• Contracts (1)
• Criminal Law (4)
• Environmental Law (1)
• Family Law (2)
• Immigration (1)
• Insurance (1)
• Litigation (1)
• Negligence & Intentional Tort (3)
• Probate (1)
• Tax (1)
• Termination of Parental Rights (1)
• Workers' Compensation (1)

Contracts

 

This summary also appears under Environmental Law

 

Issues:  Breach of contract claim for alleged failure to properly conduct a "wetland review"; Contract interpretation; Manuel v. Gill; Use of the technical meaning of the phrase wetland review; Effect of the plaintiff's representative's subjective understanding of the term; Burkhardt v. Bailey; A "wetland delineation" distinguished from a wetland review; Negligence claims; Roulo v. Auto Club of MI; "Duty" requirement; Beaty v. Hertzberg & Golden, PC; Clark v. Dalman; A duty arising from voluntarily undertaking to perform an act; Home Ins. Co. v. Detroit Fire Extinguisher Co.; Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co.; Hart v. Ludwig; Claim that the defendant's representative was negligent in communicating the results of the wetlands review to plaintiff's representative and in answering her inquiries about the property; Environmental Site Assessment (ESA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Just Us Four, L.L.C. v. Villa Envtl. Consultants, Inc.

e-Journal Number: 50489

Judge(s): Per Curiam – Markey, Fitzgerald, and Borrello

 

The trial court properly granted the defendant summary disposition of the plaintiff's breach of contract claim because the terms of the parties' contract manifested the intent that defendant perform a "wetland review" (not a "wetland delineation") and there was no dispute that it performed a wetland review. The court also held that defendant was properly granted summary disposition of plaintiff's negligence claim because plaintiff had no cognizable cause of action for negligence where it was basically complaining of inadequate performance under the contract. The case arose from defendant's performance of a pre-purchase environmental assessment and wetland review of property now owned by plaintiff. Plaintiff's representative (W) contacted defendant to perform a Phase I ESA of the property before plaintiff purchased it. W also requested that defendant perform a "Wetland Review Please." While the scope of the Phase I ESA was described in writing, the scope of a wetland review was not defined, either in writing or verbally, to W. Relying on alleged verbal statements made by defendant's representative (L) to W that "you're good to go," and "I think you'll be fine," plaintiff purchased the property. Plaintiff later entered into a letter of intent to sell the property to an entity that develops property for hotel franchises. The offer to purchase was contingent on several factors, including satisfaction of any environmental concerns. "As part of its due diligence, the prospective purchaser requested that plaintiff obtain a wetland delineation to determine the extent of any wetlands present on the property" - the wetland delineation revealed that the property contained 15.2 acres of regulated wetlands. The prospective purchaser terminated the letter of intent and withdrew its offer to purchase the property. Plaintiff alleged that defendant breached its contract by failing to properly conduct the contracted-for wetland review, and also alleged that defendant was negligent in, inter alia, communicating the results of the wetland review to W and in answering her inquiries about the property. Plaintiff argued on appeal that the trial court erred by construing the contract using the technical meaning (used in the environmental consulting industry) of the phrase "wetland review" and instead should have considered W's subjective understanding of the scope of the phrase. L testified that a wetland review is "the review of government documentation to determine whether such records indicate the potential for wetlands on the site; it is not an investigation to determine whether wetlands are actually present on the property, which investigation is referred to a ‘wetland delineation.'" Plaintiff's environmental expert (G) also described a wetland review as an examination of historical records to determine if there are issues requiring further examination. G agreed with L that a wetland review is substantially different from a wetland delineation, which he defined as "the determination of the actual presence and size, if any, of wetlands on the property." Defendant's report indicated that L reviewed the MDEQ wetland inventory maps, the report advised that there were potential wetlands on the property, and that if development were contemplated, a wetland delineation should be performed. In light of the deposition testimony of L and G, there was "no question of fact that plaintiff contracted for, and received, a ‘wetland review.'" Affirmed.

 

Criminal Law

 

Issues: Restitution; Whether the trial court properly found that Blue Cross had suffered a loss as a result of the defendant's course of criminal conduct; People v. Gahan; People v. Bemer; MCR 2.613(C); People v. Atkins; Const. 1963, art. 1, § 24; The Crime Victim's Rights Act (MCL 780.751 et seq.); MCL 780.766(2); "Victim"; MCL 780.766(1); MCL 780.767(1); "Course of conduct"; People v. Gubachy

Court: Michigan Court of Appeals (Published After Release)

Case Name: People v. Allen

e-Journal Number: 50742

Judge(s): Per Curiam – M.J. Kelly, Saad, and O’Connell

 

[This opinion was previously released as an unpublished opinion on 11/22/11.] Holding that the trial court properly found that Blue Cross had suffered a loss as a result of the defendant's course of criminal conduct, the court affirmed the trial court's order of restitution. Defendant attempted to purchase a controlled substance from a pharmacy using a fraudulent prescription. The prescription contained a legitimate Blue Cross contract number. The pharmacy alerted Blue Cross to the attempted purchase later that same month. At the time, defendant was a customer service representative with a Blue Cross vendor. Through her employment, she had access to two major databases. These databases contained private information for Blue Cross subscribers - the information included the subscribers' contract numbers, Social Security numbers, dates of birth, home addresses, and physician records. B testified at defendant's restitution hearing that she was a field investigator with Blue Cross and that her department investigates fraud. B investigated defendant's attempt to purchase the controlled substance. B determined that defendant used an actual Blue Cross subscriber's name on the fraudulent prescription. After defendant pleaded guilty to attempting to commit prescription fraud, the trial court sentenced her under a sentencing agreement to serve one year of probation and ordered her to pay $5,753.88 in restitution to Blue Cross. Defendant argued that Blue Cross' investigation did not amount to a financial harm because the costs would have been incurred regardless of her course of criminal conduct. She asserted that B would have received the same salary and worked the same hours even in the absence of defendant's attempt to fraudulently purchase a controlled substance. Thus, Blue Cross did not suffer a loss within the meaning of the Victim's Rights Act. The evidence showed that B was a salaried, full-time employee in a department dedicated to investigating fraud. Nevertheless, B's department had an indefinite number of claims to investigate and she plainly could have spent the 44 hours investigating defendant's fraud on other matters. Thus, Blue Cross essentially lost the time-value of the 44 hours that B had to spend investigating defendant's fraud, rather than some other fraud. That was, the loss to Blue Cross was not B's salary or the department's budget, Blue Cross would likely have incurred these costs regardless of defendant's criminal conduct. Rather, it was the loss of time that amounted to a direct financial harm, which could be measured by assigning a value to the hours spent on the investigation. Thus, the trial court did not clearly err when it found that Blue Cross suffered a direct financial loss as a result of defendant's course of criminal conduct. Also, she did not challenge the trial court's finding that this loss should be valued at $5,753.88.

