• Bankruptcy (1)
• Contracts (1)
• Criminal Law (4)
• Family Law (2)
• Insurance (1)
• Litigation (2)
• Municipal (2)
• Negligence & Intentional Tort (4)
• Personal Protection Orders (1)
• Real Property (2)
• Termination of Parental Rights (1)

Bankruptcy

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly held that the plaintiffs did not have "standing" to pursue this litigation; In re Egbert R. Smith Trust; Klooster v. City of Charlevoix; Briggs Tax Serv., LLC v. Detroit Pub. Sch.; Manuel v. Gill; International Union UAW v. Central MI Univ. Trs.; Young v. Independent Bank; Miller v. Chapman Contracting; White v. Wyndham Vacation Ownership, Inc. (6th Cir.); In re Coastal Plains, Inc. (5th Cir.); Whether the trial court should have held that there were genuine issues of material fact as to whether the bankruptcy Trustee abandoned the assets at issue allowing plaintiffs to bring this action; Szyszlo v. Akowit; Settlement agreement (SA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Obrzut v. Polish Deli & Bakery, Inc.

e-Journal Number: 53493

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

 

Applying Young to this case, the court held, inter alia, that the trial court properly found that the plaintiffs lacked standing to pursue the claims for breach of contract and breach of fiduciary duty arising from the SA in a prior case. The parties were involved in litigation in 2003, which was settled in 2005. However, the SA provided that defendants were to pursue an insurance claim from which plaintiffs were entitled to certain proceeds. The SA also stated that plaintiffs were entitled to participate in the insurance proceedings contingent upon the amount of the coverage provided by the insurer. On 11/14/06, plaintiffs filed a voluntary petition for bankruptcy and listed the SA on their schedule of assets. The bankruptcy Trustee and her attorney learned of the potential payments to be made by the insurance company and obtained a court order preventing the release to preclude dissipation of the estate's interest. However, after defendants filed a motion for the release of funds, the Trustee withdrew her objections. Also, by letter dated 7/18/07, defendants' counsel advised the Trustee's attorney that plaintiffs were entitled to participate in the settlement process. Despite that notice, the Trustee did not take an active role in the underlying litigation, but did accept the settlement proceeds to which plaintiffs were entitled. Plaintiffs received the exempted amount and the Trustee paid the remaining amount to creditors. After the bankruptcy proceeding was closed, plaintiffs filed this case for breach of the SA and breach of fiduciary duty, alleging defendants failed to comply with the terms of the SA and failed to pursue statutory interest. Defendants filed a motion for summary disposition asserting that plaintiffs lacked standing to sue under MCR 2.116(C)(5) because the SA was an asset of the bankruptcy estate and any claim belonged to the bankruptcy estate. Plaintiffs opposed the motion alleging that there were genuine issues of material fact as to whether the bankruptcy estate acquired the cause of action that accrued after the bankruptcy filing and whether the asset was abandoned by the Trustee. The trial court held that plaintiffs lacked standing to sue and granted defendants' motion without prejudice to allow the plaintiffs to return to the bankruptcy court and raise these issues. Plaintiffs argued that the trial court erred in ruling that they did not have standing to pursue this litigation. The documentation from the bankruptcy proceeding indicated that the Trustee and her attorney were aware of the SA. At the Trustee's request the bankruptcy court precluded payment of the funds arising from the SA until the estate's interest was determined and protected. The bankruptcy court ordered plaintiffs to disclose the terms of the SA to the Trustee. The documentation also revealed that defendants informed the Trustee and her attorney of the negotiations with the insurer and the right to participate in those proceedings. Because plaintiffs were aware of the terms of the SA and the negotiations to resolve the insurance matter that could have included their participation or the Trustee's involvement in their place, the trial court properly held that plaintiffs lacked standing to pursue these claims. Affirmed.

 

Contracts

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Tortious interference with a contract; Badiee v. Brighton Area Sch.; Derderian v. Genesys Health Care Sys.; Requirement that the defendant "unjustifiably instigated or induced" the breach; Derosia v. Austin; Woody v. Tamer; 4 Restatement Torts, § 766, Comment d, pp 54-55; "Improper conduct" requirement; Trepel v. Pontiac Osteopathic Hosp.; Wood v. Herndon & Herndon Investigations, Inc.; Distinguishing tortious interference with a contract from tortious interference with a business relationship; Health Call of Detroit v. Atrium Home & Health Care Servs., Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Knight Enters., Inc. v. RPF Oil Co.

e-Journal Number: 53710

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

 

Holding that the trial court incorrectly framed the plaintiff's claim as one for tortious interference with a business relationship/expectancy rather than tortious interference with a contract, the court concluded that the claim failed as a matter of law. The court held that defendant-RPF did not instigate defendant-Saleh's breach of his contract with plaintiff or intentionally induce him to breach his contracts. Further, plaintiff failed to produce "any evidence that RPF acted intentionally, with maliciousness, or that it committed a 'per se wrongful act.'" Saleh decided to rebrand his gas stations from Citgo, for which plaintiff was the gasoline supplier, to Shell, for which RPF was the gasoline supplier. Plaintiff specifically alleged tortious interference with a contract in its complaint and its counsel argued those elements at the close of proofs in the bench trial. However, "the trial court cited and decided the case on the basis of the elements for tortious interference with a business relationship." The court explained in Health Call that "tortious interference with a contract or contractual relations is a cause of action distinct from tortious interference with a business relationship or expectancy." The elements of tortious interference with a contract are - (1) the existence of a contract, (2) a breach, and (3) an unjustified instigation of the breach by the defendant. "By definition, tortious interference with a contract is an intentional tort." The court held that "it is an essential element of a claim of tortious interference with a contract that the defendant 'unjustifiably instigated or induced' the party to breach its contract." Undisputed evidence showed that Saleh sued plaintiff in an effort to avoid his contractual obligations before he entered into any contract with RPF. He testified that he stopped buying fuel from plaintiff because plaintiff consistently underpriced gas at a nearby station, Citgo was losing business because of its connection to Hugo Chavez, and he believed plaintiff was overcharging him for gas deliveries. He also contacted several fuel suppliers, including RPF, and told them, inaccurately, that his contracts with plaintiff were not in effect. Saleh solicited the bids, not RPF, and he explicitly testified that, no matter who became his new fuel supplier, he did not intend to continue his contracts with plaintiff. Further, the evidence established that Saleh breached his contracts with plaintiff before anyone at RPF even knew he was obligated under any contracts with plaintiff. Saleh, RPF's executive chairman, and an RPF employee all testified that Saleh unequivocally told RPF that his prior fuel contract was no longer in effect. "Thus, undisputed evidence showed that Saleh's breach was not, in any way, instigated or induced by RPF." The court concluded that the trial court should have ruled that plaintiff's claim failed as a matter of law. The court reversed the trial court's judgment for plaintiff.

