• Banking (1)
• Criminal Law (5)
• Insurance (1)
• Litigation (3)
• Municipal (1)
• Negligence & Intentional Tort (3)
• Probate (1)
• Real Property (1)
• Tax (1)
• Wills & Trusts (1)

Banking

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly granted defendant-Golden (defendant-Ruhl's employer) summary disposition and denied the plaintiff's motion to set aside its summary disposition order; Whether the trial court properly summarily disposed of plaintiff's claims against Golden arising under principles of "respondeat superior" and "vicarious" liability; McClaine v. Alger; Rogers v. JB Hunt Transp., Inc.; Salinas v. Genesys Health Sys.; Martin v. Jones; Helsel v. Morcom; Bryant v. Brannen; Kester v. Mattis, Inc.; Whether the trial court properly dismissed plaintiff's claims of fraud and breach of fiduciary duty against Golden; 1031 Lapeer LLC v. Rice; Johnson v. Wausau Ins. Co.; Webb v. First of MI Corp.; "Reasonable reliance"; Nieves v. Bell Indus., Inc.; MCL 445.1672;  Denial of motion to amend opinion and set aside summary disposition order; MCR 2.517(B); Corporan v. Henton; Whether the trial court was required to make factual findings; Skinner v. Square D Co.; Amerisure Ins. Co. v. Plumb; Woods v. SLB Prop. Mgmt., LLC; Churchman v. Rickerson; Charbeneau v. Wayne County Gen. Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bear v. Ruhl

e-Journal Number: 48007

Judge(s): Per Curiam - O'Connell, Saad, and Beckering

 

The court held that the trial court properly denied the plaintiff's motion to set aside the trial court's prior opinion and order granting defendant-Golden's motion for summary disposition in this action arising out of conduct engaged in by defendant-Ruhl during the time he was employed as a loan officer for Golden. The case arose from investment transactions plaintiff made with Ruhl and his company defendant-RREI in the fall of 2006. Bear claimed that Ruhl offered her a plan where she could use the large equity in her home to generate income via guaranteed investments in REEI, and then use that income to qualify for a new mortgage. Plaintiff filled out a residential mortgage application stating income income reflecting the earnings expected from her investment in RREI and 4 days later invested $100,000 with Ruhl pursuant to a contract backdated to 10/9/06. Based on the contract RREI was to repay plaintiff $2,783.07 a month for 48 months, for a total of $133,587.36. Later, plaintiff signed an income certification for New Century (mortgage company) indicating her monthly income would be at least $8,500. On 12/5/06, plaintiff closed on a new 30-year adjustable rate mortgage with New Century, brokered by Golden, for $347,400. In conjunction with the loan documents, plaintiff signed a "Prepayment Rider Adjustable Rate Loan." The rider provided in part that plaintiff had the right to make a full or partial prepayment of the loan at any time, but if she did so in the first two years of the loan, she had to pay a prepayment charge equal to 1% of the prepayment amount. As broker of plaintiff's New Century loan, Golden was paid $5,219. After paying the balance of her existing mortgage, closing fees, and settlement charges, plaintiff received net proceeds of about $171,000 from the refinancing. She then invested an additional $162,000 with Ruhl and RREI. Pursuant to this second investment contract, Ruhl and RREI were to repay plaintiff $4,508.58 a month for 48 months, or a total of $216,426.24. Plaintiff stated that all of her communications with Ruhl were via Golden phone numbers and e-mail addresses, and all of their meetings were held at Ruhl's Golden office. She signed the investment contracts there and the signatures were witnessed by Golden employees. She was also told she could speak to his Golden assistant as to any questions. Also, Ruhl kept her investment portfolio at his Golden office, the checks she received bore the Golden address, and she picked up payments from RREI at Golden's offices from Ruhl or another Golden employee. RREI made monthly payments to plaintiff on the investment contracts through 2007. On 1/8/08, Ruhl signed an agreement promising to pay her the full balance owed on both contracts and a penalty of $10,000 per contract within 60 to 90 days. Ruhl/RREI did not make any more payments. Plaintiff's claims against Ruhl/RREI were resolved when they accepted the case evaluation award, and a judgment for plaintiff was entered against Ruhl/RREI in the amount of $300,000. The case proceeded as to plaintiff's claims against Golden. The trial court granted Golden summary disposition and held, inter alia, that plaintiff failed to establish any question of fact as to any involvement in, or knowledge of Ruhl's investment activities by Golden, or that Ruhl had acted within the scope of his employment with Golden when procuring her investment in RREI. Affirmed.

 

Criminal Law

 

Issues: Whether the defendant was denied his due process rights when the trial court required him to wear shackles during the trial; People v. Stimage; Rhoden v. Rowland (10th Cir.); Whether defendant preserved the issue; Fast Air, Inc. v. Knight; Deck v. Missouri

Court: Michigan Supreme Court

Case Name: People v. Davenport

e-Journal Number: 48312

Judge(s): Young, Jr., Cavanagh, M. Kelly, Markman, Hathaway, M.B. Kelly, and Zahra

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals order (see e-Journal # 46527 in the 8/20/10 edition) denying the defendant's motion for an evidentiary hearing. The court held that he should have been allowed to develop the record on the issue of whether his shackling during trial prejudiced his defense. The court also reversed the Court of Appeals determination that defendant did not preserve the issue of whether his shackling constituted a due process violation, noting that defense counsel requested that both of defendant's hands be unshackled to avoid the prejudice that would result if the jury saw the shackles and the trial court denied the request. The court stated that if the trial court determines on remand that the jury saw defendant's shackles, the trial court shall also determine whether the prosecution can show beyond a reasonable doubt that the shackling error did not contribute to the verdict against defendant. The court remanded the case to the trial court for further proceedings consistent with its order. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining issues presented.

 

Issues: Expert testimony; People v. Lukity; People v. Peterson; People v. Ackerman; "Plain error"; People v. Carines; Motion for adjournment to locate an expert witness; People v. Jackson; People v. Unger; People v. Coy; Whether the ending date for the criminal offenses in the information should have been modified to conform to the evidence at trial; People v. McGee; Admission of numerous statements by the detective about the defendant's recorded interview; People v. Bragdon; People v. Rice (On Remand); People v. Moorer; Ineffective assistance of counsel; People v. McMullan; People v. Wilson; People v. Solmonson; People v. Henry; People v. Frazier; People v. Cline; People v. Hill; People v. Kevorkian; People v. Cooper; Strickland v. Washington; People v. McGhee; People v. Caballero; People v. Odom; People v. Fike; People v. Dobek; Denial of a request to conduct in camera review of privileged records for an abuse of discretion; People v. Laws; People v. Stanaway; MCR 6.201(C)(2)

Court: Michigan Supreme Court

Case Name: People v. Tomasik

e-Journal Number: 48313

Judge(s): Young, Jr., Cavanagh, M. Kelly, Markman, Hathaway, M.B. Kelly, and Zahra

 

In an order, the court granted the motion for miscellaneous relief and in lieu of granting leave to appeal, the court vacated the judgment of the Court of Appeals (see e-Journal # 44877 in the 2/2/10 edition) and remanded to the trial court for further proceedings pursuant to the court's decision in Stanaway.  On remand, the trial court shall disclose to the defendant the 3/26/03 report authored by TZ of Pine Rest Christian Mental Health Services and the 3/1/03 form authored by DJ-E. After disclosing these documents to the defendant, the trial court shall permit him to argue that a new trial should be granted.

