• Contracts (1)
• Criminal Law (8)
• Insurance (2)
• Juvenile Law (1)
• Litigation (1)
• Real Property (1)
• Termination of Parental Rights (1)
• Wills & Trusts (2)

Contracts

 

This summary also appears under Insurance

 

Issues: Contractual indemnification; Hubbell, Roth & Clark, Inc. v. Jay Dee Contractors, Inc.; Zahn v. Kroger Co. of MI; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Inc.; Determining the extent of the duty to indemnify; Grand Trunk W. R.R., Inc. v. Auto Warehousing Co.; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Using a dictionary to determine the plain and ordinary meaning of an undefined contract term; Holland v. Trinity Health Care Corp.; "Arise" defined; "Connection" and "connect" defined; DaimlerChrysler Corp. v. Wesco Distrib., Inc.; Which insurer was responsible for indemnifying defendant-Dan's Excavating, Inc. (DEI); Insurance contract interpretation; Pugh v. Zefi; Dobbelaere v. Auto-Owners Ins. Co.; Determining which insurer was responsible for providing coverage for the accident; Reviewing the complaint to determine the gravamen of the claim; Adams v. Adams (On Reconsideration); Negligence cause of action arising from a motor vehicle accident; Stephens v. Dixon; Commercial general liability (CGL) policy

Court: Michigan Court of Appeals (Unpublished)

Case Name: Russell v. Dan's Excavating, Inc.

e-Journal Number: 53584

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

 

The court held that the plain language of the indemnification contract clearly provided that third-party defendant-A & B Trucking was obligated to hold defendant-DEI harmless against any and all liability arising out of or related to physical injury in any way sustained or alleged to have been sustained in connection with the work performed by A & B. Further, defendant-American States, as A & B's auto insurer, must indemnify DEI because the plaintiff's injuries were caused by an accident and resulted from A & B's employee's (K) use of A & B's covered vehicle, and the indemnification provision qualified as an "insured contract" under the auto policy. DEI, a general contractor, entered into a contract with A & B, a subcontractor, for A & B to provide trucking services to DEI on a road construction project. While driving a semi-truck on the project, K was involved in an auto accident with plaintiff, resulting in injuries to plaintiff. She sued DEI, A & B, and K. Counts I & II asserted that A & B and K were liable for K's negligent driving. Count III alleged that DEI was negligent because it failed to conduct traffic control reasonably and with due care. A & B settled with plaintiff as to counts I & II, and the parties stipulated to dismissing K and A & B with prejudice and without costs. When DEI learned that A & B settled counts I & II, but failed to settle count III, it filed a third-party complaint against A & B. DEI alleged that A & B breached its agreement to indemnify DEI against all claims arising out of or related to any physical injury sustained in connection with the work performed by A & B. The trial court granted A & B summary disposition, concluding that it was not obligated to indemnify DEI. The court held that dictionary definitions of the terms used in the indemnity provision made it clear that A & B had to indemnify DEI for injuries alleged to have been sustained as a result of the work completed by A & B and/or for injuries alleged to be linked to the work completed by A & B. According to the purchase order between DEI and A & B, DEI purchased "hourly trucking" services. Plaintiff's complaint alleged that A & B's vehicle "failed to yield the right of way" to her by turning left into her "lane of travel striking her vehicle. While at the same time . . . [DEI] failed to properly conduct traffic control." Thus, her allegation of negligence by DEI was linked with A & B's negligence because she alleged that DEI failed to conduct traffic while A & B's employee negligently drove. DEI's negligent traffic control traffic was connected to A & B's negligent work performance. "Thus, these allegations were sufficient to trigger the indemnification clause." The court concluded that the trial court erred in granting A & B summary disposition and denying DEI's summary disposition motion. In a cross-appeal, defendant-State Auto, A & B's general liability insurer, argued that if A & B was required to indemnify DEI, American States was the responsible insurer. The court held that because plaintiff's cause of action was based on an auto accident, and auto accidents were excluded from coverage under State Auto's CGL policy, State Auto was not obligated to indemnify DEI. Reversed and remanded for entry of an order granting DEI summary disposition, denying A & B's summary disposition motion, and granting State Auto's summary disposition motion.

 

Criminal Law

 

Issues: Sentencing; Whether the trial court properly scored OV 14 at 10 points (leader in a multiple offender situation); People v. McGraw; People v. Hicks; People v. Witherspoon; Trial court's discretion in scoring OV points; People v. Hornsby; People v. Lowe; Assault with intent to do great bodily harm less than murder (MCL 750.84); CCW (MCL 750. 227); Felony-firearm (MCL 750.227b); People v. Stone; MCL 750.234e (prohibiting the brandishing of a firearm in public); MCL 750.170 (prohibiting of a disturbance of the peace in a store or business); MCL 767.39 (providing that a person who aids or abets in the commission of an offense may be tried, convicted, and punished as if he or she directly committed the offense)

Court: Michigan Court of Appeals (Published)

Case Name: People v. Jones

e-Journal Number: 53769

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

 

Concluding that there was evidence in the case of a "multiple offender situation" - a situation consisting of defendant and T violating the law while being part of a group - the court held that the trial court properly scored OV 14 at 10 points. The court did not address whether defendant was a "leader" under OV 14 because he did not argue on appeal that he was not a "leader." The case arose from a shooting at a mall. Defendant and at least one other friend, T, targeted another group of young men at the mall. Both defendant and T were armed and pulled guns during the confrontation with the other group. However, defendant was the only person to fire his gun. His only claim on appeal was that the trial court erred by scoring OV 14 at 10 points based on its conclusion that defendant was a leader in a "multiple offender situation." Defendant argued that the criminal transaction here was not a "multiple offender situation," that "there must be more than one person actively participating in the charged offense(s)" for there to be a "multiple offender situation" under OV 14, and that he was the only person who committed the assaults and the only person charged with the crimes. The court disagreed. No other defendants were put on trial for the mall shooting. Defendant was the only person charged in connection with the shooting. However, the trial court heard testimony that at least one other man, identified as T, accompanied defendant in the mall to confront the other group of young men. Also, trial testimony established that the groups had a bad history with one another. The testimony showed that the confrontation between the groups began with "trash talk" and that the group opposing defendant and T believed that there would be a fist fight. However, defendant and T escalated the confrontation when they both pulled out guns and defendant started firing. Several witnesses testified that they heard a loud disturbance, looked to see what was happening, and saw people panicking. The court held that "the plain meaning of a 'multiple offender situation' as used in OV 14 is a situation consisting of more than one person violating the law while part of a group." Affirmed.

