• Bankruptcy (1)
• Criminal Law (6)
• Debtor/Creditor (1)
• Litigation (1)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Real Property (1)
• Termination of Parental Rights (2)

Bankruptcy

 

This summary also appears under Debtor/Creditor

 

Issues: Action to collect a debt owed by defendant-Casino Concepts (CC) and guaranteed by defendant-Tate; Whether the trial court properly held that the undisputed debt was not discharged in Tate's prior Chapter 7 bankruptcy proceeding because it was not listed in the bankruptcy petition; 11 USC § 523(a)(3)(A) (providing categories of debt that are not discharged in bankruptcy, including nonscheduled debts); Tate's claim that because her bankruptcy was a "no asset" bankruptcy the undisclosed debt was discharged because the plaintiff-Bank would not have received a distribution from the estate even if the Bank had received notice of the proceedings; Whether In re Madaj (6th Cir.) was applicable; Colonial Sur. Co. v. Weizman (1st Cir.); In re Stark (7th Cir.); Schueler v. Weintrob; Abela v. General Motors Corp.; Whether the Bank's action to collect the debt was barred by res judicata

Court: Michigan Court of Appeals (Unpublished)

Case Name: First Place Bank v. Casino Concepts By Design, Inc.

e-Journal Number: 53822

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

 

In this action to collect a debt, the court held that the trial court properly granted the plaintiff-Bank summary disposition because it correctly determined that the undisputed debt was not discharged in defendant-Tate's prior Chapter 7 bankruptcy proceeding because it was not listed in the bankruptcy petition. Tate argued that the trial court erred in granting the Bank summary disposition because the debt based on her personal guarantee of defendant-Casino Concepts' loan was discharged in her prior no-asset Chapter 7 bankruptcy proceeding. The court noted that the federal bankruptcy code requires a debtor to file a list of creditors when filing a bankruptcy petition. Section 523(a) provides categories of debt that are not discharged. Tate did not dispute that she failed to list her debt to the Bank in her schedule of debts filed in the prior bankruptcy case and did not contend that the Bank had notice or actual knowledge of the bankruptcy case before it was closed. Instead, she argued that because it was a "no-asset bankruptcy" the undisclosed debt was discharged in spite of § 523(a)(3)(A), because the Bank would not have received a distribution from the bankruptcy estate even if it had received timely notice of the bankruptcy proceeding. She relied on In re Madaj. However, the court concluded that Colonial Surety represented "the more appropriate approach." In Colonial Surety, the First Circuit Court of Appeals concluded that non-listed debts were not discharged in bankruptcy, even in a no-asset bankruptcy. Tate incorrectly asserted that the court was bound by Madaj because it was a Sixth Circuit case. The court disagreed based on Schueler as clarified in Abela. The court concluded that the Colonial Surety approach was more consistent with Michigan's jurisprudence, and that the trial court properly concluded that the Bank's unlisted debt was not discharged in bankruptcy. The court also held that there was no merit to Tate's res judicata argument. Affirmed.

 

Criminal Law

 

Issues: Admission of expert testimony about "battered-woman syndrome" (BWS) during the prosecution's case-in-chief; MRE 702; People v. Christel; People v. Daoust; Whether expert testimony about BWS must be raised by the defense; Applicability of People v. Beckley; Foundation evidence for understanding the victim's behavior; State v. Haines (OH); Assault with intent to cause great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hinton

e-Journal Number: 53928

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

 