 

Issues: Sufficiency of the evidence to prove that the defendant knowingly possessed child sexually abusive material; People v. Ericksen; "Possesses"; People v. Flick; Whether the trial court properly consolidated the charged offenses for trial; Waiver; People v. Carter; Evidentiary issues; Plain error; People v. Knox; Whether the physician's assistant who examined the victim was qualified to testify as to the ultimate issue in the CSC case; People v. Smith; MRE 704; Whether the mother's friend properly testified regarding "other acts" evidence; Whether defendant established that admission of the testimony affected the outcome of the trial; People v. Carines; Whether the digital media analysis expert properly testified about a child-pornography movie series; MRE 401; Whether defendant was entitled to a new trial and the opportunity for a polygraph examination where he requested and paid for a polygraph examination under MCL 776.21(5) but did not receive one; People v. Phillips; Ineffective assistance of counsel; People v. Rodriguez; People v. Jordan; People v. Fike

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hansen

e-Journal Number: 50545

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

 

The court held that there was sufficient evidence to prove that the defendant knowingly possessed child sexually abusive material. Defendant was living with the victim - his seven-year old stepdaughter. He sexually assaulted the victim by putting his penis in her mouth and both his penis and a "purple toy" in her anus. The victim disclosed the sexual assault to her grandmother and, later, to her mother and her mother's friend. After the disclosure, law enforcement officers searched defendant's home, where the victim assisted the police in locating the purple toy. Police also seized defendant's laptop computer and a large, portable external storage drive. The prosecution presented evidence that defendant downloaded 11 child-pornography movies to his computer and another 16 on a portable storage hard drive. The jury viewed two of these movies. The evidence supported "a finding that defendant constructively possessed the child sexually abusive material where he intentionally searched for child-pornography movies, downloaded them to his computer, and saved them in hidden files." The evidence also supported a finding that he "had the power and the intent to exercise dominion or control over the child-pornography movies by saving them to a hidden folder on his internal hard drive and also onto a portable external hard drive." Viewing the evidence in a light most favorable to the prosecution and resolving all evidentiary conflicts in its favor, a rational trier of fact could have found beyond a reasonable doubt that defendant knowingly possessed child sexually abusive material. While he emphasized that the prosecution only proved that he viewed one adult-pornography movie, whether defendant viewed the child-pornography movies was not a relevant inquiry as to whether he knowingly possessed child sexually abusive material. Defendant's convictions of possession of child sexually abusive material, using a computer to commit a crime, and two counts of CSC I were affirmed.

 

Issues: Sentencing; Whether defendant's sentence was "disproportionate"; People v. Smith; People v. Babcock; People v. Cline; People v. Watkins; People v. Hicks; People v. Armstrong; People v. Bennett; Whether the sentence amounted to "cruel and unusual punishment"; Solem v. Helm; Harmelin v. Michigan; People v Garrison; People v. Metamora Water Serv., Inc.; Plain error; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Larry

e-Journal Number: 50541

Judge(s): Per Curiam – Saad, Stephens, and Ronayne Krause

 

The court held that the defendant's sentence was proportionate to the egregiousness of the offender and the offense. Further, noting that a proportionate sentence does not constitute cruel and unusual punishment, the court concluded that it could not be said that the trial court's imposition of a 99 to 145-year sentence for solicitation to commit murder was a plain error under the cruel and unusual analysis of the Eighth Amendment. Defendant's conviction arose from his conduct while in jail awaiting his trial for CSC involving rape of a minor. He solicited his fellow cellmates to murder his rape victim, a 15-year old mentally impaired woman. After a jury trial conviction, defendant was initially sentenced to a minimum of 99 years imprisonment. He appealed his conviction as of right. The court affirmed his conviction, and stated that there were substantial and compelling reasons that justified departing from his recommended guidelines range, as a fourth habitual offender. However, the court vacated his sentence and remanded the case to the trial court on the basis that the trial court failed to state, with particularity, why the extent of the departure (36.5 years) was justified. Basing its opinion on Smith, which was decided after the original sentencing, the court suggested that the trial court could compare defendant to a hypothetical defendant whose recommended sentence was comparable to the departure sentence, or consider the location of where an upward departure would fall on the sentencing guidelines grid. At resentencing, the trial court sentenced defendant to 99 to 145 years' imprisonment, after explaining the particular reasons that led to the conclusion that the sentence was warranted. "Considering the egregious nature of the crime, defendant's appalling prison record," his "off the chart OV score, the psychological impact on the victim, and all of the other factors the trial judge listed," the court held that the trial judge's conclusion that the sentence departure was proportionate was not an abuse of discretion. Reviewing defendant's Eighth Amendment claim for plain error, the court held that there was no evidence that an error actually occurred. His sentence for solicitation to commit murder was "not cruel and unusual when compared to sentences imposed for crimes of an even lesser severity." The court has upheld a life sentence for CSC I, even though there was no threat to the victim's life. Defendant also argued that many of the factors that led the trial judge to depart from the guidelines range were unrelated to the charged offense. However, he did not explain, and cited no authority, why this should impact an Eighth Amendment analysis. Further, numerous cases have upheld sentence departures that depend on factors unrelated to the exact charged offense. Affirmed.

 

Issues: Ineffective assistance of counsel; Whether defendant was denied the right to counsel under United States v. Cronic because of the lack of communication between defendant and defense counsel (S) during the pretrial period; Whether the record indicated that S was totally absent during the pretrial period so as to deny the defendant the presence of counsel at a critical stage; People v. Musser; People v. Petri; Plain error; People v. Snider; People v. Russell; Strickland v. Washington; People v. Frazier; People v. Murphy; People v. Solmonson; Effect of the fact the defendant contributed to the lack of communication; People v. Luster; Sufficient evidence to support the charge of resisting or obstructing a police officer; People v. Nichols

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Young

e-Journal Number: 50543

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

 

