• Criminal Law (4)
• Election Law (1)
• Insurance (1)
• Litigation (1)
• Municipal (1)
• Real Property (1)
• Recreation & Sports Law (1)
• Tax (2)
• Termination of Parental Rights (5)
• Workers' Compensation (1)

Criminal Law

 

Issues: Sentencing following defendant's no contest plea to possession of child sexually abusive material in violation of MCL 750.145c(4); Whether the trial court properly scored OV 10 ("exploitation of a vulnerable victim") at 10 points (MCL 777.40); People v. Cannon; People v. Osantowski; "Victim"; People v. Althoff; Whether defendant "exploited and manipulated" the young victims depicted in the materials he possessed; Whether application of OV 10 requires the offender to have first-hand contact to exploit the victim; People v. Ward; United States v. Norris (5th Cir.); New York v. Ferber; Osborne v. Ohio; People v. Russell; People v. Huston; Sex Offenders Registration Act (SORA); The "catchall provision" (MCL 28. 722(s)(vi))

Court: Michigan Court of Appeals (Published)

Case Name: People v. Needham

e-Journal Number: 53680

Judge(s): Gleicher, O'Connell, and Murray

 

The court held that similar to Althoff, by possessing sexually abusive images of children, the defendant made those children the victims of his sexual offense and exploited them for his sexual gratification. Just as this conduct required registration as a sexual offender under the SORA, it mandated the scoring of OV 10 at 10 points for the exploitation of the vulnerable young victims. Defendant pleaded no contest to possession of child sexually abusive material in violation of MCL750.145c(4). On appeal he challenged his one to four-year prison sentence, claiming that the trial court should not have scored OV 10 because he had no contact with the children depicted in the pornographic images. The court disagreed and noted that when a person possesses child sexually abusive material, he or she personally engages in the systematic exploitation of the vulnerable victim depicted in that material. Thus, evidence of possession can support a score of 10 points for OV 10 reflecting that a defendant exploited a victim's vulnerability due the victim's youth. The prosecutor challenged his non-exploitation claim because "young, real people," were depicted in the photographs and those individuals were exploited due their vulnerability. Ultimately "the victimization of a child depicted in pornographic materials flows just as directly from the crime of knowingly receiving child pornography as it does from the more culpable offenses of producing child pornography." Defendant acted on his "selfish" and "unethical" desire to possess child sexually abusive material for his own sexual gratification. To achieve that purpose, a child had to be manipulated to pose for the sexually abusive photographs. As noted by extensive federal case law on the topic of child pornography, child sexually abusive material would not exist but for the "selfish" and "unethical" purposes of defendant and other end users. Every time a victim is viewed, a child is exploited anew. Thus, the trial court properly assigned points for OV 10 despite that defendant did not have contact with his young victims. In Althoff, the court considered whether the possession of child sexually abusive material could be considered a crime "that by its very nature constitutes a sexual offense against" a minor for purposes of SORA's catchall provision. The defendant in Althoff also had no contact with the children depicted in the sexually explicit material he possessed. Despite the lack of contact between the offender and his or her victim, Althoff noted that the Legislature recognized that the possession of child pornography is a sexual offense worthy of registration as a sexual offender. That case also held that the defendant committed a sexual offense against the minors portrayed in the pornographic images mandating his registration as a sexual offender under the statute's catchall provision. The court held that to commit a sexual offense against an individual is synonymous with making the individual a victim. Affirmed.

 

Issues: Whether the trial court properly imposed sanctions against the prosecutor under MCR 2.114(D) and (E); Contel Sys. Corp v. Gores; MCR 2.114(D)(2); "Frivolous" claims; Attorney Gen. v. Harkins; MCL 765.28(1); In re Forfeiture of Bail Bond

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Forfeiture of Bail Bond

e-Journal Number: 53548

Judge(s): Per Curiam – Saad and K.F. Kelly; Concurring in the result only - M.J. Kelly

 

Given the circumstances, the court held that the trial court clearly erred in finding that the appellant-prosecutor violated MCR 2.114. Thus, the court reversed the trial court's orders requiring the prosecutor to pay a total of $3,000 in sanctions to defendants-Motten and Watson's surety, Leo's Bail Bonds Agency Company (surety), for filing a frivolous motion. In both cases, after the trial court entered its orders declaring defendants' bonds forfeited, the surety moved to deny entry of judgment for the amount of the forfeited bond. Its sole argument was that the trial court failed to provide it with immediate notice of defendants' defaults, waiting over one year after Motten failed to appear and over six months after Watson failed to appear, instead of the requisite seven days as required under MCL 765.28(1). The surety argued that the untimely notice impaired its ability to perform its duties under the bond contracts. The trial court dismissed its prior orders forfeiting the bonds. The prosecutor moved to set aside the trial court's order dismissing those prior orders, but later withdrew the motions to set aside. The prosecutor argued on appeal, inter alia, that the trial court clearly erred in awarding sanctions under the facts of these particular cases. Even if the trial court was legally authorized to impose sanctions against the prosecutor, the court held that, as a matter of law, the motions to set aside the trial court's dismissal of the prior orders forfeiting the respective bonds were not frivolous. The trial court found that the imposition of sanctions was appropriate under MCR 2.114(E) because it determined that the prosecutor failed to make a reasonable inquiry as required under MCR 2.114(D)(2) before filing its motions to set aside. The court concluded that the "trial court failed to consider a number of factors when imposing sanctions in these cases." The surety's motion was brought solely on the basis that the trial court failed to provide it with immediate notice of defendants' defaults as required by MCL 765.28(1). "Also of critical importance was the fact that the trial court did not state a reason for its dismissal in its orders." Further, the prosecutor's motions to set aside addressed the statutory notice requirements. Thus, "the prosecutor's motions and arguments were well grounded in law." The court agreed with the prosecutor's statement that "the reasonable inquiry requirement of MCR 2.114(D) does not create an obligation on a party to engage in speculation about the reasons a court may have had for granting a motion." Further, upon learning of the underlying reasons for the trial court's actions, the prosecutor immediately withdrew its motions and did not pursue the matter. The court held that the prosecutor's motions to set aside "were reasonably responsive to the trial court's generic order granting the surety's motions, which were brought based on violations of the statutory notice requirements." The surety did not argue that the motions were interposed for an improper purpose. Reversed.