 

Issues: Prosecutorial misconduct; People v. Unger; People v. Mesik (On Reconsideration); People v. Dobek; People v. Seals; Whether the prosecutor elicited sympathy for the victim; People v. Watson; General rule that it is improper for a prosecutor to ask jurors to place themselves in the victim's position; People v. Buckey; The "crux" of the prosecutor's argument; People v. Cooper; People v. Hoffman; Comments based on the evidence; Considering the prosecutor's  comments made in rebuttal argument in light of defendant's arguments; People v. Messenger; Plain error review; People v. Abraham; Ineffective assistance of counsel; People v. Uphaus (On Remand); Futile objections; People v. Davenport (After Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Henry

e-Journal Number: 48139

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

 

The prosecutor did not deny the defendant a fair trial by eliciting sympathy for the teenage victim. The court held that the "crux" of the prosecutor's argument when he asked the jurors to put themselves in the victim's shoes was that the victim was not an incredible witness because he was reluctant to testify. Reading the comment in context, the court concluded that the prosecutor asked the jurors to understand why the victim shared what defendant had done to him "in bits and pieces" and was embarrassed to testify. Defendant was convicted of child sexually abusive activity and CSC III. He argued on appeal, inter alia, that the prosecutor denied him a fair trial by eliciting sympathy for the victim during closing and rebuttal argument. The prosecutor asked the jurors to place themselves "in the shoes of a 14-year-old boy, having to tell a group of strangers what was done to him by [defendant]." The court noted that while it "is generally improper for a prosecutor to ask jurors to place themselves in the victim's position," whether the request constitutes prosecutorial misconduct depends on the "crux" of the prosecutor's argument. The court concluded that in this case, the prosecutor did not ask the jurors to suspend their judgment and decide the case based on sympathy for the victim or to convict defendant even if they were not convinced beyond a reasonable doubt of his guilt. The court held that the comment was not improper. Further, the prosecutor's comments about why the victim went back to the defendant's home (describing the victim as "a kid that everybody has forgotten about" who "would never have said anything" if his brother had not discovered the photos taken by defendant) were based on the evidence. The victim was not permitted to stay at his grandparents' home (where his mother was then living) and he testified "that defendant was the only person he had at the time." The victim did not tell anyone about the photos or the inappropriate touching by defendant until after his brother found the photos on defendant's computer. In the challenged comments, the prosecutor "used these facts to argue his theory why defendant engaged in inappropriate activity with the victim." The court held that these remarks were also not improper. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's first-degree murder conviction; People v. Ortiz; People v. Nowack; "Premeditation and deliberation"; People v. Abraham; Denial of an adjournment for independent forensic evaluations on the issues of criminal responsibility, competency to stand trial, and competency to waive Miranda; People v. Coy; "Good cause"; People v. Jackson; MCR 2.503(C); Plain error review; People v. Cross; Adjournment for an evidentiary hearing as to whether defendant's inculpatory police statement was voluntary, knowing, and intelligent; People v. Ray

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hurick

e-Journal Number: 48155

Judge(s): Per Curiam - K.F. Kelly, Gleicher, and Stephens

 

The court held that the reasonable inferences from the facts that the defendant accompanied the victim the night before the murder and was the only person witnesses last saw with him, together with his statements to a witness (B) and his properly admitted inculpatory police statement, sufficiently proved beyond a reasonable doubt that he was the victim's killer. Thus, the court affirmed his first-degree premeditated murder conviction. The court concluded that "substantial other circumstantial evidence and reasonable inferences established beyond a reasonable doubt that defendant intentionally killed the victim with deliberation and premeditation." Defendant armed himself with a hammer or other tool right before he left the house with the victim the last time anyone saw the victim alive. The victim suffered many blunt force blows to his head as he was lying on his back. Defendant admitted to B that he used a brick to strike the victim's head, and indicated in his police statement that he hit the victim's head with a hammer. He also tried to clean himself and his shoes immediately after returning to the house alone after recently departing with the victim, and he tried to discard clothing after the crime. 

 

Issues: Admission of a note allegedly written by the defendant threatening a witness; People v. Pattison; MRE 901; MRE 403 & 404(b); "Relevant evidence" (MRE 401 & 402); "Unfair prejudice"; People v. Taylor; Plain error review; People v. Knox; Whether defendant was entitled to a new trial because some potential jurors might have seen him in shackles; People v. Williams; Waiver; People v. Carter; Right to be tried by an impartial jury; People v. Miller; People v. Banks; People v. Horn; "Flight" jury instruction; People v. Compeau; People v. Coleman; Sentencing; Scoring of OVs 7, 12, & 19; People v. Endres; People v. Osantowski; People v. Blunt; People v. Mattoon; People v. Hornsby; Elements of armed robbery; People v. Smith; "Attempt" (MCL 750.92(2)); People v. Thousand; The concept of "impossibility"; Whether defendant threatened the security of a penal institution; Ineffective assistance of counsel;  People v. Odom; People v. Solmonson; People v. Petri; Right of confrontation; People v. Buie; People v. Cooper; People v. Ackerman; People v. McGhee

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Martin

e-Journal Number: 48148

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

 

The trial court did not err by concluding that the evidence sufficiently authenticated the note allegedly written by the defendant threatening a witness, and he could not show he was prejudiced by the admission of the note because the evidence of his guilt was overwhelming. He was convicted in one of these consolidated cases of armed robbery, felony-firearm, felonious assault, and felon in possession, and in the other case for armed robbery, felony-firearm, conspiracy to commit bank robbery, and felon in possession. In the note, defendant appeared to ask the recipient to act against F, who was then cooperating with the prosecution. Defendant argued that there was no reason to believe that he wrote the note, which was also inflammatory and constituted improper character evidence. The prosecution contended that defendant sent the note to F's cellmate. F testified that he was familiar with defendant's handwriting and that the note appeared to be in defendant's handwriting. "This was sufficient to establish that defendant was the author." F also testified that the note came with a copy of the report that he made to the police about statements defendant made about the robberies, which was provided to defense counsel. Defendant did not dispute that fact. F also explained how the note was passed - defendant passed it to a trustee inmate, who gave it to F's new cellmate, who revealed it to F. A police officer confirmed that F had previously shared a cell with defendant. The court also noted that two co-conspirators who pleaded guilty and were serving sentences testified that defendant was involved in planning and executing the robberies. A bank employee positively identified defendant as the robber. Another bank employee testified that the suspect left behind a black garbage bag, which the police determined had defendant's fingerprints on it. An employee from the second bank identified a photo taken from the security system and said that defendant resembled the suspect. F testified that defendant discussed details of the case (a bank robbery that he committed with two women). The jury was shown photos taken from the security systems at both banks. In light of this evidence, the court held that defendant could not show plain error affecting his substantial rights. His convictions and sentences were affirmed.

