• Attorneys (1)
• Contracts (1)
• Criminal Law (6)
• Employment & Labor Law (1)
• Insurance (1)
• Litigation (3)
• Real Property (2)
• Tax (1)
• Termination of Parental Rights (2)

Attorneys

 

This summary also appears under Litigation

 

Issues: Attorney fee lien claim; Enforcement of a lien; Reynolds v. Polen; Ambrose v. Detroit Edison Co.; Whether the trial court should have considered whether defendant-Fieger's alleged "misconduct" resulted in the forfeiture of the Fieger firm's lien; Whether the trial court should have used quantum meruit to ascertain the reasonable value of the attorney's services; Keywell & Rosenfeld v. Bithell; Plunkett & Cooney, PC v. Capitol Bancorp Ltd.; Morris v. Detroit; Eccelestone, Moffett, & Humphrey, PC v. Ogne, Jinks, Alberts & Stuart, PC; Crawley v. Schick; Smith v. Khouri; Plaintiffs' allegations that Fieger engaged in interference with a known contractual relationship, direct solicitation, misconduct, and ex parte communication with a client of another attorney in violation of MRPC 4.2 and 7.3(b)(1)-(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Barth v. Fieger

e-Journal Number: 53748

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

 

The court held, inter alia, that the trial court did not properly analyze the attorney fee issue in this case given the availability of actual documentation about the amount of time plaintiff-Broschay spent on this case before leaving the Fieger firm. Thus, should a quatum meruit analysis be necessary, the court instructed the trial court to review the documentary evidence provided by the parties and to reach a conclusion based on this evidence. Plaintiffs appealed the trial court's award of 90% of the disputed attorney fees to defendant-Fieger and 10% to Broschay. Plaintiff-Barth was a resident of a hotel owned by defendant-Northlander. While there, she was subjected to a brutal sexual assault by an individual who gained access to her room with the help of a friend who worked at the front desk. Barth retained the Fieger firm to represent her claim against the hotel. During the time that she was represented by the Fieger firm, her case was handled exclusively by Broschay. While employed with the Fieger frim Broschay claimed to have spent about 50 hours of time working on plaintiff's file. Broschay left the Fieger firm. Barth discharged the Fieger firm and retained Broschay independently to continue representing her on a contingency fee basis. Plaintiffs claimed that "Fieger began a 'campaign of harassment' of Barth, demanding money and misrepresenting the degree of his personal involvement in her case." In 7/11, on the eve of trial, Broschay obtained a settlement of Barth's case in the lawsuit against Northlander. The trial court entered an order dismissing the matter pursuant to the parties' settlement agreement. Broschay claimed to have spent about 50 hours of time on Barth's case after the discharge of the Fieger firm. After costs, the attorney fee in the case was about $221,000. Later, Fieger, as a lienholder, filed a motion requesting an award of attorney fees. He asserted that the Fieger firm "substantially performed the entire contingency undertaken in the retention agreement, and on a quantum meruit percentage basis is entitled to an award of a substantial portion (if not all) of the $221,415.82 fee." The court concluded that the trial court failed to address the issues plaintiffs raised as to interference with a known contractual relationship, direct solicitation, misconduct, and allegedly engaging in ex parte communication with a client of another attorney in violation of the MRPCs. Reversed and remanded.

 

Contracts

 

Issues: Enforceability of an integrated stock purchase agreement; Claim that the agreement was a "sham" executed solely to defraud a bank; The "parol evidence rule"; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Effect of the integration clause; Distinguishing Church v. Case, Woodard v. Walker, Roosevelt Park Protestant Reformed Church v. London, Mardon v. Ferris, Tepsich v. Howe Constr. Co., and Harwood v. Randolph Harwood, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hanni v. Ypsilanti Shopping Ctr., L.L.C.

e-Journal Number: 53815

Judge(s): Per Curiam – O’Connell and Donofrio; Dissent – Beckering

 

Holding that the parol evidence rule prohibited intervening plaintiff-Yono from presenting the extrinsic evidence that he asserted would invalidate the integrated stock purchase agreement, the court affirmed the trial court's ruling enforcing the agreement. Plaintiff-Peter Hanni and Yono executed the agreement to transfer ownership of stock in plaintiff-Gonellas Foods. They each owed 1000 of the 2000 shares of Gonellas stock until 2001, when Gonellas sought to obtain a bank loan. "A loan broker informed Hanni that the loan would not be approved if Yono was 'involved.'" An accountant also indicated that Yono would have to transfer his stock in order for Gonellas to obtain the loan. An attorney drafted the stock purchase agreement. Hanni (both as a shareholder and on behalf of Gonellas as president) and Yono (as a shareholder) signed the agreement, which the attorney notarized. The agreement provided that the authorized capital stock of Gonellas consisted of 2,000 shares, and that Yono sold, transferred, and delivered to Hanni 1,000 shares of the stock for the price of $1,000. The agreement also provided that, upon completion of the sale, Hanni would "own full legal and equitable title to the common stock of Gonella's [sic] Foods, Inc. currently held by [Yono] and transferred hereunder, free and clear of all liens, charges, pledges, encumbrances, options, rights of first refusal and other claims of any nature whatsoever." The agreement also contained an integration clause stating - "This Agreement and the Schedules hereto and the other documents delivered pursuant hereto constitute the entire agreement of the parties in respect of the subject matter hereof and supersede all prior statements or agreements among the parties in respect of such subject matter." Also, Yono, as the seller, "represented and warrantied that the agreement was 'a valid and binding obligation of Seller' and was 'enforceable in accordance with its terms.'" He claimed on appeal that the agreement was a sham executed for the sole purpose of defrauding the bank into lending money to Gonellas. He argued that the trial court should have given credence to the parol evidence he offered. However, the court held that "the integration clause and the accompanying representation and warranty preclude consideration of parol evidence." The court concluded that the line of cases relied upon by Yono were unpersuasive because none of the written agreements in those cases contained integration clauses. The trial court was correct to enforce the agreement as written. The court affirmed the trial court's order granting Hanni summary disposition.

