• Constitutional Law (1)
• Contracts (2)
• Criminal Law (8)
• Insurance (3)
• Litigation (1)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Real Property (1)
• Termination of Parental Rights (4)

Constitutional Law

 

This summary also appears under Litigation

 

Issues: Order directing the appellants be imprisoned in the county jail until the defendant-Detroit International Bridge Company (DIBC) "fully" complies with the trial court's prior opinion and order; Due process; In re Henry; Whether the trial court acted within its "inherent and statutory powers" in ordering DIBC's "key decision-makers" incarcerated pending DIBC's compliance with its order; MCL 600.611; MCL 600.1711; MCL 600.1715; Porter v. Porter; DeGeorge v. Warheit; In re Contempt of Auto Club Ins. Ass'n; International Union, United Mine Workers of Am. v. Bagwell; Effect of the fact that a corporation may only act through its officers and agents; In re Kennison Sales & Eng'g Co.; Stowe v. Wolverine Metal Specialties Co.; Paul v. University Motor Sales Co.; Wilson v. United States; "Indirect contempt"; MCR 3.606(A); Whether the appellants' imprisonment was a proper use of the civil contempt power; Whether the trial court's order gave the appellants the "keys to their cells"; Borden v. Borden; Hicks ex rel Feiock v. Feiock; People v. Kearns; Jurisdiction; MCR 7.203(A), MCR 7.204, and MCR 7.202(6)(a); Distinguishing "civil contempt" from "criminal contempt"; In re Contempt of Dougherty; MCL 600.308(1) and (2); In re Dudzinski Contempt; In re Contempt of Robertson; A nonparty's right to appeal an adjudication of contempt; United States Catholic Conference v. Abortion Rights Mobilization Inc.; Droomers v. Parnell (Unpub.); Migda v. Maciejewski (Unpub.); Judicial disqualification; Giving opinion immediate effect; MCR 7.215(F)(2)

Court: Michigan Court of Appeals (Published)

Case Name: In re Manuel J. Moroun & Dan Stamper

e-Journal Number: 50839

Judge(s): K.F. Kelly; Concurring in part, Dissenting in part – Wilder; Separately Concurring in part, Dissenting in part – Fort Hood

 

The court held that appellants-Moroun and Stamper's due process rights were not violated and that the trial court "was clearly acting within its inherent and statutory powers" in ordering defendant-DIBC's "key decision-makers incarcerated pending DIBC's compliance with the trial court's order." However, the court concluded that the commitment order requiring "full" compliance could not stand because the appellants did not have the immediate ability to completely finish construction and thus, "purge" DIBC of its civil contempt. Since the contempt order did not give the appellants the "keys to the jailhouse," the court vacated that portion of the order that continued incarceration until DIBC "fully complied" and remanded the case to the trial court. The underlying case arose from the "Ambassador Bridge Gateway Project," which involves constructing interstate freeway connections to the Bridge.  DIBC owns and operates the Bridge. Stamper is DIBC's president and "extensively involved in the operation and construction activities at the Bridge and in defense of this lawsuit." Maroun has a living trust that is a minority shareholder of DIBC Holdings, which owns DIBC. He is also a director on the boards for DIBC and DIBC Holdings. The appellants appealed the trial court's order directing they be imprisoned in the county jail until DIBC fully complied with the trial court's 2/1/10 opinion and order. That order directed DIBC, inter alia, to "remove structures that have been constructed in the path of the access road and recorded easement and complete construction of its portion of the Gateway Project in accordance with the plans attached to the Performance Bond and the Maintenance Agreement." The trial court found DIBC in civil contempt on 11/3/11 for failing to comply with the order. While a corporation is a separate entity from its individual shareholders and directors, a corporation may only act through its officers and agents. "Because individuals who are officially responsible for the conduct of a corporation's affairs are required to obey a court order directed at the corporation, these same individuals may be sanctioned if they fail to take appropriate action within their power to ensure that the corporation complies with the court order." Thus, the court rejected appellants' claim that they may not be held accountable for failing to ensure that DIBC complied with the trial court's order. The court also held that "Moroun was provided notice that he could be subjected to being sanctioned as a coercive sanction for DIBC's contempt, and an opportunity to be heard on the matter." The 11/3/11 opinion and order affirmatively discussed the possible civil contempt sanctions, including imprisonment, and directed him to appear at the sanction hearing. The court determined that his unsuccessful motion to be excused from the hearing was "an attempt to avoid the possibility that he could be subject to being sanctioned for DIBC's civil contempt." As to Stamper, "he was listed on the show cause order, was present throughout the contempt hearings, and actively participated in DIBC's defense." He was previously imprisoned for DIBC's civil contempt. Since there was no dispute as to his authority over DIBC and the project, the court found that Stamper "had notice that he could be subjected to incarceration as a coercive sanction for DIBC's civil contempt, and was provided an opportunity to be heard on the matter." The court instructed the trial court on remand to "craft an order, with particularity, of what ‘act or duty' appellants are required to perform both to ensure that DIBC will begin and continue compliance" with the 2/1/10 order and "enabling appellants to purge themselves of the contempt finding against DIBC."

 

Contracts

 

This summary also appears under Insurance

 

Issues: Breach of contract and negligent misrepresentation claims arising from a "stop loss" insurance policy for a self-insured employee benefit plan; Whether defendant-American Fidelity Assurance (AFA) was "vicariously liable" for defendant-Group Health Managers' (GHM) actions on the basis GHM was AFA's agent; Genesee Foods Servs., Inc. v. Meadowbrook, Inc.; West Am. Ins. Co. v. Meridian Mut. Ins. Co.; An "independent" insurance agent; Mate v. Wolverine Mut. Ins. Co.; King v. State; Whether AFA made a "material misrepresentation"; Roberts v. Saffell; MCL 500.1208a; Whether the disclosure statement was incorporated by reference into the policy; Contract interpretation; Old Kent Bank v. Sobczak; Wilkie v. Auto-Owners Ins. Co.; Forge v. Smith; Effect of the fact the disclosure statement was not physically attached to the policy; Whether "reasonable inquiry" excused the plaintiff-Church from disclosing all required individuals; Whether rescission was an appropriate remedy; Omnicom of MI v. Giannetti Inv. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Evangelical Presbyterian Church v. American Fid. Assurance Co.

e-Journal Number: 50635

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

 

Holding, inter alia, that the evidence showed defendant-GHM was an independent insurance agent and that the disclosure statement was incorporated by reference into the stop loss policy at issue, the court affirmed the trial court's order granting defendant-AFA summary disposition in this breach of contract and negligent misrepresentation action. The plaintiff-Church has a partially self-insured employee benefit plan. Thus, "it pays claims up to a certain amount out of its own funds, and then purchases stop loss insurance for claims in excess of that amount." G was the Church's "stated clerk" and had supervisory responsibility over its benefits administration from 2001-2006. The Church hired GHM for several years to shop for its stop loss coverage. GHM would advise G of companies offering stop loss insurance "and help guide the Church through the application process, including the completion of a disclosure statement." AFA's underwriter sent GHM a renewal summary for the Church's stop loss policy for the proposed policy period of 1/1/06-12/31/06. The renewal summary required the Church to complete a disclosure statement. The renewal summary offered two options. The Church elected option one and G signed the renewal summary as accepted. The disclosure statement disclosed plan member (PM) one and PM two, and was signed by G. Later, GHM, on the Church's behalf, sent requests for reimbursement for PM three and PM four. The claims were denied. The denial letters stated that neither PM three nor PM four were listed on the disclosure statement as required. The Church filed this suit, asserting claims against AFA, GHM, and another defendant. On appeal, the Church argued, inter alia, that the trial court erred in dismissing its negligent misrepresentation claim against AFA based on the allegation that AFA was vicariously liable for GHM's actions because GHM was AFA's agent. The court noted that an "insurance agent is considered independent if they are able to 'place insurance with various companies.'" While the Church asserted that GHM was AFA's agent through the renewal process, G testified that "GHM was working on the Church's behalf and GHM's role was to provide him with information from various companies offering stop loss coverage and help guide the Church through the application process, including the completion of a disclosure statement." Further, the evidence showed that the Church was aware that AFA considered GHM the Church's agent. The court concluded that the Church's argument that GHM was AFA's agent had no merit. The Church also contended that the disclosure statement was not incorporated by reference into the policy and it was not required that the disclosure statement be accurate. The court disagreed. The disclosure statement referenced the stop loss policy and stated that before an excess policy would be issued, the Church had to disclose the details of all "Covered Persons" who met stated criteria. The stop loss policy in turn referenced the disclosure statement. "The non-disclosed losses provision advises that benefits would not be paid if the Church failed to disclose required information." Thus, because the policy and the disclosure statement referenced each other, the court concluded that the evidence supported that the disclosure statement was incorporated by reference into the policy.

