• Attorneys (1)
• Banking (1)
• Consumer Rights (1)
• Criminal Law (3)
• Employment & Labor Law (1)
• Litigation (1)
• Municipal (1)
• Negligence & Intentional Tort (2)
• Real Property (2)
• School Law (1)
• Termination of Parental Rights (2)

Attorneys

 

Issues: Appeal from an order for distribution of attorney fees; Whether the trial court properly did not award appellant-Montagne "99 44/100[percent]" of one-third of the case-evaluation amount obtained by plaintiff; Review; McNeel v. Farm Bureau Gen. Ins. Co. of MI; Sharing a contingency fee must be "fair and reasonable"; Morris v. City of Detroit; Bonkowski v. Allstate Ins. Co.; Whether Montagne completed over 99% of the work on the case and was entitled to "99 44/100[percent]" of the one-third contingency fee plus costs for a total of $7,546.05; Whether the trial court properly awarded Montagne $2,644.20 in attorney fees using quantum meruit and a fee of $150 an hour

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dedvukaj v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53874

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

 

The court held that there was no error requiring reversal in this case. Appellant-Montagne was compensated for his work related to the wage-loss issue and for the rest of the hours Montagne claimed he worked on the case, the trial court applied a $150-an-hour rate. The circumstances were unique in that Montagne received a document related to termination of his services but arguably did not follow up in an appropriate manner. It was not unreasonable for the trial court to apply a lower-than-average fee. Also, at the attorney fee hearing after the trial court rejected Montagne's argument based on Morris, Montagne did not object to the $150 rate imposed by the trial court. Montagne argued that the trial court erred when it did not award him "99 44/100 [percent]" of one-third of the case-evaluation amount obtained by plaintiff. He argued that because he worked on the case "from inception through case evaluation," he should receive the bulk of the one-third contingency fee for which he previously contracted. The court noted that if an attorney is discharged before completing the services under the contingency-fee agreement, the attorney is entitled to be compensated for the reasonable value of his services based on quantum meruit, provided that he was wrongfully discharged or without cause. The customary fee should then be multiplied by a reasonable number of hours expended on the case and the result may then be adjusted by consideration of various factors. Montagne contended that he completed over 99% of the work on the case and that he was entitled "99 44/100 [percent]" of payment for the work he did. The trial court awarded him $2,644.20 in attorney fees and costs for a total of $7,546.05. The trial court awarded him $2,644.20 in attorney fees and costs, using quantum meruit and a fee of $150 an hour. Although plaintiff discharged Montagne from the case, there was no record evidence from which to conclude that he was discharged for cause. Even though he worked on the case until close to the end, he did not see it through to the end. Reversal was unwarranted. Affirmed.

 

Banking

 

This summary also appears under Real Property

 

Issues: Whether defendant/counter-plaintiff/third-party plaintiff-appellant-Irvine properly relied on Restatement Torts, 2d, § 552 (which the court adopted in Stockler v. Rose) to support her position that the plaintiff/counter defendant-Bank was liable for the allegedly improper and incorrect appraisal of the property at issue; Whether the Bank was under any public duty to provide the appraisal information

Court: Michigan Court of Appeals (Unpublished)

Case Name: Flagstar Bank FSB v. Irvine

e-Journal Number: 53861

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

 

The court held that appellant-Irvine's reliance on Restatement Torts, 2d, § 552 was misplaced. Thus, the trial court properly granted summary disposition for the appellee-Bank. The case arose from a real estate transaction in which third-party plaintiff-Heritage Pointe Investments (of which Irvine was the sole member) purchased a parcel of undeveloped property with a loan from the Bank. The Bank conditioned the loan on the outcome of an appraisal it commissioned. When the appraisal determined that the property was worth about $2.4 million, the Bank issued the loan. Irvine guaranteed the loan. Heritage eventually fell into default and Irvine later determined that the appraisal - which she did not read until well after the purchase was consummated - was flawed and allegedly grossly overstated the value of the property. The Bank sued Irvine on the guarantee, for the outstanding amount of the loan plus fees and interest. Irvine counterclaimed, asserting that the Bank was liable for the improper and incorrect appraisal. The trial court held that the appraisal was for the benefit of the Bank, not the person seeking the loan, and granted summary disposition to the Bank. The court concluded that Irvine simply failed to provide any conceivable basis for concluding that the Bank provided the appraisal information "for the guidance of others in their business transactions." The Bank's employee stated that he would expect a borrower to rely on the accuracy of the appraisal, but in context his statement appeared to be only that a borrower would reasonably expect a bank employee not to lie about the contents of the appraisal. Thus, the Bank "neither commissioned nor shared the appraisal for the purpose of providing Irvine with knowledge upon which to make any kind of decision." Rather, as the trial court correctly stated, the Bank sought the appraisal for its own purposes. Affirmed.