 

This summary also appears under Juvenile Law

 

Issues: Ineffective assistance of counsel; People v. Werner; People v. Rodgers; Failure to object to allegedly "leading" questions; MRE 611(d); In re Susser Estate; People v. Larry; Leeway in asking child witnesses leading questions; People v. Watson; Failure to make a futile objection; People v. Ericksen; Failure to impeach a victim with her police statement; MRE 613(a); People v. Rodriguez; Failure to call a specific witness; People v. Payne; Failure to inform the trial court that defense counsel advised the respondent-juvenile not to testify; People v. Bonilla-Machado; "Hearsay" (MRE 801(c)); People v. Jackson; MRE 801(d)(1); Correct result reached for the wrong reason; People v. Bauder; A statement offered to show the effect of the out-of-court statement on the hearer; People v. Chambers; MRE 803(3); Reputation for truthfulness; MRE 608(a); People v. Whitfield; People v. Schultz; Right to present a defense; People v. Orlewicz; People v. Hayes; People v. McGhee; "Plain error" review; People v. Carines; Evidence that lacks foundation; Royal Mink Ranch v. Ralston Purina Co.; Irrelevant evidence; People v. McFall; The great weight of the evidence; People v. Musser; MCL 750.520e(1)(b); "Sexual contact" defined (MCL 750.520a(q)); "Intimate parts" defined (MCL 750.520a(e)); "Force or coercion"; MCL 750.520h; People v. Drohan; Witness credibility; People v. Lemmon; A child victim's inability to identify the precise date of a CSC offense; People v. Dobek; Order of disposition; MCR 3.943(A); MCL 712A.18(1); In re Chapel; Lack of remorse and patterns of criminal behavior; People v. Houston; People v. Petri; Disparity in dispositions; People v. Brown; Consideration that juveniles have less moral culpability for crimes than adults; Cumulative error

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Bowen

e-Journal Number: 53591

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

 

Holding, inter alia, that the respondent-juvenile was not denied the effective assistance of counsel and that the trial court's finding that he committed all five charged offenses was not against the great weight of the evidence, the court affirmed the order of disposition. The trial court determined that respondent committed five instances of CSC IV. As to the ineffective assistance of counsel claims, the court concluded, inter alia, that none of the allegedly leading questions respondent identified on appeal "was leading because none in fact suggested an answer." The first victim was able to testify from her own memory without assistance from the petitioner. It was "apparent that the allegedly leading questions were often carefully phrased to incorporate that victim's earlier testimony for ease of examination. Thus, any objection by trial counsel would have been futile, and counsel cannot be deficient for failure to make a futile objection." Respondent also argued that defense counsel was ineffective for failing to impeach the first victim with her police statement, and that the trial court erred in ruling that defense counsel was required to show the police statement to the victim before questioning her about it. The court agreed that "the trial court's ruling was technically erroneous," but concluded that no prejudice occurred because, while the trial court and the parties "did not strictly apply MRE 613(a), the result was no different from what strict application of that rule would have brought." To the extent that respondent argued defense counsel should have nonetheless impeached the first victim with her police statement, the court was not persuaded because respondent did not show how the police statement would have impeached her testimony or otherwise affected the outcome of the trial. As to the great weight of the evidence claim, the court noted that the "first victim testified that on four occasions respondent pressed her against a nearby wall or locker and rubbed his 'crotch area' against her thigh or 'crotch area.' Similarly, the second victim testified that on one occasion respondent pressed her against a locker and rubbed his 'groin' against her 'behind.'" The court held that this testimony showed that "respondent intentionally touched the victims' 'intimate parts' in the form of their genital area or buttock." His use of his "groin" or "crotch" showed that "the intentional touching could reasonably be construed as being for the purpose of respondent's sexual gratification or done in a sexual manner to humiliate the victims." Thus, their testimony was evidence of "sexual contact." Further, they testified that they were unable to avoid the contact with respondent because he held them against a wall or locker, which constituted an "actual application of physical force" that was "used to accomplish the sexual contact." Thus, "the victims' testimony was evidence of 'force or coercion.'" The court held that their testimony "was adequate evidence to establish respondent's five violations of MCL 750.520e(1)(b)."

 

Issues: Search and seizure; Motion to suppress evidence seized from the defendant's cell phone; People v. Dagwan; People v. Jones; The "consent" and "search incident to lawful arrest" exceptions to the warrant requirement; People v. Reese; People v. Houstina; People v. Rowe; "Probable cause" to arrest; People v. Champion; People v. Mosley; "Flight" as evidence of "consciousness of guilt"; People v. Unger; Legal authority to arrest a defendant based on a Law Enforcement Information Network (LEIN) check that reveals an outstanding warrant; MCL 764.15(e); People v. Davis; Scope of consent to a search; People v. Wilkens; Florida v. Jimeno; Sentencing; Scoring of OV 7; People v. McLaughlin; People v. Elliott; People v. Kegler; People v. Glenn; People v. Hunt

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Busby

e-Journal Number: 53619

Judge(s): Per Curiam – Murphy, Markey, and Whitbeck

 

