• Animal Law (1)
• Constitutional Law (1)
• Construction Law (1)
• Corrections (1)
• Criminal Law (7)
• Family Law (2)
• Insurance (4)
• Litigation (6)
• Municipal (1)
• Negligence & Intentional Tort (6)
• Tax (1)
• Termination of Parental Rights (2)

Animal Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether § 5(d) of the Equine Activity Liability Act (EALA) (MCL 691.1661 et seq.) creates a general claim of ordinary negligence; § 3 of the EALA (MCL 691.1663); "Inherent risk of an equine activity" defined; MCL 691.1662(f); "Equine activity" defined; MCL 691.1662(c); Whether plaintiff sufficiently supported a claim of negligence pursuant to the EALA; MCL 691.1665(d); To "engage in an equine activity" defined; MCL 691.1662(a); MCL 691.1665(b); Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendant's failure to post warning signs should have eliminated any limitation on his liability; § 6 (MCL 691.1666); "Equine professional" defined; MCL 691.1662(e); In re Wayne County Prosecutor; Whether the EALA violates the Title-Object Clause of the Michigan Constitution (Const. 1963, art. IV, § 24)

Court: Michigan Court of Appeals (Published)

Case Name: Beattie v. Mickalich

e-Journal Number: 43098

Judge(s): Per Curiam - Fort Hood, Cavanagh, and K.F. Kelly

 

The court concluded § 5(d) of the EALA does not create a general claim of ordinary negligence, but rather permits a negligence claim to arise where it necessarily involves something other than inherently risky equine activity, and held the trial court properly granted summary disposition for defendant, ruling § 3 of the EALA barred the plaintiff's suit because her injuries arose from an "inherent risk of equine activity." Plaintiff and defendant were neighbors. On 8 to 10 occasions in 2003 or 2004, defendant invited plaintiff over to his property to exercise a few of the horses. During these times, plaintiff would fetch the horse, groom, and saddle it before riding it. On one occasion, plaintiff rode one of defendant's horses without his permission. She fell to the ground, sustaining injuries to her shoulder and arm. As a result, she was not able to return to work for several months and her physical abilities have been limited. Plaintiff claimed defendant was "negligent" because he failed to properly secure the horse's head before saddling the horse, failed in his duty to avoid alarming the horse, and failed to lift the saddle up to the horse's back and instead made a high arching throw of the saddle which caused the horse to "spook," and then rear-up. She also claimed the trial court mischaracterized the EALA as granting "blanket immunity" to defendants defined in the EALA. Plaintiff's view was § 5 of the EALA permitted certain types of negligence claims, including a general claim of negligence, to be brought against defendants defined by the EALA. Although the court agreed the EALA does not create blanket immunity, the court held plaintiff's assertion the trial court misinterpreted the EALA was factually inaccurate. Subsection 5 provides certain exceptions to the limitation on liability created in § 3. Given these provisions, it was plainly obvious the EALA does not create blanket immunity. The trial court recognized this fact when it stated the EALA merely "limits [the] liability of equine activity sponsors and equine professionals." Thus, given the trial court's acknowledgment the EALA creates a limitation on liability, the court could not conclude the trial court legally erred in the manner plaintiff argued. Plaintiff's "more compelling" argument was § 5(d) permits a general negligence claim irrespective of EALA's limitation on liability. The court disagreed. Reading the subdivision in conjunction with subdivisions a, b, and c, as well as § 3 (which limits liability) led the court to conclude the Legislature did not intend § 5(d) to create a general negligence claim. All of the conduct described in subdivisions a, b, and c of § 5 falls outside the definition of "inherent risk of equine activity," which is the only activity for which liability is proscribed under the EALA. Reading the EALA as a whole in pari materia, it only makes sense if § 5(d) also includes other negligent activity not within the gambit of "inherent[ly] risk[y] . . . equine activity." To do as plaintiff suggested would be to permit a general negligence claim under § 5(d), which would consequently render § 3 nugatory, as it would destroy the limited liability for qualifying defendants created under that section. This result would completely eviscerate the purpose for which the Legislature enacted the EALA. The court declined to adopt such an interpretation. Affirmed.

 

Constitutional Law

 

This summary also appears under Corrections

 

Issues: Bivens action where plaintiff-former federal prisoner sued to challenge the actions of the mailroom employees at a federal prison in Michigan; Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics; Whether the district court properly refused to dismiss the plaintiff's Bivens complaint based on qualified immunity; Jurisdiction under the "collateral order" doctrine; Mitchell v. Forsyth; Whether any of the contested pieces of mail qualified as properly labeled "legal mail"; Sallier v. Brooks; Anderson v. Liberty Lobby, Inc.; 28 CFR § 540.19(b); Whether qualified immunity applied; Feathers v. Aey; Pearson v. Callahan; Lyons v. Xenia; 28 CFR § 540.18(b); Wolff v. McDonnell; Lavado v. Keohane; Knop v. Johnson; Whether the defendants acted objectively unreasonably "in light of the clearly established constitutional rights"; Nwaebo v. Hawk-Sawyer (Unpub. 6th Cir.); Bureau of Prisons (BOP)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Merriweather v. Zamora

e-Journal Number: 43094

Judge(s): Gibbons, Siler, and Stamp

 

The court affirmed the district court's order denying qualified immunity to defendants-Zamora, Vroman, Culver, and Dutton as to envelopes 7, 8, 10, 13, 14, 17, 18, 21, 22, 24, 27, 30, 31, 33, 35, and 36, and reversed the district court's order and held defendants-Beaudrie, Davenport, and Finch were entitled to qualified immunity. All claims related to envelope 28 should be dismissed. The plaintiff alleged in his original complaint numerous prison employees routinely opened and read his mail outside his presence even though the mail was marked properly as "legal mail" or "special mail" under BOP regulations. He attached 41 pieces of mail to his complaint to support his claims the prison employees had opened his legal mail in violation of his rights under the First, Fifth, and Sixth Amendments. He alleged despite his constant protests, prison employees failed to stop opening his legal mail. Particularly, the mailroom supervisor (Zamora) told him "This is Milan and we do it our way here." When plaintiff gave Zamora a copy of the court's decision in Sallier (which upheld a jury verdict for a prisoner in a § 1983 suit alleging the opening of legal mail in violation of constitutional protections), Zamora allegedly said, "We donot [sic] follow case laws [sic], we follow only BOP policy." Plaintiff's amended complaint named 17 defendants. The district court dismissed 4 of them in 2004. The court considered the numerous envelopes at issue and held -- inter alia, the district court erred in not dismissing plaintiff's claim as to envelope 28, the district court did not err by declining to grant summary judgment as to envelopes 27 or 36, and the defendants' stipulation envelope 22 was properly labeled, foreclosed their argument envelope 10 was improperly labeled meaning it was properly labeled legal mail. Since CFR § 540.19(b) only requires "an indication" the person sending the letter is an attorney, the court held the district court properly held envelopes 13, 14, 17, 18, 21, 24, 30, 31, and 33 were properly labeled as legal mail. Relevant case law in the circuit has established the constitutionality of a prisoner's right to receive mail. In Sallier, the court held the improper opening of legal mail can result not only in a constitutional violation, but also in the awarding of monetary damages. The court held the defendants' admission Milan employees improperly opened four pieces of legal mail was enough to state a claim. Combined with the 12 pieces of mail the court concluded were properly labeled, the court affirmed the district court's ruling plaintiff's claims were properly characterized as violations of clearly established constitutional rights. The court also held Zamora, Culver, and Vroman acted unreasonably and it was proper to deny them qualified immunity. Remanded for further proceedings.

 

Construction Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: "Common work area" (CWA) doctrine claim; Funk v. General Motors Corp; Ormsby v. Capital Welding, Inc. (four requirements to establish general contractor liability); Latham v. Barton Malow Co.; Number of employees present in the "common work area"; Hughes v. PMG Bldg., Inc.; Groncki v. Detroit Edison Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Slater v. F.H. Martin Constr. Co.

e-Journal Number: 43088

Judge(s): Per Curiam - Borrello, Meter, and Stephens

 

Since the record established the plaintiff could satisfy each of the four-prong "common work area" doctrine requirements, the trial court erred in granting the defendant general contractor-F.H. Martin Construction's motion for summary disposition. The first prong of the CWA doctrine requires a plaintiff to show the defendant, as the general contractor, failed to take reasonable steps within its supervisory and coordinating authority. The trial court noted defendant's agent, C, told plaintiff to remove the chain securing a 32-foot ladder to the building by going to the roof and cutting it from there. The trial court concluded this recommendation was a reasonable step, it was plaintiff's disregard of the recommendation which caused his fall and his "feeling" and "honest beliefs" about the method were not sufficient to create a question of fact as to the first prong. Plaintiff testified in his deposition, C said "if it were him that was responsible for cutting the chain, he would do it from the roof." Thus, the issue was whether it was reasonable for C, when faced with plaintiff's inquiries about the ladder, to instruct him to remove the ladder and to suggest doing so by first accessing the roof. The court held there was a genuine issue of material fact as to whether C's suggestion qualified as a reasonable step. The record showed there was a slight pitch to the roof, there had been a recent snowstorm, and plaintiff was concerned about traction problems on the roof. As to the second prong - the trial court found there was no genuine issue of material fact because the ladder was not a readily observable and avoidable danger. The court held this was erroneous. The ladder was chained to the building by a subcontractor and left in the way of plaintiff and his crew. Plaintiff did not have a key to unlock the chain, and C instructed him to remove the ladder by cutting the chain. In order to do so, defendant knew plaintiff would have to access the roof or climb the ladder. Plaintiff had not been trained to execute the removal methods and did not have fall protection. The court held there was a genuine issue of material fact as to this prong. Next, the trial court held there was no genuine issue of material fact as to the third prong of the CWA doctrine, which requires a showing the readily observable danger created a high degree of risk to a significant number of workers. The trial court held plaintiff could not show anyone else was endangered by the decision to climb the ladder. The court held the dangerous condition at the site created a high degree of risk for six people, which "is a significant number of workers." The court held the fact six workers faced potential injury was not insignificant. Finally, the trial court erroneously held he failed to prove the accident when the 215 pound plaintiff fell off the 32-foot ladder occurred in a CWA. Another workman testified he and other workers from a subcontractor were planning to work in the area of the accident on the day the accident occurred. It was undisputed five other employees were in the immediate area at the time the accident occurred and two separate contractors would have eventually worked in the area. The court held the area qualified as a CWA. Reversed and remanded.

