• Construction Law (2)
• Contracts (2)
• Criminal Law (3)
• Family Law (2)
• Immigration (1)
• Insurance (1)
• Litigation (2)
• Municipal (3)
• Negligence & Intentional Tort (4)
• Real Property (2)
• Termination of Parental Rights (1)

Construction Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Construction site injury; Clarification of the "separate and distinct" mode of analysis in Fultz v. Union-Commerce Assocs.; Whether a contracting party's assumption of contractual obligations extinguishes or limits separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract; Davis v. Venture One Constr., Inc. (6th Cir.); Clark v. Dalman; Rinaldo's Constr. v. Michigan Bell Tel. Co.; Mierzejewski v. Torre & Bruglio, Inc.; Banaszak v. Northwest Airlines, Inc.; Elements of a prima facie negligence case; Roulo v. Auto Club of MI; "Duty" element; Beaty v. Hertzberg & Golden, PC; When a duty of care arises between a party to a contract and a noncontracting third party; Bennett v. MIS Corp. (6th Cir.); Williams v. Cunningham Drug Stores, Inc.; Ferrett v. General Motors Corp.; Hart v. Ludwig; Osman v. Summer Green Lawn Care, Inc.

Court: Michigan Supreme Court

Case Name: Loweke v. Ann Arbor Ceiling & Partition Co., L.L.C.

e-Journal Number: 48983

Judge(s): Cavanagh, Young, Jr., M. Kelly, Markman, and M.B. Kelly; Concurring in the result only – Hathaway; Not participating – Zahra

 

Clarifying Fultz's "separate and distinct" mode of analysis, the court held that "a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract." Since the defendant-subcontractor's summary disposition motion was based on an improper understanding of Fultz, and the Court of Appeals affirmed the trial court's order granting defendant summary disposition on that basis, the court reversed the Court of Appeals judgment and remanded the case to the trial court. Plaintiff, a subcontractor's employee, was injured when several cement boards fell on him. The boards were leaned against a wall by employees of the defendant, another subcontractor, which (like plaintiff's employer) was hired by the general contractor on the project. Plaintiff asserted that defendant had a common-law duty, separate and distinct from its contractual obligations to the general contractor, to use ordinary care in order to avoid physical harm to persons and property in executing its undertakings. In moving for summary disposition, defendant argued that under Fultz and its progeny, it owed plaintiff no duty that was "separate and distinct" from its contractual obligations to the general contractor. The court concluded that since Fultz and its progeny were issued, courts have erroneously interpreted its decisions "as rejecting accepted tort-law principles and creating a legal rule ‘unique to Michigan tort law,' which bars negligence causes of action on the basis of a lack of duty if a third-party plaintiff alleges a hazard that was the subject of the defendant's contractual obligations with another." While "Fultz clearly stated that a defendant's legal duty to act must arise separately and distinctly from a defendant's contractual obligations, Fultz's ‘separate and distinct mode of analysis' has been misconstrued to, in essence, establish a form of tort immunity that bars negligence claims raised by a noncontracting third party." The court concluded that courts have erroneously focused "on whether a defendant's conduct was separate and distinct from the obligations required by the contract or whether the hazard was a subject of or contemplated by the contract." Fultz's "directive is to determine whether a defendant owes a noncontracting third-party plaintiff a legal duty apart from the defendant's contractual obligations to another." Whether a defendant owes any duty to a plaintiff in tort "is generally determined without regard to the obligations contained within the contract . . . ." In engaging in Fultz's "separate and distinct mode of analysis," courts should not allow the contract's contents to obscure the proper initial inquiry - "whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff." The defendant, by performing an act under the contract, "was not relieved of its preexisting common-law duty to use ordinary care in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant's contractual obligations with the general contractor." The court did not decide whether this plaintiff was owed a common-law duty of care.

 

Issues: The Construction Lien Act (CLA)(MCL 570.1101 et seq.); Whether the plaintiff's claims of lien were timely filed; Whether the plaintiff was entitled by the CLA to lien based on multiple unit descriptions because the notices of commencement included multiple units; MCL 570.1111(1); Stock Bldg. Supply LLC v. Parsley Homes of Mazuchet Harbor; Strict enforcement of the 90-day time limit for filing claims of lien; Northern Concrete Pipe, Inc. v. Sinacola Cos.-Midwest, Inc.; MCL 570.1111(2); Applicability of Vugterveen Sys. v. Olde Millpond; Contract Supply Co. v. Adco Stratford Vill. N. (Unpub.); Whether a contractor providing an improvement to a site condo development (described in a notice of commencement with a metes and bounds description covering the entire development or phase of a development) is permitted to wait and file all claims of lien within 90 days of the last furnishing to any unit even absent a written contract defining the scope of the improvement

Court: Michigan Court of Appeals (Unpublished)

Case Name: Stock Bldg. Supply, L.L.C. v. Department of Energy, Labor & Econ. Growth Homeowner Constr. Lien Recovery Fund

e-Journal Number: 48805

Judge(s): Per Curiam – Beckering, Whitbeck, and M.J. Kelly

 

The trial court properly discharged the plaintiff's construction liens against the condo units involved in this case because the claims of lien were not timely filed under CLA § 111(1). As a site condo development, the development was comprised of individual units consisting of separate homes, each located on their own lot. The project proceeded in two phases. Defendant-Hawker Development, the owner and developer, filed a notice of commencement in 3/06 containing a metes and bounds description of the parcel that would become the first phase (Annapolis I). Hawker filed a Master Deed for the project in 5/06. Hawker later amended the Master Deed to include phase two (Annapolis II) and filed a second notice of commencement in 5/07, including as a single description the entire parcel comprising Annapolis II. Plaintiff supplied building materials for some units in Annapolis I and II, at Hawker's request and pursuant to an updated application for a line of credit. It was undisputed that there was no written contract between plaintiff and Hawker specifically for plaintiff's provision of labor or material to the project. Plaintiff recorded a claim of lien on 1/25/07 for "Annapolis Pointe (Lots 1-17)," referencing the metes and bounds description covering the entire parcel comprising Annapolis I set forth in the 3/06 notice of commencement. Plaintiff filed an amended claim of lien relating to Annapolis I on 11/1/07 after providing more labor and materials. The amended claim of lien specifically excluded two units, but included all remaining units in Annapolis I without any specificity as to individual amounts owed or when plaintiff provided labor or material to the individual units. Plaintiff also filed a claim of lien and an amended claim of lien for units in Annapolis II. "Despite having provided labor or material to fewer than 25 of the 95 individual units included in Annapolis II," plaintiff did not exclude any individual units in its amended claim of lien, or state with any specificity the individual amounts owed or when it provided labor or materials to the individual units. Plaintiff argued on appeal that its claims of lien were not untimely because the CLA entitled it to rely on the property description in the notices of commencement, and since the notices of commencement included multiple units, it was allowed to lien based on the multiple unit descriptions. Thus, plaintiff argued that the filing of its claims of lien "within 90 days of the last provision of labor or material to any unit within the respective multiple unit descriptions set forth in the notices of commencement for Annapolis I and Annapolis II, was timely." The court disagreed. In "the absence of any written contract setting forth the scope of the improvement to which" plaintiff was furnishing labor or material, the court held that "the improvement" to which plaintiff supplied labor or material was the individual condo unit to which each transaction related. Thus, plaintiff "was required by MCL 570.1111(1) to file its claim of lien within 90 days of the last furnishing of labor or material to each individual unit." Affirmed.

