• Attorneys (1)
• Civil Rights (1)
• Contracts (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Family Law (1)
• Insurance (1)
• Litigation (1)
• Malpractice (1)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Qui Tam (1)
• Tax (1)

Attorneys

 

This summary also appears under Malpractice

 

Issues: Legal malpractice; Whether the plaintiffs' claims were barred by the statute of limitations; Kloian v. Schwartz; Wright v. Rinaldo; MCL 600.5805(6); MCL 600.5838(2); Accrual of a professional malpractice claim; MCL 600.5838(1); Determining exactly when an attorney discontinues serving a client in a professional capacity; Gebhardt v. O'Rourke; Additional acts by the attorney after discontinuing service to a plaintiff; Bauer v. Ferriby & Houston, PC; Representation in a separate matter; Balcom v. Zambon; MCR 2.116(I)(3); Sweet Air Inv., Inc. v. Kenney

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Esther Hubert v. Morganroth

e-Journal Number: 53785

Judge(s): Per Curiam – Hoekstra, Servitto, and Beckering

 

Holding that there were factual questions that had to be resolved to determine whether the complaint was time-barred, the court reversed the trial court's order granting the defendants-attorneys and law firm summary disposition and remanded the case for further proceedings. The parties presented conflicting evidence as to whether defendants' representation was continuous before and after the entry of the consent judgment in the underlying case in 9/06. There was no written retainer agreement, and the parties agreed that the representation agreement was made orally. Plaintiffs claimed in their affidavits that defendants orally represented that they would pursue the case as well as recovery and collection of the money. Defendants asserted in their affidavits that their representation of plaintiffs ended after the consent judgment was entered, resolving all remaining claims and closing the case. If plaintiffs' version was believed "then defendants' representation of plaintiffs in the post-consent judgment collection activities was a continuation of the original representation." However, if defendants' version was believed, then their "later representation of plaintiffs constituted separate and discrete representation." Thus, a fact-finder had to make a credibility determination based on these competing versions of the representation agreement before the scope of defendants' representation could be determined. The parties also presented conflicting evidence as to when defendants' representation ended. Both parties focused their claims on what occurred during a meeting held on 6/26/09. If defendants' affidavits were believed, no legal services were performed at the meeting, the purpose of which was only to pass along the results of a third-party's investigation and to determine if plaintiffs wanted to hire defendants to perform any more legal work as to the collection efforts. Defendants stated that at the meeting plaintiffs declined any further legal representation, and informed them that they would take over all collection efforts. Defendants asserted that after the meeting the only work they did on plaintiffs' case was to make arrangements to give them access to the files and to convey other relevant information so they could pursue their own claims. Thus, according to defendants' version of the facts, the complaint was not timely filed. However, if plaintiffs' affidavits were believed, legal services were provided at the 6/26/09 meeting and thus, defendants' representation continued at least until that date, and the complaint was timely filed. Plaintiffs stated in their affidavits that at the meeting, defendants indicated they would take more depositions and would continue to represent plaintiffs. Determining the timeliness of the complaint depended on the resolution of these disputed facts.

 

Civil Rights

 

This summary also appears under Employment & Labor Law

 

Issues: Reverse racial discrimination; 42 USC § 1981; Michigan Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2101 et seq.; McDonnell Douglas Corp. v. Green; Sutherland v. Michigan Dep't of Treasury; Direct evidence; Thompson v. City of Lansing (Unpub. 6th Cir.); Johnson v. Kroger Co.; Rowan v. Lockheed Martin Energy Sys., Inc.; Prima facie case of discrimination; Braithwaite v. Timken Co.; Zambetti v. Cuyahoga Cmty. Coll.; Lind v. City of Battle Creek; Murray v. Thistledown Racing Club, Inc.; Burden shift; Leadbetter v. Gilley; "Pretext"; Dews v. A.B. Dick Co.; Smith v. Chrysler Corp.; "Adverse action"; White v. Burlington N. & Santa Fe Ry. Co.; "Similarly situated"; Ercegovich v. Goodyear Tire & Rubber Co.; Wright v. Murray Guard, Inc.; Clayton v. Meijer, Inc.; Macy v. Hopkins Cnty. Sch. Bd. of Educ.; Lewis v. Humboldt Acquisition Group

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Martinez v. Cracker Barrel Old Country Store, Inc.

e-Journal Number: 53659

Judge(s): Wells, Sutton, and Griffin

 

The court held that the district court properly granted summary judgment for defendant because plaintiff failed to establish a prima facie claim of wrongful termination due to reverse racial discrimination. Plaintiff sued defendant after she was fired from her job as retail manager of one of defendant's stores, on a theory of reverse racial discrimination. The district court granted defendant's motion for summary judgment. On appeal, the court rejected plaintiff's argument that two statements made by defendant's managers were direct evidence of defendant's discriminatory intent. It concluded that the first statement could not reasonably be construed to mean that plaintiff's race was the reason for her termination, and that the second statement regarding Flint and the history of the store, required "the listener to infer its meaning." The court also rejected plaintiff's argument that a similarly-situated employee was treated more favorably, finding that the other employee was differently situated in the management structure of the store, and that plaintiff's conduct "was admittedly more pervasive and severe . . . ." Affirmed.

 

Contracts

 

This summary also appears under Insurance

 

Issues: Action for reimbursement of medical expenses under the No-Fault Act (MCL 500.3101 et seq.); Review; Anzaldua v. Neogen Corp.; MCL 500.3112 (PIP benefits); Lakeland Neurocare Ctrs. v. State Farm Mut. Auto. Ins. Co.; Lewis v. Aetna Cas. & Sur. Co.; Contract law used to interpret the terms of a release; Shay v. Aldrich; Cole v. Ladbroke Racing MI, Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Michigan Head & Spine Inst. v. State Farm Mut. Auto. Ins.

e-Journal Number: 53917

Judge(s): Donofrio, Murphy, and Gleicher

 