 

Criminal Law

 

Issues: Docket No. 306124 - Gibbs - Whether the trial court violated Gibbs's right to a public trial by closing the courtroom during voir dire; People v. Vaughn; People v. Russell; Whether the prosecutor violated his Fifth Amendment right to remain silent by using his prearrest silence to impeach his testimony and by referring to it during closing argument; People v. Cain; People v. McGhee; People v. Dye; Sentencing; Scoring of PRVs 5 and 6 and OV 13; People v. Endres; People v. Anderson; People v. Johnson; People v. Harmon; Docket No. 306127 - Henderson - Whether Henderson's convictions of both assault with intent to rob while armed (AWIRA) and armed robbery violated double jeopardy; People v. Garland; People v. Nutt; People v. Meshell; People v. Walls; People v. Heft; The "same elements test" in Blockburger v. United States; People v. Smith; People v. Baker; People v. Akins; OVs 3, 4, 13, and 14; People v. McDonald; People v. Ericksen; People v. Williams; People v. Apgar

Court: Michigan Court of Appeals (Published)

Case Name: People v. Gibbs

e-Journal Number: 53940

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

 

Defendant-Gibbs (G) was convicted of two counts of armed robbery, one count of unarmed robbery, and one count of conspiracy to commit armed robbery, and defendant-Henderson (H) was convicted by a jury of three counts of armed robbery, one count of conspiracy to commit armed robbery, one count of AWIRA, one count of CCW, and felony-firearm. The court vacated H's conviction for assault with intent to rob while armed based on a double jeopardy violation, but otherwise affirmed both defendants' convictions and sentences. The case arose from an armed robbery of a store. A couple owned the store and were present at the time of the robbery. Also present was an employee. In separate interviews with police, both defendants admitted to their involvement. However, G told the officer that his involvement was involuntary. G believed they were going to the store to return a video game and had no idea that H was planning a robbery. G stated that H ordered him to take the victims' belongings and other store items. G testified at trial that he complied only because he did not want anything to happen to him. G argued on appeal, among other things, that the trial court violated his right to a public trial and he was entitled to automatic reversal. He did not object at trial. The court held that G failed to satisfy the fourth prong of the test in Vaughn and was not entitled to a new trial. The court also rejected his claim that the prosecutor violated his Fifth Amendment right to remain silent by using his prearrest silence to impeach his testimony and by referring to it in closing argument. The court held that the prosecutor's comments were proper and there was no plain error. While the trial court erred in assessing 2 points under PRV 5, the court concluded G was not entitled to resentencing because his PRV level did not change. The prosecution conceded that H's assault with intent to rob while armed conviction must be vacated. The court agreed, stating that "for purposes of the ‘multiple punishment' analysis under double jeopardy, assault with intent to rob while armed is the ‘same offense' as armed robbbery . . . ."

 

Issues: Sentencing; Whether OV 12 was properly scored; Claim that MCL 750.145c (governing possession of child sexually abusive material) is unconstitutionally vague; People v. Roberts; People v. Lockett; People v. Malone; People v. Nichols; "As-applied" vagueness challenge; People v. Newton; "Plain error" review; People v. Kimble; People v. Carines; MCL 750.145c(4); "Child sexually abusive material" (MCL 750.145c(1)(m)); "Child" (MCL 750.145c(1)(b)); A "listed act" (MCL 750.145c(1)(h)); "Crimes against a person"; People v. Wiggins; MCL 777.16g(1); People v. Earl; Whether the trial court relied on acts that were "contemporaneous" in scoring OV 12; Actual and "constructive" possession; People v. Flick; Possession as an ongoing offense; People v. Burgenmeyer; Whether MCL 750.145c and MCL 752.796 (governing using a computer to commit a crime) are in pari materia; People v. Harper; Statutory interpretation; People v. Williams; People v. McGraw; People v. Gardner; Whether the defendant's conviction of using a computer to commit a crime violated the Title-Object Clause (Const. 1963, art. 4, § 24); People v. Cynar; People v. Kevorkian; A "title-body" violation; People v. Wade; Whether defendant's guilty plea waived his right to challenge his conviction; People v. New; Waiver of any challenge to PRV 6; People v. Carter

Court: Michigan Court of Appeals (Published)

Case Name: People v. Loper

e-Journal Number: 53941

Judge(s): Per Curiam – Beckering, Stephens, and Boonstra

 

The court rejected the defendant's claim that the trial court erred in scoring OV 12 because MCL 750.145c is unconstitutionally vague, holding that the statute was not unconstitutionally vague when applied to his conduct. Further, the trial court properly scored 25 points for OV 12 because evidence supported its finding that there were 3 or more contemporaneous acts of possession of child sexually abusive material. The court also held that MCL 750.145c and MCL 752.796 are not in pari materia, and that defendant's conviction for using a computer to commit a crime did not violate the Title-Object Clause. He pleaded guilty to one count of possessing child sexually abusive material and one count of using a computer to commit a crime. He was sentenced to 1 year and 11 months to 7 years in prison for use of a computer to commit a crime and to 357 days in jail for the possession of child sexually abusive material. On appeal, defendant challenged his sentence on constitutional and non-constitutional grounds. His vagueness argument relied on the distinction between individual images of child sexually abusive material and collections of images of child sexually abusive material (such as the disks in this case). However, his distinction between the number of images and the number of collections of images was irrelevant here - either the number of images (over 100) or the number of disks (4) were sufficient to find that defendant possessed 3 or more different child sexually abusive materials, which in turn was enough to satisfy the numerical threshold for both OV 12 and OV 13. The court noted that possession of contraband "is an ongoing offense that may take place over an extended period." The facts presented to the trial court formed the basis of a reasonable inference that defendant possessed the disks beginning in 2007 or before, and that he possessed all 4 disks on 10/23/08. It was also reasonable for the trial court to infer that he possessed the images within 24 hours of the offense date. Thus, the trial court did not err in scoring 25 points for OV 12. The court also concluded that "based on their plain language, MCL 750.145c(4) and MCL 752.796 do not address the same subject or share a common purpose." The object and purpose of MCL 750.145c(4) is to "preclude the possession of child [pornographic material regardless of how it is produced]" while the object or purpose of MCL 752.796 is to prohibit the use of a computer to commit any crime. Defendant also failed to show that the challenged language in the current MCL 752.796(1) violated the Title-Object Clause. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's absconding or forfeiting bond conviction; MCL 750.199a; People v. Johnson; People v. Demers; Circumstantial evidence and reasonable inferences; People v. Taylor; The elements of forfeiting bond; CJI2d 13.16; Whether defendant had the requisite state of mind; People v. Rorke; The elements of absconding on a bond; CJI2d 13.17; People v. Litteral

