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State Bar of Michigan

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Thursday, April 1, 2004
Case Summaries

Including summaries of two Michigan Supreme Court opinions, three Michigan Court of Appeals published opinions, and four Sixth Circuit Court of Appeals opinions in the following practice areas: Attorneys, Business Law, Contracts, Criminal Law, Litigation, Negligence & Intentional Tort, Product Liability, and Real Property.

Case Summaries

Administrative Law
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This summary also appears under Constitutional Law

Issues: Whether MCL 436.1205(3) of the Michigan Liquor Control Code (MLCC) violates the Equal Protection Clause and the Commerce Clause; Authorized distribution agent (ADA)
Court: Michigan Court of Appeals (Unpublished)
Case Name: National Wine & Spirits, Inc. v. State of Michigan
e-Journal Number: 22598
Judge(s): Per Curiam - Kelly, Murphy, and Neff

The trial court properly granted summary disposition to defendant and dismissed plaintiffs' claim 1205(3) of the MLCC violates the Equal Protection Clause and the Commerce Clause. Plaintiffs alleged defendant, knowing NWS was the largest ADA in Michigan and owned by National Inc., enacted 1205(3) prohibiting an ADA licensed as a wine wholesaler after September 24, 1996, from "dualing" (selling a brand of wine in an area in which another wine wholesaler has already been licensed to sell that brand). It also alleged on September 24, 1996, only in-state companies were licensed as wine wholesalers. Therefore, the statute effectively prohibited all out-of-state companies from serving both as an ADA of spirits and a licensed wholesaler of wine in the state. Plaintiff claimed the statute violated the Equal Protection Clause because it created two classes of ADAs and the classification was not rationally related to any legitimate government purpose, and the statute violated the Commerce Clause because it precluded ADA/wholesalers from dualing if they did not do so before the statute was enacted (prior to that date no out-of-state ADAs were licensed to wholesale wine in the state). The court concluded the statutory classification based on date was rationally related to defendant's purpose and did not violate the Equal Protection Clause. Further, the statute does not discriminate against out-of-state economic interests and regulates even handedly with only incidental effects on interstate commerce. Thus, there was no violation of the Commerce Clause. Affirmed.

Full Text Opinion

Attorneys
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This summary also appears under Negligence & Intentional Tort

Issues: Whether plaintiff-personal representative engaged in the unauthorized practice of law when he brought a wrongful death action without employing an attorney; The Wrongful Death Act (MCL 600.2922); MCR 2.201
Court: Michigan Court of Appeals (Published)
Case Name: Shenkman v. Bragman
e-Journal Number: 22627
Judge(s): Bandstra, Sawyer, and Saad

In an issue of first impression, on remand from the Supreme Court, the court held plaintiff, the personal representative of his grandfather's estate, engaged in the unauthorized practice of law when he brought this wrongful death action without employing an attorney to do so and the trial court properly dismissed his complaint. Plaintiff's argument, which relied heavily on language in the wrongful death statute indicating such an action "shall be brought by, and in the name of, the personal representative," was premised on his constitutional right as a non-lawyer to represent himself "in his own proper person." However, a personal representative is a separate entity from the estate served and the estate, not the personal representative, remains the "real party in interest.for whose benefit" a wrongful death action is brought. Under the wrongful death statute, plaintiff was not the true plaintiff in this case - the estate was. Therefore, plaintiff was not representing himself in this case, he was representing a client, the estate, and therefore, he was engaged in the unauthorized practice of law. Affirmed.

Full Text Opinion

Business Law
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This summary also appears under Contracts

Issues: Whether plaintiff's former employee acted with apparent authority; Kaunitz v. Wheeler; Whether there was an account stated; Ratification; Whether plaintiff admitted its liability through the testimony of its employee; Agency relationship; Conversion
Court: Michigan Court of Appeals (Published)
Case Name: Echelon Homes, L.L.C. v. Carter Lumber Co.
e-Journal Number: 22625
Judge(s): Per Curiam - Hoekstra, Sawyer, and Gage

The trial court did not err in denying the defendant-counterplaintiff-Carter's motion for summary disposition on its counterclaim. Plaintiff-counterdefendant-Echelon discovered Wood, its former employee, had engaged in a scheme with several of her family members to embezzle from plaintiff by fraudulently obtaining credit accounts with several vendors, including defendant, and then using those accounts for their own personal use, including purchasing building supplies for Wood's residence. Defendant claimed the trial court ignored unrebutted evidence Wood was plaintiff's agent with the apparent authority to open a credit account and plaintiff was therefore bound by her actions and was liable for the balance due on the account. Even when viewed in the light most favorable to defendant, the evidence showed plaintiff did not grant Wood the apparent authority to open a credit account. Because Wood did not have the authority to act on plaintiff's behalf in this matter, no binding agreement existed between plaintiff and defendant. Under Kaunitz, there can be no account stated because plaintiff never assented to the creation of the account. Therefore, plaintiff was not liable for the outstanding balance. Affirmed in part, reversed in part, and remanded.

Full Text Opinion

Civil Rights
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This summary also appears under Employment & Labor Law

Issues: Claim for national origin and age discrimination; Denial of promotion; Statute of limitations; Constructive discharge
Court: U.S. District Court Western District of Michigan
Case Name: Dimas v. Michigan Dep't of Civil Rights
e-Journal Number: 22585
Judge(s): Quist

The court granted defendant's motion for summary judgment because while plaintiff presented sufficient evidence to establish a prima facie case of discrimination, he could not show defendant's legitimate, nondiscrimatory reason for not promoting him was a pretext. Plaintiff claimed defendant denied him a promotion based on his national origin and age. Defendant offered evidence showing it selected another individual for the position because it determined the individual was more qualified than plaintiff. In addition to showing the interviewing panel gave the selected person higher marks than plaintiff, defendant presented performance evaluations for the selected person and plaintiff, which showed the selected person was more proficient in a computer system through which all information relating to contacts and complaints made to the defendant was tracked, and knowledge of this system was an important aspect of the position. Plaintiff failed to produce evidence showing defendant's explanation was pretext. The court also ruled plaintiff failed to produce sufficient evidence to support a constructive discharge claim.