The court held that the language of the release was clear and unambiguous, and the parties' intent expressed in the release governed its scope. The plain language of the release demonstrated that, in exchange for defendant-State Farm's payment of $35,000, the parties intended to discharge defendant's entire liability including its liability for future medical services. Thus, the court reversed the trial court's order granting plaintiff partial summary disposition because its insured (B) executed a release that barred plaintiff's claim for reimbursement. The court remanded for entry of a summary disposition order for defendant. The issue here was whether the insured's release barred a healthcare provider's claim for reimbursement for medical services rendered to the insured after the release was executed. The case stemmed from a motor vehicle accident in which B was injured. Later, in exchange for $35,000 and in settlement of ongoing litigation with defendant, B executed the release indicating in part that B released and discharged the defendant from payment of any and all no-fault benefits related to the accident incurred after 7/6/10. Six months after signing the release, B began treating with plaintiff-Michigan Head & Spine Institute because of injuries sustained in the accident. Defendant refused to reimburse B for costs related to plaintiff's treatment of B, based on the release. Later, plaintiff filed a complaint against defendant in the district court for payment for medical services rendered to B. The district court granted the motion for plaintiff and entered a judgment for plaintiff in the amount of $12,450, plus interest of $1,623.60. On appeal, the trial court affirmed the district court's ruling. Applying contract law in analyzing the release, the court concluded that the plain language of the release demonstrated that, in exchange for defendant's payment of $35,000, the parties intended to discharge defendant's liability altogether, including its liability for future medical services. The parties' intent expressed in the release governed its scope.

 

Criminal Law

 

Issues: Waiver of the right to counsel; People v. Grant; People v. Dennany; Requirements for an effective waiver of counsel; People v. Anderson; Compliance with MCR 6.005(D); People v. Russell; MCR 6.005(E); Whether the error was structural or nonstructural; People v. Duncan; People v. Willing; People v. Holcomb; Gideon v. Wainwright

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gietek

e-Journal Number: 53776

Judge(s): Per Curiam – Ronayne Krause, Cavanagh, and Boonstra

 

Holding that the trial court failed to substantially comply with Anderson and MCR 6.005(D) when it determined that the defendant waived his right to counsel, the court reversed his jury trial conviction for felony failure to pay child support and remanded the case for a new trial. He tried to waive his right to counsel at the final pretrial conference. However, the court concluded that the exchange between the trial court and defendant fell far below, and was devoid of, the colloquy between the trial court and defendant that Anderson and MCR 6.005(D) required. While he unequivocally waived his right counsel, "the trial court failed to examine whether his waiver was knowing and intelligent. The trial court did not discuss the possible maximum and mandatory minimum prison sentences, the nature of the charges, or the risks involved in self-representation, as required by case law and court rule." Since the trial court did not substantially comply with Anderson and MCR 6.005(D), "defendant could not have knowingly, intelligently, and voluntarily waived his right to counsel, and his attempted waiver was ineffective." The court concluded that the trial court's error was compounded by the fact that it failed to remind defendant of his rights at each subsequent hearing as required by MCR 6.005(E). "At each subsequent hearing, including the originally scheduled trial date (at which the jury trial was adjourned) and the trial proceeding itself, the trial court failed to advise defendant of his right to appointed counsel and did not confirm" that he wished to continue to waive that right. "This too fell far below substantial compliance with the court rule and case law standard." While the prosecution argued that the error was harmless, the court disagreed, concluding that defendant was totally deprived of counsel during a critical stage of the proceedings and that the effect of this "pervaded the entire trial." He did not have the assistance of counsel during jury voir dire, opening statement, direct examination, admission of evidence, and other important aspects of trial, and was "severely hampered by that lack of assistance." His lack of legal knowledge precluded him from "(1) formulating proper objections to the admission of evidence, (2) effectively cross examining witnesses, and (3) arguing for the presentation of defense witnesses despite the lack of a witness list." The court held that the error "was plain and structural in nature, requiring automatic reversal."

 

Issues: Ineffective assistance of counsel; People v. Swain; Trial strategy; People v. Odom; People v. Rodgers; Questioning a potentially biased juror during jury selection; Opinion testimony from a lay witness; MRE 701; People v. Yost; Effect of the jury instructions on the burden of proof; People v. Malone; Failure to call certain witnesses; People v. Seals; Failure to present an alibi; People v. Rockey; Failure to object to alleged "vouching" by the prosecutor; Futile objection; People v. Ericksen; Endorsement of a prosecution witness on the second day of trial; People v. Steele; MCL 767.40a(1), (3), and (4); Prosecutorial misconduct; People v. Brown; Claim that the prosecution allowed a witness to testify falsely; People v. Aceval; People v. Lester; Whether the prosecutor commented on defendant's failure to testify; People v. Mann; Sufficiency of the evidence to prove defendant's identity as the shooter; People v. Railer; People v. Bennett; Right to an impartial jury; People v. Miller

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jackson

e-Journal Number: 53773

Judge(s): Per Curiam – Talbot, Jansen, and Meter

 

Holding, inter alia, that defense counsel's behavior in questioning a potentially biased juror did not fall below an objective standard of reasonableness, and that a rational jury could find that defendant was the shooter beyond a reasonable doubt, the court affirmed his second-degree murder, felon in possession, and felony-firearm convictions. The juror initially told the trial court that despite being robbed in the past, she believed that she could be fair and impartial. She did not indicate, like some of the other potential jurors, that she would convict defendant before the prosecution presented any evidence. While she later told the prosecutor that "after being robbed at gun point" she was not sure if she could make a fair decision, the juror confirmed her understanding that defendant was not the individual who robbed her. Also, defense counsel appropriately questioned the potential jurors as a group about whether they understood that defendant was presumed innocent until proven guilty, and that the prosecution had the burden to prove him guilty beyond a reasonable doubt. All jurors questioned confirmed their understanding of these concepts, and the juror at issue did not agree with defense counsel's statement that she felt that "more likely than not" defendant must be guilty. The court also rejected defendant's other ineffective assistance of counsel claims, and his prosecutorial misconduct claims. In challenging the sufficiency of the evidence, he argued that the physical evidence showed that the victim was shot from the front of the house and testimony established that he was at the back of the house after the gunshots were fired. However, the court concluded that he was not excluded from being the shooter simply because witness B testified that he saw him toward the back of the house without a gun in his hand after the gunfire. Before B fell asleep on the afternoon of the shooting, he was in the home with defendant and the victim. B saw that defendant had a gun in his waistband. When he woke up after hearing a gunshot, B saw defendant coming from the back of the house. The physical evidence of the location of the shooter was inconclusive. An officer who was at the scene testified that he saw spent shell casings in the living room. The evidence technician testified that two spent shell casings were in the dining room. The ME would not testify definitively as to the exact positioning of the shooter and the victim. It was reasonable for the jury to infer that defendant had enough time to move to the back of the house after firing the second gunshot, before B, who is narcoleptic, woke up.

