• Business Law (1)
• Criminal Law (7)
• Family Law (1)
• Juvenile Law (1)
• Litigation (1)
• Municipal (1)
• Negligence & Intentional Tort (3)
• Oil & Gas (1)
• Tax (1)
• Termination of Parental Rights (1)

Business Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly granted defendant-Glassford's motion for summary disposition; Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit; Walsh v. Taylor; MCR 2.116(G)(3)(b); Innocent/negligent misrepresentation claim; Roberts v. Saffell; Unibar Maint. Servs., Inc. v. Saigh; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co.; Breach of fiduciary duty claim; Derderian v. Genesys Health Care Sys.; Fejedelem v. Kasco; Williams v. Polgar; "Fiduciary relationship"; Ulrich v. Federal Land Bank of St. Paul; In re Karmey Estate; Portage Aluminum Co. v. Kentwood Nat'l Bank; Teadt v. Lutheran Church MO Synod; Borrowers Network (BN); Royal Mortgage (RM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: London v. Glassford

e-Journal Number: 53649

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

 

The court held that although defendant-Glassford essentially cited no legal authority in her motion for summary disposition, she did indicate that her defense was that plaintiffs had no real complaints against her where she worked in an administrative capacity only, and plaintiffs had no proof to support any claims they had against her. She also provided undisputed facts and referenced three documents in support of her motion - her affidavit, the complaint, and plaintiff-Jack London's deposition. This evidence presented sufficient support for her motion, so that the trial court did not err in failing to deny it outright based on noncompliance with MRC 2.116(G)(3)(b). In 2004, plaintiffs were advised through a friend of a business opportunity to invest monies in a mortgage pool run by defendant-Shaw. Plaintiffs loaned about $250,000 to defendant-RM, a company owned by Shaw, in two separate transactions in 2004. At least one transaction was governed by a written loan agreement providing for the monthly payment of 11% interest on the loan to plaintiffs. On 5/13/05, plaintiffs made a $300,000 investment into "the 11% pooled mortgage fund" of defendant-BN, another company owned by Shaw, and made yet another $50,000 investment into the same fund of BN. Glassford, who was in charge of running the day to day operations of the companies, signed the written loan agreement governing plaintiffs' loan transactions as well as the certificates confirming plaintiffs' investments in BN. As of 3/08, defendants failed to pay the 11% return on the sums loaned/invested by plaintiffs, and further failed to return the $500,000 initially invested/loaned by plaintiffs. Glassford moved for summary disposition, asserting that she was employed by BN in an administrative capacity only and that plaintiffs' complaint made no specific allegations against her. She pointed out that Jack London admitted that she never made any false representations to him and he did not believe that she owed him any money. Glassford also pointed out that all other defendants were dismissed from the case or were in bankruptcy, and that plaintiffs' business losses had nothing to do with her. The court affirmed the trial court's order granting Glassford summary disposition of plaintiffs' innocent/negligent misrepresentation and breach of fiduciary duty claims.

 

Criminal Law

 

This summary also appears under Juvenile Law

 

Issues: Sufficiency of the evidence to support the respondent-juvenile's adjudication of resisting and/or assaulting a police officer; People v. Lanzo Constr. Co.; People v. Kanaan; People v. Johnson; Whether the evidence was sufficient to establish that respondent assaulted, battered, wounded, resisted, obstructed, opposed or endangered a police officer; People v. Corr

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Palmer

e-Journal Number: 53713

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

 

Holding that there was sufficient evidence to support the respondent-juvenile's adjudication of responsible for resisting and/or assaulting a police officer, the court affirmed. Respondent's only claim on appeal was that the evidence was insufficient to establish that he assaulted, battered, wounded, resisted, obstructed, opposed or endangered a police officer, the first element of the crime. He argued that because his hands were bound at the time of the incident, it was impossible for him to have resisted or obstructed the officers. However, two officers testified that respondent ignored the officers' verbal commands and questions, attempted to prevent the courtroom door from opening, and "lunged at" and "kicked at" Officer D. Also, D testified that respondent spat blood in his face. This evidence was sufficient to enable a trier of fact to conclude beyond a reasonable doubt that, despite the fact that respondent's hands were bound, D had been assaulted, resisted, obstructed, opposed, and/or endangered as required under MCL 750.81d(1). Although respondent maintained that "a trier of fact evaluating the same set of facts would have reached a different conclusion" this misstated the court's standard of review. The proper question was, affording petitioner the benefit of any factual doubt, whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Similarly, respondent's contention that "respondent testified in a forthright and truthful manner and as such his testimony should be afforded the same weight as the prosecution witnesses" was misguided because it is the province of the trier of fact to weigh the credibility of witnesses.

 

Issues: Witness coercion; People v. Nantelle; People v. Carines; Whether defendant had "standing" to raise the issue; People v. Yeoman; Prosecutorial misconduct; People v. Hill; People v. Layher; People v. Pickens; People v. Tommolino; People v. Moorer; Threats against witnesses; People v. Scholl; People v. Kelly; Evidence of defendant's prior drug activity; People v. Matuszak; Whether the challenged testimony was elicited by defense counsel; People v. Davis; Ineffective assistance of counsel; Juror misconduct; People v. Jackson; Smith v. Phillips; Applicability of United States v. Humphrey; Witness cross-examination; People v. Falkner; Estate of Barbara Johnson v. Kowalski; Newly discovered evidence; People v. Cress

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bullard

e-Journal Number: 53663

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

 