 

Corrections

 

This summary also appears under Constitutional Law

 

Issues: Bivens action where plaintiff-former federal prisoner sued to challenge the actions of the mailroom employees at a federal prison in Michigan; Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics; Whether the district court properly refused to dismiss the plaintiff's Bivens complaint based on qualified immunity; Jurisdiction under the "collateral order" doctrine; Mitchell v. Forsyth; Whether any of the contested pieces of mail qualified as properly labeled "legal mail"; Sallier v. Brooks; Anderson v. Liberty Lobby, Inc.; 28 CFR § 540.19(b); Whether qualified immunity applied; Feathers v. Aey; Pearson v. Callahan; Lyons v. Xenia; 28 CFR § 540.18(b); Wolff v. McDonnell; Lavado v. Keohane; Knop v. Johnson; Whether the defendants acted objectively unreasonably "in light of the clearly established constitutional rights"; Nwaebo v. Hawk-Sawyer (Unpub. 6th Cir.); Bureau of Prisons (BOP)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Merriweather v. Zamora

e-Journal Number: 43094

Judge(s): Gibbons, Siler, and Stamp

 

The court affirmed the district court's order denying qualified immunity to defendants-Zamora, Vroman, Culver, and Dutton as to envelopes 7, 8, 10, 13, 14, 17, 18, 21, 22, 24, 27, 30, 31, 33, 35, and 36, and reversed the district court's order and held defendants-Beaudrie, Davenport, and Finch were entitled to qualified immunity. All claims related to envelope 28 should be dismissed. The plaintiff alleged in his original complaint numerous prison employees routinely opened and read his mail outside his presence even though the mail was marked properly as "legal mail" or "special mail" under BOP regulations. He attached 41 pieces of mail to his complaint to support his claims the prison employees had opened his legal mail in violation of his rights under the First, Fifth, and Sixth Amendments. He alleged despite his constant protests, prison employees failed to stop opening his legal mail. Particularly, the mailroom supervisor (Zamora) told him "This is Milan and we do it our way here." When plaintiff gave Zamora a copy of the court's decision in Sallier (which upheld a jury verdict for a prisoner in a § 1983 suit alleging the opening of legal mail in violation of constitutional protections), Zamora allegedly said, "We donot [sic] follow case laws [sic], we follow only BOP policy." Plaintiff's amended complaint named 17 defendants. The district court dismissed 4 of them in 2004. The court considered the numerous envelopes at issue and held -- inter alia, the district court erred in not dismissing plaintiff's claim as to envelope 28, the district court did not err by declining to grant summary judgment as to envelopes 27 or 36, and the defendants' stipulation envelope 22 was properly labeled, foreclosed their argument envelope 10 was improperly labeled meaning it was properly labeled legal mail. Since CFR § 540.19(b) only requires "an indication" the person sending the letter is an attorney, the court held the district court properly held envelopes 13, 14, 17, 18, 21, 24, 30, 31, and 33 were properly labeled as legal mail. Relevant case law in the circuit has established the constitutionality of a prisoner's right to receive mail. In Sallier, the court held the improper opening of legal mail can result not only in a constitutional violation, but also in the awarding of monetary damages. The court held the defendants' admission Milan employees improperly opened four pieces of legal mail was enough to state a claim. Combined with the 12 pieces of mail the court concluded were properly labeled, the court affirmed the district court's ruling plaintiff's claims were properly characterized as violations of clearly established constitutional rights. The court also held Zamora, Culver, and Vroman acted unreasonably and it was proper to deny them qualified immunity. Remanded for further proceedings.

 

Criminal Law

 

Issues: Whether the trial court correctly concluded after defendant produced a valid driver's license and valid paperwork for the vehicle the officer's request for identification and other information from the passengers was an unlawful intrusion; Whether the trial court properly held the officer could not search the vehicle as a search incident to the occupants' arrests; People v. Mungo; New York v. Belton; Arizona v. Gant

Court: Michigan Supreme Court

Case Name: People v. Hunter

e-Journal Number: 43095

Judge(s): Kelly, Cavanagh, Weaver, Corrigan, Young, Jr., Markman, and Hathaway

 

In an order in lieu of granting leave to appeal, the court vacated the judgment of the Court of Appeals (see e-Journal # 38963 in the 4/9/08 edition) and remanded the case to the Court of Appeals for reconsideration in light of the US Supreme Court's decision in Gant. In a prior order the court held the application for leave to appeal in the case in abeyance pending the US Supreme Court's decision in Gant. The Gant case was decided on April 21, 2009. The court noted a similar issue was presented in Mungo, which it peremptorily vacated and also remanded to the Court of Appeals for reconsideration in light of Gant.

 

Issues: Whether a police officer may permissibly search a car incident to a passenger's arrest where prior to the search there was no probable cause to believe the car contained contraband or to believe the driver and owner of the car had engaged in any unlawful activity; Arizona v. Gant; People v. Owen; Expectation of privacy in automobiles; People v. Carter; California v. Carney; "Automobile exception"; United States v. Ross; "Bright line" rule for searches incident to a lawful arrest; Chimel v. California; United States v. Robinson; United States v. Belton; Thornton v. United States

Court: Michigan Supreme Court

Case Name: People v. Mungo

e-Journal Number: 43096

Judge(s): Kelly, Cavanagh, Weaver, Corrigan, Young, Jr., Markman, and Hathaway

 

In an order in lieu of granting leave to appeal, the court vacated the judgment of the Court of Appeals in a published case (see e-Journal # 38201 in the 1/22/08 edition) and remanded to that court for reconsideration in light of the decision in Gant. The court had held the application for leave to appeal the judgment of the Court of Appeals in abeyance pending the decision by the US Supreme Court in Gant, which was decided on 4/21/09. The court also noted a similar issue was presented in People v. Hunter, unpublished opinion per curiam of the Court of Appeals, issued on 4/2/08, which the court peremptorily vacated and remanded to the Court of Appeals for reconsideration in light of Gant by order dated 6/23/09.

 

Issues: Prior inconsistent statements the victims made at the preliminary exam; MRE 801(d)(1)(A); People v. Malone; People v. Chavies; "I don't remember" or "I don't know" answers as inconsistent statements; MRE 613(b); Extrinsic impeachment evidence; People v. Jenkins; Harmless error; People v. Miller; Hearsay; Admission of a victim's statement to a friend under MRE 803A; People v. Meeboer; Sentencing; Scoring of OV 4 at 10 points (serious psychological injury to a victim requiring professional treatment); People v. Wilkens; Whether the defendant's 13 to 20-year sentences for his CSC I convictions were disproportionate; Effect of the fact the sentences were within the guidelines range; MCL 769.34(10); People v. Kimble; Constitutionality of MCL 769.34(10); People v. Garza

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Alibeg

e-Journal Number: 43053

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

While the trial court erred in ruling the victims' inconsistent prior statements at the preliminary exam were inadmissible as substantive evidence, the error was harmless. Defendant was convicted of three counts of CSC I and three counts of CSC II for sexually abusing sisters AN and AY, who were both under 13 years old. He argued, inter alia, the trial court erred in refusing to admit statements the victims made at the preliminary exam pursuant to MRE 801(d)(1)(A) and MRE 613(b). Relying on Chavies, he contended the victims' "I don't remember" or "I don't know" answers constituted inconsistent statements. The court concluded the focus on the victims' memory about their preliminary exam testimony was misplaced. The relevant inquiry was "whether the victims' testimony at trial regarding the matters on which they were examined was inconsistent with their preliminary examination testimony." They gave specific answers at trial about the matters on which they were examined, distinguishing this case from Chavies, where the witnesses claimed lack of memory at trial concerning the matter about which they gave detailed grand jury testimony. Looking at the substance of the testimony defendant sought to admit, the court concluded in all but one instance the victims' trial testimony was directly contrary to their preliminary exam testimony. Thus, the trial court erred in ruling the inconsistent prior statements were not admissible as substantive evidence. However, defendant impeached the victims at trial with their preliminary exam testimony, raising the issue of their credibility for the jury, and the court did not see how admitting their preliminary exam statements as substantive evidence would have furthered his goal of showcasing their alleged shaky credibility. He did not show it was more probable than not the error was outcome determinative. The jury chose to believe the victims despite defense counsel's questions. While the trial court also erred in excluding AN's prior inconsistent statement about how many fingers defendant used to touch her, pursuant to MRE 613(b), this error was also harmless. Defendant impeached AN with her preliminary exam testimony and the trial court instructed the jury it could consider any inconsistent statements in assessing the witnesses' credibility. Affirmed.

 

Issues: Motion for a directed verdict; Sufficiency of the evidence to establish the elements of assault with intent to commit CSC involving penetration; People v. Starks; People v. Grant; People v. Reeves; Whether the corpus delicti rule prohibited defendant's convictions; People v. Cotton; Other acts evidence; Plain error; People v. Carines; People v. Knox; People v. Sabin (After Remand); People v. Graves; Sentencing; Whether the trial court failed to exercise its discretion in setting the maximum sentence; People v. Sexton; MCL 769.11(1)(a); People v. Beneson; People v. Knapp; Scoring of OVs 4, 9, 10, and 13; People v. Kimble; People v. Wilson; People v. Babcock; Whether the trial court erred by ordering defendant to reimburse attorney fees for his appointed counsel without making a determination of his ability to pay; People v. Dunbar; Whether the assessed attorney fees should have been included as part of the judgment of sentence; MCL 769.1k(1)(b)(iii); People v. Trapp; People v. Ransom

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Boyle

e-Journal Number: 43066

Judge(s): Per Curiam - Meter and Fort Hood; Dissent - Jansen

 

The trial court did not err in denying the defendant's motion for a directed verdict since the evidence was sufficient to establish the elements of assault with intent to commit CSC involving penetration where two assaults were established and in both instances, he attempted to commit a battery. His convictions arose from his April 12, 2006, encounters with two females living in his neighborhood. On both occasions he approached the victims while they were alone at home. He attempted to gain entry to the homes, but it was denied in both instances. He later told police officers investigating the incidents he was having trouble with sexual urges and intended to have forcible sex with the victims if he had gained entry to their homes, which was sufficient to establish he attempted to commit a battery. He also had the "present ability" to commit the batteries. He was present at the women's homes, was physically very close to the women, and had taken significant steps towards the "consummation" of the batteries. Although he was thwarted from completing the battery in the second incident by the woman's closing and locking the door, he came in close proximity to completion of it and had, for a time, the present ability to complete it. In the first incident, he was thwarted merely by a screen door. It was certainly reasonable to conclude despite the screen door's being locked, he nonetheless had the present ability to complete the assault but essentially "lost his momentum" when the door did not immediately open. Also, contrary to the dissent's conclusion, the court did not believe the corpus delicti rule prohibited defendant's convictions. His convictions and sentences were affirmed, the imposition of attorney fees was vacated, and the case was remanded for a determination of his present and future ability to reimburse costs for his appointed counsel, for amendment of the judgment of sentence, and correction of the PSIR.

