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Tuesday,
March 2, 2004
Case
Summaries
Including a summary of one Sixth Circuit Court of Appeals opinion in the following practice area: Criminal Law. |
Case Summaries
Consumer Rights
skip to next practice areaThis summary also appears under Real Property
Issues: Claims related to the sale of a home; The Seller's Disclosure Act (SDA)(MCL 565.951, et seq.); Misrepresentation, innocent misrepresentation, and silent fraud claims against the defendants-sellers and realtors; Claims under the Michigan Consumer Protection Act (MCL 445.901 et seq.); Breach of contract
Court: Michigan Court of Appeals (Unpublished)
Case Name: Timmons v. DeVoll
e-Journal Number: 22246
Judge(s): Per Curiam - Sawyer, Saad, and BandstraThe trial court properly dismissed plaintiff-Timmons' claim under the SDA with respect to defendants-Franklin, Curtis, Stetler, and Stetler, Vanderveer & Associates because under MCL 565.954(4) there is no independent cause of action after closing on the property and transferring the deed. Therefore, plaintiffs' ability to terminate the purchase agreement had expired. The plaintiffs' claims arose out of a real estate transaction in which defendants-DeVoll and Franklin listed their home for sale with their real estate agent, Curtis, and the office for which he was employed, Stetler, Vanderveer & Associates. Plaintiffs purchased the home with the assistance of their real estate agent, defendant-Champlin. After moving in, plaintiffs allegedly found many defects on the property. Under the plain language of the SDA, plaintiffs' only relief for a violation of the act would have been termination of the purchase agreement, but after the deed was transferred, they had no independent cause of action. Under § 964 a transfer of property subject to the act will not be invalidated solely because someone failed to comply with one of its provisions. Therefore, the trial court properly granted defendants summary disposition.
Contracts
skip to next practice areaThis summary also appears under Employment & Labor Law
Issues: Claims related to employment classification for purposes of compensation and benefits; Whether plaintiffs were "employees" of the defendant-city; Whether plaintiffs worked for defendant under personal services contracts; Whether the trial court engaged in impermissible fact-finding when it found plaintiffs were not "employees"; Whether the trial court's sua sponte summary dismissal was legal error; Denial of request to substitute parties; Whether the trial court failed to rule on the issues raised in the summary disposition motion
Court: Michigan Court of Appeals (Unpublished)
Case Name: Robinson v. City of Detroit
e-Journal Number: 22247
Judge(s): Per Curiam - Donofrio, Griffin, and JansenThe trial court did not engage in impermissible fact-finding when it determined plaintiffs were not defendant-city's "employees." Plaintiffs performed services for the city under a series of personal services contracts and asserted they were actually employees of the city "for purposes of compensation and benefits." They sought declaratory and injunctive relief and damages, arguing they were wrongfully denied participation in employee pension and benefit plans sponsored by the city for its employees. The court concluded the question of plaintiffs' employment classification was a question of law and was properly addressed and decided by the trial court. The record indicated the trial court reviewed the personal service contracts signed by plaintiffs, the pension plan, and the employee benefits plan and made a determination of law regarding, for the purposes of those benefit plans, whether plaintiffs could be considered employees under the express provisions of the plans at issue. The trial court correctly held the plaintiffs were not city employees and were not entitled to benefit from the plans. Affirmed.
Criminal Law
skip to next practice areaIssues: Sufficiency of evidence to convict of first-degree home invasion; Whether the trial court's verdict was logically inconsistent; Whether the sentencing guidelines were correctly scored
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Abernathy
e-Journal Number: 22323
Judge(s): Per Curiam - Borrello, White, and SmolenskiThere was sufficient evidence to convict defendant of first-degree home invasion because the evidence established defendant assaulted the victim (his former wife) while present inside her residence. The prosecution was not required to prove defendant's intent at the time of entry where he was charged with assaulting the victim while entering, present in, or exiting her home and the victim was lawfully present at the time. The trial testimony established defendant entered the victim's residence while she was present, and without her permission. While defendant was inside, he assaulted the victim. He dragged her up the stairs by her hair, threw her on the bed, and pinned her there with his body. He then bit her lip, causing injury. The victim testified she feared defendant would rape or kill her, which was not unreasonable given his conduct. Defendant's convictions were affirmed and the matter was remanded for resentencing.