 

Issues: Sentencing following the defendant's jury conviction of first-degree retail fraud; Whether OVs 16 and 19 were properly scored; Defendant's failure to object to the scoring of OV 16 (property lost or destroyed) at sentencing or in a later motion and to object to the scoring of OV 19 on the same ground advanced on appeal; People v. Metzler; People v. Odom; Whether OV 16 should have been scored at 0 points instead of 5 points because the store recovered the property and it was not damaged or destroyed; People v. Leversee; People v. Francisco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Key

e-Journal Number: 53757

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

 

The court concluded that OV 16 was properly scored at 5 points because the store's recovery of the property was irrelevant where OV 16 is properly scored on the basis of the value of the stolen property, including property that was recovered and returned to the victim undamaged. Defendant was convicted of first-degree retail fraud for stealing two tool sets priced at $650 each from a store. Store security personnel followed him outside the store, apprehended him, and recovered the tool sets. The security officers testified that defendant physically resisted capture. He admitted taking the property but denied struggling with the security officers. His sole issue on appeal was whether OVs 16 and 19 were improperly scored. Because he did not object to the scoring of OV 16 at sentencing or in a later motion, the issue was not preserved. OV 16 addresses "property obtained, damaged, lost, or destroyed." Generally, 5 points are to be assessed if the property had a value of $1,000 to $20,000. Zero points are to be assessed if "[n]o property was obtained, damaged, lost, or destroyed or the property had a value less than $200.00." The value of the property is to be used in scoring OV 16 if "the property was obtained unlawfully, lost to the owner, or destroyed[.]" Defendant did not dispute that the value of the property at issue exceeded $1,000. He contended that OV 16 should have been scored at 0 points instead of 5 points because the store recovered the property and it was not damaged or destroyed. The court disagreed. Defendant unlawfully obtained - came into possession of - the store's property when he left the store with it without paying for it. The store's recovery of the property was irrelevant. Thus, there was no plain error as to OV 16. It was unnecessary for the court to address defendant's challenge to the scoring of OV 19. Even if OV 19 was scored at 0 points, he would not be entitled to resentencing because OV 16 was properly scored and scoring OV 19 at 0 points would not affect the appropriate guidelines range. Affirmed.

 

Issues: Search and seizure; Motion to suppress a gun; Validity of the warrantless stop of the defendant; People v. Jenkins; Terry v. Ohio; People v. Nelson; Whether defendant's convictions of CCW, felon in possession, and felony-firearm were against the great weight of the evidence; People v. Musser; People v. Lacalamita; Witness credibility; People v. Kanaan; People v. Unger; People v. Lemmon

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Reed

e-Journal Number: 53782

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

 

The court held that the officers (L and S) did not seize the defendant when they approached alongside him in their marked car and shined a flashlight on him and his cousin to make sure they were not youths violating the city's curfew. Thus, the court concluded that the trial court did not err in denying his motion to suppress. The court also rejected his claim that the jury's verdict convicting him of CCW, felon in possession, and felony-firearm was against the great weight of the evidence. The court noted that similar to the defendant in Jenkins, defendant was not told to remain where he was or that he was required to answer questions. "In fact, no words were exchanged at all." L and S "did not in any way restrain defendant's liberty through physical force or a show of authority by merely shining a flashlight." Their actions "were much less inquisitive than the officer's initial interaction with the defendant in Jenkins." The court noted that the crux of defendant's great weight of the evidence argument was that he was never seen with a gun in his possession, and that L and S "simply 'found a gun in the street.'" He emphasized that his cousin, who was walking next to him at the time and testified at trial that defendant did not have a gun, would have seen a gun in his possession if defendant had a gun. However, the prosecution presented both direct and circumstantial evidence contradicting this argument. Both L and S "observed defendant flee, holding his waistband with his right hand, and toss an object onto the street." L testified that he saw that the object was a gun. Further, L quickly recovered the gun from the same immediate area where he saw defendant throw it. "A mere conflict between the testimony" of defendant's cousin and the officers' testimony did not establish that the jury's verdict was against the great weight of the evidence. "The prosecution's evidence did not contradict physical facts or laws and was not seriously impeached or so inherently implausible that it could not be believed by a reasonable juror." Affirmed.

 

Issues: Motion in limine to preclude a defense of mistaken identity of the victim; Charges of CSC I and CSC II under MCL 750.520b(1)(a) and MCL 750.520c(1)(a); MCL 768.37; People v. Langworthy; People v. Brewer

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Richardson

e-Journal Number: 53779

Judge(s): Memorandum – Talbot, Jansen, and Meter

 

Since intoxication was not a defense to the "general intent" crimes with which the defendant was charged, the court held that the trial court erred in denying the prosecution's motion in limine to preclude the defense of mistaken identity and in permitting the admission of evidence about defendant's intoxication. The court concluded that under the circumstances of the case, defendant's mistake of identity defense was "a disingenuous attempt to impermissibly raise intoxication as a defense" to the CSC I and II charges against him. He intended to raise a mistake of identity defense at trial. He asserted that he would like to admit evidence of his intoxication, but claimed that he was not arguing that the alleged wrongful conduct occurred because he was intoxicated. While the issues were raised separately in the trial court, the record showed that defendant's mistake of identity defense was being asserted in the context of his intoxication as the record did not suggest that he was claiming that the alleged wrongful conduct would have occurred had he been sober. Reversed and remanded.

