• Administrative Law (1)
• Criminal Law (7)
• Litigation (1)
• Probate (1)
• Tax (1)
• Termination of Parental Rights (3)
• Wills & Trusts (1)

Administrative Law

 

Issues: The Michigan Public Service Commission's (PSC) disallowance of the recovery of certain claimed depreciation expenses; Michigan Consol. Gas Co. v. Public Serv. Comm'n; MCL 462.26(8); In re MCI Telecom Complaint; Associated Truck Lines, Inc. v. Public Serv. Comm'n; Const. 1963, art. 6, § 28; Attorney Gen. v. Public Serv. Comm'n; Attorney Gen. v. Public Serv. Comm'n No. 2; In re Complaint of Rovas Against SBC MI; In re Complaint of Pelland Against Ameritech MI; Statutory interpretation; In re Application of Consumers Energy Co.; The PSC's authority; In re Application of Consumers Energy Co. for Auth. to Implement a Gas Cost Recovery Plan & Factors; Whether the PSC's decision was "arbitrary and capricious" (and thus unreasonable) because the PSC based its decision to deny the petitioner-Michigan Gas Utilities Corporation's (MGUC) request to recover the reserve deficiency on language that did not appear in the orders applicable to MGUC; Romulus v. Department of Envtl. Quality

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Application of MI Gas Utilities Corp. Per Order U-14292

e-Journal Number: 53771

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

 

The court held that the PSC's order was unlawful and unreasonable because the PSC's denial of petitioner-MGUC's request to recover the depreciation reserve deficiency on the ground that MGUC failed to notify the PSC in advance of its decision to retire the equipment early was not supported by any statute or rule. The court held that the PSC's decision was arbitrary and capricious, and thus unreasonable, because the PSC based its decision to deny MGUC's request to recover the reserve deficiency on language that did not appear in the orders applicable to MGUC. Thus, the court reversed the PSC's order disallowing the recovery of certain claimed depreciation expenses. The PSC noted that over 90% of the mobile radio equipment retired was in use by the end of 2001, and observed that MGUC's depreciation order in effect at that time in Case No. U-12395 required MGUC to give the PSC advance notice of retirement of assets during the period in which the depreciation rates were in effect. "However, that order ceased to be effective prior to retirement of the assets in 2006 and 2007." The PSC approved revised depreciation rates for MGUC in an order issued on 3/12/03, in Case No. U-13393. That order, and the settlement agreement it approved, did not contain a provision requiring MGUC to give advance notice of the early retirement of assets. "The PSC has only those powers conferred on it by statute. These statutes must be strictly construed, and the PSC may exercise power only if it is conferred by clear and unmistakable statutory language." The PSC primarily relied on the advance notice provision in the settlement agreement approved by the order in Case No. U-12395 to deny MGUC's request to recover the reserve deficiency. "However, that clause applied specifically to the period in which the depreciation rates established by the agreement were in effect." The depreciation rates established by the settlement agreement approved in the 9/7/01 order in Case No. U-12395 were no longer in effect when MGUC retired the assets at issue. The PSC correctly observed that MGUC did not seek to recover the reserve deficiency in Case No. U-14830, which dealt with certain accounting and depreciation changes associated with the 2006 acquisition of Aquila, Inc. or in Case Nos. U-15549 and U-15990, MGUC's latest general rate cases. However, MGUC filed Case No. U-14830 on 3/20/06, apparently before all the assets at issue had been retired. Also, MGUC filed Case Nos. U-15549 and U-15990 after the PSC issued an order in Case No. U-14292 instructing it and other utilities to file a depreciation rate case. "The PSC has wide discretion in matters of ratemaking." The PSC reasoned that the magnitude of the recovery sought made this case one in which MGUC should have given the PSC advance notice that the assets were to be retired. "However, the PSC's conclusion that MGUC was required to give advance notice of the retirement of the assets at issue when MGUC was under no order to do so constituted an abuse of discretion in the exercise of its judgment, and thus was unlawful."

 

Criminal Law

 

Issues: Whether defendant was subjected to "interrogation" (specifically "express questioning or its functional equivalent") after he invoked his right to remain silent; Miranda v. Arizona; Rhode Island v. Innis; People v. Attebury; Acosta v. Artuz (2nd Cir.); Whether the officer's statement could be reasonably viewed as a question; Whether several of defendant's individual personal characteristics increased the likelihood that he would perceive the detective's comments as requiring a response; Whether the case was factually distinguishable from Innis; Fleming v. Metrish (6th Cir.); Effect of the fact the detective was speaking directly to defendant; Easley v. Frey (7th Cir.); United States v. Payne (4th Cir.); Shedelbower v. Estelle (9th Cir.); People v. McCuaig; People v. Kowalski

Court: Michigan Supreme Court

Case Name: People v. White

e-Journal Number: 53937

Judge(s): Markman, Young, Jr., and Zahra; Dissent – Cavanagh; Separate Dissent – Kelly; Not participating - McCormack

 