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Clark

e-Journal Number: 53821

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

 

While this was "a close case," the court held that there was sufficient evidence to support the defendant's conviction of forfeiting bond. The court concluded that sufficient evidence was produced at trial to allow a rational jury to determine that he "recklessly or willingly neglected or disregarded his obligation to appear for court." He failed to show up for required court dates on 10/23/09, 1/8/10, and 1/25/10. As to the first date, defendant showed up 15 minutes late and missed the case call. "This, standing alone, does not rise to the level of reckless or willing neglect." Defendant's incarceration in jail in another county precluded him from attending his 1/8/10 pretrial hearing. While it was "difficult to conclude that his failure to attend was completely beyond his control given that he was in jail, the details of his incarceration are unclear, and he was unable to be transported to his court date despite bringing it to the attention of someone at the jail." Since the prosecution presented no evidence other than "defendant's mere absence from court" on 1/8/10, the court concluded that "it would be improper to conclude that he recklessly or intentionally neglected this court date when he was physically unable to be present." However, his failure to appear on 1/25/10 required a different conclusion. Although the jury trial originally set for 1/25/10 was cancelled, defendant was still required to appear. He testified that, after he was released from jail (but before 1/25/10), "I called my lawyer 'cause that's actually what I did the first time to try to reschedule the date, and then I called the Court to see if I was on the docket because I know that I had the - the 25th date from the last time I was in court." In short, "even after missing two previous dates, and knowing he had a court date, defendant failed to show up." The court found it was a close case "given the dearth of evidence offered by the prosecutor," but noted that it had to view the evidence in a light most favorable to the prosecution. "This third absence from court could be seen by a rational jury as evidence of defendant's intentional or reckless neglect of a known obligation to appear." The court also concluded that, while the jury based its verdict on a theory of forfeiting bond, the evidence would have allowed a rational trier of fact to find that defendant also absconded on his bond. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's convictions of assault with intent to rob while armed (AWIRA) and aggravated stalking; People v. Kissner; People v. Hardiman; People v. Brantley; People v. Harrison; People v. Akins; Whether defendant used a weapon or an article used or fashioned as a weapon; People v. Taylor; Whether the evidence was sufficient to prove the requisite specific intent because his actions were governed by his mental illness; People v. Harris; "Aggravated stalking"; People v. Threatt; "Stalking"; MCL 750.411h(1)(d) and (e); People v. Kieronski; A "course of conduct"; MCL 750.411i(1)(a); "Conduct"; "Unconsented contact"; MCL 750.411i(1)(f); MCL 750.411i(1)(f)(v); MCL 750.411i(2); MCL 750.411i(2)(a); Whether there were two or more acts that constituted a pattern of conduct; Whether defendant's phone call to the daycare center constituted "[c]ontacting th[e] victim by telephone" pursuant to MCL 750.411i(1)(f)(v); Whether defendant's convictions were against great weight of the evidence; People v. Musser; People v. Lacalamita

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gipson

e-Journal Number: 53811

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

 

Holding that there was sufficient evidence to support the defendant's convictions of AWIRA and aggravated stalking and that the convictions were not against the great weight of the evidence, the court affirmed. Defendant argued that there was insufficient evidence to prove that he used a weapon or an article used or fashioned as a weapon. However, the court held that defendant's request for money while pointing his pocket at the victim established a threat and was sufficient to establish beyond a reasonable doubt that defendant was "armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon" within the meaning of MCL 750.89. The trial court explicitly credited the victim's testimony and discredited defendant's opposing testimony. The court also held that there was sufficient evidence to prove beyond a reasonable doubt that defendant possessed the requisite intent. Further, no evidence was presented at trial as to defendant's mental illness. As to the aggravated stalking conviction, defendant only challenged whether there were two or more acts that constituted a pattern of conduct and whether his phone call to the daycare center constituted an act of "[u]nconsented contact" pursuant to MCL 750.411i(1)(f) and in fulfillment of MCL 750.411i(2). The court held that there was sufficient evidence to establish at least two separate acts that constituted a pattern of conduct with a continuity of purpose. The court further held that because defendant's act of calling the victim at her workplace was similar in nature and fit logically with the other actions set forth in MCL 750.411i(1)(f)(i)-(vii), it could not conclude that the trial court erred by determining that the telephone call constituted an act of "[u]nconsented contact" under MCL 750.411i(1)(f).

 

Issues: Whether since defendant was a temporary guest at the time of the abuse he was not a member of the victim's household; Sufficiency of the evidence to support defendant's convictions of 11 counts of CSC I, 3 counts of CSC II, and disseminating sexually explicit material to a minor; People v. Carines; MCL 750.520b; Whether defendant was related to the victim; People v. Phillips; People v. Garrison; Whether the trial court properly allowed an expert to testify as to the "reporting" delay; People v. Metamora Water Serv., Inc.; People v. Jones; Whether defendant was entitled to relief due to error

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Harris

e-Journal Number: 53790

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

 

The court held, inter alia, that there was sufficient evidence to support the jury's conclusion that the defendant and the victim were part of the same household and that he could not show that he was entitled to relief due to error, if any, in the admission of expert testimony about the five-month reporting delay. Thus, there were no errors warranting relief and the court affirmed his convictions and sentences. The prosecution's theory was based on the fact that the victim was between 13 and 15, and he was a member of the same household as defendant. Uncontested evidence showed that the victim was between 13 and 15 when the alleged acts occurred. Also, under the circumstances a reasonable juror could find that the alleged acts occurred and that defendant was in the same household as the victim. The court disagreed that his visit to the home was only a brief and chance visit, where the evidence showed that defendant did not have anywhere to stay, so the victim's stepfather invited him to stay in the home. Defendant stayed in the home about two months. While defendant was in the home, neither the victim nor his stepfather believed he was staying anywhere else, and they both testified that he had clothes in the home. Defendant ate some meals in the home. This was not a brief or chance visit. Also, defendant was not required to be related to the victim to reside in the same household as the victim. The applicable analysis was whether defendant could have become part of the "family unit" so as to allow the victim to develop a sufficient "subordinating relationship" or "special relationship" with defendant. The victim testified that defendant mentored a group called FAM, a group of boys 15 and older who had troubled pasts. The victim also said he was the oldest at the FAM parties and defendant was like a father figure to the boys. The victim maintained that the two then became closer and his relationship with defendant changed and he stayed more often in the victim's room. Affirmed.