Although the defendant contended that the prosecutor improperly coerced T's testimony that she heard others discussing defendant's reasons for shooting B, the court held that the record did not support defendant's claim. Defendant's conviction arose from the shooting death of B. Defendant was upset with B and Y for not assisting his friend TB during a bar fight earlier in the evening. While B was in his black Monte Carlo talking to a group of people who had gathered in E Street, defendant drove up next to B, got out of his vehicle, and repeatedly fired a handgun into B's car. Y was in the passenger seat in B's car at the time. He was able to escape on foot when the shooting started. Someone shot and killed Y later that night, but defendant was not charged with that offense. B received fatal gun shot wounds, but did not die immediately. An unidentified person drove the Monte Carlo to an alley and left B there to die. The prosecution's primary witness, P, identified defendant as the person who shot B. T testified that she heard P tell others shortly after the shooting that he was the shooter. However, two defense witnesses identified P as the shooter. Defendant also produced two alibi witnesses who testified that he was with them at the time of the shooting. On appeal, defendant argued, inter alia, that the prosecutor improperly coerced T's testimony that she heard others discussing defendant's reasons for shooting B. Defendant contended that the prosecutor coerced T to testify in accordance with the prosecution's theory by threatening T at a prior investigative subpoena hearing that she could be charged with perjury if she testified falsely. Defendant also challenged defense counsel's failure to raise a contemporaneous objection on this ground at trial. Because defendant failed to object to T's testimony on this ground at trial, his prosecutorial misconduct claim was unpreserved. Defendant did not raise his ineffective assistance claim until he requested that the court remand for an evidentiary hearing. The court denied the motion. At trial, the prosecutor used a transcript from the investigative subpoena proceeding to refresh T's memory about what she had heard on the night of the shooting. Before reading the transcript, she claimed that she only overheard that B had been shot. After her review of the transcript, T admitted that she heard others, including P, discussing that defendant shot B and talking about the kind of car he drove. Defendant now argued that the transcript of the investigative subpoena proceeding showed that T was coerced into giving that testimony because she was threatened with perjury. The court disagreed with the prosecutor's claim that defendant lacked standing to raise this issue because it only implicated T's rights. Rather, defendant was arguing that the prosecutor's conduct toward T, affected defendant's own right to a fair trial because it resulted in the use of T's coerced testimony to obtain a conviction. As defendant argued, the prosecutorial misconduct related to T's testimony affected him personally. Thus, defendant had standing to pursue this issue. However, the court held that none of defendant's issues on appeal had merit and affirmed his convictions and sentences.

 

Issues: Sentencing; People v. Waclawski; People v. Endres (On Remand); People v. Jackson; Scoring of OVs 12, 13, and 19; People v. Light; People v. Bemer; People v. Barbee; People v. McDonald; People v. Steele; Whether information in the PSIR should be deleted; People v. Cross

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Coone

e-Journal Number: 53698

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

 

The court held that the defendant's conduct in threatening to file lawsuits against the victim's mother or to withhold privileges from the victim (his stepdaughter) if she did not engage in sexual relations with him was not aimed at interfering with the administration of justice. Further, the record did not support a finding that his actions diminished the victim's ability to report his crimes. Thus, the court concluded that the trial court erred in scoring OV 19 at 15 points and that resentencing was required. Defendant was convicted of two counts of CSC III and sentenced to 85 to 180 months in prison. At the initial sentencing hearing, he challenged the scoring of OV 13 at 25 points because the offenses used to score OV 13 were also scored in OV 12. The trial court changed the scoring of OV 12 from 5 to 0 points because there was no record evidence showing any felonious criminal acts occurring within 24 hours of the sentencing offense. The trial court denied defendant's challenge to the scoring of OV 13, and later in the sentencing hearing also denied his challenge to the scoring of OV 19. Defendant argued on appeal, inter alia, that no evidence showed that he interfered with the police or used physical force or the threat of physical force against the victim. The court agreed that no evidence showed that he "threatened to take action against the victim or her mother if the victim contacted the police." However, the court rejected defendant's challenges to the scoring of OVs 12 and 13, holding that the trial court properly scored OV 12 at 0 points and thus, his argument challenging the scoring of 25 points for OV 13 lacked merit. Affirmed in part, reversed in part, and remanded for resentencing.

 

Issues: Sentencing; Departure from the guidelines; People v. Babcock; MCL 769.34(4)(a); "Intermediate sanction" defined (MCL 769.31(b)); People v. Muttscheler; People v. Lucey

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Couch

e-Journal Number: 53701

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

 

The court held that the trial court failed to articulate a "substantial and compelling" reason to depart from the guidelines and abused its discretion in sentencing the defendant to the DOC's jurisdiction. Thus, the court affirmed defendant's conviction but remanded for resentencing or rearticulation of a substantial and compelling reason for departing from the guidelines. Defendant was convicted of violating MCL 750.157n(1) (stealing, taking, or removing a financial transaction device), and the trial court sentenced him to a prison term of one to four years. His recommended minimum sentence range was 0 to 17 months. Under MCL 769.34(4)(a), when the upper limit of a recommended minimum sentence range is 18 months or less, the trial court "shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction" of the DOC. MCL 769.31(b) defines "intermediate sanction" as "probation or any sanction, other than imprisonment in a state prison or state reformatory, that may lawfully be imposed." Thus, "a prison sentence cannot constitute an intermediate sanction." In explaining its decision to sentence defendant to the jurisdiction of the DOC rather than to impose an intermediate sanction under MCL 769.34(4)(a), the trial court referred to the inefficiencies of sentencing him to jail time where he would first have to serve additional time in prison for his parole violation, resulting in two agencies handling his sentences and the lack of a coordinated supervisory or rehabilitative plan. The court noted that it addressed a similar situation in Lucey, where it held that "[t]he fact that a defendant might have to serve county jail time following additional prison incarceration for a parole violation cannot be a substantial and compelling reason to depart from the sentencing guidelines."