 

Issues: Docket No. 286490 - Defendant's challenge to the validity of his convictions related to his unlawful entry into his mother's house and robbing her of her property; Whether the trial court erred in conducting voir dire; Waiver; People v. Carter; Ineffective assistance of counsel; People v. Mack; People v. Dendel; Admissibility of prior conviction; People v. Clemons; MRE 609(b); People v. Allen; Sufficiency of the evidence to convict the defendant of first-degree home invasion; People v. Kanaan; Sentencing; Whether the court had jurisdiction to consider the prosecutor's appeal in Docket No. 284143; Whether the trial court had authority to resentence defendant in that case; MCR 7.208(A) and (B); MCR 6.429(B)(2); MCR 7.211(C)(1); The prosecutor's challenge to the sentencing departure; People v. Buehler; People v. Horn; People v. Rivers; People v. Sickles; People v. Powell; People v. Smith; People v. Babcock; Resentencing before a different judge; Armstrong v. Ypsilanti Charter Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Caple

e-Journal Number: 43078

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Concluding the defendant waived any claims related to the trial court's voir dire, defense counsel was not ineffective related to the voir dire, reversal was not required due to the mention of a prior theft-related conviction, the evidence was sufficient to establish defendant entered his mother's house without permission to convict him of first-degree home invasion, the trial court lacked jurisdiction to resentence him, and erred in finding a rejected plea offer provided a substantial and compelling reason to depart below the guidelines in sentencing him, the court affirmed his convictions, but remanded for resentencing. Defendant was convicted by a jury of first-degree home invasion and unarmed robbery related to his unlawful entry into his mother's house and robbing her of her property. He was originally sentenced to three years' probation, with the first year to be served in the county jail, and placement in a mental health diversion program. The trial court later resentenced him to five years' probation, with the first year to be served in the county jail, and placement in a mental health program after his release. In Docket No. 284143, the prosecutor appealed the trial court's downward departure from the guidelines range of 36 to 60 months and the probation sentence. In Docket No. 286490, defendant argued, inter alia, the trial court lacked authority to vacate his original sentence of three years' probation and to resentence him to a longer term of five years' probation. The court concluded under the circumstances MCR 7.208(a) precluded the trial court from setting aside or amending the February 15, 2008, judgment of sentence after a claim of appeal was filed, and no exception to the rule was applicable. Thus, the trial court did not have jurisdiction to resentence him. As to the sentencing departure below the guidelines, the trial court explained it was appropriate because a county mental health diversion program was willing to accept defendant and because the prosecutor previously made a plea offer including a sentence agreement of three years' probation, with the first year served in the county jail. The court held the trial court erred in finding the rejected plea offer provided a substantial and compelling reason to depart below the guidelines.

 

Issues: Sufficiency of the evidence to support the defendant's convictions of two counts of felonious assault, two counts of assault with intent to commit great bodily harm less than murder, and third-degree fleeing and eluding a police officer; People v. Nowack; People v. Chambers; People v. Brown; People v. Grayer; Prosecutorial misconduct; People v. Schutte; People v. Watson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hightower

e-Journal Number: 43067

Judge(s): Per Curiam - Markey, Fitzgerald, and Gleicher

 

There was sufficient evidence to support the defendant's convictions of 2 counts of felonious assault and assault with intent to commit great bodily harm less than murder where the evidence showing he fired 3 or 4 gunshots toward the officers from a distance of between 30 to 40 feet supported the jury's rational determination beyond a reasonable doubt as to each of the officers defendant committed "an attempt or threat with force or violence to do corporal harm to another (an assault)" while intending to injure the officers or place them "in reasonable apprehension of an immediate battery." Defendant contended the prosecutor failed to prove his identity as the individual who committed the charged crimes, or the elements of felonious assault. Officers-E and M testified in the early morning hours of August 4, 2007, they drove past a burgundy Intrepid as its driver fired gunshots out of the car's passenger-side front window. E identified defendant as the Intrepid's driver. The officers turned their patrol car around and began a seven or eight block pursuit of the Intrepid, which ended when they caught up to it on the service drive, where it had crashed into a pole. According to the officers, as they assisted defendant's girlfriend and their infant, who also occupied the car when it crashed, they heard three or four gunshots headed in their direction, which M characterized as "extremely close" and in the "immediate area." On hearing the shots, the officers, defendant's girlfriend and the baby took cover, and the officers radioed they were "under fire." The officers agreed the shots had come at them from the freeway embankment or the freeway itself, below where the Intrepid was located. E recounted when she looked toward the area where the shots had originated, she saw in the "well lit" vicinity of the freeway defendant running with a limp across the freeway median and the distant freeway lanes. She added she participated in a foot pursuit of him on a bridge across the freeway, at which point she could see him from 30 to 40 feet away, "long enough to give out a very good physical description of exactly what he was wearing ["a black and white striped shirt, dark colored pants"], pretty much his height, build, everything." M retrieved from a lane on the freeway a run-over nine-millimeter handgun, and later recovered at the location where defendant had fired at another vehicle a nine-millimeter shell casing. The police later learned the Intrepid's registration was in defendant's name. An officer apprehended him shortly after the shooting, when he received advice to look for defendant at a particular house. There, his brother directed the officer to a back bedroom where he found defendant on a bed near the white shirt with black or gray stripes described by E, which fit him. Based on these facts, the evidence also proved his identity as the individual who committed the charged crimes. Affirmed.

 

Issues: Whether MCL 257.625(9)(c) as amended by 2006 PA 564 violates the Ex Post Facto and Due Process Clauses of the US and Michigan Constitutions; People v. Sadows; People v. Perkins; Ineffective assistance of counsel; No requirement counsel make a futile objection; People v. Fike

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Kucharek

e-Journal Number: 43057

Judge(s): Memorandum - Jansen, Hoekstra, and Markey

 

The court was bound by Sadows and Perkins to reject the defendant's argument MCL 257.625(9)(c), as amended by 2006 PA 564 (effective January 3, 2007), violated the Ex Post Facto and Due Process Clauses of the US and Michigan Constitutions. The court held in Sadows and Perkins MCL 257.625(9)(c), as amended, does not violate due process or the prohibition against ex post facto laws. The court also rejected defendant's claim defense counsel was ineffective for not objecting to the use of defendant's prior convictions to enhance the OUIL charge against him to a felony. Since MCL 257.625(9)(c) is not an ex post facto law and does not violate due process, any objection to the use of his 1995 and 1999 convictions would have been futile, and defense counsel was not required to make a futile objection. Defendant's OUIL, third offense conviction was affirmed.

 

Family Law

 

Issues: Divorce; Division of property; Whether the trial court made erroneous findings of fact; Sparks v. Sparks; Draggoo v. Draggoo; Olson v. Olson; Nalevayko v. Nalevayko; Pickering v. Pickering; Gates v. Gates; Whether the trial court erred by failing to make specific findings of fact about the values of certain financial accounts; Byington v. Byington; Whether the trial court erred in failing to include two accounts and a life insurance policy as marital assets; Award to the plaintiff of half of the defendant's Air Force pension plan; MCL 552.18(2); Quade v. Quade; Boyd v. Boyd; Child support; Burba v. Burba; Kosch v. Kosch; Stallworth v. Stallworth; MCL 552.519(3)(a)(vi); Spousal support; Berger v. Berger; Moore v. Moore; Attorney fees; Reed v. Reed; Borowsky v. Borowsky; Whether the trial court's award of spousal support was improperly intended as child support; Lesko v. Lesko; Whether the case was unusually complex; MCR 3.206(C)(1); Whether the trial court appropriately based its award of attorney fees on defendant's failure to cooperate in discovery requests

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mork v. Mork

e-Journal Number: 43069

Judge(s): Per Curiam - Beckering, Wilder, and Davis

 

The trial court did not abuse its discretion in following the general rule to value the marital assets at the time of trial. The parties met while they were both students at college, and they married in 1984. The defendant-husband proceeded to obtain a Ph.D. in analytical chemistry, while the plaintiff-wife discontinued her education after her second year at college. Defendant served in the Air Force and the Air Force Reserves, and then he worked for several government defense contractors in California. Plaintiff's role during the marriage was as a traditional wife and stay-at-home mother for the parties' four children (two of whom had reached adulthood by the time of trial), although she did engage in some part-time work. Defendant provided almost all of the parties' income. The trial court attempted to divide the parties' assets, aside from certain particulars, evenly. Many of those assets were financial accounts, and the trial court decided to use the date of trial as the valuation date for those accounts. Defendant argued doing so was inequitable because he made investments into two of these accounts during the parties' separation, from which plaintiff should not benefit. But the trial court found he did so at a time when he was failing to pay his child support obligations. The determination of the proper time for valuation of an asset is within the trial court's discretion. Further, the determination was exceedingly difficult when the value of an asset had changed since the parties manifested an intent to lead separate lives. The trial court's decision to not reward defendant for the savings he accumulated at the expense of his support obligations was not inequitable. Further, the court was not persuaded by his argument the accrued arrearage at the time of trial was artificially inflated, or his payment of the arrearage by the time judgment was entered excused his earlier noncompliance with the court's support order. "Defendant unilaterally decided to flout the trial court's support order and to pay the support amounts into an account that he exclusively controlled." The trial court's decision to hold in abeyance its decision on his motions to adjust his support obligation based on his reduced income or to credit him for payments he voluntarily made was neither unjust nor unfairly prejudicial to defendant. Both of these motions required the trial court to make findings of fact on contested issues concerning defendant's imputed income and his financial support of plaintiff and the children after their separation. It was not unreasonable for the trial court to decide these matters at trial and then make any appropriate credits or adjustments. The court reversed the part of the trial court's judgment imputing income to defendant on the basis of possible private employment in Michigan or his Air Force Reserves experience, but affirmed in all other respects Since the imputation of income affected other aspects of the trial court's judgment, the court remanded the case for further proceedings as the trial court deemed appropriate and necessary.

