• Attorneys (1)
• Business Law (1)
• Contracts (1)
• Criminal Law (4)
• Election Law (1)
• Litigation (2)
• Municipal (2)
• Termination of Parental Rights (1)

Attorneys

 

This summary also appears under Litigation

 

Issues: Action to collect a portion of the attorney fees awarded in a class action lawsuit; "Implied contract" theory; Keywell & Rosenfeld v. Bithell; Featherston v. Steinhoff; Detroit v. Highland Park; In re Lewis Estate; "Unjust enrichment"; Belle Isle Grill Corp. v. Detroit; Morris Pumps v. Centerline Piping, Inc.; Summary disposition under MCR 2.116(C)(8); Beaudrie v. Henderson; Summary disposition under MCR 2.116(C)(10); Maiden v. Rozwood; Whether the defendants were entitled to summary disposition where they allegedly failed to plead "affirmative defenses" or supply a factual basis for affirmative defenses properly raised; Campbell v. St. John Hosp.; MCR 2.111(F)(3); Attorney Gen. ex rel DEQ v. Bulk Petroleum Corp.; Stanke v. State Farm Mut. Auto. Ins. Co.; McCracken v. Detroit; Laches; Attorney Gen. v. Powerpick Players' Club of MI, LLC; Department of Pub. Health v. Rivergate Manor; Motion for leave to amend the complaint; "Futility"; Franchino v. Franchino; MCR 2.116(I)(5); Establishing a breach of contract; Pawlak v. Redox Corp.; Elements of a contract; Mallory v. City of Detroit; "Mutual assent" requirement; Borg-Warner Acceptance Corp. v. Department of State; Discussions and negotiations; Thomas v. Leja; "Consideration" requirement; "Past consideration"; Shirey v. Camden

Court: Michigan Court of Appeals (Unpublished)

Case Name: Anderson v. Davis

e-Journal Number: 53492

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

 

Holding, inter alia, that the defendants were entitled to summary disposition as a matter of law because the plaintiffs failed to state a claim on which relief could be granted and there was no genuine issue of material fact, the court affirmed the trial court's order granting defendants summary disposition in this attorney fee dispute. The complaint alleged that plaintiff-Anderson filed a class action lawsuit in 1998 on behalf of himself, his wife, and others. In 1999, he began discussions with defendant-Davis over defendants' employment as co-counsel on the case. While those discussions were underway, plaintiffs successfully moved to certify the class action. Days later, Anderson paid Davis a retainer fee of $1,500, but a retainer agreement was never agreed to. The court reversed the trial court's order certifying the class action. "At that point, Anderson and Davis got into a dispute over what the next course of action should be. Anderson wanted to appeal to the Michigan Supreme Court and Davis wanted to simply go back to the trial court and re-move for certification. Anderson then unilaterally sought leave to appeal to the Supreme Court, which was denied." Anderson withdrew as class representative and class co-counsel for the class action lawsuit. He also sought to initiate a separate case and attempted to have other class members join his separate action. Davis again sought and obtained class certification in the trial court and was confirmed as class counsel. The underlying class action lawsuit was settled in the class action plaintiffs' favor in the amount of $500,000 and defendants were awarded $150,000 as a class action attorney fee. In this case, plaintiffs claimed that their efforts significantly benefitted defendants and the class, which helped to facilitate settlement of the class action suit. Thus, plaintiffs believed they were entitled to half of the attorney fees awarded and sought recovery under an implied contract. After the trial court granted defendants summary disposition, plaintiffs unsuccessfully moved to amend their complaint to include a breach of express contract claim. The court concluded that "any alleged failure to raise an affirmative defense did not preclude summary disposition in defendants' favor," and that they did affirmatively plead laches. While the trial court did not state how defendants' position materially changed due to the passage of time, the court concluded that even if the trial court erred in granting summary disposition under the laches doctrine, summary disposition for defendants was proper. The court stated that if anything, "Anderson's behavior was an impediment to the ultimate settlement agreement." He did not deny that he attempted to have the class members abandon Davis, or that he declined to mediate the issue of attorney fees before the Special Master in the underlying class action. There was "simply nothing on the record to support Anderson's claim that he is entitled to any portion of the fees recovered in the settlement." There was no evidence to support plaintiffs' claim that defendants were unjustly enriched at plaintiffs' expense. "In fact, plaintiffs conferred no benefit to defendants or the class. Any benefits previously conferred by Anderson's prior representation had been undone."

 

Business Law

 

This summary also appears under Contracts

 

Issues: Whether defendants violated the former Uniform Securities Act (USA)(MCL 451.501 et seq.); People v. Dempster; Michelson v. Voison; Former § 101(2) of the USA (MCL 451.501(2)); Former § 301 (MCL 451.701); Civil liability in § 410 (MCL 451.810); Registration requirements for securities pursuant to MCL 451.810(a)(1); Whether the trial court considered plaintiffs' claim that they were entitled to a remedy of rescission based on defendants' failure to perfect an exemption to the registration requirements under MCL 451.802(b)(9)(D)(1)(ii); Legislative intent; Echelon Homes, LLC v. Carter Lumber Co.; Robinson v. City of Lansing; MCL 451.802(b)(9); Effect of plaintiffs' failure to address a necessary issue; Roberts & Son Contracting, Inc. v. North Oakland Dev. Corp; Claims for civil liability under MCL 451.810(a)(2); Additional materials submitted with a brief on appeal; Amorello v. Monsanto Corp.; Scope of securities laws; Capital Mgmt. Select Fund v. Bennett (2nd Cir.); A statement satisfying the factual element; Virginia Bankshares, Inc. v. Sandberg; Glassman v. Computervision Corp. (1st Cir.); A "material misstatement or omission of fact"; Prince v. Heritage Oil Co.; Blackmon v. Nexity Fin. Corp. (AL); "Puffery"; In re Vivendi Universal, SA Sec. Litig. (SD NY); Berson v. Applied Signal Tech., Inc. (9th Cir.); "Due diligence"; Levin v. May (LA App.); Future promises; Hi-Way Motor Co. v. International Harvester; Moot issues; B P 7 v. Bureau of State Lottery; Ann Arbor Machine Company (AAMC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Levy v. Ann Arbor Mach. Co.