Holding that the trial court did not abuse its discretion in allowing expert testimony about BWS during the prosecution's case-in-chief, the court affirmed the defendant's convictions of two counts of CSC I, torture, unlawful imprisonment, AWIGBH, and felonious assault. Defendant argued that because the defense never placed in issue the victim's post-incident behavior and continuing contact with defendant, the expert testimony was improper and only served to bolster her credibility. The victim accepted several calls from him while he was in jail. She also wrote and exchanged letters with him after the incident. "She testified that, after the incident, she continued to love defendant and continued to care about him." The court noted that such post-incident behavior was the type of behavior discussed in Christel. "Because an average person may not understand why the victim of a severe beating and criminal sexual conduct would continue to have contact with the alleged perpetrator, the expert testimony was properly admitted in the prosecution's case in chief." Defendant suggested that expert testimony about BWS must be raised by the defense, not the prosecution. However, the Christel court "explained that such testimony may be permissible to explain the 'uniqueness of a specific behavior brought out at trial,' and specifically observed that it may be introduced 'in the prosecution's case-in-chief[.]'" Christel did not stand for the proposition that the defense must be the party to introduce the evidence. To show that defendant "tried to manipulate the victim from jail, the prosecution desired to introduce evidence concerning the telephone calls and the victim's other post-incident contact with him. However, the prosecution also found it necessary to explain to the jury why the victim would have remained in contact with defendant after the assault. This was the primary purpose behind the prosecution's introduction of the expert testimony." The expert testified that there are various reasons why a victim might stay in contact with an abuser after an assault. He testified that he had never talked to the victim and that he was testifying about domestic violence in general, not about any specific person. He offered no testimony as to whether the victim was actually battered, whether defendant was a batterer, whether he was guilty, or whether the victim was telling the truth. "The expert's testimony was relevant and helpful to explain to the jury why the victim might have remained in contact with defendant. It put the prosecution's other evidence in an understandable context."

 

Issues: Right of confrontation; People v. Payne; A "testimonial statement"; People v. Dendel (On Second Remand); Davis v. Washington; Michigan v. Bryant; Use of out-of-court statements for purposes of other than establishing the truth of the matter asserted; People v. Chambers; A jury's right to hear the "complete story"; People v. Sholl; "Cumulative error"; People v. Bahoda

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McFarland

e-Journal Number: 53919

Judge(s): Per Curiam – Fort Hood, K.F. Kelly, and Donofrio

 

The court held that there was no violation of the Confrontation Clause because the statement by a witness (D) to the responding officers that the defendant threw a gun on top of the building was not testimonial. Further, the trial court did not abuse its discretion in admitting evidence of a second robbery the victims saw defendant and his accomplice commit across the street. Defendant's convictions arose from the robbery of two individuals who were walking down the street one morning. The victims, a woman and her fiancé, were walking when they were approached by two men, both carrying guns. Defendant was identified as one of the men. The men robbed them of a cell phone, a wallet, and cigarettes. With the help of a passing motorist, the victims called 911 and reported the robbery. A short time later, they reported seeing defendant and his accomplice robbing two other individuals across the street. Police arrived on the scene, and the two men fled. Defendant stopped in front of a building, where he was apprehended. D informed the police that defendant threw a gun on top of the building. With the fire department's assistance, police recovered a gun from the roof of the building. While defendant was also charged with the alleged robbery that occurred across the street, the charges were dismissed when those witnesses could not be located. The court noted that D‘s statement "was not taken in anticipation of a criminal proceeding and as a substitute for trial testimony, but rather, occurred in the context of an ongoing emergency" when police were trying to secure the perpetrators of a crime and the weapon used in the commission of the crime. Further, the statement was offered to show why the police acted as they did. Defendant's claim that D referred to a past event was unavailing - she described an event that had just occurred. As to the evidence about the second robbery, the court noted that a "jury is entitled to hear the 'complete story' surrounding the matter in issue." The evidence was not admitted to show that defendant engaged in other bad acts, but rather, to establish the circumstances surrounding his arrest. The court affirmed his convictions of two counts of armed robbery, felon in possession, and felony-firearm.