 

This summary also appears under Litigation

 

Issues: Dismissal of a complaint for divorce because of a default divorce decree previously entered in Texas; The Uniform Enforcement of Foreign Judgments Act (MCL 691.1171 et seq.); The Full Faith and Credit Clause of the US Constitution; Blackburne & Brown Mortgage Co. v. Ziomek; Nash v. Salter; Failure to consider the Texas court's jurisdictional reach; Res judicata; Jones v. Chambers; Child custody matters; The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)(MCL 722.1101 et seq.); MCL 722.1201(1); "Home state" (MCL 722.1102(g)); MCL 722.1206(1); MCL 722.1303(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Simcox v. Simcox

e-Journal Number: 43079

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

The court reversed the trial court's order dismissing the plaintiff-wife's divorce complaint due to a default divorce decree previously entered in Texas, concluding the trial court erred in dismissing the case without any consideration of the Texas court's jurisdictional reach and it was required to proceed on child custody issues pursuant to the UCCJEA. Plaintiff and the defendant-husband were married in Michigan and had one child together. Defendant filed a petition for divorce in Texas in July 2007. Plaintiff acknowledged she was served with a copy of the Texas divorce complaint but she never responded or appeared in the Texas case. A default divorce judgment was entered in Texas in September 2007. Plaintiff filed a divorce complaint in Michigan in August 2007. She alleged the parties separated in October 2006 and their child resided with her in Michigan. The court held the trial court was not required to abide by the Texas divorce judgment if Texas did not have personal or subject-matter jurisdiction to enter it, and plaintiff could collaterally attack the judgment in Michigan. While defendant did not technically seek to enforce the Texas judgment in Michigan, he sought to use it to argue he was entitled to summary disposition based on res judicata. In responding to his summary disposition motion, plaintiff was effectively collaterally attacking the Texas judgment on the basis the Texas court lacked jurisdiction. Res judicata generally requires, in part, a final decision by a court of competent jurisdiction. The court concluded although it appeared there was never a marital residence in Texas and plaintiff never lived in or had meaningful contacts with Texas, the record was insufficiently developed to properly determine if the relevant Texas statute was satisfied or not. If the trial court determines on remand the Texas court lacked jurisdiction, plaintiff's Michigan divorce case can continue. However, even if the trial court finds the Texas court had jurisdiction as to the divorce issues in general, the court held it must proceed on child custody issues because the record established Michigan was and is the child's "home state" and a Michigan court has never "declined" jurisdiction. The court held child custody issues shall proceed in the Michigan court just as if the Texas court, which lacked jurisdiction under the UCCJEA, never ruled on custody. Reversed and remanded.

 

Insurance

 

This summary also appears under Litigation

 

Issues: Declaratory action by the plaintiff-insurer as to whether it had a duty to defend or indemnify defendant-Keizer; Whether the trial court properly denied appellant-Hayward's (the injured party) motion to intervene; MCR 2.209(A)(3); "Abuse of discretion" standard of review; Precision Pipe & Supply, Inc. v. Meram Constr., Inc.; Whether the trial court was aware it had discretion in the matter; Rieth v. Keeler; In re Costs & Attorney Fees; Whether Keizer adequately represented Hayward's interests; Whether Hayward was an intended third-party beneficiary of the insurance contract or merely an incidental beneficiary; Applicability of Schmalfeldt v. North Pointe Ins. Co.; Allstate Ins. Co. v. Hayes

Court: Michigan Court of Appeals (Published)

Case Name: Auto-Owners Ins. Co. v. Keizer-Morris, Inc.

e-Journal Number: 43099

Judge(s): Markey, Jansen, and Hoekstra

 

Concluding it was preferable for appellant-Hayward (the injured party) to have an opportunity to present a theory under which coverage under plaintiff's policy might exist since it was "but a minor extension of Allstate to recognize the standing of an injured person to intervene in a declaratory action concerning insurance coverage for the alleged tortfeasor," the court reversed the trial court's decision not to allow Hayward to intervene and remanded to the trial court for proceedings consistent with its opinion. Hayward was injured while performing construction work, allegedly the result of an equipment explosion. Defendant-Keizer manufactured and sold the equipment to Hayward's employer. Hayward sued Keizer alleging breach of warranty and negligence. Keizer turned the suit over to plaintiff, its insurer, but it denied coverage arguing the policy excluded coverage for the incident. Plaintiff filed this case seeking a declaration it had no duty to defend or indemnify Keizer. Hayward tried to intervene as a necessary party because Keizer was a dissolved or otherwise defunct corporation and his rights would be affected if it lacked insurance coverage. The trial court denied the motion without explanation, denied reconsideration, and granted plaintiff summary disposition. Keizer had neither appeared nor opposed anything related to the lawsuit. Hayward argued, inter alia, his ability to recover damages from Keizer depended on it having insurance coverage for the injury-causing incident and Keizer as a defunct business did little to contest plaintiff's position and inadequately represented his interests. Plaintiff argued Hayward was neither a party to, nor third-party beneficiary of, the insurance contract between it and Keizer, but was merely an "incidental" beneficiary with no right to participate in the litigation over whether coverage existed. The court held Hayward's interests were not advocated by Keizer and he was entitled to apply his own vigorous advocacy to the question whether there was coverage under the policy, but he had not presented a theory under which coverage might exist. The court concluded it was preferable for him to have his opportunity to do so in the trial court. Reversed and remanded.

 

This summary also appears under Litigation

 

Issues: Payment for a van as an "allowable expense" under the No-Fault Act (MCL 500.3107(1)(a)) where the plaintiff was rendered a quadriplegic in the accident; Griffith v. State Farm Mut. Auto. Ins. Co.; Davis v. Citizens Ins. Co. of Am.; Waiver of right to appellate review; Westgate v. Adams; Bonkowski v. Allstate Ins. Co.; Chapdelaine v. Sochocki; Whether plaintiff's theories of liability in the second case arising from defendant-Michigan Bell's handling of his benefits claims were barred by res judicata; Adair v. State; Sewell v. Clean Cut Mgmt., Inc.; Richards v. Tibaldi; Pierson Sand & Gravel, Inc. v. Keeler Brass Co.; Schwartz v. City of Flint; Whether the claims in the second case were or could have been resolved in the first case; The "same evidence" test; Dart v. Dart; The "same transaction" test; Whether plaintiff could have brought his attendant care claims (under theories of contract, estoppel, or statutory construction) in the first case; Claim for invasion of privacy-trespass; Earp v. Detroit; Lewis v. LeGrow; "Intrusion upon another's seclusion or solitude, or into another's private affairs" theory; Doe v. Mills; Defendant's right to investigate a party asserting liability against it; Saldana v. Kelsey-Hayes Co.

Court: Michigan Court of Appeals (Published)

Case Name: Begin v. Michigan Bell Tel. Co.

e-Journal Number: 43097

Judge(s): Per Curiam - Jansen and Markey; Concurrence - Hoekstra

 

Rejecting the defendants' "bright-line rule" if an injured person uses a product, service or accommodation both before and after their motor vehicle accident, it cannot meet the statutory causal relationship tests clarified in Griffith for an "allowable expense" no-fault benefit, the court held the trial court did not err in denying defendants summary disposition in Docket No. 279891 (the first case). However, the trial court erred in denying defendant-Michigan Bell summary disposition in Docket No. 284114 (the second case), in which plaintiff asserted several theories of liability arising from defendant's handling of his benefits claims, because the claims could have been brought in the first case and thus, were barred by res judicata. In the first case, defendants appealed by reserved claim of right a consent judgment requiring them to pay $25,059 for a van as an allowable expense under the No-Fault Act. Plaintiff's claim arose from a 1988 motor vehicle accident, which occurred while he worked for Michigan Bell. He was rendered a quadriplegic by his injuries in the accident. The court concluded the defendants waived appellate review of the issues of reasonableness under MCL 500.3107(1)(a), and rejected their claim they were entitled to judgment as a matter of law under Griffith. While the Supreme Court clarified judicial construction of MCL 500.3105(1) and MCL 500.3107(1)(a) in Griffith, it did not specifically overrule Davis. Thus, Davis remained binding precedential authority. The Supreme Court held in Griffith "a product, service or accommodation an injured person uses both before and after a motor vehicle accident might be an ‘allowable expense' no fault benefit depending on the particular facts and circumstances involved." Plaintiff alleged and presented evidence the trial court ruled supported his claim a modified van "was causally connected to the accidental bodily injury arising out of an automobile accident." In the second case, he alleged contract, estoppel, and statutory construction claims asserting a right to payment of attendant care benefits in the manner previously used by Michigan Bell, invasion of privacy-trespass, and intentional infliction of emotional distress. The court concluded, inter alia, he could have, with reasonable diligence, brought those claims in the first case. Affirmed in Docket No. 279891 and reversed in Docket No. 284114.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Negligence claims against an insurance company and agent; Statute of limitations; Whether MCL 600.5855 (dealing with fraudulent concealment) applied; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; "Mere silence"; Intentional misrepresentation and silent fraud claims; Amco Builders & Developers, Inc. v. Team Ace Joint Venture; Hord v. Environmental Research Inst. of MI (After Remand); Whether a duty arose because of a "special relationship"; Harts v. Farmers Ins. Exch.; Whether the trial court properly held the defendants were exempt from liability under the Michigan Consumer Protection Act (MCPA); MCL 445.904(1)(a); The Insurance Code (MCL 500.2001 et seq.); MCL 445.903(1); MCL 445.904(1)(a); Liss v. Lewiston-Richards, Inc.; Whether the trial court improperly closed the case before the identity of defendant-John Doe could be determined

Court: Michigan Court of Appeals (Unpublished)

Case Name: Akers v. Bankers Life & Cas. Co.