Holding that the search of the defendant's cell phone was proper under both the search incident to a lawful arrest and the consent exceptions to the warrant requirement, the court concluded that the trial court properly denied his motion to suppress the evidence seized from the cell phone. The court also held that the trial court did not err in scoring OV 7 at 50 points. Thus, the court affirmed defendant's carjacking, first-degree home invasion, unarmed robbery, unlawful imprisonment, and stealing a financial transaction device convictions and sentences. He claimed that because the arresting officer (B) lacked probable cause to arrest him, B's search of the cell phone could not have been incident to a valid arrest. The court disagreed. At the time the search was conducted, an officer had discovered there was a warrant for defendant's arrest after a search of the Michigan LEIN system. "A LEIN check that reveals an outstanding warrant, without more, provides the legal authority to arrest a defendant." Further, B had probable cause to arrest him. "Defendant was found in the vicinity of the victim's stolen car, which may support an inference that the suspect stole the car." He also "exhibited actions consistent with flight from which consciousness of guilt may be inferred." His statements to the police "contained questionable statements that also may indicate a consciousness of guilt." Further, he possessed items consistent with the items stolen from the victim. Thus, "the evidence would warrant a man of reasonable caution to believe that defendant had committed a crime." After defendant's initial consent to search, B asked him about the large sum of money and the Visa cards the police had found. When asked if his father could confirm information that he provided, defendant told B that "I don't have my father's number but you can call my father and that's who gave me the money card." B was in control of a cell phone that defendant had possessed "and thus, as a typical reasonable person he would have understood defendant's instruction to call his father as including the permission to search through the contact numbers on the telephone." The court concluded that defendant's consent appeared to have included his cell phone, and specifically the phone numbers stored on it, which were the object of B's search and the subject of the suppression motion. In performing a search of the recently called numbers saved on defendant's cell phone, B saw two phone numbers that defendant had dialed after midnight. B later called those numbers and discovered that defendant had called both of the victim's banks. Thus, the court held that B saw the bank numbers in the course of a search within the scope of defendant's consent.

 

Issues: Defendant's requests to reverse his convictions and sentences and suppress the evidence gathered as a result of the search of his home; The "law of the case" doctrine; People v. Osantowski; People v. Fisher; People v. Stinson; People v. Ham-Ying

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Garcia

e-Journal Number: 53586

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

 

In this case where the defendant requested that the court reverse his convictions and sentences and suppress the evidence gathered as a result of a search of his home, the court declined to do so where his argument was "virtually identical to the argument he raised in a prior interlocutory appeal" and was thus, precluded by the law of the case doctrine. When the facts and law remain materially unchanged, a previous panel's decision is controlling in a subsequent appeal in the same case. Defendant asked the court to find that the "emergency aid" exception to the warrant requirement and "independent source" did not apply to the facts of the case. This finding would be contrary to the court's decision in People v. Garcia. Defendant did not argue that the material facts or law have changed since the court's prior decision in this case. Thus, if defendant desired further consideration of this issue, he should have either requested reconsideration before the court, or appealed to the Supreme Court. Since he did neither, the decision became the law of the case and further review was precluded. Affirmed.

 

Issues: Prosecutorial misconduct; "Vouching"; People v. Thomas; People v. Reed; "Plain error" review; People v. Ackerman; People v. Carines; Ineffective assistance of counsel; Failure to raise a futile objection; People v. Ericksen; Sufficiency of the evidence to support the defendant's felon in possession and felony-firearm convictions; People v. Perkins; People v. Johnson; People v. Nimeth

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jenkins

e-Journal Number: 53625

Judge(s): Per Curiam – Ronayne Krause, Servitto, and Shapiro

 

Holding that there was sufficient evidence that the defendant possessed a firearm to support his felon in possession and felony-firearm convictions, and that the prosecutor did not commit misconduct, the court affirmed defendant's convictions. Officers R and S testified to seeing the handle of a handgun in defendant's right jacket pocket while he was on the front porch of a house. They were able to tell that it was a handgun by the curvature of the handle. R then went into the house, where he saw defendant enter a bedroom in the back of the house. R could not immediately see into the bedroom when defendant entered. However, he saw defendant pull his hands from underneath the bedroom mattress. R conducted a pat-down search of defendant and then went back into the bedroom, where he found a revolver underneath the mattress from the same area where he saw defendant pull his hands. The revolver had the same handle that R saw protruding from defendant's pocket earlier on the porch. The prosecutor presented the revolver in court and R identified it as the same one possessed by defendant on the night of the incident. The court held that viewing this evidence in the light most favorable to the prosecution, there was sufficient evidence for a reasonable jury to find that defendant possessed a firearm. The court also held that the prosecutor did not vouch for the officers' credibility, concluding that her comments did not imply that she had some "special knowledge" of their truthfulness. "In fact, the prosecutor made no comments about her personal knowledge or belief regarding the truthfulness of the police witnesses" - she simply argued that their testimony was reasonable and used the facts to do so. Further, since the prosecutor did not try to "place the credibility of her office behind the case or suggest that she possessed extrajudicial information on which defendant should be convicted," the court rejected defendant's ineffective assistance of counsel claim. He asserted that defense counsel's failure to object to the prosecutor's comments deprived him of the effective assistance of counsel. However, failing to "raise a futile objection does not constitute ineffective assistance of counsel."