 

Issues: Search and seizure; Motion to suppress evidence found in the defendant's house pursuant to an unsigned search warrant; Validity of the warrant; People v. Mitchell; People v. Kazmierczak; "Probable cause"; People v. Russo; Rebutting the presumption that an unsigned warrant is invalid; People v. Barkley; People v. Hentkowski; People v. Locklear

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Neill

e-Journal Number: 53908

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

 

The court held that the trial court properly denied the defendant's motion to suppress the evidence found in his house pursuant to an unsigned search warrant because the warrant was valid under binding Michigan case law. Defendant was convicted, after a conditional guilty plea, of maintaining a drug house. A police detective (S) presented a probable cause affidavit to search defendant's house to a magistrate (B). According to S, B reviewed the paperwork carefully, swore him, affirmed his oath, and then gave him a pen to sign the affidavit. S saw B sign paperwork, and then followed him to the copy room, where B made copies. B testified at the suppression hearing that the probable cause affidavit contained his signature, and he would not have signed it without first determining that probable cause existed to issue the search warrant. He testified that he logs every search warrant and that he logged the search warrant in the warrant book as issued. B testified that he forgot to sign the warrant, but that he did not realize it until he tried to file the return search warrant that he received back from S. Defendant argued that a search pursuant to an unsigned warrant is unconstitutional because the warrant is invalid. While he relied on the court's decisions in Hentkowski and Locklear, those decisions were not binding precedent. In Barkley, which is binding precedent, the court held that an unsigned warrant is presumed to be invalid, but the prosecution can rebut that presumption. "Ample evidence supported the trial court's finding" that B determined that probable cause warranted the search, and the evidence also supported the trial court's finding that B intended to issue the warrant. Both B and S signed the probable cause affidavit, and both testified that B would not have let S sign it if he did not believe that probable cause supported it. B also testified that he would not have signed the affidavit before determining that probable cause warranted the search. Affirmed.

 

Issues: Sentencing; Downward departure from the guidelines; "Law of the case" doctrine; Webb v. Smith (After Second Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Olear

e-Journal Number: 53925

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

 

The court held that the trial court was required to follow the court's prior opinion in this case, which concluded that certain factors previously cited by the trial court to support its downward departure in sentencing the defendant were not substantial and compelling. The trial court was "not free to rely on a minority opinion nor a concurring opinion from the Michigan Supreme Court." Thus, the court vacated defendant's sentence and remanded for resentencing in accordance with the present opinion and the prior opinion. The court retained jurisdiction and issued an order concurrently with the opinion setting a schedule for proceedings on remand. The prosecution previously appealed the original sentence imposed by the trial court, and the court held in that appeal that probation was not available for CSC III. The court noted in the prior opinion that the trial court could again consider a downward departure from the guidelines. However, the court also stated that the facts that this conviction cost defendant his law enforcement career, required him to register as a sex offender, and impacted where he was able to live did "not 'keenly' grab" its attention. Further, the number and content of letters submitted from family, friends, and others in the community and his receipt of awards during his relatively short law enforcement career did not constitute substantial and compelling reasons for a downward departure. The court then remanded the case to the trial court "for resentencing in accordance with this opinion." One judge concurred in part and dissented in part. Defendant unsuccessfully applied for leave to appeal to the Supreme Court. One justice wrote a concurring opinion agreeing with the judge who concurred in part and dissented in part in the prior opinion. The trial court stated at the remanded sentencing that the court's prior ruling was only that the trial court erred in granting defendant probation, and that the majority's comments about the grounds for a downward departure were dicta. The court held that this was "simply not true." Once the court "acts and remands for resentencing 'in accordance with this opinion', that means that the trial court must follow that opinion. It is not dicta, but rather, the law of the case." While the court did not hold that the trial court was precluded from departing downward, "if it does so, it may not base any such departure on factors" that the court previously ruled should not be considered.

 

Issues: Motion to suppress; Whether there was "reasonable suspicion" to search and seize defendant; People v. Chowdhury; People v. Dillon; People v. Waclawski; People v. Brown; U.S. Const., amend. IV; Const. 1963, art. 1 § 11; People v. Jenkins; People v. Gonzalez; "Terry stop"; People v. Steele; People v. Williams; Whether the trial court properly denied defendant's request for new appointed counsel without inquiring into his claim that the attorney-client relationship had broken down; People v. Traylor; People v. Bauder, Claim defendant's due process rights were violated because the prosecution knowingly allowed false testimony to be used against him; People v. Lester; United States v. Sherlock (9th Cir.); "Plain error"; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Turner

e-Journal Number: 53902

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

 