 

Issues: Search and seizure; Whether the search warrant was properly issued; People v. Russo; People v. Kazmierczak ; Whether the affidavit provided sufficient "probable cause"; People v. Stumpf; People v. Martin; Whether the warrant was "stale"; People v. Brown; Whether the warrant listed the items to be seized with "particularity"; People v. Zuccarini; People v. Unger; Whether the "documentation of drug activity" allowed the officers to seize the computer; Whether the affiant failed to disclose material information when he obtained the search warrant; People v. Ulman; People v. Mullen; Whether the trial court "pierced the veil of judicial impartiality"; People v. Jackson; Jury instructions; Whether the trial court should have instructed the jury on paragraphs (6) and (7) of CJI 2d 12.1; People v. McGhee; People v. Dumas; People v. Martin; Applicability of People v. Kolanek; The Michigan Medical Marijuana Act (MCL 333.26428); Whether the defendant raised the affirmative defense in § 8 in a pretrial motion

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Olger

e-Journal Number: 53700

Judge(s): Per Curiam - Owens, Fitzgerald, and Riordan

 

The court held that none of the defendant's challenges to the search warrant were viable and that the search warrant was properly issued based on probable cause, was not stale where the affidavit showed that the illegal activity constituted much more than a single sale and had been on going for some time, the items seized were identified with sufficient particularity, and the officers properly seized the computer. Thus, the search and seizure were properly carried out by the officers. A jury convicted the defendant of manufacturing less than 5 kilograms or fewer than 20 marijuana plants and sentenced her to 15 days in jail and 3 years' probation. Defendant contended, inter alia, that the search warrant was improperly issued and the evidence seized pursuant to the search was inadmissible. The court noted that the informant admitted that he had purchased marijuana from defendant's son on several occasions, and the last time he purchased marijuana from the son was in defendant's driveway. The informant provided specific details as to quantity and price of the marijuana and identified defendant's house in a photograph. The informant also stated that defendant and her husband had a growing operation in the basement of the residence. The informant named by the affidavit in support of the search warrant had personal knowledge sufficient to sustain a finding of probable cause to search defendant's home. Defendant also contended the warrant was stale because too much time had elapsed between the last drug purchase described in the affidavit and the issuance of the search warrant. The court noted that the test to determine whether the warrant was stale was whether there was a substantial basis to conclude that there was a fair probability that evidence of a crime will be found in a particular place. Here, the affidavit showed how the illegal activity constituted much more than a single sale and had been going on for some time. The informant testified that he knew that defendant had a growing operation in the basement of her residence. This showed that the drug enterprise was ongoing and why it would be reasonable to conclude that evidence could still be found at the residence. Thus, the warrant was not stale. Affirmed.

 

Issues: Double jeopardy; Whether the defendant's acquittal of unarmed robbery and carjacking in a prior case precluded his prosecution in this case for fleeing or eluding and driving without a valid operator's license; People v. Nutt; The protection against successive prosecutions; Res judicata; Estes v. Titus; People v. Gates; Board of Cnty. Rd. Comm'rs v. Schultz; MCR 6.120

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Vary

e-Journal Number: 53695

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

 

The court held that because carjacking and fleeing or eluding each require proof of a fact that the other does not, they were not the same offense for purposes of the protection against double jeopardy. Res judicata also did not preclude the defendant's prosecution for fleeing or eluding in this case. Thus, the court affirmed his third-degree fleeing or eluding and driving without a valid operator's license convictions. However, the court remanded for correction of the judgment of sentence to accurately reflect that the conviction offense for count two was operating a vehicle without a valid operator's license, contrary to MCL 257.301, and not driving while license suspended. Defendant's convictions arose from his flight after the police tried to stop his vehicle on suspicion that he was driving a stolen vehicle. He was prosecuted in a prior case for unarmed robbery and carjacking for offenses that preceded his flight from the police. He was acquitted of those charges. Before the trial in this case, defendant moved to dismiss, arguing that the charges were precluded by his constitutional protections against double jeopardy and by res judicata. The trial court denied the motion. Comparing the carjacking statute, MCL 750.529a, and the fleeing or eluding statute, MCL 257.602a, the court concluded that each required proof of a fact that the other did not. "For example, carjacking requires proof of larceny of a motor vehicle, which is not required for third-degree fleeing or eluding. And fleeing or eluding requires a signal by a police officer, which is not a requirement for carjacking." Defendant pointed to the definition in MCL 750.529a(2), "which indicates that a carjacking encompasses acts 'in flight or attempted flight after the commission of the larceny.'" The court concluded that while "that inclusion may have been relevant under the same transaction test, it has no bearing on the same elements test that governs the double jeopardy analysis under Nutt." In arguing that his prosecution in this case violated principles of res judicata, defendant relied on Schultz. However, in Nutt, the Michigan Supreme Court rejected the concept of mandatory joinder of offenses. MCR 6.120 "indicates that joinder is 'appropriate' if offenses are related, such as where they are based on the same transaction or a series of connected acts. But that rule is permissive, not mandatory."