Concluding that the record did not indicate defense counsel (S) was totally absent during the pretrial period so as to deny the defendant the presence of counsel at a critical stage, the court held that defendant was not entitled to reversal under the Strickland standard. S was appointed as defendant's counsel in 2/10. S appeared on defendant's behalf at an 4/10 preliminary examination and at a 6/10 pretrial hearing. On 7/12/10, one day before trial, S moved to withdraw as defendant's counsel due to a breakdown in the attorney-client relationship. At the motion hearing, defendant stated that S failed to communicate adequately with him and should not represent him at trial. S stated that his office had called defendant multiple times and had left messages with him. The trial court denied S's motion to withdraw, finding that S was competent to represent defendant and that defendant was responsible for the lack of communication. Defendant argued that there was a total communication breakdown between S and himself throughout the pretrial proceedings, which completely denied him the assistance of counsel during this critical stage. However, the court held that Cronic applies to situations where defense counsel was actually absent from a specific event, not where counsel simply failed to communicate with defendant. Also, defendant's claim that his five-month pretrial period constituted a "critical stage" within the meaning of Cronic was contrary to the overwhelming case law, which depicts a "critical stage" as one involving a specific adversarial confrontation. The record indicated that S made multiple appearances on defendant's behalf. At the preliminary examination, S cross-examined the prosecution's lone witness and argued before the trial court that the prosecution did not meet its burden of proof. At the pretrial hearing, S obtained a plea bargain from the prosecution. Even if the court were to find that the lack of pretrial communication between defendant and S constituted complete denial of counsel during a critical stage, defendant could not "base his claim of ineffective assistance of counsel on this lack of communication when he contributed to the lack of communication." The trial court found that defendant contributed to the lack of communication by not returning S's messages, and the record did not indicate that this factual finding was a clear error. Thus, defendant could not cite the lack of communication as evidence that he was denied counsel during a critical stage. Further, in light of the evidence provided at trial, defendant failed to show that "there is a reasonable probability that but for" S's failure to communicate adequately with him during the pretrial period, the jury would have found him not guilty of resisting and obstructing an officer. Affirmed.

 

Environmental Law

 

This summary also appears under Contracts

 

Issues:  Breach of contract claim for alleged failure to properly conduct a "wetland review"; Contract interpretation; Manuel v. Gill; Use of the technical meaning of the phrase wetland review; Effect of the plaintiff's representative's subjective understanding of the term; Burkhardt v. Bailey; A "wetland delineation" distinguished from a wetland review; Negligence claims; Roulo v. Auto Club of MI; "Duty" requirement; Beaty v. Hertzberg & Golden, PC; Clark v. Dalman; A duty arising from voluntarily undertaking to perform an act; Home Ins. Co. v. Detroit Fire Extinguisher Co.; Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co.; Hart v. Ludwig; Claim that the defendant's representative was negligent in communicating the results of the wetlands review to plaintiff's representative and in answering her inquiries about the property; Environmental Site Assessment (ESA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Just Us Four, L.L.C. v. Villa Envtl. Consultants, Inc.

e-Journal Number: 50489

Judge(s): Per Curiam – Markey, Fitzgerald, and Borrello

 

The trial court properly granted the defendant summary disposition of the plaintiff's breach of contract claim because the terms of the parties' contract manifested the intent that defendant perform a "wetland review" (not a "wetland delineation") and there was no dispute that it performed a wetland review. The court also held that defendant was properly granted summary disposition of plaintiff's negligence claim because plaintiff had no cognizable cause of action for negligence where it was basically complaining of inadequate performance under the contract. The case arose from defendant's performance of a pre-purchase environmental assessment and wetland review of property now owned by plaintiff. Plaintiff's representative (W) contacted defendant to perform a Phase I ESA of the property before plaintiff purchased it. W also requested that defendant perform a "Wetland Review Please." While the scope of the Phase I ESA was described in writing, the scope of a wetland review was not defined, either in writing or verbally, to W. Relying on alleged verbal statements made by defendant's representative (L) to W that "you're good to go," and "I think you'll be fine," plaintiff purchased the property. Plaintiff later entered into a letter of intent to sell the property to an entity that develops property for hotel franchises. The offer to purchase was contingent on several factors, including satisfaction of any environmental concerns. "As part of its due diligence, the prospective purchaser requested that plaintiff obtain a wetland delineation to determine the extent of any wetlands present on the property" - the wetland delineation revealed that the property contained 15.2 acres of regulated wetlands. The prospective purchaser terminated the letter of intent and withdrew its offer to purchase the property. Plaintiff alleged that defendant breached its contract by failing to properly conduct the contracted-for wetland review, and also alleged that defendant was negligent in, inter alia, communicating the results of the wetland review to W and in answering her inquiries about the property. Plaintiff argued on appeal that the trial court erred by construing the contract using the technical meaning (used in the environmental consulting industry) of the phrase "wetland review" and instead should have considered W's subjective understanding of the scope of the phrase. L testified that a wetland review is "the review of government documentation to determine whether such records indicate the potential for wetlands on the site; it is not an investigation to determine whether wetlands are actually present on the property, which investigation is referred to a ‘wetland delineation.'" Plaintiff's environmental expert (G) also described a wetland review as an examination of historical records to determine if there are issues requiring further examination. G agreed with L that a wetland review is substantially different from a wetland delineation, which he defined as "the determination of the actual presence and size, if any, of wetlands on the property." Defendant's report indicated that L reviewed the MDEQ wetland inventory maps, the report advised that there were potential wetlands on the property, and that if development were contemplated, a wetland delineation should be performed. In light of the deposition testimony of L and G, there was "no question of fact that plaintiff contracted for, and received, a ‘wetland review.'" Affirmed.

 

Family Law

 

Issues: Divorce; Spousal support; Schaffer v. Schaffer; Demman v. Demman; Berger v. Berger; McLain v. McLain; Magee v. Magee; Korth v. Korth; Sands v. Sands; Woodington v. Shokoohi; Focus on the income-earning potential of assets; Hanaway v. Hanaway; Division of property; Reeves v.  Reeves; Rule that a party may not take a position in the trial court and then seek redress in an appellate court based on a position contrary to that taken in the trial court; Living Alternatives for Developmentally Disabled, Inc. v. Department of Mental Health; Attorney fees; Reed v. Reed; Stallworth v. Stallworth; Heike v. Heike; Stackhouse v. Stackhouse

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ayres v. Ayres

e-Journal Number: 50529

Judge(s): Per Curiam – Stephens, Sawyer, and K.F. Kelly

 

