that the trial court interview the children to determine the "reasonable preference[s] of the child[ren]." Also, suspending plaintiff's parenting time constituted a change in the established custodial environment. Thus, the burden was on defendant to establish by clear and convincing evidence that the change was in the children's best interests. The trial court was required to consider all the best-interest factors. Thus, the trial court's failure to interview the children was error requiring reversal.

 

Issues: Divorce; Marital property division; McNamara v. Horner; Gates v. Gates; Washington v. Washington; "Fault" as a legitimate consideration in the property division; Burkey v. Burkey; Whether the trial court properly divided the defendant-husband's inheritance as part of the marital estate; Cunningham v. Cunningham; Byington v. Byington; Skelly v. Skelly; Applicability of MCL 552.23; Annuity payments; Deference to the trial court's findings based on the witnesses' credibility; Woodington v. Shokoohi

Court: Michigan Court of Appeals (Unpublished)

Case Name: Wray v. Wray

e-Journal Number: 53503

Judge(s): Per Curiam – Talbot, Markey, and Riordan

 

Holding, inter alia, that the trial court did not clearly err in dividing the defendant-husband's inheritance as part of the marital estate, the court affirmed the judgment of divorce entered by the trial court. The parties married in 1982 and had three children together. One of their daughters, who lived with the plaintiff-wife, was mentally impaired, susceptible to different illnesses, and cognitively functioned as an eight or nine year old. During the marriage, defendant operated a company. Despite his relative success, he was convicted of tax evasion, spent a year in jail, and significant tax liens were placed on the parties' property including the marital home. He claimed that he did not hide his income from the IRS and only pleaded guilty because he was coerced. The parties alleged different causes for the breakup of the marriage, including plaintiff's smoking and defendant's extramarital affair. Plaintiff claimed that defendant failed to pay the monthly mortgage payment for the marital home, the house was in foreclosure, and it was sold at a sheriff's sale. Little value was expected to result from the sale of the marital home worth $260,000 due to the significant tax liens on the property. Plaintiff also claimed that she was paying some of the tax liens out of the check she received for taking care of their disabled daughter. The parties also owned an annuity, with the remaining value of approximately $99,000. Defendant alleged that plaintiff agreed to pay him a portion of the annuity payment, but failed to do so. Plaintiff claimed that she paid him and he was lying. The court noted that generally, "'an inheritance received by one spouse during the marriage and kept separate from marital property is separate property.'" However, there are two statutory exceptions that allow the invasion of separate property and the court held that MCL 552.23, the "additional need" exception, applied. In justifying its decision to divide the inheritance between the parties, the trial court referenced the unique circumstances of the case. "The trial court also stated that the mentally disabled daughter's care fell mostly to plaintiff, and that 'invading what could otherwise be argued as separate property' was 'warranted and needed in order to adequately provide for [plaintiff] and the special needs child.'" The court concluded that the trial evidence supported the trial court's finding. Plaintiff testified that her daughter had "Shwachman-Diamond Syndrome." She lived with plaintiff, who was the primary caregiver. She received money from social security and plaintiff received money from the state for taking care of her, but "a portion of that money was being garnished to pay off the tax liens." While plaintiff testified that the daughter may be able to live on her own with outside assistance, there was no evidence that "this theoretical living arrangement would have lessened the financial burden on plaintiff." Thus, the court held that "the trial court did not err in finding that invading this separate property was 'warranted and needed in order to adequately provide for [plaintiff] and the special needs child.' This was a proper basis to invade the separate property pursuant to MCL 552.23," and the trial court's reference to fault did not alter the sufficient evidence supporting its finding of additional need.

 

Negligence & Intentional Tort

 

This summary also appears under Contracts

 

Issues: Whether Appleway's (AW) fraudulent misrepresentation claim against defendants-Sholten (S) and River City (RC) was within an exception to the "economic loss doctrine"; Latham v. Barton Malow Co.; Neibarger v. Universal Coop., Inc.; Whether the "fraudulent inducement' exception to the economic loss doctrine only applies to fraud extraneous to the breach of the contract; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; General Motors Corp. v. Alumi-Bank, Inc.; Woodland Harvesting, Inc. v. Georgia Pac. Corp. (Unpub.); Michigan First Credit Union v. Al Long Ford, Inc.; Whether summary disposition on AW's fraud claim against S was inappropriate where there was a genuine issue of material fact as to S's knowledge of the alleged fraud; Lavey v. Mills; Reduction in capital costs (RCC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Appleway Equip. Leasing, Inc. v. River City Equip. Sales, Inc.