 

Issues: Whether the district court may delegate certain decisions regarding drug testing and drug treatment to a probation officer; United States v. Logins (Unpub. 6th Cir.); United States v. Mosher (Unpub. 6th Cir.); United States v. Faulk (Unpub. 11th Cir.); United States v. Zinn (11th Cir.); Whether Congress has required that the courts set a maximum number of in-treatment tests where the court imposes a special condition for non-mandatory substance abuse testing under USSG § 5D1.3(d); United States v. Melendez-Santana (1st Cir.); United States v. Stephens (9th Cir.); Whether "plain error" review or de novo review applied; Fed.R.Crim.P. 52(b) & 51(b); United States v. Gunter; United States v. Sepulveda-Contreras (1st Cir.); United States v. Wagner

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United Stats v. Carpenter

e-Journal Number: 53612

Judge(s): Siler, Martin, and Donald

 

The court held that the district court did not improperly delegate authority to defendant's probation officer. Defendant was sentenced to a 13-month prison term followed by a 2-year term of supervised release for failing to appear for sentencing. One of the conditions of his supervised release required him to participate in a program of both drug testing and treatment, as directed by his probation officer. On appeal, the court rejected defendant's argument that this condition was an impermissible delegation of judicial authority, holding that there was no delegation of Article III judicial power regarding the primary decision of whether defendant would undergo treatment and whether the treatment would include drug testing. That decision, the court found, was made by the district court. It explained that the "as directed by the probation officer" language did not yield to the probation officer authority to determine whether defendant must participate in a treatment program because the district court decided that defendant "shall participate." The court also rejected defendant's argument that the district court erred in failing to specify the number of in-treatment drug tests. The district court imposed drug testing in connection with a special condition of substance abuse program participation and thus, was not required to specify the number of drug tests defendant must undergo as a part of the treatment program. Affirmed.

 

Family Law

 

Issues: Whether the trial court should have sua sponte granted an adjournment where the defendant-husband did not have legal representation at trial; People v. Carines; MCR 2.503; Whether the trial court's distribution of marital property was "inequitable and unbalanced"; Sands v. Sands; Smith v. Smith; Sparks v. Sparks; Quade v. Quade; Whether defendant was properly awarded both of the parties' real properties; Whether the trial court properly awarded the plaintiff-wife alimony; Berger v. Berger; Woodington v. Shokoohi

Court: Michigan Court of Appeals (Unpublished)

Case Name: Norris v. Norris

e-Journal Number: 53697

Judge(s): Per Curiam - Owens, Fitzgerald, and Riordan

 

The court held, inter alia, that it had no firm conviction that a mistake was made in the distribution of the marital property, assets, debts, and in awarding the plaintiff-wife alimony. Further, the court held that merely because the trial court had discretion to sua sponte grant an adjournment did not mean that it erred in not exercising that discretion when the defendant-husband did not have legal representation at trial. Defendant failed to establish plain error affecting a substantial right. Thus, the court affirmed. Defendant did not cite any authority mandating a duty to sua sponte order an adjournment, and did not cite precedent holding that it is inequitable, as a matter of law, to require a party to represent himself at trial. Defendant testified that he communicated with other attorneys after his attorney withdrew from representation. He apparently communicated with other attorneys during the 20 days before trial. The court concluded that he had ample time to secure counsel, or at least to secure advice on how to handle the possibility or likelihood of being unrepresented. Also, he never requested an adjournment as required under MCR 2.503. The court also held that the other issues defendant raised on appeal had no merit.

 

Juvenile Law

 

This summary also appears under Criminal Law

 

Issues: Sufficiency of the evidence to support the respondent-juvenile's adjudication of resisting and/or assaulting a police officer; People v. Lanzo Constr. Co.; People v. Kanaan; People v. Johnson; Whether the evidence was sufficient to establish that respondent assaulted, battered, wounded, resisted, obstructed, opposed or endangered a police officer; People v. Corr

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Palmer

e-Journal Number: 53713

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

 

Holding that there was sufficient evidence to support the respondent-juvenile's adjudication of responsible for resisting and/or assaulting a police officer, the court affirmed. Respondent's only claim on appeal was that the evidence was insufficient to establish that he assaulted, battered, wounded, resisted, obstructed, opposed or endangered a police officer, the first element of the crime. He argued that because his hands were bound at the time of the incident, it was impossible for him to have resisted or obstructed the officers. However, two officers testified that respondent ignored the officers' verbal commands and questions, attempted to prevent the courtroom door from opening, and "lunged at" and "kicked at" Officer D. Also, D testified that respondent spat blood in his face. This evidence was sufficient to enable a trier of fact to conclude beyond a reasonable doubt that, despite the fact that respondent's hands were bound, D had been assaulted, resisted, obstructed, opposed, and/or endangered as required under MCL 750.81d(1). Although respondent maintained that "a trier of fact evaluating the same set of facts would have reached a different conclusion" this misstated the court's standard of review. The proper question was, affording petitioner the benefit of any factual doubt, whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Similarly, respondent's contention that "respondent testified in a forthright and truthful manner and as such his testimony should be afforded the same weight as the prosecution witnesses" was misguided because it is the province of the trier of fact to weigh the credibility of witnesses.