 

Consumer Rights

 

Issues: Applicability of the Michigan Consumer Protection Act (MCPA)(MCL 445.901 et seq.); MCL 445.903(1); MCL 445.904(1)(a); Smith v. Globe Life Ins. Co.; Liss v. Lewiston-Richards, Inc.; Whether the general transaction of cleaning a home is specifically authorized by the statute governing defendant-McCall's licensure as a residential builder; MCL 339.2401(a); "Repair" and "alteration" defined; Defining terms not defined by statute; Griffith v. State Farm Mut. Auto. Ins. Co.; "Causation" as to the plaintiffs' claim for property damage under the MCPA; Walsh v. Taylor; Daubert v. Merrell Dow Pharms., Inc.; Case evaluation sanctions

Court: Michigan Court of Appeals (Unpublished)

Case Name: Brownlow v. McCall Enter. Inc.

e-Journal Number: 53922

Judge(s): Per Curiam – Shapiro, Gleicher, and Ronayne Krause

 

The court held that the trial court erred in determining that the transaction at issue (running an ozone generator in a home to remove lingering smoke after a small fire) was exempt from the MCPA. Further, plaintiffs presented sufficient evidence for a jury to conclude that the ozone generator caused the damage to their house "without resort to speculation." Thus, the court reversed the trial court's order in Docket No. 306190 granting defendant-McCall summary disposition on plaintiffs' MCPA claim for damages to their house and its order in Docket No. 307883 granting McCall case evaluation sanctions. In determining whether MCL 445.904(1)(a) applied, the court concluded that the inquiry was "whether the general transaction of cleaning a home is specifically authorized by the statute governing McCall's licensure as a residential builder" (MCL 339.2401(a)). "The language of the statute makes no reference to cleaning a home." McCall argued that when it undertook the remediation of smoke odor, it was engaged in repair and alteration of plaintiffs' home. The court disagreed. While "repair" and "alteration" are specifically authorized activities under MCL 339.2401(a), neither term is statutorily defined. Thus, they "must be accorded their plain and ordinary meanings, informed by the context of the surrounding statute." As a whole, the statute "defines a residential builder as someone engaged in 'construction,' and the terms 'repair' and 'alteration' fall within a list of types of construction - erection, demolition, addition to, etc - that all involve changes to the physical structure of a building." In the "context of MCL 339.2401(a), 'repair' means to restore the physical structure of a residential structure after decay or damage" and "'alteration' means to 'modify' the physical structure of a residential building." The ozone generator was not meant to "modify or restore the physical structure of plaintiffs' home. Rather, it was supposed to remove the smell of smoke from the house." McCall conceded that operating the ozone generator required no special knowledge or skill. "The fact that removing the odor was done with an ozone generator rather than a can of room deodorizer does not bring the transaction within the ambit of the licensing requirements for residential builders." As to causation, plaintiffs "provided scientific evidence that high levels of ozone damage building materials, that there was a high level of ozone in their house, and that their house suffered damages consistent with exposure to high levels of ozone during the time the exposure occurred." No witness advanced any possible cause of the alleged property damages other than the ozone exposure. Reversed and remanded.

 

Criminal Law

 

Issues: Whether MCL 801.262(2) is unconstitutionally vague because it failed to provide defendant with adequate notice that a sharpened paperclip attached to the end of a Q-tip might be considered a "weapon or other item" prohibited under the statute; Whether the claim was preserved for review; People v. Wilson; People v. Carines; People v. Noble; People v. Sadows;The “void for vagueness” doctrine; People v. Roberts; MCL 800.283(4); People v. Herron; Acrey v. Department of Corrs.; Whether MCL 801.262(2) was unconstitutional as applied to defendant; People v. Vronko; Whether the statute allows for “arbitrary enforcement”; People v. Douglas; Whether the trial court should have instructed the jury that a necessary element of the charged offense required proof that defendant intended to use the item as a weapon; People v. Gonzalez; People v. Mass; People v. Beaudin; People v. Fennell; People v. Flick; People v. Wolfe; Whether the crime required a general or specific intent; People v. Osuna; Whether the trial court properly denied defendant’s motion for a new trial; People v. Miller; People v. Aceval; People v. Lester; Brady v. Maryland; Sentencing; Scoring of OV 9; People v. Waclawski; People v. Steele; People v. Carrigan; People v. McGraw; People v. Morson

Court: Michigan Court of Appeals (Published)

Case Name: People v. Gratsch

e-Journal Number: 54081

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

 

The court held, inter alia, that for the reasons discussed in Herron and Osuna, it rejected the defendant’s claim that MCL 801.262(2) was void because it is constitutionally vague. "A person of ordinary intelligence would understand that an unauthorized fragment of metal attached to the end of a Q-tip is a 'weapon or other item that may be used to injure a prisoner or other person, or used to assist a prisoner in escaping from jail,'" particularly in light of judicial interpretations of the similar statute (MCL 800.283(4)). Thus, consistent with the reasoning of Herron and Osuna, the court held that the language of MCL 801.262(2) is not unconstitutionally vague. Defendant contended that the statute was unconstitutionally vague because it failed to provide him with adequate notice that a sharpened paperclip fragment attached to the end of a Q-tip might be considered a "weapon or other item" prohibited under the statute. He made the item by removing the small cotton ball from one end of a Q-tip, placing the paperclip fragment inside the Q-tip, and replacing the Q-tip cotton ball to cover the paperclip fragment. Jail staff referred to the item as a "needle" during trial and the trial court opined at sentencing that "it could put out an eye" or "otherwise harm someone." The court also concluded that because MCL 801.262(2) is a general intent crime, the trial court did not err by denying defendant’s request to instruct the jury that defendant must have had the specific intent to use the item he possessed as a weapon. The court further held that the other issues defendant raised on appeal had no merit and affirmed his conviction and sentence.