Given the circumstances with which he was presented, the court held that an officer of reasonable precaution in officer N's position would have suspected that criminal activity was afoot and would have been justified in conducting a Terry stop to investigate further. The court first held that defendant and the other occupants of the car became seized for Fourth Amendment purposes when J, the driver, was ordered to return to the vehicle. N testified that he approached the car and spoke with J. N asked J some questions and he responded voluntarily. No seizure occurred at this point because this was the type of "voluntary cooperation" and "noncoercive questioning" contemplated in Jenkins. But later, when N told J to return to his car to "have a seat" and several other police officers arrived, a reasonable person in defendant's position would not have believed he was free to leave. Clearly, J was not free to leave because N made it clear to J from his instructions to "have a seat" in the car that the encounter was not over. The instructions to J, "coupled with the subsequent arrival of at least six other officers to the scene, in at least three different vehicles, would have indicated to defendant and the other vehicle occupants that they were not free to drive or walk away." After the officers arrived, they surrounded the car and outnumbered the occupants at least two to one, such that N acknowledged that he could not approach the car at that time because there were "too many people" around it. The court further held that based on the totality of the circumstances, N had reasonable suspicion that criminal activity was afoot when he told J to return to the car and have a seat. N was responding to a 911 call reporting drug activity in the apartment complex and saw a woman on a cell phone point in the general direction of the car with the three men sitting in it with the engine off. When J exited the vehicle, his explanation to N about why he was in the area did not appear credible or consistent with other observable facts. Then, in response to N's questions whether there were guns in the car, J did not respond right away, smiled, and then said he did not know. "Deference is given to a police officer's experience when determining if there is reasonable, articulable suspicion of criminal activity." Affirmed.

 

Issues: Jury coercion; People v. Vettese; United States v. Crotteau (8th Cir.); Zeitz v. Mara; "Plain error"; People v. Carines; Whether the trial court violated the Ex Post Facto Clauses of U.S. Const., art. I, § 10, and Const. 1963, art. 1, § 10 by assessing a $130 fee under the Crime Victim's Rights Act (CVRA); People v. Callon; People v. Earl; Prosecutorial misconduct; The prosecutor's commentary during closing argument as to defendant's failure to contradict the state's evidence; People v. Mann; People v. Williams; People v. Fields; Whether the prosecutor improperly commented on defendant's decision not to testify; MCL 600.2159; People v. Guenther; United States v. Moore (6th Cir.); Ineffective assistance of counsel; People v. LeBlanc; People v. Riley; People v. Armstrong; People v. Seals; Failure to object; People v. Unger; People v. Ackerman; People v. Cross; Trial strategy; People v. Rockey

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Worden

e-Journal Number: 53899

Judge(s): Per Curiam – Wilder and Boonstra; Concurring in part, Dissenting in part – Gleicher

 

The court held that the trial court in no way coerced the jury to reach a verdict before it was ready and its instructions were neutral and nonthreatening. Further, the trial court's imposition of a fee under the CVRA as it existed at the time of trial was not an ex post facto penalty. Defendant also argued that the prosecutor's commentary during closing argument as to defendant's failure to contradict the state's evidence was overzealous and erroneous, and defense counsel's failure to object that the prosecutor was improperly commenting on defendant's exercise of his right to remain silent was ineffective assistance of counsel. However, the court found no error of law on these points, and held that there were no grounds requiring reversal, concluding that the prosecution presented overwhelming evidence of defendant's guilt. He argued that he was denied a fair trial when the trial court "coerced a hasty verdict by keeping the jurors 'late' without advising them that they could resume deliberations the next day." The court noted that defendant's trial took only one day, beginning at approximately 9:30 AM. The trial court released the jury to deliberate at 4:46 PM and they returned their verdict at 5:24, 38 minutes later. When the trial court released the jury to deliberate, it gave an instruction stating, inter alia, that the verdict must be unanimous, and that while the jurors should try to reach agreement, none should give up their honest opinion just for the sake of reaching a verdict. The court stated that the "trial court would have been well-advised to inform the jury that it could return the following day to continue deliberations if needed." However, there was no error. Defendant's convictions of first-degree home invasion and felonious assault for breaking into a home in the middle of the night and hitting a resident on the head with a lead pipe during the subsequent melee were affirmed.