 

This summary also appears under Real Property

 

Issues: Contract dispute surrounding the purchase of a condo unit; Whether the district court correctly interpreted provisions of the Interstate Land Sales Full Disclosure Act (ILSFDA) (15 USC § 1701 et seq.) under which the plaintiffs brought an action to rescind their purchase agreement; Jones v. Muskegon Cnty.; Exercise of supplemental jurisdiction; Gamel v. City of Cincinnati; Whether plaintiffs' rescission claim under § 1703(c), was untimely; Effect of defendant-Bridgewater's failure to include notice of their right to rescind in the purchase agreement; Winter v. Hollingsworth Props., Inc. (11th Cir.); § 1703(a)(1)(B); §§ 1709(a) and (b); § 1711; Jankus v. Edge Investors, L.P. (SD FL) (Jankus I and II); § 1711(b); Taylor v. Holiday Isle, LLC (SD AL); Giving effect to every clause and word in a statute; American Civil Liberties Union v. National Sec. Agency; Whether the district court properly dismissed the plaintiffs' entire ILSFDA claim; Whether the district court should have analyzed their entitlement to equitable relief under § 1709; Gentry v. Harborage Cottages-Stuart, LLLP (11th Cir.); Whether the plaintiffs adequately proved their entitlement to equitable rescission; Damages; The "election of remedies" affirmative defense; Bagwell v. Susman; Guy James Constr. Co. v. Trinity Indus., Inc. (5th Cir.); Kuhl v. Hayes (10th Cir.); Waiver; Whether there were allegations pleaded and proof offered that Bridgewater's ILSFDA violations caused the plaintiffs' damages; Dismissal of plaintiffs' Michigan Condo Act claim and Bridgewater's cross-claim for breach of contract; 28 USC §§ 1367(a) and (c)(3); Campanella v. Commerce Exch. Bank; Supplemental jurisdiction; § 1367(c); Whether the district court properly awarded Bridgewater the plaintiffs' cash deposit

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Veneklase v. Bridgewater Condos, L.C.

e-Journal Number: 50838

Judge(s): Gibbons, Clay, and White

 

In an issue of first impression, the court adopted the construction outlined in Holiday Isle, which gives effect to both § 1703(c)'s two-year limit and § 1711's three-year statute of limitations. The court held that a purchaser or lessee must comply with both § 1703(c)'s two-year limit for exercising the right of rescission and § 1711(b)'s three-year limit for filing suit based on the seller's refusal to honor the buyer's rescission. Thus, the court concluded, inter alia, that the district court properly ruled that the plaintiffs' claim for rescission under §1703(c) was untimely, where it was exercised more than two years after the date on which the purchase agreement was signed. However, the court also held that equitable rescission is available as a remedy under § 1709 even when the buyer did not timely rescind the purchase agreement under § 1703, and remanded the case for the district court to determine whether plaintiffs were entitled to equitable rescission under §§ 1709(a) and (b). The plaintiffs entered into an agreement with defendant-Bridgewater for the purchase of unit 79 in a condo project. They argued that the district court incorrectly interpreted provisions of the ILSFDA under which they brought an action to rescind their purchase agreement. Plaintiffs claimed that Bridgewater's failure to include notice of their right to rescind in the purchase agreement extended the period during which they could rescind under § 1703(c) until two years after the disclosure was correctly made. They contended that since the disclosure was never made, they timely rescinded the purchase agreement in 3/09. Bridgewater urged the court to endorse the district court's interpretation - that ILSFDA § 1703(c) allows a purchaser to rescind only within two years of signing a purchase agreement and a purchaser has an additional third year within which to bring suit, consistent with § 1711, if the developer or seller refuses to honor the rescission. Bridgewater argued that the statutory two-year period runs from the date the purchase agreement is signed, regardless of whether or not the agreement contained a recital of the purchaser's right to rescind within two years, as required by § 1703(c). The court found the analysis of Holiday Isle persuasive. By its plain language, "§ 1703(c) allows a buyer who is not provided with the required property report two years from the date of signing within which to rescind the agreement." The court held that nothing in § 1703(c)'s language indicates that a developer's failure to provide the required property report "obviates, tolls or extends the two-year deadline for rescission." Plaintiffs' proposed construction - that Bridgewater's failure to include notice of their right to rescind in the purchase agreement extends the period in which they could rescind under § 1703(c) until two years after the disclosure was correctly made - would not give effect to the clause of § 1703(c) establishing a two-year window from the date of signing within which the buyer must exercise the rescission right. Such a construction would contravene the principle that the courts are "required to give effect, if possible, to every clause and word of a statute." Plaintiffs also argued that the district court erred in dismissing their entire ILSFDA claim without considering their entitlement to equitable rescission under § 1709. The court concluded that the "plain language of ILSFDA §§ 1709(a) and (b) allow the district court to award any equitable relief it deems appropriate based on plaintiff's proof - not any equitable relief save rescission." Affirmed in part, reversed in part, and remanded.

 

Criminal Law

 

Issues: Sufficiency of the evidence to establish that the respondent-juvenile was responsible for committing the offense (CSC III); People v. Martin; People v. Cline; Identity; People v Yost; People v. Davis; Ineffective assistance of counsel for failure to investigate and present his alibi defense and to inform respondent of his right to testify on his own behalf; People v. Williams; People v. LeBlanc; Strickland v. Washington; People v. Kelly; A "substantial defense"; In re Ayres; People v. Payne; People v. Harris

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Kersey

e-Journal Number: 50650

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

 

Concluding that sufficient evidence supported the finding that the respondent-juvenile was responsible for committing sexual penetration with a person at least 13 but less than 16 years old and he was not denied the effective assistance of counsel, the court affirmed his adjudication of responsibility for committing CSC III. K, 15 years old, was visiting her mother's home for the summer when she and several female friends encountered several teenage males walking in the neighborhood. K spoke to one of them, whom she identified as "Eric" for a few minutes, then followed him to a house where she remained on the front porch, but continued to talk to him through a screen door. She was then pushed into the home from behind. K testified that both Eric and respondent kissed her while she was in the home, and both forcibly shoved their penises into her mouth. "Although admittedly the police did not investigate respondent's alibi or find other witnesses who could have testified that he was present on the day in question," the prosecution presented the testimony of K and her friend, who had both met respondent before that day and knew him by name. There was no doubt in K's mind that respondent forced his penis into her mouth. Further, her friend, who had previously met respondent, testified that she saw respondent downstairs in the house with K and upstairs sitting on top of K.

 

Issues: Whether the trial court should have given the jury a specific unanimity instruction; People v. Gadomski; People v. Grayer; People v. Cooks; People v. Yarger; People v. Pottruff; Ineffective assistance of counsel; People v. Musser; People v. Snider; People v. Garza; Matters of trial strategy; People v. Rockey; People v. Dixon; Sufficiency of the evidence to support the defendant's CSC IV conviction; People v. Solmonson; People v. Drohan

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Fields

e-Journal Number: 50652

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

 

The court held that the defendant failed to show that the trial court committed plain error by not providing the jury a specific unanimity instruction. Defendant worked as a massage therapist for a nail studio. The victim came to the studio to receive a massage. She testified that during the course of the massage, defendant, without warning or her permission, pulled down her underwear and briefly rubbed her upper genital area. He also touched her breast. The victim told defendant that what he had done was inappropriate, and he apologized. Then, she paid for the massage and left. She reported the incident to the police. During their investigation, the police recorded a telephone conversation between the victim and defendant in which he admitted that he was attracted to her and apologized for his "inappropriate" behavior. He said that he was "very ashamed." The jury listened to the recorded telephone call. The prosecution charged defendant with two separate counts of CSC IV - Count I, touching the victim's genital area and Count II, touching the victim's left breast. The jury found defendant guilty of Count I, but not guilty of Count II. He argued that the trial court was required to give a specific unanimity instruction that instructed the jury that it must unanimously agree on at least one of the prosecution's two theories of force or coercion. The court noted that unlike Yarger or Pottruff, the prosecution here did not offer evidence of multiple acts of sexual contact by defendant in order to prove the actus reus of a single count of CSC. While the prosecution offered evidence that defendant committed two different acts of sexual contact, it separated these two acts into two distinct charges. "By separating the two alleged acts of sexual contact into two separate charges and instructing the jury accordingly, the trial court precluded the danger that a guilty verdict on Count I would not be based on a unanimous finding that defendant committed the actus reus of touching the victim's genital area." Further, defendant based his argument on the prosecution's use of multiple theories of force or coercion. "But the prosecution's use of multiple theories does not require a specific unanimity instruction." Affirmed.