 

Issues: Whether the trial court erred in excluding DNA evidence taken from the victim's underwear that showed that in addition to defendant other sources of semen were discovered; Whether defendant made a proffer; MRE 103(a)(2); People v. Hampton; People v. Hackett; Whether the trial court's decision to preclude the entire report deprived defendant of a fair trial; The rape shield statute; MCL 750.520j(1); People v. Coy; People v. Fackelman; Whether the evidence was relevant; MRE 401 and 402; People v. Arenda; People v. Adair; Whether the trial court correctly applied the rape shield statute and excluded evidence as to the victim's sexual conduct with persons other than defendant

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Malone

e-Journal Number: 53585

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

 

The court held that the trial court did not commit plain error when it denied the defendant's request to admit a DNA report because pursuant to the rape shield law, the evidence of other donors' sperm found in the victim's underwear was irrelevant and would have been so prejudicial that it far outweighed any probative value. Defendant was convicted of three counts of CSC III, failure to register as a sex offender, delivery of marijuana to a minor, felon in possession, and felony-firearm. He was accused or raping two underage girls. TM's underwear was tested to determine the source of DNA found in the underwear. Defendant's DNA was a positive match for the semen found in the underwear. Also two other sources of semen were discovered in her underwear. After the prosecutor explained to the trial court that the entire report was not relevant and unduly prejudicial in violation of the rape shield law, defense counsel gave a general explanation for why the entire report should be admitted. The trial court ruled on the admissibility of the entire DNA report and found that it was not relevant and would only be prejudicial to TM. On appeal, defendant claimed that the trial court's decision to preclude the entire report deprived him of his right to a fair trial, his right to confront witnesses against him, and his right to present a defense. Defendant never proffered the full report for the purpose of preserving his right to a fair trial, to confront witnesses against him, and his right to present a defense. Thus, he did not preserve these issues for appeal. The court affirmed his convictions and sentences.

 

Issues: Sentencing; Whether the trial court properly scored PRV 1 at 25 points (prior high severity felony convictions), OV 4 at 10 points (serious psychological injury to the victim), OV 10 at 10 points (exploitation of a vulnerable victim), and OV 16 at 1 point (value of lost property); People v. Lockett; People v. Davenport (After Remand); Facts in the presentence report; People v. Walker; People v. Uphaus (On Remand); People v. Waclawski; People v. Rosenberg; People v. Shively; Ineffective assistance of counsel; Ypsilanti Fire Marshal v. Kircher (On Remand); People v. Matuszak

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McKenzie

e-Journal Number: 53637

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

 

In an order, the court amended its opinion in this case (see e-Journal # 53552 in the 1/24/13 edition) to correct a clerical error on page 3, third paragraph, fourth sentence. The sentence now reads - "We conclude that the trial court did not clearly error when it scored McKenzie 10 points for OV 4, when Grodin stated that the incident emotionally distressed her and it affected her daily life." In all other respects the opinion remained unchanged.

 

Issues: Whether defendant was entitled to a new trial based on the discovery of new evidence; "Plain error"; People v. Carines; People v. Cress; People v. Rao; Prosecutorial misconduct; Whether the prosecutor committed misconduct with comments in closing as to defendant's failure to produce the evidence; People v. Bennett; People v. LeBlanc; People v. Callon; Ineffective assistance of counsel for failure to object to the alleged prosecutorial misconduct; People v. Vaughn; People v. Rodgers; People v. Ericksen; Expert testimony; People v. Murray; People v. Williams (After Remand); "Buyer-seller" jury instruction; United States v. Mims (7th Cir.); People v. Dobek; People v. Reed; "Other acts" evidence; MRE 404(b); People v. Mardlin

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Pilton

e-Journal Number: 53634

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

 

The court held, inter alia, that based on the Cress requirements, the defendant was not entitled to a new trial based on the discovery of new evidence. Defendant's convictions arose out of an investigation by a police team into a tip that a person named A was connected with drugs and was in the area. The team found A's gray pickup truck in a hotel parking lot and suspected that it was used to carry drugs. The team surveilled the hotel until defendant's white pickup truck came into the hotel parking lot. A exited the hotel and got into the white pickup truck, where he stayed for a short time, and then got into his own truck and followed defendant out of the parking lot and was followed by a blue Durango. All three vehicles followed each other closely. When they exited, the team called for backup for a traffic stop. A stopped immediately and his truck was found to contain 10 kilograms of cocaine. L, in the blue Durango, also stopped. Defendant accelerated rapidly and fled the scene. The police chased him for three miles and they had to shoot at him dozens of times before he would exit the vehicle. He had nearly $12,000 in his vehicle. Defendant testified that in 1993 or 1994, he received an insurance settlement check, and since then he had been buying houses, fixing them up, and renting them. L, a longtime friend, had contacted him about a rental house. The $12,000 defendant had with him was from L and was an advance payment for a year's rent. L directed defendant to the hotel where defendant met A, to whom defendant was to show the house. Defendant was driving to the house when the police attempted to pull him over. He panicked and fled because he knew L's reputation as a drug dealer and because he had so much cash in his truck. He did not know A had drugs with him. Defendant argued that he should be granted a new trial because certain evidence about his settlement check was not presented to jurors. He testified that he received the check but, upon cross-examination, he testified that he did not have a copy of the check to present to the jury. As to the first Cress requirement, defendant testified that he received a settlement check in 1993 or 1994. He knew of the existence of the check. Thus, the existence of the check itself was not newly discovered. Second, the evidence was cumulative, considering his testimony that he received the check. Third, using reasonable diligence, defendant could have produced the check at trial. He produced it at sentencing. Finally, in light of the cumulative nature of the proposed evidence and the other evidence of defendant's guilt, he did not show that evidence of the check would make a different result probable on retrial. The court also held that Michigan law does not allow a circumvention of the Cress requirements as defendant attempted here. His convictions of conspiracy to deliver or manufacture 1000 grams or more of cocaine, delivering or manufacturing more than 1000 grams of cocaine, and third-degree fleeing and eluding were affirmed.