 

Insurance

 

Issues: Uninsured motorist (UIM) benefits; Failure to timely comply with a notice provision in the policy; Koski v. Allstate Ins. Co.; "Prejudice" requirement; Jackson v. State Farm Mut. Auto. Ins. Co.; Wendel v. Swanberg; Bradley v. State Farm Mut. Auto. Ins. Co.; Rory v. Continental Ins. Co.; Tenneco v. Amerisure Mut. Ins. Co.; Policy interpretation; Rohlman v. Hawkeye-Sec. Ins. Co.; More weight given to Supreme Court opinions than orders; Mullins v. St. Joseph Mercy Hosp.

Court: Michigan Court of Appeals (Published)

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

e-Journal Number: 48315

Judge(s): Murphy, Stephens, and M.J. Kelly

 

Concluding that Koski applied and the trial court correctly determined that the defendant-insurer did not establish actual prejudice as a matter of law, the court affirmed the trial court's order denying defendant's summary disposition motion in this UIM coverage dispute. The insured was a pedestrian on 5/31/08 when he was struck by a hit-and-run driver and suffered severe head injuries. He notified defendant about the accident on 8/25/08. He died on 11/11/08 due to his injuries. The policy provided that a person making a claim for UIM benefits "must report an accident involving a 'hit-and-run' motor vehicle to the police within 24 hours and to us within 30 days[.]" The court noted that defendant did not argue that it suffered any prejudice due to the delay in providing notice. In Koski, the Michigan Supreme Court held that "an insurer must establish actual prejudice before it is relieved from contractual liability under an insurance policy, where the insured failed to timely comply with a notice provision contained in the policy, which constituted a condition precedent to insurer liability." In an order in lieu of granting leave to appeal, the Supreme Court in Jackson vacated the court's judgment and reinstated the trial court's order of summary dismissal "for the reasons stated in the Court of Appeals dissent." The court in Jackson found an ambiguity existed in the policy and reversed the trial court on that basis, determining that it was unnecessary to address the plaintiff's claim that the notice provision in the policy was only enforceable if the insurer could prove prejudice. However, the dissent addressed the prejudice issue and rejected the claim that prejudice had to be established, distinguishing Wendel. The court noted that the two grounds cited by the Jackson dissent to distinguish Wendel and reject application of a prejudice requirement were both present in Koski. Thus, Jackson stood squarely in direct conflict with Koski, which held that it was "a well-established principle that an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position." The court concluded that "Jackson is of questionable and limited value because it did not address Koski, which apparently was not argued there, and which constitutes binding precedent" the court could not disregard. While the 30-day notice provision here did not require notice immediately or within a reasonable time, the court concluded that there was no reason why the Koski actual prejudice requirement would not apply based on that distinction. The court also noted that Koski was "a fully developed and reasoned opinion on the subject of prejudice in the context of insurance law," while Jackson was "merely a cursory order." The court determined that more weight should be given to a Supreme Court opinion than an order. Thus, the court held that, regardless of the Jackson order, Koski demanded that it affirm the trial court's order.

 

Litigation

 

This summary also appears under Banking

 

Issues: Whether the trial court properly granted defendant-Golden (defendant-Ruhl's employer) summary disposition and denied the plaintiff's motion to set aside its summary disposition order; Whether the trial court properly summarily disposed of plaintiff's claims against Golden arising under principles of "respondeat superior" and "vicarious" liability; McClaine v. Alger; Rogers v. JB Hunt Transp., Inc.; Salinas v. Genesys Health Sys.; Martin v. Jones; Helsel v. Morcom; Bryant v. Brannen; Kester v. Mattis, Inc.; Whether the trial court properly dismissed plaintiff's claims of fraud and breach of fiduciary duty against Golden; 1031 Lapeer LLC v. Rice; Johnson v. Wausau Ins. Co.; Webb v. First of MI Corp.; "Reasonable reliance"; Nieves v. Bell Indus., Inc.; MCL 445.1672;  Denial of motion to amend opinion and set aside summary disposition order; MCR 2.517(B); Corporan v. Henton; Whether the trial court was required to make factual findings; Skinner v. Square D Co.; Amerisure Ins. Co. v. Plumb; Woods v. SLB Prop. Mgmt., LLC; Churchman v. Rickerson; Charbeneau v. Wayne County Gen. Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bear v. Ruhl

e-Journal Number: 48007

Judge(s): Per Curiam - O'Connell, Saad, and Beckering

 

The court held that the trial court properly denied the plaintiff's motion to set aside the trial court's prior opinion and order granting defendant-Golden's motion for summary disposition in this action arising out of conduct engaged in by defendant-Ruhl during the time he was employed as a loan officer for Golden. The case arose from investment transactions plaintiff made with Ruhl and his company defendant-RREI in the fall of 2006. Bear claimed that Ruhl offered her a plan where she could use the large equity in her home to generate income via guaranteed investments in REEI, and then use that income to qualify for a new mortgage. Plaintiff filled out a residential mortgage application stating income income reflecting the earnings expected from her investment in RREI and 4 days later invested $100,000 with Ruhl pursuant to a contract backdated to 10/9/06. Based on the contract RREI was to repay plaintiff $2,783.07 a month for 48 months, for a total of $133,587.36. Later, plaintiff signed an income certification for New Century (mortgage company) indicating her monthly income would be at least $8,500. On 12/5/06, plaintiff closed on a new 30-year adjustable rate mortgage with New Century, brokered by Golden, for $347,400. In conjunction with the loan documents, plaintiff signed a "Prepayment Rider Adjustable Rate Loan." The rider provided in part that plaintiff had the right to make a full or partial prepayment of the loan at any time, but if she did so in the first two years of the loan, she had to pay a prepayment charge equal to 1% of the prepayment amount. As broker of plaintiff's New Century loan, Golden was paid $5,219. After paying the balance of her existing mortgage, closing fees, and settlement charges, plaintiff received net proceeds of about $171,000 from the refinancing. She then invested an additional $162,000 with Ruhl and RREI. Pursuant to this second investment contract, Ruhl and RREI were to repay plaintiff $4,508.58 a month for 48 months, or a total of $216,426.24. Plaintiff stated that all of her communications with Ruhl were via Golden phone numbers and e-mail addresses, and all of their meetings were held at Ruhl's Golden office. She signed the investment contracts there and the signatures were witnessed by Golden employees. She was also told she could speak to his Golden assistant as to any questions. Also, Ruhl kept her investment portfolio at his Golden office, the checks she received bore the Golden address, and she picked up payments from RREI at Golden's offices from Ruhl or another Golden employee. RREI made monthly payments to plaintiff on the investment contracts through 2007. On 1/8/08, Ruhl signed an agreement promising to pay her the full balance owed on both contracts and a penalty of $10,000 per contract within 60 to 90 days. Ruhl/RREI did not make any more payments. Plaintiff's claims against Ruhl/RREI were resolved when they accepted the case evaluation award, and a judgment for plaintiff was entered against Ruhl/RREI in the amount of $300,000. The case proceeded as to plaintiff's claims against Golden. The trial court granted Golden summary disposition and held, inter alia, that plaintiff failed to establish any question of fact as to any involvement in, or knowledge of Ruhl's investment activities by Golden, or that Ruhl had acted within the scope of his employment with Golden when procuring her investment in RREI. Affirmed.