The court agreed with the Court of Appeals that defendant was not subjected to "interrogation" or, more specifically, "express questioning or its functional equivalent," after he invoked his right to remain silent. Thus, the court affirmed the judgment of the Court of Appeals, which reversed the trial court's decision to suppress defendant's voluntarily given confession. He allegedly turned a drug buy into an armed robbery by pulling out a gun instead of proffering cash. He and the victim allegedly struggled over the gun, the gun went off, and the victim was killed. While in custody, defendant made comments to an officer indicating that he did not mean to do it, that it "was a complete accident." Before trial, he moved to suppress his statement. The court agreed with the Court of Appeals that defendant was not subjected to "express questioning" after he invoked his right to remain silent. The officer's comment -- "I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it" -- was not a question because it did not ask for an answer or invite a response. "It was a mere expression of hope and concern." The addition of the words "okay" and "all right" at the end of his comment did not transform a non-question into a question. This was "especially obvious when the conversation is considered in its entirety, as it must be, because the officer repeatedly used the words 'okay' and 'all right' in a manner that failed to garner any response from defendant." He used the word "okay" 17 times during the 5-minute conversation, and yet defendant only "responded" 3 times, including the "response" that was at issue in this case, and the other 2 "responses" were simply "yeah" and "okay." The officer used the phrase "all right" 4 times during the 5-minute conversation and only in this one instance did defendant again "respond." Further, "that 'response' was in no way responsive to the officer's statement because defendant said nothing about the gun -- the very matter that had been the subject of the officer's statement." Also, from its review of the video of the interview, the officer's comment, in the court's judgment, "did not at all sound like a question." The officer did not say the words "okay" and "all right" in "a manner and with an emphasis that would have made a reasonable person believe that a response was expected." Further, immediately before the officer made the statement at issue, he said, "I'm not asking you questions, I'm just telling you." While this was certainly not dispositive of whether what follows constituted a "question," it was relevant as to whether he reasonably should have expected an answer. To the extent that the officer's statement could even be reasonably viewed as a question, it did not seem intended to generate an incriminating response. The court further agreed with the Court of Appeals that defendant was not subjected to the "functional equivalent" of express questioning after he invoked his right to remain silent. Just as in Innis, nothing in the record suggested that the officer was aware that defendant was "peculiarly susceptible to an appeal to his conscience" as to the safety of others. The court also held that the fact the officer was talking directly to defendant did not require a different outcome from Innis.

Justice Cavanagh concluded that defendant was improperly subjected to the "functional equivalent" of interrogation under Innis. Thus, he would reverse the judgment of the Court of Appeals, reinstate the trial court's order suppressing defendant's incriminating statements, and remand the case to the trial court for proceedings consistent with his opinion.

Justice Kelly believed that the officer engaged in the "functional equivalent" of express questioning "by exploiting defendant's youth, a characteristic that made him particularly susceptible" to the officer's compulsive techniques. "Because this constituted 'interrogation' and defendant had invoked his right to remain silent," she would reverse the judgment of the Court of Appeals and suppress his statement.

 

Issues: Constitutional right to a public trial; Waller v. Georgia; Closure of the courtroom during part of a child CSC victim's testimony; People v. Kline; "Plain error" review; People v. Vaughn; Prosecutorial misconduct; People v. Callon; Presumption that jurors follow their instructions; People v. Unger

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Blackwell

e-Journal Number: 53813

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

 

The court held that while the trial court erred by not making all of the Waller findings on the record, the defendant failed to show that she was actually innocent or that any error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Thus, the court rejected her claim that her constitutional right to a public trial was violated by the closure of the proceedings to the public during part of the 11-year old victim's testimony. Defendant was convicted of CSC I and II based on a theory of aiding and abetting. She was also convicted of pandering and possession of cocaine under 25 grams. The victims were her granddaughters. The court concluded that the first two requirements under Waller were easily met. The prosecution "advanced protecting a young witness as an overriding interest that would be prejudiced by the failure to close the trial." The court recognized in Kline that "the government may have a substantial or compelling interest in protecting young witnesses who are called to testify in cases involving allegations of sexual abuse." Further, the closure was limited to the part of the child's testimony about the details of her sexual abuse, "which was not broader than necessary to protect the witness." Although the trial court did not make explicit findings as to the final two Waller requirements, the court held that the record showed that these requirements were satisfied. While the trial court did not specifically consider any alternatives to clearing the courtroom during the child's testimony on the record, it referenced her "tender age and concluded that it was reasonable for someone that young to have difficulties testifying regarding the details of the sexual assaults in the presence of many strangers." Further, immediately before the prosecutor brought the motion, "the witness was incapable of answering the question, 'Where did he touch you?' with the courtroom open." Thus, the court concluded that the trial court's failure to consider alternative options on the record did not require reversal. The court found no basis for defendant's claim that the jury could infer that the reason the courtroom was cleared was because she was necessarily guilty. Rather, the context was "patently clear that the witness was unable to proceed with the sensitive testimony in front of the entire gallery." The court also held that any error in the prosecutor's closing argument was harmless, noting that defendant was shown to have received money and drugs from the man who committed the assaults (G) in exchange for arranging for G to have access to her granddaughters so that he could assault them. Affirmed.