e-Journal Number: 53578

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

 

Concluding, inter alia, that the plaintiffs did not address the necessary issue of whether a genuine issue of material fact existed as to the applicability of subsection (b)(9)(D)(5)(ii) to the securities transactions involved in this case, the court held that they were not entitled to relief as to defendants' alleged failure to perfect an exemption to the registration requirements. The court affirmed the trial court's opinion and order granting defendants' motion for summary disposition as to plaintiffs' claims that defendants violated the former USA. Plaintiff-Levy and three trusts, whose trustees were associated with Levy, each invested $375,000 in stock of a holding company, defendant-WWMYS, which was formed by defendants-Eric Borman, Paul Borman, and Stuart Borman to fund and operate defendant-Ann Arbor Machine Company, L.L.C. The executive summary that accompanied the subscription agreements for investors to purchase units of WWMYS and Ann Arbor LLC specified that WWMYS was offering 40,000 shares of its common stock and that Ann Arbor LLC would provide up to 96,000 units of "Class B membership interests" to "a limited number of ‘accredited investors' in a private offering." It also specified that the three Borman defendants were forming Ann Arbor LLC and certain related entities to acquire defendant-AAMC, which was described as "a machine tool company that designs, engineers, manufactures and assembles machine tools, manufacturing solutions, and other products for automotive suppliers, automobile manufactures [sic], and other manufacturing markets." Plaintiffs raised an issue on appeal concerning the civil liability established by the USA for a violation of registration requirements for securities pursuant to MCL 451.810(a)(1). They argued that the trial court failed to consider their claim that they were entitled to a remedy of rescission based on defendants' failure to perfect an exemption to the registration requirements under MCL 451.802(b)(9)(D)(1)(ii). It was clear from defendants' motion for summary disposition that they were relying on subsection (b)(9)(D)(5)(ii) to claim an exemption. "Because MCL 451.802(b)(9)(D) plainly provides that only one listed item is required for the exemption," it was immaterial whether defendants could satisfy subsection (b)(9)(D)(1)(ii). As to plaintiffs' claims for civil liability under MCL 451.810(a)(2), the court held that "the trial court did not err in determining that the alleged misrepresentations regarding backlogged or booked orders were immaterial as a matter of law." They also failed to establish by substantively admissible evidence a material false statement as to the value of the inventory that would support a claim under MCL 451.810(a)(2). The court affirmed the trial court's grant of summary disposition to defendants on plaintiffs' claims under MCL 451.810(a)(2) because plaintiffs failed to show a genuine issue of material fact as to whether there were material untrue statements or misleading omissions.

 

Contracts

 

This summary also appears under Business Law

 

Issues: Whether defendants violated the former Uniform Securities Act (USA)(MCL 451.501 et seq.); People v. Dempster; Michelson v. Voison; Former § 101(2) of the USA (MCL 451.501(2)); Former § 301 (MCL 451.701); Civil liability in § 410 (MCL 451.810); Registration requirements for securities pursuant to MCL 451.810(a)(1); Whether the trial court considered plaintiffs' claim that they were entitled to a remedy of rescission based on defendants' failure to perfect an exemption to the registration requirements under MCL 451.802(b)(9)(D)(1)(ii); Legislative intent; Echelon Homes, LLC v. Carter Lumber Co.; Robinson v. City of Lansing; MCL 451.802(b)(9); Effect of plaintiffs' failure to address a necessary issue; Roberts & Son Contracting, Inc. v. North Oakland Dev. Corp; Claims for civil liability under MCL 451.810(a)(2); Additional materials submitted with a brief on appeal; Amorello v. Monsanto Corp.; Scope of securities laws; Capital Mgmt. Select Fund v. Bennett (2nd Cir.); A statement satisfying the factual element; Virginia Bankshares, Inc. v. Sandberg; Glassman v. Computervision Corp. (1st Cir.); A "material misstatement or omission of fact"; Prince v. Heritage Oil Co.; Blackmon v. Nexity Fin. Corp. (AL); "Puffery"; In re Vivendi Universal, SA Sec. Litig. (SD NY); Berson v. Applied Signal Tech., Inc. (9th Cir.); "Due diligence"; Levin v. May (LA App.); Future promises; Hi-Way Motor Co. v. International Harvester; Moot issues; B P 7 v. Bureau of State Lottery; Ann Arbor Machine Company (AAMC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Levy v. Ann Arbor Mach. Co.

e-Journal Number: 53578

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

 