 

Debtor/Creditor

 

This summary also appears under Bankruptcy

 

Issues: Action to collect a debt owed by defendant-Casino Concepts (CC) and guaranteed by defendant-Tate; Whether the trial court properly held that the undisputed debt was not discharged in Tate's prior Chapter 7 bankruptcy proceeding because it was not listed in the bankruptcy petition; 11 USC § 523(a)(3)(A) (providing categories of debt that are not discharged in bankruptcy, including nonscheduled debts); Tate's claim that because her bankruptcy was a "no asset" bankruptcy the undisclosed debt was discharged because the plaintiff-Bank would not have received a distribution from the estate even if the Bank had received notice of the proceedings; Whether In re Madaj (6th Cir.) was applicable; Colonial Sur. Co. v. Weizman (1st Cir.); In re Stark (7th Cir.); Schueler v. Weintrob; Abela v. General Motors Corp.; Whether the Bank's action to collect the debt was barred by res judicata

Court: Michigan Court of Appeals (Unpublished)

Case Name: First Place Bank v. Casino Concepts By Design, Inc.

e-Journal Number: 53822

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

 

In this action to collect a debt, the court held that the trial court properly granted the plaintiff-Bank summary disposition because it correctly determined that the undisputed debt was not discharged in defendant-Tate's prior Chapter 7 bankruptcy proceeding because it was not listed in the bankruptcy petition. Tate argued that the trial court erred in granting the Bank summary disposition because the debt based on her personal guarantee of defendant-Casino Concepts' loan was discharged in her prior no-asset Chapter 7 bankruptcy proceeding. The court noted that the federal bankruptcy code requires a debtor to file a list of creditors when filing a bankruptcy petition. Section 523(a) provides categories of debt that are not discharged. Tate did not dispute that she failed to list her debt to the Bank in her schedule of debts filed in the prior bankruptcy case and did not contend that the Bank had notice or actual knowledge of the bankruptcy case before it was closed. Instead, she argued that because it was a "no-asset bankruptcy" the undisclosed debt was discharged in spite of § 523(a)(3)(A), because the Bank would not have received a distribution from the bankruptcy estate even if it had received timely notice of the bankruptcy proceeding. She relied on In re Madaj. However, the court concluded that Colonial Surety represented "the more appropriate approach." In Colonial Surety, the First Circuit Court of Appeals concluded that non-listed debts were not discharged in bankruptcy, even in a no-asset bankruptcy. Tate incorrectly asserted that the court was bound by Madaj because it was a Sixth Circuit case. The court disagreed based on Schueler as clarified in Abela. The court concluded that the Colonial Surety approach was more consistent with Michigan's jurisprudence, and that the trial court properly concluded that the Bank's unlisted debt was not discharged in bankruptcy. The court also held that there was no merit to Tate's res judicata argument. Affirmed.

 

Litigation

 

This summary also appears under Real Property

 

Issues: Class action certification in an action alleging racial disparities resulting from the defendant's loan-pricing policy for home mortgages; Fed.R.Civ.P. 23; "Commonality"; Wal-Mart Stores, Inc. v. Dukes; McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (7th Cir.); "Disparate impact"; Watson v. Fort Worth Bank & Trust; Bondurant v. Air Line Pilots Ass'n, Int'l

Court: U.S. Court of Appeals Sixth Circuit

Case Name: In re Countrywide Fin. Corp. Mtg. Lending Practices Litig.

e-Journal Number: 53677

Judge(s): Moore, Gilman, and Kethledge

 