Full Text Opinion

Constitutional Law
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This summary also appears under Administrative Law

Issues: Whether MCL 436.1205(3) of the Michigan Liquor Control Code (MLCC) violates the Equal Protection Clause and the Commerce Clause; Authorized distribution agent (ADA)
Court: Michigan Court of Appeals (Unpublished)
Case Name: National Wine & Spirits, Inc. v. State of Michigan
e-Journal Number: 22598
Judge(s): Per Curiam - Kelly, Murphy, and Neff

The trial court properly granted summary disposition to defendant and dismissed plaintiffs' claim 1205(3) of the MLCC violates the Equal Protection Clause and the Commerce Clause. Plaintiffs alleged defendant, knowing NWS was the largest ADA in Michigan and owned by National Inc., enacted 1205(3) prohibiting an ADA licensed as a wine wholesaler after September 24, 1996, from "dualing" (selling a brand of wine in an area in which another wine wholesaler has already been licensed to sell that brand). It also alleged on September 24, 1996, only in-state companies were licensed as wine wholesalers. Therefore, the statute effectively prohibited all out-of-state companies from serving both as an ADA of spirits and a licensed wholesaler of wine in the state. Plaintiff claimed the statute violated the Equal Protection Clause because it created two classes of ADAs and the classification was not rationally related to any legitimate government purpose, and the statute violated the Commerce Clause because it precluded ADA/wholesalers from dualing if they did not do so before the statute was enacted (prior to that date no out-of-state ADAs were licensed to wholesale wine in the state). The court concluded the statutory classification based on date was rationally related to defendant's purpose and did not violate the Equal Protection Clause. Further, the statute does not discriminate against out-of-state economic interests and regulates even handedly with only incidental effects on interstate commerce. Thus, there was no violation of the Commerce Clause. Affirmed.

Full Text Opinion

Contracts
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This summary also appears under Business Law

Issues: Whether plaintiff's former employee acted with apparent authority; Kaunitz v. Wheeler; Whether there was an account stated; Ratification; Whether plaintiff admitted its liability through the testimony of its employee; Agency relationship; Conversion
Court: Michigan Court of Appeals (Published)
Case Name: Echelon Homes, L.L.C. v. Carter Lumber Co.
e-Journal Number: 22625
Judge(s): Per Curiam - Hoekstra, Sawyer, and Gage

The trial court did not err in denying the defendant-counterplaintiff-Carter's motion for summary disposition on its counterclaim. Plaintiff-counterdefendant-Echelon discovered Wood, its former employee, had engaged in a scheme with several of her family members to embezzle from plaintiff by fraudulently obtaining credit accounts with several vendors, including defendant, and then using those accounts for their own personal use, including purchasing building supplies for Wood's residence. Defendant claimed the trial court ignored unrebutted evidence Wood was plaintiff's agent with the apparent authority to open a credit account and plaintiff was therefore bound by her actions and was liable for the balance due on the account. Even when viewed in the light most favorable to defendant, the evidence showed plaintiff did not grant Wood the apparent authority to open a credit account. Because Wood did not have the authority to act on plaintiff's behalf in this matter, no binding agreement existed between plaintiff and defendant. Under Kaunitz, there can be no account stated because plaintiff never assented to the creation of the account. Therefore, plaintiff was not liable for the outstanding balance. Affirmed in part, reversed in part, and remanded.

Full Text Opinion

This summary also appears under Real Property

Issues: Dispute over the language in master deeds and a membership plan creating mutual obligations for the defendants-developers and the plaintiffs-owners of various condominiums in the resort area; Whether continued membership in a newly organized yacht club was mandatory
Court: Michigan Court of Appeals (Unpublished)
Case Name: Brusher v. Bay Harbor Yacht Club
e-Journal Number: 22564
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

Since the transfer agreement could not modify plaintiffs' contracted ability to opt out of membership when the club was transferred from the Company to the members, the trial court did not err when it held plaintiffs were not required to become and remain members of the new membership-owned "Equity Yacht Club." The master deeds for the property provided the resort's developer, defendant-Bay Harbor Company, originally intended to build the clubhouse and add facilities to the yacht club, charging members for dues, assessments, and large initiation fees as the club grew, but leaving equity ownership of the club with the condominium owners who became club members. Membership was mandatory for early condominium units, but this obligation was conditioned on the availability of an equity ownership in the club. However, the membership plan in force when plaintiffs joined the club changed several aspects of the agreement found in the first set of deeds. There was a long-term plan for transferring ownership and control of the club from the Company to the members in April 2006 or when the Company recouped $4.5 million in initiation fees. At that point, a new Equity Club would be established and the company-owned club would be dissolved. Sixty percent of club members voted for an early transfer agreement. Plaintiffs argued the plan allowed them to opt out of membership in the new Equity Club so it cannot require them to transfer their membership from the old club to the new club and pay added dues and assessments. The court held the plain language of the contract was unambiguous and allowed members of the old club, such as plaintiffs, to opt out of membership in the new club by refraining from buying stock in the membership-owned corporation. Affirmed.

Full Text Opinion

This summary also appears under Litigation

Issues: Whether the trial court erroneously calculated plaintiff's damage award; Whether the trial court improperly denied defendant's motion for involuntary dismissal under MCR 2.504(B); Whether the trial court abused its discretion in failing to enforce court ordered discovery
Court: Michigan Court of Appeals (Unpublished)
Case Name: Dimer-ISG, Inc. v. DaimlerChrysler
e-Journal Number: 22599
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

The trial court properly calculated plaintiff's damages for lost profits and consequential damages in this case where the parties contracted for plaintiff to produce a particular car part for defendant, defendant twice breached the agreement resulting in plaintiff's loss of equipment purchased to produce the part, the parties subsequently entered into a settlement agreement, and the trial court ruled in favor of plaintiff in enforcing the settlement agreement. Plaintiff was awarded $347,433.20 in lost profits and $72,996.90 in consequential damages. After both parties moved for reconsideration, the trial court increased plaintiff's award for lost profits to $387,444.30 to remedy an error in calculation. The court held the trial court correctly determined plaintiff's lost profits were offset by fixed equipment costs because the loss of equipment was not a natural and contemplated result of defendant's breach, and defendant had acted in good faith. The trial court also properly increased plaintiff's damages for lost profits on reconsideration without including the unproven labor costs involved in the initial part approval process. Defendant was not entitled to involuntary dismissal of plaintiff's claims because the circumstances of the case did not meet the requirements of MCR 2.504(B). Further, the trial court did not abuse its discretion in failing to sanction defendant for alleged discovery abuses. Affirmed.