 

Contracts

 

This summary also appears under Insurance

 

Issues: Whether the trial court properly granted the plaintiff-insurer summary disposition; Robinson v. Ford Motor Co.; Whether plaintiff was entitled to charge back the commissions it paid defendant-agent on the annuity cancelled by a customer; Reasonableness of the attorney fees the trial court ordered the defendant to pay plaintiff; Wood v. Detroit Auto. Inter-Ins. Exch.; Taylor v. Currie; Septer v. Tjarksen (In re Attorney Fees & Costs); John J. Fannon Co. v. Fannon Prods., LLC

Court: Michigan Court of Appeals (Unpublished)

Case Name: Midland Nat'l Life Ins. Co. v. Nikkel

e-Journal Number: 48803

Judge(s): Per Curiam - Sawyer, Markey, and Fort Hood

 

The court held that the trial court properly granted the plaintiff-insurer summary disposition because there was no genuine issue of material fact that it had the right to cancel the annuity at any time and charge back the commissions, and the defendant-agent acknowledged this right. Also, the materials provided by plaintiff were sufficient for the trial court to determine the reasonableness of the attorney fees, and there was no abuse of discretion in awarding attorney fees and denying an evidentiary hearing on the issue. The agent contracted with plaintiff beginning in 2002 to sell life insurance policies and annuities. Defendant was to receive commissions from plaintiff based on the sales of its products. Defendant sold two $200,000 annuities to a customer in the fall of 2003. Defendant told the customer that there would be no penalty for withdrawals up to 10% of the total amount of the annuity per year. The customer made two early withdrawals from the annuities in 2004 and 2005 that resulted in IRS penalties. Defendant did not know about IRS penalties and did not tell the customer about them. The customer was upset about the IRS charges and wrote a letter to plaintiff complaining about defendant and requesting a resolution. The customer requested the cancellation of one annuity without surrender charges. Plaintiff agreed to cancel one of the annuities 27 months after it was purchased in order to settle the dispute with the customer and avoid the possibility of litigation. Upon cancellation of the annuity, plaintiff charged back $18,000 in commissions previously paid to defendant. Defendant did not refund the commission and plaintiff sued. The parties entered into a contract that merged three forms. Two referred to the charge back of commissions paid to plaintiff's agents and subagents. One form, the agent contract, allowed plaintiffs to charge back commissions at any time when plaintiff chooses to cancel a policy at its sole discretion. The second form, the commission schedule, only allowed plaintiff to charge back commissions in the first year after death, surrender, partial withdrawals and cancellations, all of which are customer-initiated events. The only issue was whether plaintiff was entitled to charge back the commissions paid to defendant on the cancelled annuity. Plaintiff argued that the cancellation was initiated in accordance with its right to unilaterally settle the claims of any customers against the licensed agents and it was entitled to charge back the commissions. However, if the cancellation was customer initiated, and was not within the first year, plaintiff would not have been entitled to charge back the commission. The court held the trial court properly granted summary disposition because there was no genuine issue of material fact - defense counsel previously stated on the record that plaintiff initiated the cancellation. Affirmed.

 

This summary also appears under Litigation

 

Issues: Breach of contract and fraud claims; Motion for a directed verdict; Sniecinski v. Blue Cross & Blue Shield of MI; Zantel Mktg. Agency v. Whitesell Corp.; "Silent fraud"; M&D, Inc. v. McConkey; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Reasonable reliance; Foreman v. Foreman; Waiver; Yee v. Shiawassee County Bd. of Comm'rs; Whether the plaintiff was a third-party beneficiary; MCL 600.1405; Oja v. Kin; Harmless error; Whether plaintiff sufficiently pleaded bailment, conversion, and breach of fiduciary duty claims; Denial of motion to amend the complaint to conform to the evidence; In re Kostin Estate; Stanke v. State Farm Mut. Auto. Ins. Co.; MCR 2.118(C); Froede v. Holland Ladder & Mfg. Co.; MCR 2.118(A)(2); Weymers v. Khera; Error to which the aggrieved party contributed; Harville v. State Plumbing & Heating, Inc.; Motion for partial summary disposition under MCR 2.116(C)(10); Fast Air, Inc. v. Knight; Effect of the factual findings in the plaintiff's divorce case (in which defendant-Zehnder testified as an expert); Res judicata; Adair v. Michigan; "Privity"; Phinisee v. Rogers; Collateral estoppel; Ditmore v. Michalik; Monat v. State Farm Ins. Co.; Whether exemplary damages and/or mental distress damages were warranted; Meiras v. DeBona; Unibar Maint. Servs., Inc. v. Saigh; Admission of Zehnder's testimony about what he thought plaintiff knew; "Hearsay" (MRE 801(c)); A "statement" (MRE 801(b)); People v. Breeding; Applicability of Shuler v. Michigan Physicians Mut. Liab. Co. & People v. Flaherty; Right result reached for the wrong reason; Taylor v. Laban; Admissibility of a prior complaint; Slocum v. Ford Motor Co.; Costs; MCR 2.625; MCL 600.2164; Guerrero v. Smith; Wolverine Commerce v. Pittsfield Charter Twp. (Unpub.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Zwerk v. Zehnder

e-Journal Number: 48802

Judge(s): Per Curiam – Donofrio, Borrello, and Beckering

 

Holding, inter alia, that defendant-Zehnder's testimony indicated that he did not intend to defraud the plaintiff and that plaintiff failed to show that she relied on any alleged silent misrepresentation by Zehnder, the court concluded that the trial court did not err in denying plaintiff's motion for a directed verdict on her fraud claim. Further, the trial court did not abuse its discretion in denying her motion to amend her complaint under MCR 2.118(C) because claims for bailment, conversion, and breach of fiduciary duty were not tried by the parties' express or implied consent. Plaintiff was married to her ex-husband (M) for about 30 years. M and his brother (L) ran a family farming business, which consisted of a partnership and a corporation. M and plaintiff owned 2,365 shares of the corporation as joint tenants. Zehnder had a long history of providing accounting services to the partnership and corporation, and to plaintiff and M personally. In order to effectuate a "succession plan" to sell the corporation to the next generation of the family, Zehnder or his secretary drew an "x" through the shares of stock that plaintiff and M owned as joint tenants, voided them, and combined them into a single share in M's name alone. "This was done without plaintiff's consent or knowledge." This case went to trial primarily on the issues of fraud and breach of contract. The jury found that plaintiff had a contract with Zehnder, but he did not breach it. The jury also found that Zehnder failed to disclose a material fact of which he had actual knowledge, this failure caused plaintiff to have a false impression, when Zehnder failed to disclose material facts he did not know it would cause a false impression, and the total amount of plaintiff's damages was zero. Zehnder admitted at trial that he should have obtained plaintiff's express consent to void her corporate stock and that M never told him that she agreed to void her stock. However, he also testified that M and L ran the corporation, plaintiff was never involved in the farming operations or bookkeeping, and he relied on M and L for information throughout the years. He also testified that he thought plaintiff was aware of the sale of the business and thought he had her consent. "Defendant's belief that plaintiff was aware of the sale of the business and that he had plaintiff's consent to void and transfer the jointly held stock, whether reasonable or not, negates intent to defraud." As to reliance, plaintiff testified that she never had a discussion with Zehnder about the shares, he never called her, or sent her a letter with a misrepresentation. The court also held, inter alia, that the trial court did not abuse its discretion in denying plaintiff's motion to amend her complaint to conform to the evidence. "Plaintiff's claims were not clear at trial," and the trial court tried more than once to clarify them. She never stated that she was pursuing claims for bailment, conversion, or breach of fiduciary duty, and defense counsel's comments clearly indicated that the defendants did not consent to trying those claims. The court affirmed the trial court's order of dismissal and its order awarding defendants $7,962 in costs.

 

Criminal Law

 

Issues: Whether the 12-month jail sentence for the probation violation was a valid sentence; Whether the trial court had authority to enter the subsequent order providing for a two-year term of probation; People v. Houston; People v. Dotson; People v. Thomas; People v. Tanner; People v. Barfield

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Peterson

e-Journal Number: 48891

Judge(s): Per Curiam – Hoekstra, Murray, and M.J. Kelly

 

Since the 12-month jail sentence for the probation violation was a valid sentence, the court held that the trial court lacked authority to enter the subsequent order providing for a 2-year term of probation and vacated the order imposing a 2-year term of probation. Defendant pleaded no contest to a charge of embezzlement over $100. He was sentenced to five years' probation. He subsequently pleaded guilty to violating his probation based on a failure to report and a failure to make restitution payments. The trial court sentenced him to 12 months in jail. Nothing was said about probation at the sentencing hearing. However, the trial court granted a probation officer's petition to amend the probation order to read that defendant had been sentenced to 2 years' probation with the first 12 months in jail. The trial court did not sentence him to probation at the resentencing hearing. It imposed a valid sentence of 12 months in jail. Also, it appeared that defendant was returned to jail immediately following this sentence. Pursuant to Barfield, the trial court could not subsequently continue defendant on probation following sentencing.