Concluding, inter alia, that the plaintiffs did not address the necessary issue of whether a genuine issue of material fact existed as to the applicability of subsection (b)(9)(D)(5)(ii) to the securities transactions involved in this case, the court held that they were not entitled to relief as to defendants' alleged failure to perfect an exemption to the registration requirements. The court affirmed the trial court's opinion and order granting defendants' motion for summary disposition as to plaintiffs' claims that defendants violated the former USA. Plaintiff-Levy and three trusts, whose trustees were associated with Levy, each invested $375,000 in stock of a holding company, defendant-WWMYS, which was formed by defendants-Eric Borman, Paul Borman, and Stuart Borman to fund and operate defendant-Ann Arbor Machine Company, L.L.C. The executive summary that accompanied the subscription agreements for investors to purchase units of WWMYS and Ann Arbor LLC specified that WWMYS was offering 40,000 shares of its common stock and that Ann Arbor LLC would provide up to 96,000 units of "Class B membership interests" to "a limited number of ‘accredited investors' in a private offering." It also specified that the three Borman defendants were forming Ann Arbor LLC and certain related entities to acquire defendant-AAMC, which was described as "a machine tool company that designs, engineers, manufactures and assembles machine tools, manufacturing solutions, and other products for automotive suppliers, automobile manufactures [sic], and other manufacturing markets." Plaintiffs raised an issue on appeal concerning the civil liability established by the USA for a violation of registration requirements for securities pursuant to MCL 451.810(a)(1). They argued that the trial court failed to consider their claim that they were entitled to a remedy of rescission based on defendants' failure to perfect an exemption to the registration requirements under MCL 451.802(b)(9)(D)(1)(ii). It was clear from defendants' motion for summary disposition that they were relying on subsection (b)(9)(D)(5)(ii) to claim an exemption. "Because MCL 451.802(b)(9)(D) plainly provides that only one listed item is required for the exemption," it was immaterial whether defendants could satisfy subsection (b)(9)(D)(1)(ii). As to plaintiffs' claims for civil liability under MCL 451.810(a)(2), the court held that "the trial court did not err in determining that the alleged misrepresentations regarding backlogged or booked orders were immaterial as a matter of law." They also failed to establish by substantively admissible evidence a material false statement as to the value of the inventory that would support a claim under MCL 451.810(a)(2). The court affirmed the trial court's grant of summary disposition to defendants on plaintiffs' claims under MCL 451.810(a)(2) because plaintiffs failed to show a genuine issue of material fact as to whether there were material untrue statements or misleading omissions.

 

Criminal Law

 

Issues: Prosecutorial misconduct; Whether the prosecutor improperly vouched for the victim's credibility during her rebuttal argument; People v. Unger; "Plain error"; People v. Bennett; People v. Seals; People v. Meissner; People v. Thomas; Ineffective assistance of counsel for failure to object to the prosecutor's remarks; People v. Russell; Whether the trial court's reference to defendant as the "perpetrator" in front of the jury directed a verdict of guilt in violation of the Sixth and Fourteenth Amendments; People v. Metamora Water Serv.; People v. Bauder; The "veil of judicial impartiality"; People v. Conley; People v. Bearss; Whether defendant's convictions for both carjacking and UDAA violated double jeopardy; People v. McGee; People v. Smith; United States v. Dixon; People v. Johnson, (Unpub.); People v. Baker (Unpub.); People v. Williams; Motion to suppress; People v. Gentner; "Probable cause" to arrest; People v. Reese; Admission of evidence from the photographic lineup; People v. Currelley; Whether the photographic lineup was unduly suggestive; People v. Harris; Arraignment delay; People v. Manning; People v. Mallory; Riverside Co. v. McLaughlin; People v. Harrison; Whether the prosecution failed to provide defendant with a copy of the felony complaint and felony warrant; Due process; People v. Schumacher; MCR 6.101(A) and (B); MCR 6.104(D) and (E)(1); Whether defendant's convictions of both felon in possession and felony-firearm violated double jeopardy principles; People v. Calloway; Jurisdiction; MCR 6.112(C); MCR 6.112(G); People v. Waclawski

Court: Michigan Court of Appeals (Published)

Case Name: People v. Cain

e-Journal Number: 53573

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

 

Holding, inter alia, that the prosecutor's statements did not amount to plain error, the court affirmed defendant's convictions of carjacking, UDAA, two counts of receiving and concealing a stolen motor vehicle, felon in possession, and felony-firearm. The case arose from a carjacking. Defendant argued that the prosecutor's statement improperly bolstered the victim, S's credibility. The prosecutor's comments were made in response to defense counsel's numerous challenges to S's credibility during his closing argument. After defendant argued that S was an incredible witness, the prosecutor could permissibly argue in response that S had no motive to lie. This was the prosecutor's argument when she said that S was brave to come in and testify, presumably because he might be retaliated against for testifying against defendant. Further, the prosecutor's comments did not imply that she had special knowledge about S's truthfulness. Rather, she made logical inferences from the evidence that a person generally does not go to the trouble of fabricating a carjacking and lying about who did it. The jury heard that S reported the carjacking to the police the night of 6/4/10, and went to the police station on 6/8/10, to view a photo array of suspects and give another statement. Also, the jury heard S testify at trial. From this evidence, the prosecutor could reasonably infer that S would go to these lengths only if he had actually been carjacked. Also, if the court were to find any impropriety in the prosecutor's remarks, any alleged prejudice was cured by the trial court's jury instructions. The trial judge reminded the jurors that they took an oath to return a verdict based only on the evidence and his instructions on the law. He further instructed the jurors that it was their responsibility alone to determine the facts of the case. The trial court told the jury that the attorneys' statements and arguments were not evidence and should not be considered during deliberations. Also, the trial court instructed the jurors that they should evaluate the witnesses' credibility based on their own observations and common sense.