 

Issues: Sentencing; Scoring of OVs 9, 11, & 13; Waiver; People v. Wiley; People v. Blount; People v. Cobbs; People v. Vitale

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Osborne

e-Journal Number: 53952

Judge(s): Memorandum – Beckering, Stephens, and Boonstra

 

On remand from the Michigan Supreme Court for consideration as on leave granted, the court held that the defendant waived review of his challenges to the scoring of the OVs where he received the exact sentence that he bargained for and to which he agreed. He pleaded guilty to CSC I and the trial court sentenced him to 70 months to 21 years in prison. On appeal, he challenged the trial court's scoring of OV 9 at 10 points, OV 11 at 25 points, and OV 13 at 25 points. The court noted that the Supreme Court held in Wiley that "a defendant waives appellate review of a sentence that exceeds the guidelines by understandingly and voluntarily entering into a plea agreement to accept that specific sentence." Defendant "understandingly and voluntarily entered into a plea agreement for a specific minimum-sentence range of 42 to 70 months' imprisonment. In exchange, the prosecution agreed that it would not pursue 'other charges related to this case against the defendant.'" Thus, the 70-month minimum sentence imposed by the trial court was consistent with the plea agreement. "A bargain is indeed a bargain." Affirmed.

 

Issues: Search and seizure; Whether "probable cause" existed to search the apartment; People v. Russo; People v. Martin; People v. Nunez; People v. Darwich

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Truman

e-Journal Number: 53930

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

 

By taking into consideration the totality of the circumstances presented to the issuing magistrate, the court held that a reasonably cautious person could conclude that there was a substantial basis for finding probable cause to search the apartment. The case arose as a result of an investigation conducted by officers. Officers began investigating an individual named D in connection with suspected marijuana trafficking. From information gathered during this investigation, they obtained and executed a series of search warrants for several locations associated with D, where they found and confiscated several pounds of marijuana and over $100,000 in cash. During the execution of these search warrants, officers found paperwork indicating that D was married to an individual named K and that K resided at 3033 T Drive. Based on this information, officers obtained and executed a search warrant at T Drive. They found defendant in the basement of the residence along with 13.09 grams of crack cocaine, 66.80 grams of powder cocaine, and over $10,000 in cash. His sole argument on appeal was that the search warrant issued for T Drive lacked probable cause. Defendant argued that the only reference to T Drive in the affidavit for the search warrant was that mail with that address on it was located during execution of a separate search warrant at a different location with ties to D. Defendant contended that there was no indication that any illegal activity was ongoing at T Drive. Thus, no basis existed for the search warrant and the evidence found and seized pursuant to the defective warrant must be excluded. The officer executed the affidavit in support of the search warrant. The affidavit demonstrated that D was a drug trafficker, that five warrants issued for other residences with connections to D and K revealed several thousand dollars and about 100 pounds of marijuana, and that D and K were married and received mail at the T Drive address. This, combined with the "reasonable inference that drug traffickers often keep evidence of illicit activity in their homes, provided a sufficient basis for the magistrate's finding of probable cause to search the apartment." Defendant's conviction after a jury trial of possession of 50 or more but less than 450 grams of cocaine was affirmed.

 

Employment & Labor Law

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly ordered the parties to submit to arbitration after entering a stipulated order dismissing the case with prejudice; Claims under the Persons With Disabilities Civil Rights Act (PWDCRA)(MCL 37.1101 et seq.); Whether the plaintiff was entitled to relief from judgment under MCR 2.612; MCR 2.612(C)(1)(a); Neville v. Neville; Limbach v. Oakland Cnty. Rd. Comm'n; MCR 2.612(C)(1)(f); Altman v. Nelson; Whether the trial court had authority to order the parties to arbitration; Kaleva-Norman-Dickson Sch. Dist. v. Kaleva-Norman-Dickson Sch. Teachers' Ass'n; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n; Shouneyia v. Shouneyia; MCL 600.611

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kucmierz v. Department of Corr.

e-Journal Number: 53931

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

 