 

Issues: Search and seizure; Motion to suppress evidence found in a home during searches pursuant to two search warrants; People v. Kazmierczak; The magistrate's "probable cause" determination; People v. Russo; People v. Darwich; Whether either the first or the second search warrant was invalid; Scope of the second warrant; Waiver of claim as to the jury instruction on "possession"; People v. Carter

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bodiford

e-Journal Number: 53791

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

 

The court held that the trial court did not err in denying the defendant's motion to suppress the handguns found in his home because (1) both of the search warrants were supported by probable cause and (2) the trial court's finding that both warrants were in effect when the officers found the guns was not clearly erroneous. Defendant was convicted of felon in possession and felony-firearm. The court held that he failed to show that the first search warrant was invalid "because a reasonably cautious person would have concluded that there was a substantial basis to find probable cause." Officer L's affidavit stated that while two state troopers were conducting a traffic stop, defendant and a witness stopped in another vehicle and reported that they were shot during a home invasion, and the troopers observed that they were in fact shot. "A reasonable person would conclude from the affidavit that it was substantially likely that the officers would find evidence concerning the home invasion crime" in defendant's home. The court also held that the second warrant was not invalid. "The affidavit stated that officers found a substance in plain view while executing the first warrant, and that substance tested positive for crack cocaine. A reasonable person would conclude from the affidavit that it was substantially likely that contraband would be found in the home." Defendant also argued that the officers exceeded the scope of the second warrant when they seized the guns as potential evidence while they were searching for drugs under the second warrant. He appeared to premise his argument on the basis that when the magistrate issued the second warrant, it negated the first one. However, he failed to provide any law to support an argument that, when the magistrate issued the second search warrant, it negated the first one as a matter of law, and the court concluded that he abandoned this argument. Further, the trial court found that the first search warrant did not expire and was still operative, and that the officers were searching for evidence of the home invasion and drugs under both warrants. The court determined that this finding was not clearly erroneous. "The officers testified at the suppression hearing that they had not finished their investigation of the home invasion when the magistrate issued the second warrant, and that they reasonably believed the handguns were linked to the shootings during the home invasion." In fact, they later matched some spent shell casings in the living room to the 32-caliber handgun that they recovered. Affirmed.

 

Issues: Sufficiency of the evidence to support defendant's convictions of OUIL causing serious impairment of bodily function; People v. Tombs; People v. Ericksen; People v. Tennyson; People v. Unger; People v. Allen; MCL 257.625(5); "Causation"; People v. Feezel; Whether an intervening cause supersedes a defendant's conduct is a question of reasonable foreseeability; People v. Shaefer; People v. Derror; Crime victims assessment fee; People v. Earl

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Decaluwe

e-Journal Number: 53751

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

 

The court held that there was sufficient evidence from which a reasonable jury could have found defendant guilty of two counts of OUIL causing serious impairment of bodily function. Also, the Ex Post Facto Clauses of the federal and Michigan constitutions were not violated by the imposition of a $130 crime victim assessment fee. Defendant was driving when he was involved in a roll-over accident, causing injury to his two passengers (O and U). Tests revealed that defendant's BAC was 163 milligrams per deciliter. O and U, who were also drinking at the bar with defendant that night, testified that he showed no signs of intoxication when they left the bar. O testified that defendant was driving about 65 MPH when a deer jumped in front of the vehicle. O testified that defendant swerved to avoid the deer, the vehicle hit a bump in the road, causing defendant to lose control of the vehicle. U, who was in the back seat, testified that when he drove in the county, he saw deer "most of the time." An officer who twice interviewed defendant, testified that he never mentioned a deer in the road and simply claimed that he hit a dip in the road. The officer testified that when he initially questioned defendant at the scene, he indicated that O was driving the vehicle. One of the elements of the crime of OUIL causing serious bodily injury is causation, which is comprised of two elements - factual causation and proximate causation. Proximate causation "is a legal construct designed to prevent criminal liability from attaching when the result of the defendant's conduct is viewed as too remote or unnatural." Thus, if the finder of fact determines that an intervening cause supersedes a defendant's conduct such that the causal link between the defendant's conduct and the victim's injury was broken, proximate cause is lacking and criminal liability cannot be imposed. "Whether an intervening cause supersedes a defendant's conduct is a question of reasonable foreseeability." Defendant contended that the sudden appearance of a deer in the road was an act of God that severed the causal link between his driving and his passengers' injuries. The court concluded that his argument was flawed because a rational jury could have found that there was no deer in the road. In light of the testimony, a rational jury could have found that this alleged story of the deer was not credible. Defendant also failed to establish that the appearance of a deer, even if true, severed the causal link between his driving and the resulting injuries. A rational jury could have found that the alleged deer was not a superseding force. U testified that the presence of a deer in that area was not unusual and that he saw them all the time. Thus, a reasonable jury could have concluded that the appearance of a deer was reasonably foreseeable and would not qualify as a superseding cause severing the causal link of defendant's behavior. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of first-degree premeditated murder; People v. Patterson; People v. Cameron; People v. Hawkins; People v. Kissner; People v. Musser; Credibility of the witness; People v. Lemmon; Whether the prosecution provided any evidence of "premeditation" or "deliberation"; People v. Hardiman; People v. Nowack; Whether the trial court's time limitation on defendant's attorney's participation in voir dire denied defendant the ability to pick an impartial jury and denied him due process; MCR 6.412(C)(1); People v. Harrell; People v. Tyburski; "Plain error"; People v. Carines; Whether defendant's due process rights to a fair trial and a fair voir dire process "trumped" judicial economy; Prosecutorial misconduct; Whether the prosecutor denied defendant his due process right to a fair trial by personally vouching for the credibility of one of the prosecution witnesses; People v. Callon; People v. Fyda; People v. Leshaj; People v. Bahoda; People v. Bennett

