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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

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Today's e-Journal includes summaries of two Michigan Supreme Court opinions under Criminal Law. Cases appear under the following practice areas:


Contracts

 

This summary also appears under Insurance

 

Issues: Breach of a title insurance contract; Archambo v. Lawyers Title Ins. Corp.; Quinto v. Cross & Peters Co.; Maiden v. Rozwood; Policy exclusions; Hayley v. Allstate Ins. Co.; The "police power" exclusion; "Public records" as defined in the policy; MCL 565.25 and 565.29; Negligence; Duty to properly investigate the property; An action in tort for nonperformance of a contract; Casey v. Auto-Owners Ins.; Fultz v. Union-Commerce Assoc.; Breach of implied contract of good faith; Candelaria v. B C Gen. Contractors, Inc.; Hudson v. Mathers

Court: Michigan Court of Appeals (Unpublished)

Case Name: Glenn v. First Am. Title Ins. Co.

e-Journal Number: 43124

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

 

The trial court properly granted the defendant-title insurer's motion for summary disposition, finding the condemnation notice was not a "public record" as defined by the policy, thus excluding plaintiff's claim from coverage. In October 2006, plaintiff purchased a home located in the City of Pontiac. She obtained a policy of title insurance on the property issued by defendant in the amount of $31,500. The policy set forth a list of 29 covered risks and also several exclusions and conditions limiting the insurance coverage. Plaintiff claimed with no notice to her, approximately one week after purchasing the property, the home was demolished pursuant to a demolition order issued by the City of Pontiac. She then discovered the property had been listed on Pontiac's condemnation list, filed at the Building and Safety Department, since October 2005. In January 2007, plaintiff tendered a claim under the policy to defendant in the amount of $36,905.41. She sued alleging breach of contract, breach of implied contract, and negligence. Plaintiff argued the policy exclusion precluding recovery for any losses incurred through proper exercise of the government's police power was inapplicable because the notice of condemnation appeared in the public records at the policy date. Specifically, she contended "public records" consist of records beyond those found in the register of deeds and the notice of condemnation was a public record since it was on file with the City of Pontiac's condemnation records when the policy was issued. The trial court ruled coverage was excluded because the "police power" exclusion in the policy applied to plaintiff's claims. The policy defined "public records" as "records that give constructive notice of matters affecting Your Title, according to the state statutes where you land is located." "Title" was defined as "the ownership of Your Interest in the Land." The policy language was unambiguous. Public records were those records giving notice of matters affecting title under state law. Further, in Michigan, the Legislature has determined the office of the county Register of Deeds is the proper place to record documents giving constructive notice of matters affecting title to real property. As the trial court correctly noted, "drain commissioner records and circuit court judgments are public records in the colloquial sense, [but] they are not public records as defined by the title insurance policy." Similarly, records of the condemnation proceedings are available to the public but were not "public records" pursuant to the policy as they do not relate to title to the property and are not filed in the office of the county Register of Deeds. Affirmed.

 


Criminal Law

 

Issues: Case involving an unpreserved claim of constitutional error; Whether defendant-Borgne's constitutional rights under Doyle v. Ohio were violated; If so, the effect of the violation on defendant's convictions; Application of the Doyle rule; Fletcher v. Weir; Jenkins v. Anderson; People v. Cole; The "impeachment exception" to Doyle; People v. Allen (extending the Doyle exception); Whether the error in the prosecution's use of defendant's silence was "plain error affecting substantial rights" meriting reversal of his conviction; People v. Grant; The four-part analysis in People v. Carines

Court: Michigan Supreme Court

Case Name: People v. Borgne

e-Journal Number: 43168

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

 