e-Journal Number: 43073

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

The trial court properly granted defendants-Bankers Life and Nelson summary disposition on the plaintiff's tort claims based on the expiration of the applicable three-year statute of limitations. In 1999, Z, who was employed by Bankers Life, sold plaintiff a long-term care insurance policy. Bankers Life terminated Z in April 2002 for unethical activities related to her job. A Bankers Life representative informed plaintiff by letter Z "no longer represent[ed]" the company, but plaintiff was not told Z had been terminated or the reasons for her termination. Bankers Life reassigned plaintiff's policy to another insurance agent, "John Doe." In May 2002, Z contacted plaintiff and advised her to buy a $50,000 annuity from another company. She did so. She also followed Z's advice to obtain a "reverse mortgage" on her home and to withdraw funds from an IRA account. Z then persuaded plaintiff to cash the annuity and invest its proceeds, as well as those from the mortgage and the IRA, in an investment opportunity, which was later revealed as a "Ponzi" scheme. Plaintiff alleged claims for, inter alia, negligence, intentional misrepresentation, silent fraud, and violation of the MCPA. She argued the trial court wrongly decided her negligence claims were time-barred, asserting defendants fraudulently concealed Z's termination and the reasons for her termination so as to postpone the running of the statute of limitations. The court rejected plaintiff's claim MCL 600.5855, which deals with fraudulent concealment, applied. She did not allege evidence sufficient to establish fraudulent concealment. She admittedly did not contact Bankers Life to inquire about the reasons for Z's termination. Thus, she relied on mere silence. Because silence is not enough to show fraudulent concealment, her tort claims were not exempted from the applicable statute of limitations. Plaintiff also argued her intentional misrepresentation and silent fraud claims should have survived summary disposition. However, there was no representation and thus, no misrepresentation. Further, for silent fraud "mere nondisclosure of facts is insufficient." Similarly, "a legal duty to make a disclosure will arise most commonly in a situation where inquiries are made by the plaintiff, to which the defendant makes incomplete replies that are truthful in themselves but omit material information." But here, plaintiff made no inquiry at all. She argued a duty arose by virtue of a "special relationship," But there was no representation regarding the fact of termination or the reasons for it and, accordingly, no misrepresentation. There was no request for information, ambiguous or otherwise, and no inquiry leading to inaccurate information. Further, there was no assumption of duty. Thus, there was no basis for the finding of a special relationship. Summary disposition on the intentional misrepresentation and fraud claims was also proper. Affirmed.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; The No-Fault Act (MCL 500.3101 et seq.) threshold; MCL 500.3135(1); "Serious impairment of body function" (MCL 500.3135(7)); Kreiner v. Fischer

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cottrill v. Senter

e-Journal Number: 43083

Judge(s): Per Curiam - Fitzgerald and Talbot; Dissent - Shapiro

 

Holding the record indicated as a matter of law the injured minor child's injuries and resulting impairments fell far short of the threshold required by Kreiner, the court affirmed the trial court's order granting defendant-Senter summary disposition. Senter was allegedly driving under the influence of alcohol when he crossed the centerline and collided head on with a vehicle in which the minor, A, was a passenger. A, then in eighth grade, sustained fractures in his left arm, right foot, and three ribs. He required household services and attendant care for a month, during which he was under medical orders not to use his left arm or right foot. Afterward, he was permitted to resume weight-bearing activities but was still disabled from participation in sports. While the plaintiff asserted medical records showed a parent reported A experienced a brief loss of consciousness before EMS arrived, there was no objective medical evidence of this, or evidence showing A was ever diagnosed with or treated for a traumatic brain injury. A testified at deposition he missed attending school for two months during the eighth grade, but he completed the school year on time and advanced to the ninth grade. He reported he had fully recovered from his injuries except for minor residual pain in his ribs, which he did not expect to continue much longer. He testified because of his "ribs and ... doctors" he was not currently playing football, but he looked forward to participating in the sport the next year. The trial court concluded A's injuries and impairments did not change the trajectory of his life and thus, could not justify recovery in tort under the No-Fault Act. The court agreed, holding while it was "no minor matter for a middle-school student to miss two months' schooling, the interruption in this instance affected the trajectory of that school year, not of" A's life in general. A's deposition testimony showed he progressed normally in school despite this setback. The court noted his treatment or therapies consisted of casts, crutches, x-rays, and a few follow-up exams to monitor his progress. No surgery, overnight hospitalization, or heavy medication was involved. Affirmed.

 

Litigation

 

This summary also appears under Insurance

 

Issues: Declaratory action by the plaintiff-insurer as to whether it had a duty to defend or indemnify defendant-Keizer; Whether the trial court properly denied appellant-Hayward's (the injured party) motion to intervene; MCR 2.209(A)(3); "Abuse of discretion" standard of review; Precision Pipe & Supply, Inc. v. Meram Constr., Inc.; Whether the trial court was aware it had discretion in the matter; Rieth v. Keeler; In re Costs & Attorney Fees; Whether Keizer adequately represented Hayward's interests; Whether Hayward was an intended third-party beneficiary of the insurance contract or merely an incidental beneficiary; Applicability of Schmalfeldt v. North Pointe Ins. Co.; Allstate Ins. Co. v. Hayes

Court: Michigan Court of Appeals (Published)

Case Name: Auto-Owners Ins. Co. v. Keizer-Morris, Inc.

e-Journal Number: 43099

Judge(s): Markey, Jansen, and Hoekstra

 

Concluding it was preferable for appellant-Hayward (the injured party) to have an opportunity to present a theory under which coverage under plaintiff's policy might exist since it was "but a minor extension of Allstate to recognize the standing of an injured person to intervene in a declaratory action concerning insurance coverage for the alleged tortfeasor," the court reversed the trial court's decision not to allow Hayward to intervene and remanded to the trial court for proceedings consistent with its opinion. Hayward was injured while performing construction work, allegedly the result of an equipment explosion. Defendant-Keizer manufactured and sold the equipment to Hayward's employer. Hayward sued Keizer alleging breach of warranty and negligence. Keizer turned the suit over to plaintiff, its insurer, but it denied coverage arguing the policy excluded coverage for the incident. Plaintiff filed this case seeking a declaration it had no duty to defend or indemnify Keizer. Hayward tried to intervene as a necessary party because Keizer was a dissolved or otherwise defunct corporation and his rights would be affected if it lacked insurance coverage. The trial court denied the motion without explanation, denied reconsideration, and granted plaintiff summary disposition. Keizer had neither appeared nor opposed anything related to the lawsuit. Hayward argued, inter alia, his ability to recover damages from Keizer depended on it having insurance coverage for the injury-causing incident and Keizer as a defunct business did little to contest plaintiff's position and inadequately represented his interests. Plaintiff argued Hayward was neither a party to, nor third-party beneficiary of, the insurance contract between it and Keizer, but was merely an "incidental" beneficiary with no right to participate in the litigation over whether coverage existed. The court held Hayward's interests were not advocated by Keizer and he was entitled to apply his own vigorous advocacy to the question whether there was coverage under the policy, but he had not presented a theory under which coverage might exist. The court concluded it was preferable for him to have his opportunity to do so in the trial court. Reversed and remanded.

 

This summary also appears under Insurance

 

Issues: Payment for a van as an "allowable expense" under the No-Fault Act (MCL 500.3107(1)(a)) where the plaintiff was rendered a quadriplegic in the accident; Griffith v. State Farm Mut. Auto. Ins. Co.; Davis v. Citizens Ins. Co. of Am.; Waiver of right to appellate review; Westgate v. Adams; Bonkowski v. Allstate Ins. Co.; Chapdelaine v. Sochocki; Whether plaintiff's theories of liability in the second case arising from defendant-Michigan Bell's handling of his benefits claims were barred by res judicata; Adair v. State; Sewell v. Clean Cut Mgmt., Inc.; Richards v. Tibaldi; Pierson Sand & Gravel, Inc. v. Keeler Brass Co.; Schwartz v. City of Flint; Whether the claims in the second case were or could have been resolved in the first case; The "same evidence" test; Dart v. Dart; The "same transaction" test; Whether plaintiff could have brought his attendant care claims (under theories of contract, estoppel, or statutory construction) in the first case; Claim for invasion of privacy-trespass; Earp v. Detroit; Lewis v. LeGrow; "Intrusion upon another's seclusion or solitude, or into another's private affairs" theory; Doe v. Mills; Defendant's right to investigate a party asserting liability against it; Saldana v. Kelsey-Hayes Co.

Court: Michigan Court of Appeals (Published)

Case Name: Begin v. Michigan Bell Tel. Co.

e-Journal Number: 43097

Judge(s): Per Curiam - Jansen and Markey; Concurrence - Hoekstra

 

Rejecting the defendants' "bright-line rule" if an injured person uses a product, service or accommodation both before and after their motor vehicle accident, it cannot meet the statutory causal relationship tests clarified in Griffith for an "allowable expense" no-fault benefit, the court held the trial court did not err in denying defendants summary disposition in Docket No. 279891 (the first case). However, the trial court erred in denying defendant-Michigan Bell summary disposition in Docket No. 284114 (the second case), in which plaintiff asserted several theories of liability arising from defendant's handling of his benefits claims, because the claims could have been brought in the first case and thus, were barred by res judicata. In the first case, defendants appealed by reserved claim of right a consent judgment requiring them to pay $25,059 for a van as an allowable expense under the No-Fault Act. Plaintiff's claim arose from a 1988 motor vehicle accident, which occurred while he worked for Michigan Bell. He was rendered a quadriplegic by his injuries in the accident. The court concluded the defendants waived appellate review of the issues of reasonableness under MCL 500.3107(1)(a), and rejected their claim they were entitled to judgment as a matter of law under Griffith. While the Supreme Court clarified judicial construction of MCL 500.3105(1) and MCL 500.3107(1)(a) in Griffith, it did not specifically overrule Davis. Thus, Davis remained binding precedential authority. The Supreme Court held in Griffith "a product, service or accommodation an injured person uses both before and after a motor vehicle accident might be an ‘allowable expense' no fault benefit depending on the particular facts and circumstances involved." Plaintiff alleged and presented evidence the trial court ruled supported his claim a modified van "was causally connected to the accidental bodily injury arising out of an automobile accident." In the second case, he alleged contract, estoppel, and statutory construction claims asserting a right to payment of attendant care benefits in the manner previously used by Michigan Bell, invasion of privacy-trespass, and intentional infliction of emotional distress. The court concluded, inter alia, he could have, with reasonable diligence, brought those claims in the first case. Affirmed in Docket No. 279891 and reversed in Docket No. 284114.