 

Issues: Prosecutorial misconduct; Whether the prosecutor shifted the burden of proof during closing argument; People v. Bahoda; People v. Seals; People v. Fyda; "Plain error" review; People v. Parker; Effect of a curative jury instruction; People v. Unger; Presumption that jurors follow their instructions; People v. Abraham

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Haynes

e-Journal Number: 53509

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

 

The court concluded that even if the prosecutor improperly suggested during closing argument that the burden of proof was on the defendant, the trial court's jury instructions alleviated any minimal prejudicial effect. Thus, defendant failed to show that any alleged error required reversal. He was convicted of first-degree home invasion. After running some errands, the victim entered her home and discovered defendant in her kitchen. Before leaving that day, she had locked the house. When she saw defendant, he was going through her family's possessions. She yelled out in surprise and told her husband over her cell phone that there was a man in the home. She then ran out of the house, entered her vehicle, and drove a couple of feet away. Her husband called the police. When the police arrived at the house, they found the front door was opened and an egress window was also opened. The kitchen was in disarray, and a duffle bag on the floor contained miscellaneous items. The victim later identified defendant in a lineup as the man she saw in her kitchen. Defendant argued on appeal that the prosecutor "repeatedly and improperly commented that defense counsel was unable to prove there were any other suspects, which effectively shifted the burden of proof." However, the trial court instructed the jury on the burden of proof, stating - "The defendant has not been required to prove his innocence in the course of this trial. He has not been required to present any witnesses or evidence. He has no burden to testify. . . . The burden of proof is entirely upon the prosecution. If you find during your deliberations the Prosecutor has not proven every element of this offense beyond a reasonable doubt, then your verdict has got to be 'not guilty.'" The prosecutor echoed this instruction in his rebuttal argument, telling the jury that defendant did not have to prove there were other possible suspects because he did not "have to present evidence and [the prosecution] never suggested that [defendant] did." Further, the trial court instructed the jury that the attorneys' arguments were not evidence. The court affirmed defendant's conviction.

 

Issues: Sufficiency of the evidence to convict defendant of knowingly possessing a stolen, false or counterfeit registration plate; People v. Roper; People v. Nimeth; MCL 257. 257; People v. Morley; MCL 257.256; Whether defendant was deprived of the ability to present a defense when the trial court struck his father's testimony; People v. Hayes; People v. Yost; Whether the father had the right not to incriminate himself; People v. Guy; Witness misconduct; People v. Budzyn; People v. Pissino

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Markham

e-Journal Number: 53491

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

 

Considering the evidence in the light most favorable to the prosecution and given that defendant was a police officer and had knowledge of the LEIN system, a reasonable juror could conclude that defendant knew that he had no legal right to use the license plate. Further, when asked by another officer whether he knew that the license tab did not belong on the license plate, defendant answered yes. There was sufficient evidence to support the jury's verdicts finding him guilty of improper use of a registration plate and possessing a counterfeit registration plate. His convictions arose from a complaint that he was driving a black Dodge Charger with tinted windows and police lights. Officer E investigated the complaint and when he ran defendant's license plate, he learned that it was registered to M. In 2/10, Officers B and O pulled over M for having a broken light and expired license plate on his vehicle. The officers had M's car towed and seized his license plate. Although M later retrieved his vehicle, he did not get the license plate from police custody. At trial, defendant testified that he took M's license plate from the back of O's patrol car and had one of his police friends run the plate through the LEIN system to see if M had a record. After finding that M's record was clear, defendant placed the license plate on his car - explaining that he did so because he thought someone was following him. Defendant also testified that he was fearful for his safety because he and his wife received a death threat through a YouTube video, found a Molotov cocktail on their porch, and learned that a neighborhood police officer was recently shot. During direct examination, defendant's father testified that the license plate tab belonged to him and that he placed the tab on the license plate. Because the father's statement was self-incriminating, the trial judge asked the jury to leave and told the father that he should receive independent counsel. The next day, the father invoked his Fifth Amendment right and refused to testify during cross-examination. For that reason, the trial court struck the his earlier testimony and instructed the jurors accordingly. Defendant argued on appeal, inter alia, that the evidence was insufficient to convict him of knowingly possessing a stolen, false or counterfeit registration plate because he did not steal the license plate. The court noted that goods can be considered stolen when they are taken without permission or right. Defendant contended that M, the original owner of the plate, abandoned the license plate when he failed to ask the police for its return. However, the evidence showed that defendant took the license plate from O's patrol car without permission or right. This evidence was sufficient to support the jury's verdict.  Affirmed.

 

Election Law

 

This summary also appears under Litigation

 

Issues: Alleged election irregularities; Claim for "quo warranto"; Barrow v. Detroit Mayor; Hughes v. Region VII Area Agency on Aging; Moser v. Detroit; Feyz v. Mercy Mem'l Hosp.; Cummins v. Robinson Twp.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; West v. General Motors Corp.; Statutory interpretation; Ward v. Michigan State Univ. (On Remand); Davis v. Chatman; MCR 3.306(2); MCL 600.4545(1); Whether Michigan law expressly provides a remedy by quo warranto voiding the election results before a recount pursuant to MCL 168.861; Whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto; Tevis v. Amex Assurance Co.; Ameritech Publ'g, Inc. v. Department of Treasury; Brackett v. Focus Hope, Inc.; "Remain" and "in . . . force" defined; "Savings clause"; MCL 600.4545(3); MCL 600.4545; Whether the trial court properly granted summary disposition to the Township defendants to the extent that plaintiffs' claim for quo warranto was brought pursuant to MCL 600.4545; "Material fraud or error"; Whether the analysis rendered the language within MCL 168.861 surplusage; MCL 168.871(3); Ryan v. Wayne Cnty. Bd. of Canvassers; Robinson v. City of Lansing; "Tampering"; MCL 168.871(1); Claim that the Township clerk was acting as an election inspector; MCL 168.672; MCL 168.674; MCL 168.677(1) and (3); MCL 168.778; Polkton Charter Twp. v. Pellegrom; Whether quo warranto was warranted under MCL 600.4545; West Shore Cmty. Coll. v. Manistee Cnty. Bd. of Comm'rs; Claim for "mandamus"; Bay City v. Bay Cnty. Treasurer; Keaton v. Village of Beverly Hills; Lickfeldt v. Department of Corrs.; Derderian v. Genesys Health Care Sys.; MCL 168.821; MCL 168.822(1); MCL 168.824; Danse Corp. v. Madison Heights

Court: Michigan Court of Appeals (Published)

Case Name: Hanlin v. Saugatuck Twp.

e-Journal Number: 53679

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

 