Issues: Sufficient evidence to support conviction of felony murder for the death of a baby born after the mother was shot in the stomach; Whether the baby was born alive and was a "person;" People v. Selwa; Jury instructions; Ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Adams
e-Journal Number: 22277
Judge(s): Per Curiam - Borrello, White, and SmolenskiUnder the standard established in Selwa, there was sufficient evidence the baby born by emergency Caesarean section after the mother was shot in the stomach was born alive to support the defendant's felony murder conviction. Defendant indicated to the police in a statement the shooting was accidental, and then offered an alibi defense at trial, asserting he gave the prior statement because the real perpetrator threatened his family. On appeal defendant argued the first element of felony murder was not satisfied because he did not kill a human being since the baby was not born alive and thus, was not a "person." The court concluded otherwise, noting the baby here had a higher Apgar score (3) than the baby did in Selwa (2). The trial evidence demonstrated the baby had a heartbeat and, while she was on a respirator, took at least one independent breath. The baby's improved color and heartbeat, together with evidence of some independent breathing, was sufficient to support the determination the initial cessation of circulatory and respiratory function at birth was not irreversible. Affirmed.
Issues: Whether the trial court gave inaccurate supplemental jury instructions on the element of possession for felony-firearm; People v. Burgenmeyer
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Birkle
e-Journal Number: 22272
Judge(s): Memorandum - Schuette, Meter, and OwensNo manifest injustice occurred with respect to the trial court's jury instructions on the felony-firearm element of possession. The jury was instructed possession may be actual or constructive, but must also be knowing, in proximity with the felony, and at the time of the commission of the offense. The court concluded while the trial court might have provided more detailed instructions, those given were adequate to describe the concept of possession. Defendant's convictions were affirmed.
Issues: Sufficient evidence of defendant's intent to kill his wife to convict him of assault with intent to murder; Whether defendant was denied due process where the trial court allegedly abandoned the role of neutrality in defendant's bench trial
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Black
e-Journal Number: 22263
Judge(s): Memorandum - Schuette, Meter, and OwensSince the trial court could reasonably infer defendant knew the administration of insulin could be fatal and he was caught in the act of injecting the victim with a full syringe of insulin, the trial court could infer defendant intended to kill the victim. The charge against defendant arose out of an incident involving his comatose wife when she was in a hospital intensive care unit. At the time, defendant was a licensed practical nurse and had been estranged from his wife for over two years. Nurses testified they became suspicious when defendant asked about his wife and entered her room. Nurses observed defendant examine his wife's IV tubing and look over her body, then saw him pull something out of his pant leg and approach his wife. The nurses called security and went into the room. Defendant was leaning over his wife. They asked him to leave and when they turned back the sheets, they found an insulin syringe sticking in the wife's hand. It was stipulated the syringe contained insulin. A doctor testified the wife arrived at the hospital in a semi-comatose state with her blood sugar level over 1,000. Administering a full syringe of insulin to the wife would have likely caused cardiac arrest. Affirmed.
Issues: Other acts evidence; Application of the VanderVliet four-prong test; Whether defendant's CSC conviction constituted double jeopardy because this charge was the predicate felony for the felony murder charge; People v. Wilder
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Cummings
e-Journal Number: 22266
Judge(s): Per Curiam - Sawyer, Saad, and BandstraConcluding the VanderVliet requirements were satisfied, the court held the trial court properly admitted the other acts evidence regarding defendant's involvement in a separate murder and two separate CSC cases, all, like this case, involving sexual assault and manual strangulation. Defendant admitted killing the victim but contested the significant issue of whether sexual penetration occurred before or after her death. The prosecution theorized defendant lured the victim into an abandoned house with a promise of drugs for sex, then sexually assaulted and killed her. One of the prior CSC victims testified defendant had approached her with such an offer, and once in the house, strangled her while engaging in sexual relations. The other CSC victim testified similarly. A police officer testified defendant told him he and the other murder victim had done drugs together, then he had forced her to have sex with him, and a "tussle" ensued in which he must have broken her neck. The evidence was offered for the proper purpose of showing defendant had forced the victim in this case to have sexual relations while she was still alive, which was relevant to one of the primary issues in the case, whether a CSC occurred, and the danger of unfair prejudice did not substantially outweigh the evidence's probative value. The first-degree murder conviction was affirmed; the CSC conviction and sentence were vacated.