Holding the defendant's rights under Doyle were violated when the trial court erroneously allowed the prosecution to use his post-arrest, post-Miranda silence against him but the error did not amount to plain error affecting his substantial rights, the court reversed the Court of Appeals judgment and affirmed defendant's convictions. Defendant allegedly robbed a woman at a gas station as she was putting gas in her car. She testified she saw him point a gun at her, grab her purse and run away. He was subsequently arrested and charged with armed robbery and felony-firearm. It was uncontested he was taken to a police station where he was given his Miranda warnings and the police tried to interrogate him. He invoked his right to silence and asked for an attorney. At trial the prosecutor made "broad" use of his post-Miranda silence both during cross-examination and during closing argument to impeach his testimony. He did not object to this use of his pretrial silence. He was convicted as charged. The Court of Appeals reversed his convictions based on a Doyle violation in a split decision. Doyle provides a defendant's post-arrest, post-Miranda silence cannot be used to impeach his exculpatory testimony. Further, Doyle "bars the use against a criminal defendant of silence maintained after receipt of governmental assurances." The court concluded Doyle's general rule applied to the prosecutor's line of questioning on cross-examination and in closing argument where the prosecution's own questions established the silence to which he referred. It was clear the prosecutor emphasized the negative implications of defendant's post-arrest, post-Miranda silence. The Doyle general rule applied and should have proscribed the prosecutor's use of defendant's silence. The court also held the exception to Doyle did not apply where defendant never testified he made post-Miranda attempts to explain his story, which was related to his pre-Miranda conduct. Analyzing the four steps in Carines to determine whether the unpreserved claim of error warranted reversal under "plain-error review," the court held the error was plain, but the third element was not met because defendant could not prove the error affected his substantial rights by causing him prejudice. There was compelling untainted evidence against defendant showing how strong the prosecution's case was and the prosecution did not overtly tie his post-arrest, post-Miranda silence to its argument he was guilty of the charged crime.

In concurring with the majority, Justice Kelly opined it should not have extended the "plain-error" doctrine to the kind of unpreserved constitutional error in this case. It appears under the Carines plain-error standard, there is never error requiring reversal when there is a "wealth of incriminating evidence."

Concurring separately, Justice Young, Jr. agreed with the majority's analysis and result but wrote separately because he would not join footnotes 8 and 17 in which Justice Cavanagh "dissents" from the Carines plain error analysis "in his own opinion."

 


Issues: Whether the prosecution's references to the defendant's post-arrest, post-Miranda silence violated his constitutional due process rights; Doyle v. Ohio; Wainwright v. Greenfield; People v. McReavy; Greer v. Miller; Plain error; People v. Grant; People v. Carines

Court: Michigan Supreme Court

Case Name: People v. Shafier

e-Journal Number: 43169

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

 

The prosecutor's repeated references to the defendant's post-arrest, post-Miranda silence violated his due process rights under the US Constitution, which amounted to plain error affecting his substantial rights, and compromised the fairness, integrity, and public reputation of the judicial proceedings. He was charged with sexually assaulting his 13-year old daughter. The prosecutor's examination of the arresting officer established the silence to which the prosecutor referred occurred post-arrest and post-Miranda. The prosecution clearly crossed the line by repeatedly using defendant's post-arrest, post-Miranda silence as evidence of his guilt in its case-in-chief and to impeach his testimony he was innocent. The prosecutor impliedly asked the jury to infer guilt from his silence through references to defendant's silence in his opening statement and his examination of the arresting officer. In his closing argument, the prosecutor expressly asked the jury to infer guilt from defendant's silence by explaining the reason he was silent was because "the defendant had been making his daughter do things no person speaks about." Further, in his cross-examination of defendant, the prosecutor attempted to use defendant's silence to impeach his credibility. The court held all four requirements of plain-error review were met. First, there was an error where his due process rights were violated by the prosecution's references to defendant's post-arrest, post-Miranda silence, and he did not waive his rights. Second, the error was plain where it was an obvious violation of a defendant's due process rights under Doyle and its progeny. Third, he showed the error affected his substantial rights where the prosecutor's extensive references to defendant's silence, the extensive connection of silence to his guilt, the inconsistencies in the prosecutor's case and the other evidence presented against him, and the nature of defendant's defense - which hinged on his own credibility, showed the error was prejudicial. Fourth, this was the sort of error compromising the fairness, integrity, and truth-seeking function of a jury trial. The violation of defendant's due process rights rendered the trial fundamentally unfair and cast a shadow on the integrity of our state's judicial processes. Defendant's two convictions for CSC II were reversed and remanded.

Justice Kelly concurred with the majority opinion, but believed the court should not have extended the plain-error doctrine to the kind of unpreserved constitutional error present in this case. As stated in her dissent in Carines, she believed when there is unpreserved constitutional error, a defendant's conviction should be affirmed only "‘if the reviewing court is satisfied that the error is harmless beyond a reasonable doubt.'"