 

Issues: Sufficiency of the evidence to support the defendants' convictions; People v. Lewis (On Remand); Identification of defendant-Idris; People v. Yost; People v. Wolfe; People v. Palmer; Carjacking; MCL 750.529a(1); People v. Flick; Defendants' claim that the statute required a "completed" larceny; People v. Williams; The armed and unarmed robbery statutes; MCL 750.529 and 530 respectively; Aiding and abetting; MCL 767.39; People v. Robinson; People v. Turner; People v. Carines; People v. Kanaan; Conspiracy; People v. Mass; People v. Justice (After Remand); People v. McGhee; People v. Carter; People v. Fennell; Assault with intent to commit murder; People v. Brown; People v. Hawkins; People v. Dumas; Sentencing; Defendant-Demarcus's claim as to the scoring of OV 13; People v. McLaughlin; People v. Jackson; Demarcus's claim of ineffective assistance of counsel; People v. Mesik (On Reconsideration); Demarcus's claims of alleged judicial misconduct or bias; People v. Cheeks; People v. Warclawski; Demarcus's claims of prosecutorial misconduct; People v. Lester; The surveillance videotape; People v. Kurylczyk; Whether the trial court acted as the "thirteenth juror"

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Young

e-Journal Number: 48782

Judge(s): Per Curiam - Donofrio, Borrello, and Beckering

 

In this case where the defendants were tried jointly before a single jury and defendant-Idris Young was convicted of carjacking, conspiracy to commit carjacking, felon in possession, and felony-firearm and defendant-Demarcus Young was convicted of carjacking, conspiracy to commit carjacking, assault with intent to commit murder, CCW, and two counts of felony-firearm, the court held none of the issues they raised on appeal had merit and affirmed their convictions and sentences. Their convictions arose from an incident outside a liquor store. As the victim entered the store, he saw two men standing outside. One man, whom the victim identified as Demarcus, was wearing a thick coat, which was odd because of the warm weather. The other man, whom the victim identified as Idris, had the lower part of his face covered with his shirt or a cloth. The victim said as walked by defendants, Idris made a gesture like he was racking a gun and made direct eye contact with a "cold look" in his eyes. When the victim left the store, Demarcus pointed a gun at him and told him to give up his car keys. When the victim hesitated, Demarcus told him he was "not playing." The victim turned and ran. He heard one gunshot as he ran. A videotape from the store's surveillance cameras showed that Demarcus fired a second shot, and tried to fire a third time, but his gun jammed. On appeal, both defendants argued that the evidence was insufficient to convict them of carjacking because it was undisputed that an actual larceny of a motor vehicle was never completed. In Williams the court concluded that the robbery statutes incorporate acts taken in an attempt to commit a larceny, regardless of whether the act is completed. The Williams court noted that the carjacking statute "is almost identical to the wording of MCL 750.530." Thus, in consideration of the court's analysis in that case, it rejected the defendants' argument here that the failure to establish a completed larceny precluded their convictions for carjacking. The evidence that Demarcus threatened the victim with a gun while demanding his car keys was sufficient evidence of an act in the course of committing a larceny of a motor vehicle as defined in the carjacking statute.

 

Issues: Whether the statutory mandatory minimum 15-year sentence imposed on the defendant following his conviction of felon in possession under 18 USC § 922(g), USSG § 4B1.4(b)(3)(A), and 18 USC § 924(e) violated the Eighth Amendment; Whether his competency evaluation diagnosis as "mildly mentally retarded" should have affected the sentencing decision; United States v. Tucker (Unpub. 6th Cir.); United States v. Jones; Harmelin v. Michigan; United States v. Layne; The "proportionality review"; United States v. Thomas; Atkins v. Virginia; Graham v. Florida

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Moore

e-Journal Number: 48972

Judge(s): Thapar, Martin, and Stranch

 

The court held there was no reason to depart from Tucker where the court held "imposing a mandatory minimum 15-year sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment." The court also held that all of the circumstances of the case, including his mildly diminished mental capacity, convinced it that the district court's sentence was not grossly disproportionate to the crime committed. One night in 2007, defendant, a four-time convicted felon, possessed a firearm. The event had serious ramifications where as an Armed Career Criminal, he was subject to a mandatory minimum penalty of 180 months of imprisonment for carrying a gun. The police responded to a call about an assault. They interviewed the victim who claimed her boyfriend (defendant) beat her, pointed a gun at her, and threatened to kill her. Two witnesses told the officers they had seen him beat the victim and he had a gun, but did not see him point it at her. The police found defendant near the scene with the gun and arrested him. He was charged and his attorney requested that he undergo a competency evaluation. He was diagnosed with "mild mental retardation." After being convicted, the district court sentenced him to 180 months' imprisonment. On appeal, he contended that his mandated minimum sentence of 15 years violated the Eighth Amendment's ban on cruel and unusual punishment and opined that his reduced culpability resulting from mental retardation transformed an otherwise constitutional sentence into an unconstitutional one. The court noted that proportionality review begins with a comparison of the gravity of the offense and the severity of the sentence. The comparison here simply did not lead to an inference of gross disproportionality. Defendant's prior qualifying sentences included two violent felonies involving aggravated burglary and two involving distribution of crack cocaine. On the night of the arrest in this case, witnesses reported seeing him beat his girlfriend while holding a firearm. "His were not victimless, nonviolent crimes." He actually received the minimum sentence under the statute. A "sentence within the statutory maximum set by statute generally does not constitute cruel and unusual punishment." Contrary to defendant's claim, his sentence did account for his mental retardation. Even though the guidelines authorized a sentence up to 188 months, the statute imposed no such cap. The district court sentenced him at the very bottom of the guidelines range, expressly noting his condition while pronouncing his sentence. Even if the district court had not taken account of his mental retardation, the imposition of a mandatory sentence without considering mitigating factors does not, as he claimed, run afoul of the Eighth Amendment. In Harmelin, the Supreme Court upheld a mandatory life sentence for possession of 650 grams of cocaine even where the state court gave no consideration to the defendant's felony-free record. The court specifically rejected the petitioner's "required mitigation" claim, refusing to extend the "individualized capital-sentencing doctrine" to a mandatory sentence of life in prison without parole. The court concluded that the argument for requiring consideration of mitigating factors was no stronger here. Affirmed.

 

Family Law

 

Issues: Child protective proceeding; Custody order awarding the respondent-father joint legal and physical custody and terminating the wardship; The trial court's finding that the child had an established custodial environment (ECE); Foskett v. Foskett; Berger v. Berger; Pierron v. Pierron; Jack v. Jack; The factors in MCL 722.23; MCL 722.23(i); Whether it was premature for the trial court to address custody issues before the respondent-mother completed her court-ordered treatment plan; The Child Custody Act; The Juvenile Code; MCL 600.1023; MCL 600.1021(3); MCR 3.204 & 3.205; MCL 722.26

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Alexander

e-Journal Number: 48856

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

 

The respondent-mother appealed the trial court's order awarding the respondent-father joint legal and physical custody of their minor child and terminating the wardship. The court concluded that the trial court's finding that the child had an ECE with the trial court lacked specificity. Thus, the court remanded the case for further proceedings. Sole legal and physical custody was previously awarded to the mother by an order entered in a paternity case between the respondents. The order challenged on appeal was entered in a child protective case. The court rejected respondent's claim that it was premature for the trial court to address custody issues before she completed her court-ordered treatment plan. However, the court determined that the trial court's findings as to the ECE "were confusing and unclear." The trial court stated that the minor had "been in the custody of the court, not anybody else, has been placed with other people . . . ." The trial court specifically found the standard of proof was clear and convincing evidence, but did not explain its finding that the ECE was with the trial court. The court held that since the trial court's statement lacked specific factual findings, it failed to properly determine the existence of a custodial environment. The court noted that the child resided with the mother before she was removed and placed in protective care. After she was removed from the mother's home during the child protective case, the child lived with the father. While the evidence showed that the father provided a home for the child for six months before filing a motion for custody, the court concluded that there was "not enough evidence in the record to evaluate whether he provided an established physical and psychological environment." Thus, a remand was necessary for the trial court to determine whether an ECE existed. Once the trial court determines the applicable burden, it can then determine whether a change in the ECE is in the child's best interests consistent with the MCL 722.23 factors. The court noted that, contrary to the mother's argument on appeal, the trial court did not minimize the importance of the child's preference to live with her siblings under MCL 722.23(i). The child expressed preferences toward each parent at different times, and while the trial court found the evidence "weak and confused," it actually found this factor favored the mother.

 

Issues: Divorce; Default judgment; Amco Builders & Developers, Inc. v. Team Ace Joint Venture; Whether the motion to set aside the default was timely; MCR 2.603(D)(2); MCR 2.503(D)(1); Rieth v. Keeler; Fraud; Williams v. Williams

Court: Michigan Court of Appeals (Unpublished)

Case Name: Leonte v. Leonte

e-Journal Number: 48922

Judge(s): Per Curiam – Markey, Fitzgerald, and Shapiro

 

The court held that the trial court erred when it entered the default judgment without hearing the defendant-wife's motion to set aside the default, vacated the default judgment of divorce, and remanded. The parties were married for 23 years and share 2 children. Plaintiff-husband filed a motion for a default on the ground plaintiff had not complied with discovery requests and orders. The trial court granted plaintiff's motion. Defendant filed a motion to set aside the default. At the hearing for the entry of default judgment, defendant, as the party in default, was not allowed to testify or call any witnesses, although the trial court did allow her to cross-examine plaintiff's witnesses. But the trial court did not allow defendant to cross-examine plaintiff himself, or raise any objections to the proposed judgment of divorce. Defendant argued that good cause existed to set aside the default. She also argued that the trial court erred when it entered the default judgment because it was inequitable, the trial court proceeded to default judgment without first hearing defendant's motion to set aside the default, plaintiff induced defendant into thinking she did not need to respond to discovery requests, and the remedy of default judgment was too harsh. Defendant argued that good cause existed under MCR 2.603. The court, however, could not properly evaluate that claim because the issue was never decided below.