 

Litigation

 

Issues: Whether the "conditional" acceptance of a case evaluation award by the defendants-Hall was proper; MCR 2.403(L)(1) & (3); Dane Constr., Inc. v. Royal's Wine & Deli, Inc.; Defining "party" using a dictionary definition; Wardell v. Hincka; MCR 2.403(K)(2); Minority Earth Movers, Inc. v. Walter Toebe Constr. Co.; People v. Kodlowski; "Joint and several liability" defined; MCR 2.403(M)(1); Court rule interpretation; Henry v. Dow Chem. Co.; Dykes v. William Beaumont Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Richard G. Beauchemin Living Trust v. Lottie Schmidt, Inc.

e-Journal Number: 53686

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

 

The court held that the trial court correctly concluded that the case evaluation involved multiple parties and thus, limited acceptance by the defendants-Hall on the counterclaim was permitted pursuant to MCR 2.403(L)(3). Further, since a LLC and a living revocable trust both owned by the same individual (defendant-David Hall) were the three named defendants in the case evaluation, the trial court's decision to render a joint and several award was consistent with MCR 2.403(K)(2) because each party was individually liable for the entire award. Thus, the court affirmed the trial court's judgment reflecting an award of $35,000 against the Hall defendants jointly and severally. Plaintiff alleged that he loaned $100,000 to defendant-Lottie Schmidt, which granted him a mortgage encumbering two lots of real property. He also alleged that David Hall was actively involved in the daily operations of Lottie Schmidt, which later granted defendant-David M. Hall, LLC a mortgage on the property encumbered by plaintiff's mortgage. Plaintiff asserted that Lottie Schmidt's actions constituted a default under his mortgage, and after Lottie Schmidt defaulted, it granted plaintiff additional collateral to secure his interest. However, plaintiff alleged that Lottie Schmidt began transferring assets to (and granting mortgages in favor of) the Hall defendants without any new consideration, and that "the Hall defendants were attempting to shelter assets from creditors of Lottie Schmidt." Plaintiff sued for, inter alia, breach of contract, unjust enrichment/quantum meruit, and foreclosure of mortgage. He also asserted successor liability and sought to pierce the corporate veil. Plaintiff accepted the case evaluation award in its entirety. The Hall defendants also accepted the award, but indicated that their acceptance of the award on their counterclaim was conditional. The heart of plaintiff's argument was that "although there were three listed defendants in the case evaluation, it was commonly understood that the Hall defendants elected to be treated as a single party for purposes of case evaluation." Due to this fact, plaintiff contended that MCR 2.403(L)(1) applied and the Hall defendants were required to either accept or reject the entire case evaluation. The Hall defendants asserted that they were multiple parties for purposes of case evaluation and thus, they were permitted under MCR 2.403(L)(3) to conditionally accept the case evaluation. The court held that a "party" under the court rule "is a single individual." Since there were three separately named defendants in the case evaluation, multiple parties were involved. "Because MCR 2.403(L)(3)(b)(ii) permits a limited acceptance when there are multiple parties involved, the Hall defendants properly accepted the case evaluation on the complaint and accepted with limitations the case evaluation on the counterclaim, as the limitation was that the acceptance would be effective only if all opposing parties accepted as to the co-defendants."

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Governmental immunity; Officer or employee immunity; MCL 691.1407(2) & (3); Intentional torts; Odom v. Wayne Cnty.; Tortious interference with employment; Dalley v. Dykema Gossett PLLC; Fraud; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; Whether the individual defendants acted in "good faith"; Kelly-Nevils v. Detroit Receiving Hosp.; Whether their actions were "discretionary" or "ministerial"; Ross v. Consumers Power Co. (On Rehearing); Right result reached for the wrong reason; Coates v. Bastian Bros., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Godbold v. City of Detroit

e-Journal Number: 53691

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

 

The court held that the individual defendants failed to show that they were entitled to immunity from the plaintiff's tortious interference with employment and fraud claims. Plaintiff's allegations supported that defendants did not act in good faith, and they did not present any contrary record evidence to support a finding that they acted in good faith. Thus, the court affirmed the trial court's order denying defendants' motion for summary disposition, which was based, in part, on the ground that plaintiff's claims were barred by governmental immunity. The case arose from plaintiff's employment with the defendant-City. He was formerly a sergeant in charge of the City Police Department's "cold case" unit. "He was assigned to investigate the highly-publicized unsolved murder of exotic dancer Tamara Green, who was linked to an alleged party at the home of former Detroit Mayor Kwame Kilpatrick." Plaintiff alleged that "the individual defendants took various actions that interfered with his investigation of the case, which included disbanding the cold case unit and demoting him by reassigning him to another unit, inducing him to retire." He alleged that, shortly after he retired, the cold case unit was reopened. Plaintiff asserted claims against the individual defendants for intentional interference with his employment and fraudulent inducement. The relevant issues on appeal were "whether defendants acted in good faith and whether their actions were discretionary or ministerial." They did not offer any record evidence to the trial court to support their claim that they were entitled to immunity. They failed to introduce any evidence supporting their assertions made on appeal that they acted in good faith and lacked any intent to harm. In the absence of any contradictory evidence, the trial court was required to accept as true plaintiff's allegations that "defendants' conduct was undertaken for the purpose of interfering with a police homicide investigation and to protect an elected official by covering up information regarding the official's connection to Green." Defendants did not present any evidence showing valid business reasons for their conduct and decision to disband the cold case unit. Thus, the court held that while the basis for the trial court's ruling was erroneous, it properly denied defendants' summary disposition motion.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Governmental immunity; Officer or employee immunity; MCL 691.1407(2) & (3); Intentional torts; Odom v. Wayne Cnty.; Tortious interference with employment; Dalley v. Dykema Gossett PLLC; Fraud; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; Whether the individual defendants acted in "good faith"; Kelly-Nevils v. Detroit Receiving Hosp.; Whether their actions were "discretionary" or "ministerial"; Ross v. Consumers Power Co. (On Rehearing); Right result reached for the wrong reason; Coates v. Bastian Bros., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Godbold v. City of Detroit

e-Journal Number: 53691

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

 