 

Criminal Law

 

Issues: Sufficiency of the evidence to support the defendant's felonious assault and felony-firearm convictions; People v. Cain; People v. Lanzo Constr. Co.; People v. Kanaan; People v. Johnson; People v. Avant; People v. Starks; People v. Counts; People v. Akins

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Adside

e-Journal Number: 53582

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

 

The court held that there was sufficient evidence to support the defendant's felonious assault and felony-firearm convictions. B, D, and H left a bar. As they crossed the street at a crosswalk, a SUV driven by defendant sped toward and abruptly stopped in front of them. This action led to an argument between defendant, the other occupants of the SUV, and the three men. According to B, defendant brandished a semi-automatic pistol, pointed it at his face, raised it slightly, and fired one or possibly two shots. Defendant argued that the prosecution failed to present evidence sufficient to sustain his felonious assault and felony-firearm convictions. He argued that conditions "were not the best to make a correct identification of the person possessing the firearm." The court held that the appropriate question was not whether conditions were ideal, but whether the trial court judge, sitting as the finder of fact, was rational in finding that the prosecution proved each element of both crimes beyond a reasonable doubt. There was sufficient record evidence to connect defendant to the incident. The victims' testimony and the undisputed observations of Lieutenant V established that an argument took place in the crosswalk, and that one or two shots were fired. B testified that the defendant pointed a pistol at his face. After running behind the SUV, B observed the vehicle's license plate number, which he promptly recited to V, who included the number in his radio call. That radio call resulted in several police cars, including that of Officer A, following and stopping the SUV. The driver's license and vehicle registration provided to A indicated that defendant was the registered owner. The pistol recovered from the SUV was missing two rounds. Thus, the trial judge was justified in inferring that the gun recovered from the SUV was the same gun reported to have been fired during the incident earlier that morning at the crosswalk. There was also sufficient evidence to satisfy the fear element of felonious assault where B was placed in fear of imminent danger by defendant. The "dangerous weapon" element of felonious assault was satisfied because defendant used a loaded pistol to assault B. "Pistols are explicitly listed in the felonious assault statute as qualifying dangerous weapons." Further, there was sufficient evidence for the trial court to find that the third element was proved beyond a reasonable doubt based on testimony that defendant pointed his loaded pistol at B's face and fired one or two shots, as corroborated by three witnesses and one police officer. The court also held that there was sufficient evidence in the record for a rational trier of fact to have found that defendant committed a felony while in possession of a firearm (specifically felonious assault while in possession of a semiautomatic pistol). A rational trier of fact could have concluded that defendant had fired, from close range, the semiautomatic he was seen holding, and that was later recovered from his SUV. Affirmed.

 

Issues: Whether the trial court properly gave a jury instruction that the witness's unavailability was due to his homicide; Forfeiture by wrongdoing (MRE 804(b)(6)); People v. Johnson (On Rehearing); Preserving issues under a conditional plea; Whether the issue raised in the defendant's appeal was properly before the court; MCR 6.301(C); People v. Kowalski; People v. Canales; People v. Meissner

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Cooley

e-Journal Number: 53583

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

 

Following remand by the Supreme Court, the court held that defendant failed to show that the trial court erred in deciding to give a jury instruction that witness A's unavailability was due to his homicide. The prosecution was permitted to give an explanation to the trier of fact as to why A was unavailable. Also, the jury instruction directed the jurors not to speculate as to the circumstances surrounding his death or consider it for the purpose of rendering a verdict. "Thus, that instruction would have cured any possible prejudice toward defendant," as jurors are presumed to follow the trial court's instructions. The trial court ruled that A's testimonial statements to police about this crime were admissible pursuant to the forfeiture by wrongdoing doctrine. The trial court found by a preponderance of the evidence that defendant procured the unavailability of A. Defendant conditioned his plea of no contest to attempted manslaughter on the trial court's ruling to give a preliminary instruction to the jury to explain why A's testimony was coming into evidence, despite his being unavailable. Affirmed.

 

Issues: Whether the photographic lineup shown to the victim was impermissibly suggestive; People v. Daniels; People v. Kurylczyk; People v. Gray; Judicial disqualification; Whether the trial court should have "recused" himself because the trial court was casually acquainted with the victim several years earlier; Welch v. District Court; People v. Wade; Due process; Cain v. Department of Corrs.; Caperton v. Massey; Canon 2 of the Michigan Code of Judicial Conduct; In re MKK; "Double jeopardy"; People v. Matuszak; People v. Grace; People v. Lett; People v. Dawson; People v. Lester; Assault with intent to do great bodily harm less than murder (AWIGBH); Whether a Brady violation entitled defendant to a mistrial

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Ivory

e-Journal Number: 53487

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

 

The court held that the trial court's determination that the photographic lineup was not impermissibly suggestive was not clearly erroneous. A photographic array is usually not considered suggestive if it contained some photographs that were fairly representative of the defendant's physical features and thus, adequately tested the witness's identification. Differences in the composition of photographs, in the physical characteristics of the individuals photographed, or in the clothing worn by a defendant and the others pictured in the photographic lineup have been found not to render a lineup impermissibly suggestive. The fact that the defendant's photograph was somewhat narrower than the others and his head size was slightly different from some of the other suspects did not render the lineup unduly suggestive. Overall, the photographs were fairly representative. There was no indication from the trial testimony that in selecting defendant's photograph, the victim relied on any of the minor differences of which defendant complained. Rather, the record reflected that the victim was able to identify defendant because he observed him during the attack and he was previously acquainted with him as a potential tenant at one of his rental properties. Giving further credence to the finding that the lineup was not unduly suggestive was the fact that another witness failed to identify him as he was shown the same photographs. Also, minor differences were further minimized by the officer's use of an overlay over the photographs - this placed the focus on the subjects' faces and "equalized" the size of the photographs. Defendant's convictions of carjacking, unarmed robbery, and AWIGBH were affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of two counts of felonious assault, discharge of a firearm in an occupied structure, possession of a loaded firearm in a motor vehicle, and felony-firearm; People v. Malone; People v. Bennett; People v. Moore; People v. Robinson; People v. Avant; "Identification"; People v. Oliphant; People v. Richards; People v. Davis; Whether there was scientific evidence that the gun was recently fired and that defendant knew it was loaded; People v. Quinn

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Moore

e-Journal Number: 53488

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

 

The court held, inter alia, that the evidence was sufficient to convict the defendant of felonious assault for the shooting by her codefendant premised on an aiding and abetting theory. Witnesses testified that the codefendant left the scene speaking on the telephone, but returned in a white car driven by defendant. Moments before the drive-by shooting, defendant stated, "Is these the people that were shooting at you[?]" Viewing the evidence in the light most favorable to the prosecutor, there was sufficient evidence and reasonable inferences arising from the circumstantial evidence that defendant aided an abetted her codefendant in the commission of the first felonious assault. According to the witnesses, defendant assisted the perpetrator, her codefendant, by returning him to the scene to commit the shooting and apparently knew of his intention to fire upon individuals with whom he had a dispute in light of her comment. The first witness testified that although she did not have a prior relationship with defendant, she observed her sitting in the driver's seat of the white car, and the area was illuminated because of street lights. After the first shooting, defendant returned a second time and stood in the street, pulled a green bag off the shotgun, and fired at the home. Defendant returned a third time to the home, but was ultimately apprehended by police shortly after leaving the scene. A consensual search of defendant's vehicle uncovered a shotgun in a green bag in the trunk. The ability to identify the perpetrators was explored on cross-examination in light of the tinted windows on the white vehicle. However, the trial court noted that this first eyewitness was "exquisitely credible" and provided a "crystal clear" version of what happened. Thus, defendant was not entitled to appellate relief. Affirmed.