 

Issues: Ineffective assistance of counsel for not moving to suppress defendant's statements to police; People v. Pubrat; People v. Frazier; People v. Solmonson; People v. Dendel; Whether defendant was subjected to custodial interrogation; People v. Anderson; Miranda warnings; People v. Gipson; People v. Sexton (After Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Walker

e-Journal Number: 53796

Judge(s): Per Curiam - Sawyer, Markey, and M.J. Kelly

 

Since the defendant's statements at the scene and in the police car were not made in response to police interrogation, and his statements made at the police station were made after he waived his Miranda rights by failing to assert them and chose to speak to the police, the court held that defense counsel was not required to advocate a meritless position. There was no indication that defense counsel would have been successful in suppressing the statements, and was not ineffective by failing to move to suppress them. Defendant and two female friends were drinking alcohol in a stationary vehicle with the motor running. State troopers stopped beside the vehicle and spoke to the occupants. During the encounter, a .22 caliber revolver was found under defendant's seat. Without being questioned, he blurted out "don't arrest my sister; that's mine, not hers." He was put into a police car, and after an officer indicated that he did not know what charge defendant would face because he did not know the caliber of the gun, defendant said, "man, it's a .22. I only got it because I got shot." Defendant's third statement occurred at the police station after he signed a form indicating that he had been read his Miranda rights. "The interview was calm and peaceful, with no raised voices." Defendant explained that he purchased the gun for protection. He refused to sign a waiver of his Miranda rights. However, he never asserted the right to be silent or to have an attorney present. At trial he testified that he lied about owning the gun because he wanted to protect the other occupants of the vehicle. He contended on appeal that trial counsel was ineffective by failing to move to suppress his statements. The court noted that it was apparent that the statements at the scene and in the police car could not have been suppressed. Neither statement was made in response to interrogation. The statements made at the police station were made after he waived his Miranda rights. The record showed that he understood his rights, but chose to speak to the police. Affirmed.

 

Issues: Dismissal with prejudice based on a violation of the "180-day rule"; MCL 780.131; MCL 780.133; Effect of the defendant's unconditional guilty plea; People v. Lown; People v. New; People v. Smith; People v. Irwin; People v. Bordash; Requirement that the notice sent by the Department of Corrections (DOC) strictly comply with MCL 780.131; People v. Williams

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. White

e-Journal Number: 53788

Judge(s): Per Curiam – Talbot, Jansen, and Meter

 

Holding that defendant's unconditional guilty plea waived any violation of the 180-day rule, the court vacated the trial court's order vacating his sentence, setting aside his guilty plea, and dismissing the case with prejudice, and remanded for reinstatement of his guilty-plea conviction and sentence. Before he pleaded guilty, defendant expressed concern about his right to a speedy trial and a possible violation of the 180-day rule. However, he was unable to show that the DOC served the prosecutor written notice by certified mail. After discussion, the trial court found that the requirements of the statute were not met. Defendant later accepted the plea agreement and placed his unconditional guilty plea on the record on 2/9/11. He was sentenced pursuant to the plea agreement. At a post-conviction hearing 11 months later, he argued, based on newly discovered evidence, that while he was previously incarcerated, the DOC sent a letter to the prosecutor on 4/12/05, notifying the prosecutor of the pending charges against him, and that the prosecutor responded to the letter on 5/17/05, stating that there were no pending matters against defendant in their database. No further action was taken. Thus, defendant argued that the 180-day rule was violated. The court held that, under Michigan law, he waived any errors based on a violation of the 180-day rule when he rendered his unconditional guilty plea. Thus, the trial court did not have the discretion to consider his motion to set aside the plea, vacate his sentence, and dismiss the case. Upon de novo review, the court held that the trial court clearly erred as a matter of law and abused its discretion when it reversed its earlier decision and found a violation of the 180-day rule.

 

Employment & Labor Law

 

This summary also appears under Civil Rights

 

Issues: Reverse racial discrimination; 42 USC § 1981; Michigan Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2101 et seq.; McDonnell Douglas Corp. v. Green; Sutherland v. Michigan Dep't of Treasury; Direct evidence; Thompson v. City of Lansing (Unpub. 6th Cir.); Johnson v. Kroger Co.; Rowan v. Lockheed Martin Energy Sys., Inc.; Prima facie case of discrimination; Braithwaite v. Timken Co.; Zambetti v. Cuyahoga Cmty. Coll.; Lind v. City of Battle Creek; Murray v. Thistledown Racing Club, Inc.; Burden shift; Leadbetter v. Gilley; "Pretext"; Dews v. A.B. Dick Co.; Smith v. Chrysler Corp.; "Adverse action"; White v. Burlington N. & Santa Fe Ry. Co.; "Similarly situated"; Ercegovich v. Goodyear Tire & Rubber Co.; Wright v. Murray Guard, Inc.; Clayton v. Meijer, Inc.; Macy v. Hopkins Cnty. Sch. Bd. of Educ.; Lewis v. Humboldt Acquisition Group

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Martinez v. Cracker Barrel Old Country Store, Inc.

e-Journal Number: 53659

Judge(s): Wells, Sutton, and Griffin

 

The court held that the district court properly granted summary judgment for defendant because plaintiff failed to establish a prima facie claim of wrongful termination due to reverse racial discrimination. Plaintiff sued defendant after she was fired from her job as retail manager of one of defendant's stores, on a theory of reverse racial discrimination. The district court granted defendant's motion for summary judgment. On appeal, the court rejected plaintiff's argument that two statements made by defendant's managers were direct evidence of defendant's discriminatory intent. It concluded that the first statement could not reasonably be construed to mean that plaintiff's race was the reason for her termination, and that the second statement regarding Flint and the history of the store, required "the listener to infer its meaning." The court also rejected plaintiff's argument that a similarly-situated employee was treated more favorably, finding that the other employee was differently situated in the management structure of the store, and that plaintiff's conduct "was admittedly more pervasive and severe . . . ." Affirmed.