The court held that the individual defendants failed to show that they were entitled to immunity from the plaintiff's tortious interference with employment and fraud claims. Plaintiff's allegations supported that defendants did not act in good faith, and they did not present any contrary record evidence to support a finding that they acted in good faith. Thus, the court affirmed the trial court's order denying defendants' motion for summary disposition, which was based, in part, on the ground that plaintiff's claims were barred by governmental immunity. The case arose from plaintiff's employment with the defendant-City. He was formerly a sergeant in charge of the City Police Department's "cold case" unit. "He was assigned to investigate the highly-publicized unsolved murder of exotic dancer Tamara Green, who was linked to an alleged party at the home of former Detroit Mayor Kwame Kilpatrick." Plaintiff alleged that "the individual defendants took various actions that interfered with his investigation of the case, which included disbanding the cold case unit and demoting him by reassigning him to another unit, inducing him to retire." He alleged that, shortly after he retired, the cold case unit was reopened. Plaintiff asserted claims against the individual defendants for intentional interference with his employment and fraudulent inducement. The relevant issues on appeal were "whether defendants acted in good faith and whether their actions were discretionary or ministerial." They did not offer any record evidence to the trial court to support their claim that they were entitled to immunity. They failed to introduce any evidence supporting their assertions made on appeal that they acted in good faith and lacked any intent to harm. In the absence of any contradictory evidence, the trial court was required to accept as true plaintiff's allegations that "defendants' conduct was undertaken for the purpose of interfering with a police homicide investigation and to protect an elected official by covering up information regarding the official's connection to Green." Defendants did not present any evidence showing valid business reasons for their conduct and decision to disband the cold case unit. Thus, the court held that while the basis for the trial court's ruling was erroneous, it properly denied defendants' summary disposition motion.

 

This summary also appears under Business Law

 

Issues: Whether the trial court properly granted defendant-Glassford's motion for summary disposition; Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit; Walsh v. Taylor; MCR 2.116(G)(3)(b); Innocent/negligent misrepresentation claim; Roberts v. Saffell; Unibar Maint. Servs., Inc. v. Saigh; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co.; Breach of fiduciary duty claim; Derderian v. Genesys Health Care Sys.; Fejedelem v. Kasco; Williams v. Polgar; "Fiduciary relationship"; Ulrich v. Federal Land Bank of St. Paul; In re Karmey Estate; Portage Aluminum Co. v. Kentwood Nat'l Bank; Teadt v. Lutheran Church MO Synod; Borrowers Network (BN); Royal Mortgage (RM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: London v. Glassford

e-Journal Number: 53649

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

 

The court held that although defendant-Glassford essentially cited no legal authority in her motion for summary disposition, she did indicate that her defense was that plaintiffs had no real complaints against her where she worked in an administrative capacity only, and plaintiffs had no proof to support any claims they had against her. She also provided undisputed facts and referenced three documents in support of her motion - her affidavit, the complaint, and plaintiff-Jack London's deposition. This evidence presented sufficient support for her motion, so that the trial court did not err in failing to deny it outright based on noncompliance with MRC 2.116(G)(3)(b). In 2004, plaintiffs were advised through a friend of a business opportunity to invest monies in a mortgage pool run by defendant-Shaw. Plaintiffs loaned about $250,000 to defendant-RM, a company owned by Shaw, in two separate transactions in 2004. At least one transaction was governed by a written loan agreement providing for the monthly payment of 11% interest on the loan to plaintiffs. On 5/13/05, plaintiffs made a $300,000 investment into "the 11% pooled mortgage fund" of defendant-BN, another company owned by Shaw, and made yet another $50,000 investment into the same fund of BN. Glassford, who was in charge of running the day to day operations of the companies, signed the written loan agreement governing plaintiffs' loan transactions as well as the certificates confirming plaintiffs' investments in BN. As of 3/08, defendants failed to pay the 11% return on the sums loaned/invested by plaintiffs, and further failed to return the $500,000 initially invested/loaned by plaintiffs. Glassford moved for summary disposition, asserting that she was employed by BN in an administrative capacity only and that plaintiffs' complaint made no specific allegations against her. She pointed out that Jack London admitted that she never made any false representations to him and he did not believe that she owed him any money. Glassford also pointed out that all other defendants were dismissed from the case or were in bankruptcy, and that plaintiffs' business losses had nothing to do with her. The court affirmed the trial court's order granting Glassford summary disposition of plaintiffs' innocent/negligent misrepresentation and breach of fiduciary duty claims.

 

This summary also appears under Oil & Gas

 

Issues: Whether the defendant was entitled to rely on plaintiff's alleged negligence to reduce defendant's liability under the Protection of Underground Facilities Act (PUFA) (MCL 460.701 et seq.) for damaging plaintiff's natural gas pipeline; White v. City of Ann Arbor; MCL 460.707(1); MCL 460.701(1)(a); MCL 460.705(1); MCL 460.708; MCL 460.711; MCL 460.713; MCL 760.14; State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc.; Statutory interpretation; Adair v. State of MI; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Johnson v. Recca; Rule that a court may not read anything into a statute that is not within the Legislature's manifest intent as derived from the act itself; Michigan Educ. Ass'n v. Secretary of State (On Rehearing)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Michigan Consol. Gas Co. v. Kamphuis Pipeline Co.

e-Journal Number: 53714

Judge(s): Per Curiam – Donofrio and Fort Hood; Concurrence - Servitto

 