Full Text Opinion

Issues: Whether a contractual agreement between the parties obligated defendant to include plaintiff in defendant's bid for a public pay telephone concession; Extrinsic manifestations after the agreement's execution; Whether the contract was ambiguous; Genuine issues of material fact
Court: U.S. Court of Appeals Sixth Circuit
Case Name: NILAC Int'l Mktg. Group v. Ameritech Servs., Inc.
e-Journal Number: 22622
Judge(s): Rogers, Nelson, and Gilman

Concluding the parties' contract was at least ambiguous and plaintiff raised a genuine issue of material fact regarding whether the contract should be read in its favor, the court reversed summary judgment for defendant and remanded for further proceedings. Plaintiff asserted the parties' contract and defendant's extrinsic manifestations after the agreement's execution indicated mutual assent to include plaintiff as the prepaid calling card concessionaire in defendant's bid for the public pay telephone concession at Detroit Metropolitan Wayne County Airport. Defendant argued the agreement only provided for plaintiff's inclusion as the concessionaire in a contemporaneous separate bid for local-only telephone services. The court concluded plaintiff produced sufficient evidence for reasonable jurors to conclude by a preponderance of the evidence plaintiff was entitled to prevail on its breach of contract claim. Applying Michigan law, the court determined the agreement's operative language was ambiguous and plaintiff produced sufficient evidence to establish its understanding of the operative terms was the agreed-upon meaning of those terms. Further, plaintiff's extrinsic evidence raised material issues of fact regarding whether defendant breached its contractual obligations.

Full Text Opinion

Criminal Law
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Issues: Whether there was sufficient evidence to convict defendant of felony murder related to the death of a child; Whether there was probable cause to arrest defendant without a warrant; Whether the trial court should have suppressed defendant's statements to police
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Abner
e-Journal Number: 22591
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

The trial court's decision the defendant intentionally acted in wanton and willful disregard of the likelihood the natural tendency of his behavior was to cause death or great bodily harm and he knowingly and intentionally caused serious physical harm to the three-year old child was supported by the record. Defendant argued the trial court erred in finding defendant inflicted numerous brutal injuries on the child in his physical custody over a period of time. However, there was substantial evidence showing defendant inflicted several severe injuries on the child over time. Defendant had custody of the child for about four months until his death. During the time, the child suffered numerous scrapes and bruises and a large open wound on his head. Testimony showed the wound was allowed to expand from repeated trauma and/or neglect. Defendant admitted to causing the wound by hitting the child on the head with a belt buckle. The child also had welts on his back from the belt. The medical examiner testified the child died from multiple blows to his head and the blows were so forceful they caused the child's brain to be smashed against the inside of his skull to the degree the substance of his brain was actually injured. This was sufficient to satisfy the malice and specific intent requirements of felony murder and first-degree child abuse. Affirmed.

Full Text Opinion

Issues: Sufficiency of evidence to convict of possession with intent to deliver more than 225 but less than 650 grams of heroin; Prosecutorial misconduct; Denial of request to give an adverse inference jury instruction related to the original copy of the search warrant, the return, or list of drugs recovered (MCL 780.655); Procedural due process; Standing to challenge the search; Other acts evidence; Denial of motion to suppress the evidence; Sentencing
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Cook
e-Journal Number: 22594
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

There was sufficient evidence to convict defendant of possession with intent to deliver more than 225 but less than 650 grams of heroin, particularly the heroin found in the attic. Police received a tip regarding drug sales out of the home at a particular address. The day before the execution of the search warrant, defendant was observed exchanging foil packets with another person. The person proceeded to a storefront where he appeared to engage in drug transactions with other individuals. When police entered the home, they found defendant on the couch with a shotgun nearby. On a table in front of defendant 909 packets of heroin were found with scales, a cutting agent, a coffee grinder, and a sifter. These items indicated defendant was engaged in drug sales, not individual use. Also, defendant was found with more than $3,500 in cash. Bills addressed to an alias he used and men's clothing were discovered in a bedroom. Other guns, drugs, heroin, and cocaine were also found in this bedroom. The facts indicated defendant exercised dominion and control over the home. An officer testified defendant told him he lived in the home and there was no evidence anyone else lived there. It was reasonable for the jury to infer, based on the facts and circumstances, the defendant was in possession and control of the heroin found in the attic. Affirmed.

Full Text Opinion

Issues: Whether the trial court properly instructed the jury on the lesser offense of possession of 225 grams or more but less than 650 grams of cocaine; People v. Gridiron; Jury compromise; Prosecutorial misconduct
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Flie
e-Journal Number: 22595
Judge(s): Per Curiam - Zahra, Saad, and Schuette

The trial court did not err in instructing the jury on the lesser offense of possession of 225 grams of cocaine or more but less than 650 grams in this case where defendant was charged with possession with intent to deliver, but was convicted of possession of cocaine. Defendant argued, inter alia, the jury should not have been instructed on possession where the facts did not support the instruction, he did not have notice of the charge, and he should have been acquitted of the delivery charge rather than convicted of simple possession as a compromise. In Gridiron, the court held possession is a necessarily lesser included offense of possession with intent to deliver since one obviously cannot possess a controlled substance with the intent to deliver it without having also committed the offense of possession. Here, this was a lesser included offense, and defendant had sufficient notice. Moreover, the evidence supported the instruction. Defendant's identification, mail, and fingerprint were connected to the cocaine, which would have supported a finding he, as opposed to others at the residence, possessed it. Nothing in the record supported the assertion defendant was found guilty of possession as a compromise by the jury. Affirmed.

Full Text Opinion

Issues: Prosecutorial misconduct related to defendant's alleged use of an alias; People v. Messenger; Whether defendant's due process rights were violated by evidence of his use of an alias
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Hubbard
e-Journal Number: 22601
Judge(s): Memorandum - Zahra, Saad, and Schuette

Since the prosecutor's questioning of defendant about his use of an alias at the time of his arrest was relevant to his credibility, the questioning was not improper. Moreover, all witnesses to the offenses unequivocally identified defendant as the person who had tampered with the victim's car and the lock on the building. Thus, it was unlikely the outcome of the trial would have been different had the references to defendant's use of an alias been omitted. Affirmed.