 

Family Law

 

Issues: Child custody; Whether the trial court properly granted the defendant-mother's motion for change of domicile to another state and custody; The "best interest factors"; MCL 722.23; Berger v. Berger; Frowner v. Smith; The three-step inquiry in evaluating a change of domicile request; Gagnon v. Glowacki; McCain v. McCain; McKimmy v. Melling; Whether the change had the capacity to improve the life of the child and the parent; Rittershaus v. Rittershaus; The sibling bond; Brown v. Loveman; Mogle v. Scriver; The change of custody; The "established custodial environment" (ECE); Whether the trial court properly re-opened the proofs; Bonner v. Ames; Bay Cnty. Prosecutor v. Nugent; Due process; Hanlon v. Civil Serv. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hume v. Hume

e-Journal Number: 53728

Judge(s): Per Curiam - K.F. Kelly, Markey, and Servitto

 

The court held, inter alia, that the trial court did not abuse its discretion in determining that a change of domicile to another state was in the child's best interests. The parties divorced in 3/10. The divorce was "acrimonious." In the consent judgment of divorce, the parties were granted joint legal custody of their two youngest children (aged 18 and 8). The defendant-mother later filed a motion for change of domicile of the youngest child indicating that she was engaged to R, who lived in Washington. R met the child a few days before the hearing on defendant's motion. R had two teenage daughters. Defendant opined that the move to Washington would improve the quality of life for both her and the child. She did not receive child support from plaintiff and was living off an inheritance and unemployment benefits. She was struggling to find a job in Michigan and was having a difficult time as a real estate agent due to the real estate market. She believed that market was more stable in Washington and offered her more economic opportunity. She was offered employment opportunities there. Also, R earned nearly $100,000 a year and would be paying for their living expenses. Defendant also testified that the child was not doing well in school and she hired a tutor for the child. She attributed the poor performance to the frequent travel back and forth between her parents, the conflict and lack of communication between the parties, and the large classroom at her school. Defendant noted that the move would take the child away from her siblings, but the older children are adults. The middle child was in college in the Upper Peninsula and the oldest child often traveled for work. Defendant believed that the child would see her siblings on holidays and during the summer. She stated that the plaintiff-father's parenting time would include summer vacation and alternating holidays. She also said that she would not move to Washington unless the child was allowed to go with her. Plaintiff objected and did not believe that the move to Washington was in the child's best interests. After the hearing, but before the trial court's decision, defendant married R. The trial court granted her motion to reopen the proofs and admitted a copy of the marriage license as part of her proofs. Later, the trial court entered a detailed opinion and order granting defendant's motion to change domicile. In making its decision, the trial court considered the ECE and analyzed the best interest factors. The trial court found that it was in the child's best interests based on clear and convincing evidence and entered an order denying plaintiff's motion for reconsideration. The court held that the change of the child's domicile and custody were not an abuse of discretion. Affirmed.

 

Insurance

 

This summary also appears under Contracts

 

Issues: Action for reimbursement of medical expenses under the No-Fault Act (MCL 500.3101 et seq.); Review; Anzaldua v. Neogen Corp.; MCL 500.3112 (PIP benefits); Lakeland Neurocare Ctrs. v. State Farm Mut. Auto. Ins. Co.; Lewis v. Aetna Cas. & Sur. Co.; Contract law used to interpret the terms of a release; Shay v. Aldrich; Cole v. Ladbroke Racing MI, Inc.

Court: Michigan Court of Appeals (Published)

Case Name: Michigan Head & Spine Inst. v. State Farm Mut. Auto. Ins.

e-Journal Number: 53917

Judge(s): Donofrio, Murphy, and Gleicher

 

The court held that the language of the release was clear and unambiguous, and the parties' intent expressed in the release governed its scope. The plain language of the release demonstrated that, in exchange for defendant-State Farm's payment of $35,000, the parties intended to discharge defendant's entire liability including its liability for future medical services. Thus, the court reversed the trial court's order granting plaintiff partial summary disposition because its insured (B) executed a release that barred plaintiff's claim for reimbursement. The court remanded for entry of a summary disposition order for defendant. The issue here was whether the insured's release barred a healthcare provider's claim for reimbursement for medical services rendered to the insured after the release was executed. The case stemmed from a motor vehicle accident in which B was injured. Later, in exchange for $35,000 and in settlement of ongoing litigation with defendant, B executed the release indicating in part that B released and discharged the defendant from payment of any and all no-fault benefits related to the accident incurred after 7/6/10. Six months after signing the release, B began treating with plaintiff-Michigan Head & Spine Institute because of injuries sustained in the accident. Defendant refused to reimburse B for costs related to plaintiff's treatment of B, based on the release. Later, plaintiff filed a complaint against defendant in the district court for payment for medical services rendered to B. The district court granted the motion for plaintiff and entered a judgment for plaintiff in the amount of $12,450, plus interest of $1,623.60. On appeal, the trial court affirmed the district court's ruling. Applying contract law in analyzing the release, the court concluded that the plain language of the release demonstrated that, in exchange for defendant's payment of $35,000, the parties intended to discharge defendant's liability altogether, including its liability for future medical services. The parties' intent expressed in the release governed its scope.

 

Litigation

 

This summary also appears under Tax

 

Issues: Docket No. 305970 - The Michigan Tax Tribunal's (MTT) findings of the true cash values (TCV) of the parcels; Docket No. 306727 - Denial of respondent-Township's motions for costs; Michigan Props., LLC v. Meridian Twp.; Const. 1963, art. 6, § 28; In re Payne; Const. 1963, art. 9, § 3; MCL 211.27a(1); "True cash value" defined; MCL 211.27(1); Huron Ridge LP v. Ypsilanti Twp.; MCL 205.737(3); Great Lakes Div. of Nat'l Steel Corp. v. City of Ecorse; President Inn Props. LLC v. City of Grand Rapids; Meadowlanes Ltd. Dividend Hous. Ass'n v. City of Holland; Motion for costs; Fansler v. Richardson; 1999 AC, R 205.1111(1); 1999 AC, R 205.1111(4); Signature Villas, LLC v. City of Ann Arbor; Whether the Township was the "prevailing party"; 1999 AC, R 205.1145; MCR 2.625(B)(2); LaVene v. Winnebago Indus.; Van Zanten v. H Vander Laan Co.; Forest City Enters., Inc. v. Leemon Oil Co.; Whether the petitioner-Country Club's action was "frivolous"; MCR 2.625(A)(2); Kitchen v. Kitchen; State Farm Fire & Cas. Co. v. Johnson; MCL 600.2591(3)(a); Radtke v. Miller, Canfield, Paddock & Stone; MCL 205.737(1); Whether the case was analogous to DeWald v. Isola