Holding that the plaintiff was not entitled to relief from the dismissal order under MCR 2.612(C)(1)(a) or (f), the court concluded that the trial court clearly erred and abused its discretion in granting him any relief. Thus, the court reversed the trial court's order requiring the parties to submit plaintiff's disability claim to arbitration. Plaintiff worked for the defendant-DOC. He alleged that defendants discriminated against him on the basis of his disabilities in violation of the PWDCRA. The parties stipulated to dismiss the case with prejudice because "same is the subject of an agreement to arbitrate." The arbitration agreement was attached to the stipulation, it listed plaintiff as the grievant and it provided that the MDOC and the UAW "agreed that the above grievance(s) will be scheduled for arbitration." The trial court entered a stipulated order to dismiss the case with prejudice. Plaintiff later moved to reinstate the case or alternatively requested that the trial court order arbitration. He argued that relief from judgment was proper under MCR 2.612(C)(1)(a) because of the "mistaken belief and expectation by all parties that the UAW was arbitrating this case for Plaintiff." However, the court concluded that "there was no mutual mistake. The stipulation and order provided that the parties agreed to dismiss the proceeding with prejudice because 'same' was 'the subject of an agreement to arbitrate.' The stipulation did not provide that the matter would in fact be arbitrated or that the stipulation was contingent on arbitration actually occurring." It did not place any terms on the agreement and nothing in it barred the UAW and the MDOC from reaching a settlement agreement as a means to avoid the arbitration process. "The parties were aware of these terms and were represented by counsel at the time the stipulation was entered." Plaintiff was not entitled to relief from the dismissal order on the basis of a mutual mistake. He also claimed that relief was warranted under MCR 2.612(C)(1)(f). However, the court held that "there were no 'extraordinary circumstances' that warranted setting aside the dismissal order." The parties voluntarily stipulated to dismiss the case with prejudice to allow plaintiff's claims to be resolved in accord with the arbitration agreement. The stipulation did not prohibit the UAW and the MDOC from entering into a settlement. "Plaintiff entered into the stipulation knowingly, he was represented by counsel, and defendants did not engage in any improper conduct." They had the right to rely on the finality of the dismissal order. Reversed and remanded for entry of judgment for defendants.

 

Litigation

 

This summary also appears under Employment & Labor Law

 

Issues: Whether the trial court properly ordered the parties to submit to arbitration after entering a stipulated order dismissing the case with prejudice; Claims under the Persons With Disabilities Civil Rights Act (PWDCRA)(MCL 37.1101 et seq.); Whether the plaintiff was entitled to relief from judgment under MCR 2.612; MCR 2.612(C)(1)(a); Neville v. Neville; Limbach v. Oakland Cnty. Rd. Comm'n; MCR 2.612(C)(1)(f); Altman v. Nelson; Whether the trial court had authority to order the parties to arbitration; Kaleva-Norman-Dickson Sch. Dist. v. Kaleva-Norman-Dickson Sch. Teachers' Ass'n; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n; Shouneyia v. Shouneyia; MCL 600.611

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kucmierz v. Department of Corr.

e-Journal Number: 53931

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

 

Holding that the plaintiff was not entitled to relief from the dismissal order under MCR 2.612(C)(1)(a) or (f), the court concluded that the trial court clearly erred and abused its discretion in granting him any relief. Thus, the court reversed the trial court's order requiring the parties to submit plaintiff's disability claim to arbitration. Plaintiff worked for the defendant-DOC. He alleged that defendants discriminated against him on the basis of his disabilities in violation of the PWDCRA. The parties stipulated to dismiss the case with prejudice because "same is the subject of an agreement to arbitrate." The arbitration agreement was attached to the stipulation, it listed plaintiff as the grievant and it provided that the MDOC and the UAW "agreed that the above grievance(s) will be scheduled for arbitration." The trial court entered a stipulated order to dismiss the case with prejudice. Plaintiff later moved to reinstate the case or alternatively requested that the trial court order arbitration. He argued that relief from judgment was proper under MCR 2.612(C)(1)(a) because of the "mistaken belief and expectation by all parties that the UAW was arbitrating this case for Plaintiff." However, the court concluded that "there was no mutual mistake. The stipulation and order provided that the parties agreed to dismiss the proceeding with prejudice because 'same' was 'the subject of an agreement to arbitrate.' The stipulation did not provide that the matter would in fact be arbitrated or that the stipulation was contingent on arbitration actually occurring." It did not place any terms on the agreement and nothing in it barred the UAW and the MDOC from reaching a settlement agreement as a means to avoid the arbitration process. "The parties were aware of these terms and were represented by counsel at the time the stipulation was entered." Plaintiff was not entitled to relief from the dismissal order on the basis of a mutual mistake. He also claimed that relief was warranted under MCR 2.612(C)(1)(f). However, the court held that "there were no 'extraordinary circumstances' that warranted setting aside the dismissal order." The parties voluntarily stipulated to dismiss the case with prejudice to allow plaintiff's claims to be resolved in accord with the arbitration agreement. The stipulation did not prohibit the UAW and the MDOC from entering into a settlement. "Plaintiff entered into the stipulation knowingly, he was represented by counsel, and defendants did not engage in any improper conduct." They had the right to rely on the finality of the dismissal order. Reversed and remanded for entry of judgment for defendants.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Governmental immunity; Trip and fall on a sidewalk; Patterson v. CitiFinancial Mtg. Corp.; Miller v. Lord; Poppen v. Tovey; Corley v. Detroit Bd. of Educ.; Quinto v. Cross & Peters Co.; The Governmental Tort Liability Act (GTLA)(MCL 691.1401 et seq.); MCL 691.1407(1); Nawrocki v. Macomb Cnty. Rd. Comm'n; The "highway exception" to governmental immunity; MCL 691.1402(1); A "highway"; MCL 691.1401(c); Notice requirement; MCL 691.1404(1); Thurman v. Pontiac; Whether plaintiff's notices described the exact location and nature of the defect; Hussey v. Muskegon Heights; Whether plaintiff identified the witnesses known to her; Rowland v. Washtenaw Cnty. Rd. Comm'n; McCahan v. Brennan; Jakupovic v. City of Hamtramck; Burise v. Pontiac; King v. Reed; Whether defendant could claim that the information in the plaintiff's notice of claim was statutorily deficient