 

Issues: Double jeopardy; Whether the defendant's assault with intent to rob while armed and felonious assault convictions (in addition to her armed robbery conviction) violated her double jeopardy protections; People v. Garland; People v. Nutt; People v. Bobby Smith; The protection against multiple punishments for the same offense; People v. Ford; People v. Fox (After Remand); Blockburger v. United States; The elements of armed robbery; People v. Chambers; The elements of assault with intent to rob while armed; People v. Akins; People v. Jones; The elements of felonious assault; People v. Avant; People v. Brown

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gress

e-Journal Number: 50644

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

 

Holding that armed robbery and assault with intent to rob while armed are not the same offense, the court concluded that the defendant did not show a violation of her double jeopardy rights. Defendant argued that her convictions of assault with intent to rob while armed and felonious assault, in addition to the armed robbery conviction, violated double jeopardy. "The statutes at issue, MCL 750.529 (armed robbery), MCL 750.89 (assault with intent to rob while armed), and MCL 750.82 (felonious assault) do not contain any language indicating that multiple punishments either were or were not intended." Thus, it was proper to consider the elements of the offenses. In Chambers, the court held that convictions of armed robbery and felonious assault are not precluded by double jeopardy in an incident involving a single victim "because they are not the ‘same offense' given that . . . each offense has an element that is not required for the other." Specifically, "armed robbery requires proof of an element not required to establish a felonious assault, i.e., actions in the course of committing a larceny," while "felonious assault require[s] proof of an element not required to establish an armed robbery, i.e., the use of a dangerous weapon." Armed robbery requires that the defendant be engaged in the course of committing (or attempting to commit) a larceny, while "assault with intent to rob while armed requires only that the defendant have the intent to commit a larceny, not that she act on that intent. Further, assault with intent to rob while armed requires that the defendant actually be armed with a real or feigned dangerous weapon," while armed robbery does not - "the simple representation that the defendant has a weapon is sufficient." Affirmed.

 

Issues: "Other acts" evidence; MRE 404(b); People v. Katt; Admissibility of a defendant's threat against a witness; People v. Sholl; People v. Solmonson; People v. Schaw; MRE 801(d)(2); MRE 403; People v. Crawford; Whether the defendant's Confrontation Clause rights were violated by a police officer's testimony that her investigation included a witness who did not actually see the shooting; People v. Chambers; Davis v. Washington; Waiver; People v. McPherson; Plain error review; People v. Carines; Whether the trial court should have sua sponte declared a mistrial when evidence that defendant committed two uncharged murders was admitted at trial; People v. Knapp; Presumption that jurors follow their instructions; People v. Graves; Prosecutorial misconduct; People v. Brown; People v. Nantelle; People v. Thomas; People v. Blackmon; Comments in closing and rebuttal arguments; People v. Bahoda; Whether the prosecutor vouched for the eyewitness's credibility; People v. McElhaney; Whether the prosecutor voiced a personal belief that the defense witnesses were not credible; People v. Swartz; People v. Truong; Whether the prosecutor mentioned facts not in evidence; People v. Watson; People v. Mette; Ineffective assistance of counsel; People v. Matuszak; People v. Unger; People v. Davis; Strickland v. Washington; People v. Grant; Failure to request a jury instruction defining "great bodily harm" for purposes of second-degree murder; People v. Martin; Matters of trial strategy; People v. Rice; People v. Rockey; Failure to call a particular witness; People v. Seals; Cumulative error; People v. Hill; People v. Dobek

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jackson

e-Journal Number: 50631

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

 

Rejecting the defendant's claim that evidence relating to his conduct toward the only eyewitness to the shooting was improperly admitted "other acts" evidence, the court affirmed his second-degree murder, felon in possession, and felony-firearm convictions. "Defendant was alleged to have verbally threatened the eyewitness regarding any attempt on her part to reveal her knowledge of the murder to the police." There was also evidence that the eyewitness was the victim of several crimes perpetrated by defendant or his friends, including arson, breaking and entering, several assaults, and unarmed robbery. Defendant argued that this evidence was impermissible character evidence. However, the court concluded that evidence of defendant's threatening behavior and statements was not admitted to show his bad character, "but was offered to illustrate that defendant was attempting to frighten the eyewitness into not reporting the victim's murder." The court noted that the eyewitness delayed reporting the crime "for a significant period of time and that delay begged for explanation . . . ." A defendant's threat against a witness is generally admissible since it is conduct that can show consciousness of guilt. "Facts regarding a defendant's demeanor, nonresponsive conduct, and statements can be properly admitted as evidence of consciousness of guilt." The eyewitness's testimony, and that of police officers and a fire investigator responding to the crimes, was offered to prove that defendant used threats and violence as a way of intimidating the eyewitness into not testifying, showing defendant's consciousness of guilt. Since he specifically threatened that his friends would burn down the eyewitness's house if he was in jail for the victim's murder, "the behavior of third parties became relevant to defendant's threats and consciousness of guilt." Defendant failed to cite any case law stating that evidence of a defendant's threats, admitted to prove his consciousness of guilt, must comply with the requirements of MRE 404(b). Further, the court held in Schaw that evidence of the defendant's threats showing consciousness of guilt is admissible under MRE 801(d)(2). Further, the court concluded that any prejudicial effect of the challenged evidence did not outweigh its probative value. Evidence of defendant's threatening behavior was highly relevant in this case, and it "did not amount to an overwhelming amount of evidence with explicit details that would cause a reasonable jury to give it preemptive weight." Admission of this evidence was not plain error.

 

Issues: Admission of a video recording of an interview of the defendant's son; People v. Feezel; People v. Williams; MRE 803(5) ("past recollection recorded" hearsay exception); People v. Daniels; People v. Missias; Expert testimony; MRE 702; Gilbert v. DaimlerChrysler Corp.; Spect Imaging, Inc v. Allstate Ins Co.; Importance of whether expert testimony is based on published peer-reviewed literature; Edry v. Adelman; Ineffective assistance of counsel; People v. Grant; Failure to investigate and call witnesses; People v. McGhee; People v. Caballero; Failure to retain an expert to rebut the prosecution's expert testimony; People v. Payne; Failure to object to allegedly irrelevant and prejudicial evidence; People v. Moorer; People v. Sherman-Huffman; People v. Ullah; Failure to request a jury instruction on second-degree child abuse or to object to the jury instructions as given; People v. Maynor; The trial court's denial of defendant's motion for an evidentiary hearing on her ineffective assistance of counsel claim; People v. Ginther; People v. Sabin (On Second Remand); Sentencing; Scoring of OV 7; People v. Steele; "Excessive brutality"; People v. Wilson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. James

e-Journal Number: 50616

Judge(s): Per Curiam – Murphy, Fitzgerald, and Meter

 