 

Issues: Motion to suppress identification evidence; Whether the procedure was "unduly suggestive"; People v. Williams; People v. Hornsby; People v. Kurylczyk; "Improper suggestion"; People v. Gray; People v. Sawyer; Ineffective assistance of counsel; People v. Jordan; People v. Petri; People v. Seals; People v. Odom; Failure to call an eyewitness identification expert; Absence of an offer of proof; People v. Payne; Trial strategy; People v. Ackerman; People v. Kowalski; Effect of the fact defendant's trial was a bench trial; People v. Taylor; People v. Kanaan; Eliciting further testimony as a matter of trial strategy; Failure to move to disqualify the judge on the basis the judge knew defendant had another pending case and had been implicated by his accomplice; People v. Wofford; MRE 404(b)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Starks

e-Journal Number: 53824

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

 

Holding, inter alia, that nothing in the identification procedure supported the defendant's claim of undue suggestiveness, the court concluded that the trial court did not err in denying his motion to suppress the identification evidence. The court also rejected his ineffective assistance of counsel claims. Defendant was convicted of three counts of armed robbery and of felony-firearm. He claimed that the identification procedure enabling two of the victims (Y and S) to identify him from a photo array was unduly suggestive. The court concluded that the photos "revealed no discrepancy among the participants so glaringly apparent as to form a basis for the exclusion of the identification evidence." All the photos showed young, black males of varying complexions with short, dark hair. While it was true that defendant was the only one looking down, another participant was the only one looking to the side. Although defendant's shirt appeared lighter in color than those of the other five participants, the photos were headshots and showed minimal clothing. Defendant's shirt, like the shirts of at least two other participants in the array, was barely visible. Also, he was described as wearing black or dark clothing at the time of the robbery and he was not the only participant with a distinction in shirt color. While "the participants did not completely mirror each other," nothing significantly distinguished defendant from the other participants when they were all viewed together. He also asserted on appeal that the array was unduly suggestive because the police told Y and S before the array that the gunman was in custody. It was true that Y and S were told by police that they had a suspect before viewing the array. However, they both independently identified defendant from the array. "There was no hesitation in the victims' identifications." There was a six-person array on which Y circled defendant's picture and wrote below it, "Subject number four was the person who robbed us at gunpoint . . . . He was the one with the gun[.]" S also circled defendant's picture and wrote, "Number 4 was the one who robbed us with the gun." They got a good look at him because he was standing nearby, nothing was obstructing or covering his face, and there was lighting in the area. At trial, they were both positive that he was the one who robbed them. On the same night as the robbery, they gave similar, detailed descriptions of defendant to the police. The court also noted that "the timing between the crime and the identification was only one day." Affirmed.

 

Employment & Labor Law

 

This summary also appears under Litigation

 

Issues: Unlawful retaliation claim under the Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); Effect of the shortened limitations period in an employment contract; Whether the defendants had "standing" to assert the shortened limitations period; MCL 600.1405; White v. Taylor Distrib. Co.; Res judicata; Stoudemire v. Stoudemire; Pierson Sand & Gravel, Inc. v. Keeler Brass Co.; Commissioner of Ins. v. Arcilio; Washington v. Sinai Hosp. of Greater Detroit; A plaintiff's failure to join "permissive parties"; Bennett v. Mackinac Bridge Auth.; Collateral estoppel; VanVorous v. Burmeister; Estes v. Titus; "Mutuality of estoppel"; Dearborn Heights Sch. Dist. No. 7 v. Wayne Cnty. MEA/NEA; Monat v. State Farm Ins. Co.; Contract interpretation; Shay v. Aldrich; Wilkie v. Auto-Owners Ins. Co.; Holland v. Trinity Health Care Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hoogland v. Kubatzke

e-Journal Number: 53827

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

 

The court held that the trial court erred in allowing the defendants (managers and executive officers of the college where the plaintiff was formerly employed) to assert a contractual defense when they were neither a party to nor a third-party beneficiary of the employment contract between plaintiff and the college. Further, the court rejected their argument that her claim against them was barred by res judicata or collateral estoppel based on the federal district court's resolution of her claim against the college. Plaintiff alleged that defendants constructively terminated her employment with the college when they retaliated against her for filing discrimination and sexual harassment complaints. She previously filed a multi-count federal complaint against the college. The federal district court granted the college summary disposition on the basis of the shortened limitations period contained in the employment contract. Defendants argued that they were third-party beneficiaries of the contract. However, the court concluded that "this interpretation would contradict the clear and unambiguous language of the employment contract." The contractual language did not describe any other class of persons, other than the college, to which the shortened period of limitations applied. While the second limitation clause in the contract broadly applied to all claims arising from plaintiff's employment, it appeared, consistent with the court's reasoning in White, that "this latter clause merely clarified the scope of protection to which" the college was entitled "and did not expand the list of parties entitled to protection from the shortened limitations period." As to defendants' res judicata argument, they offered "no support for the proposition that plaintiff's CRA claim imposed a mandatory party joinder requirement" and the court noted that res judicata "should not be used to punish a party" for suing different defendants in different proceedings. Plaintiff's claim was also not barred by collateral estoppel because the federal district court did not decide the central issue in this case. Plaintiff only contested defendants' right as third parties to her contract to assert the contractual limitation, not the validity of the contractual limitation. Since the federal district court did not decide the dispositive issue of whether defendants had standing to assert the contractual limitations period, collateral estoppel did not apply. The court reversed the trial court's order granting the defendants summary disposition and remanded the case for further proceedings.