 

This summary also appears under Probate

 

Issues: Dispute as to whether certain property belonged in the decedent's estate; Jurisdictional challenge - whether the appeal was timely filed; Smith v. Smith; MCR 7.204(A)(1)(a) and (b); Whether the opinion at issue satisfied MCR 5.162; Haynes v. Neshewat; Whether the appellee-Merlin Moon (the decedent's father) had standing to object to the inventory of the estate; In re Foster; Bowie v. Arder; "Interested person"; MCL 700.1105(c); Discovery sanctions; Maldonado v. Ford Motor Co.; The "Dead Man's" Statute; MCL 600.2166; MRE 601; McDougall v. Schanz; James v. Dixon; In re Backofen; Whether federal decisions are binding on the court; Allen v. Bloomfield Hills Sch. Dist.; Whether the probate court correctly found a partnership existed between appellee and the decedent; Miller v. City Bank & Trust Co., NA; MCR 2.613(C); In re Mason; Fletcher v. Fletcher; Applicability of Lobato v. Paulino; Byker v. Mannes; Indicia of a partnership; MCL 449.7(4)(b); Michigan Employment Sec. Comm'n v. Crane; MCL 449.7; Whether the probate court may have violated appellant-Kristina Moon's procedural due process rights by raising an issue sua sponte; Al-Maliki v. LaGrant

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Moon Estate

e-Journal Number: 48004

Judge(s): Per Curiam - Markey, Wilder, and Stephens

 

The court held, inter alia, that it had jurisdiction to hear this case under MCR 7.204(A)(1)(b), appellee-Merlin Moon (the decedent's father) had standing to object to the estate inventory because his alleged ownership interest in the estate property was a real, legally protected interest that could be affected by the probate process, and the trial court properly found that a partnership existed between the decedent and the appellee and the appellee had a 50% ownership interest in several items listed in the estate inventory. Thus, the court afffirmed. The appellant (PR) contended on appeal that the evidence did not support the probate court's finding that a partnership existed between the appellee and the decedent. The court noted that the key was whether the parties associated themselves to run a business for profit as co-owners. Other indicia of a partnership include mutual agency and joint liability, a common interest in the capital used in the business, and sharing of profits and losses. The record provided strong support for the conclusion that most of the indicia were present here. The probate court found that the appellee prepared the land for the new barn and made a deal with some Amish workers to have them erect it, while decedent provided the materials. Decedent purchased a tractor, but appellee purchased the parts and did the necessary repairs himself. This pattern was repeated with other equipment. Appellee also contracted to have one of the fields sprayed with pesticide. Decedent paid rent for one of appellee's parcels which was used to grow crops, but did not pay rent for the barns or pasturage. Decedent did the milking, but appellee did the plowing and chopping. The record supported the probate court's findings on all of these points, and appellant did not did not object to any of the specific factual findings. The facts clearly showed that decedent and appellee each provided substantial capital and labor to the farming operation, by purchasing parts or equipment and working on the farm. The fact that appellee contracted with workers to build a barn for the cows and also to have a field sprayed showed that he had joint authority over the farming operation with his son. The probate court correctly found a partnership existed based on these facts.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Premises liability; Slip-and-fall on ice; Timeliness of the plaintiff's response to the defendant's motion for summary disposition; MCR 2.116(G)(1)(a)(ii); Spiek v. Department of Transp.; Maiden v. Rozwood; Motion for reconsideration; Churchman v. Rickerson; Radeljak v. Daimler-Chrysler Corp.; EDI Holdings LLC v. Lear Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Luke v. Valley Ranch Apts., LLC

e-Journal Number: 48252

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

 

The court held in this premises liability case that the trial court properly granted the defendant's motion for summary disposition based on MCR 2.116(G)(1)(a)(ii). The lawsuit concerned plaintiff's slip-and-fall on ice in defendant's parking lot. After plaintiff filed her complaint, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10) on October 16, 2009. The motion hearing was scheduled for October 30, 2009. Pursuant to MCR 2.116(G)(1)(a)(ii), when a party has moved for summary disposition and the court has scheduled a hearing, "any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing." Accordingly, plaintiff was required to file and serve her response by Friday, October 23, 2009. She mailed her response to both defense counsel and the trial court via U.S. Postal Service Express mail on October 22, 2009. Defense counsel received the overnight delivery by the next day and thus, service to counsel was timely. The mailing to the trial court was addressed - "101 E. Huron Street, PO Box 8645, Ann Arbor, MI 48107-8645." It was delivered to the post office box on October 23rd at 9:31 AM. However, court personnel had already picked up mail from the box that day. Court personnel signed for the response at 7:59 AM on Monday, October 26, 2009, and the trial court did not receive and stamp the response until after 2:00 PM that day. Because plaintiff did not timely file any substantively admissible evidence to refute defendant's motion, the trial court granted defendant's motion. Plaintiff moved for reconsideration and argued that she was unaware of the post office policy to hold mail requiring a signature at the post office, rather than deliver it directly to the court. She asserted that because she timely served defense counsel, and because her response was waiting in the court's post office box on Friday, October 23, 2009, the trial court erred. The court held that the trial court's application of the rule as written was not an abuse of discretion. Further, the trial court did not grant defendant's motion simply because plaintiff's response was late. Rather, because plaintiff's response was late, the trial court did not consider her brief and its attachments when it decided the motion. Plaintiff did not produce any other evidence to support her response, so there was nothing to refute the weather reports and deposition evidence defendant submitted to the trial court. This lack of substantive evidence in support of plaintiff's claims formed the basis for the grant of defendant's motion, and this was a proper basis for granting defendant's motion. Plaintiff's argument that the trial court should have considered her late filing was not based on the language of the court rule. The response was not filed on time and the court declined to hold that "received at the post office box" is equivalent to "filed." Nor was there an express exception in the court rule for a good-faith effort. Counsel should have realized that the response was mailed to the post office, and not to the court itself. Counsel could have called the court to discover when it would pick up the mail, or called at some point Friday afternoon to see if it had been received, but failed to do so. Affirmed.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Governmental immunity; Pierce v. Lansing; Fane v. Detroit Library Comm'n; The "public building" exception (MCL 691.1406); Kerbersky v. Northern MI Univ.; Whether the I-beam configuration was a "defective condition"; "Defective design" or "failure to maintain"; Renny v. Department of Transp.; Collins v. Oakland County Cmty. Coll. (Unpub.); Whether the building was open for use by the public; Maskery v. University of MI Bd. of Regents; "Loitering";Whether the defendants had actual or "constructive" notice of the alleged defect; Ali v. Detroit; Statutory interpretation; People v. Libbett