Issues: Whether the trial court's guilty verdict on one count of CSC II in defendant's bench trial was inconsistent with its not guilty verdict on the other two counts of CSC II; People v. Fairbanks; Whether the trial court cited facts not in evidence in its conclusions of fact; Ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. King
e-Journal Number: 22268
Judge(s): Per Curiam - Neff, Wilder, and KellyReversal was not required on the basis the trial court's guilty verdict on one count of CSC II in defendant's bench trial was inconsistent with its not guilty verdict on the other two charged counts of CSC II. The case relied on by defendant, Fairbanks, was distinguishable. Here, the trial court's legal conclusions were not inconsistent with its factual findings. Rather, the trial court's verdict reflected its determination the prosecution proved beyond a reasonable doubt defendant committed CSC II on one occasion, but did not prove the other two charges beyond a reasonable doubt. While defendant claimed the victim's testimony made it impossible to distinguish between the alleged incidents, the record demonstrated the victim testified the incidents occurred under varying circumstances. Defendant's conviction was affirmed.
Issues: Sentencing for assault with intent to do great bodily harm less than murder conviction; Upward departure from the statutory sentencing guidelines; Substantial and compelling reasons supporting departure
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Longgrear
e-Journal Number: 22273
Judge(s): Memorandum - Schuette, Meter, and OwensThe trial court did not abuse its discretion in departing upward from the sentencing guidelines in sentencing defendant on the basis he was charged with murder in a pending case due to the death of an individual scheduled to be a witness in this case. The sentencing guidelines recommended a minimum term range of 5 to 23 months, but the trial court sentenced him to 5 to 10 years after finding the pending charge showed he was a danger to society. The existence of the pending charge and the fact the victim in that case was scheduled to testify against defendant in this case were objective and verifiable facts. Further, a defendant's effort to influence the outcome of a case by murdering a witness irresistibly grabbed the court's attention and was of considerable worth in imposing a sentence. Affirmed.
Issues: Sufficiency of evidence to convict of aggravated stalking; Whether defendant made a credible threat against the victim or contacted her in violation of a PPO
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Wagner
e-Journal Number: 22324
Judge(s): Per Curiam - Meter and Owens; Dissent - SchuetteSince the prosecutor did not establish the defendant's conduct violated the PPO with which he was served on August 3, 2001 because the victim and a witness could not specify the day in August when he appeared at the victim's home, the evidence was insufficient to sustain defendant's conviction for aggravated stalking. The victim testified defendant appeared in her yard sometime in August 2001, but could not recall the date. Her sister similarly testified defendant had called and had driven by the victim's house numerous times between September 2000 and August 2001, but could not give the exact dates. There simply was no evidence from which the prosecutor could establish defendant's conduct violated the PPO. Defendant's conviction of aggravated stalking was reversed.
Issues: Jury instruction on the lesser offense of CSC II; Motion to suppress the statements defendant made to the police; Scoring of OVs
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. West
e-Journal Number: 22317
Judge(s): Per Curiam - Fort Hood, Bandstra, and MeterThe trial court properly refused to instruct the jury on the cognate lesser offense of CSC II. The testimony showed the victim was subjected to acts of "oral sex." The victim described defendant performed "oral sex," and a police detective testified defendant indicated he performed "oral sex" on the victim. The evidence did not create a dispute regarding whether there was "sexual penetration," which as defined by MCL 750.520a(o) included the "oral sex" acts described by the victim. Defendant's CSC I convictions were affirmed and remanded for correction of the SIR.
Issues: Prosecutorial misconduct; Alleged discovery violation; MCR 6.201(A)(5); Ineffective assistance of counsel; Sentencing; Scoring of OV 7 at 50 points
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Williams
e-Journal Number: 22269
Judge(s): Per Curiam - Neff, Wilder, and KellySince there was no request for the photographs of the deceased victim taken at the crime scene, the prosecutor did not violate MCR 6.201(A)(5) as a matter of law, and since defense counsel viewed the photos before trial, the prosecution did not suppress or omit them during discovery. Defendant argued the prosecution failed to provide full discovery when defendant was not provided with copies of all the photos the prosecution intended to introduce at trial, and this violated his due process rights. The court disagreed. Contrary to defendant's assertion on appeal, there was no indication the photos were exculpatory - on the contrary, the record revealed they portrayed the victim, defendant's wife, as she was found and showed extensive bruising. Defendant admitted hitting and kicking the victim during a dispute, and upon waking up in the morning and finding her cold, he went to the police and told them he "killed her." Under the circumstances, the court concluded defendant's due process rights were not violated by the prosecution's failure to provide physical copies of the photos prior to trial, and found no merit in his unsupported claim he would have been better able to prepare his defense if he had the photos in advance. Defendant's manslaughter conviction was affirmed.