 

Insurance

 

Issues: PIP benefits; Whether decedent-Arold was required to keep the security on the car required by the No-Fault Act (NFA); Iqbal v. Bristol W. Ins. Group; MCL 500.3101(1); MCL 500.3113(b); Corwin v. DaimlerChrysler Ins. Co.; Whether Iqbal only applies when there are multiple vehicle owners; An "insurable interest"; Madar v. League Gen. Ins. Co.; The "innocent third party" rule; Katinsky v. Auto Club Ins. Ass'n; Lake States Ins. Co. v. Wilson; MCL 257.520(f)(1); Titan Ins. Co. v. Hyten; Priority; MCL 500.3114(1) & (4); Whether Arold was an "insured" under defendant-Citizens' policy; Amerisure Ins. Co. v. Coleman; Policy interpretation; Royal Prop. Group, LLC v. Prime Ins. Syndicate, Inc.; Farmers Ins. Exch. v. Kurzmann; Whether Citizens admitted that the car fell within the definition of "your covered auto"; Amerisure Ins. Co. v. Auto-Owners Ins. Co.; The Michigan Assigned Claims Facility (MACF) insurer as the insurer of last priority; Bronson Methodist Hosp. v. Allstate Ins. Co.; MCL 500.3172(1); Whether plaintiffs' action was barred by the one-year notice provisions in MCL 500.3145 and MCL 500.3174; Whether a "tolling" or "saving" provision applied; MCL 600.5852; Waltz v. Wyse; Attorney Gen. v. State Farm Mut. Auto. Ins. Co.; MCL 600.5851(1); Joseph v. Auto Club Ins. Ass'n; Whether defendant-Titan had a duty to immediately pay PIP benefits; Interest and attorney fees; MCL 500.3172(3); Spectrum Health v. Grahl; MCL 500.3175(1); MCL 500.3148(1) & (2); Moore v. Secura Ins.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Tonya T. Arold v. Citizens Ins. Co.

e-Journal Number: 53809

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

 

The court held that the trial court did not err in ruling that the plaintiffs were entitled to PIP benefits. The issue here was "purely a priority issue, and not a coverage issue." Defendant-Titan, the MACF's assignee, was required to immediately pay PIP benefits. Since it failed to do so, it was liable to pay attorney fees and interest. Under MCL 600.5852 and MCL 600.5851, plaintiffs' claims against Titan were not time-barred. Plaintiffs sued to recover PIP benefits, including survivor's loss benefits. The decedent (Arold) was killed in a car accident while driving her car. She was the sole owner and registrant of the car. However, the car was insured through a policy with defendant-Citizens issued to its policyholder, H (the father of Arold's boyfriend). While both Citizens and Titan argued that plaintiffs could not collect PIP benefits because Arold failed to keep the security required under the NFA, the court concluded, in keeping with Iqbal, that the car had the statutorily required coverage at the time of the accident. The court rejected Titan's argument that Iqbal only applies when there are multiple vehicle owners, noting that "Iqbal concluded that ownership was entirely irrelevant in a determination as to whether a vehicle has the requisite no-fault security." Thus, the trial court properly determined that the car had security at the time of the accident because the security requirement in the NFA is linked to the vehicle and not the individual. The court also rejected Titan's claim that because H had no insurable interest in the car, the policy with Citizens was void and as a result, Arold was operating the car without the required security and was excluded from receiving PIP benefits under MCL 500.5113. There was no evidence that H engaged in fraudulent behavior in procuring the policy and no facts existed warranting voiding the policy. However, the court held that Arold did not qualify as an "insured" under the Citizens policy for PIP benefits and Citizens was entitled to summary disposition. "Titan was obligated to pay PIP benefits as a matter of law." Affirmed in part, reversed in part, and remanded. The court reversed the trial court's denial of Citizens' motion for summary disposition, vacated the trial court's order directing Citizens to pay $59,925.23, and remanded for entry of an order of summary disposition in Citizens' favor. The court also instructed the trial court on remand to determine the amount of the plaintiff-estate's damages against Titan consistent with Joseph.

 

Litigation

 

This summary also appears under Attorneys

 

Issues: Attorney fee lien claim; Enforcement of a lien; Reynolds v. Polen; Ambrose v. Detroit Edison Co.; Whether the trial court should have considered whether defendant-Fieger's alleged "misconduct" resulted in the forfeiture of the Fieger firm's lien; Whether the trial court should have used quantum meruit to ascertain the reasonable value of the attorney's services; Keywell & Rosenfeld v. Bithell; Plunkett & Cooney, PC v. Capitol Bancorp Ltd.; Morris v. Detroit; Eccelestone, Moffett, & Humphrey, PC v. Ogne, Jinks, Alberts & Stuart, PC; Crawley v. Schick; Smith v. Khouri; Plaintiffs' allegations that Fieger engaged in interference with a known contractual relationship, direct solicitation, misconduct, and ex parte communication with a client of another attorney in violation of MRPC 4.2 and 7.3(b)(1)-(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Barth v. Fieger

e-Journal Number: 53748

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

 

The court held, inter alia, that the trial court did not properly analyze the attorney fee issue in this case given the availability of actual documentation about the amount of time plaintiff-Broschay spent on this case before leaving the Fieger firm. Thus, should a quatum meruit analysis be necessary, the court instructed the trial court to review the documentary evidence provided by the parties and to reach a conclusion based on this evidence. Plaintiffs appealed the trial court's award of 90% of the disputed attorney fees to defendant-Fieger and 10% to Broschay. Plaintiff-Barth was a resident of a hotel owned by defendant-Northlander. While there, she was subjected to a brutal sexual assault by an individual who gained access to her room with the help of a friend who worked at the front desk. Barth retained the Fieger firm to represent her claim against the hotel. During the time that she was represented by the Fieger firm, her case was handled exclusively by Broschay. While employed with the Fieger frim Broschay claimed to have spent about 50 hours of time working on plaintiff's file. Broschay left the Fieger firm. Barth discharged the Fieger firm and retained Broschay independently to continue representing her on a contingency fee basis. Plaintiffs claimed that "Fieger began a 'campaign of harassment' of Barth, demanding money and misrepresenting the degree of his personal involvement in her case." In 7/11, on the eve of trial, Broschay obtained a settlement of Barth's case in the lawsuit against Northlander. The trial court entered an order dismissing the matter pursuant to the parties' settlement agreement. Broschay claimed to have spent about 50 hours of time on Barth's case after the discharge of the Fieger firm. After costs, the attorney fee in the case was about $221,000. Later, Fieger, as a lienholder, filed a motion requesting an award of attorney fees. He asserted that the Fieger firm "substantially performed the entire contingency undertaken in the retention agreement, and on a quantum meruit percentage basis is entitled to an award of a substantial portion (if not all) of the $221,415.82 fee." The court concluded that the trial court failed to address the issues plaintiffs raised as to interference with a known contractual relationship, direct solicitation, misconduct, and allegedly engaging in ex parte communication with a client of another attorney in violation of the MRPCs. Reversed and remanded.