 

Immigration

 

Issues: Review of the denial of the application for asylum; Khalili v. Holder; Zhao v. Holder; 8 USC § 1252(b)(4); Pablo-Sanchez v. Holder; Untimely asylum application; 8 USC § 1158(a)(2)(B); "Extraordinary circumstances"; § 1158(a)(2)(D); § 1158(a)(3); Shkulaku-Purballori v. Mukasey; Whether the claim presented a "mixed question of fact and law"; Ramadan v. Gonzales (9th Cir.) (Ramadan II); Impact of Amendment 106 of the REAL ID Act; Chen v. U.S. Dep't of Justice (2nd Cir.) (Chen II); Xiao Ji Chen v. U.S. Dep't of Justice (2nd Cir.) (Chen I); Almuhtaseb v. Gonzales; Susan Lewis v. Humboldt Acquisition Corp.; Withholding of removal under the Immigration & Nationality Act; 8 USC § 1231(b)(3)(A); Vincent v. Holder; 8 CFR § 1208.16(b)(1)(i); Adverse credibility determination; 8 USC § 1158(b)(1)(B)(iii); Pilica v. Ashcroft; Barry v. Holder (Unpub. 6th Cir.); Statutory insufficiency; 8 USC § 1158(b)(1)(A); 8 USC § 1101(a)(42)(A); Lugovyj v. Holder (Unpub. 6th Cir.); Protection under the United Nations Convention Against Torture (CAT); 8 CFR § 1208.16(c)(2)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Khozhaynova v. Holder

e-Journal Number: 48973

Judge(s): Per Curiam – Keith, Merritt, and Martin

 

The court continued to maintain a more narrow interpretation of jurisdiction to review untimely asylum applications, and to limit review to constitutional or statutory interpretation claims. Because the petitioner-Khozhaynova's argument that her concern about her son A's medical condition impeded her discovery of the availability of asylum and submission of a timely asylum application was predominately factual, the court dismissed her petition for review of the denial of the asylum application for lack of jurisdiction. The court also denied the petition for review of the petitions for withholding of removal and protection under the CAT, and affirmed the BIA's decision. Khozhaynova, the lead petitioner, and A are natives and citizens of Russia. She first entered the U.S. in 2/99 with her husband to find a doctor for A, who suffers from phenylketonuria. A stayed in Russia. Khozhaynova returned to Russia after a year. She did not apply for asylum. Khozhaynova again entered the U.S. in 11/02, as a visitor with permission to remain for six months. A was admitted to the U.S. in 2/04, as a visitor with permission to stay for three months. Both overstayed their visas. Petitioners sought review of the final order of the BIA, affirming the IJ's denial of their petitions for asylum, withholding of removal, and protection under the CAT. Khozhaynova conceded that she filed her application more than one year after lawfully entering the U.S. However, she claimed that A's medical condition and her ignorance of the availability of asylum were extraordinary circumstances that prevented her from timely applying for asylum. Because she could not be away from A for long periods of time and she was constantly looking for doctors to care for him, she argued that her failure to file the application on time should be excused. Khozhaynova's claim as to extraordinary circumstances rested on challenging the IJ's factual determinations. The IJ specifically found that she entered the U.S. almost two years before A arrived in the U.S. As he explained, Khozhaynova "was not responsible for her son's daily care during her first year" in the U.S., "and thus her son's daily care or inability to secure medical treatment for him in" the U.S. "in no way prevented her from filing for asylum." The IJ further held that her failure to apply for asylum during this period was ultimately based on her unfamiliarity with our laws, which does not excuse untimeliness. Upon review, the court saw no bias on the IJ's part in making these findings. Because Khozhaynova's claim was factual in nature, the court lacked the jurisdiction to address it. She essentially asked the court to reconsider its decision in Almuhtaseb, though the court did not grant a motion for rehearing to that case. She argued that the Ninth and Second Circuits were correct in reconsidering their interpretation of Amendment 106, and that the court should adopt their revised holdings. However, she pointed to no intervening Supreme Court case clarifying what effect Amendment 106 should have, nor was the court aware of one. Thus, because "[i]t is a well-established rule of this circuit that one panel cannot overrule the holding of another panel, absent an intervening inconsistent opinion from the U.S. Supreme Court," the court declined to reconsider its initial statutory interpretation of Amendment 106.

 

Insurance

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly granted the plaintiff-insurer summary disposition; Robinson v. Ford Motor Co.; Whether plaintiff was entitled to charge back the commissions it paid defendant-agent on the annuity cancelled by a customer; Reasonableness of the attorney fees the trial court ordered the defendant to pay plaintiff; Wood v. Detroit Auto. Inter-Ins. Exch.; Taylor v. Currie; Septer v. Tjarksen (In re Attorney Fees & Costs); John J. Fannon Co. v. Fannon Prods., LLC

Court: Michigan Court of Appeals (Unpublished)

Case Name: Midland Nat'l Life Ins. Co. v. Nikkel

e-Journal Number: 48803

Judge(s): Per Curiam - Sawyer, Markey, and Fort Hood

 

The court held that the trial court properly granted the plaintiff-insurer summary disposition because there was no genuine issue of material fact that it had the right to cancel the annuity at any time and charge back the commissions, and the defendant-agent acknowledged this right. Also, the materials provided by plaintiff were sufficient for the trial court to determine the reasonableness of the attorney fees, and there was no abuse of discretion in awarding attorney fees and denying an evidentiary hearing on the issue. The agent contracted with plaintiff beginning in 2002 to sell life insurance policies and annuities. Defendant was to receive commissions from plaintiff based on the sales of its products. Defendant sold two $200,000 annuities to a customer in the fall of 2003. Defendant told the customer that there would be no penalty for withdrawals up to 10% of the total amount of the annuity per year. The customer made two early withdrawals from the annuities in 2004 and 2005 that resulted in IRS penalties. Defendant did not know about IRS penalties and did not tell the customer about them. The customer was upset about the IRS charges and wrote a letter to plaintiff complaining about defendant and requesting a resolution. The customer requested the cancellation of one annuity without surrender charges. Plaintiff agreed to cancel one of the annuities 27 months after it was purchased in order to settle the dispute with the customer and avoid the possibility of litigation. Upon cancellation of the annuity, plaintiff charged back $18,000 in commissions previously paid to defendant. Defendant did not refund the commission and plaintiff sued. The parties entered into a contract that merged three forms. Two referred to the charge back of commissions paid to plaintiff's agents and subagents. One form, the agent contract, allowed plaintiffs to charge back commissions at any time when plaintiff chooses to cancel a policy at its sole discretion. The second form, the commission schedule, only allowed plaintiff to charge back commissions in the first year after death, surrender, partial withdrawals and cancellations, all of which are customer-initiated events. The only issue was whether plaintiff was entitled to charge back the commissions paid to defendant on the cancelled annuity. Plaintiff argued that the cancellation was initiated in accordance with its right to unilaterally settle the claims of any customers against the licensed agents and it was entitled to charge back the commissions. However, if the cancellation was customer initiated, and was not within the first year, plaintiff would not have been entitled to charge back the commission. The court held the trial court properly granted summary disposition because there was no genuine issue of material fact - defense counsel previously stated on the record that plaintiff initiated the cancellation. Affirmed.