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Lott

e-Journal Number: 53795

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

 

The court held, inter alia, that there was sufficient evidence to convict the defendant of first-degree premeditated murder and assault with intent to commit murder as an aider and abettor of E, the shooter. The charges against defendant arose following an incident that occurred outside a motorcycle club. One member of the S Club was killed, and three other members were shot. Defendant argued that the prosecution failed to provide any evidence of either premeditation or deliberation, which is necessary to prove guilt of first-degree murder and assault with intent to murder. He also argued that the prosecution did not show that he was lying in wait or had made plans to kill the victim but instead a fight broke out and the shooter obtained a gun that she used in the heat of the moment to shoot four people. The evidence presented by the prosecution showed that there was a physical altercation between the female members of two motorcycle clubs and that defendant entered into the fray. Defendant was identified as the president of one of the motorcycle clubs that was involved in the fight. Witnesses testified that at some point defendant was standing next to E. Three of the witnesses who were members of the other motorcycle club involved in the altercation testified that they saw him reach into an area around the waistband of his pants or under his coat, pull out a gun, and place the gun into the hand of E. At this point, the female members of the S Club turned and started to run away. Witnesses testified that, after E received the gun, she hesitated, and defendant ordered her to "shoot [those] bitches" and to "chase them." The evidence as a whole supported an inference that defendant had sufficient time to take a second look before the victims were shot. Defendant made a decision to enter the fray armed with a gun, made a decision to reach for his gun while in the fray, made a decision to put the gun in E's hand, and when she hesitated, he made a decision to order her to chase and shoot the victims. While different inferences could be drawn from the evidence, the court held that it is for the jury, not the court, to decide what inferences can be fairly drawn from the evidence and to judge the weight to accord those inferences. Affirmed.

 

Issues: Jury instruction on the lesser included offense of felonious assault; People v. Metamora Water Serv., Inc.; People v. Wilder; People v. McGhee; MCL 768.32(1); People v. Nickens; People v. Wilder; CJI2d 18.1; CJI2d 17.9; "Dangerous weapon"; CJI2d 17.10(1)-(2); Whether felonious assault is a "cognate lesser offense" of armed robbery; CJI2d 18.1(5)(d); Ineffective assistance of counsel for failure to request an instruction on the lesser included offense of larceny from a person; People v. Lockett; People v. Perkins; Claim that the trial court denied defendant a fair trial by asking her a biased and prejudicial question while she was on the stand; People v. Conyers; MRE 614(b); People v. Sterling; Whether the trial court should not have scored any points under OV 1 or OV 2; MCR 6.429(C); People v. Kimble; Whether the trial court properly admitted defendant's prior convictions; MRE 609; MRE 404(b); Whether the prosecution failed to provide pretrial notice of its intention to introduce defendant's previous convictions under MRE 404(b)(2); People v. Mack

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Micsak

e-Journal Number: 53789

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

 

Holding that the jury instructions were correct, trial counsel's performance was adequate, and defendant's prior convictions were admissible under the circumstances of the case, the court affirmed her conviction by a jury of unarmed robbery, as a lesser included offense of armed robbery. The appeal involved a shoplifting incident that occurred at a department store. W, a loss prevention officer at the store, testified to witnessing defendant leaving the store wearing a pair of pants that she had not paid for. When defendant exited the building, W followed her into the parking lot. W testified that she confronted defendant as she was getting into her parked car. According to W, she identified herself as a loss prevention officer, showed identification, and told defendant she wanted her "pants back." She testified that she positioned herself between defendant and the driver's side door of defendant's car and told defendant that she would call the police if defendant did not return the pants, to which defendant replied "call the fucking police." Defendant then slammed the car door on W's arm twice, leaving a bruise. As a result, W radioed the store manager, who called the police. W then walked to the back of defendant's car to record its license plate number. W stated that as she was standing behind defendant's vehicle, defendant started the car and revved the engine. W jumped out of the way just before defendant backed out of the parking space and sped out of the parking lot. Defendant testified that she never realized that she struck W in the arm. She also testified that she did not see W standing behind her vehicle, and never intended to back her car into W. Defendant argued that felonious assault is a cognate lesser offense of armed robbery because it is possible to commit an armed robbery without actually possessing a dangerous weapon. In order to convict defendant of armed robbery as charged, the prosecution had to prove that she used her vehicle to inflict force or violence upon W, that her vehicle was a dangerous weapon, and that she did so while committing a larceny. In order to convict defendant of felonious assault as charged, the prosecution had to prove that defendant intended to batter W, and that she did so while possessing a dangerous weapon. Under the circumstances, it would have been impossible for defendant to commit the armed robbery without also committing the felonious assault. The elements of felonious assault were thus, completely subsumed within the elements of armed robbery under the circumstances of the case.