Court: Michigan Court of Appeals (Published After Release)

Case Name: Tellin v. Forsyth Twp.

e-Journal Number: 48316

Judge(s): Per Curiam - Sawyer, Whitbeck, and Wilder

 

[This opinion was previously released as an unpublished opinion on 1/25/11.] The trial court properly denied the defendants-townships' summary disposition motion, concluding that the plaintiffs-children's injuries from the I-beam configuration under the roof overhang arose from a failure to repair or maintain and not a design defect. The court also held that the trial court did not err in determining that the building (a "Learning Center") was open for use by the public, and that the defendants had sufficient notice of the defective condition. Thus, the trial court properly held that the townships were not immune from suit based on the governmental immunity doctrine because the plaintiffs demonstrated the existence of a failure to repair or maintain under the public building exception to the doctrine. Plaintiffs were injured when the I-beam was dislodged and fell on them. Before 2003, a roof overhang awning above the main entrance was supported by wood columns. However, in 2003 the husband of the Learning Center's then director brought a steel I-beam configuration to the building. The I-beam configuration was only secured via downward compression of the existing roof overhang - there was nothing externally or internally securing it to the building or the concrete slab on which it sat. No one had any inspectors examine the installation to determine if it was up to code or passed safety regulations. At some point after it was installed, a volunteer (E) who did some maintenance projects at the Learning Center kicked the I-beam configuration or applied some force to it to determine if it was properly secured. E then spoke with one of the librarians and allegedly explained that he thought someone might be able to move the I-beam configuration or that it seemed loose. The defendants did not take any action after E allegedly voiced his concern. The plaintiffs and other children went to the Learning Center at about 8 PM to stand under the roof overhang and wait for the mother of one of the children. A child started swinging or twisting around the steel pole portion of the I-beam configuration, and then leaned up against it. The I-beam configuration began to dislodge and fall. As it fell, it pushed plaintiff-Tellin down onto the ground. She allegedly broke her hand. The other plaintiff fractured his arm when the I-beam configuration fell on him. The library was closed for the day at the time. However, the Learning Center had a 24-hour book depository drop located under the roof overhang area where the I-beam configuration stood. There was a "No Loitering" sign. The court concluded, inter alia, that this case was distinguishable from Renny because the initial conception of the building's structure did not change. Even after the I-beam configuration collapsed, the existing roof overhang remained fully functional and intact. Thus, "the installation of the I-beam configuration was a preventive measure to supplement and coincide with the existing structure rather than a redesign of the roof overhang. Any defective condition was not from the I-beam's inherent characteristics but from the Townships' failure to properly maintain the stability of this I-beam configuration." Once it was installed, they had a continuing duty to maintain and repair it if it became damaged, loose, or unstable. They "could have remedied this condition had they performed regular maintenance to test the stability of the I-beam structure, which would likely have disclosed any instability." Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Governmental immunity; Pierce v. Lansing; Fane v. Detroit Library Comm'n; The "public building" exception (MCL 691.1406); Kerbersky v. Northern MI Univ.; Whether the I-beam configuration was a "defective condition"; "Defective design" or "failure to maintain"; Renny v. Department of Transp.; Collins v. Oakland County Cmty. Coll. (Unpub.); Whether the building was open for use by the public; Maskery v. University of MI Bd. of Regents; "Loitering";Whether the defendants had actual or "constructive" notice of the alleged defect; Ali v. Detroit; Statutory interpretation; People v. Libbett

Court: Michigan Court of Appeals (Published After Release)

Case Name: Tellin v. Forsyth Twp.

e-Journal Number: 48316

Judge(s): Per Curiam - Sawyer, Whitbeck, and Wilder

 

[This opinion was previously released as an unpublished opinion on 1/25/11.] The trial court properly denied the defendants-townships' summary disposition motion, concluding that the plaintiffs-children's injuries from the I-beam configuration under the roof overhang arose from a failure to repair or maintain and not a design defect. The court also held that the trial court did not err in determining that the building (a "Learning Center") was open for use by the public, and that the defendants had sufficient notice of the defective condition. Thus, the trial court properly held that the townships were not immune from suit based on the governmental immunity doctrine because the plaintiffs demonstrated the existence of a failure to repair or maintain under the public building exception to the doctrine. Plaintiffs were injured when the I-beam was dislodged and fell on them. Before 2003, a roof overhang awning above the main entrance was supported by wood columns. However, in 2003 the husband of the Learning Center's then director brought a steel I-beam configuration to the building. The I-beam configuration was only secured via downward compression of the existing roof overhang - there was nothing externally or internally securing it to the building or the concrete slab on which it sat. No one had any inspectors examine the installation to determine if it was up to code or passed safety regulations. At some point after it was installed, a volunteer (E) who did some maintenance projects at the Learning Center kicked the I-beam configuration or applied some force to it to determine if it was properly secured. E then spoke with one of the librarians and allegedly explained that he thought someone might be able to move the I-beam configuration or that it seemed loose. The defendants did not take any action after E allegedly voiced his concern. The plaintiffs and other children went to the Learning Center at about 8 PM to stand under the roof overhang and wait for the mother of one of the children. A child started swinging or twisting around the steel pole portion of the I-beam configuration, and then leaned up against it. The I-beam configuration began to dislodge and fall. As it fell, it pushed plaintiff-Tellin down onto the ground. She allegedly broke her hand. The other plaintiff fractured his arm when the I-beam configuration fell on him. The library was closed for the day at the time. However, the Learning Center had a 24-hour book depository drop located under the roof overhang area where the I-beam configuration stood. There was a "No Loitering" sign. The court concluded, inter alia, that this case was distinguishable from Renny because the initial conception of the building's structure did not change. Even after the I-beam configuration collapsed, the existing roof overhang remained fully functional and intact. Thus, "the installation of the I-beam configuration was a preventive measure to supplement and coincide with the existing structure rather than a redesign of the roof overhang. Any defective condition was not from the I-beam's inherent characteristics but from the Townships' failure to properly maintain the stability of this I-beam configuration." Once it was installed, they had a continuing duty to maintain and repair it if it became damaged, loose, or unstable. They "could have remedied this condition had they performed regular maintenance to test the stability of the I-beam structure, which would likely have disclosed any instability." Affirmed.