 

Litigation

 

Issues: Motion to vacate an arbitration award; Ann Arbor v. AFSCME Local 369; MCR 3.602(J)(2)(d); Gordon Sel-Way, Inc. v. Spence Bros., Inc.; Frazier v. Ford Motor Co.; Belen v. Allstate Ins. Co.; Whether the arbitrator properly conducted the preliminary hearing conference call without defendants or their attorney present; Whether defendants received notice of the preliminary hearing in a timely manner; Gregory J Schwartz & Co. v. Fagan; Whether defendants' rights were substantially prejudiced

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cumberland Valley Ass'n v. Antosz

e-Journal Number: 48941

Judge(s): Per Curiam – Owens, O’Connell, and Meter

 

Since the arbitrator's credibility determinations and weighing of the evidence were not matters for appellate review, the court held that the trial court properly denied the defendants' motion to vacate an arbitration award. Defendants argued that the trial court should have granted their motion to vacate the arbitration award pursuant to MCR 3.602(J)(2)(d) because the arbitrator refused to postpone the hearing on a showing of sufficient cause. They asserted that their attorney was on vacation during the preliminary hearing conference call, was unable to participate in the call, and was unaware that an arbitration hearing was scheduled. When the attorney returned, the scheduled hearing was only four days away. The attorney requested an adjournment because he had a court matter scheduled for the same day. The arbitrator denied the request. The parties agreed that MCR 3.602(J)(2) applied. Defendants submitted their request for a postponement on 8/11/09. The issue of whether they established sufficient cause for postponement revolved around three pieces of communication. The first was a letter from defendants' attorney to AAA case manager M dated 7/20/09. The letter was in response to M's 7/17/09 e-mail as to the scheduling of a preliminary hearing conference call. In the letter, the attorney advised M that he would be on vacation from 7/29/09 through 8/10/09, but that he was available before or after those dates. No mention was made of this letter in any of the other correspondence. Plaintiff's attorney stated in his 8/11/09 e-mail to M that defendants' attorney had never advised M or plaintiff's attorney that he was on vacation or was unavailable for the conference call. Plaintiff's attorney also stated that M tried to call defendants' attorney on 7/31/09, the date of the conference call. "From the record available, it appears that neither the arbitrator nor plaintiff (nor plaintiff's counsel) received defendants' attorney's letter." The other communications that were in dispute were the 7/23/09 e-mail from M to both parties' attorneys informing them that the preliminary hearing conference call was scheduled for 7/31/09, and the 8/3/09 e-mail from M to both attorneys scheduling the arbitration hearing for 8/14/09. Defendants claimed that their attorney never received these e-mails, or received them too late to respond appropriately. If the arbitrator never received defendants' attorney's letter as to availability and neither defendants nor their attorney called in for the preliminary hearing conference call, the first time the arbitrator heard from defendants was on 8/11/09, when they asked for a postponement. Further, M stated in an e-mail that defendants' attorney had e-mailed M on 8/6/09, "during his vacation when he had claimed he could not send or receive" e-mails. M also stated that defendants' attorney indicated that he would contact M on 8/10, the day that the arbitrator's fees were due. Defendants' attorney did not contact M on that date and plaintiff paid defendants' portion of the fees to avoid further delay. On the basis of these communications and the information before him, the arbitrator refused defendants' request for a postponement. "The question whether defendants' attorney actually sent the letter stating that he was on vacation or whether defendants' attorney received" the 7/23/09 and 8/3/09 e-mails, were questions of fact for the arbitrator to determine. "The arbitrator obviously did not believe that defendants had shown sufficient cause for an adjournment at that late date after failing to participate in the conference call and requesting a postponement four days before the scheduled hearing." Affirmed.

 

This summary also appears under Contracts

 

Issues: Breach of contract and fraud claims; Motion for a directed verdict; Sniecinski v. Blue Cross & Blue Shield of MI; Zantel Mktg. Agency v. Whitesell Corp.; "Silent fraud"; M&D, Inc. v. McConkey; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Reasonable reliance; Foreman v. Foreman; Waiver; Yee v. Shiawassee County Bd. of Comm'rs; Whether the plaintiff was a third-party beneficiary; MCL 600.1405; Oja v. Kin; Harmless error; Whether plaintiff sufficiently pleaded bailment, conversion, and breach of fiduciary duty claims; Denial of motion to amend the complaint to conform to the evidence; In re Kostin Estate; Stanke v. State Farm Mut. Auto. Ins. Co.; MCR 2.118(C); Froede v. Holland Ladder & Mfg. Co.; MCR 2.118(A)(2); Weymers v. Khera; Error to which the aggrieved party contributed; Harville v. State Plumbing & Heating, Inc.; Motion for partial summary disposition under MCR 2.116(C)(10); Fast Air, Inc. v. Knight; Effect of the factual findings in the plaintiff's divorce case (in which defendant-Zehnder testified as an expert); Res judicata; Adair v. Michigan; "Privity"; Phinisee v. Rogers; Collateral estoppel; Ditmore v. Michalik; Monat v. State Farm Ins. Co.; Whether exemplary damages and/or mental distress damages were warranted; Meiras v. DeBona; Unibar Maint. Servs., Inc. v. Saigh; Admission of Zehnder's testimony about what he thought plaintiff knew; "Hearsay" (MRE 801(c)); A "statement" (MRE 801(b)); People v. Breeding; Applicability of Shuler v. Michigan Physicians Mut. Liab. Co. & People v. Flaherty; Right result reached for the wrong reason; Taylor v. Laban; Admissibility of a prior complaint; Slocum v. Ford Motor Co.; Costs; MCR 2.625; MCL 600.2164; Guerrero v. Smith; Wolverine Commerce v. Pittsfield Charter Twp. (Unpub.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Zwerk v. Zehnder

e-Journal Number: 48802

Judge(s): Per Curiam – Donofrio, Borrello, and Beckering

 

Holding, inter alia, that defendant-Zehnder's testimony indicated that he did not intend to defraud the plaintiff and that plaintiff failed to show that she relied on any alleged silent misrepresentation by Zehnder, the court concluded that the trial court did not err in denying plaintiff's motion for a directed verdict on her fraud claim. Further, the trial court did not abuse its discretion in denying her motion to amend her complaint under MCR 2.118(C) because claims for bailment, conversion, and breach of fiduciary duty were not tried by the parties' express or implied consent. Plaintiff was married to her ex-husband (M) for about 30 years. M and his brother (L) ran a family farming business, which consisted of a partnership and a corporation. M and plaintiff owned 2,365 shares of the corporation as joint tenants. Zehnder had a long history of providing accounting services to the partnership and corporation, and to plaintiff and M personally. In order to effectuate a "succession plan" to sell the corporation to the next generation of the family, Zehnder or his secretary drew an "x" through the shares of stock that plaintiff and M owned as joint tenants, voided them, and combined them into a single share in M's name alone. "This was done without plaintiff's consent or knowledge." This case went to trial primarily on the issues of fraud and breach of contract. The jury found that plaintiff had a contract with Zehnder, but he did not breach it. The jury also found that Zehnder failed to disclose a material fact of which he had actual knowledge, this failure caused plaintiff to have a false impression, when Zehnder failed to disclose material facts he did not know it would cause a false impression, and the total amount of plaintiff's damages was zero. Zehnder admitted at trial that he should have obtained plaintiff's express consent to void her corporate stock and that M never told him that she agreed to void her stock. However, he also testified that M and L ran the corporation, plaintiff was never involved in the farming operations or bookkeeping, and he relied on M and L for information throughout the years. He also testified that he thought plaintiff was aware of the sale of the business and thought he had her consent. "Defendant's belief that plaintiff was aware of the sale of the business and that he had plaintiff's consent to void and transfer the jointly held stock, whether reasonable or not, negates intent to defraud." As to reliance, plaintiff testified that she never had a discussion with Zehnder about the shares, he never called her, or sent her a letter with a misrepresentation. The court also held, inter alia, that the trial court did not abuse its discretion in denying plaintiff's motion to amend her complaint to conform to the evidence. "Plaintiff's claims were not clear at trial," and the trial court tried more than once to clarify them. She never stated that she was pursuing claims for bailment, conversion, or breach of fiduciary duty, and defense counsel's comments clearly indicated that the defendants did not consent to trying those claims. The court affirmed the trial court's order of dismissal and its order awarding defendants $7,962 in costs.

 

Municipal

 

This summary also appears under Real Property

 

Issues: Quiet title; Whether a plaintiff who seeks to establish an adverse possession claim that would affect property in a recorded plat must file a claim under the Land Division Act (LDA)(MCL 560.101 et seq.) if the plaintiff is not expressly requesting that the plat be vacated, corrected, or revised; Martin v. Beldean; Walker v. Bowen; Sanscrainte v. Torongo; MCL 600.5801; Burns v. Foster; Gorte v. Department of Transp.; Miller v. Miller; Zabowski v. Loerch; Escher v. Bender; "Plat"; MCL 560.102(a); MCL 560.206(1); MCL 560.222; MCL 560.223; MCL 560.223(b); Tomecek v. Bavas; Hall v. Hanson

Court: Michigan Supreme Court

Case Name: Beach v. Township of Lima

e-Journal Number: 48982

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

 