Justice Young, Jr. concurred in the result and analysis of the majority opinion, but wrote separately because he would not join footnote 14, in which Justice Cavanagh "dissents" from the Carines plain-error analysis in his own opinion. He believed the opposition to the court's precedent and preservation of Justice Cavanagh's view was better placed in a concurring statement.

 


Issues: Whether reversal was required where the trial court gave a supplemental jury instruction outside defense counsel's presence and where defendant did not waive his right to counsel's presence; Sixth Amendment right to counsel; People v. Williams; Whether complete denial of counsel at a "critical stage" is structural error; Roe v. Flores-Ortega; People v. Duncan; People v. Buckles; "Critical stage"; French v. Jones (6th Cir.); Hudson v. Jones (6th Cir.); Prejudice; Whether a silent record establishes a valid "waiver"; People v. Willing; Sufficiency of the evidence to convict the defendant of conspiracy to commit armed robbery; MCL 750.157a; People v. Mass; People v. Blume; People v. Barajas; People v. Smyers

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hercules-Lopez

e-Journal Number: 43141

Judge(s): Per Curiam - Markey and Borrello; Concurring in part, Dissenting in part - Murphy

 

The court held reversal of the defendant's convictions for armed robbery, conspiracy to commit armed robbery, and felony-firearm was required because the trial court gave a supplemental jury instruction outside defense counsel's presence and without defendant having waived his right to counsel's presence. The jury asked, "Does [defendant's] intent, goals, thoughts, change any verbal agreement that he may have made to commit a crime?" Without consulting defense counsel and outside defense counsel's presence, the trial court responded, "If the defendant actually agreed with another to commit a crime, it does not matter why he agreed." The court noted because defendant did not object when the trial court initially made a record of its communication with the jury, which was after the jury returned its verdict, the issue was unpreserved. However, an "unpreserved constitutional error which is structural in nature requires automatic reversal." A trial court's communication with a deliberating jury may constitute a "critical stage" of the proceedings depending on the nature of the communication. Here, unlike Hudson, the trial court did not simply reread an unchallenged original instruction, but instead crafted a new, nonstandard supplemental instruction in response to the jury's question, similar to the situation in French. Because the nature of the instruction was substantive, it involved a critical stage of the proceedings. Thus, prejudice was presumed and automatic reversal was required unless defendant waived his right to have counsel present. The record did not indicate defendant did so. "A silent record is insufficient to establish a valid waiver." The court reversed defendant's convictions and remanded for a new trial.

 


Issues: Right to counsel; People v. Snider; People v. Marsack; People v. Willing; Bell v. Cone; People v. Thomas; People v. Russell; United States v. Cronic; Ineffective assistance of counsel; People v. Horn; People v. Walker; Voir dire; People v. Manser; People v. Johnson; People v. Robinson; Denial of defense counsel's motions to withdraw; In re Withdrawal of Attorney; People v. Carnicom; Waiver; People v. Griffin; People v. McCray; MRPC 1.16(b); MRPC 1.16(b)(5) and (6); People v. Mack; "Good cause"; People v. O'Brien; People v. Charles O. Williams; People v. Wilson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McMahon

e-Journal Number: 43121

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

 

The defendant was not denied the effective assistance of counsel where the record did not support a finding counsel's performance during jury selection was objectively unreasonable. Defendant argued he was denied the right to counsel or the right to the effective assistance of counsel. The record did not support his claim he was denied his right to counsel. An attorney appointed to represent defendant appeared at the preliminary examination. Although he moved to withdraw, the motion was denied and counsel participated in the preliminary examination by cross-examining the witness and arguing against a bindover. Counsel again moved to withdraw at trial, but the motion was denied and counsel participated in the trial by cross-examining the witnesses, moving for a directed verdict, and arguing for acquittal. The crux of defendant's claim related to the manner in which defense counsel conducted jury selection at trial rather than a complete failure of counsel. Thus, the issue was properly considered as one involving the effective assistance of counsel. The record showed defense counsel participated in jury selection, but asked few questions because he determined the trial court and the prosecutor had "pretty much covered everything." Counsel stated he had no challenges for cause and declined to exercise any peremptory challenges. There was nothing in the record to suggest, and defendant did not contend, any jurors were unable to be fair and impartial. Further, while defendant took issue with counsel's failure to ask more questions of prospective jurors, he did not identify any additional questions counsel should have asked which might have revealed a lack of impartiality on the part of any juror. Defendant's third-degree fleeing and eluding a police officer conviction was affirmed.