Full Text Opinion

Issues: Whether the trial court erred in denying defendant's request to instruct the jury on involuntary manslaughter; People v. Mendoza; People v. Cornell
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Hyde
e-Journal Number: 22590
Judge(s): Per Curiam - Smolenski, Cooper, and Fort Hood

On remand from the Supreme Court for reconsideration in light of Mendoza, the court affirmed its previous ruling the trial court had correctly denied defendant's request to give the involuntary manslaughter jury instruction. The Supreme Court has found, contrary to prior case law, involuntary manslaughter is a necessarily included lesser offense of murder and is an inferior offense under MCL 768.32. All the elements of involuntary manslaughter are completely subsumed by the greater offense of murder as murder's greater mens rea includes the lesser. Although involuntary manslaughter is a necessarily included lesser offense of murder, a rational view of the evidence in this case did not support an instruction for that charge. Defendant's violent acts of aggression had a natural tendency to cause great bodily harm. The evidence showed a severe and prolonged beating caused the victim's death, not a single blow after an accidental fall. The evidence established defendant continued his assault even after the victim was unable to stand. Based on this evidence, an instruction for involuntary manslaughter was not warranted. Defendant's second-degree murder conviction was affirmed.

Full Text Opinion

Issues: Whether lineup procedures were unduly suggestive regarding defendants-Sanders and Sanford; People v. Kurylczyk; People v. Curtis; Whether defendant-Looper was identified on the basis of an illegal arrest necessitating suppression of the lineup identification
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Sanders
e-Journal Number: 22592
Judge(s): Per Curiam - Borrello, White, and Smolenski

Based on the totality of the circumstances, the court found the trial court clearly erred in finding the lineup procedures were unduly suggestive regarding defendants-Sanders and Sanford and in dismissing the charges against them. Plaintiff asserted the trial court clearly erred in finding the police suggested to the witnesses more than one suspect was in the lineup. The witnesses were allegedly asked by an officer "Do you see anyone that you recognize; if so, what did they do?" The trial court concluded the use of the word "they," as opposed to the word "he," suggested to the witnesses more than one defendant was present in the lineup. The court disagreed because the officer's use of the term "they" certainly was a poor grammar choice, but the court did not find this colloquialism supported the trial court's conclusion the witnesses were aware more than one suspect was present in the lineup. Further, the fact all three defendants appeared in a single lineup did not irreparably taint the lineup, nor did the fact the defendants were represented by the same attorney make the procedure unduly suggestive. Finally, the physical differences between the participants did not render the lineup unduly suggestive. Looking at the photograph of the lineup, the court concluded the participants' numerical differences in age, height, and weight were not accentuated and their physical appearances did not distinguish defendants from the other participants. Affirmed in part and reversed in part.

Full Text Opinion

Issues: Whether the case was properly dismissed based on evidence obtained following an illegal seizure; People v. Lewis
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. White
e-Journal Number: 22593
Judge(s): Memorandum - Zahra, Saad, and Schuette

The trial court erred in suppressing the evidence and in dismissing the case because defendant was not seized until he was arrested in his apartment and he had discarded the baggie containing the controlled substance prior to that time. While investigating a report of drug sales, police observed defendant standing outside the subject building. As the officers approached, defendant ran inside the building. When officers chased him, defendant discarded a bag containing other bags of cocaine. Based on Lewis, where a person discards a bag during a pursuit before he is actually seized, the contents of the bag may not be suppressed as the fruit of an illegal detention. Reversed.

Full Text Opinion

Issues: Waiver of right to counsel at trial; United States v. McDowell; Waiver of counsel at sentencing-whether there should have been a second independent waiver; United States v. Modena; United States v. Napier; Whether the district court had a duty to assist defendant in the conduct of his defense; Sufficiency of evidence to convict defendant on charges of presenting a false claim against the government, impeding the administration of justice, impeding the administration of the IRS, and bankruptcy fraud; Sentencing; Whether there was plain error in defendant's sentencing; Economic reality principle; Downward departure
Court: U.S. Court of Appeals Sixth Circuit
Case Name: United States v. McBride
e-Journal Number: 22623
Judge(s): Gilman, Nelson, and Rogers

Defendant effectively waived his right to counsel at all stages of the proceedings. The court concluded at the trial stage defendant knowingly and voluntarily waived his right to counsel where the district court asked defendant verbatim 12 of the 13 questions drawn from the model inquiry set forth in the Bench Book for United States District Judges, and substantially complied with the essence of the final question when it reviewed the maximum penalty for each count defendant faced, asked him whether he realized the jeopardy he was in, and informed him he would be on his own if he chose to represent himself. The district court also advised defendant his case was complex and would be better handled by standby counsel, who was an expert at federal trial work. Because the district court substantially adhered to the model inquiry as prescribed by McDowell, defendant knowingly and voluntarily waived his right to counsel at trial. Further, the district court was not required to obtain a second, independent waiver of defendant's right to counsel at the sentencing phase. Both Modena and Napier led the court to adopt a rule used by other circuits that a defendant's waiver of counsel at trial carries over to subsequent proceedings absent a substantial change in circumstances. Defendant's conduct at sentencing demonstrated he did not wish to revoke his previous waiver of counsel. The court affirmed the waiver issues and defendant's convictions on counts 2-6, but reversed his conviction on count 1 (false claims against the government), vacated his sentence, and remanded for resentencing.

Full Text Opinion

Issues: Habeas corpus; Due process; State court's failure to hold a pre-plea competency hearing; Pate v. Robinson; Whether petitioner could show his guilty plea was not knowing and voluntary
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Warren v. Lewis
e-Journal Number: 22620
Judge(s): Batchelder, Siler, and Cook

The court reversed the grant of habeas corpus relief to petitioner, concluding the state court applied Pate in an objectively reasonable manner when it failed to sua sponte grant a pre-guilty plea competency hearing and the district court erred in determining otherwise. The standard established in Pate for requiring a competency hearing prior to trial or entry of a guilty plea is whether the evidence raises a "bona fide doubt" regarding a defendant's competence. The state court had before it only one piece of expert testimony concerning petitioner's competence, the findings of his own doctor. While finding petitioner possessed poor judgment and an I.Q. one point above the state-established upper limit of retardation, this doctor explicitly concluded petitioner was competent to stand trial. Further, this expert testimony was bolstered by the record, which showed petitioner had been employed for many years, had a wife and children, a driver's license, and had served in the military briefly before he was discharged for physical, not mental, reasons. The court also concluded petitioner could not establish his guilty plea, based on reasonable advice from counsel, was not knowing and voluntary because he would not have been eligible for the death penalty as a matter of law.