 

This summary also appears under Employment & Labor Law

 

Issues: Unlawful retaliation claim under the Elliott-Larsen Civil Rights Act (MCL 37.2101 et seq.); Effect of the shortened limitations period in an employment contract; Whether the defendants had "standing" to assert the shortened limitations period; MCL 600.1405; White v. Taylor Distrib. Co.; Res judicata; Stoudemire v. Stoudemire; Pierson Sand & Gravel, Inc. v. Keeler Brass Co.; Commissioner of Ins. v. Arcilio; Washington v. Sinai Hosp. of Greater Detroit; A plaintiff's failure to join "permissive parties"; Bennett v. Mackinac Bridge Auth.; Collateral estoppel; VanVorous v. Burmeister; Estes v. Titus; "Mutuality of estoppel"; Dearborn Heights Sch. Dist. No. 7 v. Wayne Cnty. MEA/NEA; Monat v. State Farm Ins. Co.; Contract interpretation; Shay v. Aldrich; Wilkie v. Auto-Owners Ins. Co.; Holland v. Trinity Health Care Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hoogland v. Kubatzke

e-Journal Number: 53827

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

 

The court held that the trial court erred in allowing the defendants (managers and executive officers of the college where the plaintiff was formerly employed) to assert a contractual defense when they were neither a party to nor a third-party beneficiary of the employment contract between plaintiff and the college. Further, the court rejected their argument that her claim against them was barred by res judicata or collateral estoppel based on the federal district court's resolution of her claim against the college. Plaintiff alleged that defendants constructively terminated her employment with the college when they retaliated against her for filing discrimination and sexual harassment complaints. She previously filed a multi-count federal complaint against the college. The federal district court granted the college summary disposition on the basis of the shortened limitations period contained in the employment contract. Defendants argued that they were third-party beneficiaries of the contract. However, the court concluded that "this interpretation would contradict the clear and unambiguous language of the employment contract." The contractual language did not describe any other class of persons, other than the college, to which the shortened period of limitations applied. While the second limitation clause in the contract broadly applied to all claims arising from plaintiff's employment, it appeared, consistent with the court's reasoning in White, that "this latter clause merely clarified the scope of protection to which" the college was entitled "and did not expand the list of parties entitled to protection from the shortened limitations period." As to defendants' res judicata argument, they offered "no support for the proposition that plaintiff's CRA claim imposed a mandatory party joinder requirement" and the court noted that res judicata "should not be used to punish a party" for suing different defendants in different proceedings. Plaintiff's claim was also not barred by collateral estoppel because the federal district court did not decide the central issue in this case. Plaintiff only contested defendants' right as third parties to her contract to assert the contractual limitation, not the validity of the contractual limitation. Since the federal district court did not decide the dispositive issue of whether defendants had standing to assert the contractual limitations period, collateral estoppel did not apply. The court reversed the trial court's order granting the defendants summary disposition and remanded the case for further proceedings.

 

This summary also appears under Real Property

 

Issues: Whether the Supreme Court's order in a prior case resolved the original property dispute in the plaintiffs' favor; Whether and to what extent the Supreme Court's order in John Guidobono II Revocable Trust Agreement v. Jones (Jones II) altered the parties' property rights as determined after the appeal to the court in John Guidobono II Revocable Trust Agreement v. Jones (Unpub.) (Jones I); Whether the trial court properly interpreted the Supreme Court's order; Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; Silberstein v. Pro-Golf of Am., Inc.; Kasben v. Hoffman; Michigan v. Eddy

Court: Michigan Court of Appeals (Unpublished)

Case Name: John Guidobono II Revocable Trust Agreement v. Jones

e-Journal Number: 53792

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

 

The court agreed with the trial court that the Supreme Court's order did not resolve the original property dispute and, as a result, could not serve as the basis for a request for injunctive relief. Thus, the trial court did not err when it determined that plaintiff-Guidobono's new lawsuit - to the extent that it was premised solely on the Supreme Court's order - should be dismissed under MCR 2.116(I)(1). However, "in the interests of a full and fair resolution of the dispute on the merits," the court reversed and remanded. In the prior litigation, the parties sought a final resolution of their dispute over the nature and extent of their rights under the easement. Defendant-Jones contended that the easement included full riparian rights. She argued that she had used the easement in that way for more than 30 years. Guidobono argued that the easement only gave Jones the right to access the lake. The trial court in the prior litigation determined that Jones had the right to use the easement as she had been using it under various legal theories. In the original appeal, the court concluded that the trial court erred to the extent that it determined that Jones acquired rights under collateral estoppel. It also determined that the trial court erred to the extent that it might have granted summary disposition under laches because there was a question of fact as to the application of that defense. However, the court affirmed the trial court's decision to grant Jones summary disposition because the court determined that the trial court correctly concluded that Jones had established her rights under the doctrine of acquiescence. By affirming the trial court's order granting Jones summary disposition, the court effectively confirmed that Jones had the right to use the disputed easement for more than mere access to the lake. It did so, however, on one basis - Jones had established her rights under the doctrine of acquiescence. But the Supreme Court disagreed with the court's application of the doctrine of acquiescence and vacated its opinion to the extent that it applied that doctrine. The Supreme Court did not reverse the court's judgment or the trial court's order granting summary disposition in the original action. Instead, it elected to vacate the court's judgment in part. It chose to alter the effect of the court's opinion by nullifying the analysis it deemed erroneous. The Supreme Court's order effectively altered the court's opinion from one affirming the grant of summary disposition for Jones into one reversing the grant of summary disposition in her favor and remanding for trial on the merits. In this action, Guidobono sued Jones on the basis of acts that Jones had taken since the original lawsuit, which allegedly violated the Supreme Court's order. However, Guidobono's new suit based on a violation of the Supreme Court's order failed to state a claim because the order did not resolve the dispute. The parties should have pursued the original litigation to a final resolution.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Whether the Supreme Court's order in a prior case resolved the original property dispute in the plaintiffs' favor; Whether and to what extent the Supreme Court's order in John Guidobono II Revocable Trust Agreement v. Jones (Jones II) altered the parties' property rights as determined after the appeal to the court in John Guidobono II Revocable Trust Agreement v. Jones (Unpub.) (Jones I); Whether the trial court properly interpreted the Supreme Court's order; Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; Silberstein v. Pro-Golf of Am., Inc.; Kasben v. Hoffman; Michigan v. Eddy