Deciding, inter alia, an issue of first impression as to whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto, the court held that "MCL 168.861 provides that the acts of illegal or fraudulent voting or of tampering with the ballots or ballot boxes before a recount do not extinguish an already existing claim for quo warranto." Thus, MCL 168.861 is a "savings clause" - it preserves the remedy of quo warranto in certain situations. Therefore, the trial court did not err in granting summary disposition to the Township defendants to the extent that plaintiffs' claim for quo warranto was brought pursuant to MCL 168.861 in this action based upon election irregularities. Plaintiffs sought permission to proceed quo warranto in relation to a proposed millage that passed. Plaintiffs contended that the trial court erred in granting summary disposition to the Township defendants on plaintiffs' claim of quo warranto because (1) there was, at a minimum, a question of fact as to whether the Township clerk tampered with the ballots, (2) the Township clerk committed gross error sufficient to warrant quo warranto relief, and (3) the voters were misled by the Township defendants as to the need for the millage funds. To pursue an action for quo warranto to challenge the validity of an election, plaintiffs must establish that a material fraud or error was committed in the election. Plaintiffs asserted that Michigan law also expressly provides a remedy by quo warranto and thus, voiding of the election results, for tampering with the ballots or ballot boxes before a recount pursuant to MCL 168.861. Whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto has never been addressed by a Michigan appellate court and MCL 168.861 has never been interpreted by a Michigan appellate court. The court undertook the task keeping in mind that the goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. The key words found in MCL 168.861 are "remain" and "in . . . force." The word "remain" is defined as "to continue in the same state or condition" and "to endure or persist."The phrase "in force" is defined as "in effect; operative." When these definitions are placed in MCL 168.861, the statute then reads, "[f]or fraudulent or illegal voting, or tampering with the ballots or ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall [continue in the same state or condition][in full effect], together with any other remedies now existing." Thus, the court held that MCL 168.861 is a savings clause. In MCL 600.4545(1), the Legislature expressly provided that "an action may be brought in the circuit court . . . whenever it appears that material fraud or error has been committed at any election . . . ." MCL 600.4545(3) further provides "that such action shall be brought in the nature of one for quo warranto." The court held that the Legislature, had it intended to provide for an action of quo warranto whenever there was illegal or fraudulent voting or tampering with the ballots or ballot boxes before a recount, could have used language similar to that used in MCL 600.4545. That it did not do so lent further support to the conclusion that MCL 168.861 was intended as a savings clause rather than an independent cause of action. Affirmed.

 

Insurance

 

This summary also appears under Workers' Compensation

 

Issues: Dispute as to which of the defendants-insurers was responsible for paying worker's compensation benefits; Whether the Worker's Compensation Appellate Commission (WCAC) acted within its statutory authority when it relied in part on equitable estoppel to determine that defendant-State Farm was the responsible insurer; Auto-Owners Ins. Co. v. Amoco Prod. Co.; Distinguishing Woody v. American Tank Co. and Sieman v. Postorino Sandblasting & Painting Co.; The WCAC's jurisdiction; MCL 418.841(1); Aetna Life Ins Co. v. Roose; MCL 418.852(1); Whether liability may be based on an erroneous certificate of insurance; Applicability of West Am. Ins. Co. v. Meridian Mut. Ins. Co.; Entitlement to reimbursement and interest under MCL 418.852(2); Calovecchi v. Michigan; Whether a "wrap-up" policy issued by defendant-St. Paul Guardian Insurance provided coverage; Whether the WCAC should have remanded the case to the Board of Magistrates to reopen the record to determine whether a policy issued by defendant-Amerisure was in effect at the time of the injury; MCL 418.861a(12); The WCAC's denial of State Farm's motion for a delayed appeal; MCL 418.859a(1); Michigan Admin. Code R 418.3(2), (4) and (6); Pankey v. Bigard/Drillers, Inc.; Review of the WCAC's decisions; Mudel v. Great Atl. & Pac. Tea Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of John L. Chase v. Terra Nova Indus.

e-Journal Number: 53432

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

 

In these consolidated cases, the court held, inter alia, that the WCAC did not exceed its statutory authority by relying on equitable estoppel principles in determining that defendant-State Farm was the responsible insurer. The case involved a dispute among insurers as to which one was responsible for the payment of benefits arising from a 1998 work-related foot injury to the plaintiff-PR's decedent, John Chase (who died in 2007), during the construction of a mall. The case had "a lengthy procedural history," including a prior appeal to the court. The court noted that "the WCAC properly may decide the insurance coverage afforded by a carrier." Further, the WCAC may apply equitable principles. Relying primarily on Woody and Sieman, State Farm argued that the WCAC exceeded its statutory authority because the WCAC lacks equitable jurisdiction. "However, those cases involved the issue whether a carrier was liable to an employer to pay benefits in excess of the limits in their respective out-of-state policies." Those cases recognized that the former WCAB (now the WCAC) lacked authority to change or set aside the limits in a carrier's policy because reformation of a policy is equitable relief. This case did not involve a request to reform an insurance policy - it involved whether State Farm may be liable for insurance coverage because of the actions of its insurance agent, N. "The determination whether coverage exists is within the jurisdiction of the WCAC," and the WCAC "may apply equitable principles" in deciding this issue. State Farm also challenged whether its liability may be based on an erroneous certificate of insurance, again relying on a portion of Woody, in which the court cautioned that a party (the city of Fremont) that hires independent contractors has an obligation to determine whether the contractor is adequately insured. However, that discussion was directed at Fremont's liability as a statutory employer under MCL 418.171. There was no other reference to a certificate of insurance in the decision. The court did not discuss the circumstances in which an agent's issuance of a certificate of insurance can bind an insurer to coverage, which was the key to State Farm's liability here. Thus, State Farm's reliance on that portion of Woody was misplaced. Its reliance on West American was also misplaced because that case did not concern whether the insurance agency's actions were binding as to the insurer or the legal effect of the issuance of a certificate by an insurer's exclusive agent. "That difference in the agency relationship makes West American inapposite." The court affirmed the WCAC's determination of liability and remanded for an initial determination of defendants-W.E. O'Neil Construction and Argonaut Insurance's entitlement to reimbursement and interest under MCL 418.852(2).

 

Litigation

 

This summary also appears under Election Law

 

Issues: Alleged election irregularities; Claim for "quo warranto"; Barrow v. Detroit Mayor; Hughes v. Region VII Area Agency on Aging; Moser v. Detroit; Feyz v. Mercy Mem'l Hosp.; Cummins v. Robinson Twp.; Liparoto Constr., Inc. v. General Shale Brick, Inc.; West v. General Motors Corp.; Statutory interpretation; Ward v. Michigan State Univ. (On Remand); Davis v. Chatman; MCR 3.306(2); MCL 600.4545(1); Whether Michigan law expressly provides a remedy by quo warranto voiding the election results before a recount pursuant to MCL 168.861; Whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto; Tevis v. Amex Assurance Co.; Ameritech Publ'g, Inc. v. Department of Treasury; Brackett v. Focus Hope, Inc.; "Remain" and "in . . . force" defined; "Savings clause"; MCL 600.4545(3); MCL 600.4545; Whether the trial court properly granted summary disposition to the Township defendants to the extent that plaintiffs' claim for quo warranto was brought pursuant to MCL 600.4545; "Material fraud or error"; Whether the analysis rendered the language within MCL 168.861 surplusage; MCL 168.871(3); Ryan v. Wayne Cnty. Bd. of Canvassers; Robinson v. City of Lansing; "Tampering"; MCL 168.871(1); Claim that the Township clerk was acting as an election inspector; MCL 168.672; MCL 168.674; MCL 168.677(1) and (3); MCL 168.778; Polkton Charter Twp. v. Pellegrom; Whether quo warranto was warranted under MCL 600.4545; West Shore Cmty. Coll. v. Manistee Cnty. Bd. of Comm'rs; Claim for "mandamus"; Bay City v. Bay Cnty. Treasurer; Keaton v. Village of Beverly Hills; Lickfeldt v. Department of Corrs.; Derderian v. Genesys Health Care Sys.; MCL 168.821; MCL 168.822(1); MCL 168.824; Danse Corp. v. Madison Heights