Holding, inter alia, that the foundational requirements of MRE 803(5) were satisfied and the trial court properly admitted the video recording of an interview of the defendant's son, the court affirmed defendant's first-degree child abuse conviction. Defendant adopted the four-year old victim. "Shortly after the adoption, the victim began urinating and defecating in the house." The victim sustained a severe brain injury that required immediate surgery to prevent death. "She had other markings on her body indicative of abuse including grip marks on her upper arm, marks indicative of defensive bruising, and several hyper pigmented marks on her legs and buttocks that appeared to have been made with a looped belt or cord. Hair had also been pulled from three different locations on her head." Defendant told police that she sent the victim upstairs to wash her hands and later heard a noise. She stated that she found the unresponsive victim lying on the floor near the sink. The faucet was running and a stool was turned over. Defendant later told an officer that she pushed the victim while in the garage earlier that day and the victim might have hit her head on a step. She also asserted that the victim had fallen down the stairs and hit her head a few days earlier. "The victim's adopted sister and defendant's biological son recounted other instances of defendant's inappropriate conduct and abuse. The sister testified that all the children received 'whoopings' with a belt and that the victim was punished 'every day.'" She testified that the victim had to stand and eat at the dinner table and that she slept on the floor because she wet the bed. "She also said that the children had to do the 'motorcycle' and the 'cockroach,' which she described as painful positions that they were required to hold." She said that she once heard, but did not see, defendant push the victim down. In the videotaped interview, defendant's son "described spankings he received from defendant while using a belt and a spatula and stated that the victim 'got spankings all the time.' He stated that defendant yelled at the victim, that she received 'spankings' on her face, and that she was required to stand at the table because she urinated on the chairs." He also described the "motorcycle" and the "cockroach" and said that all the children received this punishment. Further, he claimed that defendant threw the victim to the floor "lots of times." Defendant argued, inter alia, that the foundational requirements for admitting the video recording were not met because her son did not show a lack of recollection as to all of the subjects he spoke about. The court disagreed. "MRE 803(5) does not require proof that a witness is totally unable to recall a document's contents, but only that he 'now has insufficient recollection to enable him to testify fully and accurately.'" The court noted that the statements concerned events that defendant's son personally witnessed. "He recalled talking to the detective but claimed he did not recall the substance of the testimony. The statement was not prepared by someone else but was his own video recorded statement. His testimony that he did not remember the 'motorcycle' and 'cockroach' rendered him unable to testify fully and accurately as to punishments suffered in his home." The court held that the trial court's statement to the effect that it believed defendant's son was unwilling to testify did "not nullify this finding as the foundational requirements were met." The court also affirmed defendant's sentence.

 

Issues: Right of confrontation; Admission of a recording of the defendant's confession to a fellow inmate (who was unavailable as a witness at the trial); People v. Dinardo; People v. Chambers; Crawford v. Washington; People v. Fackelman; "Testimonial" statements; People v. Lewis (On Remand); Nontestimonial statements; People v. Taylor; Evidence of threats made to witnesses; Prosecutorial misconduct; People v. Unger; People v. Cox; People v. Noble; People v. Walker; People v. Kelly; Plain error review; People v. Carines; People v. Callon; Ineffective assistance of counsel; People v. Mack; People v. Frazier; People v. Solmonson; Reference to defendant's prior conviction; Whether defendant was denied a fair and impartial trial; Whether the trial court should have held a separate hearing on or excluded information in defendant's PSIR; People v. Spanke; People v. Ratkov (After Remand); People v. Lucey

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Maggart

e-Journal Number: 50614

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

 

Holding, inter alia, that the Confrontation Clause was not implicated by the admission of the recording of the defendant's confession to a fellow inmate (S), the court affirmed defendant's arson of real property and placing explosives near property convictions. The case arose from the arson of a portable classroom building. The fire investigator determined that the fire was intentionally set by means of an incendiary device. Defendant confessed to the crime in a conversation with S, who wore a recording device during the conversation. Defendant also confessed to starting the fire to several other people. S was unavailable as a witness at the trial. The court noted that there was no indication that S's statements in the recording were testimonial or used for the truth of the matter asserted. S's recorded statements were not evidence. Rather, they only provided meaning to defendant's responses. Defendant's appellate argument focused on the harms resulting from not being able to confront one's accusers, but he failed to explain how questions by S, not used as evidence against defendant, implicated the Confrontation Clause. Defendant also argued that the prosecutor committed misconduct by asking witnesses if they were threatened by defendant or were fearful of testifying against him. The prosecutor asked a witness (B), inter alia, if he was "scared" to testify. The court noted that the prosecutor questioned B in this manner in response to B's "evasive and hesitant answers to the prosecutor's questions." While B initially told the police that defendant told him that he committed the crime, at trial B testified that he could no longer recall what actually happened. The court noted that Kelly had a similar fact pattern. As in Kelly, the prosecutor was properly given an opportunity to explain to the jury why B's testimony was inconsistent with his prior police statements and his preliminary examination testimony. Since the issue of whether B felt threatened by defendant touched on B's credibility, the court held that the prosecutor's questions were proper and relevant. While defendant also challenged testimony given by another witness, R, the court noted that R's comments were in response to defense counsel's questioning. Further, as with B, R's testimony provided an explanation for his inconsistency. The court also concluded that even if B's or R's testimony as to defendant's alleged threats was improper, defendant could not show that he was prejudiced. The other evidence against him was strong, especially his confessions to several people that he committed the crime and his taped confession.

 

Issues: Denial of the defendant's motion for a mistrial; People v. Dennis; Right of confrontation; People v. Fackelman; People v. Chambers; "Hearsay"; Harmless error; People v. Shepherd; Presumption that the jury follows its instructions; People v. Abraham; Motion for a new trial; People v. Unger; People v. Lacalamita; "Possession" with the intent to deliver 50 grams or more but less than 450 grams of cocaine; People v. Johnson; People v. Nunez; People v. McKinney; Circumstantial evidence and reasonable inferences; People v. McGhee; "Mere presence"; People v. Echavarria; People v. Hardiman; Sufficiency of the evidence to support defendant's conviction; People v. Martin; People v. Wolfe; People v. Nowack; People v. Terry; Confidential informant (CI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Marshall

e-Journal Number: 50637

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

 

The court held that while a police officer's (K) testimony about a CI's identification of defendant as the person who sold the CI cocaine during the "controlled buy" was hearsay and violated defendant's right to confront all witnesses against him, the error was harmless and the trial court did not err in denying defendant's motion for a mistrial. The case arose from the execution of a search warrant at a residence. About 24 hours before the warrant was executed, K used the CI to make a controlled buy from the residence. The CI purchased crack cocaine and gave K the seller's name and physical description. K then used the information to obtain the search warrant for the residence. Defendant was in the residence when the warrant was executed and he was arrested. K testified that the CI described the individual who sold him the cocaine during the controlled buy, and after confirming the identity of the seller with the CI, K sought a search warrant. The court noted that "this information would not constitute hearsay as it provided background information regarding" K's decision to seek a search warrant for the residence. However, K's testimony that he was looking for defendant when executing the search warrant did constitute hearsay, since it was based on the CI's out-of-court statements to K that defendant was the seller of the cocaine during the controlled buy. The search warrant did not include defendant as a subject of the warrant. The record showed that K was looking for defendant only because the CI identified him as the seller. The court rejected the prosecution's claim that the testimony established why K sought the search warrant or showed the effect of the CI's out-of-court statements on K. Rather, the court concluded that the purpose of the testimony was to establish defendant as the individual identified by the CI as the seller in the controlled buy. Thus, K's statement that he was looking for defendant in executing the search warrant constituted inadmissible hearsay and violated defendant's right of confrontation. However, the court held that the error was harmless because the jury verdict would have been the same without the error since the prosecution presented evidence beyond K's hearsay statement that defendant was guilty of possession with the intent to deliver 50 grams or more but less than 450 grams of cocaine. Further, the trial court instructed the jury to disregard K's answer. Jurors are presumed to follow their instructions. The court affirmed defendant's conviction. 