Full Text Opinion

Employment & Labor Law
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This summary also appears under Civil Rights

Issues: Claim for national origin and age discrimination; Denial of promotion; Statute of limitations; Constructive discharge
Court: U.S. District Court Western District of Michigan
Case Name: Dimas v. Michigan Dep't of Civil Rights
e-Journal Number: 22585
Judge(s): Quist

The court granted defendant's motion for summary judgment because while plaintiff presented sufficient evidence to establish a prima facie case of discrimination, he could not show defendant's legitimate, nondiscrimatory reason for not promoting him was a pretext. Plaintiff claimed defendant denied him a promotion based on his national origin and age. Defendant offered evidence showing it selected another individual for the position because it determined the individual was more qualified than plaintiff. In addition to showing the interviewing panel gave the selected person higher marks than plaintiff, defendant presented performance evaluations for the selected person and plaintiff, which showed the selected person was more proficient in a computer system through which all information relating to contacts and complaints made to the defendant was tracked, and knowledge of this system was an important aspect of the position. Plaintiff failed to produce evidence showing defendant's explanation was pretext. The court also ruled plaintiff failed to produce sufficient evidence to support a constructive discharge claim.

Full Text Opinion

Insurance
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This summary also appears under Negligence & Intentional Tort

Issues: Claim for PPI and PIP benefits under the No-Fault Act; Whether the one-year statute of limitations and one-year back rule were applicable to plaintiff's PIP claims (MCL 500.3145(1)); Whether the action was time-barred by the one-year statute of limitations applicable to PPI claims (MCL 500.3145(2)); Tolling; Attorney fees
Court: Michigan Court of Appeals (Unpublished)
Case Name: Goethals v. Farm Bureau Ins.
e-Journal Number: 22556
Judge(s): Per Curiam - Hoekstra, Fitzgerald, and Talbot

Plaintiff's claim for PIP benefits was barred because she did not provide sufficient written notice of injury to extend the one-year limitation period. Plaintiff filed her complaint about 2 years after the accident. She did not take steps to determine the defendant was first in priority to pay her PIP claims until one year and eight months after the accident. Thus, defendant was not given the opportunity to assess its liability while the claim was fresh. Rather, it was defendant who took steps to locate plaintiff to inquire as to whether she would make a claim, to which she never responded. Plaintiff asserted the medical records her attorney sent to the adjuster in connection with the tort action were a "specific claim for benefits." However, the court concluded the items were not sufficient to put an insurer on notice of the expenses incurred, whether the expenses were covered losses, and whether the claimant would file a claim. Importantly, the medical records were not submitted in the context of the claim for PIP benefits. Plaintiff did not diligently establish the defendant was responsible for these payments until over one year after the accident. Reversed and remanded.

Full Text Opinion

This summary also appears under Negligence & Intentional Tort

Issues: Action for personal protection insurance benefits under the No-Fault Act after denial of benefits based on the statute of limitations (MCL 500.3145(1)); Walden v. Auto Owners Ins. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Lictawa v. Farm Bureau Ins. Co.
e-Journal Number: 22571
Judge(s): Per Curiam - Griffin, White, and Donofrio

Under Walden the loss report, which was generated by plaintiff's phone calls to the defendant-insurer's agent shortly after the accident in July and September 2000, constituted legally adequate notice of injury under 3145(1). Defendant refused to pay plaintiff's claim for personal protection benefits based on the statute of limitations. As reflected in the loss report prepared by defendant's agent, plaintiff advised the agent of her name and address, the name of the person injured, and the time, place, and nature of her injury. The loss report constituted written notice to the insurer by the agent of the injured plaintiff. Section 3145(1) provides "[t]he notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefore, or by someone in his behalf." The fact the plaintiff did not present a documented claim apart from the notice implicated only the one-year-back limitation. Thus, plaintiff was not obligated to file suit within one year after the accident, rather she could commence her suit at any time within one year after the most recent loss was incurred. Plaintiff's suit was within one year of her most recent loss. Plaintiff did not make any claim for recovery of losses outside of the one-year period and did not ask the one-year-back rule to be tolled. Plaintiff's suit, filed in December 2001, was timely under 3145(1). The trial court's dismissal of her complaint was error. Reversed.

Full Text Opinion

Litigation
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Issues: Arbitration; Whether the individual defendant/counter-plaintiff's counterclaims should go to arbitration when his law firm signed a lease including an agreement to arbitrate but he never signed an arbitration agreement; Trial court's establishment of an escrow account pending the arbitrator's decision; Constitutional claims
Court: Michigan Court of Appeals (Published)
Case Name: Lexus Fin. Servs., Inc. v. Trombly Tindall, P.C.
e-Journal Number: 22626
Judge(s): O'Connell and Fort Hood; Dissent - Cooper

The court reversed the portion of the trial court's order sending the individual defendant/counter-plaintiff's personal counterclaims to arbitration because he never signed an arbitration agreement with plaintiff/counter-defendant-Lexus and thus, his claim belonged in the trial court. The individual defendant/counter-plaintiff's law firm signed a lease for a Lexus vehicle, and the lease included an agreement to arbitrate. After the vehicle was repossessed and Lexus sued the firm for owed payments, the individual defendant counter-sued, alleging Lexus violated his constitutional rights. He moved the trial court to send Lexus's claims to arbitration pursuant to the lease, but refused to arbitrate his counterclaims until the trial court gave him the choice of having all the claims either tried or arbitrated. Since the court did not find a binding agreement between the individual defendant and Lexus to arbitrate, his personal claims will remain in the trial court, while his firm's claims, and those of Lexus, will go to federal arbitration. Although the individual defendant's claims might theoretically be resolved by the underlying arbitration, the arbitrator's decision alone might not resolve his claims and cannot legally bind him. Reversed in part, affirmed in part, and remanded.