 

Issues: Sufficiency of the evidence to support the defendant's first-degree premeditated murder conviction; People v. Ortiz; "Identity"; People v. Oliphant; People v. Kern; Positive identification by a witness or circumstantial evidence and reasonable inferences; People v. Davis; Challenges to the weight of the evidence; People v. Scotts; Argument that the court should extend the "fingerprint rule" to DNA evidence; People v. Ware; Claims related to the failure to perform DNA testing on other items; People v. Coy (After Remand); Ineffective assistance of counsel; People v. Ginther; People v. Pickens; People v. Armstrong; Failure to object to alleged "hearsay"; The "excited utterance" exception (MRE 803(2)); Applicability of MRE 701; Failure to make a futile objection; People v. Snider

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Pozniak

e-Journal Number: 53818

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

 

Holding that the evidence, considered together, was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the defendant was the person who stole the victim's (T) wallet and strangled him, the court affirmed defendant's first-degree premeditated murder conviction. The 84-year old T was murdered in his home. The prosecution's theory was that defendant, the estranged son of T's long-time friend, knew that T had money, attacked him in his home, ransacked the house looking for valuables, and stole T's wallet. His DNA was found on T's left and right hands, and on the inside of T's right rear pants pocket, where T kept his wallet. Testimony from both defendant and his father showed that defendant had little to no contact with T for several decades before visiting him the month he was killed. Defendant's father could think of no reason why defendant would have gone to T's home. While defendant testified that he had recently reconnected with T before T was killed, he did not attend T's funeral and did not mention to his father that he had seen or talked to T. T's neighbor (L) identified defendant as being on T's street the day T was killed. After a brief conversation, L saw defendant (who was wearing a dark hooded sweatshirt and jeans) walk down the street. Another neighbor (K) saw a man wearing a dark hooded sweatshirt and jeans walk up T's walkway to T's door, and walk directly into the house after the door was opened. This seemed unusual to K because in her 35 years as T's neighbor, he rarely had company. While defendant argued that there was evidence that his DNA could have been transferred innocently during a prior visit, and that L's identification of him was not credible, these challenges were related to the weight of the evidence rather than its sufficiency. The court "may not interfere with the jury's role of determining issues of weight and credibility." The court concluded that this was not an appropriate case for deciding to what extent, if any, the "fingerprint rule" in Ware should be applied to DNA evidence because "defendant's identity was not established solely by DNA evidence." Further, the court found no misconduct in the prosecution's failure to perform DNA testing on all possible items in T's bedroom that were believed to have been touched by the perpetrator, and rejected defendant's ineffective assistance of counsel claims.

 

Litigation

 

Issues: Claims related to the dismissal of the case regarding proceedings supplementary to judgment; Sanctions; Maldonado v. Ford Motor Co.; MCR 2.504(B)(1); Woods v. SLB Prop. Mgmt., LLC

Court: Michigan Court of Appeals (Unpublished)

Case Name: UV Hosting, L.L.C. v. Digital Ventures, L.L.C.

e-Journal Number: 53754

Judge(s): Memorandum - Gleicher, O'Connell, and Murray

 

Because the trial court appeared to have dismissed the case as a sanction against plaintiff-Szostek, and because the record before the court was insufficient to support dismissal as a sanction, the court reversed and remanded for further proceedings. The case arose from a default judgment that plaintiff-UV obtained against defendant-Digital Ventures (DV). UV obtained the default judgment in 2010 and began proceedings supplementary. For reasons unclear from the record, UV's attorney appeared to have ceased representing UV at some point in the proceedings. In 2011, UV attempted to assign its interest in the judgment to Szostek, who is the sole owner of UV. Szostek, acting pro se, then filed a motion to restrain DV from transferring any assets and from disposing of any property. The trial court denied Szostek's motion on the ground that he had not established that the assignment was valid. Szostek then filed a renewed motion to restrain DV from transferring assets. In a single order, the trial court denied the motion and dismissed the case. Szostek filed a motion for reconsideration, which the trial court denied. Szostek also filed a document purporting to reassign his interest in the judgment back to UV. Later, UV sought and obtained additional garnishment orders. One of the garnishees filed a motion to quash, which the trial court granted. In the order to quash, the trial court stated, "Because [Szostek] is attempting to revive the dismissed case through the subterfuge of reassigning his interest back to UV, the collection efforts must cease." The trial court's orders indicated that it dismissed the case as a sanction. However, before imposing the drastic sanction of dismissal, the trial court must make a record of its determination that dismissal is the appropriate sanction for the party's behavior, and must consider the Woods factors. Here, the trial court made no record of any argument as to dismissal, or of its consideration of the requisite factors. Although the conduct of Szostek or UV, or both, may have supported dismissal as a sanction, the record before the court was insufficient to allow a meaningful review. Dismissal reversed, proceedings supplementary reinstated, and case remanded for further proceedings, including possible reconsideration of dismissal as a sanction.