 

Issues: Motion for a new trial on the basis that the verdict was against the great weight of the evidence; People v. Bennett; MCR 2.611(A)(1)(e); People v. Brown; People v. Lacalamita; People v. Lemmon; People v. Roper; Motion for a Ginther hearing; People v. Unger; People v. Williams; Ineffective assistance of counsel; People v. Jordan; People v. LeBlanc; Smith v. Spisak; People v. Payne; Claim that defense counsel should have introduced the victim's 911 call for impeachment purposes; Failure to object to an officer's testimony; Whether defense counsel violated defendant's Fifth Amendment right not to testify by promising the jury in his opening statement that defendant would testify; Robinson v. United States (ED MI); People v. Gillam; Motion for a directed verdict; People v. Martin; Evidence required to sustain a conviction for felonious assault; People v. Chambers; "Assault"; People v. Milton; Evidence needed to sustain a felony-firearm conviction; People v. Akins

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Roddy

e-Journal Number: 50639

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

 

Holding, inter alia, that the trial court did not abuse its discretion in denying the defendant's motion for a new trial based on the great weight of the evidence where his argument for a new trial rested almost entirely on disagreement with the jury's credibility determinations, the court affirmed his felonious assault and felony-firearm convictions. The case arose from a driving confrontation. Defendant claimed that the victim's (M) testimony was incredible because M testified that he "always" drives the speed limit, while defendant's testimony was very credible due to "his character and background as a veteran, Ford employee, and family man." The court first noted that it was unclear why M's testimony that he "always" drives the speed limit made him incredible. "Second, the jurors were made aware of defendant's background in the military, his firearms expertise and experience, his employment with Ford, and his family situation." However, they chose to believe M's version of events. The jury's decision to believe M and not defendant "was not so contrary to reason or undisputed facts to warrant overriding the jury's decision and granting defendant a new trial." The court concluded that M's "testimony was clear, consistent, and detailed." His testimony was also corroborated by an officer's (D) testimony. M's description of the gun defendant pointed at him matched the gun recovered from defendant's center console. Defendant also argued, related to his great weight of the evidence claim, that his trial counsel erred by failing to object to D's hearsay testimony, failing to introduce the tape of M's 911 call, and violated his Fifth Amendment right not to testify. However, those issues were not relevant to his great weight of the evidence claim. The evidence consisted almost entirely of M's and defendant's testimony. The court held that in light of "the great deference given to the jury's credibility determinations," the trial court did not abuse its discretion "when it refused to override those determinations by granting defendant a new trial." Further, the trial court properly denied defendant's motion for a directed verdict. The court held that "there was sufficient evidence for a rational fact finder to conclude that the prosecution proved each element of defendant's felonious assault and felony-firearm convictions beyond a reasonable doubt." M testified that defendant pulled up next to him and pointed a gun at him. M stated that he was scared, nervous, and feared for his life. "This reaction was reasonable; most people would fear for their life if a gun was pointed at them."

 

Insurance

 

This summary also appears under Contracts

 

Issues: Breach of contract and negligent misrepresentation claims arising from a "stop loss" insurance policy for a self-insured employee benefit plan; Whether defendant-American Fidelity Assurance (AFA) was "vicariously liable" for defendant-Group Health Managers' (GHM) actions on the basis GHM was AFA's agent; Genesee Foods Servs., Inc. v. Meadowbrook, Inc.; West Am. Ins. Co. v. Meridian Mut. Ins. Co.; An "independent" insurance agent; Mate v. Wolverine Mut. Ins. Co.; King v. State; Whether AFA made a "material misrepresentation"; Roberts v. Saffell; MCL 500.1208a; Whether the disclosure statement was incorporated by reference into the policy; Contract interpretation; Old Kent Bank v. Sobczak; Wilkie v. Auto-Owners Ins. Co.; Forge v. Smith; Effect of the fact the disclosure statement was not physically attached to the policy; Whether "reasonable inquiry" excused the plaintiff-Church from disclosing all required individuals; Whether rescission was an appropriate remedy; Omnicom of MI v. Giannetti Inv. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Evangelical Presbyterian Church v. American Fid. Assurance Co.

e-Journal Number: 50635

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

 

Holding, inter alia, that the evidence showed defendant-GHM was an independent insurance agent and that the disclosure statement was incorporated by reference into the stop loss policy at issue, the court affirmed the trial court's order granting defendant-AFA summary disposition in this breach of contract and negligent misrepresentation action. The plaintiff-Church has a partially self-insured employee benefit plan. Thus, "it pays claims up to a certain amount out of its own funds, and then purchases stop loss insurance for claims in excess of that amount." G was the Church's "stated clerk" and had supervisory responsibility over its benefits administration from 2001-2006. The Church hired GHM for several years to shop for its stop loss coverage. GHM would advise G of companies offering stop loss insurance "and help guide the Church through the application process, including the completion of a disclosure statement." AFA's underwriter sent GHM a renewal summary for the Church's stop loss policy for the proposed policy period of 1/1/06-12/31/06. The renewal summary required the Church to complete a disclosure statement. The renewal summary offered two options. The Church elected option one and G signed the renewal summary as accepted. The disclosure statement disclosed plan member (PM) one and PM two, and was signed by G. Later, GHM, on the Church's behalf, sent requests for reimbursement for PM three and PM four. The claims were denied. The denial letters stated that neither PM three nor PM four were listed on the disclosure statement as required. The Church filed this suit, asserting claims against AFA, GHM, and another defendant. On appeal, the Church argued, inter alia, that the trial court erred in dismissing its negligent misrepresentation claim against AFA based on the allegation that AFA was vicariously liable for GHM's actions because GHM was AFA's agent. The court noted that an "insurance agent is considered independent if they are able to 'place insurance with various companies.'" While the Church asserted that GHM was AFA's agent through the renewal process, G testified that "GHM was working on the Church's behalf and GHM's role was to provide him with information from various companies offering stop loss coverage and help guide the Church through the application process, including the completion of a disclosure statement." Further, the evidence showed that the Church was aware that AFA considered GHM the Church's agent. The court concluded that the Church's argument that GHM was AFA's agent had no merit. The Church also contended that the disclosure statement was not incorporated by reference into the policy and it was not required that the disclosure statement be accurate. The court disagreed. The disclosure statement referenced the stop loss policy and stated that before an excess policy would be issued, the Church had to disclose the details of all "Covered Persons" who met stated criteria. The stop loss policy in turn referenced the disclosure statement. "The non-disclosed losses provision advises that benefits would not be paid if the Church failed to disclose required information." Thus, because the policy and the disclosure statement referenced each other, the court concluded that the evidence supported that the disclosure statement was incorporated by reference into the policy.

 

Issues: Whether the "your work" exclusions in the insurance policy precluded coverage for the property damage to the plaintiff-insured's customers' lawns; Insurance policy interpretation; Century Sur. Co. v. Charron; Effect of the "herbicide endorsement"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Looking Good Lawns, LLC v. Secura Ins. Co.

e-Journal Number: 50620

Judge(s): Per Curiam – Murphy, Fitzgerald, and Meter

 

Holding that the exclusionary language in the policy at issue barred recovery of insurance proceeds for the plaintiff-insured's actions of inadvertently spraying customers' lawns with non-selective herbicide, the court affirmed the trial court's order granting the defendant-insurer summary disposition. The basic facts were undisputed. "Plaintiff, a lawn care and landscaping company, intended to apply a selective herbicide to the lawns of several customers for the purpose of eliminating weeds in those lawns. However, plaintiff mistakenly applied a non-selective herbicide that destroyed the grass in the lawns." As a result, plaintiff incurred "substantial expense" to restore the lawns. Plaintiff was insured under a "Businessowners Policy" and a limited pesticide or herbicide applicator coverage endorsement issued by defendant. Defendant denied coverage, and plaintiff filed this lawsuit, seeking a declaration that the herbicide endorsement provided coverage for the mistaken herbicide application and that the policy exclusion defendant relied on did not apply. However, the court concluded that plaintiff's application of non-selective herbicide to its customers' lawns constituted "your work" under Exclusion (k)(5) in the policy. Further, "according to Exclusion (k)(6), any repair, restoration, or replacement of a lawn, which is a result of plaintiff's work, falls within the exclusion outlined in the policy." Thus, the court held that plaintiff's application of the non-selective herbicide to its customers' lawns was "within the clear and unambiguous exclusion as detailed in the policy." The court found plaintiff's argument that the particular piece of property on which it was working was the foliage of the weeds in the lawn, as opposed to the root system of the grass, was "disingenuous." Plaintiff applied the non-selective herbicide to its customers' lawns. Thus, "the particular part of the real property on which plaintiff performed operations was, indeed, the lawn. Similarly, the particular part of the property that had to be restored, repaired, or replaced as a result of the incorrect application of non-selective herbicide was the lawn." The court further held that the herbicide endorsement did not alter, change, or affect the "your work" exclusion - it only limited the applicability of the policy's "pollution" exclusion.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; First-party no-fault insurance benefits case; Summary disposition under MCR 2.116(C)(10); Coblentz v. City of Novi; AFSCME v. Detroit; Maiden v. Rozwood; MCL 500.3107(1)(a); Booth v. Auto-Owners Ins. Co.; MCL 500.3142(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Phillips v. Auto Owners Ins. Co.