 

Insurance

 

Issues: Priority dispute among insurers under the No-Fault Act; MCL 500.3114; Besic v. Citizens Ins. Co. of the Midwest; MCL 500.3101(1); Whether MCL 500.3.114(3) applied; The "economic reality" test; Parham v. Preferred Risk Mut. Ins. Co.; Kidder v. Miller-Davis Co.; Whether plaintiff was an employee or an independent contractor; Celina Mut. Ins. Co. v. Lake States Ins. Co.; Integral Ins. Co. v. Maersk Container Serv. Co.; Independent Contractors Operating Agreement and Unit No. 6269 (ICOA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Perkovic v. Hudson Ins. Co.

e-Journal Number: 53581

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

 

The court held in this priority dispute among insurers that under MCL 500.3114(3), plaintiff was an employee who suffered accidental bodily injury while an occupant of a motor vehicle owned by the employer (himself) and he was entitled to receive PIP benefits "from the insurer of the furnished vehicle." Thus, defendant-Zurich had priority. Unlike Besic, the insurer of the lessee, Zurich, provided no-fault coverage, so the bobtail insurer (defendant-Hudson) was not required to provide benefits. Given that Zurich provided coverage, Hudson's exclusion of coverage was valid because the Hudson and Zurich policies together provided continuous coverage. The case arose from an accident involving plaintiff. He testified that at the time of the accident, he was employed with Hollingsworth pulling an empty rig to Utah and bringing back air bags twice a week. He owned the truck he was driving and leased it to Hollingsworth. Plaintiff and Hollingsworth entered into a contract titled the ICOA. When the accident occurred, plaintiff was on dispatch and was on his return trip from Utah carrying a load of airbags. At the time of the accident, defendant-Citizens insured plaintiff's personal vehicles. He also had a policy with Hudson for non-trucking liability insurance (bobtail insurance). An endorsement to the policy provided that PIP coverage did "not apply to bodily injury . . . resulting from the operation, maintenance or use of the covered 'auto' in the business of anyone to whom it is leased or rented if the lessee has Michigan Personal Injury . . . Coverage on the 'auto.'" Zurich was Hollingsworth's insurer and the insurer of the vehicle. Hudson contended that Zurich had priority under MCL 500.3114(3). Citizens agreed. Zurich argued that the statute did not apply and Citizens had priority. Plaintiff argued that if Zurich's policy did not apply, then Hudson's exclusion violated the No-Fault Act and Hudson had priority. The court held that the economic reality test showed that plaintiff was not an employee of Hollingsworth. Their contract was not dispositive of their status. Plaintiff remained the owner of the vehicle and was a self-employed independent contractor for Hollingsworth. The court reversed the trial court's order denying Hudson's motion for reconsideration of an order finding its exclusion of coverage violated Michigan public policy and the No-Fault Act.

 

This summary also appears under Contracts

 

Issues: Contractual indemnification; Hubbell, Roth & Clark, Inc. v. Jay Dee Contractors, Inc.; Zahn v. Kroger Co. of MI; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Inc.; Determining the extent of the duty to indemnify; Grand Trunk W. R.R., Inc. v. Auto Warehousing Co.; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Using a dictionary to determine the plain and ordinary meaning of an undefined contract term; Holland v. Trinity Health Care Corp.; "Arise" defined; "Connection" and "connect" defined; DaimlerChrysler Corp. v. Wesco Distrib., Inc.; Which insurer was responsible for indemnifying defendant-Dan's Excavating, Inc. (DEI); Insurance contract interpretation; Pugh v. Zefi; Dobbelaere v. Auto-Owners Ins. Co.; Determining which insurer was responsible for providing coverage for the accident; Reviewing the complaint to determine the gravamen of the claim; Adams v. Adams (On Reconsideration); Negligence cause of action arising from a motor vehicle accident; Stephens v. Dixon; Commercial general liability (CGL) policy

Court: Michigan Court of Appeals (Unpublished)

Case Name: Russell v. Dan's Excavating, Inc.

e-Journal Number: 53584

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

 

The court held that the plain language of the indemnification contract clearly provided that third-party defendant-A & B Trucking was obligated to hold defendant-DEI harmless against any and all liability arising out of or related to physical injury in any way sustained or alleged to have been sustained in connection with the work performed by A & B. Further, defendant-American States, as A & B's auto insurer, must indemnify DEI because the plaintiff's injuries were caused by an accident and resulted from A & B's employee's (K) use of A & B's covered vehicle, and the indemnification provision qualified as an "insured contract" under the auto policy. DEI, a general contractor, entered into a contract with A & B, a subcontractor, for A & B to provide trucking services to DEI on a road construction project. While driving a semi-truck on the project, K was involved in an auto accident with plaintiff, resulting in injuries to plaintiff. She sued DEI, A & B, and K. Counts I & II asserted that A & B and K were liable for K's negligent driving. Count III alleged that DEI was negligent because it failed to conduct traffic control reasonably and with due care. A & B settled with plaintiff as to counts I & II, and the parties stipulated to dismissing K and A & B with prejudice and without costs. When DEI learned that A & B settled counts I & II, but failed to settle count III, it filed a third-party complaint against A & B. DEI alleged that A & B breached its agreement to indemnify DEI against all claims arising out of or related to any physical injury sustained in connection with the work performed by A & B. The trial court granted A & B summary disposition, concluding that it was not obligated to indemnify DEI. The court held that dictionary definitions of the terms used in the indemnity provision made it clear that A & B had to indemnify DEI for injuries alleged to have been sustained as a result of the work completed by A & B and/or for injuries alleged to be linked to the work completed by A & B. According to the purchase order between DEI and A & B, DEI purchased "hourly trucking" services. Plaintiff's complaint alleged that A & B's vehicle "failed to yield the right of way" to her by turning left into her "lane of travel striking her vehicle. While at the same time . . . [DEI] failed to properly conduct traffic control." Thus, her allegation of negligence by DEI was linked with A & B's negligence because she alleged that DEI failed to conduct traffic while A & B's employee negligently drove. DEI's negligent traffic control traffic was connected to A & B's negligent work performance. "Thus, these allegations were sufficient to trigger the indemnification clause." The court concluded that the trial court erred in granting A & B summary disposition and denying DEI's summary disposition motion. In a cross-appeal, defendant-State Auto, A & B's general liability insurer, argued that if A & B was required to indemnify DEI, American States was the responsible insurer. The court held that because plaintiff's cause of action was based on an auto accident, and auto accidents were excluded from coverage under State Auto's CGL policy, State Auto was not obligated to indemnify DEI. Reversed and remanded for entry of an order granting DEI summary disposition, denying A & B's summary disposition motion, and granting State Auto's summary disposition motion.