 

Family Law

 

Issues: Interstate custody action; Whether the trial court had jurisdiction to modify the Arizona order under MCL 722.1203; The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (MCL 722.1201 et seq.); International Union, UAW of Am. v. Central MI Univ. Trs.; Jamil v. Jahan; Fisher v. Belcher; In re Clausen; Atchison v. Atchison; MCL 722.1202; MCL 722.1102(c); MCL 722.1102(d); Whether, the plaintiff-maternal grandfather had standing to challenge the custody order; MCL 722.26c; Bivins v. Bivins; Heltzel v. Heltzel

Court: Michigan Court of Appeals (Unpublished)

Case Name: Burnham v. Burnham

e-Journal Number: 53598

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

 

Although the court held that the trial court had jurisdiction to modify the Arizona order under MCL 722.1203, it also held that the plaintiff-maternal grandfather did not have standing to challenge the custody order. Thus, the court affirmed the trial court's grant of the defendant-mother's motion for summary disposition in this interstate custody action. The case arose from a 2010 Arizona custody order that granted defendant full custody of the minor child. Plaintiff had custody of the child until 2010, when he relinquished custody to defendant. After the Arizona custody order was issued in 2010, defendant moved with the child to Michigan, where they have lived ever since. In 2012, plaintiff filed a custody complaint in Michigan pursuant to the UCCJEA, seeking to modify the Arizona custody order. Defendant moved for summary disposition, arguing that plaintiff lacked standing to challenge custody. Plaintiff argued that the trial court erred in granting defendant's motion for summary disposition by incorrectly holding that he lacked standing to challenge custody over the child. Plaintiff's argument was premised upon the assertion that the trial court had jurisdiction under the UCCJEA, and in particular under MCL 722.1201(1)(a), because it was the home state of the child at the time the complaint was filed and neither the child, the mother or father, nor for that matter plaintiff, remained in Arizona. The case fell under the purview of the UCCJEA because it involved an attempt to modify an Arizona child custody order in Michigan. The Arizona court issued an initial custody decision on 7/26/10. The order was issued in a dependency proceeding, which is considered a child-custody proceeding under the UCCJEA. The Arizona custody order awarded "the minor's legal care, custody and control" to defendant. Because Arizona issued an initial custody determination over the child, Arizona had exclusive, continuing jurisdiction. However, because plaintiff was attempting to modify the Arizona custody order in Michigan, the court determined whether Michigan had jurisdiction to modify the order. Under the specific requirements of the UCCJEA, the trial court clearly had jurisdiction over the complaint. First, Michigan was the child's home state on the date of the commencement of the proceeding because he and his mother lived in Michigan for more than a year before the complaint was filed. Second, the child and defendant no longer resided in Arizona. Thus, the trial court had jurisdiction to modify the Arizona order under MCL 722.1203. Despite the trial court's ability to exercise jurisdiction over the child, it dismissed plaintiff's complaint, finding that he lacked standing to challenge custody because he was a third party. The court held that "a conclusion that jurisdiction exists is not the equivalent of finding that the party invoking the court's jurisdiction has standing to maintain the complaint." The court held that UCCJEA does not confer standing on a party, and so the fact that jurisdiction exists for a court to act on a complaint did not mean plaintiff can maintain an action to modify custody. The court also held that under Michigan law, which governs the trial court's substantive analysis once it exercises its jurisdiction and turns to the merits of the complaint to modify, plaintiff lacked standing to seek a modification of custody.

 

This summary also appears under Personal Protection Orders

 

Issues: Divorce; Whether the trial court properly found respondent/plaintiff-wife in criminal contempt for violating the PPO held by petitioner/defendant-husband; In re Contempt of Henry; Porter v. Porter; MCR 3.708(B)(1); MCR 3.708(H)(3); Denial of the wife's motions for makeup parenting time; Borowsky v. Borowsky; The Child Custody Act; MCL 722.27a(1); MCL 722.27a(6); Factor (c); Whether the trial court should have entered a default judgment against the husband; Kowalski v. Fiutowski; Huntington Nat'l Bank v. Ristich; MCR 2.603(A), (A)(1), (A)(2), and (A)(2)(b); MCR 2.108(A)(1); MCR 2.603(A)(2)(b); MCR 2.603(B); MCR 2.603(B)(1)(a); "Waiver"; Reed Estate v. Reed; "Implied waiver"; Requirement that the trial court hold a custody hearing; In re AP; Whether the trial court used the correct legal standards for determining its award of child custody; Brausch v. Brausch; Shade v. Wright; Berger v. Berger; Whether the trial court's findings of fact were against the great weight of the evidence; Custodial environment; Rittershaus v. Rittershaus; Whether the trial court properly retroactively abated the husband's child support obligations; Rivette v. Rose-Molina; "Plain error"; Duray Dev., LLC v. Perrin; MCL 552.603(2); Denial of the wife's motion for spousal support; Woodington v. Shokoohi; Claim related to the husband's sale of property he allegedly fraudulently purchased as a "single man"; Alleged bias on the part of the trial judge and hearing referee; MCR 2.003(D)(1)(a); Welch v. District Court; Child Protective Services (CPS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Chakkour v. Chakkour

e-Journal Number: 53596

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

 

Viewing the evidence in the light most favorable to the prosecution, the court held that respondent/plaintiff-wife violated the PPO held by the petitioner/defendant-husband. The court also held, inter alia, that the trial court did not abuse its discretion in denying the wife's motion for makeup parenting time. Thus, the court affirmed the trial court's order in Docket No. 309854 finding her in criminal contempt for violating a PPO. The court also affirmed the judgment of divorce in Docket No. 310006, but remanded for the trial court to vacate any orders that retroactively abated the husband's child support obligations. The court noted that the wife was found in contempt for violating the PPO held by the husband, not for violating the trial court's 2/10/12 oral ruling, which provided for "curbside" pick up and drop off of the children when the wife exercised her parenting time. Thus, the court held that the wife's arguments that the trial court's 2/10/12 oral ruling was a not valid custody modification, that the trial court erred in not providing her with a written order, and that the order was impermissibly vague, were not properly part of this appeal, as they did not relate to the PPO or the order finding her in criminal contempt. The trial court's provision for curbside pickup was merely to ensure she could exercise her parenting time while still complying with the PPO. Thus, the court only addressed whether there was sufficient evidence to find the wife in criminal contempt for violating the PPO. The husband testified that the wife entered his apartment. Thus, she violated the PPO. The trial court's decision to deny the wife parenting time focused on factor (c) - the "reasonable likelihood of abuse or neglect of the child during parenting time." The trial court concluded that the wife continued to have anger management issues, even after completing a court-ordered anger management program. The trial court characterized her actions in disciplining the children "as 'wreaking vengeance' on them for their misbehavior" and said that she had "an 'antagonistic approach' to her children." The trial court also discussed the wife's "lack of stability and self-control and other mental health problems," as evidenced by her filing a false CPS report that the husband had sexually abused one of the children. The court concluded that the trial court's findings were supported by the evidence. As to the husband's child support obligations, the court noted that the 2/2/12 order abated his child support beginning 8/1/10 and thus, clearly retroactively modified the prior support order, which was legally impermissible. Thus, that order had to be vacated.

 

Insurance

 

Issues: No-fault action; Whether MCL 500.3114 or MCL 500.3115 applied; MCL 500.3172; Whether the injured intervening plaintiff was an "occupant" of the motor vehicle at the time of the accident; Rednour v. Hastings Mut. Ins. Co.; Rohlman v. Hawkeye-Sec. Ins. Co. (Rohlman I); Farm Bureau Mut. Ins. Co. v. MIC Gen. Ins. Corp.; Denial of defendant-Citizens' motion for leave to file a cross-claim against defendant-Titan; MCR 2.203(E); Doyle v. Hutzel Hosp.; Maldonado v. Ford Motor Co.; MCR 2.118(A)(2); "Futility"; Assigned Claims Facility (ACF)

Court: Michigan Court of Appeals (Unpublished)

Case Name: The Detroit Med. Ctr. v. Titan Ins. Co.

e-Journal Number: 53541

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

 