 

Issues: Premises liability; Slip and fall; Whether genuine issues of material fact existed as to whether the alleged dangerous condition was "open and obvious"; Latham v. Barton Malow Co.; Rose v. National Auction Group, Inc.; Lugo v. Ameritech Corp.; Riddle v. McLouth Steel Prods. Corp.; Eason v. Coggins Mem'l Christian Methodist Episcopal Church; Bertrand v. Alan Ford, Inc.; Corey v. Davenport Coll. of Bus.; Whether genuine issues of material fact existed as to whether the concrete slab, as well as the sloped, muddy surface below, was free of any special aspect

Court: Michigan Court of Appeals (Unpublished)

Case Name: Green v. Tryko Holdings, L.L.C.

e-Journal Number: 48258

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

 

The court held that the trial court properly granted summary disposition in favor of the defendants, owners of the apartment complex at issue, in this action involving a slip and fall accident because no genuine issue of material fact existed as to whether the alleged dangerous condition was open and obvious. The alleged dangerous condition in this case was a concrete slab with a 16-inch drop onto a sloped and mud-covered surface, located on the grounds of defendants' apartment complex. Plaintiff slipped on the mud-covered surface after stepping off the concrete slab, fracturing his right ankle and breaking his right leg. The parties did not dispute that plaintiff was an invitee at the time of incident. The court held that as to steps and differing floor levels, the danger of tripping and falling is generally an open and obvious one, and injuries resulting therefrom are ordinarily not actionable absent special aspects of the condition that make the risk of harm unreasonable. Thus, the concrete slab and the step to the ground presented a typical open and obvious danger. Plaintiffs primarily argued that the step could not be considered open and obvious because plaintiff and his brother, C, could not perceive the depth of the drop or the sloped surface immediately below it from their vantage point. However, "it is important for courts in deciding summary disposition motions by premises possessors in ‘open and obvious' cases to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff." Thus, the fact that, subjectively, plaintiff and C failed to adequately perceive the danger was irrelevant to the inquiry whether an average user of ordinary intelligence would have discovered the danger upon casual inspection. Also, plaintiff did not casually inspect the ground below the step immediately before stepping. Rather, plaintiff stepped off the cement slab expecting that the step was of average height. Viewing the evidence in the light most favorable to plaintiffs, plaintiff knew that it was dark and raining, and that the surface below the cement slab was muddy. Under such circumstances, an average user of ordinary intelligence would have looked before stepping, and would have perceived the depth of the drop, as well as the sloped surface below. Affirmed.

 

This summary also appears under Litigation

 

Issues: Premises liability; Slip-and-fall on ice; Timeliness of the plaintiff's response to the defendant's motion for summary disposition; MCR 2.116(G)(1)(a)(ii); Spiek v. Department of Transp.; Maiden v. Rozwood; Motion for reconsideration; Churchman v. Rickerson; Radeljak v. Daimler-Chrysler Corp.; EDI Holdings LLC v. Lear Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Luke v. Valley Ranch Apts., LLC

e-Journal Number: 48252

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

 

The court held in this premises liability case that the trial court properly granted the defendant's motion for summary disposition based on MCR 2.116(G)(1)(a)(ii). The lawsuit concerned plaintiff's slip-and-fall on ice in defendant's parking lot. After plaintiff filed her complaint, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10) on October 16, 2009. The motion hearing was scheduled for October 30, 2009. Pursuant to MCR 2.116(G)(1)(a)(ii), when a party has moved for summary disposition and the court has scheduled a hearing, "any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing." Accordingly, plaintiff was required to file and serve her response by Friday, October 23, 2009. She mailed her response to both defense counsel and the trial court via U.S. Postal Service Express mail on October 22, 2009. Defense counsel received the overnight delivery by the next day and thus, service to counsel was timely. The mailing to the trial court was addressed - "101 E. Huron Street, PO Box 8645, Ann Arbor, MI 48107-8645." It was delivered to the post office box on October 23rd at 9:31 AM. However, court personnel had already picked up mail from the box that day. Court personnel signed for the response at 7:59 AM on Monday, October 26, 2009, and the trial court did not receive and stamp the response until after 2:00 PM that day. Because plaintiff did not timely file any substantively admissible evidence to refute defendant's motion, the trial court granted defendant's motion. Plaintiff moved for reconsideration and argued that she was unaware of the post office policy to hold mail requiring a signature at the post office, rather than deliver it directly to the court. She asserted that because she timely served defense counsel, and because her response was waiting in the court's post office box on Friday, October 23, 2009, the trial court erred. The court held that the trial court's application of the rule as written was not an abuse of discretion. Further, the trial court did not grant defendant's motion simply because plaintiff's response was late. Rather, because plaintiff's response was late, the trial court did not consider her brief and its attachments when it decided the motion. Plaintiff did not produce any other evidence to support her response, so there was nothing to refute the weather reports and deposition evidence defendant submitted to the trial court. This lack of substantive evidence in support of plaintiff's claims formed the basis for the grant of defendant's motion, and this was a proper basis for granting defendant's motion. Plaintiff's argument that the trial court should have considered her late filing was not based on the language of the court rule. The response was not filed on time and the court declined to hold that "received at the post office box" is equivalent to "filed." Nor was there an express exception in the court rule for a good-faith effort. Counsel should have realized that the response was mailed to the post office, and not to the court itself. Counsel could have called the court to discover when it would pick up the mail, or called at some point Friday afternoon to see if it had been received, but failed to do so. Affirmed.

 

Probate

 

This summary also appears under Litigation

 

Issues: Dispute as to whether certain property belonged in the decedent's estate; Jurisdictional challenge - whether the appeal was timely filed; Smith v. Smith; MCR 7.204(A)(1)(a) and (b); Whether the opinion at issue satisfied MCR 5.162; Haynes v. Neshewat; Whether the appellee-Merlin Moon (the decedent's father) had standing to object to the inventory of the estate; In re Foster; Bowie v. Arder; "Interested person"; MCL 700.1105(c); Discovery sanctions; Maldonado v. Ford Motor Co.; The "Dead Man's" Statute; MCL 600.2166; MRE 601; McDougall v. Schanz; James v. Dixon; In re Backofen; Whether federal decisions are binding on the court; Allen v. Bloomfield Hills Sch. Dist.; Whether the probate court correctly found a partnership existed between appellee and the decedent; Miller v. City Bank & Trust Co., NA; MCR 2.613(C); In re Mason; Fletcher v. Fletcher; Applicability of Lobato v. Paulino; Byker v. Mannes; Indicia of a partnership; MCL 449.7(4)(b); Michigan Employment Sec. Comm'n v. Crane; MCL 449.7; Whether the probate court may have violated appellant-Kristina Moon's procedural due process rights by raising an issue sua sponte; Al-Maliki v. LaGrant

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Moon Estate

e-Journal Number: 48004

Judge(s): Per Curiam - Markey, Wilder, and Stephens

 

The court held, inter alia, that it had jurisdiction to hear this case under MCR 7.204(A)(1)(b), appellee-Merlin Moon (the decedent's father) had standing to object to the estate inventory because his alleged ownership interest in the estate property was a real, legally protected interest that could be affected by the probate process, and the trial court properly found that a partnership existed between the decedent and the appellee and the appellee had a 50% ownership interest in several items listed in the estate inventory. Thus, the court afffirmed. The appellant (PR) contended on appeal that the evidence did not support the probate court's finding that a partnership existed between the appellee and the decedent. The court noted that the key was whether the parties associated themselves to run a business for profit as co-owners. Other indicia of a partnership include mutual agency and joint liability, a common interest in the capital used in the business, and sharing of profits and losses. The record provided strong support for the conclusion that most of the indicia were present here. The probate court found that the appellee prepared the land for the new barn and made a deal with some Amish workers to have them erect it, while decedent provided the materials. Decedent purchased a tractor, but appellee purchased the parts and did the necessary repairs himself. This pattern was repeated with other equipment. Appellee also contracted to have one of the fields sprayed with pesticide. Decedent paid rent for one of appellee's parcels which was used to grow crops, but did not pay rent for the barns or pasturage. Decedent did the milking, but appellee did the plowing and chopping. The record supported the probate court's findings on all of these points, and appellant did not did not object to any of the specific factual findings. The facts clearly showed that decedent and appellee each provided substantial capital and labor to the farming operation, by purchasing parts or equipment and working on the farm. The fact that appellee contracted with workers to build a barn for the cows and also to have a field sprayed showed that he had joint authority over the farming operation with his son. The probate court correctly found a partnership existed based on these facts.