Court: Michigan Court of Appeals (Unpublished)

Case Name: Colflesh v. Village of Lexington

e-Journal Number: 53927

Judge(s): Per Curiam – Murphy, Donofrio, and Gleicher

 

Because plaintiff's notices described the exact location and nature of the alleged defect, but failed to provide the names of the known witnesses as required by MCL 691.1404(1), the court reversed and remanded for entry of summary disposition in favor of the defendant-Village. The case arose out of plaintiff's trip and fall on a sidewalk in the Village on 8/7/10. Plaintiff suffered injuries as a result of her fall, including a broken left wrist. Within approximately one week after the incident, plaintiff submitted to defendant an incident report using defendant's standard "Incident Report" form. The report described the location of the incident as "in front of Old Fudge Shop" and included a "Description of Incident." On or about 9/1/10, plaintiff sent a letter to defendant that further described the incident. She alleged that defendant failed to maintain the sidewalk in a reasonably safe condition. Defendant argued that the trial court erroneously denied its motion for summary disposition because plaintiff's notices did not describe the exact location and nature of the defect. The court held that plaintiff's explanation accurately described the exact nature of the defect. The additional information provided during her deposition that the defect existed at the point where the concrete abutted brick pavers did not render her initial description of the nature of the defect as an uneven or "unlevel" sidewalk inaccurate. Thus, plaintiff's notices were sufficient to apprise defendant of the exact nature of the defect. Further, because the notices included the address where the alleged defect was located and specified that the defect was "in front of" that address, the court held that plaintiff's notices sufficiently described the exact location of the defect. Defendant also contended that plaintiff's notices were deficient because she failed to identify the witnesses known to her. Plaintiff's 9/1/10 letter to defendant stated, "[t]here were people in the vicinity when [plaintiff] fell but she is not able to identify any witnesses who may have seen her fall at this time." Contrary to that assertion, plaintiff testified during her deposition that her daughter and two teenage grandsons were walking behind her in a single-file line and all three observed her fall. She claimed that her daughter screamed "mom" immediately as plaintiff struck the sidewalk. Plaintiff maintained that all three family members told her that they had seen her "go down" and all three assisted her to her feet afterward. Plaintiff further testified that her grandsons helped her identify the exact location of her fall as she was sitting on nearby steps after her fall. Thus, contrary to her assertion in her 9/1/10 letter, she was able to identify witnesses who saw her fall, but she failed to do so.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Governmental immunity; Trip and fall on a sidewalk; Patterson v. CitiFinancial Mtg. Corp.; Miller v. Lord; Poppen v. Tovey; Corley v. Detroit Bd. of Educ.; Quinto v. Cross & Peters Co.; The Governmental Tort Liability Act (GTLA)(MCL 691.1401 et seq.); MCL 691.1407(1); Nawrocki v. Macomb Cnty. Rd. Comm'n; The "highway exception" to governmental immunity; MCL 691.1402(1); A "highway"; MCL 691.1401(c); Notice requirement; MCL 691.1404(1); Thurman v. Pontiac; Whether plaintiff's notices described the exact location and nature of the defect; Hussey v. Muskegon Heights; Whether plaintiff identified the witnesses known to her; Rowland v. Washtenaw Cnty. Rd. Comm'n; McCahan v. Brennan; Jakupovic v. City of Hamtramck; Burise v. Pontiac; King v. Reed; Whether defendant could claim that the information in the plaintiff's notice of claim was statutorily deficient

Court: Michigan Court of Appeals (Unpublished)

Case Name: Colflesh v. Village of Lexington

e-Journal Number: 53927

Judge(s): Per Curiam – Murphy, Donofrio, and Gleicher

 

Because plaintiff's notices described the exact location and nature of the alleged defect, but failed to provide the names of the known witnesses as required by MCL 691.1404(1), the court reversed and remanded for entry of summary disposition in favor of the defendant-Village. The case arose out of plaintiff's trip and fall on a sidewalk in the Village on 8/7/10. Plaintiff suffered injuries as a result of her fall, including a broken left wrist. Within approximately one week after the incident, plaintiff submitted to defendant an incident report using defendant's standard "Incident Report" form. The report described the location of the incident as "in front of Old Fudge Shop" and included a "Description of Incident." On or about 9/1/10, plaintiff sent a letter to defendant that further described the incident. She alleged that defendant failed to maintain the sidewalk in a reasonably safe condition. Defendant argued that the trial court erroneously denied its motion for summary disposition because plaintiff's notices did not describe the exact location and nature of the defect. The court held that plaintiff's explanation accurately described the exact nature of the defect. The additional information provided during her deposition that the defect existed at the point where the concrete abutted brick pavers did not render her initial description of the nature of the defect as an uneven or "unlevel" sidewalk inaccurate. Thus, plaintiff's notices were sufficient to apprise defendant of the exact nature of the defect. Further, because the notices included the address where the alleged defect was located and specified that the defect was "in front of" that address, the court held that plaintiff's notices sufficiently described the exact location of the defect. Defendant also contended that plaintiff's notices were deficient because she failed to identify the witnesses known to her. Plaintiff's 9/1/10 letter to defendant stated, "[t]here were people in the vicinity when [plaintiff] fell but she is not able to identify any witnesses who may have seen her fall at this time." Contrary to that assertion, plaintiff testified during her deposition that her daughter and two teenage grandsons were walking behind her in a single-file line and all three observed her fall. She claimed that her daughter screamed "mom" immediately as plaintiff struck the sidewalk. Plaintiff maintained that all three family members told her that they had seen her "go down" and all three assisted her to her feet afterward. Plaintiff further testified that her grandsons helped her identify the exact location of her fall as she was sitting on nearby steps after her fall. Thus, contrary to her assertion in her 9/1/10 letter, she was able to identify witnesses who saw her fall, but she failed to do so.