 

Issues: Sentencing; Scoring of OV 6; People v. McGraw; People v. Hicks; People v. Hornsby; Whether the trial court could infer from the defendant's actions that he had the premeditated intent to kill the victim; People v. Coy; People v. Plummer; Ineffective assistance of counsel; People v. LeBlanc; People v. Johnson; People v. Carbin; Strickland v. Washington; People v. Payne; People v. Rodgers; Trial strategy; People v. Unger; People v. Odom; Failure to object to or file a motion to suppress the pretrial photographic array identification; People v. Kurylczyk; Review limited to the existing record; People v. Snider; Assault with intent to commit murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Butler

e-Journal Number: 53535

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

 

Holding that the trial court did not clearly err in inferring that the defendant had the premeditated intent to kill the victim (S), the court affirmed the trial court's scoring of 50 points for OV 6. The court also rejected his ineffective assistance of counsel claim. Defendant was convicted of AWIM, carjacking, felon in possession, and felony-firearm. The trial court sentenced him to 25 to 40 years in prison for the AWIM conviction, 25 to 40 years for the carjacking conviction, 3 to 5 years for the felon in possession conviction, and 2 years for the felony-firearm conviction. The court held that the trial court was presented with sufficient evidence to infer that defendant had the premeditated intent to kill S. He entered S's car without S's permission, and he did so while carrying a handgun. Thus, from the moment defendant entered S's car, he was armed, which implied he premeditated the use of the handgun. While seated in S's backseat, defendant said either "Get out my sh--" or "Give me your sh--." Either way, he entered S's car demanding, most likely, S's car. S turned around and noticed that defendant had a handgun. S was so frightened that he "'went toward the gun to stop [defendant] from shooting me.'" S explained that the handgun was pointed at his head. At some point after S lunged for the gun while the gun was pointed at his head, defendant pulled the trigger. Defendant's attempt to shoot S in the head failed because the handgun did not go off, so defendant "'pulled back - [and] ejected a cartridge . . . .'" S then grabbed the gun and fought with defendant. During the scuffle, S lost energy and his right hand released the handgun. Defendant pointed the gun at S's arm and fired. The bullet went in S's arm. The court noted that but for the fact that the gun did not fire the first time, S would have been shot in the head. Defendant aimed his handgun at S long enough for S to turn around, become frightened, and lunge for the gun to protect himself. "It is a reasonable inference that defendant had enough time to take a 'second look' at what he was doing during the course of events and that he still proceeded." Also, defendant aimed the gun at S before and during the tussle, and he shot at S twice. The fact he did not give up and persisted in his attempts to shot S corroborated the trial court's finding that he had the premeditated intent to kill. The court affirmed defendant's convictions and sentences.

 

Issues: Whether the defendant was partially shackled at trial; People v. Payne; Deck v. Missouri; People v. Dunn; Whether it was proper for the jurors to testify as to how viewing the shackles affected their deliberations; People v. Budzyn

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Davenport

e-Journal Number: 53497

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

 

The court held that the trial court did not err in finding that the prosecution proved beyond a reasonable doubt that the shackling error did not affect the verdict. The sole issue on appeal was the impact of defendant's partial shackling at trial. The Supreme Court held that defendant "should have been permitted to develop the record as to whether his shackling during trial prejudiced his defense," and remanded to the trial court for proceedings consistent with its order. On remand the trial court held two hearings. Only five jurors testified that they saw defendant's shackles during trial. While some of them remembered a comment being made about them from one of the jurors, all 12 jurors testified that his shackles were not discussed during deliberations and did not influence the verdict. The trial court issued an opinion finding that although many jurors were able to see the shackles during trial, in light of their testimony that it did not affect their verdict, the prosecution demonstrated beyond a reasonable doubt that the shackling error did not contribute to defendant's conviction. It was uncontroverted that defendant was shackled and that the trial court erred in ordering his shackling. The five jurors who saw the shackles each testified that they believed there was nothing unusual about his shackling and that it did not influence their verdicts. All of the evidence indicated that the shackling did not affect the verdict in any way. Thus, the prosecution met its burden of proving beyond a reasonable doubt that the error did not affect the jury's verdict. Also, contrary to defendant's argument, it was proper for the jurors to testify as to how viewing the shackles affected their deliberations. The Michigan Supreme Court has recognized that a trial court may properly elicit and consider testimony from the jurors "to determine the extent to which the jurors saw or discussed the extrinsic evidence." Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's felon in possession and felony-firearm convictions; "Possession"; People v. Strickland; "Constructive possession"; People v. Burgenmeyer; "Circumstantial evidence and reasonable inferences"; People v. Bennett; Distinguishing People v. Butler; Review of challenges to the sufficiency of the evidence in bench trials; People v. Lanzo Constr. Co.; People v. Kanaan

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Randle

e-Journal Number: 53538

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

 