Court: Michigan Court of Appeals (Published)

Case Name: Hanlin v. Saugatuck Twp.

e-Journal Number: 53679

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

 

Deciding, inter alia, an issue of first impression as to whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto, the court held that "MCL 168.861 provides that the acts of illegal or fraudulent voting or of tampering with the ballots or ballot boxes before a recount do not extinguish an already existing claim for quo warranto." Thus, MCL 168.861 is a "savings clause" - it preserves the remedy of quo warranto in certain situations. Therefore, the trial court did not err in granting summary disposition to the Township defendants to the extent that plaintiffs' claim for quo warranto was brought pursuant to MCL 168.861 in this action based upon election irregularities. Plaintiffs sought permission to proceed quo warranto in relation to a proposed millage that passed. Plaintiffs contended that the trial court erred in granting summary disposition to the Township defendants on plaintiffs' claim of quo warranto because (1) there was, at a minimum, a question of fact as to whether the Township clerk tampered with the ballots, (2) the Township clerk committed gross error sufficient to warrant quo warranto relief, and (3) the voters were misled by the Township defendants as to the need for the millage funds. To pursue an action for quo warranto to challenge the validity of an election, plaintiffs must establish that a material fraud or error was committed in the election. Plaintiffs asserted that Michigan law also expressly provides a remedy by quo warranto and thus, voiding of the election results, for tampering with the ballots or ballot boxes before a recount pursuant to MCL 168.861. Whether MCL 168.861 provides an independent ground for bringing a claim for quo warranto has never been addressed by a Michigan appellate court and MCL 168.861 has never been interpreted by a Michigan appellate court. The court undertook the task keeping in mind that the goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. The key words found in MCL 168.861 are "remain" and "in . . . force." The word "remain" is defined as "to continue in the same state or condition" and "to endure or persist."The phrase "in force" is defined as "in effect; operative." When these definitions are placed in MCL 168.861, the statute then reads, "[f]or fraudulent or illegal voting, or tampering with the ballots or ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall [continue in the same state or condition][in full effect], together with any other remedies now existing." Thus, the court held that MCL 168.861 is a savings clause. In MCL 600.4545(1), the Legislature expressly provided that "an action may be brought in the circuit court . . . whenever it appears that material fraud or error has been committed at any election . . . ." MCL 600.4545(3) further provides "that such action shall be brought in the nature of one for quo warranto." The court held that the Legislature, had it intended to provide for an action of quo warranto whenever there was illegal or fraudulent voting or tampering with the ballots or ballot boxes before a recount, could have used language similar to that used in MCL 600.4545. That it did not do so lent further support to the conclusion that MCL 168.861 was intended as a savings clause rather than an independent cause of action. Affirmed.

 

Municipal

 

This summary also appears under Real Property

 

Issues: Establishment of a public highway under the "highway by user" statute (MCL 221.20); Kalkaska Cnty. Bd. of Rd. Comm'rs v. Nolan; City of Kentwood v. Sommerdyke Estate; Villadsen v. Mason Cnty. Rd. Comm'n; Stickley v. Sodus Twp.; Whether there was a genuine issue of material fact as to the elements of the highway by user statute; Cimock v. Conklin; Requirement that the public use must be "open, notorious, and exclusive"; Donaldson v. Alcona Cnty. Bd. of Rd. Comm'rs; "Speculation"; Ghaffari v. Turner Constr. Co. (On Remand); Applicability of the McNitt Act; Whether the plaintiff-Mecosta County Road Commission (MCRC) "abandoned" the disputed roadway; Rice v. Clare Cnty. Rd. Comm'n; Ambs v. Kalamazoo Cnty. Rd. Comm'n; Voluntary dismissal under MCR 2.504(A)(2); McKelvie v. City of Mt. Clemens; African Methodist Episcopal Church v. Shoulders; Makuck v. McMullin

Court: Michigan Court of Appeals (Unpublished)

Case Name: Farlow v. Grunst

e-Journal Number: 53453

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

 

The court held, inter alia, that the trial court correctly ruled that the highway by user element of "open, notorious, and exclusive" use by the public for the required 10 years was satisfied. The court also rejected the defendants-Grunsts' argument that the plaintiff-MCRC abandoned the disputed roadway, and concluded that the Grunsts failed to show that they were prejudiced by the trial court's voluntary dismissal of other defendants (the "plat amendment defendants") under MCR 2.504(A)(2). Thus, the court affirmed the trial court's order establishing a public highway under MCL 221.20. The Grunsts argued on appeal, inter alia, that the trial court erroneously held that there was no genuine issue of material fact as to the elements of the highway by user statute. Establishing a public highway pursuant to the highway by user statute requires - (1) a defined line, (2) that public authorities used and worked on the road, (3) public travel and use for 10 consecutive years without interruption, and (4) open, notorious, and exclusive public use. The first element was not disputed because there was a defined line of travel that had definite boundaries. The second element requires that "'public authorities must engage in more than infrequent, minor maintenance . . . .'" However, "when the disputed road has only minimal traffic, public maintenance of the road necessary to satisfy this element need not be extensive." The affidavits by employees of the MCRC showed that there was no issue of fact as to the second element. Defendants conceded that the third element was established. The court concluded that the trial court correctly held that there was no question of fact as to the "open" and "notorious" parts of the fourth element. "Plaintiffs submitted several affidavits that indicated that the individual plaintiffs, their family and friends, and members of the general public have used the disputed roadway for several years. Taken together, these affidavits establish open and notorious use of the disputed roadway." Further, defendant-James Grunst's affidavit indicated that he knew that the general public used the disputed roadway. Thus, the public use was "open" and "notorious" as to the Grunsts, the property owners of the disputed roadway. They asserted that the public's use of the disputed roadway was not "exclusive" because James Grunst granted permission to some but not all of the public that used the disputed roadway over the years. The court concluded that the Grunsts may have given permission to residents of one of the plats, including the individual plaintiffs, to use the disputed roadway. However, even if this occurred, there were additional affidavits to support the fourth element. The trial court ruled that the evidence the Grunsts submitted was too "speculative" to conclude that James Grunst gave permission to all users of the disputed roadway. Further, the affidavits plaintiffs submitted identified specific uses of the disputed roadway that were contrary to the Grunsts' interests and James Grunst's affidavit did not contradict these affidavits.