Issues: Ineffective assistance of counsel; Failure to zealously pursue an insanity defense
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Williamson
e-Journal Number: 22275
Judge(s): Memorandum - Cooper, O'Connell, and Fort HoodThe court rejected defendant's claim defense counsel rendered ineffective assistance by failing to zealously pursue an insanity defense, concluding it was clear from the record counsel did pursue such a defense by obtaining an independent evaluation. While the physician in question testified he could not find defendant legally insane in part due to the fact he denied committing the offense, this denial of responsibility was consistent with defendant's trial testimony he did not commit the crime and was coerced into making a false police statement. There was nothing in the record indicating but for defendant's denying responsibility, the physician would have found him legally insane. There was also nothing in the record showing defendant's mental state at the time of the offense was such as to render him legally insane. Affirmed.
Issues: Sufficiency of the evidence to support defendant's perjury conviction; Denial of motion to dismiss the indictment; Evidentiary rulings; Denial of motion for judgment of acquittal
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. Lee
e-Journal Number: 22311
Judge(s): Bunning, Siler, and GilmanThere was sufficient evidence to support defendant's perjury conviction. In an effort to convince the judge defendant was a good candidate for pretrial release, he testified under oath about his employment. More specifically, that he had invested money in Buckeye Chicken, worked at Buckeye Chicken, and had a 50 percent interest in the business. Witnesses testified defendant did not work at Buckeye Chicken and had he no responsibilities in the day-to-day operations at Buckeye Chicken. Further, a witness testified defendant did not have an office at Buckeye Chicken and was never given a key to the restaurant. One witness testified he never saw defendant at Buckeye Chicken when he was opening the restaurant at 8:30 a.m and another admitted the defendant had been "cut" Buckeye Chicken paychecks, but explained the checks were only to repay a loan. The evidence was clearly sufficient for a rational trier of fact to find defendant knowingly made false and material declarations under oath during his detention hearing regarding his employment status at Buckeye Chicken. Affirmed.
Debtor/Creditor
skip to next practice areaThis summary also appears under Litigation
Issues: Garnishment; Set aside of default judgment against garnishee-defendant bank; MCR 2.603; Good cause and meritorious defense requirements; Whether the bank was protected from any liability under MCR 3.101; Whether trial court should have awarded the bank sanctions
Court: Michigan Court of Appeals (Unpublished)
Case Name: Express Lawsuit Funding, L.L.C. v. Short
e-Journal Number: 22278
Judge(s): Per Curiam - Borrello, White, and SmolenskiThe trial court did not abuse its discretion in setting aside the $174,336.60 default judgment against the garnishee-defendant bank and did not err in subsequently awarding plaintiff garnishment proceeds of $13,940.06, the amount of the bank's official check to the defendant. The good cause and meritorious defense requirements for setting aide the default judgment were met. While there was evidence the second writ of garnishment had been served, there was also evidence the person upon whom it was allegedly served had not received it. There was also a question whether the bank was sent or actually received notice of entry of the default judgment. Plaintiff did not serve it on defendant and while there was an entry in the trial court's docket sheet suggesting notice might have been mailed to the bank, the bank disputed it ever received such notice. Further, plaintiff did not allege the bank owed defendant the entire amount of the original judgment on any ground other than its failure to respond to the garnishment. The court also rejected the bank's cross-appeal contending MCR 3.101 protected it from any liability. Affirmed.