The court held that an action that seeks to establish a substantive property right arises independently of an LDA action to vacate, correct, or revise a recorded plat. It is only after such a property right is recognized that the need arises under the LDA to revise a plat that does not reflect the newly recognized property right. Until that property right is legally recognized, the LDA is inapplicable. The language of the LDA and cases analyzing the LDA establish that an LDA action is appropriate when a party's interest arises from or is traceable to the plat or the platting process. An action to quiet title by adverse possession confers judicial recognition that the possessor acquired marketable title of record to the property. A successful quiet title action also establishes a substantive property right that was not previously shown within the plat. Without possessing record title to the property, no one, including plaintiffs, had a basis on which to request an alteration of the plat under the LDA. Thus, plaintiffs were not required to file their action under the LDA. The dispute arose from a disagreement between plaintiff-Florence Beach and the defendant-township over property rights to areas of land shown as platted streets on a village plat. The plat, which was made and recorded in 1835, has remained unaltered since its execution. Through several conveyances that occurred in 1854, 1881, and 1897, the Beach family acquired the area of land now known as the Beach Family Farm. In 1954 the township purchased lots and in 2004, the township purchased several more lots intending to build a fire department substation. The township also intended to use and develop roads for ingress and egress to the substation. Plaintiffs disputed the township's right to use the undeveloped property designated as streets on the plat and filed to quiet title based on adverse possession. The trial court held that the plaintiffs established the elements of adverse possession and that they did not have to proceed under the LDA. The Court of Appeals affirmed. The court concluded that the dispute concerned "the establishment of a substantive right neither reflected in the plat nor traceable to the platting process." The court held that plaintiffs, who filed an action to quiet title based on adverse possession, were not required to proceed with an action under the LDA. Their "title action was the appropriate action to establish their entitlement to hold record title to the property at issue. Because plaintiffs' quiet title action established a substantive property right that was not reflected in the plat or traceable to the platting process, their action involved more than merely correcting the plat to reflect a preexisting interest in land." While they could have filed an action under the LDA contingent on establishing their substantive right in a quiet title action, they were not required to do so because they did not expressly request the alteration of the plat and because their quiet title action established a substantive property right for the first time. The court affirmed the judgment of the Court of Appeals. However, it ordered the trial court to strike the portion of its order that corrected the plat to reflect plaintiffs' successful quiet title action because plaintiffs did not request that relief.

 

The dissent believed that since plaintiffs' quiet-title action necessarily sought to "vacate, correct, or revise" the plat, they should have been required to bring their cause of action pursuant to the LDA. If plaintiffs wished to proceed under the LDA, they should be allowed to amend their complaint and to add all necessary parties. The dissenting justices believed that the majority's contrary interpretation undermined "the primary purpose of the LDA, which is to ensure that plats on file remain accurate" and its holding "will introduce greater uncertainty and instability into this state's property law, while incentivizing artful pleadings and gamesmanship. Under the law of this case, Michigan plats are destined over time to become increasingly more inaccurate and increasingly less reflective of actual property interests in this state." Thus, they respectfully dissented and would reverse the judgment of the Court of Appeals.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Governmental immunity; MCL 691.1407(2)(c); "Gross negligence" (MCL 691.1407(7)(a)); Oliver v. Smith (After Remand); Maiden v. Rozwood; Assault and battery claim; Espinoza v. Thomas; Smith v. Stolberg; "Conclusory statements"; Rose v. National Auction Group; Gross negligence claim based on failure to provide medical care; Absence of evidence of when the plaintiff brought her injury to the defendants' attention; Walden v. Green

Court: Michigan Court of Appeals (Unpublished)

Case Name: Burrell v. County of Macomb

e-Journal Number: 48838

Judge(s): Per Curiam – K.F. Kelly and Borrello; Concurring in part, Dissenting in part – Ronayne Krause

 

The court held that the defendants-police officers were entitled to summary disposition of the plaintiff's claims based on governmental immunity. Thus, the court reversed the trial court's order denying them summary disposition. Plaintiff asserted a gross negligence claim arising from her wrist injury. The court concluded that the injury sustained while the officers placed a wrist lock on her raised some question of fact as to whether they were as considerate of her safety as they should have been. However, otherwise the evidence only indicated that "the officers used the precise kind of restraint on plaintiff that is intended to control a resistive detainee." The only contrary evidence was her "conclusory, and therefore inadequate, statement that ‘[she] was assaulted.'" Thus, the court held that there was insufficient evidence of negligence to support a question of fact as to whether the officers committed gross negligence and they should have been granted summary disposition on this claim. The court also agreed with the officers that the trial court erred by denying their summary disposition motion as to plaintiff's assault and battery claim. Plaintiff asserted in her deposition that the officers "made hostile, malicious and threatening comments to her, as well as racial slurs and crude sexual comments." She also asserted that one of the officers "push-punched her and forcibly removed her hair extensions" and another officer pepper sprayed her. However, the court concluded that her claims in this regard were conclusory. "A party may not create a genuine issue of material fact by merely asserting conclusory statements." The court also held that the officers were entitled to summary disposition on plaintiff's gross negligence claim for failing to provide medical care. There was evidence that she brought her injury to defendants' attention, and there was a genuine question of fact as to whether she asked for medical care. However, there was "no evidence of when plaintiff brought her injury to defendants' attention, which, in context, is significant." The court concluded that the evidence was consistent with plaintiff reporting her injury late, around the time she was about to be transported to the county jail, and this explained defendants' alleged instruction to plaintiff to inform the county jail of her injury. "There is no evidence from which reasonable minds could infer that plaintiff gave defendants a realistic opportunity to provide her with medical care." While it was arguable that they should have noticed her injury, "failing to be as watchful as they should have been is not, by itself, more than ordinary negligence." The court held that there was no genuine question of fact whether the officers acted with reckless disregard.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Trip and fall on an uneven sidewalk in front of defendant-Baker College causing injury; Whether the trial court properly denied Baker College's motion for summary disposition because it did not owe plaintiff a duty under the Township's ordinance requiring it to maintain and repair abutting sidewalks or the common law; Adair v. State; Henry v. Dow Chem. Co.; Levendoski v. Geisenhaver; Ward v. Frank's Nursery & Crafts; Bivens v. Grand Rapids; Applicability of Figueroa v. Garden City

Court: Michigan Court of Appeals (Unpublished)

Case Name: Finkbeiner v. Township of Clinton

e-Journal Number: 48788

Judge(s): Per Curiam - Servitto, Hoekstra, and Owens

 

The court held that viewed in the light most favorable to the plaintiff, there was no genuine issue of material fact that her injury was caused by a condition existing outside the boundaries of defendant-Baker College's property and for which it had no common law duty to repair or maintain. Thus, summary disposition was appropriate in defendant's favor on plaintiff's claim of negligence premised on the common law and the trial court erred in denying defendant's motion. Reversed and remanded for entry of an order granting defendant summary disposition and dismissing the case in its entirety. Plaintiff alleged that she tripped and fell on an uneven sidewalk in front of Baker College, injuring her left leg, foot, and ankle. After a jury trial, a verdict was entered in plaintiff's favor against defendant. On appeal, defendant argued the trial court erred in denying its motion for summary disposition because it did not owe her a duty under a township ordinance requiring it to repair and maintain abutting sidewalks or the common law. The court concluded because defendant's duty ended with the boundaries of its premises, defendant was not liable for any injury occurring outside that boundary. It was undisputed that plaintiff's injury was incurred due to a trip and fall on the public sidewalk.

 

Negligence & Intentional Tort

 

This summary also appears under Construction Law

 

Issues: Construction site injury; Clarification of the "separate and distinct" mode of analysis in Fultz v. Union-Commerce Assocs.; Whether a contracting party's assumption of contractual obligations extinguishes or limits separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract; Davis v. Venture One Constr., Inc. (6th Cir.); Clark v. Dalman; Rinaldo's Constr. v. Michigan Bell Tel. Co.; Mierzejewski v. Torre & Bruglio, Inc.; Banaszak v. Northwest Airlines, Inc.; Elements of a prima facie negligence case; Roulo v. Auto Club of MI; "Duty" element; Beaty v. Hertzberg & Golden, PC; When a duty of care arises between a party to a contract and a noncontracting third party; Bennett v. MIS Corp. (6th Cir.); Williams v. Cunningham Drug Stores, Inc.; Ferrett v. General Motors Corp.; Hart v. Ludwig; Osman v. Summer Green Lawn Care, Inc.