e-Journal Number: 50654

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

 

Holding that the plaintiff-Phillips failed to meet his burden under MCR 2.116(C)(10), the court affirmed the trial court's grant of summary disposition in favor of defendant-Auto-Owners. Phillips was injured in an accident when his motorcycle and an automobile collided. Auto-Owners was the insurer of the automobile involved in the accident, and since the accident has paid all the claims Phillips submitted for his medical expenses. However, Phillips filed a complaint against Auto-Owners alleging that Auto-Owners "has refused and neglected to pay a number of [Phillips'] benefits due under the no-fault law including medical and hospital expenses, wage loss benefits, medical mileage, and other benefits." Auto-Owners maintained that it paid all benefits that Phillips was entitled to receive. During his deposition, Phillips admitted that Auto-Owners paid every claim that he submitted, and that he had not communicated with any Auto-Owners representatives or employees as to the claims he maintained were not paid by Auto-Owners. As to his claim for "medical mileage," he admitted that he had not calculated the actual mileage for each of his medical appointments. He also claimed to have some receipts from prescription medications for which he was not reimbursed. However, he admitted he did not know the total dollar amount that he was claiming was owed to him for reimbursement. The receipts were not part of the trial court record and apparently were not presented to the trial court. "No other evidence was referenced during the deposition or presented to the trial court as to Phillips' remaining claims." He claimed that his deposition testimony created a genuine issue of material fact as to whether Auto-Owners failed in its obligations to pay allowable expenses pursuant to the No-Fault Act. However, the court concluded that "Phillips did not present any evidence to rebut Auto-Owner's deposition evidence" showing that he never submitted any claim to Auto-Owners that was not paid. The court held that it was clear that Auto-Owners never received reasonable proof of the fact and of the amount of loss sustained because a claim for the benefits was never submitted by Phillips. Thus, there was no evidence to support his representation that Auto-Owners refused to pay allowable expenses that it was liable for under the No-Fault Act, and summary disposition in favor of Auto-Owners was appropriate.

 

Litigation

 

This summary also appears under Constitutional Law

 

Issues: Order directing the appellants be imprisoned in the county jail until the defendant-Detroit International Bridge Company (DIBC) "fully" complies with the trial court's prior opinion and order; Due process; In re Henry; Whether the trial court acted within its "inherent and statutory powers" in ordering DIBC's "key decision-makers" incarcerated pending DIBC's compliance with its order; MCL 600.611; MCL 600.1711; MCL 600.1715; Porter v. Porter; DeGeorge v. Warheit; In re Contempt of Auto Club Ins. Ass'n; International Union, United Mine Workers of Am. v. Bagwell; Effect of the fact that a corporation may only act through its officers and agents; In re Kennison Sales & Eng'g Co.; Stowe v. Wolverine Metal Specialties Co.; Paul v. University Motor Sales Co.; Wilson v. United States; "Indirect contempt"; MCR 3.606(A); Whether the appellants' imprisonment was a proper use of the civil contempt power; Whether the trial court's order gave the appellants the "keys to their cells"; Borden v. Borden; Hicks ex rel Feiock v. Feiock; People v. Kearns; Jurisdiction; MCR 7.203(A), MCR 7.204, and MCR 7.202(6)(a); Distinguishing "civil contempt" from "criminal contempt"; In re Contempt of Dougherty; MCL 600.308(1) and (2); In re Dudzinski Contempt; In re Contempt of Robertson; A nonparty's right to appeal an adjudication of contempt; United States Catholic Conference v. Abortion Rights Mobilization Inc.; Droomers v. Parnell (Unpub.); Migda v. Maciejewski (Unpub.); Judicial disqualification; Giving opinion immediate effect; MCR 7.215(F)(2)

Court: Michigan Court of Appeals (Published)

Case Name: In re Manuel J. Moroun & Dan Stamper

e-Journal Number: 50839

Judge(s): K.F. Kelly; Concurring in part, Dissenting in part – Wilder; Separately Concurring in part, Dissenting in part – Fort Hood

 

The court held that appellants-Moroun and Stamper's due process rights were not violated and that the trial court "was clearly acting within its inherent and statutory powers" in ordering defendant-DIBC's "key decision-makers incarcerated pending DIBC's compliance with the trial court's order." However, the court concluded that the commitment order requiring "full" compliance could not stand because the appellants did not have the immediate ability to completely finish construction and thus, "purge" DIBC of its civil contempt. Since the contempt order did not give the appellants the "keys to the jailhouse," the court vacated that portion of the order that continued incarceration until DIBC "fully complied" and remanded the case to the trial court. The underlying case arose from the "Ambassador Bridge Gateway Project," which involves constructing interstate freeway connections to the Bridge.  DIBC owns and operates the Bridge. Stamper is DIBC's president and "extensively involved in the operation and construction activities at the Bridge and in defense of this lawsuit." Maroun has a living trust that is a minority shareholder of DIBC Holdings, which owns DIBC. He is also a director on the boards for DIBC and DIBC Holdings. The appellants appealed the trial court's order directing they be imprisoned in the county jail until DIBC fully complied with the trial court's 2/1/10 opinion and order. That order directed DIBC, inter alia, to "remove structures that have been constructed in the path of the access road and recorded easement and complete construction of its portion of the Gateway Project in accordance with the plans attached to the Performance Bond and the Maintenance Agreement." The trial court found DIBC in civil contempt on 11/3/11 for failing to comply with the order. While a corporation is a separate entity from its individual shareholders and directors, a corporation may only act through its officers and agents. "Because individuals who are officially responsible for the conduct of a corporation's affairs are required to obey a court order directed at the corporation, these same individuals may be sanctioned if they fail to take appropriate action within their power to ensure that the corporation complies with the court order." Thus, the court rejected appellants' claim that they may not be held accountable for failing to ensure that DIBC complied with the trial court's order. The court also held that "Moroun was provided notice that he could be subjected to being sanctioned as a coercive sanction for DIBC's contempt, and an opportunity to be heard on the matter." The 11/3/11 opinion and order affirmatively discussed the possible civil contempt sanctions, including imprisonment, and directed him to appear at the sanction hearing. The court determined that his unsuccessful motion to be excused from the hearing was "an attempt to avoid the possibility that he could be subject to being sanctioned for DIBC's civil contempt." As to Stamper, "he was listed on the show cause order, was present throughout the contempt hearings, and actively participated in DIBC's defense." He was previously imprisoned for DIBC's civil contempt. Since there was no dispute as to his authority over DIBC and the project, the court found that Stamper "had notice that he could be subjected to incarceration as a coercive sanction for DIBC's civil contempt, and was provided an opportunity to be heard on the matter." The court instructed the trial court on remand to "craft an order, with particularity, of what ‘act or duty' appellants are required to perform both to ensure that DIBC will begin and continue compliance" with the 2/1/10 order and "enabling appellants to purge themselves of the contempt finding against DIBC."

 

Municipal

 

Issues: Action challenging a $250 emergency cost recovery fee that the defendant-City charged related to the plaintiff's arrest for OUIL; Intentional misrepresentation and fraud claim; Lawrence M. Clarke, Inc. v. Richco Constr., Inc.; Whether MCL 769.1f limits recoverable expenses to those related to an emergency response; Effect of a Supreme Court Administrative Office memorandum dated 5/6/10; The appropriate method for challenging court-imposed costs in a criminal case; People v. Howard

Court: Michigan Court of Appeals (Unpublished)

Case Name: Duff v. City of Lincoln Park

e-Journal Number: 50610

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

 

Holding, inter alia, that the plaintiff was not entitled to collaterally attack the validity of his criminal conviction (and any attendant penalties imposed as a result of it) in a separate civil lawsuit, the court affirmed the trial court's order granting the defendant-City summary disposition on his fraud and misrepresentation claim. Plaintiff filed this suit challenging a $250 emergency cost recovery fee that the City charged related to his arrest for OUIL. He asserted that "the City intentionally misrepresented that he owed $250 as reimbursement for emergency response services and costs arising from the incident that led to his arrest, and that the City perpetrated this fraud and misrepresentation on thousands of persons similarly situated." The court noted that MCL 769.1f "provides that recoverable costs may be imposed by a court as part of the sentence for a conviction of a specified offense. The statute does not authorize a city to impose or assess costs on its own, regardless of whether the costs are within the scope of the statute." Thus, the court concluded that the City could not rely on MCL 769.1f as authority for its extra-judicial assessment of costs. However, the City submitted evidence that the same costs were imposed by the trial court in plaintiff's criminal case in which he was convicted of OUIL, and that his "payment of the costs pursuant to the City's separate assessment was credited to those court-imposed costs." The appropriate method for challenging the court-imposed costs in plaintiff's criminal case was an appeal in that case. He did not present any evidence disputing the City's evidence that the same costs were imposed in his criminal case, or that he received credit for those court-imposed costs due to his payment of the assessment at issue here. Plaintiff also did not submit any evidence indicating that he appealed the court-imposed costs or that those costs were ever found to be invalid. To prevail on a fraud and misrepresentation claim, plaintiff had to establish that he suffered an injury. Since the evidence showed that the same costs were imposed in his criminal case, the validity of which was not disputed, and that his payment to the police department was credited against those court-imposed costs, the City's alleged misrepresentation did not cause him any injury. Thus, his fraud and misrepresentation claim could not succeed.