Based on the undisputed facts, the court held that intervening plaintiff-English was not an "occupant" of the motor vehicle at the time of the accident as a matter of law. Thus, MCL 500.3115 applied and defendant-Citizens was responsible for paying English's no-fault benefits. Citizens appealed the trial court's order granting English's motion for partial summary disposition, and its order denying Citizens' motion for leave to file a cross-claim against defendant-Titan. The dispositive issue was whether MCL 500.3114 or MCL 500.3115 applied. If English was a non-occupant, then Citizens was responsible for paying her benefits. If she was an occupant of the vehicle (a minivan), the owner of the minivan's insurance would be responsible for paying her benefits pursuant to MCL 500.3114. However, because it was undisputed that the neither the minivan owner nor English insured the van, if MCL 500.3114 applied, Titan (the assigned insurer by the ACF) was responsible. Pursuant to case law, "an 'occupant' is a person inside or upon a vehicle." Further, case law and MCL 500.3106 establish that "an 'occupant' of a vehicle is different from a person who is 'entering into' or 'alighting from' a vehicle." Several facts were not in dispute. English went to the minivan to retrieve her infant son. She "was in the process of stepping out of" the van, her left leg out of the van, her right leg inside, and her son in her hands. She stepped out of the minivan with her left leg, and she remembered pivoting. In fact, she "stepped [her] foot out" of the minivan and recalled "the impact" of the sliding door hitting her back. After she was thrown from the minivan, she landed on her back, took a deep breath, and then the vehicle that hit the minivan landed on her body. Citizens focused on the exact moment when the vehicle hit the minivan and the sliding door hit English. She had her right foot still in the minivan and she was struck by the sliding door upon impact. Thus, Citizens argued that she was an "occupant" of the van, and Titan was responsible for her injuries. Titan argued that the "accidental bodily injuries" English sustained arose when she was on the ground outside of the minivan, and the vehicle that hit the minivan landed on her body. Titan claimed that she suffered no injuries at the moment the sliding door hit her and ejected her from the minivan - rather, her injuries arose from being crushed by the vehicle that hit the minivan. Thus, Titan argued that because English was not injured until she was completely outside of the minivan, she was a non-occupant. The court agreed with Titan. It was persuaded by the fact that English was alighting from the minivan and that at the time of the impact between the minivan and the other vehicle, she was hit in the back by the sliding van door. If she had actually been an "occupant" of the minivan, the door would not have hit her in the back - it would have closed her inside the minivan. The court also held that the trial court did not abuse its discretion in denying Citizens' motion to file a cross-claim against Titan because it would be futile. Affirmed.

 

Litigation

 

Issues: Whether the plaintiff-PR's claims were barred by the statute of limitations; Effect of the wrongful death saving provision (MCL 600.5852); Farley v. Advanced Cardiovascular Health Specialists PC; Applicability of res judicata to claims not raised in plaintiff's prior lawsuit; Estes v. Titus; Adair v. State; Dismissal of the prior lawsuit as an adjudication on the merits; MCR 2.504(B)(3); Washington v. Sinai Hosp. of Greater Detroit; ABB Paint Finishing, Inc. v. National Union Fire Ins. Co.; Michigan Consumer Protection Act (MCPA); Notice of intent (NOI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Gregg Alan Dallaire v. Treatment Works, Inc.

e-Journal Number: 53550

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

 

Holding that the trial court properly dismissed the case on the grounds that it was time-barred by the statute of limitations and the plaintiff-PR's alleged "new claims" were barred by res judicata, the court affirmed the trial court's order granting the defendants summary disposition. The case arose from the 7/6/06 death of plaintiff's decedent, who allegedly died of a Methadone overdose while an outpatient in a substance abuse treatment program at defendant-Treatment Works. Plaintiff was appointed the PR on 11/28/06, and filed her NOI on 9/11/08. The first complaint, filed on 11/14/08, was summarily dismissed because plaintiff failed to wait the statutorily required 182 days after serving the NOI. She filed an amended complaint on 3/18/09, asserting claims of "ordinary negligence" and medical malpractice. The trial court summarily dismissed these claims on the basis that they were all medical malpractice claims and were barred by the statute of limitations. Plaintiff appealed, and the court agreed with the trial court that the "allegations sound exclusively in medical malpractice and not ordinary negligence." The court also held that "all of the alleged medical malpractice claims expired on" 11/28/08 and thus, the trial court properly ruled that the action was barred by the statute of limitations. The Michigan Supreme Court denied plaintiff's application for leave to appeal. She filed the complaint in this case on 7/5/11. Count I was a "common law negligence (wrongful death)" claim. Count II was a "Drug Dealer Liability Act" claim based on defendants' alleged "illegal marketing" of Methadone. Count III alleged violations of the MCPA and asserted that defendants engaged "in the unlawful, improper, and unlicensed dispensation of Methadone that killed the Decedent." Count IV asserted breach of warranties and alleged that the "Methadone and/or the dispensation service in quality and/or quantity did not perform as warranted and represented in that it killed the Decedent." Counts V and VI were fraudulent and innocent misrepresentation claims based on the dispensing of Methadone. Counts VII and VIII were "concert of action" and "civil conspiracy" claims. Count IX was a medical malpractice claim. Plaintiff argued that MCL 600.5852 did not require that she file this action within two years after letters of authority were issued. The court concluded that she was correct in the sense that the statute does not require a PR to file a legal action that survived by law on behalf of the deceased's estate. However, it does provide that, if the PR elects to file such action, it must be filed within two years of the appointment "as long as that suit is commenced within three years after the two-year malpractice limitations period expired." Plaintiff had until 11/28/08 to file a medical malpractice suit. Thus, this suit was untimely. The court also rejected her argument that the trial court improperly applied res judicata to bar claims she did not raise in her prior suit. To the extent that any of her "new" claims were legally viable and were not medical malpractice claims, the prerequisites for the application of res judicata were met. The dismissal of her prior case as untimely operated as an adjudication on the merits. Both cases involved the same parties or their privies. Further, the claims in this case arose from the same transaction and could have been raised and resolved in the prior case.

 

This summary also appears under Bankruptcy

 

Issues: Whether the trial court properly held that the plaintiffs did not have "standing" to pursue this litigation; In re Egbert R. Smith Trust; Klooster v. City of Charlevoix; Briggs Tax Serv., LLC v. Detroit Pub. Sch.; Manuel v. Gill; International Union UAW v. Central MI Univ. Trs.; Young v. Independent Bank; Miller v. Chapman Contracting; White v. Wyndham Vacation Ownership, Inc. (6th Cir.); In re Coastal Plains, Inc. (5th Cir.); Whether the trial court should have held that there were genuine issues of material fact as to whether the bankruptcy Trustee abandoned the assets at issue allowing plaintiffs to bring this action; Szyszlo v. Akowit; Settlement agreement (SA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Obrzut v. Polish Deli & Bakery, Inc.

e-Journal Number: 53493

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

 