 

Juvenile Law

 

This summary also appears under Criminal Law

 

Issues: Ineffective assistance of counsel; People v. Werner; People v. Rodgers; Failure to object to allegedly "leading" questions; MRE 611(d); In re Susser Estate; People v. Larry; Leeway in asking child witnesses leading questions; People v. Watson; Failure to make a futile objection; People v. Ericksen; Failure to impeach a victim with her police statement; MRE 613(a); People v. Rodriguez; Failure to call a specific witness; People v. Payne; Failure to inform the trial court that defense counsel advised the respondent-juvenile not to testify; People v. Bonilla-Machado; "Hearsay" (MRE 801(c)); People v. Jackson; MRE 801(d)(1); Correct result reached for the wrong reason; People v. Bauder; A statement offered to show the effect of the out-of-court statement on the hearer; People v. Chambers; MRE 803(3); Reputation for truthfulness; MRE 608(a); People v. Whitfield; People v. Schultz; Right to present a defense; People v. Orlewicz; People v. Hayes; People v. McGhee; "Plain error" review; People v. Carines; Evidence that lacks foundation; Royal Mink Ranch v. Ralston Purina Co.; Irrelevant evidence; People v. McFall; The great weight of the evidence; People v. Musser; MCL 750.520e(1)(b); "Sexual contact" defined (MCL 750.520a(q)); "Intimate parts" defined (MCL 750.520a(e)); "Force or coercion"; MCL 750.520h; People v. Drohan; Witness credibility; People v. Lemmon; A child victim's inability to identify the precise date of a CSC offense; People v. Dobek; Order of disposition; MCR 3.943(A); MCL 712A.18(1); In re Chapel; Lack of remorse and patterns of criminal behavior; People v. Houston; People v. Petri; Disparity in dispositions; People v. Brown; Consideration that juveniles have less moral culpability for crimes than adults; Cumulative error

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Bowen

e-Journal Number: 53591

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

 

Holding, inter alia, that the respondent-juvenile was not denied the effective assistance of counsel and that the trial court's finding that he committed all five charged offenses was not against the great weight of the evidence, the court affirmed the order of disposition. The trial court determined that respondent committed five instances of CSC IV. As to the ineffective assistance of counsel claims, the court concluded, inter alia, that none of the allegedly leading questions respondent identified on appeal "was leading because none in fact suggested an answer." The first victim was able to testify from her own memory without assistance from the petitioner. It was "apparent that the allegedly leading questions were often carefully phrased to incorporate that victim's earlier testimony for ease of examination. Thus, any objection by trial counsel would have been futile, and counsel cannot be deficient for failure to make a futile objection." Respondent also argued that defense counsel was ineffective for failing to impeach the first victim with her police statement, and that the trial court erred in ruling that defense counsel was required to show the police statement to the victim before questioning her about it. The court agreed that "the trial court's ruling was technically erroneous," but concluded that no prejudice occurred because, while the trial court and the parties "did not strictly apply MRE 613(a), the result was no different from what strict application of that rule would have brought." To the extent that respondent argued defense counsel should have nonetheless impeached the first victim with her police statement, the court was not persuaded because respondent did not show how the police statement would have impeached her testimony or otherwise affected the outcome of the trial. As to the great weight of the evidence claim, the court noted that the "first victim testified that on four occasions respondent pressed her against a nearby wall or locker and rubbed his 'crotch area' against her thigh or 'crotch area.' Similarly, the second victim testified that on one occasion respondent pressed her against a locker and rubbed his 'groin' against her 'behind.'" The court held that this testimony showed that "respondent intentionally touched the victims' 'intimate parts' in the form of their genital area or buttock." His use of his "groin" or "crotch" showed that "the intentional touching could reasonably be construed as being for the purpose of respondent's sexual gratification or done in a sexual manner to humiliate the victims." Thus, their testimony was evidence of "sexual contact." Further, they testified that they were unable to avoid the contact with respondent because he held them against a wall or locker, which constituted an "actual application of physical force" that was "used to accomplish the sexual contact." Thus, "the victims' testimony was evidence of 'force or coercion.'" The court held that their testimony "was adequate evidence to establish respondent's five violations of MCL 750.520e(1)(b)."

 

Litigation

 

This summary also appears under Real Property

 

Issues: Foreclosure; Motion to set aside the entry of default; Huntington Nat'l Bank v. Ristich; Shawl v. Spence Bros., Inc.; The "Shawl factors"; MCR 2.603(D)(1); Alken-Ziegler, Inc. v. Waterbury Headers Corp.; The "totality of the circumstances" test; Sufficient "good cause"; Bullington v. Corbell; Inapplicability of Berger v. Berger; "Meritorious defense"; Sweet Air Inv. v. Kenney

Court: Michigan Court of Appeals (Unpublished)

Case Name: First Am. Title Co. v. Harrington

e-Journal Number: 53543

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

 