 

Probate

 

This summary also appears under Wills & Trusts

 

Issues: The probate court's reduction of the appellant-successor trustee's hourly rate for his fiduciary fees to $100 per hour; The "abuse of discretion" standard; In re Temple Marital Trust; MCL 700.7708; Comerica v. Adrian; In re Thacker Estate; In re Sloan Estate; The probate court's reference to the factors enumerated under Michigan Rule of Professional Conduct (MRPC) 1.5(a); Whether the probate court properly considered the trust's accountings and the trustee's billing statements in reaching its decision; Res judicata; Dart v. Dart; Sewell v. Clean Cut Mgmt., Inc.; Banks v. Billups; Remand for the probate court to consider whether the limitations periods imposed by the terms of the trust or MCL 700.7905 barred appellees' objections to the trust accountings; Detroit Leasing Co. v. City of Detroit; MCL 700.7201(2); MCL 700.7905(1)(a) and (2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ilene G. Barron Revocable Trust

e-Journal Number: 53786

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

 

The court held that the trial court did not abuse its discretion in determining a reasonable fee for fiduciary services. Thus, the court affirmed the probate court's determination of a reasonable fiduciary fee rate. However, it held that certain of the appellees-trust beneficiaries' objections to the appellant-successor trustee's fees were barred by the doctrine of res judicata, and remanded for consideration of whether appellees' objections were otherwise barred by the language of the trust agreement or the statute of limitations. Appellees were unsatisfied with appellant's performance and filed numerous objections with the probate court about his administration. The probate court held an evidentiary hearing on appellees' petitions. They testified that appellant charged the trust approximately $150,000 in total fees during his over 3-year administration. Appellant testified that his current hourly rate as an attorney is $195 and he typically does not charge a different fee for acting as a fiduciary in administering a trust, but charges his regular attorney fee. Further, testimony from a trust beneficiary established that appellant charged the trust $185 to $195 per hour for his services throughout his administration of the trust, and also charged $75 per hour for legal assistant fees. The probate court found appellant's fee "excessive relative to the custom in the community and reduced his hourly rate for his fiduciary services to $100 per hour." Although the expert testimony presented on the excessiveness of appellant's fee was found inadmissible and the billing statements and accountings were not admitted into evidence, the court held that "the evidence, in light of the probate court's extensive experience and knowledge in evaluating the reasonableness of trustee fees," supported its reduction in appellant's hourly rate for his fiduciary services. It was evident from testimony at the evidentiary hearing, and the numerous petitions before the probate court, that the probate court "was keenly aware of the factors pertinent to the probate court's determination of the reasonableness of a trustee's fee under Michigan law. Notably, testimony revealed the value, complexity, and composition of the assets comprising the trust, appellant's specific actions in administering the trust, specific issues that arose during the administration, appellant's level of experience in the practice of trust administration, and the adversarial nature of the relationship between two of the appellees and appellant." The court held that, on this record, the probate court could adequately evaluate the reasonableness of appellant's fiduciary fee in accordance with the pertinent factors enumerated in Comerica, especially in light of its extensive experience and knowledge in evaluating such matters. The court also held that the probate court properly relied on its own personal knowledge and extensive experience in reviewing trustee fees, in light of the testimony about the trust's administration, in determining a reasonable rate for appellant's fiduciary services.

 

Tax

 

Issues: Tax value of the petitioner's real property; Const. 1963, art. 9, § 3; "True cash value" (TCV) (MCL 211.27(1)); Review of the Michigan Tax Tribunal's (MTT) decisions; President Inn Props., LLC v. Grand Rapids; Great Lakes Div. of Nat'l Steel Corp. v. Ecorse; State equalized value (SEV); Taxable value (TV)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Basore v. Township of Stockbridge

e-Journal Number: 53794

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

 