Applying Young to this case, the court held, inter alia, that the trial court properly found that the plaintiffs lacked standing to pursue the claims for breach of contract and breach of fiduciary duty arising from the SA in a prior case. The parties were involved in litigation in 2003, which was settled in 2005. However, the SA provided that defendants were to pursue an insurance claim from which plaintiffs were entitled to certain proceeds. The SA also stated that plaintiffs were entitled to participate in the insurance proceedings contingent upon the amount of the coverage provided by the insurer. On 11/14/06, plaintiffs filed a voluntary petition for bankruptcy and listed the SA on their schedule of assets. The bankruptcy Trustee and her attorney learned of the potential payments to be made by the insurance company and obtained a court order preventing the release to preclude dissipation of the estate's interest. However, after defendants filed a motion for the release of funds, the Trustee withdrew her objections. Also, by letter dated 7/18/07, defendants' counsel advised the Trustee's attorney that plaintiffs were entitled to participate in the settlement process. Despite that notice, the Trustee did not take an active role in the underlying litigation, but did accept the settlement proceeds to which plaintiffs were entitled. Plaintiffs received the exempted amount and the Trustee paid the remaining amount to creditors. After the bankruptcy proceeding was closed, plaintiffs filed this case for breach of the SA and breach of fiduciary duty, alleging defendants failed to comply with the terms of the SA and failed to pursue statutory interest. Defendants filed a motion for summary disposition asserting that plaintiffs lacked standing to sue under MCR 2.116(C)(5) because the SA was an asset of the bankruptcy estate and any claim belonged to the bankruptcy estate. Plaintiffs opposed the motion alleging that there were genuine issues of material fact as to whether the bankruptcy estate acquired the cause of action that accrued after the bankruptcy filing and whether the asset was abandoned by the Trustee. The trial court held that plaintiffs lacked standing to sue and granted defendants' motion without prejudice to allow the plaintiffs to return to the bankruptcy court and raise these issues. Plaintiffs argued that the trial court erred in ruling that they did not have standing to pursue this litigation. The documentation from the bankruptcy proceeding indicated that the Trustee and her attorney were aware of the SA. At the Trustee's request the bankruptcy court precluded payment of the funds arising from the SA until the estate's interest was determined and protected. The bankruptcy court ordered plaintiffs to disclose the terms of the SA to the Trustee. The documentation also revealed that defendants informed the Trustee and her attorney of the negotiations with the insurer and the right to participate in those proceedings. Because plaintiffs were aware of the terms of the SA and the negotiations to resolve the insurance matter that could have included their participation or the Trustee's involvement in their place, the trial court properly held that plaintiffs lacked standing to pursue these claims. Affirmed.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Personal injury action arising from a collision with a state-owned vehicle; Whether the trial court properly awarded plaintiff economic damages for wage loss and loss of services; Whether only damages for "bodily injury" or "property damage" are recoverable under the motor vehicle exception to governmental immunity; MCL 691.1405; The Government Tort Liability Act (GTLA) (MCL 691.1401 et seq.); The No-Fault Act (the NFA); Statutory interpretation; Driver v. Naini; Elements of a negligence claim; Hampton v. Waste Mgmt. of MI, Inc.; MCL 691.1407(1); Bennett v. Detroit Police Chief; Hardy v. Oakland Cnty.; MCL 500.3135; MCL 500.3135(3); MCL 500.3135(3)(c); "Bodily injury"; Applicability of Wesche v. Mecosta Cnty. Rd. Comm'n (which applied a definition of bodily injury as being "a physical or corporeal injury to the body"); Jago v. Department of State Police (Unpub.); Calculation of wage loss damages; Review of a trial court's determination of damages after a bench trial; Alan Custom Homes, Inc. v. Krol; Marshall Lasser, PC v. George; Chelsea Inv. Group LLC v. Chelsea; MCL 500.3107; Copus v. MEEMIC Ins. Co.; Swartout v. State Farm Mut. Auto Ins. Co.; Whether the trial court was required to calculate plaintiff's damages based on full-time employment

Court: Michigan Court of Appeals (Published)

Case Name: Hannay v. Department of Transp.

e-Journal Number: 53711

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

Holding that work loss benefits and ordinary and necessary service benefits that exceed the statutory personal protection insurance benefit maximum pursuant to MCL 500.3135(3) are awardable against governmental entities, the court concluded that the trial court properly awarded those economic damages to plaintiff. The court also held that the calculation of plaintiff's damages was not clearly erroneous. Plaintiff was involved in a car accident with a salt truck owned by the State of Michigan and driven S, an employee of defendant. S failed to heed a stop sign and struck plaintiff's car. As a result of the accident, plaintiff sustained injuries to her right shoulder and underwent four surgeries. She suffers from chronic pain that causes fatigue, anxiety, mood disorder, and she also requires assistance with normal daily activities. Plaintiff alleged that defendant owned the truck that failed to stop at a stop sign and struck her vehicle resulting in a serious impairment of bodily function. On appeal, defendant argued that the trial court erred by awarding plaintiff economic damages for wage loss and loss of services because only damages for "bodily injury" or "property damage" are recoverable under the motor vehicle exception to governmental immunity. Defendant did not dispute that the NFA provides for the award of economic damages. "Rather, now after more than 48 years since the enactment of the GTLA, during which time economic damages have presumably been routinely awarded," defendant argued that "the language of the motor vehicle exception precludes awarding economic damages as provided pursuant to MCL 500.3135(3)(c) because the damages recoverable pursuant to the motor vehicle exception are for the treatment of the bodily injury itself, but not the broader damages associated with the bodily injury." The only precedential authority defendant cited "that would suggest such a momentous change in the law" was the definition of "bodily injury" as a physical or corporeal injury to the body that was announced in Wesche. Applying this definition of bodily injury, defendant argued that the economic damages for work loss and loss of services are not recoverable because the GTLA's motor vehicle exception waives liability only as to bodily injury or property damage as defined in Wesche. However, the court held that defendant's reliance on Wesche in support of its position was misplaced. Plaintiff relied on, and defendant sought to distinguish, Jago. Similar to the survivor's loss damages at issue in Jago, in this case the court held that "work loss and loss of services damages are items of damages that arise from the bodily injuries suffered by plaintiff. To hold otherwise would conflate the actual bodily injury requirement to maintain a motor vehicle cause of action against a governmental entity with the types of damages recoverable as a result of the bodily injury." To the contrary, the court held that "the bodily injury that must be incurred to maintain an action against a governmental entity and the items of damages recoverable from those injuries are separate and distinct from one another." Affirmed.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Injuries sustained when a bicyclist hit a pothole in the street; Governmental immunity; Whether the plaintiff was within the "class of persons" intended to be protected by the "highway exception" (MCL 691.1402); Roy v. Department of Transp.; Nawrocki v. Macomb Cnty. Rd. Comm'n; The notice requirement for bringing a claim under the highway exception; MCL 691.1403; Wilson v. Alpena Cnty. Rd. Comm'n; "Constructive notice"; Effect of the photographs of the pothole

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hampton v. City of Southfield

e-Journal Number: 53544

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

 

Holding that the plaintiff-bicyclist was within the "class of persons" intended to be protected by MCL 691.1402, and that he established a genuine issue of material fact as to whether the defendant-City had constructive notice of the pothole defect, the court affirmed the trial court's order denying the City's motion for summary disposition. Plaintiff was returning home by bicycle from a grocery store when he struck a pothole in the road. He alleged that he was thrown from his bicycle and suffered severe injuries, including punctured lungs and vocal-chord damage. He alleged that the City breached its duty to maintain its roadways. The City claimed that he failed to establish that the road was unsafe and unfit for public travel or that the City had actual or constructive notice of the hole. The City also argued that because plaintiff was riding a bicycle, he was not within the class of persons intended to be protected by the highway exception. In rejecting the City's "class of persons" argument, the court found persuasive the plain language of the statute, the reasoning of Roy, and the holding of Nawrocki. MCL 691.1402 "does not indicate that only motor-vehicle-related accidents were intended to be encompassed by the statute; instead, the statute emphasizes the portion of the roadway that the duty to repair encompasses." In Roy, the Supreme Court observed that the statute "announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel." Plaintiff was traveling on the "improved portion of the highway designed for vehicular travel," and the court concluded that his claim was encompassed by the statute, as long as the other statutory criteria were fulfilled. The court noted that this conclusion was in accordance with Nawrocki, in which the Supreme Court agreed with the reasoning of Roy. As to notice, plaintiff's expert (D) testified at his deposition that "what happened on" the street was called "D-cracking on joints." He stated that "[i]t's a common phenomena [sic] on concrete pavements . . . and the City of Southfield should have been aware of that and kept a closer eye on the road there . . . ." D stated that "this is a classic form of a D-crack." He opined that, because of the freeze-thaw cycle, the hole likely appeared in March or April, more than 30 days before the accident. He also stated in a summary letter that because there was no concrete pavement debris surrounding the hole, "it had existed for some time." D testified that in reaching his conclusions he relied on articles relating to distresses in concrete pavement and on his "close to 50 years now of engineering experience that I've been involved with concrete pavements and familiar with D-cracking [sic]." As to whether the road was "in reasonable repair and in a condition reasonably safe and fit for travel," the court held that the photos established a genuine issue of material fact. "A hole of that size clearly presents a danger to bicyclists, and it is a matter of common sense that it would also pose a potential danger to vehicle drivers attempting to avoid the hole."