The court held, inter alia, that the trial court properly awarded monthly spousal support in the amount of $800 to defendant-wife for 10 years or until she dies or remarries. However, the trial court abused its discretion in deciding not to award her attorney fees. The parties were separated in 2006 and received a Judgment of Divorce in 2010. At the time of their marriage, plaintiff-husband owned a home in Michigan, and defendant owned a home in Florida. Both parties contributed to the other's property. In addition to these two properties, the couple invested in many properties throughout the marriage. Three of these properties were acquired by defendant during the couple's separation. Plaintiff had no knowledge of, or connection to, those three properties. The couple's rental properties operated at large losses, and the couple was in debt. The trial court determined that defendant's monthly income was $546, while her expenses were $2,700. This was a deficit of $2,154, and her expenses were not up-to-date. "There was a fair amount of difficulty in ascertaining plaintiff's income and expenses." The trial court determined that his monthly income was $3,244.74, while his expenses were $3,063. This was a surplus of $181.74, and his expenses were up-to-date. He had been paying personal expenses from his business. "The trial court stated that it was very conservative when it determined plaintiff's income, and the couple's tax returns indicated that his income had historically been higher than the trial court's estimated amount." While defendant received rental property that had the potential to generate additional income, the couple's tax returns indicated that these properties had historically lost far more than they produced. The trial court also stated that it considered defendant's inheritance when it made its determination. Thus, the court held that defendant demonstrated a need for spousal support, and plaintiff had the ability to pay spousal support. Defendant argued on cross-appeal that the trial court abused its discretion in denying her attorney fees. The court agreed, concluding that she had shown an inability to pay attorney fees, plaintiff had the ability to pay attorney fees, and he refused to comply with a prior court order despite having the ability to comply. Affirmed in part, reversed in part, and remanded in part.

 

Issues: Divorce; Whether the division of the marital property was equitable; Sparks v. Sparks; Beason v. Beason; Berger v. Berger; "Fault" as a factor in deciding the property division; McDougal v. McDougal; Finding of facts; Valuation of guns; Whether the evidence supported a finding that defendant-husband had hidden assets; Woodington v. Shokoohi; Olson v. Olson; Jansen v. Jansen; Special deference given to the trial court's decision when its findings are based on a witness's credibility; Johnson v. Johnson; Spousal support; Myland v. Myland; Whether the case should be assigned to a different judge; Bayati v. Bayati; Issues raised for the first time on appeal; Nuculovic v. Hill

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hosted v. Hosted

e-Journal Number: 50479

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

 

Concluding that the trial court made specific factual findings on the relevant factors in reaching an equitable property division, the court held that the trial court properly divided the marital property 57/43 in favor of plaintiff-wife. However, the trial court failed to make specific findings of fact for the relevant factors as to spousal support either in its opinion or during the hearing on the defendant-husband's motion for amendment of or relief from judgment. The parties were married in 1974. Plaintiff had four children from a previous marriage. The parties had two children together. Both parties had high school educations. Plaintiff quit working after she married defendant to stay home and raise the children. At the time of trial plaintiff was 67 years old and defendant was 60 years old. Defendant argued that the trial court failed to make specific factual findings on the relevant factors in deciding the property division. The court held that this argument was without merit. "The trial court's original opinion cited the appropriate factors from Sparks, but did not relate any specific findings to any particular factor. However, the trial court clarified its findings during the hearing on defendant's motion for amendment of or relief from judgment and order. At that hearing, the trial court identified the factors from Sparks and then made specific findings with respect to each relevant factor." The court noted that a property division need not be mathematically equal, but any significant departure from an equal division must be explained clearly. "The trial court acknowledged that the division was 57/43, but stated that the deviation was justified based on plaintiff's inability to produce income and defendant's hiding of assets." Defendant also argued that the trial court failed to make specific findings of fact to support the award of spousal support to plaintiff, and the court agreed. The court affirmed the property division, vacated the award of spousal support, and remanded the case to the trial court for reconsideration of the issue of spousal support in accordance with the opinion.

 

Immigration

 

Issues: Applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT); The legal standard for granting asylum; Cruz-Samayoa v. Holder; Analysis of withholding of removal claims; Dugboe v. Holder; Adverse credibility determination; Yu v. Ashcroft; Sylla v. INS; Koulibaly v. Mukasey; El-Moussa v. Holder; The finding of a lack of corroborating evidence; Lin v. Holder; Dorosh v. Ashcroft; Ramaj v. Gonzales; Matter of H-L-H (BIA); Review of the IJ's opinion in conjunction with the BIA's additional comments and discussion; Khalili v. Holder; The "substantial-evidence standard"; Mikhailevitch v. I.N.S.; Ceraj v. Mukasey

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Abdurakhmanov v. Holder

e-Journal Number: 50738

Judge(s): Stranch, Batchelder, and McKeague

 

The court found error in the agency's decision to reject the petitioner's corroborating evidence, and concluded that at least one (perhaps two) of the grounds on which the agency based its adverse credibility determinations were not supported by substantial evidence. However, the court agreed that substantial evidence supported the agency's determination that petitioner lacked credibility when he gave differing reasons for leaving his employment. Since he could not meet his burden of proof without credible testimony, the court dismissed his petition for review. Petitioner, a citizen of Uzbekistan, alleged that he was targeted for investigation and beaten by Uzbeki police due to his membership in the Dungan ethnic minority. He also alleged that if he returned to Uzbekistan, he would face the same fate as his late wife, who died of injuries inflicted on her by Uzbeki police during a three-day detention. The IJ and the BIA denied his applications for asylum, withholding of removal, and relief under the CAT based on both an adverse credibility determination and a lack of corroborating evidence supporting his claims. The IJ and BIA based the adverse credibility determination on three inconsistencies. The court found that one of the agency's inconsistency findings was flatly contradicted by petitioner's testimony, and another appeared to be questionable. The third finding concerned a discrepancy between the asylum application and the hearing testimony as to why petitioner left his employment as a surgeon at a clinic. In the application, he wrote - "My boss said, ‘You're fired.' I asked why. He said, ‘Police call me. Maybe you extremist.' I lost my job." However, when his attorney asked him at the hearing whether he was fired from his job as a surgeon, petitioner "unequivocally stated that he was not fired and he quit because he was not given the same surgical opportunities as Uzbeki surgeons." This discrepancy suggested that the asylum application was drafted in an attempt to enhance petitioner's claim of persecution. Like the IJ, the BIA held that petitioner's lack of credibility on this point "‘call[s] into question the veracity of the claimed arrest' and thus ‘go[es] to the heart of his claim.'" The court found this rationale substantially supported on the record as a whole. "Thus, on this basis alone, the agency's adverse credibility determination can be affirmed." Petitioner's reliance on Sylla and Koulibaly was "misplaced because in both of those cases, minor inconsistencies did not go to the heart of the aliens' claims." While the court also held that the agency's decision as to petitioner's corroborating evidence was "contrary to the law of this Circuit and the agency's own binding precedents" and could not be used to support the decision of the IJ or BIA, the adverse credibility determination went to the heart of petitioner's claim and was fatal to his asylum application.