Full Text Opinion

This summary also appears under Contracts

Issues: Whether the trial court erroneously calculated plaintiff's damage award; Whether the trial court improperly denied defendant's motion for involuntary dismissal under MCR 2.504(B); Whether the trial court abused its discretion in failing to enforce court ordered discovery
Court: Michigan Court of Appeals (Unpublished)
Case Name: Dimer-ISG, Inc. v. DaimlerChrysler
e-Journal Number: 22599
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

The trial court properly calculated plaintiff's damages for lost profits and consequential damages in this case where the parties contracted for plaintiff to produce a particular car part for defendant, defendant twice breached the agreement resulting in plaintiff's loss of equipment purchased to produce the part, the parties subsequently entered into a settlement agreement, and the trial court ruled in favor of plaintiff in enforcing the settlement agreement. Plaintiff was awarded $347,433.20 in lost profits and $72,996.90 in consequential damages. After both parties moved for reconsideration, the trial court increased plaintiff's award for lost profits to $387,444.30 to remedy an error in calculation. The court held the trial court correctly determined plaintiff's lost profits were offset by fixed equipment costs because the loss of equipment was not a natural and contemplated result of defendant's breach, and defendant had acted in good faith. The trial court also properly increased plaintiff's damages for lost profits on reconsideration without including the unproven labor costs involved in the initial part approval process. Defendant was not entitled to involuntary dismissal of plaintiff's claims because the circumstances of the case did not meet the requirements of MCR 2.504(B). Further, the trial court did not abuse its discretion in failing to sanction defendant for alleged discovery abuses. Affirmed.

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Issues: Whether the trial court erred in awarding defendants case evaluation sanctions (MCR 2.403(O)(8)); Timeliness of request for sanctions; Whether the trial court should have applied the "interest of justice" exception (MCR 2.403(O)(11)); Haliw v. Sterling Heights
Court: Michigan Court of Appeals (Unpublished)
Case Name: Tugender v. Henry Ford Health Sys.
e-Journal Number: 22600
Judge(s): Per Curiam - Borrello, White, and Smolenski

The trial court did not err in awarding defendants case evaluation sanctions because their request was timely filed pursuant to MCR 2.403(O)(8). Plaintiffs argued the judgment from which the defendants were required to file their request for sanctions within 28 days of was the trial court's November 26, 1999 order granting defendants summary disposition on plaintiffs' second amended complaint. However, the February 5, 2000 order adjudicated the rights and liabilities of the parties. Although the November 26, 1999 order adjudicated all of the claims subject to the case evaluation, defendants could not know before the February 2000 order was entered whether they received a "more favorable verdict," the threshold for incurring liability under MCR 2.403(O)(1). This was because at the time the November order was entered, other claims were still pending in plaintiffs' third amended complaint, which included the same two claims submitted to case evaluation in the second amended complaint. These claims were resolved when the trial court granted defendants summary disposition on plaintiffs' third amended complaint in its February 2000 order. Thus, until then there was still a possibility plaintiffs could prevail in the action. Affirmed.

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Negligence & Intentional Tort
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This summary also appears under Attorneys

Issues: Whether plaintiff-personal representative engaged in the unauthorized practice of law when he brought a wrongful death action without employing an attorney; The Wrongful Death Act (MCL 600.2922); MCR 2.201
Court: Michigan Court of Appeals (Published)
Case Name: Shenkman v. Bragman
e-Journal Number: 22627
Judge(s): Bandstra, Sawyer, and Saad

In an issue of first impression, on remand from the Supreme Court, the court held plaintiff, the personal representative of his grandfather's estate, engaged in the unauthorized practice of law when he brought this wrongful death action without employing an attorney to do so and the trial court properly dismissed his complaint. Plaintiff's argument, which relied heavily on language in the wrongful death statute indicating such an action "shall be brought by, and in the name of, the personal representative," was premised on his constitutional right as a non-lawyer to represent himself "in his own proper person." However, a personal representative is a separate entity from the estate served and the estate, not the personal representative, remains the "real party in interest.for whose benefit" a wrongful death action is brought. Under the wrongful death statute, plaintiff was not the true plaintiff in this case - the estate was. Therefore, plaintiff was not representing himself in this case, he was representing a client, the estate, and therefore, he was engaged in the unauthorized practice of law. Affirmed.

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Issues: Whether plaintiff established the elements necessary to prove the defendant-bank was liable for negligent misrepresentation; Webb v. First of Michigan Corp.; Attorney fees; Head v. Phillips Camper Sales & Rental, Inc.; Crawley v. Schick
Court: Michigan Court of Appeals (Unpublished)
Case Name: Alpha Title Agency, Inc. v. Peoples State Bank
e-Journal Number: 22559
Judge(s): Per Curiam - Owens, Talbot, and Murray

The trial court did not err in granting the defendant-bank's motion for directed verdict after the jury returned a verdict of no cause of action and the trial court denied plaintiff's motion for a new trial where plaintiff failed to establish any of the elements of its negligent misrepresentation claim. Defendant's attorney prepared a letter stating the bank would grant the debtor a discharge of the second mortgage if he paid $95,000 by a certain date, signed a consent judgment, and signed a settlement agreement. Defendant's attorney faxed a copy of the letter to the mortgage company and its agent testified she considered it a "payoff letter." Knowing of the condition the debtor sign the consent judgment, plaintiff took no steps to verify with defendant, or by inspecting the records of the county register of deeds, if the defendant had in fact discharged the second mortgage. Thus, plaintiff had the means of knowledge regarding the truthfulness of the representation, but chose not to utilize them. Further, defendant did nothing to prevent plaintiff from learning the facts. Plaintiff also did not prove that at the time it conducted the closing, any representation made to it by defendant was false or was prepared without reasonable care. At the time defendant prepared and provided the payoff letter, it truthfully informed the debtor's attorney and the mortgage company what the terms of the discharge agreement were. Defendant's agreement to discharge was based on the fulfillment of the future conditions, only one of which the mortgage company or plaintiff would have control over-the disbursement of the $95,000 check. At the time plaintiff decided to go forward with the closing, defendant had not made any negligently false representations. Affirmed, but remanded for a hearing regarding attorney fees.