 


Issues: Denial of the defendant's motion for a new trial; People v. Unger; People v. Blackston; Whether the jury's verdict convicting defendant of armed robbery (MCL 750.529) was against the great weight of the evidence; People v. Lemmon

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 43116

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

 

The trial court did not abuse its discretion in denying the defendant's motion for a new trial because the verdict convicting him of armed robbery was not against the great weight of the evidence and the trial court's ruling was within the range of principled outcomes. Defendant admitted he robbed the store, but denied he had a gun or pretended he had a gun. Four eyewitnesses testified at trial. They all testified they did not see any weapon. However, two of the witnesses, A and B, testified defendant acted in a manner leading them to believe he had a gun. The other two witnesses, M and C, testified he did nothing leading them to believe he had a gun. A testified defendant grabbed her and she felt something hard sticking into her side. She clearly heard him say he had a gun and he was not afraid to use it. This statement led A to believe the hard object sticking into her side was a gun. B testified defendant had a triangular shaped, wrapped object in his right hand. When B took a step toward him, defendant pointed the object at B and asked him, "Do you want a piece of this?" B testified this caused him to believe the wrapped object "might have been a gun or something of that nature." M testified she did not hear defendant make any threats or state he had a gun. However, she also testified the situation was traumatic for her and she "kind of blocked everything out after [defendant] let [her] go." C testified she could not hear anything defendant said, she was in the store only for a few seconds while he was holding A, and she was not in the store at all when he allegedly pointed an object at B. Thus, there was testimony defendant possessed an article used in a manner leading two witnesses to reasonably believe it was a gun, and there was testimony he orally represented he had a gun. The jury could have determined defendant was "armed" under either of those circumstances. The court concluded the testimony of M and C did not preponderate heavily against the verdict, and the verdict did not reflect a serious miscarriage of justice. Affirmed.

 


Issues: Sentencing; Scoring of OV 3 where the victim was killed; People v. Houston; Paige v. Sterling Heights; Whether the defendant waived the issue during sentencing

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wilkes

e-Journal Number: 43120

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

 

While the court disagreed with the prosecution the defendant waived the issue regarding the scoring of OV 3, it held based on the binding authority of Houston there was no error in scoring 25 points for OV 3 in this case where defendant was convicted of voluntary manslaughter and felony-firearm. He claimed OV 3 should be scored 0 points instead of 25 points for causing a life-threatening injury when the victim was killed. However, he acknowledged the Supreme Court addressed this exact issue in Houston when it held 25 points is the appropriate score for OV 3 when the victim dies from a gunshot wound. Defendant also admitted the trial court did not commit legal error in scoring the 25 points - he simply sought to have the Supreme Court reconsider its ruling in Houston. The court concluded defendant did not waive the issue during sentencing because he did not affirmatively express satisfaction with the scoring, he simply acknowledged there was binding Supreme Court precedent. Thus, the court could decide the issue on the merits. However, the court had no power to overrule a Supreme Court decision - only the Supreme Court can overrule its prior decisions. Affirmed.

 


Employment & Labor Law

 

This summary also appears under Military Law

 

Issues: Claim of employment discrimination under the Uniformed Services Employment & Reemployment Rights Act (USERRA)(38 USC §§ 4301-4333); Curby v. Archon; Whether a plaintiff's military service was a "motivating factor" in an adverse employment action (§ 4311(c)(1)); Sheehan v. Department of Navy (Fed. Cir.); Whether a supervisor's "anti-military animus" can be imputed to the employer; Whether the record showed a nondiscriminatory basis for the plaintiff's dismissal; Whether the arbitration decision was entitled to deference by the district court; Becton v. Detroit Terminal of Consol. Freightways; Accuracy of the damage award; USERRA § 4323(d)(1)(B); Rasimas v. Michigan Dep't of Mental Health; Offset for military pay; Bing v. Roadway Express, Inc.(5th Cir.); EEOC v. Wilson Metal Casket Co.; Damages for lost fringe and retirement benefits

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hance v. Norfolk S. Ry. Co.