e-Journal Number: 53456

Judge(s): Per Curiam - Talbot, Markey, and Riordan

 

In this case where the crux of plaintiff-AW's claim was that defendant-RC breached the bills of sale by not requiring or obtaining the requisite RCC payments in each of the transactions at issue, the court held that AW's fraudulent misrepresentation claims against RC and S were precluded by the economic loss doctrine. Thus, the trial court properly granted defendants summary disposition. AW is a leasing and financing company located in Spokane, Washington. RC is a Michigan corporation that sells used semi trucks. S is the owner and president of RC. AW occasionally provided financing to RC's customers by purchasing trucks from RC via a bill of sale and leasing them back to the customers. When AW financed transactions for RC, it required RC's customers to pay an RCC as a down payment. Three particular transactions from 2005 for which AW provided financing for RC customers were at issue in the case. AW contended that the RCC payments for each of the three transactions were not made and RC fraudulently misrepresented to AW that the payments were made. In 2010, AW sued RC and S alleging breach of contract by RC, fraudulent misrepresentation, conversion/civil embezzlement, breach of fiduciary duty, and tortious interference of contract against both RC and S. All claims were eventually dismissed on statute of limitation grounds except the fraudulent misrepresentation claim. After the case proceeded on AW's fraudulent misrepresentation claim against RC and S, the trial court granted their motion for summary disposition after finding that AW's fraud claim was barred by the economic loss doctrine and that there was no genuine issue of material fact as to the fraud claim against S. AW challenged the trial court's grant of summary disposition by contending that its fraudulent misrepresentation claim against RC fell within an exception to the economic loss doctrine. The court disagreed based on Neibarger, because the doctrine provides that "where a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only 'economic losses.'" While the rule announced in Neibarger applied to negligence cases, the economic loss doctrine also applies to cases where the aggrieved party to a contract alleges an intentional tort by the breaching party. For the fraudulent inducement exception to the economic loss doctrine apply, the fraud alleged must be extraneous to the alleged breach of contract. The court examined AW's complaint where the crux of the claim was that RC breached its bill of sales, the pertinent contracts, by not requiring or obtaining the requisite RCC payments in each transaction at issue in the appeal. The court found that AW's fraud claim was not extraneous to its breach of contract claim and did not fit within the fraudulent inducement exception to the economic loss doctrine. The claim was not extraneous because AW's fraud claim was "undergirded by factual allegations identical to those supporting the breach of contract counts." Here the crux of the contract claim - the RCC payments were not made - involved essentially the same facts as AW's fraud claim - RC claimed that the RCC payments were made. Thus, the fraud claim was not extraneous and was precluded by the economic loss doctrine. Affirmed.

 

Real Property

 

This summary also appears under Wills & Trusts

 

Issues: Whether filing a lawsuit during the foreclosure redemption period tolls the expiration of that period; Overton v. Mortgage Elec. Registration Sys.; Termination of rights after redemption period; Piotrowski v. State Land Office Bd.; Mission of Love v. Evangelist Hutchinson Ministries; Whether a foreclosure is void ab initio; Davenport v. HSBC Bank USA; Foreclosure by advertisement; MCL 600.3205; Foreclosure notice defects; Jackson Inv. Corp. v. Pittsfield Prods., Inc.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Mitan v. Federal Home Loan Mtg. Corp.

e-Journal Number: 53571

Judge(s): Martin, Merritt, and Gilman

 

In a decision previously issued as an unpublished decision, now designated for full-text publication, the court held that the district court erred in granting summary judgment for defendant because defendant's foreclosure by advertisement was void and the redemption period never began, thus allowing plaintiff standing to sue. Plaintiff, as PR of the decedent's estate, sued defendant alleging that the foreclosure of decedent's home by advertisement was contrary to Michigan law, and he sought a jury trial, monetary damages, to quiet the property's title, and fees and costs. The district court granted summary judgment for defendant, finding plaintiff lacked standing because his interest and title in the property were extinguished at the end of the redemption period. On appeal, the court agreed with plaintiff that he had standing because the foreclosure was void and the redemption period never started. It held that the district court erred when it held that plaintiff lacked standing because the redemption period had expired. It held that, if defendant violated the loan-modification law, then the redemption period never began. As such, the court reversed the district court's opinion and remanded the case with instructions that the district court should make factual findings to determine whether defendant assessed plaintiff's eligibility for a loan modification as required by statute.