The court held in this foreclosure case that the trial court, inter alia, abused its discretion by failing to apply both the good cause and meritorious defense standards within MCR 2.603(D)(1) as explained in Shawl. Thus, the court reversed the trial court's order denying defendant/appellant-Bank's motion to set aside the default, vacated the default judgment, and remanded for further proceedings. The case arose from the failure of the Bank to answer a complaint filed by plaintiff-First American in which it alleged an invalid foreclosure by the Bank on the property at issue. The Bank's failure to timely respond to the complaint eventually led to the entry of default against the Bank, and a subsequent entry of default judgment. The Bank, as the note holder of a mortgage taken on the property, obtained quiet title to the property pursuant to a court order. The Bank began foreclosure by advertisement proceedings on the property, as the mortgagor failed or refused to make payments. The Bank purchased the property through a sheriff's sale for $195,700.85. After the Bank's foreclosure by advertisement, OneWest, a later mortgagee, tried to foreclose on the property when its mortgagor failed or refused to make payments. OneWest discovered that its interest in the property was extinguished by the Bank's prior foreclosure purchase and the sale of the property. OneWest then filed a claim with the company providing the insurance under the mortgage, First American, who settled the claim by paying OneWest $155,000. Later, First American sued alleging an invalid foreclosure against the Bank because the Bank failed to acquire its interest before the publication of the notice of foreclosure in violation of MCL 600.3204. The Bank was served the summons and complaint by certified mail in California, but failed to respond within 28 days and the trial court entered a default against the Bank. Less than a month later the Bank filed a motion to set aside the default and submitted an affidavit of various meritorious defenses, which the trial court denied. Later, the trial court granted First American a money judgment. The trial court also denied the Bank's motion to set aside the default judgment and dismissed the remaining defendants. The court noted that the Bank had shown a meritorious defense by arguing, inter alia, that First American lacked standing to challenge the foreclosure sale because it failed to act during the redemption period. The court also held that the Bank had shown good cause to set aside the default.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Foreclosure; Motion to set aside the entry of default; Huntington Nat'l Bank v. Ristich; Shawl v. Spence Bros., Inc.; The "Shawl factors"; MCR 2.603(D)(1); Alken-Ziegler, Inc. v. Waterbury Headers Corp.; The "totality of the circumstances" test; Sufficient "good cause"; Bullington v. Corbell; Inapplicability of Berger v. Berger; "Meritorious defense"; Sweet Air Inv. v. Kenney

Court: Michigan Court of Appeals (Unpublished)

Case Name: First Am. Title Co. v. Harrington

e-Journal Number: 53543

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

 

The court held in this foreclosure case that the trial court, inter alia, abused its discretion by failing to apply both the good cause and meritorious defense standards within MCR 2.603(D)(1) as explained in Shawl. Thus, the court reversed the trial court's order denying defendant/appellant-Bank's motion to set aside the default, vacated the default judgment, and remanded for further proceedings. The case arose from the failure of the Bank to answer a complaint filed by plaintiff-First American in which it alleged an invalid foreclosure by the Bank on the property at issue. The Bank's failure to timely respond to the complaint eventually led to the entry of default against the Bank, and a subsequent entry of default judgment. The Bank, as the note holder of a mortgage taken on the property, obtained quiet title to the property pursuant to a court order. The Bank began foreclosure by advertisement proceedings on the property, as the mortgagor failed or refused to make payments. The Bank purchased the property through a sheriff's sale for $195,700.85. After the Bank's foreclosure by advertisement, OneWest, a later mortgagee, tried to foreclose on the property when its mortgagor failed or refused to make payments. OneWest discovered that its interest in the property was extinguished by the Bank's prior foreclosure purchase and the sale of the property. OneWest then filed a claim with the company providing the insurance under the mortgage, First American, who settled the claim by paying OneWest $155,000. Later, First American sued alleging an invalid foreclosure against the Bank because the Bank failed to acquire its interest before the publication of the notice of foreclosure in violation of MCL 600.3204. The Bank was served the summons and complaint by certified mail in California, but failed to respond within 28 days and the trial court entered a default against the Bank. Less than a month later the Bank filed a motion to set aside the default and submitted an affidavit of various meritorious defenses, which the trial court denied. Later, the trial court granted First American a money judgment. The trial court also denied the Bank's motion to set aside the default judgment and dismissed the remaining defendants. The court noted that the Bank had shown a meritorious defense by arguing, inter alia, that First American lacked standing to challenge the foreclosure sale because it failed to act during the redemption period. The court also held that the Bank had shown good cause to set aside the default.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (c)(ii), (g), (j), and (k)(iii); In re VanDalen; "Battery"; Smith v. Stolberg; In re Trejo Minors; Whether compliance with the service plan negated a finding of statutory grounds for termination; In re Gazella; In re Rood; Whether the trial court "relied significantly upon" one child's broken leg and presumed respondent-mother was responsible for the injury; The children's best interests; Claim that the trial court violated due process and Michigan's policy for reunification by ignoring respondent's compliance with her service plan and by relieving petitioner of its burden to prove the grounds for termination by clear and convincing evidence; Reed v. Reed; In re JK; In re JL; In re Fried

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Triplett

e-Journal Number: 53669

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

 

The court held, inter alia, that the trial court properly terminated the respondent-mother's parental rights to the three minor children where multiple statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. Respondent's interactions with CPS began in 2004 when a complaint was filed alleging that she was homeless and struggling to feed and provide for the basic needs of her children. In 2010, roughly a year following full reunification with LT and KT, respondent beat LT with a wooden switch, resulting in multiple lacerations and bruises on LT's body. Respondent admitted to intentionally beating and seriously injuring LT. The trial court did not clearly err by finding that she abused "the child or a sibling of the child and the abuse included" battery. Thus, the trial court did not clearly err in terminating respondent's parental rights to the minor children under § 19b(3)(k)(iii). The court also found that the trial court did not clearly err in terminating her parental rights under §§ 19b(3)(c)(i), (g), and (j). It was undisputed that respondent physically abused LT. There was "ample evidence" that she had not rectified the condition that placed her children at harm and led to the adjudication in this case, and there was no reasonable likelihood that she would rectify that condition in a reasonable time. Affirmed.