 

This summary also appears under School Law

 

Issues: Defendant-Willow Run Community School's (WRCS) governmental immunity claim; Ross v. Consumers Power Co.; MCL 691.1407(1); Whether any of the statutory exceptions to governmental immunity applied; Defining a "priority function"; MCL 691.1413; Whether WRCS's alleged defamation of plaintiff occurred while WRCS was engaged in activities expressly or impliedly mandated or authorized by law; Maskery v. University of MI Bd. of Regents; Stringwell v. Ann Arbor Pub. Sch. Dist.; Whether the WRCS properly released a memo containing the charges against plaintiff to the media; Respondeat superior liability; Claim that defendants deliberately defamed plaintiff for the sole purpose of injuring her; Gracey v. Wayne Cnty. Clerk; Marrocco v. Randlett; American Transmissions, Inc. v. Attorney Gen.; Defendant-Washington's claim of absolute immunity; MCL 691.1407(5); Nalepa v. Plymouth-Canton Cmty. Sch. Dist.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hicks v. Washington

e-Journal Number: 53877

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

 

The court held that the trial court should have granted summary disposition to defendant-WRCS on plaintiff's defamation claim and should have also granted defendant-Washington summary disposition as to any alleged statements made in her official capacity as a school board president. However, it correctly denied summary disposition as to any statements made in her private capacity including those posted on the Willow Run Watchdog website. Thus, the court reversed in part, affirmed in part, and remanded for further proceedings consistent with its opinion. Plaintiff began working for defendant in 9/07, as its Director of Special Education. She claimed that she adequately performed her job duties. She alleged that on 9/15/09, she was assaulted by Washington, who was president of the WRCS board. She reported this to the Sheriff's Department, and claimed that Washington, in turn, insisted that WRCS hire an investigator to scrutinize plaintiff. She alleged that the investigation revealed nothing, but she was suspended and later fired on 5/25/10. Plaintiff also claimed that after she was fired, defendants posted on the Internet and provided future employers with false information about plaintiff and her employment history with WRCS. She particularly alleged that a memo written by Washington detailing reasons that she recommended that the Board terminate plaintiff was also released to the media. The memo alleged that plaintiff committed fraud, theft, and ethical and professional misconduct. Plaintiff also claimed that after she applied for a job in another school district, but before WRCS terminated her, WRCS responded to an inquiry from the other school district by stating that "[t]here are currently concerns pending, but there has not been a hearing substantiating charges of misconduct." She also provided evidence that Washington was personally involved in running a website called Willow Run Watchdog, which was not sanctioned by or affiliated with WRCS. The court noted that the operation of a public school is a governmental function. Further, because all of the actions that may be imputed to WRCS constituted the discharge of governmental functions, and none of the statutory exceptions applied, WRCS was immune from liability for plaintiff's defamation claim. Plaintiff also disputed whether Washington was acting within the scope of her executive authority when she allegedly defamed her. The court found that it did not appear that Washington's involvement in the Watch Dog website could be considered to be official. The statements made in Washington's private capacity on the website were not protected by governmental immunity.

 

Real Property

 

This summary also appears under Banking

 

Issues: Whether defendant/counter-plaintiff/third-party plaintiff-appellant-Irvine properly relied on Restatement Torts, 2d, § 552 (which the court adopted in Stockler v. Rose) to support her position that the plaintiff/counter defendant-Bank was liable for the allegedly improper and incorrect appraisal of the property at issue; Whether the Bank was under any public duty to provide the appraisal information

Court: Michigan Court of Appeals (Unpublished)

Case Name: Flagstar Bank FSB v. Irvine

e-Journal Number: 53861

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

 

The court held that appellant-Irvine's reliance on Restatement Torts, 2d, § 552 was misplaced. Thus, the trial court properly granted summary disposition for the appellee-Bank. The case arose from a real estate transaction in which third-party plaintiff-Heritage Pointe Investments (of which Irvine was the sole member) purchased a parcel of undeveloped property with a loan from the Bank. The Bank conditioned the loan on the outcome of an appraisal it commissioned. When the appraisal determined that the property was worth about $2.4 million, the Bank issued the loan. Irvine guaranteed the loan. Heritage eventually fell into default and Irvine later determined that the appraisal - which she did not read until well after the purchase was consummated - was flawed and allegedly grossly overstated the value of the property. The Bank sued Irvine on the guarantee, for the outstanding amount of the loan plus fees and interest. Irvine counterclaimed, asserting that the Bank was liable for the improper and incorrect appraisal. The trial court held that the appraisal was for the benefit of the Bank, not the person seeking the loan, and granted summary disposition to the Bank. The court concluded that Irvine simply failed to provide any conceivable basis for concluding that the Bank provided the appraisal information "for the guidance of others in their business transactions." The Bank's employee stated that he would expect a borrower to rely on the accuracy of the appraisal, but in context his statement appeared to be only that a borrower would reasonably expect a bank employee not to lie about the contents of the appraisal. Thus, the Bank "neither commissioned nor shared the appraisal for the purpose of providing Irvine with knowledge upon which to make any kind of decision." Rather, as the trial court correctly stated, the Bank sought the appraisal for its own purposes. Affirmed.