 

This summary also appears under Municipal

 

Issues: Whether the moratorium, ordinance and zoning decision were ripe for review; "As applied" challenge; Paragon Props. Co. v. Novi; Braun v. Ann Arbor Charter Twp.; Conlin v. Scio Twp.; The "rule of finality"; Challenge to provisions in the defendant-Township's ordinance; Ordinance §§ 27.12(C)(1), 27.12(H)(1), 27.12(H)(3), 27.12(H)(2)(f), and (M)(2); "As applied" challenges to ordinance § 27.12; Frericks v. Highland Twp.; Facial challenge to § 27.12; Attorney Gen. v. Public Serv. Comm'n; Const. 1963, art. 9, § 31; Saginaw County v. John Sexton Corp. of MI; Whether § 27.12 imposed a tax or a fee; Wheeler v. Shelby Charter Twp.; Westlake Transp., Inc. v. Public Serv. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Atchoo v. Charter Twp. of Orion

e-Journal Number: 43072

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

The court held the plaintiff's challenges to the defendant-Township's moratorium, ordinance, and zoning decisions were not ripe for review and affirmed the trial court's grant of the Township's motion for summary disposition. Plaintiff filed suit in the trial court challenging numerous Township decisions involving trust property in the Township. Relevant to this appeal, plaintiff alleged the circumstances surrounding a 10-month moratorium imposed to defer applications for development and rezoning in the area and the Township's post-moratorium denial of her request to rezone the trust property from Office and Professional 1 ("OP-1") to General Business 2 ("GB-2") denied the trust property's substantive due process, use, and equal protection rights under the United States and Michigan Constitutions. The court held plaintiff's "as applied" challenges were precluded by the "rule of finality," as she only requested a variance from the Township Zoning Board of Appeals, which refused it because it lacked jurisdiction. The possibility still existed the Township Board would have granted a variance during the moratorium or afterward, in the alternative to her application to apply for rezoning and her subsequent rezoning request. Thus, the court held plaintiff's "as applied" substantive due process, takings, and equal protection challenges regarding the moratorium and rezoning request were not ripe for review. Because plaintiff's underlying federal claims were not ripe for review, her corresponding federal claims for relief under 42 USC § 1983 also failed. The court concluded even if the issues were ripe for review, it would affirm the trial court's order for the reasons expressed in the trial court's written opinion.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Dismissal of appeal as moot; Governmental immunity under MCL 691.1407(2) and MCL 691.1405(5); Hinz v. Almy (Unpub.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hinz v. Michigan State Univ. Bd. of Trs.

e-Journal Number: 43084

Judge(s): Memorandum - O'Connell, Bandstra, and Donofrio

 

The court dismissed the defendant's appeal of the trial court's order denying its motion for summary disposition based on the plaintiff-PR's failure to give notice as required by MCL 600.6431 because the court's prior decision in Almy rendered defendant's appeal in this case moot. Plaintiff sued the defendant and its employee, Almy, after Almy left his truck running, allowing it to be stolen by an intoxicated individual who struck and killed plaintiff's decedent. In Almy, the court ordered the trial court to enter orders granting the defendants' motions for summary disposition based on governmental immunity under 691.1407(2) and MCL 691.1405(5). Thus, this appeal was moot. Dismissed.

 

This summary also appears under Family Law

 

Issues: Dismissal of a complaint for divorce because of a default divorce decree previously entered in Texas; The Uniform Enforcement of Foreign Judgments Act (MCL 691.1171 et seq.); The Full Faith and Credit Clause of the US Constitution; Blackburne & Brown Mortgage Co. v. Ziomek; Nash v. Salter; Failure to consider the Texas court's jurisdictional reach; Res judicata; Jones v. Chambers; Child custody matters; The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)(MCL 722.1101 et seq.); MCL 722.1201(1); "Home state" (MCL 722.1102(g)); MCL 722.1206(1); MCL 722.1303(1)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Simcox v. Simcox

e-Journal Number: 43079

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

The court reversed the trial court's order dismissing the plaintiff-wife's divorce complaint due to a default divorce decree previously entered in Texas, concluding the trial court erred in dismissing the case without any consideration of the Texas court's jurisdictional reach and it was required to proceed on child custody issues pursuant to the UCCJEA. Plaintiff and the defendant-husband were married in Michigan and had one child together. Defendant filed a petition for divorce in Texas in July 2007. Plaintiff acknowledged she was served with a copy of the Texas divorce complaint but she never responded or appeared in the Texas case. A default divorce judgment was entered in Texas in September 2007. Plaintiff filed a divorce complaint in Michigan in August 2007. She alleged the parties separated in October 2006 and their child resided with her in Michigan. The court held the trial court was not required to abide by the Texas divorce judgment if Texas did not have personal or subject-matter jurisdiction to enter it, and plaintiff could collaterally attack the judgment in Michigan. While defendant did not technically seek to enforce the Texas judgment in Michigan, he sought to use it to argue he was entitled to summary disposition based on res judicata. In responding to his summary disposition motion, plaintiff was effectively collaterally attacking the Texas judgment on the basis the Texas court lacked jurisdiction. Res judicata generally requires, in part, a final decision by a court of competent jurisdiction. The court concluded although it appeared there was never a marital residence in Texas and plaintiff never lived in or had meaningful contacts with Texas, the record was insufficiently developed to properly determine if the relevant Texas statute was satisfied or not. If the trial court determines on remand the Texas court lacked jurisdiction, plaintiff's Michigan divorce case can continue. However, even if the trial court finds the Texas court had jurisdiction as to the divorce issues in general, the court held it must proceed on child custody issues because the record established Michigan was and is the child's "home state" and a Michigan court has never "declined" jurisdiction. The court held child custody issues shall proceed in the Michigan court just as if the Texas court, which lacked jurisdiction under the UCCJEA, never ruled on custody. Reversed and remanded.

 

This summary also appears under Tax

 

Issues: Plaintiffs' appeal of the trial court's orders granting defendants' motion for summary disposition in this tax assessment case; Whether plaintiffs' tort claims to redress discrimination were within the jurisdiction of the trial court rather than the Tax Tribunal; MCL 600.605; Const. 1963, art. 6, § 13; MCL 600.601; MCL 205.731(a)(amended 5/9/08); Eyde v. Lansing Twp.; Johnston v. Livonia; Romulus Treasurer v. Wayne County; Highland-Howell Dev. Co., LLC v. Township of Marion; Colonial Vill. Townhouse Coop. v. Riverview; Johnson v. Michigan; Turner v. Lansing Twp.; Kostyu v. Department of Treasury; Terlecki v. Stewart

Court: Michigan Court of Appeals (Unpublished)

Case Name: Zaher v. Nickerson

e-Journal Number: 43087

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Since all of the plaintiffs' claims, except the trespass claim, related to the assessment of their property and were within the exclusive jurisdiction of the Tax Tribunal, and the trespass claim fell outside the Tribunal's jurisdiction and should not have been dismissed by the trial court for lack of subject matter jurisdiction, the court affirmed in part, reversed in part, and remanded for further proceedings. Plaintiffs are the owners and developers of real property in defendant-Davison Township. They claimed the defendants permitted a "grossly excessive" assessment of their property resulting in "an astronomical property tax bill." They also asserted the assessment was discriminatory and based on ethnic prejudice due to defendant-Nickerson's alleged statement to plaintiff-Zaher (who is of Arabic descent) he should "take his tent and go elsewhere" and she would "get him" in assessing plaintiffs' property. Due to the assessment plaintiffs claimed development of their property was inhibited and they were effectively precluded from participating in an advertising website providing competitive advantage to developers in other housing developments in the township. Plaintiffs filed suit in the trial court and later stipulated to dismissal. They later filed the five-count complaint underlying the appeal, asserting claims of intentional discrimination, gross recklessness and dereliction of duty, intentional failure resulting in discrimination, and trespass and/or threatened abuse of statutory power. The trial court dismissed the claims based on lack of subject matter jurisdiction on the ground all issues raised were within the jurisdiction of the Tax Tribunal. On appeal, plaintiffs argued the tort claims to redress discrimination fell within the trial court's jurisdiction rather than the tribunal. The court held a plain reading of MCL 205.731(a) and the allegations in the complaint led it to conclude jurisdiction over most of their claims was exclusively in the Tax Tribunal, and the fact they "camouflaged these claims in language of discrimination and conspiracy" did not alter the conclusion. However, Count V of the complaint alleging a trespass against Nickerson was not related to the assessment or valuation "under the property tax laws," involved the question of Nickerson's presence and intent, and whether she was authorized to be on the property. This claim fell outside the tribunal's jurisdiction and should not have been dismissed by the trial court.

 

Municipal

 

This summary also appears under Litigation

 

Issues: Whether the moratorium, ordinance and zoning decision were ripe for review; "As applied" challenge; Paragon Props. Co. v. Novi; Braun v. Ann Arbor Charter Twp.; Conlin v. Scio Twp.; The "rule of finality"; Challenge to provisions in the defendant-Township's ordinance; Ordinance §§ 27.12(C)(1), 27.12(H)(1), 27.12(H)(3), 27.12(H)(2)(f), and (M)(2); "As applied" challenges to ordinance § 27.12; Frericks v. Highland Twp.; Facial challenge to § 27.12; Attorney Gen. v. Public Serv. Comm'n; Const. 1963, art. 9, § 31; Saginaw County v. John Sexton Corp. of MI; Whether § 27.12 imposed a tax or a fee; Wheeler v. Shelby Charter Twp.; Westlake Transp., Inc. v. Public Serv. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Atchoo v. Charter Twp. of Orion

e-Journal Number: 43072

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

The court held the plaintiff's challenges to the defendant-Township's moratorium, ordinance, and zoning decisions were not ripe for review and affirmed the trial court's grant of the Township's motion for summary disposition. Plaintiff filed suit in the trial court challenging numerous Township decisions involving trust property in the Township. Relevant to this appeal, plaintiff alleged the circumstances surrounding a 10-month moratorium imposed to defer applications for development and rezoning in the area and the Township's post-moratorium denial of her request to rezone the trust property from Office and Professional 1 ("OP-1") to General Business 2 ("GB-2") denied the trust property's substantive due process, use, and equal protection rights under the United States and Michigan Constitutions. The court held plaintiff's "as applied" challenges were precluded by the "rule of finality," as she only requested a variance from the Township Zoning Board of Appeals, which refused it because it lacked jurisdiction. The possibility still existed the Township Board would have granted a variance during the moratorium or afterward, in the alternative to her application to apply for rezoning and her subsequent rezoning request. Thus, the court held plaintiff's "as applied" substantive due process, takings, and equal protection challenges regarding the moratorium and rezoning request were not ripe for review. Because plaintiff's underlying federal claims were not ripe for review, her corresponding federal claims for relief under 42 USC § 1983 also failed. The court concluded even if the issues were ripe for review, it would affirm the trial court's order for the reasons expressed in the trial court's written opinion.