Employment & Labor Law
skip to next practice areaThis summary also appears under Contracts
Issues: Claims related to employment classification for purposes of compensation and benefits; Whether plaintiffs were "employees" of the defendant-city; Whether plaintiffs worked for defendant under personal services contracts; Whether the trial court engaged in impermissible fact-finding when it found plaintiffs were not "employees"; Whether the trial court's sua sponte summary dismissal was legal error; Denial of request to substitute parties; Whether the trial court failed to rule on the issues raised in the summary disposition motion
Court: Michigan Court of Appeals (Unpublished)
Case Name: Robinson v. City of Detroit
e-Journal Number: 22247
Judge(s): Per Curiam - Donofrio, Griffin, and JansenThe trial court did not engage in impermissible fact-finding when it determined plaintiffs were not defendant-city's "employees." Plaintiffs performed services for the city under a series of personal services contracts and asserted they were actually employees of the city "for purposes of compensation and benefits." They sought declaratory and injunctive relief and damages, arguing they were wrongfully denied participation in employee pension and benefit plans sponsored by the city for its employees. The court concluded the question of plaintiffs' employment classification was a question of law and was properly addressed and decided by the trial court. The record indicated the trial court reviewed the personal service contracts signed by plaintiffs, the pension plan, and the employee benefits plan and made a determination of law regarding, for the purposes of those benefit plans, whether plaintiffs could be considered employees under the express provisions of the plans at issue. The trial court correctly held the plaintiffs were not city employees and were not entitled to benefit from the plans. Affirmed.
Environmental Law
skip to next practice areaThis summary also appears under Municipal
Issues: Zoning; Whether the ordinance was preempted by the state statutory scheme with respect to wetland protection and violated § 303307(4) of the Wetland Protection Act; Constitutionality of the two relevant sections of the zoning ordinance, 84.1.11.a.2 and b.1; The Township Zoning Act
Court: Michigan Court of Appeals (Unpublished)
Case Name: Forsberg Family, LLC v. Charter Twp. of Meridian
e-Journal Number: 22291
Judge(s): Per Curiam - Hoekstra, Fitzgerald, and TalbotThe trial court properly granted defendant's motion for summary disposition and denied plaintiff's cross motion for summary disposition. The thrust of plaintiff's argument was the ordinance poses "a blanket ban on all development near the wetland." The court disagreed. While the unique facts and circumstances in this case indicate the zoning ordinance as applied to plaintiff's property may have prohibited its development, this was not what plaintiff raised as a claim below. Further, § 303307(4) of the Wetland Protection Act expressly grants local units of government the power to regulate wetland within their boundaries as long as the regulation complies with the Act, and nothing in the Act prohibited a local unit of government from imposing a 20-foot setback area from the edge of the wetland for natural vegetation. Accordingly, the court held the trial court properly ruled the zoning ordinance did not preclude what the statute permits and the ordinance did not purport to regulate the wetland itself. Affirmed.
Litigation
skip to next practice area
This summary also appears under Debtor/Creditor
Issues: Garnishment; Set aside of default judgment against garnishee-defendant bank; MCR 2.603; Good cause and meritorious defense requirements; Whether the bank was protected from any liability under MCR 3.101; Whether trial court should have awarded the bank sanctions
Court: Michigan Court of Appeals (Unpublished)
Case Name: Express Lawsuit Funding, L.L.C. v. Short
e-Journal Number: 22278
Judge(s): Per Curiam - Borrello, White, and SmolenskiThe trial court did not abuse its discretion in setting aside the $174,336.60 default judgment against the garnishee-defendant bank and did not err in subsequently awarding plaintiff garnishment proceeds of $13,940.06, the amount of the bank's official check to the defendant. The good cause and meritorious defense requirements for setting aide the default judgment were met. While there was evidence the second writ of garnishment had been served, there was also evidence the person upon whom it was allegedly served had not received it. There was also a question whether the bank was sent or actually received notice of entry of the default judgment. Plaintiff did not serve it on defendant and while there was an entry in the trial court's docket sheet suggesting notice might have been mailed to the bank, the bank disputed it ever received such notice. Further, plaintiff did not allege the bank owed defendant the entire amount of the original judgment on any ground other than its failure to respond to the garnishment. The court also rejected the bank's cross-appeal contending MCR 3.101 protected it from any liability. Affirmed.
Issues: Whether the trial court applied the incorrect rate of interest to the mediation sanctions pursuant to MCL 600.6013(5) (12 percent interest on written instruments); Whether the trial court should have applied § 6013(6) (the fluctuating rate); Whether the amended version of § 6013 applied retroactively; Ballog v. Knight Newspapers, Inc.; Accrual date
Court: Michigan Court of Appeals (Unpublished)
Case Name: Frank W. Lynch & Co. v. Flex Technologies, Inc.