 

Wills & Trusts

 

Issues: Whether handwritten notes constituted a valid amendment to the trust and a list governing the disposition of the settlor's personal property; The Estates & Protected Individuals Code (MCL 700.1101 et seq.); In re Temple Marital Trust; MCL 700.7602(3)(a); Whether the lack of a signature and absence of the word "amendment" were fatal to the settlor's attempt to alter the disposition of her estate; Whether a child adopted six days after the settlor's death was a grandchild beneficiary of the trust; Determining class membership at the death of the testator; In re Fitzpatrick Estate

Court: Michigan Court of Appeals (Published After Release)

Case Name: In re Gwendoline Louise Stillwell Trust

e-Journal Number: 53770

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

 

[This opinion was previously released as an unpublished opinion on 11/29/12.] The court held that the settlor (Stillwell) substantially complied with the terms of the trust governing an amendment when she drafted the handwritten notes at issue and ensured that they were delivered to the successor trustee upon her incapacitation. The court also held that the estate vested and the class of beneficiaries closed at her death. Thus, the trial court did not err in ordering the trustee to distribute Stillwell's personal property pursuant to the directives in the notes, but erred in concluding that A, who was adopted six days after Stillwell's death, was entitled to a share of the estate via Stillwell's class gift to her grandchildren. The trust provided that "[t]he Grantor may by instrument in writing delivered to the Trustee . . . modify or alter this agreement in any manner . . . ." It did not require a signature. Further, there was no dispute that Stillwell had the mental capacity to amend the trust, no evidence of undue influence, and no dispute that the notes were in her handwriting. The issue was whether the lack of a signature and absence of the word "amendment" were fatal to her attempt to change the disposition of her estate. The court concluded that she clearly intended to create a list disposing of her personal property and to amend the trust. She placed the notes in a large envelope that had specific directions to the successor trustee about her entire estate, indicating that she intended the documents to constitute more than just a list disposing of her personal property. In particular, she referred to the notes as "a summary of my estate and instructions," and she summarized her entire estate on the outside of the envelope to include real property, gold, bank accounts and stocks. In the notes, she again referenced not only personal property, but also all of her assets. "Stillwell clearly evinced her intent that the contents of the notes constitute her final directive on the distribution of her entire estate." Further, she modified how her assets were to be distributed. In the trust, she directed that her assets (apart from specific instructions as to her real property) be divided evenly among the beneficiaries. However, in the notes she clearly indicated that the college tuition of two of her grandchildren was to be paid first before any other distribution of her assets. In the notes, Stillwell also indicated that she wanted petitioner, her son-in-law, to share in the distribution of her personal property. Thus, the court held that the trial court properly ruled that the notes constituted an amendment to the trust so that the tuition of the two grandchildren should be paid from the trust assets and the petitioner-trustee should participate in the personal property distribution. However, the court also held that the plain language of the trust showed "that Stillwell intended her estate to vest and the class of grandchildren-beneficiaries to close at her death." The Fourth Paragraph of the trust was entitled "Provisions Applicable Upon Death of Grantor." The paragraph identified beneficiaries of the trust in a clause that contained the header, "Beneficiaries Upon Death of Grantor." Since A was not her grandchild at the time of Stillwell's death, she was not a class member and was not entitled to a share of the estate.

 

Issues: Surcharge of $168,058.84 for misappropriation of funds from trust; Whether the probate court's order violated appellant-Plumley's due process rights; Whether the probate court properly denied appellant's compensation for time spent on trust services and expenses related to the minor son; In re Baldwin Trust; In re Estate of Raymond; In re Green Charitable Trust; MCL 700.8206(1)(a); MCL 700.7901(1); MCL 700.7901(2)(a)-(j); MCL 700.7901(2)(h); MCL 700.7904(3); MCL 700.7901; MCL 700.7904; Whether the probate court properly found that non-participating party-Paquin had not waived his $50,000 gift from the trust; Whether the surcharge should be reduced

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tiffany Smith Trust

e-Journal Number: 53616

Judge(s): Per Curiam – Murphy, Sawyer, and Hoekstra

 

In an order, the court granted the motion for reconsideration and vacated its prior opinion in this case (see e-Journal # 53094 in the 11/27/12 edition). The court again held that the probate court did not clearly err when it found that appellant-Plumley (the original managing trustee) was in breach of the trust. She violated several terms of the trust, which was established for the benefit of the settlor's (Smith) minor son. She failed to fund an account to provide for the child's daily expenses and refused to give an accounting of the fund to her co-trustee. Also, she failed to provide appropriate documentation for her claimed services as trustee and expenses for the child. Thus, the court held that the probate court acted within its statutory authority under MCL 700.7901 and MCL 700.7904 when it denied Plumley her requested compensation. The court affirmed the probate court's order imposing a surcharge for misappropriation of funds from the trust. When Smith learned that she was dying, she established a trust for the benefit of her son. The trust named Smith's cousin, Plumley, as managing trustee and named Smith's mother, appellee-Anderson, as both guardian of Smith's son and co-trustee. The trust was funded by Smith's life insurance policy and was created with a $400,751.09 payment upon her death. Of these funds, a $50,000 gift was to be paid directly to Plumley, and an additional $50,000 gift was to be paid directly to Paquin. The remaining balance was to be invested and used for the son's benefit. "Contrary to the express terms of the trust, appellant failed to fund an account for the son's daily expenses and, likewise, failed to report all trust activity to Anderson." Anderson filed a petition in probate court to compel Plumley to make an accounting of the trust activity. Several court proceedings ensued. Plumley and Anderson stipulated to have an accountant and unrelated third party, M, named as replacement trustee of the trust. Plumley argued, inter alia, that the probate court erred by denying her compensation for time spent on trust services and expenses related to the minor son. She believed this error should result in a reduction of her surcharge. The court disagreed that Plumley was denied rightful compensation, concluding instead that "the probate court acted within its statutory authority when it denied appellant her requested compensation." The court also rejected her argument that because Paquin settled his claim with the trust for less than the full $50,000, the amount of the portion of the surcharge related to the Paquin gift should be reduced by the difference between $50,000 and the amount for which he settled with the trust. The amount of that settlement was "irrelevant to the fact that appellant was not entitled to receive the $50,000 from the trust that should have gone to Paquin. Because appellant was not entitled to receive the $50,000, she must return it." Any "windfall arising from the fact that Paquin agreed to settle his claim against the trust for less than the full $50,000 should accrue to the benefit of the trust, not to the benefit of appellant."

 

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