 

Real Property

 

This summary also appears under Municipal

 

Issues: Establishment of a public highway under the "highway by user" statute (MCL 221.20); Kalkaska Cnty. Bd. of Rd. Comm'rs v. Nolan; City of Kentwood v. Sommerdyke Estate; Villadsen v. Mason Cnty. Rd. Comm'n; Stickley v. Sodus Twp.; Whether there was a genuine issue of material fact as to the elements of the highway by user statute; Cimock v. Conklin; Requirement that the public use must be "open, notorious, and exclusive"; Donaldson v. Alcona Cnty. Bd. of Rd. Comm'rs; "Speculation"; Ghaffari v. Turner Constr. Co. (On Remand); Applicability of the McNitt Act; Whether the plaintiff-Mecosta County Road Commission (MCRC) "abandoned" the disputed roadway; Rice v. Clare Cnty. Rd. Comm'n; Ambs v. Kalamazoo Cnty. Rd. Comm'n; Voluntary dismissal under MCR 2.504(A)(2); McKelvie v. City of Mt. Clemens; African Methodist Episcopal Church v. Shoulders; Makuck v. McMullin

Court: Michigan Court of Appeals (Unpublished)

Case Name: Farlow v. Grunst

e-Journal Number: 53453

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

 

The court held, inter alia, that the trial court correctly ruled that the highway by user element of "open, notorious, and exclusive" use by the public for the required 10 years was satisfied. The court also rejected the defendants-Grunsts' argument that the plaintiff-MCRC abandoned the disputed roadway, and concluded that the Grunsts failed to show that they were prejudiced by the trial court's voluntary dismissal of other defendants (the "plat amendment defendants") under MCR 2.504(A)(2). Thus, the court affirmed the trial court's order establishing a public highway under MCL 221.20. The Grunsts argued on appeal, inter alia, that the trial court erroneously held that there was no genuine issue of material fact as to the elements of the highway by user statute. Establishing a public highway pursuant to the highway by user statute requires - (1) a defined line, (2) that public authorities used and worked on the road, (3) public travel and use for 10 consecutive years without interruption, and (4) open, notorious, and exclusive public use. The first element was not disputed because there was a defined line of travel that had definite boundaries. The second element requires that "'public authorities must engage in more than infrequent, minor maintenance . . . .'" However, "when the disputed road has only minimal traffic, public maintenance of the road necessary to satisfy this element need not be extensive." The affidavits by employees of the MCRC showed that there was no issue of fact as to the second element. Defendants conceded that the third element was established. The court concluded that the trial court correctly held that there was no question of fact as to the "open" and "notorious" parts of the fourth element. "Plaintiffs submitted several affidavits that indicated that the individual plaintiffs, their family and friends, and members of the general public have used the disputed roadway for several years. Taken together, these affidavits establish open and notorious use of the disputed roadway." Further, defendant-James Grunst's affidavit indicated that he knew that the general public used the disputed roadway. Thus, the public use was "open" and "notorious" as to the Grunsts, the property owners of the disputed roadway. They asserted that the public's use of the disputed roadway was not "exclusive" because James Grunst granted permission to some but not all of the public that used the disputed roadway over the years. The court concluded that the Grunsts may have given permission to residents of one of the plats, including the individual plaintiffs, to use the disputed roadway. However, even if this occurred, there were additional affidavits to support the fourth element. The trial court ruled that the evidence the Grunsts submitted was too "speculative" to conclude that James Grunst gave permission to all users of the disputed roadway. Further, the affidavits plaintiffs submitted identified specific uses of the disputed roadway that were contrary to the Grunsts' interests and James Grunst's affidavit did not contradict these affidavits.

 

Recreation & Sports Law

 

This summary also appears under Tax

 

Issues: The Single Business Tax Act (SBTA)(MCL 208.1 et seq.)(repealed); Whether the Tax Tribunal (TT) properly determined that the petitioners' revenue from the national broadcasting contracts for their professional basketball team (the Detroit Pistons) was income attributable to another entity and excludable from petitioners' tax base under the SBTA; Whether the NBA entered into the national broadcast contracts as a "joint venture" or as an agent for each NBA team; Kay Inv. Co., LLC v. Brody Realty No. 1, LLC; Berger v. Mead; Effect of the fact the NBA owned and controlled all copyrights to the televised games; Columbia Assoc., LP v. Department of Treasury; Apportionment of the revenue from the Pistons' local broadcast contract based on home and away games; MCL 208.41; MCL 208.46; MCL 208.49; MCL 208.51; "Sales" as including royalties (MCL 208.7(b)); MCL 208.53(b); Looking at the activity that created the revenue to determine whether the activity occurred in state or out of state; Detroit Lions, Inc. v. Department of Treasury; "Costs of performance"; Whether the TT correctly found that the royalties petitioners received from the local broadcast contract were royalties from "program matter"; MCL 208.9(7)(c); Defining "program" and "matter"; Statutory interpretation; Alliance Obstetrics & Gynecology v. Department of Treasury; Koontz v. Ameritech Servs., Inc.; Wexford Med. Group v. Cadillac

Court: Michigan Court of Appeals (Unpublished)

Case Name: Davidson v. Department of Treasury

e-Journal Number: 53507

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

 

The court held that the TT did not err in determining that the petitioners' (a/k/a the Detroit Pistons Basketball Company) revenue from national broadcasting contracts was income attributable to another entity (the NBA) and thus, excludable from the Pistons' tax base under the SBTA. Further, the TT did not err in allowing the Pistons to apportion the revenue from the team's local broadcast contract (the Fox broadcasts) based on home and away games. As to the Pistons' cross-appeal, the court held that the TT did not err in finding that the royalties the Pistons received from the Fox broadcasts were royalties from "program matter." Respondent issued assessments to the Pistons for the years 2002-04, asserting that the Pistons incorrectly determined the company's tax base. The Pistons appealed to the TT, and both parties moved for summary disposition. The TT determined that revenue from the national broadcasts should not be included in the Pistons' tax base, but that the revenue from the Fox broadcasts should be included. The TT adjusted the assessments accordingly. As to the national broadcast revenue, the court held that "the NBA was a joint venture and that the income was attributable to the NBA." The court noted that all 29 member teams entered into an agreement that explicitly stated the teams were joint venturers in a joint venture known as the NBA. The agreement repeatedly stated that the NBA was a joint venture with each member sharing in the income or losses. The court concluded that the agreement met all the requirements of a joint venture, and it was clear based on the agreement that the parties intended to establish a joint venture. Further, the NBA owned and controlled all copyrights to the televised games. "The NBA, as copyright owner, received royalties paid by broadcasters. Pursuant to the joint venture agreement, the NBA's income was divided equally among the 29 NBA teams after the NBA paid its operating expenses." As a joint venture, the NBA was subject to the SBTA. "Because the royalties were attributable to the NBA and the NBA was subject to the SBTA, petitioner could subtract from its tax base the royalties that were attributable to the NBA." The court also concluded that the TT correctly determined that royalties must be apportioned based on home and away games. "Home games obviously involve a higher cost of performance in the state" - thus, that business activity occurred in state. "The costs of travel, lodging, and food for away games are all costs associated with the business activity, and the majority of activity involving an away game occurred out of state." That business activity would be out of state and not includable in the Pistons' tax base. As to the royalties the Pistons received from the Fox contract, the court refused to disturb the TT's conclusion that a live basketball game was program matter. Thus, because the Pistons received royalties from the Fox contract for the team's basketball games, the Pistons could not deduct the royalties from the company's tax base. The court affirmed the TT's final opinion and judgment.