The court held that the district court did not abuse its discretion in refusing to grant plaintiffs' request for class certification. Plaintiffs sought class certification in order to challenge alleged racial disparities in defendant-Countrywide's loan-pricing policy for home mortgages. The district court found that plaintiffs' proposed class failed to satisfy Rule 23(a)'s commonality requirement and declined to grant certification. On appeal, the court rejected plaintiffs' argument that the district court abused its discretion by failing to distinguish their challenge to defendant's subjective loan-pricing policy from the failed challenge to Wal-Mart's subjective pay-and-promotion practices in Dukes. It found that Dukes makes clear that "class members must unite acts of discretion under a single policy or practice, or through a single mode of exercising discretion, and the mere presence of a range within which acts of discretion take place will not suffice to establish commonality." The court also distinguished McReynolds, finding that, unlike that case, where there were companywide policies that contributed to the alleged disparate impact, no such policies existed in this case. It concluded that, without "a similar policy to provide a common contention, the plaintiffs must show that a common mode unites individual acts of discretion by Countrywide's agents, which they have not done." Affirmed.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly denied the defendant-SMART's motion for summary disposition in this negligence/governmental immunity case; The Governmental Tort Liability Act (MCL 691.1401 et seq.); Review; MEEMIC Ins. Co. v DTE Energy Co.; Whether the facts supported that defendant-Pointer (bus driver) negligently operated the bus; Jackson Cnty. Drain Comm'r v. Stockbridge; MCL 691.1405; Whether plaintiff's injury resulted from the "negligent operation" of the bus; Chandler v. Muskegon Cnty.; Requirement that plaintiff plead in avoidance of governmental immunity; Odom v. Wayne Cnty.; Oliver v. Smith; Whether plaintiff properly relied on the presumption in MCL 257.402(a) as to rear-end collisions; White v. Taylor Distrib. Co.; Lucas v. Carson; Whether the cause of the accident is best left to the trier of fact; Skinner v. Square D Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sears v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 53903

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

 

The court held that defendant-SMART's admissible documentary evidence was inadequate to support its contention that no question of material fact existed as to its immunity from liability. Thus, denial of summary disposition under MCR 2.116(C)(10) was correct. The court also held that SMART's evidence did not specifically contradict plaintiff's allegations. Thus, denial of summary disposition under MCR 2.116(C)(7) was also correct. The case arose from a rear-end collision that occurred near an intersection. Plaintiff stopped several car lengths from a traffic light to allow another vehicle to enter the traffic from a gas station driveway. Defendant-Pointer was driving a bus owned by SMART at the time. The bus was behind plaintiff's vehicle at the traffic light and collided with the rear of her vehicle. The collision damaged plaintiff's car. The city police department investigated the accident and noted that plaintiff received no injury. The police report stated - "[Plaintiff] said she believed [the bus] to be stopped behind her when it suddenly moved forward and pushed her car for several feet. [Pointer] said she was stopped for the light when the engine suddenly started to rev forcing the vehicle ahead. [Pointer] said she pushed the brakes and eventually got the vehicle to stop." Plaintiff sued defendants alleging gross negligence and ordinary negligence. SMART moved for summary disposition arguing, inter alia, that it was entitled to governmental immunity. In response, plaintiff contended that SMART was "prima facie guilty of negligence because Pointer had rear-ended plaintiff's vehicle, and that this was sufficient to create a question of fact for a jury." She also asserted that there was no admissible evidence that the bus had a mechanical defect and SMART failed to comply with the notice provision of MCR 2.112 to assert a defense of nonparty at fault. The court held that the trial court did not err in denying SMART summary disposition because, on the evidentiary record before the trial court, genuine issues of material fact existed as to Pointer's liability and consequently, whether SMART was entitled to governmental immunity. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Whether the trial court properly denied the defendant-SMART's motion for summary disposition in this negligence/governmental immunity case; The Governmental Tort Liability Act (MCL 691.1401 et seq.); Review; MEEMIC Ins. Co. v DTE Energy Co.; Whether the facts supported that defendant-Pointer (bus driver) negligently operated the bus; Jackson Cnty. Drain Comm'r v. Stockbridge; MCL 691.1405; Whether plaintiff's injury resulted from the "negligent operation" of the bus; Chandler v. Muskegon Cnty.; Requirement that plaintiff plead in avoidance of governmental immunity; Odom v. Wayne Cnty.; Oliver v. Smith; Whether plaintiff properly relied on the presumption in MCL 257.402(a) as to rear-end collisions; White v. Taylor Distrib. Co.; Lucas v. Carson; Whether the cause of the accident is best left to the trier of fact; Skinner v. Square D Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sears v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 53903