e-Journal Number: 22244
Judge(s): Per Curiam - Owens, Fitzgerald, and SaadThe court reversed the trial court's decision to award interest on plaintiff's mediation sanction award pursuant to § 6013(5), and remanded to the trial court for entry of a final judgment incorporating an amount of interest on the award from the date of filing the complaint pursuant to § 6013(6) and (8). In light of the expressed legislative intent to apply the amended statute to complaints previously filed between 1987 and July 2002, and the procedural and remedial nature of § 6013, the court held the amended statute controlled the calculation of interest. The court concluded subsections (6) and (8) governed the calculation of the award because the action did not yield a "final, nonappealable judgment as of July 1, 2002." The record reflected the parties' admission their settlement agreement was never placed on the record or filed with the trial court, and there was no final judgment. Because plaintiff filed its complaint in 1990 and no final, nonappealable judgment existed as of July 1, 2002, § 6013(6) governed the calculation of interest. Subsection (6) states interest is to be calculated as in subsection (8), which sets forth the fluctuating rate and provides it applies to the entire amount of the money judgment, including attorney fees and other costs. The interest shall be calculated from the date the complaint was filed.
Malpractice
skip to next practice areaIssues: Medical malpractice; Whether plaintiffs' affidavit of merit was insufficient because it was not signed by a nurse practitioner; MCL 600.2912d(1); MCL 600.2169(1); Dismissal on statute of limitations grounds because a grossly nonconforming affidavit did not toll the limitations period
Court: Michigan Court of Appeals (Unpublished)
Case Name: Gillespie v. Lansing OB-GYN Assocs.
e-Journal Number: 22325
Judge(s): Per Curiam - Schuette and Owens; Concurrence - WhitbeckPlaintiffs' affidavit of merit, signed by a Massachusetts-based board-certified obstetrician/gynecologist, was insufficient because it was not signed by a nurse practitioner and plaintiffs alleged defendant was vicariously liable for malpractice committed by a nurse practitioner in its employ. A plaintiff bringing a medical malpractice claim against an institution must file with the complaint an affidavit of merit executed by a health professional specializing in the same specialty as the professional on whose conduct the claim is based. While plaintiffs argued the affidavit should be deemed sufficient since a physician was familiar with and could testify concerning the standard of care applicable to nurses, under the plain language of MCL 600.2169(1), their named expert was not qualified to provide expert testimony against the agent whose actions formed the basis of the action against defendant. The affidavit also failed to include the standard of care applicable to nurse practitioners practicing in the same locality, a statement defendant's agent breached the applicable standard of care, and a statement of the actions she should have taken or omitted to comply with the applicable standard. Defendant was entitled to summary disposition because the filing of plaintiffs' complaint and affidavit did not toll the limitations period. Reversed and remanded.
Municpal
skip to next practice areaThis summary also appears under Environmental Law
Issues: Zoning; Whether the ordinance was preempted by the state statutory scheme with respect to wetland protection and violated § 303307(4) of the Wetland Protection Act; Constitutionality of the two relevant sections of the zoning ordinance, 84.1.11.a.2 and b.1; The Township Zoning Act
Court: Michigan Court of Appeals (Unpublished)
Case Name: Forsberg Family, LLC v. Charter Twp. of Meridian
e-Journal Number: 22291
Judge(s): Per Curiam - Hoekstra, Fitzgerald, and TalbotThe trial court properly granted defendant's motion for summary disposition and denied plaintiff's cross motion for summary disposition. The thrust of plaintiff's argument was the ordinance poses "a blanket ban on all development near the wetland." The court disagreed. While the unique facts and circumstances in this case indicate the zoning ordinance as applied to plaintiff's property may have prohibited its development, this was not what plaintiff raised as a claim below. Further, § 303307(4) of the Wetland Protection Act expressly grants local units of government the power to regulate wetland within their boundaries as long as the regulation complies with the Act, and nothing in the Act prohibited a local unit of government from imposing a 20-foot setback area from the edge of the wetland for natural vegetation. Accordingly, the court held the trial court properly ruled the zoning ordinance did not preclude what the statute permits and the ordinance did not purport to regulate the wetland itself. Affirmed.