 

Insurance

 

Issues: Coverage under a "mold endorsement" in a homeowners insurance policy; Effect of the policy "sump pump overflow endorsement"; Whether there was a factual dispute as to whether a sump pump failure caused water to saturate the plaintiffs' basement/a genuine issue of fact as to the cause of their mold losses; Summary disposition under MCR 2.116(C)(10); Quinto v. Cross & Peters Co.; West v. General Motors Corp.; "Causation"; Skinner v. Square D Co.; Insurance policy contract interpretation; Rory v. Continental Ins. Co.; Henderson v. State Farm Fire & Cas. Co.; Farm Bureau Mut. Ins. Co. of MI v. Nikkel; Burden of proof on the insured to show that the policy covered the damage suffered; Solomon v. Royal Maccabees Life Ins. Co.; Burden on the insurer to prove that a coverage exclusion applies; Heniser v. Frankenmuth Mut. Ins.; Whether the parties agreed that wind caused plaintiffs' mold damage and that wind damage was a covered loss under the policy; Spece v. Erie Ins. Group (PA Super.); Vanguard Ins. Co. v. Clarke; Equitable estoppel; American Fed'n of State, Cnty. & Mun. Employees v. Bank One, N.A.; City of Grosse Pointe Park v. Michigan Mun. Liab. & Prop. Pool; "Detrimental reliance"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Home-Owners Ins. Co.

e-Journal Number: 50504

Judge(s): Per Curiam – Murphy, Jansen, and Owens

 

Holding, inter alia, that there was no genuine issue of material fact that the water intrusion and mold damage were caused by a failure of the plaintiffs-insureds' sump pump during a power outage, the court affirmed the trial court's order granting the defendant-insurer summary disposition. Under § (2)(b) of the homeowners policy's mold endorsement, the policy limit for mold losses was $5,000 if the losses were caused by a sump pump overflow. Plaintiffs discovered mold growing in their basement and sought to have the full cost of repair and remediation measures covered under the mold endorsement. They argued that a $38,000 policy limit applied to the mold damage, while defendant contended that although there was some coverage for mold losses, the applicable policy limit was $5,000 (an amount far less than the approximately $33,000 in expenses plaintiffs allegedly incurred). The question was whether there was an issue of fact as to the triggering/applicability of the sump pump overflow endorsement (with its $5,000 policy limit), as incorporated into § (2)(b) of the mold endorsement as a limit on the recovery of benefits for mold damage. The court noted that while plaintiffs discounted the sump pump theory proffered by defendant, they did not provide any arguments or evidence of an alternate theory as to what actually caused the water intrusion and mold growth. As to the evidence supporting the sump pump theory, "the insurance claims form, in the ‘Remarks' section, indicated that Mr. Williams called to report water damage to furniture and drywall from the storm after the electricity went out for a short time, which caused the sump pump to stop working, resulting in the water damage. This report did not reflect any hesitancy or speculation on Mr. Williams's part with respect to a conclusion that a sump pump failure caused the damage," although the court acknowledged that the wording in the form was a summary and interpretation by defendant's employee of comments made over the phone. Further, a letter from an environmental and consulting services company to Mr. Williams contained a background statement indicating that, according to Mr. Williams, he and his wife discovered that water was saturating the entire basement floor and the contents during a tornado warning while they were in the basement. "‘According to the homeowner, visible water was accumulating on the basement floor surface shortly after the power outage occurred.'" This letter was "consistent with the sump pump theory of causation and indicated that Mr. Williams himself tied the water intrusion to the power outage." The court noted that in his deposition, Mr. Williams said nothing contradicting the comments he apparently made to the company or to defendant's personnel, "which either indicated or strongly suggested that a sump pump failure caused the water intrusion and damages." The court also found that Mrs. Williams' testimony suggested that the power outage occurred before she noticed her wet slippers. The court concluded that reasonable inferences arose from the evidence that the sump pump failed, water entered the basement due to the sump pump failure, and that the mold growth was caused by water intrusion resulting from the sump pump failure. Plaintiffs provided "no documentary evidence suggesting a different source of the water intrusion or different cause of the mold growth."

 

Litigation

 

This summary also appears under Probate

 

Issues: Whether there was a genuine issue of material fact as to appellant-Moore's claim for fraud; Maiden v. Rozwood; Whether Moore's action was barred by the applicable statute of limitations; Holmes v. Michigan Capital Med Ctr.; MCL 600.5813; Badon v. General Motors Corp.; Tolling; MCL 600.5855; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; The appellee-PR's fiduciary duty; MCL 700.1104(e); MCL 700.1212(1); Brownell v. Garber; Whether there was any misrepresentation of material factual matters unknown to Moore; Cummins v. Robinson Twp.; Sanctions; LaVene v. Winnebago Indus.; In re Baldwin Trust; Schroeder v. Terra Energy, Ltd.; MCL 600.2591; MCR 2.625(A)(2); MCR 2.114(E); Determining whether a claim is "frivolous"; In re Costs & Attorney Fees; BJ's & Sons Constr. Co. v. Van Sickle; Louya v. William Beaumont Hosp.; Whether the probate court's decision to reopen the estate established that Moore's claim was not devoid of arguable legal merit; "Good cause"; MCL 700.3959; Whether the probate court properly included in its sanctions award costs incurred in an initial case filed in circuit court before the probate case was filed; Whether the probate court should have imposed sanctions against Moore's attorney as well as against Moore; Statutory interpretation; Dextrom v. Wexford Cnty.; McCormick v. Carrier; Ligons v. Crittenton Hosp.; Meaning of the term "and"; Amerisure Ins. Co. v. Plumb

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Moore

e-Journal Number: 50531

Judge(s): Per Curiam – Wilder, Cavanagh, and Donofrio

 