Holding that there was sufficient evidence for a rational trier of fact to find that the defendant was a felon in possession of the gun recovered from the car he was driving, and that he committed a felony while in possession of a firearm, the court affirmed his convictions. The case concerned the results of a traffic stop. During an inventory search of the 2-door car pursuant to an arrest for DWLS, police recovered a loaded 9-millimeter pistol behind the driver's seat, concealed by an ashtray. Defendant challenged only his felon in possession and felony-firearm convictions on appeal, arguing that there was insufficient evidence as to possession of the gun. "A defendant 'may have constructive possession of a firearm if its location is known to the defendant and reasonably accessible to him.'" The court concluded that with "about two feet between defendant and the gun's hiding place and no other passengers in the car, there can be little doubt that the gun was 'reasonably accessible' to him." A rational trier of fact could also have concluded that he knew the hidden gun was present in the car. The court held that it was "reasonable to infer, based on the testimony of a police witness, that the ashtray behind the driver's seat had been tampered with, and that defendant was aware that the gun was behind him and accessible to him." While defendant said that the car was registered in his mother's name, "the trial court reasonably inferred that defendant was given permission to drive the car and kept a gun in it," and that only he had knowledge of the gun's hiding place. The court held that defendant's reliance on Butler was misplaced. The defendant in Butler was convicted of carrying a pistol in a motor vehicle in violation of MCL 750.227. "Here, defendant was charged with and convicted, not of 'carrying' the pistol found in the car he was driving, but of 'possessing' it in violation of MCL 750.224f. Constructive possession is not sufficient to sustain a conviction in the former case, but it is in the latter. Constructive possession also satisfies the possession element of the felony-firearm statute."

 

Election Law

 

This summary also appears under Municipal

 

Issues: Petition for a writ of mandamus requiring the defendant-Township to place on an election ballot the language in petitions under MCL 41.801(3) regarding the creation of a special assessment district; Taking contrary positions in the trial court and the appellate court; Grant v. AAA MI/WI, Inc. (On Remand); Assigning error on appeal to something the party's attorney deemed proper at trial; Marshall Lasser, PC v. George; Whether the plaintiff's argument was waived; Review of a trial court's decision on a request for mandamus; Coalition for a Safer Detroit v. Detroit City Clerk; Whether the issue was "moot"; Morales v. Parole Bd.; Writ of mandamus as an "extraordinary remedy"; A "ministerial" act; Carter v. Ann Arbor City Attorney; Statutory construction; Grabow v. Macomb Twp.; Chiles v. Machine Shop, Inc.; MCL 41.801 and .802; Whether a township board must submit to the electors the precise language stated in landowners' petitions (including the amount of the mills proposed to be raised and the duration of the special assessment district); Use of the word "may"; Use of the word "shall"; Defining the word "question" using a dictionary definition; Johnson v. Pastoriza; MCL 41.801(4); Requirement that the amount of the special assessment must bear a reasonably proportionate relationship to the benefit accruing to the property assessed; Niles Twp. v. Berrien Cnty. Bd. of Comm'rs; Whether plaintiff established violation of a constitutional right to petition the government for redress of grievances and to instruct representatives; Const. 1963, art. 1, § 3; Jensen v. Menominee Circuit Judge; Spires v. Bergman; Denial of plaintiff's request for a preliminary injunction; Michigan AFSCME Council 25 v. Woodhaven-Brownstown Sch. Dist.; Fancy v. Egrin; Hammel v. Speaker of the House of Representatives

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citizens Action Group of Plymouth Twp. v. Charter Twp. of Plymouth

e-Journal Number: 53508

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

 

The court concluded that while the plaintiff waived the issue raised on appeal, the issue was not moot because it was one of public significance that was likely to recur yet evade review - whether a township board must submit to the electors the precise language stated in landowners' petitions under MCL 41.801(3). Further, the issue was one of first impression. Thus, the court reviewed the issue and held that the plain language of MCL 41.801(3) unambiguously supported the defendant-Township's position that it was not required to use the language stated in the landowners' petitions on the ballot. Plaintiff sought a writ of mandamus requiring defendant to place on an election ballot the language stated in the petitions of the owners of more than 10% of the land in the Township, proposing under MCL 41.801(3) "the creation of a special assessment district comprised of the entire Township, excluding tax exempt property, to raise funds for fire protection and emergency medical services." Plaintiff asserted that the question submitted to voters should be framed exactly as it was in the petitions, including the amount and duration of the special assessment. Plaintiff sought to compel defendant to submit to the voters the question of whether to permit the raising of 1 mill for a 5-year period, instead of defendant's modified language asking whether it should be allowed to assess up to 10 mills without specifying a limit on the duration of the special assessment. The court held that plaintiff waived this argument. Since plaintiff's counsel expressly agreed in the trial court that the Township Board could change the language from the petitions and prepare the language that appeared on the ballot, plaintiff could not take a contrary position on appeal. Plaintiff's counsel also conceded in the trial court that the Township Board was required to determine the amount of the special assessment levy, directly contrary to its argument on appeal. Since the issue was waived, there was no error to review. However, the court went on to consider the issue because it was not moot, and rejected plaintiff's argument. MCL 41.801(3) lacks "any indication that landowners may petition to create a special assessment in a particular amount of money for a particular length of time." The court concluded that the statute "provides a way for landowners who will be subject to the proposed special assessment to stop the creation of a special assessment district proposed by the township board. The statute does not say that petitioning landowners may provide for or initiate the creation of a special assessment district." Further, even if landowners could, by petition, provide for or initiate the creation of a special assessment district, rather than simply block a special assessment proposed by a township board, "there is no statutory language requiring the township board to submit to the electors a question regarding the amount or duration of the special assessment as set forth in the landowners' petitions." Since MCL 41.803 did not create a clear legal duty for the defendant to place on the ballot the exact language in the petitions, including the amount and duration of the special assessment, plaintiff lacked a clear legal right to the performance of the specific duty sought and was not entitled to the "extraordinary remedy of a writ of mandamus." The court affirmed the trial court's order denying plaintiff's petition for a writ of mandamus and request for injunctive relief.