Court: Michigan Court of Appeals (Unpublished)

Case Name: John Guidobono II Revocable Trust Agreement v. Jones

e-Journal Number: 53792

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

 

The court agreed with the trial court that the Supreme Court's order did not resolve the original property dispute and, as a result, could not serve as the basis for a request for injunctive relief. Thus, the trial court did not err when it determined that plaintiff-Guidobono's new lawsuit - to the extent that it was premised solely on the Supreme Court's order - should be dismissed under MCR 2.116(I)(1). However, "in the interests of a full and fair resolution of the dispute on the merits," the court reversed and remanded. In the prior litigation, the parties sought a final resolution of their dispute over the nature and extent of their rights under the easement. Defendant-Jones contended that the easement included full riparian rights. She argued that she had used the easement in that way for more than 30 years. Guidobono argued that the easement only gave Jones the right to access the lake. The trial court in the prior litigation determined that Jones had the right to use the easement as she had been using it under various legal theories. In the original appeal, the court concluded that the trial court erred to the extent that it determined that Jones acquired rights under collateral estoppel. It also determined that the trial court erred to the extent that it might have granted summary disposition under laches because there was a question of fact as to the application of that defense. However, the court affirmed the trial court's decision to grant Jones summary disposition because the court determined that the trial court correctly concluded that Jones had established her rights under the doctrine of acquiescence. By affirming the trial court's order granting Jones summary disposition, the court effectively confirmed that Jones had the right to use the disputed easement for more than mere access to the lake. It did so, however, on one basis - Jones had established her rights under the doctrine of acquiescence. But the Supreme Court disagreed with the court's application of the doctrine of acquiescence and vacated its opinion to the extent that it applied that doctrine. The Supreme Court did not reverse the court's judgment or the trial court's order granting summary disposition in the original action. Instead, it elected to vacate the court's judgment in part. It chose to alter the effect of the court's opinion by nullifying the analysis it deemed erroneous. The Supreme Court's order effectively altered the court's opinion from one affirming the grant of summary disposition for Jones into one reversing the grant of summary disposition in her favor and remanding for trial on the merits. In this action, Guidobono sued Jones on the basis of acts that Jones had taken since the original lawsuit, which allegedly violated the Supreme Court's order. However, Guidobono's new suit based on a violation of the Supreme Court's order failed to state a claim because the order did not resolve the dispute. The parties should have pursued the original litigation to a final resolution.

 

Issues: Quiet title; Whether the plaintiff's claim was untimely under the equitable doctrine of laches; Henderson v. Connolly's Estate; Lothian v. Detroit; Duck v. McQueen; Mogk v. Stroeker; Public Health Dep't v. Rivergate Manor; Prejudice occasioned by the delay; Dunn v. Minnema; Campau v. Van Dyke; German Am. Seminary v. Kiefer; Ford v. Loomis; Whether defendants (collectively the Bank) were plainly on notice that the title was defective; Use of agency to transfer the principal's property to the agent; Wilson v. White; Hutton v. Sherrard; Applying laches to a claim that was brought within the applicable period of limitations; Tenneco Inc. v. Amerisure Mut. Ins. Co.; Whether the plaintiff had a vested legal right rendering laches inapplicable; Angeloff v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: Knight v. Northpointe Bank

e-Journal Number: 53798

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

 

Given the record evidence that plaintiff-Knight delayed suing for years after the point at which she knew or should have known of her claim, and that the defendants' (collectively the Bank) ability to defend against her suit would be severely prejudiced by the delay, the court held that the trial court did not err when it applied laches to bar Knight's claim. Thus, the court affirmed the trial court's order dismissing Knight's complaint for title to the disputed property free of any claim by the Bank. She challenged whether her sister (Cutro) validly transferred the 200 acres owned by their mother to herself. She also asked the trial court to determine, on that basis, that she owned the 200 acres free of any claim by the Bank. Thus, although she did not refer to her claim as one to quiet title, it was evident that Knight invoked the trial court's equitable power to quiet title. She sued to quiet title to the parcel more than 10 years after the transfer that she claimed was invalid. During that 10-year period, the property was transferred several times. The Bank foreclosed on and purchased the property at a sheriff's sale in 2010. These transfers were recorded and thus, a matter of public record. Also, each transfer contained a right of first refusal that named Knight (among others) and required notice before the property could be sold. Further, Cutro and Knight were, in effect, neighbors for more than eight years prior to Knight's decision to sue. "Knight's apparent knowledge of the facts and circumstances surrounding the transfers suggests that she deliberately chose to sleep on her rights while her sister, and later her niece, had possession of the property at issue." Her decision to delay suing until after the Bank acquired the property at the sheriff's sale "plainly prejudiced the Bank's ability to defend itself against Knight's lawsuit." During the delay, the two most important witnesses to the underlying facts died. "Knight's delay also prejudiced the Bank's position by increasing its financial exposure." The court concluded that, "under the circumstances, the fact that the Bank knew, or at the least should have known, that Cutro transferred the property from her mother to herself using a power of attorney did not preclude the Bank from asserting laches as a defense."