Holding, inter alia, that appellant-Moore could not establish a claim for fraud and his action was barred by the applicable statute of limitations, the court affirmed the probate court's award of summary disposition to appellee-Schaffer (the PR). The court also affirmed the probate court's award of sanctions to the PR, but modified the award to provide that sanctions were imposed against both Moore and his attorney. The decedent was the father of Moore and Schaffer, who are half-siblings. He owned residential real property that he quitclaimed from himself to himself and Moore, as joint tenants with full rights of survivorship. The decedent later borrowed $122,000 from a bank and granted the bank a mortgage on the property as security for the loan. He was the sole signatory of the promissory note and mortgage. He subsequently refinanced the mortgage loan through another bank. The decedent never resided in the home. Moore lived in the home and made all the mortgage payments pursuant an arrangement with the decedent. The decedent died in 2001 and Schaffer was appointed PR of his estate. She did not list the bank loan as a debt of the estate. Instead, she advised Moore that upon the decedent's death, he became legally obligated to pay the mortgage note, property taxes, and homeowner's insurance on the property. Moore did not question Schaffer's advice and continued to pay the monthly mortgage payments until 2007. Moore approved Schaffer's petition to close the decedent's estate in 2003. In 2007, the bank initiated foreclosure proceedings against Moore after he ceased making the monthly payments. He alleged that he learned during the proceedings that he was not legally obligated to pay the mortgage because he was not a party to the original promissory note or mortgage agreement. Moore successfully filed a petition to reopen the estate, and then filed this action alleging that Schaffer fraudulently misinformed him as to his legal obligation to repay the mortgage loan when she allegedly knew that the debt should attach to the estate. Moore contended that his action was timely filed pursuant to MCL 600.5855. He argued that he did not discover his cause of action until 2007, when he learned during the foreclosure proceeding that he was not legally liable for the mortgage loan. "However, Moore's alleged discovery of his legal obligations in 2007 does not establish the applicability of MCL 600.5855." He did not identify any affirmative act by Schaffer that somehow concealed his cause of action or prevented him from discovering that he had a potential cause of action against her for fraud. Moore argued that it was not necessary to show any affirmative act of concealment because Schaffer had a fiduciary duty to provide accurate information regarding the estate. As PR of the decedent's estate, Schaffer owed Moore a fiduciary duty to "discharge all of the duties and obligations of a confidential fiduciary relationship, including the duties of undivided loyalty; impartiality between heirs, devisees, and beneficiaries; care and prudence in actions." Applying the principles of Brownell to this case, the court held that Moore could avail himself of the two-year provision in MCL 600.5855 "only if Schaffer affirmatively concealed a cause of action for fraud, or if she knew that she gave him incorrect information and concealed that knowledge from him." If she simply failed to appreciate that her information was incorrect, it "‘would be illogical to hold'" that she had a "‘duty to disclose [her error] notwithstanding [her] ignorance thereof.'" Although Moore asserted that Schaffer acted in her capacity as PR of the estate when she arranged for the bank to send mortgage statements to him and when she billed the estate for services pertaining to the mortgage, Schaffer's involvement in these matters did not show that she was aware of or understood the specific legal obligations surrounding the mortgage. There was no factual support for Moore's claim that he may invoke the tolling provision of MCL 600.5855. Further, regardless of what Schaffer knew, Moore could not establish a claim for fraud "because there was no misrepresentation of material factual matters unknown to Moore." Affirmed as modified.

 

Negligence & Intentional Tort

 

Issues: The Dramshop Act; MCL 436.1801; Millross v. Plum Hollow Golf Club; Claim that the defendants' actions in returning car keys to a visibly intoxicated person were negligent; Feyz v. Mercy Mem'l Hosp.; MCL 436.1801(2) & (3); MCL 436.1801(9); Causes of action that exist outside the Dramshop Act; Mann v. Shusteric Enters., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Allison v. Doe

e-Journal Number: 50537

Judge(s): Per Curiam – Shapiro, Whitbeck, and Gleicher

 

Concluding that intoxication could not be removed as the key factor from the common law negligence claim asserted by the plaintiff-estate, and that the trial court properly determined that the estate's claim fell within the Dramshop Act, the court affirmed that trial court's order granting summary disposition in favor of the defendants. The estate's decedent and two friends were patrons at the defendant-bar and grill. The decedent and her friends were asked to leave after they became visibly intoxicated. They left the premises without the decedent's car keys. An unidentified bar employee later found the keys. When the decedent and her friends, still visibly intoxicated, returned to the bar to find her keys, the bar employee returned the keys. The decedent drove away from the premises, lost control of her vehicle, and was involved in a fatal accident. The estate claimed that the action was based in negligence because it was related to defendants' conduct of giving car keys to an intoxicated person, not to the actual selling, giving or furnishing of alcohol. However, the court concluded that any analysis of this claim hinged "on the duty that a dram shop that provided the intoxicants owed to the visibly intoxicated person." If intoxication was not considered in this claim, then the question became - "is there a common law duty to refrain from returning keys to the vehicle's lawful owner. It is axiomatic that there is no duty to withhold keys from an unintoxicated owner of a vehicle."

 

Issues: Premises liability; Case v. Consumers Power Co.; Duty owed to an "invitee"; Stitt v. Holland Abundant Life Fellowship; "Open and obvious" dangers; Benton v. Dart Props.; Joyce v. Rubin; Kenny v. Kaatz Funeral Homes, Inc.; A "casual inspection"; Novotney v. Burger King Corp. (On Remand); Slip and fall on ice in a parking lot; "Black ice"; Slaughter v. Blarney Castle Oil Co.; Royce v. Chatwell Club Apts.; Whether the defendant had actual or constructive "notice" of the dangerous condition; Derbabian v. S & C Snowplowing, Inc.; Whether defendant negligently caused the formation of the patch of ice by the way it salted the parking lots; Whether the size of the patch was enough to put defendant on notice of its existence

Court: Michigan Court of Appeals (Unpublished)

Case Name: Osantowski v. Dow Chem. Co.

e-Journal Number: 50498

Judge(s): Per Curiam – Wilder, Talbot, and Servitto

 

The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.

 

Issues: Duty; Fultz v. Union-Commerce Assoc.; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Davis v. Venture One Constr., Inc. (6th Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: United Servs. Auto. Ass'n Cas. Ins. Co. v. JCS Fireplace, Inc.

e-Journal Number: 50535

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

 

In this consolidated appeal, the court held that based on the Michigan Supreme Court's recent decision in Loweke, the defendant-JCS Fireplace was not entitled to summary disposition. Thus, the court reversed the trial court's order granting JCS Fireplace summary disposition. Plaintiff-Burns lost his home to a fire caused by an improperly installed fireplace on the lower level of his home. He contracted with the original builder, defendant-KW Yoder Construction, to rebuild the home. Yoder subcontracted the fireplace installation to JCS Fireplace. The newly constructed home was destroyed by fire. "An investigation revealed the cause of the fire to be heat generated by the first floor fireplace, with the fire originating within the wood hearth extension of that fireplace." Burns and plaintiff-United Services Automobile Association Casualty Insurance Company (his insurer) sued Yoder and JCS Fireplace. JCS Fireplace successfully moved for summary disposition, arguing that plaintiffs' claims sounded strictly in negligence and, in keeping with Fultz, it owed no duty to plaintiffs. In granting JCS Fireplace's motion for summary disposition, the trial court explained that the only reason it did so was because Fultz compelled this result. In Loweke, the Supreme Court adopted the reasoning of Davis and held "'that a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.'" While the court would normally remand for the trial court to reconsider the motion in light of Loweke, it concluded it was clear that, had the trial court not felt compelled to follow what it perceived to be a conclusion necessitated by Fultz, it would have applied the Davis reasoning and denied JCS Fireplace's motion. Reversed and remanded.