Court: Michigan Court of Appeals (Published)

Case Name: Pontiac Country Club v. Township of Waterford

e-Journal Number: 53916

Judge(s): Per Curiam – Jansen, Whitbeck, and Borrello

 

The court held that the MTT did not "shirk its duties" to independently determine the properties' TCVs. The MTT also did not err when it determined that the respondent-Township was not a "prevailing party," and did not abuse its discretion when it denied the Township's motion for costs. Further, the court held that, in light of the MTT's ruling that a hearing was necessary to determine the property's TCV, the record supported its finding that the petitioner-Country Club's action was not frivolous. The Country Club challenged the assessed and taxable values of nine parcels of property. The Country Club uses eight of the nine parcels in combination as a golf course, and the ninth as a used car lot. As the case progressed, the Country Club moved to amend its petition to include assessments for 2005 and 2006. The parties ultimately did not dispute the value of the used car lot. The Township assessed the combined value of the properties at $3,919,360 in 2004, $3,862,560 in 2005, and $4,223,440 in 2006. The MTT ultimately concluded that the Township accurately assessed the property's TCV in 2004, 2005, and 2006. The Country Club contended that the MTT improperly adopted the Township's assessment, instead of independently determining the properties' TCVs. The court disagreed that the MTT adopted the Township's assessment without any basis. The court held that the MTT made an independent determination of TCV in this case. The MTT may adopt the assessed valuation on the tax rolls as its independent finding of TCV when competent and substantial evidence supports doing so, as long as it does not afford the original assessment presumptive validity. Generally, competent and material evidence supports the MTT's determination if it is within the range of the evidence advanced by the parties. Here, competent and material evidence supported the MTT's determination. It rejected the Country Club's appraiser's proposed valuation because it was not credible. The credibility of the witnesses is a matter for the MTT to determine. The MTT also rejected the Township's appraiser's determination because he based it on "hypothetical property" - he assumed that the Country Club could rezone the property, but the property was not yet rezoned. The MTT's ultimate determination was between these two extremes. Thus, the evidence supported the MTT's determination because it was within the range of evidence presented by the parties. Further, there was no indication that the MTT presumed that the original assessment was valid. The Township's chief assessor testified about his methods in his initial assessments, and testified that he believed that his assessment methods were accurate. Affirmed.

 

Malpractice

 

This summary also appears under Attorneys

 

Issues: Legal malpractice; Whether the plaintiffs' claims were barred by the statute of limitations; Kloian v. Schwartz; Wright v. Rinaldo; MCL 600.5805(6); MCL 600.5838(2); Accrual of a professional malpractice claim; MCL 600.5838(1); Determining exactly when an attorney discontinues serving a client in a professional capacity; Gebhardt v. O'Rourke; Additional acts by the attorney after discontinuing service to a plaintiff; Bauer v. Ferriby & Houston, PC; Representation in a separate matter; Balcom v. Zambon; MCR 2.116(I)(3); Sweet Air Inv., Inc. v. Kenney

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Esther Hubert v. Morganroth

e-Journal Number: 53785

Judge(s): Per Curiam – Hoekstra, Servitto, and Beckering

 

Holding that there were factual questions that had to be resolved to determine whether the complaint was time-barred, the court reversed the trial court's order granting the defendants-attorneys and law firm summary disposition and remanded the case for further proceedings. The parties presented conflicting evidence as to whether defendants' representation was continuous before and after the entry of the consent judgment in the underlying case in 9/06. There was no written retainer agreement, and the parties agreed that the representation agreement was made orally. Plaintiffs claimed in their affidavits that defendants orally represented that they would pursue the case as well as recovery and collection of the money. Defendants asserted in their affidavits that their representation of plaintiffs ended after the consent judgment was entered, resolving all remaining claims and closing the case. If plaintiffs' version was believed "then defendants' representation of plaintiffs in the post-consent judgment collection activities was a continuation of the original representation." However, if defendants' version was believed, then their "later representation of plaintiffs constituted separate and discrete representation." Thus, a fact-finder had to make a credibility determination based on these competing versions of the representation agreement before the scope of defendants' representation could be determined. The parties also presented conflicting evidence as to when defendants' representation ended. Both parties focused their claims on what occurred during a meeting held on 6/26/09. If defendants' affidavits were believed, no legal services were performed at the meeting, the purpose of which was only to pass along the results of a third-party's investigation and to determine if plaintiffs wanted to hire defendants to perform any more legal work as to the collection efforts. Defendants stated that at the meeting plaintiffs declined any further legal representation, and informed them that they would take over all collection efforts. Defendants asserted that after the meeting the only work they did on plaintiffs' case was to make arrangements to give them access to the files and to convey other relevant information so they could pursue their own claims. Thus, according to defendants' version of the facts, the complaint was not timely filed. However, if plaintiffs' affidavits were believed, legal services were provided at the 6/26/09 meeting and thus, defendants' representation continued at least until that date, and the complaint was timely filed. Plaintiffs stated in their affidavits that at the meeting, defendants indicated they would take more depositions and would continue to represent plaintiffs. Determining the timeliness of the complaint depended on the resolution of these disputed facts.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Personal injury action arising out of a vehicular collision; Whether defendants-Gibson and Suburban Mobility Authority for Regional Transportation (SMART) were entitled to governmental immunity; Whether plaintiff presented sufficient evidence to demonstrate a genuine issue of material fact as to whether Gibson and SMART were liable for negligent operation of a motor vehicle or "gross negligence"; Seldon v. SMART; Hoffner v. Lanctoe; Allison v. AEW Capital Mgmt., LLP; Latham v. Barton Malow Co.; Stanton v. City of Battle Creek; Fane v. Detroit Library Comm'n; Negligent operation of a motor vehicle exception to governmental immunity; MCL 691.1405; Whether Gibson (bus driver) ran a red light and whether he had the statutory right to enter the intersection; MCL 257.612(1)(a) and MCL 257.649(1); DiBenedetto v. West Shore Hosp.; Gross negligence; MCL 691.1407(2); MCL 691.1407(7)(a)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Branyon v. Park-Fields

e-Journal Number: 53685

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

 