 

Negligence & Intentional Tort

 

This summary also appears under Animal Law

 

Issues: Whether § 5(d) of the Equine Activity Liability Act (EALA) (MCL 691.1661 et seq.) creates a general claim of ordinary negligence; § 3 of the EALA (MCL 691.1663); "Inherent risk of an equine activity" defined; MCL 691.1662(f); "Equine activity" defined; MCL 691.1662(c); Whether plaintiff sufficiently supported a claim of negligence pursuant to the EALA; MCL 691.1665(d); To "engage in an equine activity" defined; MCL 691.1662(a); MCL 691.1665(b); Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendant's failure to post warning signs should have eliminated any limitation on his liability; § 6 (MCL 691.1666); "Equine professional" defined; MCL 691.1662(e); In re Wayne County Prosecutor; Whether the EALA violates the Title-Object Clause of the Michigan Constitution (Const. 1963, art. IV, § 24)

Court: Michigan Court of Appeals (Published)

Case Name: Beattie v. Mickalich

e-Journal Number: 43098

Judge(s): Per Curiam - Fort Hood, Cavanagh, and K.F. Kelly

 

The court concluded § 5(d) of the EALA does not create a general claim of ordinary negligence, but rather permits a negligence claim to arise where it necessarily involves something other than inherently risky equine activity, and held the trial court properly granted summary disposition for defendant, ruling § 3 of the EALA barred the plaintiff's suit because her injuries arose from an "inherent risk of equine activity." Plaintiff and defendant were neighbors. On 8 to 10 occasions in 2003 or 2004, defendant invited plaintiff over to his property to exercise a few of the horses. During these times, plaintiff would fetch the horse, groom, and saddle it before riding it. On one occasion, plaintiff rode one of defendant's horses without his permission. She fell to the ground, sustaining injuries to her shoulder and arm. As a result, she was not able to return to work for several months and her physical abilities have been limited. Plaintiff claimed defendant was "negligent" because he failed to properly secure the horse's head before saddling the horse, failed in his duty to avoid alarming the horse, and failed to lift the saddle up to the horse's back and instead made a high arching throw of the saddle which caused the horse to "spook," and then rear-up. She also claimed the trial court mischaracterized the EALA as granting "blanket immunity" to defendants defined in the EALA. Plaintiff's view was § 5 of the EALA permitted certain types of negligence claims, including a general claim of negligence, to be brought against defendants defined by the EALA. Although the court agreed the EALA does not create blanket immunity, the court held plaintiff's assertion the trial court misinterpreted the EALA was factually inaccurate. Subsection 5 provides certain exceptions to the limitation on liability created in § 3. Given these provisions, it was plainly obvious the EALA does not create blanket immunity. The trial court recognized this fact when it stated the EALA merely "limits [the] liability of equine activity sponsors and equine professionals." Thus, given the trial court's acknowledgment the EALA creates a limitation on liability, the court could not conclude the trial court legally erred in the manner plaintiff argued. Plaintiff's "more compelling" argument was § 5(d) permits a general negligence claim irrespective of EALA's limitation on liability. The court disagreed. Reading the subdivision in conjunction with subdivisions a, b, and c, as well as § 3 (which limits liability) led the court to conclude the Legislature did not intend § 5(d) to create a general negligence claim. All of the conduct described in subdivisions a, b, and c of § 5 falls outside the definition of "inherent risk of equine activity," which is the only activity for which liability is proscribed under the EALA. Reading the EALA as a whole in pari materia, it only makes sense if § 5(d) also includes other negligent activity not within the gambit of "inherent[ly] risk[y] . . . equine activity." To do as plaintiff suggested would be to permit a general negligence claim under § 5(d), which would consequently render § 3 nugatory, as it would destroy the limited liability for qualifying defendants created under that section. This result would completely eviscerate the purpose for which the Legislature enacted the EALA. The court declined to adopt such an interpretation. Affirmed.

 

This summary also appears under Insurance

 

Issues: Negligence claims against an insurance company and agent; Statute of limitations; Whether MCL 600.5855 (dealing with fraudulent concealment) applied; Prentis Family Found., Inc. v. Barbara Ann Karmanos Cancer Inst.; "Mere silence"; Intentional misrepresentation and silent fraud claims; Amco Builders & Developers, Inc. v. Team Ace Joint Venture; Hord v. Environmental Research Inst. of MI (After Remand); Whether a duty arose because of a "special relationship"; Harts v. Farmers Ins. Exch.; Whether the trial court properly held the defendants were exempt from liability under the Michigan Consumer Protection Act (MCPA); MCL 445.904(1)(a); The Insurance Code (MCL 500.2001 et seq.); MCL 445.903(1); MCL 445.904(1)(a); Liss v. Lewiston-Richards, Inc.; Whether the trial court improperly closed the case before the identity of defendant-John Doe could be determined

Court: Michigan Court of Appeals (Unpublished)

Case Name: Akers v. Bankers Life & Cas. Co.

e-Journal Number: 43073

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

The trial court properly granted defendants-Bankers Life and Nelson summary disposition on the plaintiff's tort claims based on the expiration of the applicable three-year statute of limitations. In 1999, Z, who was employed by Bankers Life, sold plaintiff a long-term care insurance policy. Bankers Life terminated Z in April 2002 for unethical activities related to her job. A Bankers Life representative informed plaintiff by letter Z "no longer represent[ed]" the company, but plaintiff was not told Z had been terminated or the reasons for her termination. Bankers Life reassigned plaintiff's policy to another insurance agent, "John Doe." In May 2002, Z contacted plaintiff and advised her to buy a $50,000 annuity from another company. She did so. She also followed Z's advice to obtain a "reverse mortgage" on her home and to withdraw funds from an IRA account. Z then persuaded plaintiff to cash the annuity and invest its proceeds, as well as those from the mortgage and the IRA, in an investment opportunity, which was later revealed as a "Ponzi" scheme. Plaintiff alleged claims for, inter alia, negligence, intentional misrepresentation, silent fraud, and violation of the MCPA. She argued the trial court wrongly decided her negligence claims were time-barred, asserting defendants fraudulently concealed Z's termination and the reasons for her termination so as to postpone the running of the statute of limitations. The court rejected plaintiff's claim MCL 600.5855, which deals with fraudulent concealment, applied. She did not allege evidence sufficient to establish fraudulent concealment. She admittedly did not contact Bankers Life to inquire about the reasons for Z's termination. Thus, she relied on mere silence. Because silence is not enough to show fraudulent concealment, her tort claims were not exempted from the applicable statute of limitations. Plaintiff also argued her intentional misrepresentation and silent fraud claims should have survived summary disposition. However, there was no representation and thus, no misrepresentation. Further, for silent fraud "mere nondisclosure of facts is insufficient." Similarly, "a legal duty to make a disclosure will arise most commonly in a situation where inquiries are made by the plaintiff, to which the defendant makes incomplete replies that are truthful in themselves but omit material information." But here, plaintiff made no inquiry at all. She argued a duty arose by virtue of a "special relationship," But there was no representation regarding the fact of termination or the reasons for it and, accordingly, no misrepresentation. There was no request for information, ambiguous or otherwise, and no inquiry leading to inaccurate information. Further, there was no assumption of duty. Thus, there was no basis for the finding of a special relationship. Summary disposition on the intentional misrepresentation and fraud claims was also proper. Affirmed.

 

This summary also appears under Insurance

 

Issues: Automobile negligence; The No-Fault Act (MCL 500.3101 et seq.) threshold; MCL 500.3135(1); "Serious impairment of body function" (MCL 500.3135(7)); Kreiner v. Fischer

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cottrill v. Senter

e-Journal Number: 43083

Judge(s): Per Curiam - Fitzgerald and Talbot; Dissent - Shapiro

 

Holding the record indicated as a matter of law the injured minor child's injuries and resulting impairments fell far short of the threshold required by Kreiner, the court affirmed the trial court's order granting defendant-Senter summary disposition. Senter was allegedly driving under the influence of alcohol when he crossed the centerline and collided head on with a vehicle in which the minor, A, was a passenger. A, then in eighth grade, sustained fractures in his left arm, right foot, and three ribs. He required household services and attendant care for a month, during which he was under medical orders not to use his left arm or right foot. Afterward, he was permitted to resume weight-bearing activities but was still disabled from participation in sports. While the plaintiff asserted medical records showed a parent reported A experienced a brief loss of consciousness before EMS arrived, there was no objective medical evidence of this, or evidence showing A was ever diagnosed with or treated for a traumatic brain injury. A testified at deposition he missed attending school for two months during the eighth grade, but he completed the school year on time and advanced to the ninth grade. He reported he had fully recovered from his injuries except for minor residual pain in his ribs, which he did not expect to continue much longer. He testified because of his "ribs and ... doctors" he was not currently playing football, but he looked forward to participating in the sport the next year. The trial court concluded A's injuries and impairments did not change the trajectory of his life and thus, could not justify recovery in tort under the No-Fault Act. The court agreed, holding while it was "no minor matter for a middle-school student to miss two months' schooling, the interruption in this instance affected the trajectory of that school year, not of" A's life in general. A's deposition testimony showed he progressed normally in school despite this setback. The court noted his treatment or therapies consisted of casts, crutches, x-rays, and a few follow-up exams to monitor his progress. No surgery, overnight hospitalization, or heavy medication was involved. Affirmed.

 

This summary also appears under Litigation

 

Issues: Dismissal of appeal as moot; Governmental immunity under MCL 691.1407(2) and MCL 691.1405(5); Hinz v. Almy (Unpub.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hinz v. Michigan State Univ. Bd. of Trs.

e-Journal Number: 43084

Judge(s): Memorandum - O'Connell, Bandstra, and Donofrio

 

The court dismissed the defendant's appeal of the trial court's order denying its motion for summary disposition based on the plaintiff-PR's failure to give notice as required by MCL 600.6431 because the court's prior decision in Almy rendered defendant's appeal in this case moot. Plaintiff sued the defendant and its employee, Almy, after Almy left his truck running, allowing it to be stolen by an intoxicated individual who struck and killed plaintiff's decedent. In Almy, the court ordered the trial court to enter orders granting the defendants' motions for summary disposition based on governmental immunity under 691.1407(2) and MCL 691.1405(5). Thus, this appeal was moot. Dismissed.