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Issues: Whether the trial court erred in granting defendant summary disposition on both the breach of duty and causation elements
Court: Michigan Court of Appeals (Unpublished)
Case Name: Badger Mut. Ins. Co. v. Consumers Energy Co.
e-Journal Number: 22560
Judge(s): Per Curiam - Cavanagh and Cooper; Dissent - Zahra

Since plaintiff-insurer (as subrogee) submitted evidence in response to defendant's motion for summary disposition sufficient to demonstrate genuine issues of material fact regarding the breach of duty and causation elements of its negligence claim, the trial court erred in granting defendant summary disposition. In 2001, two electrical power lines controlled by defendant fell onto the roof of the Boulevard Lounge (the insured) and started a fire resulting in property damage. As the lounge's property insurer, plaintiff paid in excess of $60,000 on the claim. Defendant argued plaintiff could not establish breach of duty or causation where there was no evidence the power lines were overloaded at the time of the accident. In response, plaintiff submitted expert testimony the power lines that fell were in a deteriorated state, contained a number of splices, and could not carry whatever load they were carrying at the time of the incident. He further opined splices can cause power lines to fail under high voltage stress. Plaintiff submitted evidence the lines were under such stress on day of the incident where they were serving 1,395 consumers, including an ice hockey arena, and the temperature outside was almost 85-degrees with 50 percent humidity. This evidence was sufficient for a jury to reasonably find defendant breached its duty to exercise reasonable care to reduce potential hazards and reasonably inspect and repair the lines. Reversed and remanded.

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Issues: Automobile negligence; Whether plaintiff's injury constituted a serious impairment of body function; MCL 500.3135(7); Kreiner v. Fischer (On Remand); Jackson v. Nelson
Court: Michigan Court of Appeals (Unpublished)
Case Name: Ensing v. Milbocker
e-Journal Number: 22608
Judge(s): Memorandum - Zahra, Saad, and Schuette

The trial court did not err in granting defendant's motion for summary disposition and in denying plaintiff's motion for summary disposition because plaintiff's injury did not constitute a serious impairment of body function. Plaintiff's fractured wrist was objectively manifested via an x-ray. The use of one's wrist and arm is an important body function. However, plaintiff was released to return to normal activities one month after the accident. He was discharged from his job, but found other employment. Plaintiff's lingering pain did not create an issue of fact as to whether his injury resulted in a serious impairment. Plaintiff had no physician-imposed restrictions on his activities, and remained able to play basketball and softball, and engage in weightlifting. The evidence did not create an issue of fact as to whether plaintiff's injury significantly altered his general ability to lead his normal life. Affirmed.

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This summary also appears under Insurance

Issues: Claim for PPI and PIP benefits under the No-Fault Act; Whether the one-year statute of limitations and one-year back rule were applicable to plaintiff's PIP claims (MCL 500.3145(1)); Whether the action was time-barred by the one-year statute of limitations applicable to PPI claims (MCL 500.3145(2)); Tolling; Attorney fees
Court: Michigan Court of Appeals (Unpublished)
Case Name: Goethals v. Farm Bureau Ins.
e-Journal Number: 22556
Judge(s): Per Curiam - Hoekstra, Fitzgerald, and Talbot

Plaintiff's claim for PIP benefits was barred because she did not provide sufficient written notice of injury to extend the one-year limitation period. Plaintiff filed her complaint about 2 years after the accident. She did not take steps to determine the defendant was first in priority to pay her PIP claims until one year and eight months after the accident. Thus, defendant was not given the opportunity to assess its liability while the claim was fresh. Rather, it was defendant who took steps to locate plaintiff to inquire as to whether she would make a claim, to which she never responded. Plaintiff asserted the medical records her attorney sent to the adjuster in connection with the tort action were a "specific claim for benefits." However, the court concluded the items were not sufficient to put an insurer on notice of the expenses incurred, whether the expenses were covered losses, and whether the claimant would file a claim. Importantly, the medical records were not submitted in the context of the claim for PIP benefits. Plaintiff did not diligently establish the defendant was responsible for these payments until over one year after the accident. Reversed and remanded.

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This summary also appears under Insurance

Issues: Action for personal protection insurance benefits under the No-Fault Act after denial of benefits based on the statute of limitations (MCL 500.3145(1)); Walden v. Auto Owners Ins. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Lictawa v. Farm Bureau Ins. Co.
e-Journal Number: 22571
Judge(s): Per Curiam - Griffin, White, and Donofrio

Under Walden the loss report, which was generated by plaintiff's phone calls to the defendant-insurer's agent shortly after the accident in July and September 2000, constituted legally adequate notice of injury under 3145(1). Defendant refused to pay plaintiff's claim for personal protection benefits based on the statute of limitations. As reflected in the loss report prepared by defendant's agent, plaintiff advised the agent of her name and address, the name of the person injured, and the time, place, and nature of her injury. The loss report constituted written notice to the insurer by the agent of the injured plaintiff. Section 3145(1) provides "[t]he notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefore, or by someone in his behalf." The fact the plaintiff did not present a documented claim apart from the notice implicated only the one-year-back limitation. Thus, plaintiff was not obligated to file suit within one year after the accident, rather she could commence her suit at any time within one year after the most recent loss was incurred. Plaintiff's suit was within one year of her most recent loss. Plaintiff did not make any claim for recovery of losses outside of the one-year period and did not ask the one-year-back rule to be tolled. Plaintiff's suit, filed in December 2001, was timely under 3145(1). The trial court's dismissal of her complaint was error. Reversed.

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Product Liability
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Issues: Admission of the "surprise" testimony of a defense expert on the causation issue; Exclusion of evidence proffered by plaintiff; Exclusion of evidence concerning tobacco industry groups and non-party tobacco companies; Exclusion of deposition testimony from other proceedings and post-1965 evidence; The district court's refusal to instruct the jury on plaintiff's "consumer expectations" theory
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Tompkin v. Philip Morris USA, Inc.
e-Journal Number: 22621
Judge(s): Rogers, Suhreinrich, and Cole

The judgment of the district court ruling in favor of defendant was affirmed because plaintiff did not show she was prejudiced by any of the alleged errors. The district court properly denied plaintiff's motion for a new trial based on "surprise" testimony by Dr. Bradley, a defense expert, on the causation issue. The district court properly concluded plaintiff did not meet her burden of demonstrating prejudice from the admission of Bradley's testimony. Plaintiff sued defendants-tobacco companies, alleging her husband died as a result of smoking cigarettes sold by the defendants and Bradley failed to disclose in his expert report his testimony there was an "association" between plaintiff's husband's level of asbestos exposure and lung cancer. Other defense experts testified about the connection between plaintiff's husband's cancer and his asbestos exposure-in terms of specific causation rather than mere "associations." The court could not say the exclusion of the testimony "would have caused a different outcome at trial." Affirmed.