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Personal injury action arising from a collision with a state-owned vehicle; Whether the trial court properly awarded plaintiff economic damages for wage loss and loss of services; Whether only damages for "bodily injury" or "property damage" are recoverable under the motor vehicle exception to governmental immunity; MCL 691.1405; The Government Tort Liability Act (GTLA) (MCL 691.1401 et seq.); The No-Fault Act (the NFA); Statutory interpretation; Driver v. Naini; Elements of a negligence claim; Hampton v. Waste Mgmt. of MI, Inc.; MCL 691.1407(1); Bennett v. Detroit Police Chief; Hardy v. Oakland Cnty.; MCL 500.3135; MCL 500.3135(3); MCL 500.3135(3)(c); "Bodily injury"; Applicability of Wesche v. Mecosta Cnty. Rd. Comm'n (which applied a definition of bodily injury as being "a physical or corporeal injury to the body"); Jago v. Department of State Police (Unpub.); Calculation of wage loss damages; Review of a trial court's determination of damages after a bench trial; Alan Custom Homes, Inc. v. Krol; Marshall Lasser, PC v. George; Chelsea Inv. Group LLC v. Chelsea; MCL 500.3107; Copus v. MEEMIC Ins. Co.; Swartout v. State Farm Mut. Auto Ins. Co.; Whether the trial court was required to calculate plaintiff's damages based on full-time employment

Court: Michigan Court of Appeals (Published)

Case Name: Hannay v. Department of Transp.

e-Journal Number: 53711

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

Holding that work loss benefits and ordinary and necessary service benefits that exceed the statutory personal protection insurance benefit maximum pursuant to MCL 500.3135(3) are awardable against governmental entities, the court concluded that the trial court properly awarded those economic damages to plaintiff. The court also held that the calculation of plaintiff's damages was not clearly erroneous. Plaintiff was involved in a car accident with a salt truck owned by the State of Michigan and driven S, an employee of defendant. S failed to heed a stop sign and struck plaintiff's car. As a result of the accident, plaintiff sustained injuries to her right shoulder and underwent four surgeries. She suffers from chronic pain that causes fatigue, anxiety, mood disorder, and she also requires assistance with normal daily activities. Plaintiff alleged that defendant owned the truck that failed to stop at a stop sign and struck her vehicle resulting in a serious impairment of bodily function. On appeal, defendant argued that the trial court erred by awarding plaintiff economic damages for wage loss and loss of services because only damages for "bodily injury" or "property damage" are recoverable under the motor vehicle exception to governmental immunity. Defendant did not dispute that the NFA provides for the award of economic damages. "Rather, now after more than 48 years since the enactment of the GTLA, during which time economic damages have presumably been routinely awarded," defendant argued that "the language of the motor vehicle exception precludes awarding economic damages as provided pursuant to MCL 500.3135(3)(c) because the damages recoverable pursuant to the motor vehicle exception are for the treatment of the bodily injury itself, but not the broader damages associated with the bodily injury." The only precedential authority defendant cited "that would suggest such a momentous change in the law" was the definition of "bodily injury" as a physical or corporeal injury to the body that was announced in Wesche. Applying this definition of bodily injury, defendant argued that the economic damages for work loss and loss of services are not recoverable because the GTLA's motor vehicle exception waives liability only as to bodily injury or property damage as defined in Wesche. However, the court held that defendant's reliance on Wesche in support of its position was misplaced. Plaintiff relied on, and defendant sought to distinguish, Jago. Similar to the survivor's loss damages at issue in Jago, in this case the court held that "work loss and loss of services damages are items of damages that arise from the bodily injuries suffered by plaintiff. To hold otherwise would conflate the actual bodily injury requirement to maintain a motor vehicle cause of action against a governmental entity with the types of damages recoverable as a result of the bodily injury." To the contrary, the court held that "the bodily injury that must be incurred to maintain an action against a governmental entity and the items of damages recoverable from those injuries are separate and distinct from one another." Affirmed.

 

This summary also appears under Contracts

 

Issues: Tortious interference with a contract; Badiee v. Brighton Area Sch.; Derderian v. Genesys Health Care Sys.; Requirement that the defendant "unjustifiably instigated or induced" the breach; Derosia v. Austin; Woody v. Tamer; 4 Restatement Torts, § 766, Comment d, pp 54-55; "Improper conduct" requirement; Trepel v. Pontiac Osteopathic Hosp.; Wood v. Herndon & Herndon Investigations, Inc.; Distinguishing tortious interference with a contract from tortious interference with a business relationship; Health Call of Detroit v. Atrium Home & Health Care Servs., Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Knight Enters., Inc. v. RPF Oil Co.

e-Journal Number: 53710

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

 

Holding that the trial court incorrectly framed the plaintiff's claim as one for tortious interference with a business relationship/expectancy rather than tortious interference with a contract, the court concluded that the claim failed as a matter of law. The court held that defendant-RPF did not instigate defendant-Saleh's breach of his contract with plaintiff or intentionally induce him to breach his contracts. Further, plaintiff failed to produce "any evidence that RPF acted intentionally, with maliciousness, or that it committed a 'per se wrongful act.'" Saleh decided to rebrand his gas stations from Citgo, for which plaintiff was the gasoline supplier, to Shell, for which RPF was the gasoline supplier. Plaintiff specifically alleged tortious interference with a contract in its complaint and its counsel argued those elements at the close of proofs in the bench trial. However, "the trial court cited and decided the case on the basis of the elements for tortious interference with a business relationship." The court explained in Health Call that "tortious interference with a contract or contractual relations is a cause of action distinct from tortious interference with a business relationship or expectancy." The elements of tortious interference with a contract are - (1) the existence of a contract, (2) a breach, and (3) an unjustified instigation of the breach by the defendant. "By definition, tortious interference with a contract is an intentional tort." The court held that "it is an essential element of a claim of tortious interference with a contract that the defendant 'unjustifiably instigated or induced' the party to breach its contract." Undisputed evidence showed that Saleh sued plaintiff in an effort to avoid his contractual obligations before he entered into any contract with RPF. He testified that he stopped buying fuel from plaintiff because plaintiff consistently underpriced gas at a nearby station, Citgo was losing business because of its connection to Hugo Chavez, and he believed plaintiff was overcharging him for gas deliveries. He also contacted several fuel suppliers, including RPF, and told them, inaccurately, that his contracts with plaintiff were not in effect. Saleh solicited the bids, not RPF, and he explicitly testified that, no matter who became his new fuel supplier, he did not intend to continue his contracts with plaintiff. Further, the evidence established that Saleh breached his contracts with plaintiff before anyone at RPF even knew he was obligated under any contracts with plaintiff. Saleh, RPF's executive chairman, and an RPF employee all testified that Saleh unequivocally told RPF that his prior fuel contract was no longer in effect. "Thus, undisputed evidence showed that Saleh's breach was not, in any way, instigated or induced by RPF." The court concluded that the trial court should have ruled that plaintiff's claim failed as a matter of law. The court reversed the trial court's judgment for plaintiff.