 

Issues: "Acquiescence"; Wood v. Denton; Sackett v. Atyeo; Acquiescence for the statutory period; Kipka v. Fountain; Killips v. Mannisto; Walters v. Snyder (Walters II); Mason v. City of Menominee; Maes v. Olmsted; Mealey v. Arndt (AZ App.); Calthorpe v. Abrahamson (ME)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Robert E. McGowan Trust v. Thomas

e-Journal Number: 53921

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

 

The court held that the trial court erred in denying the defendants-Thomases' motion for summary disposition on the acquiescence claim. Thus, the court reversed the trial court's order denying summary disposition and remanded for entry of judgment in favor of defendants. Plaintiffs and the Thomases are the owners of adjoining lots, Lot 39 and Lot 40. The Thomases granted the defendants-Frezas an easement on Lot 40. They also constructed stairs on the easement that went down the bluff to the shore. Plaintiffs sued the Thomases and the Frezas, claiming that, pursuant to the doctrine of acquiescence, they owned the "Disputed Property." The theory at issue was acquiescence for the statutory period (15 years). According to plaintiffs, the approximate property line between Lot 39 and Lot 40 was established by a wood fence, trees and other plantings, and landscaping on the top of the bluff. However, the deposition testimony revealed that it was a seawall built in 1994, rather than the fence, trees and plantings, or landscaping on the top of the bluff, that led to plaintiffs' claim of an acquiesced property line. Plaintiff-Wiegmann testified that she thought there was nothing that marked this property line as it extended from the shore of Lake Michigan. Plaintiff-Gillund testified that she believed that the seawall marked the property line, but she did not have an opinion of the location of the property line as it extended from the seawall. Plaintiff-McGowan, Jr. also testified that he believed the seawall marked the property line. The Thomases purchased Lot 40 from the Ps in 8/07. Samuel Thomas claimed that he was first introduced to Lot 40 in 2006 and that, since 2006, the platted boundary line between Lot 39 and Lot 40 has been marked with survey stakes. He always believed that the property line between Lot 39 and Lot 40 was the platted boundary line. Plaintiffs presented no evidence to contradict Thomas's averments and create a genuine issue of material fact that the Thomases believed that the property line was the end of the seawall or anything other than the platted boundary line, or that they ever treated the end of the seawall as the property line. Also, there was no evidence to suggest that, after the seawall was installed, the Ps treated the end of the seawall as the boundary line between Lot 39 and Lot 40. "The touchstone of acquiescence is that there is an agreement, whether tacit or overt, between the parties as to the location of the property line." The court held that because plaintiffs presented no evidence to show that the Ps, despite knowing that the seawall extended onto Lot 40, treated the end of the seawall as the property line, they failed to create a genuine issue of material fact that the parties reached an agreement, even a tacit one, that the end of the seawall was the property line between the two lots.

 

School Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Defendant-Willow Run Community School's (WRCS) governmental immunity claim; Ross v. Consumers Power Co.; MCL 691.1407(1); Whether any of the statutory exceptions to governmental immunity applied; Defining a "priority function"; MCL 691.1413; Whether WRCS's alleged defamation of plaintiff occurred while WRCS was engaged in activities expressly or impliedly mandated or authorized by law; Maskery v. University of MI Bd. of Regents; Stringwell v. Ann Arbor Pub. Sch. Dist.; Whether the WRCS properly released a memo containing the charges against plaintiff to the media; Respondeat superior liability; Claim that defendants deliberately defamed plaintiff for the sole purpose of injuring her; Gracey v. Wayne Cnty. Clerk; Marrocco v. Randlett; American Transmissions, Inc. v. Attorney Gen.; Defendant-Washington's claim of absolute immunity; MCL 691.1407(5); Nalepa v. Plymouth-Canton Cmty. Sch. Dist.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hicks v. Washington

e-Journal Number: 53877

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

 