In this case where the plaintiff, a bus passenger, was injured when the bus was in a collision at an intersection and she claimed that a question of fact remained as to whether defendant-Gibson ran at least one red light, the court held that whether the second light was solid red was a genuine issue of material fact that remained. Viewing the evidence in the light most favorable to the plaintiff, the nonmoving party, the trial court did not err in denying Gibson and defendant-SMART's motion for partial summary disposition based on governmental immunity. On appeal, Gibson and SMART argued that governmental immunity barred plaintiff's claim because she failed to establish that the negligent operation of a motor vehicle exception to governmental immunity applied and the trial court erred in denying their motion for summary disposition. Plaintiff contended that Gibson ran at least one red light and should have stopped the bus before entering the intersection. Gibson argued that because he was lawfully in the intersection, he had the statutory right of way to exit the intersection and defendant-Park-Fields was required to yield to Gibson. SMART and Gibson also argued that governmental immunity barred plaintiff's claim because she failed to establish that Gibson was grossly negligent. The court disagreed. Because running a red light would arguably create a greater risk of harm than blocking traffic, a jury could find that Gibson was negligent for running the red light, even though not doing so would result in the bus blocking traffic. The court concluded that because there was a question of fact as to whether Gibson ran the second red light, a jury could find that this action constituted gross negligence because of the inherent risks involved in running a red light, particularly while driving a bus transporting several people. Thus, the trial court did not err in denying these defendants' motion for summary disposition as to plaintiff's claim that Gibson was grossly negligent. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Personal injury action arising out of a vehicular collision; Whether defendants-Gibson and Suburban Mobility Authority for Regional Transportation (SMART) were entitled to governmental immunity; Whether plaintiff presented sufficient evidence to demonstrate a genuine issue of material fact as to whether Gibson and SMART were liable for negligent operation of a motor vehicle or "gross negligence"; Seldon v. SMART; Hoffner v. Lanctoe; Allison v. AEW Capital Mgmt., LLP; Latham v. Barton Malow Co.; Stanton v. City of Battle Creek; Fane v. Detroit Library Comm'n; Negligent operation of a motor vehicle exception to governmental immunity; MCL 691.1405; Whether Gibson (bus driver) ran a red light and whether he had the statutory right to enter the intersection; MCL 257.612(1)(a) and MCL 257.649(1); DiBenedetto v. West Shore Hosp.; Gross negligence; MCL 691.1407(2); MCL 691.1407(7)(a)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Branyon v. Park-Fields

e-Journal Number: 53685

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

 

In this case where the plaintiff, a bus passenger, was injured when the bus was in a collision at an intersection and she claimed that a question of fact remained as to whether defendant-Gibson ran at least one red light, the court held that whether the second light was solid red was a genuine issue of material fact that remained. Viewing the evidence in the light most favorable to the plaintiff, the nonmoving party, the trial court did not err in denying Gibson and defendant-SMART's motion for partial summary disposition based on governmental immunity. On appeal, Gibson and SMART argued that governmental immunity barred plaintiff's claim because she failed to establish that the negligent operation of a motor vehicle exception to governmental immunity applied and the trial court erred in denying their motion for summary disposition. Plaintiff contended that Gibson ran at least one red light and should have stopped the bus before entering the intersection. Gibson argued that because he was lawfully in the intersection, he had the statutory right of way to exit the intersection and defendant-Park-Fields was required to yield to Gibson. SMART and Gibson also argued that governmental immunity barred plaintiff's claim because she failed to establish that Gibson was grossly negligent. The court disagreed. Because running a red light would arguably create a greater risk of harm than blocking traffic, a jury could find that Gibson was negligent for running the red light, even though not doing so would result in the bus blocking traffic. The court concluded that because there was a question of fact as to whether Gibson ran the second red light, a jury could find that this action constituted gross negligence because of the inherent risks involved in running a red light, particularly while driving a bus transporting several people. Thus, the trial court did not err in denying these defendants' motion for summary disposition as to plaintiff's claim that Gibson was grossly negligent. Affirmed.

 

Qui Tam

 

Issues: False Claims Act (FCA); 31 USC § 3729 et seq.; Fraud Enforcement and Recovery Act (FERA); Statutory interpretation; Deutsche Bank Nat'l Trust Co. v. Tucker; Russello v. United States; Burlington N. & Santa Fe Ry. Co. v. White; Kosak v. United States; Lindh v. Murphy; Atlantic Cleaners & Dyers, Inc. v. United States; Smith v. City of Jackson; General Dynamics Land Sys., Inc. v. Cline; Environmental Def. v. Duke Energy Corp.; Lawson v. Suwannee Fruit & S.S. Co.; The retroactivity language of § 4(f)(1); United States ex rel. Yannacopoulos v. General Dynamics (7th Cir.); United States ex rel. Kirk v. Schindler Elevator Corp. (2nd Cir.); United States ex rel. Cafasso v. General Dynamics C4 Sys., Inc. (9th Cir.); Hopper v. Solvay Pharm., Inc. (11th Cir.); United States ex rel. Steury v. Cardinal Health, Inc. (5th Cir.); Gonzalez v. Fresenius Med. Care N. Am.; The Ex Post Facto Clause; U.S. Const. art. I, § 9, cl. 3; United States v. Coleman; Cutshall v. Sundquist; Whether a statute constitutes retroactive punishment; Smith v. Doe; Hudson v. United States; United States v. Ward; Intent; Kansas v. Hendricks; Purpose of FCA; United States v. Bornstein; Punitive effect; Kennedy v. Mendoza-Martinez; Cook Cnty. v. United States ex rel. Chandler; Deterrent effects of FCA; United States ex rel. Roby v. Boeing Co.; Doe v. Bredesen; Treble damages as punishment; Texas Indus., Inc. v. Radcliff Materials; Vermont Agency of Natural Res. v. United States ex rel. Stevens; Pacificare Health Sys., Inc. v. Book; Due process and retroactive application; Landgraf v. USI Film Prods.; Pension Benefit Guar. Corp. v. R.A. Gray & Co.; BMW of N. Am., Inc. v. Gore