In light of the evidence for three different TCVs for the property for the relevant years, the court held that the MTT did not commit error warranting relief in adopting the respondent-township's originally assessed values. Thus, the court affirmed the MTT's final order and judgment upholding respondent's TCV for the petitioner's real property. For 2010, respondent assessed the property's TCV as $144,000, its SEV as $72,000, and its TV as $65,450. Respondent lowered these values for 2011. It assessed the property's TCV as $123,000, and its SEV and TV as $61,550. Petitioner appealed these assessments to the MTT. At the hearing on his appeal, he presented a report prepared by a certified residential appraiser that gave substantially lower values using a sales comparison approach and based on the actual condition of the property. The appraiser opined that the property's TCV for 2010 was $54,000, and that its SEV and TV were $27,000. The appraiser stated that the TCV for 2011 was $46,000 and that the SEV and TV were $23,000. In response, respondent submitted revised values that were lower than those that it previously assessed. The assessor revised the 2010 values to $133,000 for the TCV, $66,500 for the SEV, and $65,450 for the TV. The assessor revised the 2011 values to $121,000 for the TCV and $60,500 for the both the SEV and the TV. The hearing referee found that both respondent's revised values and petitioner's values were unreliable because both used comparisons to dissimilar properties. Thus, he adopted the originally assessed values, concluding that the record card and its calculation provided reasonable support for the original values. Petitioner argued on appeal that the MTT could not properly rely on the assessment record and had to make an independent evaluation or analysis to support its conclusion. While the MTT could not simply affirm the assessment, the court concluded that as the MTT clarified in its final opinion, "the hearing referee relied on the cost-less-depreciation method as calculated on the assessment record card," and that method can be used to derive TCV. Further, the original record card was in evidence and the MTT could properly rely on it in determining which values were the most accurate. In light of the evidence, the court could not "conclude that no reasonable person would accept the evidence as sufficient to support" the MTT's valuations. Thus, the court had to affirm.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; Children's best interests; In re Beck; Consideration of the length of temporary custody and a child's need for permanence; In re McIntyre; Other considerations; In re Jones; In re BZ

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Mapes-Moran/Nelson

e-Journal Number: 53800

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

 

Holding that the trial court did not clearly err in finding that §§ 19b(3)(c)(i), (g), and (j) were established by clear and convincing evidence, and in determining that terminating the respondent-mother's parental rights was in the children's best interests, the court affirmed the trial court's order terminating her parental rights. While respondent did not contest that the statutory grounds were established, the court noted that the conditions that led to adjudication continued to exist at the time of termination and she was a minimum of eight months away from being able to re-establish a job and a home after serving jail time. She argued that because she voluntarily entered treatment for her drug addiction several weeks before the termination hearing and ended her relationship with the father of one of the children, "the facts showed that she was moving in the direction of sobriety and becoming a good parent." She also contended that since the children were placed with her parents, they "would not have been harmed by allowing her the extra time she needed to get clean and sober." However, the trial court noted that the children were placed with respondent's parents after she lost custody in 2/11, and concluded that they needed permanency and stability. "A trial court may consider the length of temporary custody and a child's need for permanence in determining best interests, even where a child is in the custody of relatives." Further, "the trial court found that there was no bond between respondent and one of her children, that respondent had a history of drug abuse, and that she had failed to complete a psychological evaluation. The trial court properly considered these factors."

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (g), (j), and (k)(ii); In re Trejo Minors; In re HRC; In re JK

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re McKinney

e-Journal Number: 53866

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

 

The court held that the trial court properly terminated the respondent-father's parental rights to his four children where the statutory grounds for termination were established by clear and convincing evidence and termination was in the children's best interests. Respondent characterized the children's assertions of abuse against him as "absolutely not substantiated" by medical evidence or mandatory reporters of child abuse at the children's school and church. He also highlighted that at a doctor's office, AS, a ward of respondent and his former wife for several years, recanted her allegations of sexual abuse. Care House forensic interviewer (D) explained that when separately interviewing the children she adhered to child interview protocols. The children gave unscripted accounts of respondent's severe physical abuse of all the children. They described his choking of two of the boys with his hands, his beatings of some of the other children with his hands and a plastic hanger, and repeated instances in which he beat the children with a black belt. She also recounted AS's first documented revelation of her sexual abuse by respondent, which spanned five years and included forced fellatio, and extensive anal penetrations. At the termination hearing, AS testified as to respondent's sexual abuse and it was similar to her description to D. Other evidence corroborated parts of the children's accounts of respondent's physical and sexual abuse. The children's mother also testified about seeing a mark on one child's cheek and the child's attribution of the mark to respondent having used a belt to strike him. The trial court watched recordings of the children's Care House interviews and made extensive factual findings. The trial court found the children's accounts credible. Their accounts of abuse clearly and convincingly established all four statutory grounds for termination of respondent's parental rights. None of the children voiced a desire to return to respondent's custody. Affirmed.