 

Tax

 

This summary also appears under Recreation & Sports Law

 

Issues: The Single Business Tax Act (SBTA)(MCL 208.1 et seq.)(repealed); Whether the Tax Tribunal (TT) properly determined that the petitioners' revenue from the national broadcasting contracts for their professional basketball team (the Detroit Pistons) was income attributable to another entity and excludable from petitioners' tax base under the SBTA; Whether the NBA entered into the national broadcast contracts as a "joint venture" or as an agent for each NBA team; Kay Inv. Co., LLC v. Brody Realty No. 1, LLC; Berger v. Mead; Effect of the fact the NBA owned and controlled all copyrights to the televised games; Columbia Assoc., LP v. Department of Treasury; Apportionment of the revenue from the Pistons' local broadcast contract based on home and away games; MCL 208.41; MCL 208.46; MCL 208.49; MCL 208.51; "Sales" as including royalties (MCL 208.7(b)); MCL 208.53(b); Looking at the activity that created the revenue to determine whether the activity occurred in state or out of state; Detroit Lions, Inc. v. Department of Treasury; "Costs of performance"; Whether the TT correctly found that the royalties petitioners received from the local broadcast contract were royalties from "program matter"; MCL 208.9(7)(c); Defining "program" and "matter"; Statutory interpretation; Alliance Obstetrics & Gynecology v. Department of Treasury; Koontz v. Ameritech Servs., Inc.; Wexford Med. Group v. Cadillac

Court: Michigan Court of Appeals (Unpublished)

Case Name: Davidson v. Department of Treasury

e-Journal Number: 53507

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

 

The court held that the TT did not err in determining that the petitioners' (a/k/a the Detroit Pistons Basketball Company) revenue from national broadcasting contracts was income attributable to another entity (the NBA) and thus, excludable from the Pistons' tax base under the SBTA. Further, the TT did not err in allowing the Pistons to apportion the revenue from the team's local broadcast contract (the Fox broadcasts) based on home and away games. As to the Pistons' cross-appeal, the court held that the TT did not err in finding that the royalties the Pistons received from the Fox broadcasts were royalties from "program matter." Respondent issued assessments to the Pistons for the years 2002-04, asserting that the Pistons incorrectly determined the company's tax base. The Pistons appealed to the TT, and both parties moved for summary disposition. The TT determined that revenue from the national broadcasts should not be included in the Pistons' tax base, but that the revenue from the Fox broadcasts should be included. The TT adjusted the assessments accordingly. As to the national broadcast revenue, the court held that "the NBA was a joint venture and that the income was attributable to the NBA." The court noted that all 29 member teams entered into an agreement that explicitly stated the teams were joint venturers in a joint venture known as the NBA. The agreement repeatedly stated that the NBA was a joint venture with each member sharing in the income or losses. The court concluded that the agreement met all the requirements of a joint venture, and it was clear based on the agreement that the parties intended to establish a joint venture. Further, the NBA owned and controlled all copyrights to the televised games. "The NBA, as copyright owner, received royalties paid by broadcasters. Pursuant to the joint venture agreement, the NBA's income was divided equally among the 29 NBA teams after the NBA paid its operating expenses." As a joint venture, the NBA was subject to the SBTA. "Because the royalties were attributable to the NBA and the NBA was subject to the SBTA, petitioner could subtract from its tax base the royalties that were attributable to the NBA." The court also concluded that the TT correctly determined that royalties must be apportioned based on home and away games. "Home games obviously involve a higher cost of performance in the state" - thus, that business activity occurred in state. "The costs of travel, lodging, and food for away games are all costs associated with the business activity, and the majority of activity involving an away game occurred out of state." That business activity would be out of state and not includable in the Pistons' tax base. As to the royalties the Pistons received from the Fox contract, the court refused to disturb the TT's conclusion that a live basketball game was program matter. Thus, because the Pistons received royalties from the Fox contract for the team's basketball games, the Pistons could not deduct the royalties from the company's tax base. The court affirmed the TT's final opinion and judgment.

 

Issues: Claims related to out-of-state businesses doing business in Michigan as to taxes owed under the Michigan Single Business Tax Act (SBTA)(MCL 208.1 et seq.); Whether the defendant-Department properly held that both plaintiffs were responsible for selling tangible personal property in Michigan and assessed taxes, interest, and penalties against them; Statutory interpretation; JW Hobbs Corp. v. Department of Treasury; Vomvolakis v. Department of Treasury; Whether the Department used the proper calculation method (the population method) to determine the tax owed by the plaintiffs; Uniloy Milacron USA, Inc. v. Department of Treasury; Whether the costs of performance were primarily incurred in Michigan; Ammex, Inc. v. Department of Treasury; MCL 208.53(b); The "burden of production"; MCR 2.116(C)(10); Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; Karbel v. Comerica Bank; Harts v. Famers Ins. Exch.; Failure to present any meaningful argument or analysis of an issue; Wilson v. Taylor

Court: Michigan Court of Appeals (Unpublished)

Case Name: JRS Distrib. Co. v. Department of Treasury

e-Journal Number: 53435

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

 