 

This summary also appears under Real Property

 

Issues: Whether the trial court properly granted the defendant-homeowners association-CFHA's motion for summary disposition because plaintiff-Buck did not produce evidence to establish "causation"; Dalley v. Dykema Gossett; Hill v. Sears, Roebuck & Co.; Brown v. Brown; Maiden v. Rozwood; Kamalnath v. Mercy Mem'l Hosp. Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Buck v. Century Farms Homeowner's Ass'n

e-Journal Number: 53489

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

 

The court held that the trial court properly granted defendant-CFHA summary disposition because plaintiff did not produce evidence to establish the element of causation in this case where his in-ground pool popped out of the ground and was damaged allegedly due to elevated groundwater. Plaintiff owns a home in the Century Farms subdivision, making him a member of the CFHA. Part of CFHA's responsibilities included maintaining the common areas in the subdivision. One of those was the "park" abutting plaintiff's backyard, with his property sloping down to the park. The park area near plaintiff's property line would regularly collect standing water after it rained. Historically, the rain water accumulation was contained in the park and did not go on plaintiff's property. The CFHA's board of directors was aware of the water accumulation for many years, and although it contemplated adding additional drainage to the area, it ultimately never made any alterations or improvements to the park area. The president of the association stated in an affidavit that he was told by a township official regardless of the presence of standing water, the drainage in the park was adequate. Also, the environmental services supervisor of the township testified that there was no evidence of structural defects or blockages in the storm drainage system in the park area. Plaintiff had a fiberglass in-ground pool installed in his backyard. Every winter a contractor would winterize the pool and close it for the season. Soon after removing the pool cover one spring, plaintiff noticed over the course of a few days that the pool itself "started raising out of the ground" and progressively got "worse and worse." The movement caused cracks and twists in the top half of the pool and the surrounding concrete, resulting in the pool holding about half of its capacity of water. Plaintiff contacted the defendant-insurer, which denied the claim based on its expert's opinion that the pool "floated up" out of the ground due to an elevated groundwater table. Later, plaintiff brought a negligence claim against CFHA and two of its directors, who were dismissed. Plaintiff alleged, inter alia, that his property was damaged as a result of the water being allowed to accumulate in the common park area due to improper drainage and flooding. The trial court granted the CFHA summary disposition because plaintiff could not show causation and his claim rested on speculation and conjecture. The court agreed and affirmed.

 

This summary also appears under Municipal

 

Issues: Injuries sustained when a bicyclist hit a pothole in the street; Governmental immunity; Whether the plaintiff was within the "class of persons" intended to be protected by the "highway exception" (MCL 691.1402); Roy v. Department of Transp.; Nawrocki v. Macomb Cnty. Rd. Comm'n; The notice requirement for bringing a claim under the highway exception; MCL 691.1403; Wilson v. Alpena Cnty. Rd. Comm'n; "Constructive notice"; Effect of the photographs of the pothole

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hampton v. City of Southfield

e-Journal Number: 53544

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

 

Holding that the plaintiff-bicyclist was within the "class of persons" intended to be protected by MCL 691.1402, and that he established a genuine issue of material fact as to whether the defendant-City had constructive notice of the pothole defect, the court affirmed the trial court's order denying the City's motion for summary disposition. Plaintiff was returning home by bicycle from a grocery store when he struck a pothole in the road. He alleged that he was thrown from his bicycle and suffered severe injuries, including punctured lungs and vocal-chord damage. He alleged that the City breached its duty to maintain its roadways. The City claimed that he failed to establish that the road was unsafe and unfit for public travel or that the City had actual or constructive notice of the hole. The City also argued that because plaintiff was riding a bicycle, he was not within the class of persons intended to be protected by the highway exception. In rejecting the City's "class of persons" argument, the court found persuasive the plain language of the statute, the reasoning of Roy, and the holding of Nawrocki. MCL 691.1402 "does not indicate that only motor-vehicle-related accidents were intended to be encompassed by the statute; instead, the statute emphasizes the portion of the roadway that the duty to repair encompasses." In Roy, the Supreme Court observed that the statute "announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel." Plaintiff was traveling on the "improved portion of the highway designed for vehicular travel," and the court concluded that his claim was encompassed by the statute, as long as the other statutory criteria were fulfilled. The court noted that this conclusion was in accordance with Nawrocki, in which the Supreme Court agreed with the reasoning of Roy. As to notice, plaintiff's expert (D) testified at his deposition that "what happened on" the street was called "D-cracking on joints." He stated that "[i]t's a common phenomena [sic] on concrete pavements . . . and the City of Southfield should have been aware of that and kept a closer eye on the road there . . . ." D stated that "this is a classic form of a D-crack." He opined that, because of the freeze-thaw cycle, the hole likely appeared in March or April, more than 30 days before the accident. He also stated in a summary letter that because there was no concrete pavement debris surrounding the hole, "it had existed for some time." D testified that in reaching his conclusions he relied on articles relating to distresses in concrete pavement and on his "close to 50 years now of engineering experience that I've been involved with concrete pavements and familiar with D-cracking [sic]." As to whether the road was "in reasonable repair and in a condition reasonably safe and fit for travel," the court held that the photos established a genuine issue of material fact. "A hole of that size clearly presents a danger to bicyclists, and it is a matter of common sense that it would also pose a potential danger to vehicle drivers attempting to avoid the hole."

 

Personal Protection Orders

 

This summary also appears under Family Law

 

Issues: Divorce; Whether the trial court properly found respondent/plaintiff-wife in criminal contempt for violating the PPO held by petitioner/defendant-husband; In re Contempt of Henry; Porter v. Porter; MCR 3.708(B)(1); MCR 3.708(H)(3); Denial of the wife's motions for makeup parenting time; Borowsky v. Borowsky; The Child Custody Act; MCL 722.27a(1); MCL 722.27a(6); Factor (c); Whether the trial court should have entered a default judgment against the husband; Kowalski v. Fiutowski; Huntington Nat'l Bank v. Ristich; MCR 2.603(A), (A)(1), (A)(2), and (A)(2)(b); MCR 2.108(A)(1); MCR 2.603(A)(2)(b); MCR 2.603(B); MCR 2.603(B)(1)(a); "Waiver"; Reed Estate v. Reed; "Implied waiver"; Requirement that the trial court hold a custody hearing; In re AP; Whether the trial court used the correct legal standards for determining its award of child custody; Brausch v. Brausch; Shade v. Wright; Berger v. Berger; Whether the trial court's findings of fact were against the great weight of the evidence; Custodial environment; Rittershaus v. Rittershaus; Whether the trial court properly retroactively abated the husband's child support obligations; Rivette v. Rose-Molina; "Plain error"; Duray Dev., LLC v. Perrin; MCL 552.603(2); Denial of the wife's motion for spousal support; Woodington v. Shokoohi; Claim related to the husband's sale of property he allegedly fraudulently purchased as a "single man"; Alleged bias on the part of the trial judge and hearing referee; MCR 2.003(D)(1)(a); Welch v. District Court; Child Protective Services (CPS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Chakkour v. Chakkour

e-Journal Number: 53596

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

 

Viewing the evidence in the light most favorable to the prosecution, the court held that respondent/plaintiff-wife violated the PPO held by the petitioner/defendant-husband. The court also held, inter alia, that the trial court did not abuse its discretion in denying the wife's motion for makeup parenting time. Thus, the court affirmed the trial court's order in Docket No. 309854 finding her in criminal contempt for violating a PPO. The court also affirmed the judgment of divorce in Docket No. 310006, but remanded for the trial court to vacate any orders that retroactively abated the husband's child support obligations. The court noted that the wife was found in contempt for violating the PPO held by the husband, not for violating the trial court's 2/10/12 oral ruling, which provided for "curbside" pick up and drop off of the children when the wife exercised her parenting time. Thus, the court held that the wife's arguments that the trial court's 2/10/12 oral ruling was a not valid custody modification, that the trial court erred in not providing her with a written order, and that the order was impermissibly vague, were not properly part of this appeal, as they did not relate to the PPO or the order finding her in criminal contempt. The trial court's provision for curbside pickup was merely to ensure she could exercise her parenting time while still complying with the PPO. Thus, the court only addressed whether there was sufficient evidence to find the wife in criminal contempt for violating the PPO. The husband testified that the wife entered his apartment. Thus, she violated the PPO. The trial court's decision to deny the wife parenting time focused on factor (c) - the "reasonable likelihood of abuse or neglect of the child during parenting time." The trial court concluded that the wife continued to have anger management issues, even after completing a court-ordered anger management program. The trial court characterized her actions in disciplining the children "as 'wreaking vengeance' on them for their misbehavior" and said that she had "an 'antagonistic approach' to her children." The trial court also discussed the wife's "lack of stability and self-control and other mental health problems," as evidenced by her filing a false CPS report that the husband had sexually abused one of the children. The court concluded that the trial court's findings were supported by the evidence. As to the husband's child support obligations, the court noted that the 2/2/12 order abated his child support beginning 8/1/10 and thus, clearly retroactively modified the prior support order, which was legally impermissible. Thus, that order had to be vacated.