 

Litigation

 

This summary also appears under Attorneys

 

Issues: Action to collect a portion of the attorney fees awarded in a class action lawsuit; "Implied contract" theory; Keywell & Rosenfeld v. Bithell; Featherston v. Steinhoff; Detroit v. Highland Park; In re Lewis Estate; "Unjust enrichment"; Belle Isle Grill Corp. v. Detroit; Morris Pumps v. Centerline Piping, Inc.; Summary disposition under MCR 2.116(C)(8); Beaudrie v. Henderson; Summary disposition under MCR 2.116(C)(10); Maiden v. Rozwood; Whether the defendants were entitled to summary disposition where they allegedly failed to plead "affirmative defenses" or supply a factual basis for affirmative defenses properly raised; Campbell v. St. John Hosp.; MCR 2.111(F)(3); Attorney Gen. ex rel DEQ v. Bulk Petroleum Corp.; Stanke v. State Farm Mut. Auto. Ins. Co.; McCracken v. Detroit; Laches; Attorney Gen. v. Powerpick Players' Club of MI, LLC; Department of Pub. Health v. Rivergate Manor; Motion for leave to amend the complaint; "Futility"; Franchino v. Franchino; MCR 2.116(I)(5); Establishing a breach of contract; Pawlak v. Redox Corp.; Elements of a contract; Mallory v. City of Detroit; "Mutual assent" requirement; Borg-Warner Acceptance Corp. v. Department of State; Discussions and negotiations; Thomas v. Leja; "Consideration" requirement; "Past consideration"; Shirey v. Camden

Court: Michigan Court of Appeals (Unpublished)

Case Name: Anderson v. Davis

e-Journal Number: 53492

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

 

Holding, inter alia, that the defendants were entitled to summary disposition as a matter of law because the plaintiffs failed to state a claim on which relief could be granted and there was no genuine issue of material fact, the court affirmed the trial court's order granting defendants summary disposition in this attorney fee dispute. The complaint alleged that plaintiff-Anderson filed a class action lawsuit in 1998 on behalf of himself, his wife, and others. In 1999, he began discussions with defendant-Davis over defendants' employment as co-counsel on the case. While those discussions were underway, plaintiffs successfully moved to certify the class action. Days later, Anderson paid Davis a retainer fee of $1,500, but a retainer agreement was never agreed to. The court reversed the trial court's order certifying the class action. "At that point, Anderson and Davis got into a dispute over what the next course of action should be. Anderson wanted to appeal to the Michigan Supreme Court and Davis wanted to simply go back to the trial court and re-move for certification. Anderson then unilaterally sought leave to appeal to the Supreme Court, which was denied." Anderson withdrew as class representative and class co-counsel for the class action lawsuit. He also sought to initiate a separate case and attempted to have other class members join his separate action. Davis again sought and obtained class certification in the trial court and was confirmed as class counsel. The underlying class action lawsuit was settled in the class action plaintiffs' favor in the amount of $500,000 and defendants were awarded $150,000 as a class action attorney fee. In this case, plaintiffs claimed that their efforts significantly benefitted defendants and the class, which helped to facilitate settlement of the class action suit. Thus, plaintiffs believed they were entitled to half of the attorney fees awarded and sought recovery under an implied contract. After the trial court granted defendants summary disposition, plaintiffs unsuccessfully moved to amend their complaint to include a breach of express contract claim. The court concluded that "any alleged failure to raise an affirmative defense did not preclude summary disposition in defendants' favor," and that they did affirmatively plead laches. While the trial court did not state how defendants' position materially changed due to the passage of time, the court concluded that even if the trial court erred in granting summary disposition under the laches doctrine, summary disposition for defendants was proper. The court stated that if anything, "Anderson's behavior was an impediment to the ultimate settlement agreement." He did not deny that he attempted to have the class members abandon Davis, or that he declined to mediate the issue of attorney fees before the Special Master in the underlying class action. There was "simply nothing on the record to support Anderson's claim that he is entitled to any portion of the fees recovered in the settlement." There was no evidence to support plaintiffs' claim that defendants were unjustly enriched at plaintiffs' expense. "In fact, plaintiffs conferred no benefit to defendants or the class. Any benefits previously conferred by Anderson's prior representation had been undone."

 

This summary also appears under Municipal

 

Issues: Interlocutory appeal; Whether the trial court had the authority to permit the limited discovery it ordered in the case; Shinkle v. Shinkle (On Rehearing); Hamed v. Wayne Cnty.; MCR 2.302(B)(1); "Relevant"; The Headlee claim (Const. 1963, art. 9, § 29); "Maintenance of support" claims; "Prohibition of unfunded mandates" (POUM) claims; Adair v. Michigan; "Activity"; MCL 21.232(1); "Service"; MCL 21.234(1); The Financial Stability Agreement (FSA); Local Government and School District Fiscal Accountability Act (the Act)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Davis v. City of Detroit Fin. Review Team

e-Journal Number: 53563

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

 