Because the trial court correctly determined that defendant was not entitled to rely on plaintiff's alleged negligence to reduce defendant's liability under the PUFA for damaging plaintiff's natural gas pipeline, the court affirmed the trial court's order granting plaintiff summary disposition. The material facts were not in dispute. Plaintiff is a public utility that owned and operated a natural gas line in a city. The city retained defendant to construct an underground water main in the area of the gas line. Defendant obtained a MISS-DIG ticket, but did not begin the excavation work until after the ticket expired on 4/13/09. On 4/15/09, the gas line was ruptured during the excavation work. In 8/10, plaintiff filed this negligence action against defendant, seeking reimbursement for its repair of the gas line and other related damages. The court rejected defendant's argument that it should be permitted to reduce plaintiff's damages under MCL 460.714 based on plaintiff's failure to accurately mark the approximate location of the gas line as set forth in MCL 460.705 under an expired MISS-DIG ticket. Although it was undisputed that the gas line was ruptured 14 feet from where it was marked in one direction and 27 feet from where it was marked in another direction, the court held that the trial court did not err by determining that defendant was not entitled to rely on the markings, which were made pursuant to a MISS-DIG ticket that had expired, to limit plaintiff's ability to recover for damages to the gas line. "The unambiguous language of MCL 460.714 limits a public utility's ability to recover damages only if it fails to comply with MCL 460.708." The PUFA contains "a comprehensive scheme that specifies what a person must do in order to trigger a public utility's duties under MCL 460.708. That provision plainly links a public utility's duties to a particular notice served on the public utility with respect to a person's or public agency's commencement of excavation or other activities." Examining the statutory provisions as a whole, the court held that "the only reasonable conclusion is that a person liable for damages under MCL 460.714 cannot rely on the markings provided by a public utility under an expired MISS-DIG ticket to limit the public utility's damages for harm to its underground facilities." Interpreting the limitation on a public utility's ability to recover damages under MCL 460.714 as requiring consideration of either visible conditions of the markings under an expired MISS-DIG ticket or the elapsed time between the expired MISS-DIG ticket and the excavation activities, as defendant suggested, "would contravene the rule of statutory construction that a court may read nothing into a statute that is not within the Legislature's manifest intent as derived from the act itself." MCL 460.714 contains "multiple types of actions or inactions by a person that can trigger the person's liability for harm to a public utility's underground facilities, but it only limits a public utility's ability to recover for damages to its underground facilities based on its failure to comply with MCL 460.708." The circumstances of this case involved a defendant who had no lawful authority under the PUFA to engage in underground activities at the time that it ruptured the gas line.

 

Oil & Gas

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the defendant was entitled to rely on plaintiff's alleged negligence to reduce defendant's liability under the Protection of Underground Facilities Act (PUFA) (MCL 460.701 et seq.) for damaging plaintiff's natural gas pipeline; White v. City of Ann Arbor; MCL 460.707(1); MCL 460.701(1)(a); MCL 460.705(1); MCL 460.708; MCL 460.711; MCL 460.713; MCL 760.14; State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc.; Statutory interpretation; Adair v. State of MI; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Johnson v. Recca; Rule that a court may not read anything into a statute that is not within the Legislature's manifest intent as derived from the act itself; Michigan Educ. Ass'n v. Secretary of State (On Rehearing)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Michigan Consol. Gas Co. v. Kamphuis Pipeline Co.

e-Journal Number: 53714

Judge(s): Per Curiam – Donofrio and Fort Hood; Concurrence - Servitto

 

Because the trial court correctly determined that defendant was not entitled to rely on plaintiff's alleged negligence to reduce defendant's liability under the PUFA for damaging plaintiff's natural gas pipeline, the court affirmed the trial court's order granting plaintiff summary disposition. The material facts were not in dispute. Plaintiff is a public utility that owned and operated a natural gas line in a city. The city retained defendant to construct an underground water main in the area of the gas line. Defendant obtained a MISS-DIG ticket, but did not begin the excavation work until after the ticket expired on 4/13/09. On 4/15/09, the gas line was ruptured during the excavation work. In 8/10, plaintiff filed this negligence action against defendant, seeking reimbursement for its repair of the gas line and other related damages. The court rejected defendant's argument that it should be permitted to reduce plaintiff's damages under MCL 460.714 based on plaintiff's failure to accurately mark the approximate location of the gas line as set forth in MCL 460.705 under an expired MISS-DIG ticket. Although it was undisputed that the gas line was ruptured 14 feet from where it was marked in one direction and 27 feet from where it was marked in another direction, the court held that the trial court did not err by determining that defendant was not entitled to rely on the markings, which were made pursuant to a MISS-DIG ticket that had expired, to limit plaintiff's ability to recover for damages to the gas line. "The unambiguous language of MCL 460.714 limits a public utility's ability to recover damages only if it fails to comply with MCL 460.708." The PUFA contains "a comprehensive scheme that specifies what a person must do in order to trigger a public utility's duties under MCL 460.708. That provision plainly links a public utility's duties to a particular notice served on the public utility with respect to a person's or public agency's commencement of excavation or other activities." Examining the statutory provisions as a whole, the court held that "the only reasonable conclusion is that a person liable for damages under MCL 460.714 cannot rely on the markings provided by a public utility under an expired MISS-DIG ticket to limit the public utility's damages for harm to its underground facilities." Interpreting the limitation on a public utility's ability to recover damages under MCL 460.714 as requiring consideration of either visible conditions of the markings under an expired MISS-DIG ticket or the elapsed time between the expired MISS-DIG ticket and the excavation activities, as defendant suggested, "would contravene the rule of statutory construction that a court may read nothing into a statute that is not within the Legislature's manifest intent as derived from the act itself." MCL 460.714 contains "multiple types of actions or inactions by a person that can trigger the person's liability for harm to a public utility's underground facilities, but it only limits a public utility's ability to recover for damages to its underground facilities based on its failure to comply with MCL 460.708." The circumstances of this case involved a defendant who had no lawful authority under the PUFA to engage in underground activities at the time that it ruptured the gas line.