 

Probate

 

This summary also appears under Litigation

 

Issues: Whether there was a genuine issue of material fact as to appellant-Moore's claim for fraud; Maiden v. Rozwood; Whether Moore's action was barred by the applicable statute of limitations; Holmes v. Michigan Capital Med Ctr.; MCL 600.5813; Badon v. General Motors Corp.; Tolling; MCL 600.5855; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; The appellee-PR's fiduciary duty; MCL 700.1104(e); MCL 700.1212(1); Brownell v. Garber; Whether there was any misrepresentation of material factual matters unknown to Moore; Cummins v. Robinson Twp.; Sanctions; LaVene v. Winnebago Indus.; In re Baldwin Trust; Schroeder v. Terra Energy, Ltd.; MCL 600.2591; MCR 2.625(A)(2); MCR 2.114(E); Determining whether a claim is "frivolous"; In re Costs & Attorney Fees; BJ's & Sons Constr. Co. v. Van Sickle; Louya v. William Beaumont Hosp.; Whether the probate court's decision to reopen the estate established that Moore's claim was not devoid of arguable legal merit; "Good cause"; MCL 700.3959; Whether the probate court properly included in its sanctions award costs incurred in an initial case filed in circuit court before the probate case was filed; Whether the probate court should have imposed sanctions against Moore's attorney as well as against Moore; Statutory interpretation; Dextrom v. Wexford Cnty.; McCormick v. Carrier; Ligons v. Crittenton Hosp.; Meaning of the term "and"; Amerisure Ins. Co. v. Plumb

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Moore

e-Journal Number: 50531

Judge(s): Per Curiam – Wilder, Cavanagh, and Donofrio

 

Holding, inter alia, that appellant-Moore could not establish a claim for fraud and his action was barred by the applicable statute of limitations, the court affirmed the probate court's award of summary disposition to appellee-Schaffer (the PR). The court also affirmed the probate court's award of sanctions to the PR, but modified the award to provide that sanctions were imposed against both Moore and his attorney. The decedent was the father of Moore and Schaffer, who are half-siblings. He owned residential real property that he quitclaimed from himself to himself and Moore, as joint tenants with full rights of survivorship. The decedent later borrowed $122,000 from a bank and granted the bank a mortgage on the property as security for the loan. He was the sole signatory of the promissory note and mortgage. He subsequently refinanced the mortgage loan through another bank. The decedent never resided in the home. Moore lived in the home and made all the mortgage payments pursuant an arrangement with the decedent. The decedent died in 2001 and Schaffer was appointed PR of his estate. She did not list the bank loan as a debt of the estate. Instead, she advised Moore that upon the decedent's death, he became legally obligated to pay the mortgage note, property taxes, and homeowner's insurance on the property. Moore did not question Schaffer's advice and continued to pay the monthly mortgage payments until 2007. Moore approved Schaffer's petition to close the decedent's estate in 2003. In 2007, the bank initiated foreclosure proceedings against Moore after he ceased making the monthly payments. He alleged that he learned during the proceedings that he was not legally obligated to pay the mortgage because he was not a party to the original promissory note or mortgage agreement. Moore successfully filed a petition to reopen the estate, and then filed this action alleging that Schaffer fraudulently misinformed him as to his legal obligation to repay the mortgage loan when she allegedly knew that the debt should attach to the estate. Moore contended that his action was timely filed pursuant to MCL 600.5855. He argued that he did not discover his cause of action until 2007, when he learned during the foreclosure proceeding that he was not legally liable for the mortgage loan. "However, Moore's alleged discovery of his legal obligations in 2007 does not establish the applicability of MCL 600.5855." He did not identify any affirmative act by Schaffer that somehow concealed his cause of action or prevented him from discovering that he had a potential cause of action against her for fraud. Moore argued that it was not necessary to show any affirmative act of concealment because Schaffer had a fiduciary duty to provide accurate information regarding the estate. As PR of the decedent's estate, Schaffer owed Moore a fiduciary duty to "discharge all of the duties and obligations of a confidential fiduciary relationship, including the duties of undivided loyalty; impartiality between heirs, devisees, and beneficiaries; care and prudence in actions." Applying the principles of Brownell to this case, the court held that Moore could avail himself of the two-year provision in MCL 600.5855 "only if Schaffer affirmatively concealed a cause of action for fraud, or if she knew that she gave him incorrect information and concealed that knowledge from him." If she simply failed to appreciate that her information was incorrect, it "‘would be illogical to hold'" that she had a "‘duty to disclose [her error] notwithstanding [her] ignorance thereof.'" Although Moore asserted that Schaffer acted in her capacity as PR of the estate when she arranged for the bank to send mortgage statements to him and when she billed the estate for services pertaining to the mortgage, Schaffer's involvement in these matters did not show that she was aware of or understood the specific legal obligations surrounding the mortgage. There was no factual support for Moore's claim that he may invoke the tolling provision of MCL 600.5855. Further, regardless of what Schaffer knew, Moore could not establish a claim for fraud "because there was no misrepresentation of material factual matters unknown to Moore." Affirmed as modified.

 

Tax

 

Issues: Whether the Michigan Tax Tribunal (MTT) properly dismissed the petitioner's claim for lack of jurisdiction; Challenge to a special assessment; MCL 205.735(2) & (3); Covert Twp. v. Consumers Power Co.; Leahy v. Orion Twp.; A township board's "final decision" on a special assessment; Michigan's Adventure, Inc. v. Dalton Twp.; Applicability of the prerequisites of MCL 205.735 when a petitioner challenges the validity (rather than the amount) of a special assessment; Simmons Airlines, Inc. v. Negaunee Twp.; Right to procedural due process; Mettler Walloon, LLC v. Melrose Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Popek Trust v. Township of Howell

e-Journal Number: 50501

Judge(s): Per Curiam – Wilder, Talbot, and Servitto

 