The court held that the trial court should have granted summary disposition to defendant-WRCS on plaintiff's defamation claim and should have also granted defendant-Washington summary disposition as to any alleged statements made in her official capacity as a school board president. However, it correctly denied summary disposition as to any statements made in her private capacity including those posted on the Willow Run Watchdog website. Thus, the court reversed in part, affirmed in part, and remanded for further proceedings consistent with its opinion. Plaintiff began working for defendant in 9/07, as its Director of Special Education. She claimed that she adequately performed her job duties. She alleged that on 9/15/09, she was assaulted by Washington, who was president of the WRCS board. She reported this to the Sheriff's Department, and claimed that Washington, in turn, insisted that WRCS hire an investigator to scrutinize plaintiff. She alleged that the investigation revealed nothing, but she was suspended and later fired on 5/25/10. Plaintiff also claimed that after she was fired, defendants posted on the Internet and provided future employers with false information about plaintiff and her employment history with WRCS. She particularly alleged that a memo written by Washington detailing reasons that she recommended that the Board terminate plaintiff was also released to the media. The memo alleged that plaintiff committed fraud, theft, and ethical and professional misconduct. Plaintiff also claimed that after she applied for a job in another school district, but before WRCS terminated her, WRCS responded to an inquiry from the other school district by stating that "[t]here are currently concerns pending, but there has not been a hearing substantiating charges of misconduct." She also provided evidence that Washington was personally involved in running a website called Willow Run Watchdog, which was not sanctioned by or affiliated with WRCS. The court noted that the operation of a public school is a governmental function. Further, because all of the actions that may be imputed to WRCS constituted the discharge of governmental functions, and none of the statutory exceptions applied, WRCS was immune from liability for plaintiff's defamation claim. Plaintiff also disputed whether Washington was acting within the scope of her executive authority when she allegedly defamed her. The court found that it did not appear that Washington's involvement in the Watch Dog website could be considered to be official. The statements made in Washington's private capacity on the website were not protected by governmental immunity.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(g) and (j); In re McIntyre; Applicability of In re Mason; Termination at the initial dispositional hearing; MCL 712A.19a(2)(a); MCL 722.638(1)(a)(i); Placement with respondent-father's mother; In re IEM; Delay in establishing legal paternity; In re LE

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Armstead

e-Journal Number: 53933

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

 

The court held, inter alia, that the trial court properly terminated the respondent-father's parental rights to the minor children where the statutory grounds for termination were established by clear and convincing evidence. "The evidence showed respondent failed to provide consistent or adequate care or custody for the children when he had the opportunity, but lived a transient lifestyle, residing at times with his mother, or other relatives and friends, sometimes having the children and their mother with him and at other times leaving them to fend for themselves. He did not maintain a stable home or employment, or provide consistent physical care for the children." While he occasionally provided diapers, food, toys and some cash assistance, "his contributions fell short of adequately supporting them." He acted "in an extremely violent manner" in an incident, after which he resided with girlfriends and fathered two other children while leaving the children at issue in this case in the care of their drug-addicted mother, with little or no concern for their well-being. Respondent had no contact with the children after 12/09 and would remain incarcerated until at least 11/13, "was either so far attenuated from their lives that he did not know they were removed or knew that they were removed and did not come forward until convinced by his mother to do so, and he was not available at the time of removal" to inform the DHS that his mother was willing to provide placement for the children. "The trial court correctly found that respondent's mother could not and should not provide care and custody for the children." Thus, the court held that the evidence was clear that respondent failed to provide proper care or custody for the children. Affirmed.

 

Issues: Termination under §§ 19b(3)(g), (i), (j), and (l); A parent's mental illness; In re Utrera; History of substance abuse and violent behavior; In re AH; A parent's failure to participate in and benefit from a service plan; In re JK; Deference to the trial court's credibility determinations; In re Miller; Applicability of §§ 19b(3)(i) and (l); In re Jones; Harmless error; In re Olive/Metts Minors; Admission of police reports; Terminating parental rights at the initial hearing; MCR 3.977(E)(3); "Relevant evidence"; MRE 401 and 402; MRE 403; People v. Blackston; Collateral attack on the trial court's initial assumption of jurisdiction over the child; In re Hatcher

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Javor

e-Journal Number: 53934

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

 

The court held that, inter alia, the trial court did not err in finding that clear and convincing evidence supported terminating the respondent-father's parental rights under §§ 19b(3)(g) and (j). Further, while it erred in determining that §§ 19b(3)(i) and (l) supported terminating the respondent-mother's parental rights, it did not err in finding that §§ 19b(3)(g) and (j) were established by clear and convincing evidence. Thus, the court affirmed the trial court's orders terminating the respondents' parental rights in these consolidated cases. The court noted that a "parent's mental illness can affect that parent's ability to parent a child." The doctor (S) who conducted both respondents' psychological evaluations testified that the father "experiences one of the most dangerous psychic phenomenon - command hallucinations." While a community mental health worker testified the father might be able to control his illness with proper medication, he also testified that the medications did not mix well with alcohol. S also testified the father "exhibited a lack of connectivity, and that a lack of parental bond could affect the child's mental and emotional development, particularly during her first three years." Further, the trial court found that he demonstrated a blank stare and a flat affect. It did not clearly err when it found that these conditions would affect his ability to parent the child, and placed her at a risk of harm if returned to his care. The trial court also found that he had a history of substance abuse and violent behavior. "The trial court may properly consider both of these conditions when determining whether it is reasonably likely that the child will be harmed if returned to the parent's home." As shown by the properly admitted police reports, he engaged in "multiple instances of domestic violence and assault, typically while intoxicated." The mother "admitted that she smoked marijuana while she was pregnant with the child, despite knowing that it was harmful." Multiple witnesses testified that she did not submit to drug tests or substantially participate in her service plan. S testified that the mother's problems were likely to harm the child's development, and that he previously treated her for substance abuse, but she was unable to make significant progress over a lengthy period of time. Thus, the court held that the record supported the trial court's findings that she could not provide the child with proper care and custody, and that the child would be at risk of harm if returned to her care.

 

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