 

Tax

 

Issues: Whether the payments plaintiff-Proquest received from its clients were "royalties" under the Michigan Single Business Tax Act (the Act) (MCL 208.1 et seq.) (repealed); ONE's Travel Ltd. v. Department of Treasury; MCR 2.116(C)(10); Maiden v. Rozwood; MCL 208.9(7)(c); "Royalty" defined; Mobil Oil Corp. v. Department of Treasury; Applicability of Michigan United Conservation Clubs v. Department of Treasury; Zenith Data Sys. v. Department of Treasury

Court: Michigan Court of Appeals (Unpublished)

Case Name: Proquest Info. & Learning, LLC v. Department of Treasury

e-Journal Number: 53693

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

 

The court held that plaintiff-Proquest's model of licensing content fit within the Act's definition of "royalties," as established by the Michigan Supreme Court. Thus, the trial court correctly determined that Proquest's access fees were royalties, and properly granted summary disposition to Proquest. "Proquest licenses copyrighted content from a wide variety of sources, and then aggregates, organizes, abstracts, and indexes the content in a searchable form." It provides licensed access to both its proprietary content and sources through electronic databases, primarily to libraries and education markets. Proquest has two licensing agreement models. Under either agreement, the licensee's rights are not transferrable and the licensee does not gain any ownership interest in Proquest's product. It protects its proprietary content with trademarks and copyrights. From 1998 to 2007, Proquest categorized the licensing fees as "royalties" under the Act. The defendant-Department audited Proquest in 2007, and asserted that it owed $3,551,323 because the payments it received from its clients in exchange for database access were not "royalties" under the Act. The Department argued that the trial court erred when it concluded that the payments Proquest received from its clients were royalties, and asserted that the trial court followed decisions of the court that misinterpreted this definition. The Department argued that "the definition of royalties involves a 'form requirement' that mandates that the payments be (1) made from proceeds received by the licensee from the transactions involving licensed material, or (2) as a share of the licensed product itself." The Department relied on Michigan United. However, the court held that the trial court correctly determined that Michigan United did not apply to the facts in this case, because this case did not involve a lease of natural resources. The court further held that the trial court correctly determined that Zenith Data applied to the facts presented here. The decision in Zenith Data "did not misapply Mobil Oil because it complied with the parts of the Mobil Oil definition that were not, by their language, applicable only to oil and mining concerns." Under both of its models, Proquest acquired the copyrighted materials from other sources, modified and adapted them, added content such as abstracts, and then redistributed the product as modified. Its agreements provide that Proquest specifically retains its rights in its proprietary product, and protects that product under trademarks and copyright laws. As in Zenith Data, Proquest's clients pay Proquest for the use of its proprietary product connected with the copyrighted content that Proquest licenses from sources. Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(b)(i) and (ii), (g), (j), and (k)(iii); In re Trejo Minors; In re Ellis; In re VanDalen; The child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Evans

e-Journal Number: 53707

Judge(s): Per Curiam – Gleicher, O’Connell, and Murray

 

The court held that the trial court properly terminated both respondent-parents' parental rights to the minor child where the statutory grounds were established by clear and convincing evidence and termination was in the child's best interests. The main factual findings by the trial court were that the minor child was abused, that the abuse resulted in numerous fractures to the child's bones, that both parents were almost exclusively the constant caregivers for him, and that either one or both could have inflicted the injuries, and the other could have prevented them. The evidence supported these findings, as it established that in 3/12, the child, who was eight months old at the time, was brought to the hospital for a fractured arm. A medical examination established he had several injuries, including a new fracture in his left arm and possibly an older fracture in the left arm, three older or healing rib fractures, a shoulder injury, and bruising that indicated bite marks. Dr. M testified that the injuries could not have been caused from the regular handling of a child or an accident such as falling off a couch and that the injuries were consistent with abuse. The evidence was uncontroverted that respondents provided all the care for the child, with very brief exceptions, none of which corresponded to the week before or day that the child was taken to the hospital. There was evidence that respondent-father was rough with the child, but the cause of the child's injuries remained uncertain. Termination of parental rights of both parents is permissible pursuant to §§ 19b(3)(b)(i) and (ii), (g), (j), and (k)(iii) when it is unclear which parent caused the injuries and the evidence shows that the respondent or respondents must have caused or failed to prevent the injuries. The evidence supported the trial court's findings that respondents were the only ones to care for the child, with limited and brief exceptions, and that the child had suffered multiple injuries on at least two occasions. Throughout the case, the actual cause of the child's injuries remained uncertain. On this record, the trial court did not clearly err in terminating parental rights pursuant to §§ 19b(3)(b)(i) and (ii) because at least one respondent caused the child's injuries and the other respondent failed to protect the child. Without knowing the cause of the injuries, and because both respondents failed to comply with the service plan, there was a reasonable likelihood the child would suffer additional injury or abuse if returned to the home. Affirmed.

 

Classifieds

Announcement
Association Desired
Employment AvailableNEW!
Employment Wanted
Event/Seminar
For Sale
Office SpaceNEW!
Public Notice
Referrals
Advertising Marketplace

Fields of Practice

Adoption
ADR
Appellate Practice
Arbitration & Mediation
Attorney Discipline
Business Law
Commercial Litigation
Copyrights
Divorce
Family Law
Federal False Claims
Health Care
Immigration
Intellectual Property
Law Enforcement
Legal Malpractice
Lemon Law
Licensing
Medicare Liens
Patents
Personal Injury
Stockbrokers
Taxation
Trademarks

Disclaimer