Court: Michigan Supreme Court

Case Name: Loweke v. Ann Arbor Ceiling & Partition Co., L.L.C.

e-Journal Number: 48983

Judge(s): Cavanagh, Young, Jr., M. Kelly, Markman, and M.B. Kelly; Concurring in the result only – Hathaway; Not participating – Zahra

 

Clarifying Fultz's "separate and distinct" mode of analysis, the court held that "a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract." Since the defendant-subcontractor's summary disposition motion was based on an improper understanding of Fultz, and the Court of Appeals affirmed the trial court's order granting defendant summary disposition on that basis, the court reversed the Court of Appeals judgment and remanded the case to the trial court. Plaintiff, a subcontractor's employee, was injured when several cement boards fell on him. The boards were leaned against a wall by employees of the defendant, another subcontractor, which (like plaintiff's employer) was hired by the general contractor on the project. Plaintiff asserted that defendant had a common-law duty, separate and distinct from its contractual obligations to the general contractor, to use ordinary care in order to avoid physical harm to persons and property in executing its undertakings. In moving for summary disposition, defendant argued that under Fultz and its progeny, it owed plaintiff no duty that was "separate and distinct" from its contractual obligations to the general contractor. The court concluded that since Fultz and its progeny were issued, courts have erroneously interpreted its decisions "as rejecting accepted tort-law principles and creating a legal rule ‘unique to Michigan tort law,' which bars negligence causes of action on the basis of a lack of duty if a third-party plaintiff alleges a hazard that was the subject of the defendant's contractual obligations with another." While "Fultz clearly stated that a defendant's legal duty to act must arise separately and distinctly from a defendant's contractual obligations, Fultz's ‘separate and distinct mode of analysis' has been misconstrued to, in essence, establish a form of tort immunity that bars negligence claims raised by a noncontracting third party." The court concluded that courts have erroneously focused "on whether a defendant's conduct was separate and distinct from the obligations required by the contract or whether the hazard was a subject of or contemplated by the contract." Fultz's "directive is to determine whether a defendant owes a noncontracting third-party plaintiff a legal duty apart from the defendant's contractual obligations to another." Whether a defendant owes any duty to a plaintiff in tort "is generally determined without regard to the obligations contained within the contract . . . ." In engaging in Fultz's "separate and distinct mode of analysis," courts should not allow the contract's contents to obscure the proper initial inquiry - "whether, aside from the contract, the defendant owed any independent legal duty to the plaintiff." The defendant, by performing an act under the contract, "was not relieved of its preexisting common-law duty to use ordinary care in the execution of its undertakings. That duty, which is imposed by law, is separate and distinct from defendant's contractual obligations with the general contractor." The court did not decide whether this plaintiff was owed a common-law duty of care.

 

This summary also appears under Municipal

 

Issues: Governmental immunity; MCL 691.1407(2)(c); "Gross negligence" (MCL 691.1407(7)(a)); Oliver v. Smith (After Remand); Maiden v. Rozwood; Assault and battery claim; Espinoza v. Thomas; Smith v. Stolberg; "Conclusory statements"; Rose v. National Auction Group; Gross negligence claim based on failure to provide medical care; Absence of evidence of when the plaintiff brought her injury to the defendants' attention; Walden v. Green

Court: Michigan Court of Appeals (Unpublished)

Case Name: Burrell v. County of Macomb

e-Journal Number: 48838

Judge(s): Per Curiam – K.F. Kelly and Borrello; Concurring in part, Dissenting in part – Ronayne Krause

 

The court held that the defendants-police officers were entitled to summary disposition of the plaintiff's claims based on governmental immunity. Thus, the court reversed the trial court's order denying them summary disposition. Plaintiff asserted a gross negligence claim arising from her wrist injury. The court concluded that the injury sustained while the officers placed a wrist lock on her raised some question of fact as to whether they were as considerate of her safety as they should have been. However, otherwise the evidence only indicated that "the officers used the precise kind of restraint on plaintiff that is intended to control a resistive detainee." The only contrary evidence was her "conclusory, and therefore inadequate, statement that ‘[she] was assaulted.'" Thus, the court held that there was insufficient evidence of negligence to support a question of fact as to whether the officers committed gross negligence and they should have been granted summary disposition on this claim. The court also agreed with the officers that the trial court erred by denying their summary disposition motion as to plaintiff's assault and battery claim. Plaintiff asserted in her deposition that the officers "made hostile, malicious and threatening comments to her, as well as racial slurs and crude sexual comments." She also asserted that one of the officers "push-punched her and forcibly removed her hair extensions" and another officer pepper sprayed her. However, the court concluded that her claims in this regard were conclusory. "A party may not create a genuine issue of material fact by merely asserting conclusory statements." The court also held that the officers were entitled to summary disposition on plaintiff's gross negligence claim for failing to provide medical care. There was evidence that she brought her injury to defendants' attention, and there was a genuine question of fact as to whether she asked for medical care. However, there was "no evidence of when plaintiff brought her injury to defendants' attention, which, in context, is significant." The court concluded that the evidence was consistent with plaintiff reporting her injury late, around the time she was about to be transported to the county jail, and this explained defendants' alleged instruction to plaintiff to inform the county jail of her injury. "There is no evidence from which reasonable minds could infer that plaintiff gave defendants a realistic opportunity to provide her with medical care." While it was arguable that they should have noticed her injury, "failing to be as watchful as they should have been is not, by itself, more than ordinary negligence." The court held that there was no genuine question of fact whether the officers acted with reckless disregard.

 

Issues: Premises liability; Slip and fall on roof; Coblentz v. City of Novi; Rice v. Auto Club Ins. Ass'n; Whether the trial court properly determined that the action sounded solely in premises liability rather than both premises liability and a separate negligence claim; Adams v. Adams; James v. Alberts; Laier v. Kitchen; Benton v. Dart Props., Inc.; Whether plaintiff was a "licensee" or an "invitee"; Duty; Stitt v. Holland Abundant Life Fellowship; Hottmann v. Hottmann; Lugo v. Ameritech Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dupras v. Lloyd-Lee

e-Journal Number: 48876

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

 

The court held that summary disposition was appropriate whether the plaintiff was a licensee or an invitee and because the defendant owed no duty to plaintiff to warn him of the danger of stepping on a wet, sloped roof, the court affirmed. Plaintiff arrived at defendant's (plaintiff's uncle) home to help shingle the pitched roof of defendant's garage. The roof was covered in only tarpaper. Plaintiff observed that the roof was wet and advised defendant of that fact. According to plaintiff, defendant asked if his shoes squeaked when he walked on the roof and plaintiff stepped onto the roof, noting that his shoes did, in fact, squeak. Plaintiff testified that defendant, a licensed contractor, implied that the squeaking shoes indicated that it was okay to go onto the roof. Plaintiff continued to walk on the roof, then slipped and fell off, incurring injuries to his left leg. Defendant contended that plaintiff was a licensee and that defendant breached no duties owed to licensees. Defendant alternatively asserted that if plaintiff were deemed an invitee, the condition causing his fall (the wet roof) was open and obvious and that defendant still did not breach a duty owed to plaintiff. The trial court granted defendant's motion, finding that in this premises liability matter, plaintiff was an invitee, and that the wet condition of the roof was open and obvious such that defendant had no duty to warn of the danger posed by the wet roof. Plaintiff first asserted that the trial court erred in determining that the action sounded solely in premises liability rather than both premises liability and a separate negligence claim. Plaintiff argued that, at the very least, a genuine issue of fact existed as to whether defendant voluntarily undertook a separate, common law duty to give reliable advice, then breached that duty by indicating that as long as plaintiff's shoes squeaked on the roof, it was safe to walk on it. Because the condition of the roof created the harm, plaintiff's cause of action was one of premises liability. Plaintiff was present on defendant's property to assist defendant in re-roofing his garage. The trial court concluded that because plaintiff was at the home to confer a benefit to defendant he was an invitee. However, in a post-Hottmann case, the Supreme Court noted a divergence of case law on what circumstances create invitee status and reconciled them. Under Stitt, invitee is a status limited to only those present on a premises held open for a commercial purpose. There was no indication that plaintiff expected to be paid or otherwise compensated for the roofing work. Defendant's request that his nephew, plaintiff, assist him in re-shingling his roof could not be considered an opening of defendants' premises for a commercial purpose so as to raise plaintiff's legal status to that of invitee under the Stitt test. Plaintiff was a licensee and thus, defendant owed him only a duty to warn "of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved." The danger here involved a wet, pitched roof. Plaintiff was the one who initially noted that the roof was wet, such that the danger was not hidden. Common knowledge suggests that most surfaces, when wet, can become slippery. Also, though plaintiff indicated that he was inexperienced with roofs and was not aware of the danger posed by a wet roof, his own testimony suggested that defendant also did not believe the roof to be dangerous. According to plaintiff, defendant implied that if his shoes squeaked on the roof, it was safe. When plaintiff tested his shoes on the roof and found that they squeaked, he continued walking on the roof. Thus, not only was there no danger hidden to plaintiff, there was no hidden danger known by defendant. Even if plaintiff were an invitee, the court agreed with the trial court that the danger posed by the wet roof was open and obvious with no special aspects, such that defendant had no duty to warn plaintiff of or protect him from the same.