 

Termination of Parental Rights

 

Issues: Termination of the respondent-father's parental rights pursuant to §§ 19b(3)(e) and (h); Whether the trial court properly accepted the father's no-contest plea to the allegations in the termination petition; In re Trejo Minors; In re Archer; People v. Metamora Water Serv., Inc.; In re Egbert R. Smith; The best interests of the child; The child's placement with his maternal grandparents; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Schwarz

e-Journal Number: 53516

Judge(s): Per Curiam - Wilder, Meter, and Gleicher

 

The court held that the trial court properly terminated the respondent-father's parental rights to his minor son (S) pursuant to §§ 19b(3)(e) and (h) based on his complete failure to comply with a court-ordered reunification plan and his inability to repair the lost parent-child bond given his extended imprisonment. The trial court properly accepted respondent's no-contest plea on two statutory grounds for termination and concluded that termination was in S's best interests despite his placement with relatives. Respondent's wife died from a drug overdose in 4/09. At the time of her death, she had a restraining order against him because he was physically and emotionally abusive. Within days after his wife's death, respondent's in-laws came to Michigan and obtained custody of S pursuant to a court-ordered guardianship. Six-year old S was then overweight, needed dental care, had not been enrolled in school, and required intensive speech therapy. The grandparents returned to their home in South Carolina with S. As part of the guardianship arrangement, a trial court ordered respondent to engage in a "court-structured plan," including anger management therapy, drug testing, and supervised parenting time. He did not comply with the therapy and drug testing requirements. He never visited the child in South Carolina, claiming he was too busy. During his rare visits to Michigan, S was nervous and uncomfortable and respondent was unable to bond with him. Respondent telephoned S about twice a week, when he remembered. S said that he did not enjoy the conversations with his father and his grandparents had to step in when respondent tried to talk about the guardianship proceedings or when respondent's "language got out of hand." In 3/10, respondent (who had a long criminal history) was arrested and convicted of bank robbery. He was sentenced to 5 to 20 years in prison. After the conviction, S's GAL sought termination of respondent's parental rights. The termination proceedings were delayed while the trial court resolved whether it had jurisdiction to terminate a parent's rights to a child who was living in another state. When the proceeding continued, the father entered a no-contest plea, admitting that he did not comply with the reunification plan during the guardianship and he would be imprisoned a minimum term of at least 5 years, which would deprive S of a stable home until he was at least 12. Because respondent conceded two statutory grounds for termination ((e) and (h)), the trial court proceeded with the best interest analysis. The trial court held that termination of respondent's parental rights was in S's best interests, citing his physical and emotional abuse of the mother and that there was evidence S was neglected prior to his maternal grandparents taking custody. While in their care, S received the necessary medical and dental treatment, and speech therapy, excelled in school, and participated in sports. The grandfather and an attorney who were named as co-guardians testified that S had no bond with his father and preferred not to have contact with him. Affirmed.

 

Wills & Trusts

This summary also appears under Real Property

 

Issues: Whether filing a lawsuit during the foreclosure redemption period tolls the expiration of that period; Overton v. Mortgage Elec. Registration Sys.; Termination of rights after redemption period; Piotrowski v. State Land Office Bd.; Mission of Love v. Evangelist Hutchinson Ministries; Whether a foreclosure is void ab initio; Davenport v. HSBC Bank USA; Foreclosure by advertisement; MCL 600.3205; Foreclosure notice defects; Jackson Inv. Corp. v. Pittsfield Prods., Inc.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Mitan v. Federal Home Loan Mtg. Corp.

e-Journal Number: 53571

Judge(s): Martin, Merritt, and Gilman

 

In a decision previously issued as an unpublished decision, now designated for full-text publication, the court held that the district court erred in granting summary judgment for defendant because defendant's foreclosure by advertisement was void and the redemption period never began, thus allowing plaintiff standing to sue. Plaintiff, as PR of the decedent's estate, sued defendant alleging that the foreclosure of decedent's home by advertisement was contrary to Michigan law, and he sought a jury trial, monetary damages, to quiet the property's title, and fees and costs. The district court granted summary judgment for defendant, finding plaintiff lacked standing because his interest and title in the property were extinguished at the end of the redemption period. On appeal, the court agreed with plaintiff that he had standing because the foreclosure was void and the redemption period never started. It held that the district court erred when it held that plaintiff lacked standing because the redemption period had expired. It held that, if defendant violated the loan-modification law, then the redemption period never began. As such, the court reversed the district court's opinion and remanded the case with instructions that the district court should make factual findings to determine whether defendant assessed plaintiff's eligibility for a loan modification as required by statute.

 

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