 

This summary also appears under Construction Law

 

Issues: "Common work area" (CWA) doctrine claim; Funk v. General Motors Corp; Ormsby v. Capital Welding, Inc. (four requirements to establish general contractor liability); Latham v. Barton Malow Co.; Number of employees present in the "common work area"; Hughes v. PMG Bldg., Inc.; Groncki v. Detroit Edison Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Slater v. F.H. Martin Constr. Co.

e-Journal Number: 43088

Judge(s): Per Curiam - Borrello, Meter, and Stephens

 

Since the record established the plaintiff could satisfy each of the four-prong "common work area" doctrine requirements, the trial court erred in granting the defendant general contractor-F.H. Martin Construction's motion for summary disposition. The first prong of the CWA doctrine requires a plaintiff to show the defendant, as the general contractor, failed to take reasonable steps within its supervisory and coordinating authority. The trial court noted defendant's agent, C, told plaintiff to remove the chain securing a 32-foot ladder to the building by going to the roof and cutting it from there. The trial court concluded this recommendation was a reasonable step, it was plaintiff's disregard of the recommendation which caused his fall and his "feeling" and "honest beliefs" about the method were not sufficient to create a question of fact as to the first prong. Plaintiff testified in his deposition, C said "if it were him that was responsible for cutting the chain, he would do it from the roof." Thus, the issue was whether it was reasonable for C, when faced with plaintiff's inquiries about the ladder, to instruct him to remove the ladder and to suggest doing so by first accessing the roof. The court held there was a genuine issue of material fact as to whether C's suggestion qualified as a reasonable step. The record showed there was a slight pitch to the roof, there had been a recent snowstorm, and plaintiff was concerned about traction problems on the roof. As to the second prong - the trial court found there was no genuine issue of material fact because the ladder was not a readily observable and avoidable danger. The court held this was erroneous. The ladder was chained to the building by a subcontractor and left in the way of plaintiff and his crew. Plaintiff did not have a key to unlock the chain, and C instructed him to remove the ladder by cutting the chain. In order to do so, defendant knew plaintiff would have to access the roof or climb the ladder. Plaintiff had not been trained to execute the removal methods and did not have fall protection. The court held there was a genuine issue of material fact as to this prong. Next, the trial court held there was no genuine issue of material fact as to the third prong of the CWA doctrine, which requires a showing the readily observable danger created a high degree of risk to a significant number of workers. The trial court held plaintiff could not show anyone else was endangered by the decision to climb the ladder. The court held the dangerous condition at the site created a high degree of risk for six people, which "is a significant number of workers." The court held the fact six workers faced potential injury was not insignificant. Finally, the trial court erroneously held he failed to prove the accident when the 215 pound plaintiff fell off the 32-foot ladder occurred in a CWA. Another workman testified he and other workers from a subcontractor were planning to work in the area of the accident on the day the accident occurred. It was undisputed five other employees were in the immediate area at the time the accident occurred and two separate contractors would have eventually worked in the area. The court held the area qualified as a CWA. Reversed and remanded.

 

Issues: Automobile negligence; Governmental employee immunity; MCL 691.1407(2); "Gross negligence" (MCL 691.1407(7)(a)); Costa v. Community Emergency Med. Serv., Inc.; Tarlea v. Crabtree; Jackson v. Saginaw County; Evidence of ordinary negligence; Maiden v. Rozwood; Speculation or conjecture; Skinner v. Square D Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sulskis v. Van Effen

e-Journal Number: 43080

Judge(s): Per Curiam - Jansen, Hoekstra, and Markey

 

The trial court erred in determining the evidence could permit a jury to conclude the defendant-state trooper acted with "gross negligence" when he turned left in front of a vehicle in which the plaintiff was riding, resulting in an automobile accident and personal injury to plaintiff. Defendant admitted he did not yield the right-of-way to the other driver, stating he did not see the vehicle. There was no evidence excessive speed, inclement weather, or any similar factor contributed to the accident. For whatever reason, defendant did not see the other vehicle. Noting the definition of gross negligence for purposes of governmental immunity "suggests a willful disregard of precautions or measures to attend to safety and a ‘singular disregard for substantial risks,'" the court concluded there was no evidence defendant "was subject to anything more than ordinary distractions." He was not speeding and he signaled his turn. Nothing showed he was driving "with a singular disregard for substantial risks." Further, plaintiff did not allege any grossly negligent conduct - his allegations were the same as those he originally used to support his ordinary negligence claim. "Gross negligence requires something more." While the trial court found defendant's lack of any explanation for how the accident happened created allowable inferences from which the jury could conclude "he must have been doing something else," there was no evidence to support this inference. The court concluded even if the jury could reasonably infer defendant was drinking coffee or using the radio, nothing supported an inference this "inattention on a basically empty stretch of road rose to the level of a reckless disregard for substantial risks." A jury would be guessing at what must have happened, and mere conjecture or speculation is insufficient to establish reasonable inferences of causation. The court reversed the trial court's order denying defendant's motion for summary disposition based on governmental immunity and remanded the case.

 

Tax

 

This summary also appears under Litigation

 

Issues: Plaintiffs' appeal of the trial court's orders granting defendants' motion for summary disposition in this tax assessment case; Whether plaintiffs' tort claims to redress discrimination were within the jurisdiction of the trial court rather than the Tax Tribunal; MCL 600.605; Const. 1963, art. 6, § 13; MCL 600.601; MCL 205.731(a)(amended 5/9/08); Eyde v. Lansing Twp.; Johnston v. Livonia; Romulus Treasurer v. Wayne County; Highland-Howell Dev. Co., LLC v. Township of Marion; Colonial Vill. Townhouse Coop. v. Riverview; Johnson v. Michigan; Turner v. Lansing Twp.; Kostyu v. Department of Treasury; Terlecki v. Stewart

Court: Michigan Court of Appeals (Unpublished)

Case Name: Zaher v. Nickerson

e-Journal Number: 43087

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

Since all of the plaintiffs' claims, except the trespass claim, related to the assessment of their property and were within the exclusive jurisdiction of the Tax Tribunal, and the trespass claim fell outside the Tribunal's jurisdiction and should not have been dismissed by the trial court for lack of subject matter jurisdiction, the court affirmed in part, reversed in part, and remanded for further proceedings. Plaintiffs are the owners and developers of real property in defendant-Davison Township. They claimed the defendants permitted a "grossly excessive" assessment of their property resulting in "an astronomical property tax bill." They also asserted the assessment was discriminatory and based on ethnic prejudice due to defendant-Nickerson's alleged statement to plaintiff-Zaher (who is of Arabic descent) he should "take his tent and go elsewhere" and she would "get him" in assessing plaintiffs' property. Due to the assessment plaintiffs claimed development of their property was inhibited and they were effectively precluded from participating in an advertising website providing competitive advantage to developers in other housing developments in the township. Plaintiffs filed suit in the trial court and later stipulated to dismissal. They later filed the five-count complaint underlying the appeal, asserting claims of intentional discrimination, gross recklessness and dereliction of duty, intentional failure resulting in discrimination, and trespass and/or threatened abuse of statutory power. The trial court dismissed the claims based on lack of subject matter jurisdiction on the ground all issues raised were within the jurisdiction of the Tax Tribunal. On appeal, plaintiffs argued the tort claims to redress discrimination fell within the trial court's jurisdiction rather than the tribunal. The court held a plain reading of MCL 205.731(a) and the allegations in the complaint led it to conclude jurisdiction over most of their claims was exclusively in the Tax Tribunal, and the fact they "camouflaged these claims in language of discrimination and conspiracy" did not alter the conclusion. However, Count V of the complaint alleging a trespass against Nickerson was not related to the assessment or valuation "under the property tax laws," involved the question of Nickerson's presence and intent, and whether she was authorized to be on the property. This claim fell outside the tribunal's jurisdiction and should not have been dismissed by the trial court.

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(b)(ii), (c)(i), (g), and (j); Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re P.M.

e-Journal Number: 43059

Judge(s): Per Curiam - Fort Hood, Cavanagh, and K.F. Kelly

 

The trial court did not clearly err in determining § 19b(3)(c)(i) was established by clear and convincing evidence and in terminating both respondents-parents' parental rights to the two minor children at issue. The record showed over the course of the case the respondents failed to comply with the case service plan and did not benefit from the services provided. They continually failed to regularly visit the children and did not make it a priority to comply with the case service plan. While both respondents were referred to parenting classes, the respondent-mother never attended a class and the respondent-father only attended one. The foster care worker testified the father did not benefit from the class. Testimony also revealed psychological evaluations and bonding assessments were performed and counseling was recommended, but respondents disagreed with the results, insisted they had done nothing wrong, and refused to attend counseling. The court concluded in light of respondents' refusal to address the issue leading to adjudication or to improve their parenting skills via classes or counseling, the trial court did not clearly err in determining there was no reasonable likelihood the conditions leading to adjudication would be rectified within a reasonable time. Affirmed.

 

Issues: Termination of both respondents-parents' parental rights pursuant to §§ 19b(3)(b)(i). (b)(ii), (g), and (j); In re Trejo Minors; In re JK; Whether the respondent-mother was advised of her rights and made a knowing and voluntary plea; MCR 3.971(B) and (C); The trial court's exercise of jurisdiction cannot be collaterally attacked in a later appeal; In re Hatcher; Lack of dispositional hearings; MCR 3.973(H)(1) and MCR 3.977(F); Whether a dispositional hearing had to be held before a supplemental petition could be pursued and acted upon by the trial court; Admission of hearsay statements made by the children about alleged sexual abuse; People v. Lukity; In re Archer; In re Brimer; Other evidentiary issues

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Warner

e-Journal Number: 43090

Judge(s): Per Curiam - Murphy, Sawyer, and Murray

 

The trial court did not clearly err in terminating both respondents-parents' parental rights to the five minor children where the statutory grounds for termination were established by clear and convincing evidence. The trial court also did not clearly err in its best interests determination. As to the respondent-mother, the trial court's rulings were supported by evidence of severe beatings with a belt causing bleeding, evidence she allowed the respondent-father to return to the family home despite knowledge of sexual abuse he committed against one of the children, her continuing denial of the sexual abuse, evidence of neglect as to the children's dental needs, and evidence of a failure to obtain necessary medical care for them. As to the father, the trial court's rulings were supported by evidence of the sexual abuse he committed, evidence of neglect of dental needs, evidence of failure to obtain medical care, evidence of an unwillingness to accept responsibility for the medical and dental neglect, and evidence of physical beatings with a belt causing bleeding. There was evidence one of the children had rotting teeth resulting from severe neglect of dental needs. The court also held none of the respondents' other claims had any merit. Affirmed.

 

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