 

Negligence & Intentional Tort

 

This summary also appears under Insurance

 

Issues: Automobile negligence; First-party no-fault insurance benefits case; Summary disposition under MCR 2.116(C)(10); Coblentz v. City of Novi; AFSCME v. Detroit; Maiden v. Rozwood; MCL 500.3107(1)(a); Booth v. Auto-Owners Ins. Co.; MCL 500.3142(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Phillips v. Auto Owners Ins. Co.

e-Journal Number: 50654

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

 

Holding that the plaintiff-Phillips failed to meet his burden under MCR 2.116(C)(10), the court affirmed the trial court's grant of summary disposition in favor of defendant-Auto-Owners. Phillips was injured in an accident when his motorcycle and an automobile collided. Auto-Owners was the insurer of the automobile involved in the accident, and since the accident has paid all the claims Phillips submitted for his medical expenses. However, Phillips filed a complaint against Auto-Owners alleging that Auto-Owners "has refused and neglected to pay a number of [Phillips'] benefits due under the no-fault law including medical and hospital expenses, wage loss benefits, medical mileage, and other benefits." Auto-Owners maintained that it paid all benefits that Phillips was entitled to receive. During his deposition, Phillips admitted that Auto-Owners paid every claim that he submitted, and that he had not communicated with any Auto-Owners representatives or employees as to the claims he maintained were not paid by Auto-Owners. As to his claim for "medical mileage," he admitted that he had not calculated the actual mileage for each of his medical appointments. He also claimed to have some receipts from prescription medications for which he was not reimbursed. However, he admitted he did not know the total dollar amount that he was claiming was owed to him for reimbursement. The receipts were not part of the trial court record and apparently were not presented to the trial court. "No other evidence was referenced during the deposition or presented to the trial court as to Phillips' remaining claims." He claimed that his deposition testimony created a genuine issue of material fact as to whether Auto-Owners failed in its obligations to pay allowable expenses pursuant to the No-Fault Act. However, the court concluded that "Phillips did not present any evidence to rebut Auto-Owner's deposition evidence" showing that he never submitted any claim to Auto-Owners that was not paid. The court held that it was clear that Auto-Owners never received reasonable proof of the fact and of the amount of loss sustained because a claim for the benefits was never submitted by Phillips. Thus, there was no evidence to support his representation that Auto-Owners refused to pay allowable expenses that it was liable for under the No-Fault Act, and summary disposition in favor of Auto-Owners was appropriate.

 

Real Property

 

This summary also appears under Contracts

 

Issues: Contract dispute surrounding the purchase of a condo unit; Whether the district court correctly interpreted provisions of the Interstate Land Sales Full Disclosure Act (ILSFDA) (15 USC § 1701 et seq.) under which the plaintiffs brought an action to rescind their purchase agreement; Jones v. Muskegon Cnty.; Exercise of supplemental jurisdiction; Gamel v. City of Cincinnati; Whether plaintiffs' rescission claim under § 1703(c), was untimely; Effect of defendant-Bridgewater's failure to include notice of their right to rescind in the purchase agreement; Winter v. Hollingsworth Props., Inc. (11th Cir.); § 1703(a)(1)(B); §§ 1709(a) and (b); § 1711; Jankus v. Edge Investors, L.P. (SD FL) (Jankus I and II); § 1711(b); Taylor v. Holiday Isle, LLC (SD AL); Giving effect to every clause and word in a statute; American Civil Liberties Union v. National Sec. Agency; Whether the district court properly dismissed the plaintiffs' entire ILSFDA claim; Whether the district court should have analyzed their entitlement to equitable relief under § 1709; Gentry v. Harborage Cottages-Stuart, LLLP (11th Cir.); Whether the plaintiffs adequately proved their entitlement to equitable rescission; Damages; The "election of remedies" affirmative defense; Bagwell v. Susman; Guy James Constr. Co. v. Trinity Indus., Inc. (5th Cir.); Kuhl v. Hayes (10th Cir.); Waiver; Whether there were allegations pleaded and proof offered that Bridgewater's ILSFDA violations caused the plaintiffs' damages; Dismissal of plaintiffs' Michigan Condo Act claim and Bridgewater's cross-claim for breach of contract; 28 USC §§ 1367(a) and (c)(3); Campanella v. Commerce Exch. Bank; Supplemental jurisdiction; § 1367(c); Whether the district court properly awarded Bridgewater the plaintiffs' cash deposit

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Veneklase v. Bridgewater Condos, L.C.

e-Journal Number: 50838

Judge(s): Gibbons, Clay, and White

 

In an issue of first impression, the court adopted the construction outlined in Holiday Isle, which gives effect to both § 1703(c)'s two-year limit and § 1711's three-year statute of limitations. The court held that a purchaser or lessee must comply with both § 1703(c)'s two-year limit for exercising the right of rescission and § 1711(b)'s three-year limit for filing suit based on the seller's refusal to honor the buyer's rescission. Thus, the court concluded, inter alia, that the district court properly ruled that the plaintiffs' claim for rescission under §1703(c) was untimely, where it was exercised more than two years after the date on which the purchase agreement was signed. However, the court also held that equitable rescission is available as a remedy under § 1709 even when the buyer did not timely rescind the purchase agreement under § 1703, and remanded the case for the district court to determine whether plaintiffs were entitled to equitable rescission under §§ 1709(a) and (b). The plaintiffs entered into an agreement with defendant-Bridgewater for the purchase of unit 79 in a condo project. They argued that the district court incorrectly interpreted provisions of the ILSFDA under which they brought an action to rescind their purchase agreement. Plaintiffs claimed that Bridgewater's failure to include notice of their right to rescind in the purchase agreement extended the period during which they could rescind under § 1703(c) until two years after the disclosure was correctly made. They contended that since the disclosure was never made, they timely rescinded the purchase agreement in 3/09. Bridgewater urged the court to endorse the district court's interpretation - that ILSFDA § 1703(c) allows a purchaser to rescind only within two years of signing a purchase agreement and a purchaser has an additional third year within which to bring suit, consistent with § 1711, if the developer or seller refuses to honor the rescission. Bridgewater argued that the statutory two-year period runs from the date the purchase agreement is signed, regardless of whether or not the agreement contained a recital of the purchaser's right to rescind within two years, as required by § 1703(c). The court found the analysis of Holiday Isle persuasive. By its plain language, "§ 1703(c) allows a buyer who is not provided with the required property report two years from the date of signing within which to rescind the agreement." The court held that nothing in § 1703(c)'s language indicates that a developer's failure to provide the required property report "obviates, tolls or extends the two-year deadline for rescission." Plaintiffs' proposed construction - that Bridgewater's failure to include notice of their right to rescind in the purchase agreement extends the period in which they could rescind under § 1703(c) until two years after the disclosure was correctly made - would not give effect to the clause of § 1703(c) establishing a two-year window from the date of signing within which the buyer must exercise the rescission right. Such a construction would contravene the principle that the courts are "required to give effect, if possible, to every clause and word of a statute." Plaintiffs also argued that the district court erred in dismissing their entire ILSFDA claim without considering their entitlement to equitable rescission under § 1709. The court concluded that the "plain language of ILSFDA §§ 1709(a) and (b) allow the district court to award any equitable relief it deems appropriate based on plaintiff's proof - not any equitable relief save rescission." Affirmed in part, reversed in part, and remanded.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re JK; In re Jackson; In re Fried; Whether the petitioner-DHS violated the Americans with Disabilities Act (42 USC § 12101 et seq.); Waiver; In re Terry; In re Gazella; The children's best interests; In re Jones; Respondent-father's argument that the DHS's actions at the onset of the case as to placement of the children violated MCR 3.965 and MCL 712A.13b; Moot issue; B P 7 v. Bureau of State Lottery; Due process; In re B & J; In re Rood; Claim that a guardianship with the maternal grandmother might have been appropriate; In re Mason