 

This summary also appears under Municipal

 

Issues: Trip and fall on an uneven sidewalk in front of defendant-Baker College causing injury; Whether the trial court properly denied Baker College's motion for summary disposition because it did not owe plaintiff a duty under the Township's ordinance requiring it to maintain and repair abutting sidewalks or the common law; Adair v. State; Henry v. Dow Chem. Co.; Levendoski v. Geisenhaver; Ward v. Frank's Nursery & Crafts; Bivens v. Grand Rapids; Applicability of Figueroa v. Garden City

Court: Michigan Court of Appeals (Unpublished)

Case Name: Finkbeiner v. Township of Clinton

e-Journal Number: 48788

Judge(s): Per Curiam - Servitto, Hoekstra, and Owens

 

The court held that viewed in the light most favorable to the plaintiff, there was no genuine issue of material fact that her injury was caused by a condition existing outside the boundaries of defendant-Baker College's property and for which it had no common law duty to repair or maintain. Thus, summary disposition was appropriate in defendant's favor on plaintiff's claim of negligence premised on the common law and the trial court erred in denying defendant's motion. Reversed and remanded for entry of an order granting defendant summary disposition and dismissing the case in its entirety. Plaintiff alleged that she tripped and fell on an uneven sidewalk in front of Baker College, injuring her left leg, foot, and ankle. After a jury trial, a verdict was entered in plaintiff's favor against defendant. On appeal, defendant argued the trial court erred in denying its motion for summary disposition because it did not owe her a duty under a township ordinance requiring it to repair and maintain abutting sidewalks or the common law. The court concluded because defendant's duty ended with the boundaries of its premises, defendant was not liable for any injury occurring outside that boundary. It was undisputed that plaintiff's injury was incurred due to a trip and fall on the public sidewalk.

 

Real Property

 

This summary also appears under Municipal

 

Issues: Quiet title; Whether a plaintiff who seeks to establish an adverse possession claim that would affect property in a recorded plat must file a claim under the Land Division Act (LDA)(MCL 560.101 et seq.) if the plaintiff is not expressly requesting that the plat be vacated, corrected, or revised; Martin v. Beldean; Walker v. Bowen; Sanscrainte v. Torongo; MCL 600.5801; Burns v. Foster; Gorte v. Department of Transp.; Miller v. Miller; Zabowski v. Loerch; Escher v. Bender; "Plat"; MCL 560.102(a); MCL 560.206(1); MCL 560.222; MCL 560.223; MCL 560.223(b); Tomecek v. Bavas; Hall v. Hanson

Court: Michigan Supreme Court

Case Name: Beach v. Township of Lima

e-Journal Number: 48982

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

 

The court held that an action that seeks to establish a substantive property right arises independently of an LDA action to vacate, correct, or revise a recorded plat. It is only after such a property right is recognized that the need arises under the LDA to revise a plat that does not reflect the newly recognized property right. Until that property right is legally recognized, the LDA is inapplicable. The language of the LDA and cases analyzing the LDA establish that an LDA action is appropriate when a party's interest arises from or is traceable to the plat or the platting process. An action to quiet title by adverse possession confers judicial recognition that the possessor acquired marketable title of record to the property. A successful quiet title action also establishes a substantive property right that was not previously shown within the plat. Without possessing record title to the property, no one, including plaintiffs, had a basis on which to request an alteration of the plat under the LDA. Thus, plaintiffs were not required to file their action under the LDA. The dispute arose from a disagreement between plaintiff-Florence Beach and the defendant-township over property rights to areas of land shown as platted streets on a village plat. The plat, which was made and recorded in 1835, has remained unaltered since its execution. Through several conveyances that occurred in 1854, 1881, and 1897, the Beach family acquired the area of land now known as the Beach Family Farm. In 1954 the township purchased lots and in 2004, the township purchased several more lots intending to build a fire department substation. The township also intended to use and develop roads for ingress and egress to the substation. Plaintiffs disputed the township's right to use the undeveloped property designated as streets on the plat and filed to quiet title based on adverse possession. The trial court held that the plaintiffs established the elements of adverse possession and that they did not have to proceed under the LDA. The Court of Appeals affirmed. The court concluded that the dispute concerned "the establishment of a substantive right neither reflected in the plat nor traceable to the platting process." The court held that plaintiffs, who filed an action to quiet title based on adverse possession, were not required to proceed with an action under the LDA. Their "title action was the appropriate action to establish their entitlement to hold record title to the property at issue. Because plaintiffs' quiet title action established a substantive property right that was not reflected in the plat or traceable to the platting process, their action involved more than merely correcting the plat to reflect a preexisting interest in land." While they could have filed an action under the LDA contingent on establishing their substantive right in a quiet title action, they were not required to do so because they did not expressly request the alteration of the plat and because their quiet title action established a substantive property right for the first time. The court affirmed the judgment of the Court of Appeals. However, it ordered the trial court to strike the portion of its order that corrected the plat to reflect plaintiffs' successful quiet title action because plaintiffs did not request that relief.

 

The dissent believed that since plaintiffs' quiet-title action necessarily sought to "vacate, correct, or revise" the plat, they should have been required to bring their cause of action pursuant to the LDA. If plaintiffs wished to proceed under the LDA, they should be allowed to amend their complaint and to add all necessary parties. The dissenting justices believed that the majority's contrary interpretation undermined "the primary purpose of the LDA, which is to ensure that plats on file remain accurate" and its holding "will introduce greater uncertainty and instability into this state's property law, while incentivizing artful pleadings and gamesmanship. Under the law of this case, Michigan plats are destined over time to become increasingly more inaccurate and increasingly less reflective of actual property interests in this state." Thus, they respectfully dissented and would reverse the judgment of the Court of Appeals.

 

Issues: Quiet title; Whether the plaintiff was a "bona fide purchaser"; American Fed. S & L Ass'n v. Orenstein; Johnson Family Ltd. P'ship v. White Pine Wireless, LLC; "Notice"; Richards v. Tibaldi; MCL 565.29

Court: Michigan Court of Appeals (Unpublished)

Case Name: Muhammad v. Everbank

e-Journal Number: 48844

Judge(s): Per Curiam – Cavanagh, Talbot, and Stephens

 

Since the plaintiff was charged with notice of the defendant's earlier recorded interest and the absence of documents in the chain of title granting any interest to the entity that gave plaintiff deeds to the property, the court held that the trial court properly determined that plaintiff was not entitled to the status of a bona fide purchaser. Thus, the court affirmed the trial court's order granting defendant summary disposition in this quiet title case. Plaintiff received a quit claim deed for the property from a non-party, Oxala, on 5/20/09, which was recorded on 5/21/09. Oxala also gave him a warranty deed for the property on 6/3/09, which was recorded on 7/14/09. A year earlier, on 5/19/08, defendant received and recorded a sheriff's deed for the property. The court noted that a bona fide or "‘good faith purchaser is one who purchases without notice of a defect in the vendor's title. Notice can be actual or constructive.'" If a title search had been conducted, it would have disclosed the absence of documents in the chain of title granting Oxala an interest in the property. "Such blatant discrepancies in the chain of title" would have placed a bona fide purchaser on notice of the necessity of making further inquiries as to the existence of third parties' claims or rights to the property. Thus, defendant's interest in the property was superior to any ownership interest alleged by Oxala. While the deed granting Oxala an interest was executed before defendant recorded its sheriff's deed, Oxala's failure to record its deed resulted in defendant being able to assert a priority interest.

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(g), (j), and (m); In re Sours; Judicial notice of a prior file; The child's best interests; In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Romeri

e-Journal Number: 48853

Judge(s): Per Curiam – Hoekstra, Murray, and M.J. Kelly

 

The trial court did not clearly err in finding that §§ 19b(3)(g), (j), and (m) were established by clear and convincing evidence and in terminating the respondent-mother's parental rights to the minor child. The evidence showed that respondent voluntarily released her parental rights to another child after proceedings were initiated under MCL 712A.2(b) and proven allegations of neglect, a demonstrated inability to care for the child despite several services, homelessness, and hospitalization for emotional disorders. The trial court took judicial notice of the prior file, which established the requirements of § 19b(3)(m). Due to the prior termination, there was a mandatory investigation after the birth of the child at issue in this case. Petitioner-DHS decided to send the infant home with respondent and the child's father with several in-home services. "Despite all these services and the care of two doctors, the minor child was admitted to the hospital at the age of five weeks suffering from malnutrition and a failure to thrive. The child was near death and was unable to suck." The hospital staff provided around-the-clock assistance and supervision while they tried to teach respondent how to feed, hold, and interact with the baby. "All who observed respondent described her as uninvolved with her baby, unable to learn how to feed or properly hold her baby, and constantly distracted by speaking and texting on her phone, the television, and the computer in the room." She failed to learn from instruction. The court held that this evidence was sufficient to establish §§ 19b(3)(g) and (j) by clear and convincing evidence. Further, the trial court did not clearly err in finding that terminating respondent's parental rights was in the child's best interests. While respondent accepted services and sought out the help of doctors and a psychologist, the facts showed that she did not improve her parenting. There also was clearly no bond between respondent and the child. Affirmed.

 

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