Since the petitioner failed to comply with the jurisdictional prerequisites in MCL 205.735, the court held that the MTT properly dismissed her claim for lack of jurisdiction. Petitioner was the successor trustee for the Peter Popek Trust. The case arose from her challenge to a special assessment levied on her property after the township board of trustees approved a special assessment to facilitate the construction of an extension to the township's water and sewer systems. The expansion was necessary to accommodate a proposed development. "Petitioner attended the hearing, but did not protest the assessment." She stopped paying her portion of the special assessment and in 2/10, the township instituted foreclosure proceedings against her. She moved to stay the foreclosure proceedings and to refer the matter to the MTT. The MTT sua sponte dismissed petitioner's claim for lack of jurisdiction. In order to invoke the MTT's jurisdiction, "a petitioner challenging a special assessment must do two things. First, the petitioner must protest the special assessment before the township board that adopted it." Further, the petitioner must file a written petition for review before the MTT within 35 days of the township board's final decision on the special assessment. "A township board issues a ‘final decision' on a special assessment when it renders a decision to adopt the assessment." The petitioner failed to protest the special assessment at the 11/27/06 hearing, as required by MCL 205.735(2). "Indeed, rather than protest the decision, she specifically requested that it apply to her property." Her failure to protest was sufficient to support the MTT's dismissal for lack of jurisdiction. She also failed to petition the MTT within 35 days of the township's final decision, as required by MCL 205.735(3). She waited nearly four years before petitioning the MTT. Thus, her claim was untimely and properly dismissed. Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under § 19b(3)(e); In re Trejo Minors; Whether § 19b(3)(e) applies when visitation is the only element of the court-structured plan; Keenan v. Dawson; Plain error review; In re Egbert R. Smith Trust; Statutory interpretation; Van Reken v. Darden, Neef & Heitsch; Macomb Cnty. Prosecutor v. Murphy; Roberts v. Mecosta Cnty. Gen. Hosp.; §§ 5207 or 5209 of the Estates and Protected Individuals Code (EPIC)(MCL 700.1101 et seq.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Hensley

e-Journal Number: 50517

Judge(s): Per Curiam – Saad, Stephens, and Ronayne Krause

 

Holding that the trial court erred in its analysis of § 19b(3)(e), the court vacated the trial court's order terminating the respondent-father's parental rights and remanded the case for further findings consistent with the statute. The evidence showed that the child had been living with a guardian since 10/08. Respondent later petitioned for termination of the guardianship. He admitted that the probate court adjourned that motion without a date in an order entered on 2/25/09. At the same time, the probate court "granted Father a specific court structure [sic] plan specifically as follows ‘Father is to have visitation March 7th, 21st, and April 18th, and every other Saturday . . . from 2:00 p.m. to 4:00 p.m.'" The evidence showed that respondent visited the child one to four times after entry of the order. The trial court found that he failed to follow the plan and that termination of his parental rights was in the child's best interests. Respondent contended that § 19b(3)(e) did "not apply as a matter of law when visitation is the only element of the court-structured plan because, in that instance, § 19b(3)(e) would be superfluous to § 19b(3)(f)." However, he did not allege or show that the statutory language was ambiguous and in need of interpretation. The statute refers to a particular type of court-structured plan (a plan described in §§ 5207 or 5209 of the EPIC), but without regard to the terms of the plan. The court "may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself." Thus, the court could not "read into § 19b(3)(e) an exception for a court-structured plan, the only element of which is visitation. Further, where such a plan exists, § 19b(3)(e) would not be subsumed by § 19b(3)(f)." The former applies when there is a plan to eliminate the need for the guardianship and return the child to her parent, but the parent shows by his failure to comply with the plan that he does not want to regain custody, while the latter applies when there is no specific plan to eliminate the need for the guardianship and return the child to her parent, but the parent shows by his failure to support the child and maintain a parent-child relationship with her that he does not want to be a parent to the child. Thus, respondent did not show that § 19b(3)(e) should not apply when visitation is the only element of the court-structured plan. However, the court agreed that the trial court erred in its analysis of § 19b(3)(e). The trial court found from respondent's plea that the February 2009 order was "a specific court structured plan" providing for visitation according to a set schedule and found from the evidence that respondent "failed to follow that plan[.]" The trial court also found that even if respondent could not personally visit the child, he should have made more of a concerted effort to maintain a parent-child relationship by means other than personal visits. "Not every order entered in connection with a guardianship established under MCL 700.5204 is a court-structured plan. Further, § 19b(3)(e) applies only where a parent substantially fails, without good cause, to comply with a court-structured plan 'described in section 5207 or 5209' of the EPIC." While the trial court found that the order for visitation was "a specific court structured plan," it did not find that the order was "a court structured plan described in section 5207 or 5209" of the EPIC - a plan adopted to rectify conditions identified at a review hearing [§ 5207] or to facilitate the child's return to the parent [§ 5209], "as opposed, for example, to a plan described in MCL 700.5204(5). Further, assuming that the visitation order was a court-structured plan described in § 5207 or § 5209 of the EPIC, the trial court failed to determine whether respondent had good cause for his failure to personally visit the child in accordance with the terms of that order." Whether he could have maintained the parent-child relationship through other means was not relevant because the visitation order did not require respondent to maintain contact with the child by any means other than personal visits. The trial court also did not determine whether respondent's failure to comply with the plan "has resulted in a disruption of the parent-child relationship."

 

Workers' Compensation

 

Issues: Res judicata; Banks v. LAB Lansing Body Assembly; Paige v. City of Sterling Heights; Review of questions of law involved in a final WCAC order; Romero v. Burt Moeke Hardwoods, Inc.; Bent v. Davis Tool & Eng'g (2000 ACO 338)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nill v. Borders Group, Inc.

e-Journal Number: 50473

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

 

The court held that the WCAC properly determined that res judicata did not apply and reversed the magistrate's order dismissing plaintiff's claim for benefits. Plaintiff was injured at work on 1/24/02. Defendants voluntarily paid benefits, but stopped paying benefits after plaintiff refused her employer's offer to return to work. In proceedings before Magistrate C in 2003, the parties stipulated that plaintiff had sustained an injury that arose out of her employment, but disagreed concerning whether she remained disabled. In 8/03, C decided that plaintiff lacked credibility and awarded benefits only until the date that Dr. W concluded that she could return to work without restrictions. The WCAC affirmed, but corrected the date of W's examination specified in the magistrate's opinion. In 6/07, plaintiff filed an application for mediation or hearing and claimed there had been a "change in condition." She alleged that she "continued to be disabled, leading to subsequent worsening of her condition" and necessitating surgery. In this second proceeding, defendants argued, and Magistrate M agreed, that the application was barred by res judicata. Plaintiff appealed to the WCAC, which concluded that the magistrate committed legal error in his analysis and reversed the dismissal of plaintiff's claim. Defendants argued that plaintiff could not rely on a purported change in her degenerative disc condition because no finding was made that her degenerative disc disease was caused or aggravated by the work-related incident. However, C "also did not make a finding that this condition was not caused or aggravated by the work accident." C did not make findings concerning this condition and link, perhaps because defendants stipulated that plaintiff sustained an injury that arose out of her employment. If C had found that plaintiff's complaints of pain were attributable to degenerative disc disease and that this disease was not caused by or aggravated by the accident, then defendants' argument that res judicata barred her from relitigating causation may have had merit. However, C did not make a finding concerning the relationship between the accident and plaintiff's degenerative disc condition. Thus, defendants' argument that res judicata precluded plaintiff from litigating that link was flawed. Affirmed.

 

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