 

Real Property

 

This summary also appears under Wills & Trusts

 

Issues: Whether the probate court properly determined that the decedent (B) intended to convey the disputed property to the trust; Standing; Manuel v. Gill; Federated Ins. Co. v. Oakland County Rd. Comm'n; MOSES, Inc. v. Southeastern MI Council of Gov'ts; Whether the probate court properly considered parol evidence; Lewis v. LeGrow; Universal Underwriters Inc. v. Kneeland; Scott v. Grow; Whether the probate court properly made its factual determinations; Living Alternatives for the Developmentally Disabled, Inc. v. Department of Mental Health; Whether the probate court correctly found that the deed was not delivered or accepted; Ligon v. Detroit; Energetics, Ltd. v. Whitmill; Gibson v. Dymon; Finstrom v. Baldwin; Creller v. Baer; Consideration of the parties' subsequent conduct; Tighe v. Davis; Whether the probate court properly considered the fact that the appellant did not pay any consideration for the disputed deed; The race-notice statute (MCL 565.29); Richards v. Tibaldi; A "mutual mistake of fact"; Ford Motor Co. v. City of Woodhaven; "Unclean hands"; "Adverse possession"; Beach v. Lima Twp.; "Disappointed beneficiaries"; Karam v. Law Offices of Ralph J Kliber

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Buchinger Revocable Living Trust

e-Journal Number: 48156

Judge(s): Per Curiam – Whitbeck, O’Connell, and Wilder

 

The court held that the probate court properly issued an order to reform a deed based on the probate court's prior determination that the disputed deed was the result of a mutual mistake and that the property at issue was a trust asset. The dispute involved the determination of the rightful ownership of a parcel of residential property located on a lake. Until 2001, the lake property belonged to the decedent (B), the parties' mother. B also owned two vacant lots in a platted subdivision. In 2001, the appellee-trustee assisted B in preparing estate planning documents, including a trust and two deeds purporting to transfer B's real property to the trust. Neither deed was recorded at that time. In early December 2002, the first trust was replaced with one drafted by attorney R. R met with B and the parties to discuss the terms of the second trust and to execute the necessary documents. It was undisputed that B indicated her intention that the lake property be transferred to the trust. It was also undisputed B intended to transfer the subdivision property to appellant. However, the deed prepared by R purporting to transfer property from B individually to herself and appellant as joint tenants with rights of survivorship contained the legal description corresponding to the lake property. This deed (the "disputed deed") was recorded on December 26, 2002. B died on December 31, 2002. The discrepancy in the deed was discovered after B died. When appellee notified R of the problem with the deed, R prepared another deed. In the second deed, he indicated that a scrivener's error had occurred, and he corrected the legal description to indicate that the deed conveyed the subdivision lots. The corrected deed was recorded with the Register of Deeds on January 31, 2003. On that same day, the deed that had been drafted by appellee and executed by B on December 5, 2001, which purported to transfer the lake property from B to the first trust, was also recorded. Appellee executed a transfer of ownership affidavit indicating that the lake property had been transferred to the trust, and appellant executed a transfer of ownership affidavit indicating that the subdivision lots had been transferred to him. In 2006, appellant moved into the lake property on a full-time basis. He learned of the existence of the disputed deed, as well as the subsequent, corrected deed, in 2008 and took the position that he was the rightful owner of the lake property. Appellant argued the probate clearly erred in its factual determinations that B intended to transfer the disputed property to the trust, rather than to him, and that the disputed deed was never delivered or accepted. The court noted that appellant conceded in his testimony that B expressed her intent at the December 2002 meeting to transfer the property to the trust and that she never relayed a different intent between the time of the meeting and when she died. The court also concluded that the evidence established that appellant was not given a copy of the deed after it was executed. "More telling" was the fact that he treated the lake property as a trust asset for several years after B's death. In fact, appellant first learned of the deed's existence at the same time he learned of the scrivener's error deed that was subsequently recorded. "In light of this evidence, the trial court did not err in finding that acceptance, and therefore delivery, had not occurred." Affirmed.

 

Tax

 

Issues: The General Property Tax Act (GPTA)(MCL 211.1 et seq.); Whether a "conveyance" as that term is used in MCL 211.27a(3) must be by means of a written instrument; Michigan Bell Tel. Co. v. Department of Treasury; Brown v. Detroit Mayor; Sun Valley Foods Co. v. Ward; People v. Jackson; Proposal A amending article 9, § 3 of the Michigan Constitution; Toll Northville Ltd. v. Northville Twp.; The "joint-tenancy" exception; The "transfer of ownership" and "uncapping event"; The "original owner of the property"; The "conveyance at issue"; The "original-ownership requirement" and the "continuous-tenancy requirement"; Albro v. Allen; Oakland County Bd. of County Rd. Comm'rs v. Michigan Prop. & Cas. Guar. Ass'n; McMurtry v. Smith; Whether under MCL 211.27a(7)(h) the petitioner's property was uncapped for purposes of property-tax reassessment by either the death of the other joint tenant in January 2005 or the creation of a subsequent joint tenancy in September 2005; "When"; Preservation of the September 2005 conveyance as a possible uncapping event; Prudential Ins. Co. of Am. v. Cusick; Peterman v. Department of Natural Res.; Mulholland v. DEC Int'l Corp.; How MCL 211.27a(7)(h) would apply to the creation of a successive joint tenancy

Court: Michigan Supreme Court

Case Name: Klooster v. City of Charlevoix

e-Journal Number: 48314

Judge(s): Cavanagh, Young, Jr., M. Kelly, Markman, Hathaway, M.B. Kelly, and Zahra

 