Negligence & Intentional Tort
skip to next practice areaIssues: Premises liability; Open and obvious doctrine; Whether because the accident occurred in a self-service store, the open and obvious doctrine should not have applied; Whether the fact the accident occurred in a self-service store should have been considered a "special aspect" to negate the open and obvious doctrine; Jaworski v. Great Scott Supermarket's, Inc.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Huhta v. Bed Bath & Beyond
e-Journal Number: 22319
Judge(s): Per Curiam - Fort Hood, Bandstra, and MeterThe trial court properly granted summary disposition for defendant, finding the foot massager over which plaintiff tripped and fell in defendant's store to be an open and obvious condition. Plaintiff tripped and fell over the foot massager just after placing her grandson in a vibrating chair nearby. It was clear the foot massager "definitely" stood out, as plaintiff admitted in her deposition, and it was not unavoidable like a pool of water in front of the only exit to a store. Plaintiff stated she did not look down because she did not want to run into all of the people around her. She had just sat her grandson down in one of the vibrating chairs near the foot massager, and turned to respond to her daughter, who had called her regarding some curtains. Plaintiff fractured her hip in the fall. There was no reason for plaintiff to go near the foot massager; she could have avoided it by merely looking down at her path of travel. The fact the accident happened in a self-service store did not change the facts or otherwise negate the application of the open and obvious doctrine. Affirmed.
Issues: False arrest and false imprisonment; Sufficient evidence to establish a genuine issue regarding whether plaintiff was subjected to an assault and battery by defendant's employees; Dismissal of claims for intentional infliction of emotional distress and racial discrimination
Court: Michigan Court of Appeals (Unpublished)
Case Name: Whitfield v. Meijer, Inc.
e-Journal Number: 22315
Judge(s): Per Curiam - Fort Hood, Bandstra, and MeterThe trial court properly granted defendant summary disposition of plaintiff's claims for false arrest and false imprisonment. While shopping at defendant's store, plaintiff-African-American male was suspected of concealing merchandise in his clothing without paying for it. No merchandise was found on plaintiff, but he refused to leave the store until the police were called. Plaintiff stated he was not arrested, but rather, defendant's employees were only investigating him and he agreed to accompany defendant's employees to the security office in order to clear the matter up. Further, because plaintiff admitted he was not subject to arrest, and voluntarily agreed to accompany defendant's employees to the security office, he could not establish false imprisonment. Affirmed.
Real Property
skip to next practice areaThis summary also appears under Consumer Rights
Issues: Claims related to the sale of a home; The Seller's Disclosure Act (SDA)(MCL 565.951, et seq.); Misrepresentation, innocent misrepresentation, and silent fraud claims against the defendants-sellers and realtors; Claims under the Michigan Consumer Protection Act (MCL 445.901 et seq.); Breach of contract
Court: Michigan Court of Appeals (Unpublished)
Case Name: Timmons v. DeVoll
e-Journal Number: 22246
Judge(s): Per Curiam - Sawyer, Saad, and BandstraThe trial court properly dismissed plaintiff-Timmons' claim under the SDA with respect to defendants-Franklin, Curtis, Stetler, and Stetler, Vanderveer & Associates because under MCL 565.954(4) there is no independent cause of action after closing on the property and transferring the deed. Therefore, plaintiffs' ability to terminate the purchase agreement had expired. The plaintiffs' claims arose out of a real estate transaction in which defendants-DeVoll and Franklin listed their home for sale with their real estate agent, Curtis, and the office for which he was employed, Stetler, Vanderveer & Associates. Plaintiffs purchased the home with the assistance of their real estate agent, defendant-Champlin. After moving in, plaintiffs allegedly found many defects on the property. Under the plain language of the SDA, plaintiffs' only relief for a violation of the act would have been termination of the purchase agreement, but after the deed was transferred, they had no independent cause of action. Under § 964 a transfer of property subject to the act will not be invalidated solely because someone failed to comply with one of its provisions. Therefore, the trial court properly granted defendants summary disposition.
Worker's Compensation
Issues: Closed award of general disability benefits; MCL 418.301(3); Eversman v. Concrete Cutting
Court: Michigan Court of Appeals (Unpublished)
Case Name: Turner v. Monday Staffing
e-Journal Number: 22293
Judge(s): Per Curiam - Sawyer, Saad, and BandstraThe Worker's Compensation Appellate Commission (WCAC) properly reversed a magistrate's decision to grant plaintiff a closed award of general disability benefits. The WCAC correctly held the major purpose of the lunch break basketball game, plaintiff's activity at the moment of injury, was social or recreational and therefore, plaintiff was not covered under MCL 418.301(3). The WCAC did not contradict the magistrate's factual findings but held the magistrate incorrectly applied the law to the facts. The WCAC applied a reasonable construction of § 301(3), and did not misapprehend or grossly misapply the "substantial evidence" standard. Affirmed.