In this case where the Court of Claims granted the plaintiffs summary disposition because the defendant-Department's assessments of tax liability under the SBTA against them were based on an improper method of calculation, the court affirmed. Plaintiff-JRS is an Illinois company with its principal place of business in Wisconsin. Plaintiff-PIL is an Illinois corporation with its principal place of business in Illinois. During the disputed tax years (6/93 through 5/03) JRS and PIL were involved in a joint venture to sell books in Michigan. Pursuant to their agency and sales agreements, PIL was responsible for the creative development and publication of various books, which were then purchased by JRS and later sold to Michigan customers. PIL held title to all unsold books and title transferred to JRS after purchase. JRS stored the books at its warehouse in Wisconsin until they were shipped to a Michigan buyer. JRS hired PIL to act as its commissioned sales agent in Michigan. PIL agreed to solicit orders from Michigan residents to sell JRS's book. PIL was paid a 25% commission on all book sales to Michigan residents. Once the books were purchased by Michigan customers, JRS was solely responsible for the delivery and transportation of the books from its Wisconsin warehouse to Michigan customers. PIL primarily solicited sales from Michigan residents through the telephone solicitations conducted at PIL's out-of-state offices. PIL admitted that it had occasionally sent sales reps to Michigan to solicit sales from larger customers, but asserted that this occurred on few occasions and did not comprise the majority of its Michigan business activities. Defendant audited both plaintiffs and assessed additional taxes against them under the SBTA. Defendant contended that they were responsible for selling tangible personal property in Michigan and assessed taxes, interest, and penalties against them. Although both plaintiffs provided defendant with documentation as to the sales of books to Michigan customers, during the audit process, defendant requested that both submit additional information, including a 50-state sales breakdown detailing their book sales in each state. Because both plaintiffs failed to comply with the audit, defendant assessed SBT liability based on what it deemed to be the "best information available." Both plaintiffs paid the amounts assessed under protest and sued defendant to contest their respective tax liabilities. JRS moved for summary disposition arguing that it was entitled to a refund ($20,430.07) because defendant improperly calculated its "sales factor" in violation of the unambiguous language of the SBTA. JRS argued that defendant improperly used a population formula in its calculation and if defendant had used the proper calculation, its total tax would be $9,707.22. The court agreed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Rood; In re Ellis; In re Trejo Minors; Children's best interests; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re McQueen/Moorlet/Lyle

e-Journal Number: 53514

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

 

The court held that the trial court properly determined that at least one statutory ground for terminating the respondent-mother's parental rights to the minor children was established by clear and convincing evidence and that termination was in their best interests. However, the court vacated the trial court's best interests' determination as to the children placed with relatives at the time of the termination and remanded the case for further consideration of that issue in light of relative placement. On 9/10/09, a petition was authorized to initiate child protective proceedings against respondent, alleging alcohol and substance abuse and abandonment of her eight children without provisions. After the petition was filed, she gave birth to two additional children. She did not obtain suitable housing, did not comply with the drug testing procedure, and did not visit the older children. The trial court found that respondent did not comply with the terms of the PAA and terminated her parental rights to the four children who were the subject of this appeal. On 10/5/09, she pleaded to the allegations in the petition - specifically that she abused marijuana and alcohol, was homeless, and had abandoned her children with no provisions. The termination hearing began on 12/12/11, over two years later. "At the hearing, respondent admitted that she had a problem with marijuana and alcohol abuse and did not have a place to live with her children." She had no source of income and was still unable to provide for her children. "According to respondent's caseworker, respondent had not made progress in obtaining the return of her children." Based on the record, the court held that there was clear and convincing evidence the conditions that led to adjudication continued to exist at the time of the termination hearing. Further, respondent was given over two years to rectify the conditions that led to adjudication and had made no progress, and there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the children's ages. The court also concluded that the trial court did not err in finding that termination was in the children's best interests. However, the court had to vacate the trial court's best interests' determination because the record did not contain an express consideration of the children's placement with relatives even though some of them were placed with relatives at the time of the termination. Affirmed in part, vacated in part, and remanded for further proceedings as to the children placed with relatives at the time of the termination hearing.

 

Issues: Termination under §§ 19b(3)(a)(ii), (g), and (j); In re Trejo Minors; In re Mason; In re Ellis; Child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Prophet

e-Journal Number: 53515

Judge(s): Memorandum – Whitbeck, Fitzgerald, and Beckering

 

The court held that the trial court properly terminated the respondent-father's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence and termination was in the child's best interests. The trial court took special note of respondent's extensive criminal record, and found credible the testimony of the child's mother as to respondent's assaultive nature. "Specifically, the mother testified that respondent had physically assaulted her several times, including three times while she was pregnant with the child, and once while she was holding the child and resulted in an injury to the child's head." The record indicated that respondent failed to communicate with the child for a lengthy period of time, failed to provide meaningful support for the child, and failed to attempt to gain custody of the child in Michigan. The record also indicated that respondent failed to meaningfully respond to petitioner's attempts to engage him. At the time of the termination trial, he had received no services and had not even begun to attempt to comply with any parent agency treatment plans. Affirmed.

 

Issues: Termination under §§ 19b(3)(g) and (j); In re Trejo Minors; In re Conley; In re Dahms; The children's best interests; In re Olive/Metts; Reunification; "Plain error"; Kern v. Blethen-Coluni; In re Mason

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Richardson

e-Journal Number: 53556

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor children where the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. Respondent protested that she had benefitted from therapy and was continuing therapy in hopes of greater progress, "but her lack of progress in that regard was much in evidence." The court noted that failure to "'substantially comply with a court-ordered case service plan is evidence that return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well being.'" Respondent complained that her visitation with the children was conditioned on her having three consecutive negative drug screens, but cited no authority for the proposition that this was an unreasonable condition to impose on a parent with known substance-abuse problems. She also did not take issue with the trial court's finding that her substance-abuse problem continued throughout trial. "A parent's persistent failure to gain control over a substance-abuse problem is ground for termination of parental rights." Concerning respondent's mental-health issues, she asserted that she was taking medication and seeing therapists, but did not assert that those issues were successfully addressed. Also, she ignored her lack of progress in this area during the pendency of the proceedings. She attributed the various interruptions or delays in her participation in services to petitioner-DHS, but failed to point to any evidence that she was earnestly seeking assistance while DHS was uncooperative. Respondent stated that the trial court "erred in not providing six months to allow [her] to complete all her services," but "'the Legislature did not intend that children be left indefinitely in foster care, but rather that parental rights be terminated if the conditions leading to the proceedings could not be rectified within a reasonable time.'" Affirmed.

 

Issues: Termination under §§ 19b(3)(g) and (j); In re Utrera; In re Powers

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Smith

e-Journal Number: 53565

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where § 19b(3)(g) was established by clear and convincing evidence. By virtue of her no-contest plea, she acknowledged that she was unable to provide proper care or custody for the child because she did not have suitable housing or a source of income with which to support the child. The trial court took judicial notice of the file, which showed that respondent was provided with reunification services for several years, yet failed to sustain any significant benefit from them and her parental rights to five other children were terminated. The evidence showed that after this child entered care, respondent did little to improve her ability to care for the child. "Despite a history of domestic violence, respondent reconciled with a violent partner. She had unsuitable housing and no evidence showed that her living situation was likely to change." Though she was working and testified that she was looking for another place to live, she also testified that she could not find anything she could afford. Respondent also had a history of mental illness that remained untreated. Though she testified that she would participate in services, she did not benefit from mental health treatment and other services in the past. She tested positive for marijuana in 2010 and admitted that she consumed marijuana and alcohol just a few days before the dispositional hearing, yet she denied having a substance abuse problem. The court concluded that this evidence supported the trial court's ruling that there was "no reasonable expectation that respondent will be able to provide proper care and custody within a reasonable time given the child's age." Affirmed.