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Crooks

e-Journal Number: 50660

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

 

The court held that the trial court properly terminated both respondents-parents' parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. As to § 19b(3)(c)(i), the court held that the trial court appropriately considered all relevant circumstances, including the respondent-mother's history of mental illness, in evaluating the conditions that led to the adjudication of the two older children, and the later adjudication of the younger sibling. "Those conditions involved environmental neglect, lack of proper supervision of the children, and unsafe and unsanitary conditions in the home. The proceedings in this case lasted more than five years." The mother's argument on appeal challenged whether the services that were offered during that time period were reasonable. The court concluded that her failure to sufficiently benefit from the in-home and other services offered to her over more than five years showed that she was not reasonably likely to benefit from continued services to a point where she could properly care for the children, and that they would be at risk of harm in the home. Thus, the evidence also supported the trial court's determination that §§ 19b(3)(g) and (j) were both established. As to the respondent-father, after reviewing the record the court found no basis for disturbing the trial court's findings that the statutory grounds for termination were established, and that terminating his parental rights was in the children's best interests. The father "was provided with extensive services over a five-year period to address his mental illness and parental deficiencies, but was unable to benefit from those services to a point where the children would not be at risk of harm in his home." Affirmed.

 

Issues: Termination under §§ 19b(3)(g), (i), (j), and (l); Motion for reconsideration; Tinman v. Blue Cross & Blue Shield of MI; Luckow Estate v. Luckow; MCL 712A.21(1); MCR 3.992(A); "Good cause"; In re Marin

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Hollins

e-Journal Number: 50658

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

 

The court held that the trial court did not err in granting the petitioner-DHS's motion for reconsideration, thereby effectively reinstating the 2/10 order terminating the respondent-mother's parental rights. Respondent contended that the trial court properly exercised its authority when it set aside the original 2/10 termination order, and erred when it subsequently granted the DHS's motion for reconsideration and determined that it should not have set aside the order. She argued that the trial court had the authority to set aside the 2/10 termination order under MCL 712A.21 and MCR 3.992, despite her failure to appeal that order or to timely move for reconsideration of the order. MCR 3.993(A)(2) provides that an order terminating parental rights is appealable to the court as of right. "MCR 3.993 is subject to MCR 7.204(A)(1)(c), which requires that an appeal by right from an order terminating parental rights be taken within 14 days after entry of the order." MCR 3.993(C)(2) further provides that "[t]he Court of Appeals may not grant an application for leave to appeal an order of the family division of the circuit court terminating parental rights if filed more than 63 days after entry of an order of judgment on the merits, or if filed more than 63 days after entry of an order denying reconsideration or rehearing." Here, respondent never filed an appeal of right or an application for leave to appeal from the order at any time. "Thus, her failure to timely act barred her from obtaining appellate relief from that order." The trial court also had no authority under the statutes and court rules to set aside the order terminating respondent's parental rights after she failed to move for reconsideration of the original order or to timely appeal that order. "MCL 712A.21(1) restrictively grants the trial court authority to affirm, modify, or set aside an order on the petition of an interested person ‘filed not later than 20 days after the date of the entry of the order terminating parental rights.'" Respondent did not petition the trial court for rehearing of its termination order within 20 days. "Similarly, MCR 3.992(A) requires a party seeking rehearing to move in writing within 21 days after the date of the order resulting from the hearing. Respondent did not avail herself of this opportunity." She emphasized that MCR 3.992(A) permits the trial court to entertain an untimely motion for good cause shown. The court held that this extension provision did not apply here because there was no motion, and thus, no showing of good cause. Further, the court's decision in the father's appeal did not provide any basis for finding good cause to reconsider the termination of respondent's parental rights. Contrary to what the trial court may have believed initially, the court's decision did not suggest that respondent, like the children's father, should be afforded an opportunity to participate in services. The court never addressed respondent's parental rights and had no occasion to do so because she did not appeal the termination order. Affirmed.

 

Issues: Termination under § 19b(3)(g); In re Fried; In re JK; In re Miller; The child's best interests; In re Trejo Minors; In re BZ; Reunification; In re Mason; In re Newman; Whether the trial court complied with MCL 712A.13a(11) to order parenting time; Whether the trial court timely appointed an attorney to represent the respondent-father; Plain error; In re HRC; In re EP; MCL 712A.17c(5); MCR 3.915(B)(1)(a)(i); In re Hall

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Silva

e-Journal Number: 50661

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

 

The court held that the trial court properly terminated the respondent-father's parental rights to the minor child where the statutory ground for termination was established by clear and convincing evidence. "The evidence established that respondent's life was unstable." He made "very poor choices" throughout the case, including fleeing the state to avoid his criminal obligations in the area where the minor child resided. "He was in and out of jail for various criminal activities." Although at the time of the termination hearing respondent had taken care of his criminal obligations, he had not consistently paid child support and had been unemployed without job prospects for a considerable amount of time. He was living on food stamps and help from friends and organizations, and he did not have a suitable home for the child. Respondent's intent was to have custody of his son, with whom he had a good relationship. However, he did not show the ability to follow through on the provided services or to maintain any kind of stable and consistent life. Thus, the court was "not left with a definite and firm conviction that the trial court erred when it determined that there was clear and convincing evidence that respondent had not provided proper care or custody for his child in the past and, without regard to intent, would not be able to do so in the future." Affirmed.

 

Issues: Termination under §§ 19b(3)(c)(ii), (g), (j), and (l); In re Mason; In re Trejo Minors; Reunification; Whether the respondent-father was denied a full and fair opportunity to complete services under the parent-agency plan and treatment agreement; MCL 712A.19a(2); MCL 722.638(1) or (2); MCL 722.638(1)(b)(i); The child's best interests; Whether the trial court's findings of fact were sufficient; De Voe v. C A Hull, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Swiss

e-Journal Number: 50662

Judge(s): Per Curiam – Murphy, Fitzgerald, and Meter

 

The court held that the trial court properly terminated the respondent-father's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. The court found no clear error given respondent's negative history as to parental rights (his parental rights to two other children were previously terminated), "his predilection to engage in criminal behavior resulting in multiple terms of imprisonment and reflecting an inability to conform his conduct to the requirements of the law," the nature of his criminal acts - "actions pertaining to narcotics trafficking and intimidating/assaultive behavior, his current state of incarceration and the length of sentence absent identification of a family member or relative who could act as the child's temporary caregiver, and given the fact that respondent chose to continue his criminal ways and risk imprisonment instead of taking advantage of the opportunity to fully participate in services after the petitioner-DHS first became involved." Incarceration was only one factor in the termination ruling. "The prior parental termination proceedings, respondent's criminal history, the nature of his past criminal conduct," the potential length of his sentence, the lack of suitable housing at the beginning of proceedings, "the unsuitability of the child's mother, and the lack of an available relative to step in as conceded by respondent, all played a role" in the termination of his parental rights, not incarceration alone. Further, in Mason, the respondent was already in prison when the DHS initiated proceedings, the respondent was effectively ignored by DHS and the trial court throughout the proceedings, no treatment or service plan for him was implemented, and the trial court failed to consider an alternative placement with relatives. In this case, respondent had not yet committed the drug crime and been arrested and jailed when protective proceedings began, he declined taking the child because his home was unsuitable, he stated that no relative was available for temporary placement, and the trial court and DHS were prepared to engage in providing services as part of a reunification effort, "but respondent instead chose to violate the law, resulting in imprisonment." The trial court "did everything in its power to keep reunification efforts and treatment services alive despite respondent's jailing." Contrary to his arguments, Mason was distinguishable and did not require reversal. Affirmed.

 

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