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Sanders v. Allison Engine Co.

e-Journal Number: 53658

Judge(s): Gibbons, Batchelder, and Cook

 

In a decision that was originally issued as an unpublished opinion that the court designated for publication, the court held that the district court erred in finding that Congress's amendment to the FCA liability standards could not be applied retroactively. Plaintiffs brought a qui tam action pursuant to the FCA, alleging that several defendant subcontractors engaged in fraud in connection with the construction of generator sets used in United States Navy Arleigh-Burke-class Guided Missile Destroyers. The case went to the Supreme Court, which held that FCA liability required presentment of the claim to the government. Congress subsequently amended the liability standards and retroactively removed the presentment requirement. It also included specific retroactivity language in § 4(f)(1) of FERA indicating that the changes to § 3729(a)(2), now codified at § 3729(a)(1)(B), "shall take effect as if enacted on June 7, 2008, and apply to all claims under the False Claims Act . . . that are pending on or after that date." The defendants in this case moved to preclude retroactive application of the amended provisions in § 3729. The district court found that retroactivity was precluded and ruled for defendants. On appeal, the court first looked to the FERA statute, finding that it was not appropriate to import the technical definition of "claim" into § 4(f)(1) and that "the retroactivity clause embodies the situation where the presumption of uniform usage has been rebutted and the natural or ordinary meaning of claim should be used for purposes of interpreting § 4(f)(1)." With that, the court then addressed the issue of whether the retroactivity language in FERA § 4(f)(1) applies to civil actions pending as of 6/7/08. First, it held that the word "claim" in § 4(f)(1) refers to a civil action or case. Next, it held that retroactively applying § 3729(a)(1)(B)'s liability standard to cases pending on 6/7/08 would not violate the Ex Post Facto Clause. It noted that the indicators of legislative intent suggested that "Congress intended to implement civil proceedings for combating fraud and not to impose punishment." Further, it concluded that, viewed as a whole, the Mendoza-Martinez factors failed to "demonstrate a sufficiently punitive purpose or effect to 'transform what has been denominated a civil penalty into a criminal penalty.'" Finally, the court found that retroactive application did not violate due process, noting that Congress wanted to "correct what it viewed as an erroneous interpretation of the FCA and passed the amendment 'to reflect the original intent of the law.'" Reversed and remanded.

 

Tax

This summary also appears under Litigation

 

Issues: Docket No. 305970 - The Michigan Tax Tribunal's (MTT) findings of the true cash values (TCV) of the parcels; Docket No. 306727 - Denial of respondent-Township's motions for costs; Michigan Props., LLC v. Meridian Twp.; Const. 1963, art. 6, § 28; In re Payne; Const. 1963, art. 9, § 3; MCL 211.27a(1); "True cash value" defined; MCL 211.27(1); Huron Ridge LP v. Ypsilanti Twp.; MCL 205.737(3); Great Lakes Div. of Nat'l Steel Corp. v. City of Ecorse; President Inn Props. LLC v. City of Grand Rapids; Meadowlanes Ltd. Dividend Hous. Ass'n v. City of Holland; Motion for costs; Fansler v. Richardson; 1999 AC, R 205.1111(1); 1999 AC, R 205.1111(4); Signature Villas, LLC v. City of Ann Arbor; Whether the Township was the "prevailing party"; 1999 AC, R 205.1145; MCR 2.625(B)(2); LaVene v. Winnebago Indus.; Van Zanten v. H Vander Laan Co.; Forest City Enters., Inc. v. Leemon Oil Co.; Whether the petitioner-Country Club's action was "frivolous"; MCR 2.625(A)(2); Kitchen v. Kitchen; State Farm Fire & Cas. Co. v. Johnson; MCL 600.2591(3)(a); Radtke v. Miller, Canfield, Paddock & Stone; MCL 205.737(1); Whether the case was analogous to DeWald v. Isola

Court: Michigan Court of Appeals (Published)

Case Name: Pontiac Country Club v. Township of Waterford

e-Journal Number: 53916

Judge(s): Per Curiam – Jansen, Whitbeck, and Borrello

 

The court held that the MTT did not "shirk its duties" to independently determine the properties' TCVs. The MTT also did not err when it determined that the respondent-Township was not a "prevailing party," and did not abuse its discretion when it denied the Township's motion for costs. Further, the court held that, in light of the MTT's ruling that a hearing was necessary to determine the property's TCV, the record supported its finding that the petitioner-Country Club's action was not frivolous. The Country Club challenged the assessed and taxable values of nine parcels of property. The Country Club uses eight of the nine parcels in combination as a golf course, and the ninth as a used car lot. As the case progressed, the Country Club moved to amend its petition to include assessments for 2005 and 2006. The parties ultimately did not dispute the value of the used car lot. The Township assessed the combined value of the properties at $3,919,360 in 2004, $3,862,560 in 2005, and $4,223,440 in 2006. The MTT ultimately concluded that the Township accurately assessed the property's TCV in 2004, 2005, and 2006. The Country Club contended that the MTT improperly adopted the Township's assessment, instead of independently determining the properties' TCVs. The court disagreed that the MTT adopted the Township's assessment without any basis. The court held that the MTT made an independent determination of TCV in this case. The MTT may adopt the assessed valuation on the tax rolls as its independent finding of TCV when competent and substantial evidence supports doing so, as long as it does not afford the original assessment presumptive validity. Generally, competent and material evidence supports the MTT's determination if it is within the range of the evidence advanced by the parties. Here, competent and material evidence supported the MTT's determination. It rejected the Country Club's appraiser's proposed valuation because it was not credible. The credibility of the witnesses is a matter for the MTT to determine. The MTT also rejected the Township's appraiser's determination because he based it on "hypothetical property" - he assumed that the Country Club could rezone the property, but the property was not yet rezoned. The MTT's ultimate determination was between these two extremes. Thus, the evidence supported the MTT's determination because it was within the range of evidence presented by the parties. Further, there was no indication that the MTT presumed that the original assessment was valid. The Township's chief assessor testified about his methods in his initial assessments, and testified that he believed that his assessment methods were accurate. Affirmed.

 

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