Concluding, inter alia, that the discovery was not relevant to the subject matter involved because it would not help plaintiff prove or disprove a matter at issue, the court held that the trial court abused its discretion in authorizing the discovery. Thus, the court reversed the portion of the order authorizing limited discovery and remanded. On 12/6/11, the defendant-Department of Treasury began a preliminary review of the finances of the City of Detroit under the Act, to determine whether a financial problem existed. On 12/21/11, the defendant-State Treasurer filed a preliminary review with the Governor, finding that probable financial stress existed, and recommending that a financial review team be appointed. On 12/27/11, the Governor appointed a financial review team, which later submitted its recommendations to the Governor. On 4/4/12, the review team and Detroit City Council voted to approve a consent agreement titled the FSA. On 4/5/12, the Governor determined that the City was in a condition of severe financial stress, and signed the FSA. On 4/5/12, plaintiff filed a complaint, seeking a declaratory judgment and injunctive relief. Plaintiff asserted that the FSA violated the POUM clause of the Headlee Amendment, by creating an unfunded mandate. The same day, he also filed an emergency motion for declaratory judgment and injunctive relief, raising the same issue. On 4/13/12, defendants responded to the motion, asserting that they were entitled to summary disposition under MCR 2.116(I)(2). They filed an answer on 4/26/12. The same day, plaintiff moved for an evidentiary hearing to properly make a record, and subpoenaed eight witnesses to appear for a 5/9/12 motion hearing. Defendants argued that an expedited evidentiary hearing was unwarranted, and that if further fact finding was necessary for plaintiff's claims, the normal course would be to conduct discovery pursuant to MCR 2.300 and 2.401. The court concluded that "the crux of the issue" was whether the trial court had the authority to permit the limited discovery. The court held that plaintiff failed to establish that the depositions sought were relevant. Assuming, without deciding, that the City's obligations under the FSA were properly characterized as "activity" or "service," plaintiff's POUM claim was "fundamentally flawed" because none of the obligations he identified was "'required by the legislature or any other state agency.'" Rather, they were required by the terms of the FSA, an agreement that the City voluntarily entered into when the city council voted and approved it. "What occurred during the course of negotiations, and who proposed the 'monetary undertakings,' are irrelevant to any Headlee violation."

 

Municipal

 

This summary also appears under Election Law

 

Issues: Petition for a writ of mandamus requiring the defendant-Township to place on an election ballot the language in petitions under MCL 41.801(3) regarding the creation of a special assessment district; Taking contrary positions in the trial court and the appellate court; Grant v. AAA MI/WI, Inc. (On Remand); Assigning error on appeal to something the party's attorney deemed proper at trial; Marshall Lasser, PC v. George; Whether the plaintiff's argument was waived; Review of a trial court's decision on a request for mandamus; Coalition for a Safer Detroit v. Detroit City Clerk; Whether the issue was "moot"; Morales v. Parole Bd.; Writ of mandamus as an "extraordinary remedy"; A "ministerial" act; Carter v. Ann Arbor City Attorney; Statutory construction; Grabow v. Macomb Twp.; Chiles v. Machine Shop, Inc.; MCL 41.801 and .802; Whether a township board must submit to the electors the precise language stated in landowners' petitions (including the amount of the mills proposed to be raised and the duration of the special assessment district); Use of the word "may"; Use of the word "shall"; Defining the word "question" using a dictionary definition; Johnson v. Pastoriza; MCL 41.801(4); Requirement that the amount of the special assessment must bear a reasonably proportionate relationship to the benefit accruing to the property assessed; Niles Twp. v. Berrien Cnty. Bd. of Comm'rs; Whether plaintiff established violation of a constitutional right to petition the government for redress of grievances and to instruct representatives; Const. 1963, art. 1, § 3; Jensen v. Menominee Circuit Judge; Spires v. Bergman; Denial of plaintiff's request for a preliminary injunction; Michigan AFSCME Council 25 v. Woodhaven-Brownstown Sch. Dist.; Fancy v. Egrin; Hammel v. Speaker of the House of Representatives

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citizens Action Group of Plymouth Twp. v. Charter Twp. of Plymouth

e-Journal Number: 53508

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

 

The court concluded that while the plaintiff waived the issue raised on appeal, the issue was not moot because it was one of public significance that was likely to recur yet evade review - whether a township board must submit to the electors the precise language stated in landowners' petitions under MCL 41.801(3). Further, the issue was one of first impression. Thus, the court reviewed the issue and held that the plain language of MCL 41.801(3) unambiguously supported the defendant-Township's position that it was not required to use the language stated in the landowners' petitions on the ballot. Plaintiff sought a writ of mandamus requiring defendant to place on an election ballot the language stated in the petitions of the owners of more than 10% of the land in the Township, proposing under MCL 41.801(3) "the creation of a special assessment district comprised of the entire Township, excluding tax exempt property, to raise funds for fire protection and emergency medical services." Plaintiff asserted that the question submitted to voters should be framed exactly as it was in the petitions, including the amount and duration of the special assessment. Plaintiff sought to compel defendant to submit to the voters the question of whether to permit the raising of 1 mill for a 5-year period, instead of defendant's modified language asking whether it should be allowed to assess up to 10 mills without specifying a limit on the duration of the special assessment. The court held that plaintiff waived this argument. Since plaintiff's counsel expressly agreed in the trial court that the Township Board could change the language from the petitions and prepare the language that appeared on the ballot, plaintiff could not take a contrary position on appeal. Plaintiff's counsel also conceded in the trial court that the Township Board was required to determine the amount of the special assessment levy, directly contrary to its argument on appeal. Since the issue was waived, there was no error to review. However, the court went on to consider the issue because it was not moot, and rejected plaintiff's argument. MCL 41.801(3) lacks "any indication that landowners may petition to create a special assessment in a particular amount of money for a particular length of time." The court concluded that the statute "provides a way for landowners who will be subject to the proposed special assessment to stop the creation of a special assessment district proposed by the township board. The statute does not say that petitioning landowners may provide for or initiate the creation of a special assessment district." Further, even if landowners could, by petition, provide for or initiate the creation of a special assessment district, rather than simply block a special assessment proposed by a township board, "there is no statutory language requiring the township board to submit to the electors a question regarding the amount or duration of the special assessment as set forth in the landowners' petitions." Since MCL 41.803 did not create a clear legal duty for the defendant to place on the ballot the exact language in the petitions, including the amount and duration of the special assessment, plaintiff lacked a clear legal right to the performance of the specific duty sought and was not entitled to the "extraordinary remedy of a writ of mandamus." The court affirmed the trial court's order denying plaintiff's petition for a writ of mandamus and request for injunctive relief.