The court held that a "conveyance" for purposes of MCL 211.27a does not require a written instrument and that while the January 2005 termination of the joint tenancy caused by the death of a cotenant was within the joint-tenancy exception created by MCL 211.27a(7)(h) and was not a transfer of ownership that uncapped the property value, the September 2005 conveyance from the petitioner to himself and his brother as joint tenants did uncap the property value, because the conveyance did not fall within the joint-tenancy exception. Thus, the court reversed the judgment of the Court of Appeals and held that the respondent-city properly issued its 2006 notice of reassessment and that the Tax Tribunal reached the correct result, albeit for the wrong reason. In 1959, James and Dona Klooster acquired title to the property and held it as tenants by the entirety. On August 11, 2004, Dona quitclaimed her interest in the property to James, leaving James as the sole owner. On that same day, James quitclaimed the property to himself and his son, petitioner, as joint tenants with rights of survivorship. On January 11, 2005, James died, leaving petitioner as the sole property owner by operation of law. On September 10, 2005, petitioner quitclaimed the property to himself and his brother, Charles, as joint tenants with rights of survivorship. In 2006, the city assessor issued petitioner and Charles a notice of assessment, taxable valuation, and property classification, indicating that, because of a transfer of ownership, the property's taxable value had been reassessed using the TCV of the property. The notice did not state whether the termination of the joint tenancy caused by James's death in January 2005 or the September 2005 creation of the joint tenancy between petitioner and Charles constituted the transfer of ownership. As a result of the reassessment, the taxable value of petitioner's property increased from $37,802 to $72,300. The parties agreed that the August 2004 conveyance from James to himself and petitioner as joint tenants with rights of survivorship was not an uncapping event because MCL 211.27a(7)(h) excludes such conveyances from the definition of "transfer of ownership." Because James did not hold the property in a joint tenancy before creating the joint tenancy with petitioner, the continuous-tenancy requirement of MCL 211.27a(7)(h) was inapplicable. Under the original-ownership requirement of MCL 211.27a(7)(h), James "was an original owner of the property before the [August 2004] joint tenancy was initially created." When James died in January 2005, the joint tenancy terminated by operation of law, vesting petitioner with sole ownership. The Court of Appeals held that the vesting of sole ownership was not a conveyance because there was no written instrument. The court held that this was error. The interest that passes to the last survivor in a joint tenancy is likewise a conveyance under the GPTA. In holding that there was no conveyance absent a writing, the Court of Appeals erred by relying on the act-specific definitions of a "conveyance" in MCL 565.35 and in McMurtry. The plain text of MCL 211.27a indicates that the Legislature did not intend that conveyances must be effected by means of a written instrument for purposes of the GPTA. Thus, the court held that the vesting of a fee simple in the last surviving cotenant of a joint tenancy with rights of survivorship is a "conveyance" for purposes of the GPTA and requires no additional writing beyond that which created the joint tenancy. As to conveyances under the GPTA, the court held that as applied to terminations of joint tenancies, the plain text of MCL 211.27a(7)(h) does not apply only to successive joint tenancies. Thus, the court could apply the joint-tenancy exception to the January 2005 conveyance. The court held that the January 2005 conveyance did not uncap the property valuation. However, since petitioner was not an original owner of the property before he initially created the joint tenancy with Charles, the September 2005 conveyance did not satisfy the joint-tenancy exception of MCL 211.27a(7)(h). Thus, that conveyance was a transfer of ownership that uncapped the property valuation.

 

Wills & Trusts

This summary also appears under Real Property

 

Issues: Whether the probate court properly determined that the decedent (B) intended to convey the disputed property to the trust; Standing; Manuel v. Gill; Federated Ins. Co. v. Oakland County Rd. Comm'n; MOSES, Inc. v. Southeastern MI Council of Gov'ts; Whether the probate court properly considered parol evidence; Lewis v. LeGrow; Universal Underwriters Inc. v. Kneeland; Scott v. Grow; Whether the probate court properly made its factual determinations; Living Alternatives for the Developmentally Disabled, Inc. v. Department of Mental Health; Whether the probate court correctly found that the deed was not delivered or accepted; Ligon v. Detroit; Energetics, Ltd. v. Whitmill; Gibson v. Dymon; Finstrom v. Baldwin; Creller v. Baer; Consideration of the parties' subsequent conduct; Tighe v. Davis; Whether the probate court properly considered the fact that the appellant did not pay any consideration for the disputed deed; The race-notice statute (MCL 565.29); Richards v. Tibaldi; A "mutual mistake of fact"; Ford Motor Co. v. City of Woodhaven; "Unclean hands"; "Adverse possession"; Beach v. Lima Twp.; "Disappointed beneficiaries"; Karam v. Law Offices of Ralph J Kliber

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Buchinger Revocable Living Trust

e-Journal Number: 48156

Judge(s): Per Curiam – Whitbeck, O’Connell, and Wilder

 

The court held that the probate court properly issued an order to reform a deed based on the probate court's prior determination that the disputed deed was the result of a mutual mistake and that the property at issue was a trust asset. The dispute involved the determination of the rightful ownership of a parcel of residential property located on a lake. Until 2001, the lake property belonged to the decedent (B), the parties' mother. B also owned two vacant lots in a platted subdivision. In 2001, the appellee-trustee assisted B in preparing estate planning documents, including a trust and two deeds purporting to transfer B's real property to the trust. Neither deed was recorded at that time. In early December 2002, the first trust was replaced with one drafted by attorney R. R met with B and the parties to discuss the terms of the second trust and to execute the necessary documents. It was undisputed that B indicated her intention that the lake property be transferred to the trust. It was also undisputed B intended to transfer the subdivision property to appellant. However, the deed prepared by R purporting to transfer property from B individually to herself and appellant as joint tenants with rights of survivorship contained the legal description corresponding to the lake property. This deed (the "disputed deed") was recorded on December 26, 2002. B died on December 31, 2002. The discrepancy in the deed was discovered after B died. When appellee notified R of the problem with the deed, R prepared another deed. In the second deed, he indicated that a scrivener's error had occurred, and he corrected the legal description to indicate that the deed conveyed the subdivision lots. The corrected deed was recorded with the Register of Deeds on January 31, 2003. On that same day, the deed that had been drafted by appellee and executed by B on December 5, 2001, which purported to transfer the lake property from B to the first trust, was also recorded. Appellee executed a transfer of ownership affidavit indicating that the lake property had been transferred to the trust, and appellant executed a transfer of ownership affidavit indicating that the subdivision lots had been transferred to him. In 2006, appellant moved into the lake property on a full-time basis. He learned of the existence of the disputed deed, as well as the subsequent, corrected deed, in 2008 and took the position that he was the rightful owner of the lake property. Appellant argued the probate clearly erred in its factual determinations that B intended to transfer the disputed property to the trust, rather than to him, and that the disputed deed was never delivered or accepted. The court noted that appellant conceded in his testimony that B expressed her intent at the December 2002 meeting to transfer the property to the trust and that she never relayed a different intent between the time of the meeting and when she died. The court also concluded that the evidence established that appellant was not given a copy of the deed after it was executed. "More telling" was the fact that he treated the lake property as a trust asset for several years after B's death. In fact, appellant first learned of the deed's existence at the same time he learned of the scrivener's error deed that was subsequently recorded. "In light of this evidence, the trial court did not err in finding that acceptance, and therefore delivery, had not occurred." Affirmed.

 

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