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Real Property
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Issues: Whether a plat dedication of two parks "to the owners of the several lots" was valid; Validity of private dedications; Martin v. Redmond; Schurtz v. Wescott; Thies v. Howland
Court: Michigan Supreme Court
Case Name: Little v. Hirschman
e-Journal Number: 22649
Judge(s): Taylor, Corrigan, Cavanagh, Weaver, Kelly, Young, Jr., and Markman

Concluding the Court of Appeals erred in holding private dedications are invalid, the court reversed the Court of Appeals ruling a 1913 plat dedication of two parks "to the owners of the several lots" was not enforceable by those in the chain of title from the original buyers of the lots. The court held dedications of land for private use in plats prior to when 1967 PA 288 took effect convey at least an irrevocable easement in the dedicated land. Reviewing case precedent, the court found several cases standing for the proposition in both the era of statutory silence on private dedications, 1835 to 1924, and the era of implicit statutory recognition of such dedications, 1925 to 1966, a dedication of land for private use in a recorded plat gave owners of the lots an irrevocable right to use such privately dedicated land. The court agreed with these holdings. The dedicatory phrase used in this case was legally indistinguishable from the language used in Thies, which also involved a pre-1925 dedication. Following Thies and Schurtz, the court held plaintiffs had an irrevocable right to use the parks. Further, following the rationale of Schurtz, defendants were estopped from claiming exclusive rights in the parks. Reversed and remanded.

Full Text Opinion

Issues: Whether a private dedication of an outlot in a subdivision plat recorded in November 1969 was recognized by Michigan law; The Land Division Act; MCL 560.253(1)
Court: Michigan Supreme Court
Case Name: Martin v. Beldean
e-Journal Number: 22650
Judge(s): Taylor, Corrigan, Cavanagh, Weaver, Kelly, Young, Jr., and Markman

The Court of Appeals erred by holding the statute does not allow private dedications. The court held private dedications in plats filed after the effective date of MCL 560.253(1), January 1, 1968, are expressly recognized and allowed under Michigan law. The statement in the plat, located under the paragraph entitled "Dedication," that outlot A was "reserved for the use of the lot owners" was marked and noted as a "dedication" and thus, constituted a private dedication conveying a fee simple to the donees. Therefore, the private dedication of outlot A was drafted in conformity with, and was expressly permitted by, the Land Division Act. The trial court also erred when it allowed the case to proceed as a quiet title cause of action because the exclusive means available when seeking to vacate, correct, or revise a dedication in a recorded plat is a lawsuit filed pursuant to MCL 560.221 through 560.229. Reversed.

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This summary also appears under Contracts

Issues: Dispute over the language in master deeds and a membership plan creating mutual obligations for the defendants-developers and the plaintiffs-owners of various condominiums in the resort area; Whether continued membership in a newly organized yacht club was mandatory
Court: Michigan Court of Appeals (Unpublished)
Case Name: Brusher v. Bay Harbor Yacht Club
e-Journal Number: 22564
Judge(s): Per Curiam - Cooper, O'Connell, and Fort Hood

Since the transfer agreement could not modify plaintiffs' contracted ability to opt out of membership when the club was transferred from the Company to the members, the trial court did not err when it held plaintiffs were not required to become and remain members of the new membership-owned "Equity Yacht Club." The master deeds for the property provided the resort's developer, defendant-Bay Harbor Company, originally intended to build the clubhouse and add facilities to the yacht club, charging members for dues, assessments, and large initiation fees as the club grew, but leaving equity ownership of the club with the condominium owners who became club members. Membership was mandatory for early condominium units, but this obligation was conditioned on the availability of an equity ownership in the club. However, the membership plan in force when plaintiffs joined the club changed several aspects of the agreement found in the first set of deeds. There was a long-term plan for transferring ownership and control of the club from the Company to the members in April 2006 or when the Company recouped $4.5 million in initiation fees. At that point, a new Equity Club would be established and the company-owned club would be dissolved. Sixty percent of club members voted for an early transfer agreement. Plaintiffs argued the plan allowed them to opt out of membership in the new Equity Club so it cannot require them to transfer their membership from the old club to the new club and pay added dues and assessments. The court held the plain language of the contract was unambiguous and allowed members of the old club, such as plaintiffs, to opt out of membership in the new club by refraining from buying stock in the membership-owned corporation. Affirmed.

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Tax

Issues: Dispute regarding the true cash value, assessed value, and taxable value of the non-profit country club property for tax years 1998, 1999, and 2000; Whether the tribunal's decision regarding the taxable values was supported by competent, material, and substantial evidence; Whether the tribunal's use of the cost approach was the proper method for determining the true cash value of the property; Whether the tribunal erred in refusing to allow petitioner to introduce a valuation of the property prepared on behalf of respondent
Court: Michigan Court of Appeals (Unpublished)
Case Name: Knollwood Country Club v. Township of W. Bloomfield
e-Journal Number: 22555
Judge(s): Per Curiam - Donofrio, Griffin, and Jansen

There was no misapplication of the law, fraud, or error of law made by the tribunal in its valuation of plaintiff's property for tax assessment purposes, and the tribunal findings were supported by competent, material, and substantial evidence. Plaintiff appealed from the tribunal's opinion and judgment determining the true cash value, assessed value, and taxable value of the 152 acre, 18-hole golf course private equity country club with a club house and other amenities for the tax years 1998, 1999, and 2000. The clubhouse, snack bar, pool facilities, and tennis facilities were renovated at a cost of approximately $12,000,000 and the club was fully operational in 1997. Petitioner had a problem with respondent's assessment of the property subsequent to the renovation. The most significant dispute was the value of the land because if the majority of the value of the property was considered to be in the improvements, then the tax value would be increased. However, if most of the value was placed on the land, the increase would be limited as the taxable value for land is capped and would in effect limit the amount of the tax increase. The court concluded the tribunal correctly used the cost approach for determining the true cash value of the property rather than the income capitalization approach, argued by petitioner as the better method. Affirmed.

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