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); Children's best interests; In re Trejo Minors; Draggoo v. Draggoo; In re Olive/Metts Minors; Ineffective assistance of counsel; In re CR; People v. Davis

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Walter/Clark

e-Journal Number: 53599

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

 

The court held that, inter alia, the trial court properly terminated the respondent-mother's parental rights to the minor children where termination was in the children's best interests. Respondent argued that termination of her parental rights was not in the children's best interests because she began making "marked improvement" toward rectifying the conditions of substance abuse and unstable emotional health after investing in services several months into the proceeding. Further, she noted the trial court was not required to terminate her parental rights, and argued it would have been in the children's best interests to allow her more time to rehabilitate, particularly given the fact that at the time of the termination hearing petitioner-DHS had not identified any alternate, viable permanency option for the children. The evidence showed respondent's children were removed in 4/11 because of her "dual and interrelated issues of substance abuse and unstable mental health, and because of neglect." Respondent did not begin addressing those issues until 12/11. "Her hostility toward caseworkers, service providers, and foster parents hindered her progress toward reunification for much of the proceedings." The trial court based both its finding of sufficient evidence to establish statutory grounds for termination and the children's best interests on its summary of the evidence presented. It did not specifically note the 12-year old MW's strong bond with respondent, or EC and SC's lesser bond, but it relied on other factors, noting that respondent's belligerent attitude during the case had harmed the children. As to her parenting ability at the time of the termination hearing, the trial court specifically found that respondent had refused for most of the proceeding to admit that she was an inappropriate parent when using substances, had shown a genuine desire to become sober during the past three to four months but otherwise had not made progress in rectifying the issues of unstable mental health, abuse of substances and neglect, and that the changes required of her were significant and could take years. As to the children's need for permanency, the trial court observed that they needed a permanent environment and were "not close to getting it today." Although the trial court was not required to terminate respondent's parental rights after one year of temporary wardship, it was not prohibited from doing so, and it heard evidence that she had received nearly a year of intervention services in another county immediately before this proceeding. It also heard evidence that allowing her additional time to rehabilitate would be harmful to MW because his behavior was negatively affected by continued contact with respondent. The trial court did not make a comparison of respondent's home with any of the foster homes in which the children resided, but heard evidence that MW had made progress in the structured environment provided by residential placement, was diagnosed with oppositional defiant disorder and ADHD, could not focus enough to even begin addressing his behavioral issues without medication, that respondent had refused to authorize medication for him, "and that he required a home environment that was very structured and provided close supervision, attention, firm boundaries, parental interaction with his school, and implementation of behavior modification techniques." It also heard evidence that EC regressed after visits with respondent and that SC had resided approximately half of her life outside of her care. Affirmed.

 

Workers' Compensation

This summary also appears under Insurance

 

Issues: Dispute as to which of the defendants-insurers was responsible for paying worker's compensation benefits; Whether the Worker's Compensation Appellate Commission (WCAC) acted within its statutory authority when it relied in part on equitable estoppel to determine that defendant-State Farm was the responsible insurer; Auto-Owners Ins. Co. v. Amoco Prod. Co.; Distinguishing Woody v. American Tank Co. and Sieman v. Postorino Sandblasting & Painting Co.; The WCAC's jurisdiction; MCL 418.841(1); Aetna Life Ins Co. v. Roose; MCL 418.852(1); Whether liability may be based on an erroneous certificate of insurance; Applicability of West Am. Ins. Co. v. Meridian Mut. Ins. Co.; Entitlement to reimbursement and interest under MCL 418.852(2); Calovecchi v. Michigan; Whether a "wrap-up" policy issued by defendant-St. Paul Guardian Insurance provided coverage; Whether the WCAC should have remanded the case to the Board of Magistrates to reopen the record to determine whether a policy issued by defendant-Amerisure was in effect at the time of the injury; MCL 418.861a(12); The WCAC's denial of State Farm's motion for a delayed appeal; MCL 418.859a(1); Michigan Admin. Code R 418.3(2), (4) and (6); Pankey v. Bigard/Drillers, Inc.; Review of the WCAC's decisions; Mudel v. Great Atl. & Pac. Tea Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of John L. Chase v. Terra Nova Indus.

e-Journal Number: 53432

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

 

In these consolidated cases, the court held, inter alia, that the WCAC did not exceed its statutory authority by relying on equitable estoppel principles in determining that defendant-State Farm was the responsible insurer. The case involved a dispute among insurers as to which one was responsible for the payment of benefits arising from a 1998 work-related foot injury to the plaintiff-PR's decedent, John Chase (who died in 2007), during the construction of a mall. The case had "a lengthy procedural history," including a prior appeal to the court. The court noted that "the WCAC properly may decide the insurance coverage afforded by a carrier." Further, the WCAC may apply equitable principles. Relying primarily on Woody and Sieman, State Farm argued that the WCAC exceeded its statutory authority because the WCAC lacks equitable jurisdiction. "However, those cases involved the issue whether a carrier was liable to an employer to pay benefits in excess of the limits in their respective out-of-state policies." Those cases recognized that the former WCAB (now the WCAC) lacked authority to change or set aside the limits in a carrier's policy because reformation of a policy is equitable relief. This case did not involve a request to reform an insurance policy - it involved whether State Farm may be liable for insurance coverage because of the actions of its insurance agent, N. "The determination whether coverage exists is within the jurisdiction of the WCAC," and the WCAC "may apply equitable principles" in deciding this issue. State Farm also challenged whether its liability may be based on an erroneous certificate of insurance, again relying on a portion of Woody, in which the court cautioned that a party (the city of Fremont) that hires independent contractors has an obligation to determine whether the contractor is adequately insured. However, that discussion was directed at Fremont's liability as a statutory employer under MCL 418.171. There was no other reference to a certificate of insurance in the decision. The court did not discuss the circumstances in which an agent's issuance of a certificate of insurance can bind an insurer to coverage, which was the key to State Farm's liability here. Thus, State Farm's reliance on that portion of Woody was misplaced. Its reliance on West American was also misplaced because that case did not concern whether the insurance agency's actions were binding as to the insurer or the legal effect of the issuance of a certificate by an insurer's exclusive agent. "That difference in the agency relationship makes West American inapposite." The court affirmed the WCAC's determination of liability and remanded for an initial determination of defendants-W.E. O'Neil Construction and Argonaut Insurance's entitlement to reimbursement and interest under MCL 418.852(2).

 

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