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

 

The court held that defendant-SMART's admissible documentary evidence was inadequate to support its contention that no question of material fact existed as to its immunity from liability. Thus, denial of summary disposition under MCR 2.116(C)(10) was correct. The court also held that SMART's evidence did not specifically contradict plaintiff's allegations. Thus, denial of summary disposition under MCR 2.116(C)(7) was also correct. The case arose from a rear-end collision that occurred near an intersection. Plaintiff stopped several car lengths from a traffic light to allow another vehicle to enter the traffic from a gas station driveway. Defendant-Pointer was driving a bus owned by SMART at the time. The bus was behind plaintiff's vehicle at the traffic light and collided with the rear of her vehicle. The collision damaged plaintiff's car. The city police department investigated the accident and noted that plaintiff received no injury. The police report stated - "[Plaintiff] said she believed [the bus] to be stopped behind her when it suddenly moved forward and pushed her car for several feet. [Pointer] said she was stopped for the light when the engine suddenly started to rev forcing the vehicle ahead. [Pointer] said she pushed the brakes and eventually got the vehicle to stop." Plaintiff sued defendants alleging gross negligence and ordinary negligence. SMART moved for summary disposition arguing, inter alia, that it was entitled to governmental immunity. In response, plaintiff contended that SMART was "prima facie guilty of negligence because Pointer had rear-ended plaintiff's vehicle, and that this was sufficient to create a question of fact for a jury." She also asserted that there was no admissible evidence that the bus had a mechanical defect and SMART failed to comply with the notice provision of MCR 2.112 to assert a defense of nonparty at fault. The court held that the trial court did not err in denying SMART summary disposition because, on the evidentiary record before the trial court, genuine issues of material fact existed as to Pointer's liability and consequently, whether SMART was entitled to governmental immunity. Affirmed.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Class action certification in an action alleging racial disparities resulting from the defendant's loan-pricing policy for home mortgages; Fed.R.Civ.P. 23; "Commonality"; Wal-Mart Stores, Inc. v. Dukes; McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (7th Cir.); "Disparate impact"; Watson v. Fort Worth Bank & Trust; Bondurant v. Air Line Pilots Ass'n, Int'l

Court: U.S. Court of Appeals Sixth Circuit

Case Name: In re Countrywide Fin. Corp. Mtg. Lending Practices Litig.

e-Journal Number: 53677

Judge(s): Moore, Gilman, and Kethledge

 

The court held that the district court did not abuse its discretion in refusing to grant plaintiffs' request for class certification. Plaintiffs sought class certification in order to challenge alleged racial disparities in defendant-Countrywide's loan-pricing policy for home mortgages. The district court found that plaintiffs' proposed class failed to satisfy Rule 23(a)'s commonality requirement and declined to grant certification. On appeal, the court rejected plaintiffs' argument that the district court abused its discretion by failing to distinguish their challenge to defendant's subjective loan-pricing policy from the failed challenge to Wal-Mart's subjective pay-and-promotion practices in Dukes. It found that Dukes makes clear that "class members must unite acts of discretion under a single policy or practice, or through a single mode of exercising discretion, and the mere presence of a range within which acts of discretion take place will not suffice to establish commonality." The court also distinguished McReynolds, finding that, unlike that case, where there were companywide policies that contributed to the alleged disparate impact, no such policies existed in this case. It concluded that, without "a similar policy to provide a common contention, the plaintiffs must show that a common mode unites individual acts of discretion by Countrywide's agents, which they have not done." Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); The children's best interests; Whether the trial court erred in terminating respondent-mother's parental rights without fully exploring the possibility of a permanent guardianship; MCL 712A.19a(6) and (7); In re McIntyre; In re Trejo Minors; In re VanDalen

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Foulk

e-Journal Number: 53936

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

 