 

This summary also appears under Litigation

 

Issues: Interlocutory appeal; Whether the trial court had the authority to permit the limited discovery it ordered in the case; Shinkle v. Shinkle (On Rehearing); Hamed v. Wayne Cnty.; MCR 2.302(B)(1); "Relevant"; The Headlee claim (Const. 1963, art. 9, § 29); "Maintenance of support" claims; "Prohibition of unfunded mandates" (POUM) claims; Adair v. Michigan; "Activity"; MCL 21.232(1); "Service"; MCL 21.234(1); The Financial Stability Agreement (FSA); Local Government and School District Fiscal Accountability Act (the Act)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Davis v. City of Detroit Fin. Review Team

e-Journal Number: 53563

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

 

Concluding, inter alia, that the discovery was not relevant to the subject matter involved because it would not help plaintiff prove or disprove a matter at issue, the court held that the trial court abused its discretion in authorizing the discovery. Thus, the court reversed the portion of the order authorizing limited discovery and remanded. On 12/6/11, the defendant-Department of Treasury began a preliminary review of the finances of the City of Detroit under the Act, to determine whether a financial problem existed. On 12/21/11, the defendant-State Treasurer filed a preliminary review with the Governor, finding that probable financial stress existed, and recommending that a financial review team be appointed. On 12/27/11, the Governor appointed a financial review team, which later submitted its recommendations to the Governor. On 4/4/12, the review team and Detroit City Council voted to approve a consent agreement titled the FSA. On 4/5/12, the Governor determined that the City was in a condition of severe financial stress, and signed the FSA. On 4/5/12, plaintiff filed a complaint, seeking a declaratory judgment and injunctive relief. Plaintiff asserted that the FSA violated the POUM clause of the Headlee Amendment, by creating an unfunded mandate. The same day, he also filed an emergency motion for declaratory judgment and injunctive relief, raising the same issue. On 4/13/12, defendants responded to the motion, asserting that they were entitled to summary disposition under MCR 2.116(I)(2). They filed an answer on 4/26/12. The same day, plaintiff moved for an evidentiary hearing to properly make a record, and subpoenaed eight witnesses to appear for a 5/9/12 motion hearing. Defendants argued that an expedited evidentiary hearing was unwarranted, and that if further fact finding was necessary for plaintiff's claims, the normal course would be to conduct discovery pursuant to MCR 2.300 and 2.401. The court concluded that "the crux of the issue" was whether the trial court had the authority to permit the limited discovery. The court held that plaintiff failed to establish that the depositions sought were relevant. Assuming, without deciding, that the City's obligations under the FSA were properly characterized as "activity" or "service," plaintiff's POUM claim was "fundamentally flawed" because none of the obligations he identified was "'required by the legislature or any other state agency.'" Rather, they were required by the terms of the FSA, an agreement that the City voluntarily entered into when the city council voted and approved it. "What occurred during the course of negotiations, and who proposed the 'monetary undertakings,' are irrelevant to any Headlee violation."

 

Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Sours; In re Trejo Minors; In re Miller; In re Gazella; In re Rhinesmith; In re Terry; Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Kerr/Sherrod/Van Horn/Paymon

e-Journal Number: 53561

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to her minor children because the statutory bases for termination were established by clear and convincing evidence and termination was in the children's best interests. At the time of the adjudication, respondent did not have enough beds or appropriate clothing for her children. She had not provided medical care for her son who suffered from seizures. Respondent also had a gambling problem. By the time of the termination hearing, she had not overcome her gambling addiction and could not provide appropriate housing, living with relatives and in arrears on her electric bill. She could not show that she could provide for her children - particularly appropriate clothing, bedding, or food. She also failed to show a commitment to meeting her son's medical needs because she did not participate in his medical appointments. Respondent argued that she completed her parenting classes. However, the evidence showed that she did not benefit from them. The risks that brought the children to the trial court's attention continued. When they were all together during visits, respondent was unable to adequately supervise and manage them. She was found with a casino card and she was not able to account for a $1750 withdrawal from her bank account. Given her history of gambling problems, her outstanding electric bill and her lack of housing suggested more than just bad money management. Ultimately, the evidence showed that she could not provide for her children's financial needs. She also did not address the issues that brought them into care and was unable to demonstrate that she could provide them with proper care and custody. She also continued to be involved with P, the father of some of her children, even after the children accused him of physical and sexual abuse. She never demonstrated a willingness to protect her children and suggested that they were coerced into making accusations against P. Further, the trial court properly held that termination was in the children's best interests where she did not show a commitment to put her children's needs before her own. Despite her assertions of her bond with the children and her love for them, she did not provide enough justification to maintain the relationship. The bond will not protect them from abuse or make sure that they are properly cared for. Affirmed.

 

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