 

Real Property

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly granted the defendant-homeowners association-CFHA's motion for summary disposition because plaintiff-Buck did not produce evidence to establish "causation"; Dalley v. Dykema Gossett; Hill v. Sears, Roebuck & Co.; Brown v. Brown; Maiden v. Rozwood; Kamalnath v. Mercy Mem'l Hosp. Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Buck v. Century Farms Homeowner's Ass'n

e-Journal Number: 53489

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

 

The court held that the trial court properly granted defendant-CFHA summary disposition because plaintiff did not produce evidence to establish the element of causation in this case where his in-ground pool popped out of the ground and was damaged allegedly due to elevated groundwater. Plaintiff owns a home in the Century Farms subdivision, making him a member of the CFHA. Part of CFHA's responsibilities included maintaining the common areas in the subdivision. One of those was the "park" abutting plaintiff's backyard, with his property sloping down to the park. The park area near plaintiff's property line would regularly collect standing water after it rained. Historically, the rain water accumulation was contained in the park and did not go on plaintiff's property. The CFHA's board of directors was aware of the water accumulation for many years, and although it contemplated adding additional drainage to the area, it ultimately never made any alterations or improvements to the park area. The president of the association stated in an affidavit that he was told by a township official regardless of the presence of standing water, the drainage in the park was adequate. Also, the environmental services supervisor of the township testified that there was no evidence of structural defects or blockages in the storm drainage system in the park area. Plaintiff had a fiberglass in-ground pool installed in his backyard. Every winter a contractor would winterize the pool and close it for the season. Soon after removing the pool cover one spring, plaintiff noticed over the course of a few days that the pool itself "started raising out of the ground" and progressively got "worse and worse." The movement caused cracks and twists in the top half of the pool and the surrounding concrete, resulting in the pool holding about half of its capacity of water. Plaintiff contacted the defendant-insurer, which denied the claim based on its expert's opinion that the pool "floated up" out of the ground due to an elevated groundwater table. Later, plaintiff brought a negligence claim against CFHA and two of its directors, who were dismissed. Plaintiff alleged, inter alia, that his property was damaged as a result of the water being allowed to accumulate in the common park area due to improper drainage and flooding. The trial court granted the CFHA summary disposition because plaintiff could not show causation and his claim rested on speculation and conjecture. The court agreed and affirmed.

 

Issues: Action to quiet title to an easement; Schwadewald v. Brule; Easement by reservation; Chapdelaine v. Sochocki; Easement appurtenant; Heydon v. MediaOne; Whether there was any evidence of "permissive use"; Applicability of the law concerning extinguishment of an easement by necessity

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ormsbee v. Ormsbee

e-Journal Number: 53553

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

 

Holding that the plain language of the warranty deed at issue expressly reserved an easement appurtenant for the purposes of ingress and egress, the court affirmed the trial court's "Judgment Establishing Easement" in the plaintiff's favor. C originally owned all of the land that was involved in the case. A river was on one end of the land and a highway was on the other end. Plaintiff and her now-deceased husband purchased a riverfront lot from C in 1960. A dirt road running from the highway to the river provided access to the lot. C later sold plaintiff the land between plaintiff's parcel (parcel 1) and the highway. This land consisted of the land bordering the highway (parcel 2) and a 100 foot by 300 foot parcel directly to the west of parcel 1 and contiguous to it. In 1963 plaintiff and her husband sold a portion of their riverfront property to their son, John, and his wife, defendant-Darlene Ormsbee, and the same builder built homes for both Ormsbee families on the adjacent riverfront lots. Both families used the dirt road to access their homes. In 1972, plaintiff sold parcel 2 to John and Darlene by warranty deed. Plaintiff retained the rights of ingress and egress across the parcel. In 2000, Darlene conveyed to her son, defendant-Todd Ormsbee and his wife, defendant-Loral Ormsbee, an adjacent parcel of land along the river. Todd testified that he blocked access to the dirt road in 2010 at Darlene's request. According to Darlene, John developed and built an alternative road from the highway to the residential lots in 1999 or 2000. Defendants offered plaintiff a recorded easement along the new road that would run with the land. Plaintiff acknowledged that John had added a new road, but indicated that she wanted to use the old road as she had since she acquired the property. Defendants argued on appeal, inter alia, that the language in the 1972 warranty deed was not sufficiently specific to grant an easement. The deed provided - "RESTRICTIONS: Rights of egress and ingress are reserved." While the easement language did not "delineate the precise location of the easement - that is, there is no metes and bounds description - '[i]t is not necessary that the party reserving the easement right use any particular words as long as the intent to claim an easement is apparent and it is described sufficiently so that the easement and the parcel of the land to which the right is attached can be determined, using parol evidence if necessary.'" The court concluded that there could be "no legitimate assertion in this case involving a deed for the conveyance of land between family members that there was any doubt over the location of the easement, given that both families had utilized the dirt road for access to their properties since at least 1963 and the general location of the dirt road remained unaltered." The court held that the trial court properly determined that "an easement, once granted, cannot be unilaterally modified by either party." The trial court also "properly declined to move the easement to a different parcel of property over which an easement was not reserved."

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Conley; Children's best interests; In re Trejo Minors; Consideration of the effect of the children's placement with relatives in making the best interests determination; In re Mason; In re Mays; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Coote

e-Journal Number: 53562

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

 

In an order, the court vacated its prior opinion in this case (see e-Journal # 53172 in the 12/3/12 edition) and issued a new opinion concurrently with the order. The court remanded the case for further proceedings consistent with its opinion, and retained jurisdiction. The court again held that the trial court did not clearly err in finding that §§ 19b(3)(c)(i), (g), and (j) supported terminating the respondent-mother's parental rights, and that terminating her parental rights was in the children's best interests. However, the trial court clearly erred by failing to explicitly consider the children's placement with maternal relatives in making its best interests determination. Thus, the court vacated the termination order and remanded for further consideration of the best interest factors. "The principal conditions that led to adjudication were respondent's alcoholism and mental instability. These conditions were not rectified at the time of the termination proceeding, which was more than 182 days after the initial dispositional order." Respondent did not dispute that the conditions that led to adjudication continued to exist. Rather, she argued that she could rectify these issues within a reasonable period of time. The court disagreed, noting that even before the petitioner-DHS filed a protective proceedings petition, "respondent had a history of becoming intoxicated and threatening suicide, sometimes in the presence of her children." She was offered services for over a year, but she made inconsistent progress. She went through periods where she maintained sobriety and participated in services. But she would become stressed and return to abusing alcohol. "For respondent, the children were a significant source of stress." She testified that she would likely relapse if they were returned to her care because of the stress involved in caring for them. The court concluded that while respondent showed a desire to maintain sobriety, she did not show an ability to do so. Thus, the trial court's findings as to § 19b(3)(c)(i) were not clearly erroneous. Further, "a respondent's persistent struggles with alcohol abuse also are grounds for termination under § 19b(3)(g)." The court also concluded that respondent's inability to maintain sobriety, especially when caring for the children, established a reasonable likelihood that they would be harmed if returned to her care. Thus, the trial court also did not clearly err in finding that § 19b(3)(j) was established. Further, evidence supported the trial court's finding that terminating respondent's parental rights was in the children's best interests. However, pursuant to Mason, "children's placement with relatives is an 'explicit factor to consider in determining whether termination was in the children's best interests' when considering a termination" under §§ 19b(3)(c)(i) and (g). "A trial court's failure to consider the children's placement with relatives in making its termination decision renders the factual record 'inadequate' for appellate review." Under Olive/Metts, a trial court must also consider the children's placement with relatives in making a best interest determination after § 19b(3)(j) is established. Affirmed in part, vacated in part, and remanded.

 

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