 

Tax

 

Issues: Review of a decision by the Michigan Tax Tribunal (MTT) affirming the respondent-Township's denial of a "principal residence exemption" (PRE) (aka homestead exemption) on the petitioners' property; Michigan Props., LLC v. Meridian Twp.; Const. 1963, art. 6, § 28; Michigan Milk Producers, Ass'n v. Department of Treasury; Jones & Laughlin Steel Corp. v. City of Warren; ANR Pipeline Co. v. Department of Treasury; Statutory interpretation; Klooster v. City of Charlevoix; In re Rovas Complaint Against SBC MI; Liberty Hill Hous. Corp. v. Livonia; §§ 7cc & 7dd of the General Property Tax Act (MCL 211.7cc and MCL 211.7dd); EldenBrady v. City of Albion; MCL 211.7cc(1); "Principal residence" defined; MCL 211.7dd(c); Great Lakes Div. of Nat'l Steel Corp. v. City of Ecorse; Department of Cmty. Health v. Risch

Court: Michigan Court of Appeals (Published)

Case Name: Drew v. County of Cass

e-Journal Number: 53942

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

 

Holding that there was substantial evidence to support the MTT's decision and the MTT did not misapply the law or adopt an incorrect principle in arriving at its decision, the court affirmed an order of the MTT, which affirmed respondent-Township's denial of a PRE on the petitioners' property during the tax years of 2007-2011. Petitioners argued that the MTT erred in concluding that the property was not their principal residence. Petitioners did not contest that the utility bills indicated low utility usage, but instead argued that the energy bills were for services provided to a separate, non-residential property that they owned, and that the electric bills, alone, did not constitute competent, material, and substantial evidence. However, petitioners never offered any documentary evidence supporting that the energy bills applied to a separate, non-residential property. In fact, each energy bill listed the subject property as the mailing address and classified the "account type" as "residential." Also, as the MTT noted, petitioners never offered any evidence contradicting respondent's utility evidence or otherwise establishing what the property's utility usage was for the relevant years. Rather, they redacted the "amount due" information from all of the utility bills that they submitted. Thus, petitioners did not provide the court with any reason to disturb the MTT's factual finding as to the property's utility usage. Although they presented their driver's licenses, voter registration cards, and tax returns, such evidence was not conclusive proof of petitioners' principal residence. Instead, the items were merely factors to be considered by the MTT for purposes of determining petitioners' principal residence. "The weight to be accorded to the evidence is within the Tax Tribunal's discretion." Also, the court may not second-guess the MTT's discretionary decisions as to the weight to assign to the evidence. The court saw no reason to disturb the MTT's conclusion that the driver's licenses, voter registration cards, and tax returns, were not dispositive for purposes of determining petitioners' principal residence. Respondent presented evidence supporting its position that the property was not petitioners' principal residence, but instead was utilized as a summer or seasonal home. The record established that the property was inaccessible by road and was less than 600 square feet in size. Respondent submitted utility bills for the property from 2009 and 2010 that indicated low utility usage. A long-time resident of the area testified that no one permanently lived on petitioners' island. They also owned multiple residential properties, including one that was located within one minute of the children's school. Petitioners testified at a hearing that they had slept at that home the previous night.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(g), (j), (n)(i), (n)(ii), and (n)(iii); In re Sours; In re JK; In re AH; Whether termination of respondent-father's parental rights was premature; Berger v. Berger

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Thornberry

e-Journal Number: 53832

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

 

Given the respondent-father's criminal history and his inability to maintain a safe and clean home, the court held that the trial court properly terminated his parental rights to his minor children and that the trial court did not err in terminating his parental rights before resolution of his criminal appeal. The court held that termination of respondent's parental rights was proper under §§ 19b(3)(g), (j), and (n)(i). Any error in finding §§ 19b(3)(n)(ii) and (n)(iii) were established was harmless because only one statutory ground needs to be established to terminate parental rights. At the time that his parental rights were terminated, respondent was incarcerated for CSC against his minor stepdaughter and unable to provide proper care and custody of his children. Before his incarceration, the home the children were removed from was deplorable and unsafe. There was also evidence that respondent was physically abusive to all of the children, having disciplined them with a belt. There was no evidence that respondent could maintain a clean, safe, or appropriate home for the children. Because evidence of how a parent treats one child is evidence of how he may treat other children, the children would be at risk of harm in respondent's care. Affirmed.

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (g), and (j); The best interests of the child

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Washington

e-Journal Number: 53799

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

 

The court held that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory bases for termination were established by clear and convincing evidence and termination was in the child's best interests. Respondent adopted the child within a year of her foster care placement with respondent. Although there were several CPS investigations in the year and a half after the adoption, none were substantiated. The current investigator testified that the child's history of mental health issues and temper tantrums led the previous investigator to believe the injuries were self-inflicted. Respondent broke her ankle in early 12/11 and claimed that it was due to the then 10-year old child's kicking her during a tantrum. In 1/12, the police were called to the home after an altercation between respondent and the child. The child had numerous bruises and scrapes all over her body and a bruise on her forehead, a black eye, and a bite mark on her face. A medical expert testified that some of the injuries could have been self-inflicted, and that the other injuries were more indicative of intentional child abuse than self-inflicted injury, although the expert could not rule out self-mutiliation. Respondent claimed that the child broke respondent's hand with a picture frame during the incident and told police that she did not want the child in her home. She also told the CPS investigator a few days earlier that she did not want the child back in her home, and DHS filed an initial petition to terminate respondent's parental rights. The court held that the trial court did not clearly err in finding that the statutory grounds were established by clear and convincing evidence. There was ample evidence that the child was physically abused by respondent, introduced through the child's testimony, photographs taken of the child's injuries by the CPS investigator, and the doctor's testimony that the injuries were not self-inflicted. The respondent only raised the issue of credibility, as she and her 17-year old daughter testified that the child inflicted the injuries on herself. The trial court also did not clearly err in finding that there was a reasonable likelihood that the child would be harmed or physically abused if returned to respondent's home. Respondent did not admit any abuse and described a living situation that would be difficult for anyone. She failed to seek help for the child. Respondent also failed to seek medical attention for the child after she allegedly banged her head into the wall and a closet door, putting holes in them. Affirmed.

 

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