Holding that the trial court properly found that termination was in the children's best interests, the court affirmed the trial court's order terminating the respondent-mother's parental rights. She argued that the termination was not in the children's best interests. Her primary argument was that the trial court erred in terminating her parental rights without fully exploring the possibility of a permanent guardianship. There was testimony that "a guardianship was the most traumatic option for the children because it would continue the uncertainty of their placement." Also, there was no indication respondent would address her issues and be able to have the children returned to her care. The trial court reviewed what was asked of respondent during the course of the case, noting that she was ordered to attend individual therapy and sign a release of information for DHS and the trial court to obtain progress reports from the therapist. However, respondent had never attended individual therapy or signed releases. The trial court also noted that "throughout the case, at each of the review hearings, it ordered respondent to attend counseling, but she failed to do so and maintained that removal of the children was not her fault." The trial court stated that the difficult part of the case was determining if termination was in the children's best interests, noting that they loved respondent and she loved them. Also, respondent had another young child that another state determined she was caring for appropriately. However, the trial court found that she went to another state to have her youngest child so Michigan would not be involved with that child. The trial court believed respondent chose to not go to counseling even when she knew that was all she would have to do to have her children returned to her. This "indicated that her children were not important enough to her." The trial court found that the children were in a "never-never land" with no permanence, thus it was in their best interests to terminate parental rights. The court has previously held that a child's need for stability and permanency may be considered in determining best interests. The court could not conclude that the trial court clearly erred by finding that the children were thriving in foster care, the foster family desired to adopt them, and they needed stability and permanency. Given respondent's long history of failing to adhere to the trial court's orders, and her continuing denial of fault for DHS intervention, she failed to show that she was able to change any of the behaviors that led to the filing of the petition.

 

Issues: Termination of the respondent-mother's parental rights pursuant to §§ 19b(c)(i), (g), and (j); Whether the trial court properly ordered after her children were removed that her parenting time was conditioned on her submission of four clean drug tests; MCL 712A.13a(13); In re Utrera; In re Trejo Minors; In re BZ; Best interests of the children

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Jones/Gipson

e-Journal Number: 53883

Judge(s): Per Curiam - Whitbeck and Saad; Concurrence - Shapiro

 

The court held that the trial court properly terminated the respondent-mother's parental rights to her minor children because the statutory bases for termination were established by clear and convincing evidence and termination was in the children's best interests. The termination petition included allegations that respondent lacked housing, she could not properly care for her children, and had significant mental health problems. The evidence submitted at the termination hearing supported a finding that the issues at the time of adjudication remained and had no likely resolution. Testimony showed that respondent had moved 12 times during the pendency of the case, which showed that she did not resolve her housing instability. Although she found an apartment as of the termination hearing, she neither signed a lease, nor had she secured adequate funds to lease the apartment. She was living with her mother at that time, which she was told was not suitable for the children. She also failed to comply with the majority of services ordered by the trial court. She did not attend required parenting classes, rarely complied with the court-ordered drug tests, and her psychological evaluation showed a significant history of drug use and the presence of psychotic behaviors when she was using drugs. She also admitted to noncompliance with the counseling and medical portion of the case service plan because she did not believe she had mental health problems. Thus, the clear evidence showed that the issues from the adjudication remained and there was no reasonable likelihood that they would be rectified within a reasonable time given the ages of the children. The evidence also showed that she could not provide proper care and custody for her children and she did not show that she had the ability to do so in the future. Respondent was repeatedly unable to provide consecutive, clean drug screens, and lived a promiscuous lifestyle, resulting in multiple children fathered by men that she could not identify. The children had issues when arriving at their foster home, but improved in foster care. Finally, the court held that the trial court did not clearly err in ruling that termination was in the children's best interests. Evidence showed that they were doing significantly better under the care of the foster parents. Both children were in counseling and doing well scholastically. In the interim respondent did little to better herself. She became pregnant again by an unknown father and used alcohol and marijuana during her pregnancy. The record clearly supported the trial court's ruling that termination was in the children's best interests. Affirmed.

 

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