 

Issues: Termination under § 19b(3)(c)(i); In re HRC; In re JK; In re CR; Children's best interests; In re Trejo Minors; Distinguishing In re Mason; In re Fried; In re McIntyre; Applicability of In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tweedy

e-Journal Number: 53797

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

 

Holding that clear and convincing evidence supported terminating the respondent-father's parental rights under § 19b(3)(c)(i), and that this case was distinguishable from Mason, the court affirmed the trial court's order terminating his parental rights to the children. The conditions that led to adjudication were that the father was incarcerated for assaulting respondent-mother, and that the children lacked a stable home environment. The record showed that he was incarcerated again at the time of the termination proceeding for violating his probation, and his earliest release date was in 2014. Further, he failed to provide a stable home for the children. They were homeless at the time of the assault that led to the father's incarceration. He originally suggested that they could be cared for by the mother while he was incarcerated. While she had them in her care at one point, she voluntarily relinquished her parental rights during the proceedings. Also, while the children stayed with two of the father's relatives at various points during the proceedings, they were removed from both placements and both relatives testified that they could not care for the children on their own. Thus, there was clear and convincing evidence that the conditions that led to adjudication continued to exist more than 182 days after the issuance of the initial dispositional order. Given the father's earliest release date and the fact that he failed to find proper care and custody for the children while he was incarcerated, the trial court's finding that there was no reasonable likelihood that the conditions that led to adjudication would be rectified within a reasonable time was also not clearly erroneous. The court also held that the father's citation to Mason was unpersuasive. In contrast to Mason, the trial court here did not find grounds for termination under § 19b(3)(c)(i) simply because the father was incarcerated and could not personally care for the children. Rather, the trial court found that he continued to engage in criminal behavior and that he failed to provide an adequate placement for the children while he was incarcerated. Further, the DHS did not deny the father access to services while he was incarcerated. Rather, his "own criminal activity and his security classification prevented him from having access to services." The DHS did not ignore him, but instead allowed him to participate at the hearings and contacted the jail to inquire what, if any, services he could participate in during his incarceration. The court also held that the trial court did not clearly err in finding that termination was in the children's best interests.

 

Wills & Trusts

This summary also appears under Probate

 

Issues: The probate court's reduction of the appellant-successor trustee's hourly rate for his fiduciary fees to $100 per hour; The "abuse of discretion" standard; In re Temple Marital Trust; MCL 700.7708; Comerica v. Adrian; In re Thacker Estate; In re Sloan Estate; The probate court's reference to the factors enumerated under Michigan Rule of Professional Conduct (MRPC) 1.5(a); Whether the probate court properly considered the trust's accountings and the trustee's billing statements in reaching its decision; Res judicata; Dart v. Dart; Sewell v. Clean Cut Mgmt., Inc.; Banks v. Billups; Remand for the probate court to consider whether the limitations periods imposed by the terms of the trust or MCL 700.7905 barred appellees' objections to the trust accountings; Detroit Leasing Co. v. City of Detroit; MCL 700.7201(2); MCL 700.7905(1)(a) and (2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ilene G. Barron Revocable Trust

e-Journal Number: 53786

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

 

The court held that the trial court did not abuse its discretion in determining a reasonable fee for fiduciary services. Thus, the court affirmed the probate court's determination of a reasonable fiduciary fee rate. However, it held that certain of the appellees-trust beneficiaries' objections to the appellant-successor trustee's fees were barred by the doctrine of res judicata, and remanded for consideration of whether appellees' objections were otherwise barred by the language of the trust agreement or the statute of limitations. Appellees were unsatisfied with appellant's performance and filed numerous objections with the probate court about his administration. The probate court held an evidentiary hearing on appellees' petitions. They testified that appellant charged the trust approximately $150,000 in total fees during his over 3-year administration. Appellant testified that his current hourly rate as an attorney is $195 and he typically does not charge a different fee for acting as a fiduciary in administering a trust, but charges his regular attorney fee. Further, testimony from a trust beneficiary established that appellant charged the trust $185 to $195 per hour for his services throughout his administration of the trust, and also charged $75 per hour for legal assistant fees. The probate court found appellant's fee "excessive relative to the custom in the community and reduced his hourly rate for his fiduciary services to $100 per hour." Although the expert testimony presented on the excessiveness of appellant's fee was found inadmissible and the billing statements and accountings were not admitted into evidence, the court held that "the evidence, in light of the probate court's extensive experience and knowledge in evaluating the reasonableness of trustee fees," supported its reduction in appellant's hourly rate for his fiduciary services. It was evident from testimony at the evidentiary hearing, and the numerous petitions before the probate court, that the probate court "was keenly aware of the factors pertinent to the probate court's determination of the reasonableness of a trustee's fee under Michigan law. Notably, testimony revealed the value, complexity, and composition of the assets comprising the trust, appellant's specific actions in administering the trust, specific issues that arose during the administration, appellant's level of experience in the practice of trust administration, and the adversarial nature of the relationship between two of the appellees and appellant." The court held that, on this record, the probate court could adequately evaluate the reasonableness of appellant's fiduciary fee in accordance with the pertinent factors enumerated in Comerica, especially in light of its extensive experience and knowledge in evaluating such matters. The court also held that the probate court properly relied on its own personal knowledge and extensive experience in reviewing trustee fees, in light of the testimony about the trust's administration, in determining a reasonable rate for appellant's fiduciary services.

 

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