e-Journal Number: 43166

Judge(s): Per Curiam - Daughtrey, Clay, and McKeague

 

The court held the district court properly imposed liability on the defendant-NSRC for violation of the USERRA because it failed to demonstrate a valid, nondiscriminatory basis for plaintiff's dismissal as measured by the standard in § 4311(c)(1) and affirmed the entry of judgment in plaintiff's favor on the issue. However, the court found the district court's calculation of certain aspects of the damages award required correction, reversed that part of the judgment, and remanded for additional findings of fact and the entry of a new damages award consistent with the opinion. Defendant appealed the district court's judgment for the plaintiff, who prevailed on his claim under the USERRA. Plaintiff, defendant's former employee and member of the National Guard, sued claiming defendant discharged him because of his military service. After a bench trial, the district court entered a judgment for plaintiff, ordering defendant to reinstate him to his prior position and awarding him back pay, lost benefits, and interest in the amount of $352,845.93. Defendant appealed claiming plaintiff was discharged for insubordination, his military service obligations were not a motivating factor in his discharge, and the district court abused its discretion in calculating his damages. Defendant contended the district court erroneously attributed anti-military animus to the company and in holding it failed to prove a nondiscriminatory reason motivated the discharge. However, there was testimony related to anti-military animus of two persons -- plaintiff's immediate supervisor and an assistant superintendent who made the decision to fire him. The court held this evidence of anti-military animus from a decision-maker combined with the close temporal relationship between plaintiff's two-week leave for military service and his discharge was legally sufficient to support the district court's finding he was discharged in violation of the USERRA. The district court did not err in attributing anti-military animus to defendant. The court disagreed with defendant's claim the district court erred in concluding the record did not reflect a valid, nondiscriminatory basis for plaintiff's dismissal. The court has previously held the district courts are not bound by arbitration decisions in employment discrimination cases. Here, the district court considered the arbitrator's decision, the factual dispute over whether plaintiff's reporting instructions were clear, and the evidence of anti-military animus by his superiors. Since the district court was not required to consider the arbitrator's decision as conclusive, its decision could not prevent the district court from correctly holding defendant failed to demonstrate a valid nondiscriminatory reason for plaintiff's dismissal.

 


Family Law

 

Issues: Custody; Whether the minor, O, was "wrongfully retained" by the respondent-father in Ohio and should be "returned" to the petitioner-mother's custody in Israel; The Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention); March v. Levine; Friedrich v. Friedrich (Friedrich II); International Child Abduction Remedies Act (42 USC §§ 11601-11611); "Habitual residence"; Friedrich v. Friedrich (Friedrich I); Robert v. Tesson; Karkkainen v. Kovalchuk (3rd Cir.); Expert testimony; ASARCO, Inc. v. Secretary of Labor; Electric Fittings Corp. v. Thomas & Betts Co.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Jenkins v. Jenkins

e-Journal Number: 43167

Judge(s): Daughtrey and Batchelder; Dissent – Kennedy

 

Holding the petitioner-Hofit (the child's mother) failed to establish by a preponderance of the evidence, as required by § 11603(e)(1)(A), there was an actual "removal or retention" by the father or the alleged retention was "wrongful," and the petition should have been dismissed for failure to establish a claim under the Hague Abduction Convention, the court affirmed the district court's judgment denying the mother's request for the "return" of the child, O, to her custody in Israel. O, the now-four-year old minor and his parents, Hofit and Avraham (the child's father), were living in Ohio after relocating to the US from their native Israel because of Avraham's job. The couple's relationship deteriorated and Hofit requested to return to Israel. Even though Avraham refused to allow O to go with her, Hofit returned to Israel. Once there, she instituted divorce proceedings and filed a petition with the Israeli Central Authority for the return of O under the provisions of the Hague Abduction Convention. The parties conceded both were exercising custodial rights over O on the date Hofit flew back to Israel. She contended because she was not permitted to take the child with her, O was "wrongfully retained" by his father in Ohio and should be "returned" to her custody in Israel. The court held there was no wrongful removal or retention, simply because (a) there was no "removal" - wrongful or otherwise - other than resulting from the parents' mutual decision to relocate O from Israel to the US, and (b) there was no "wrongful retention" of the child by Avraham, who had an equal right with Hofit to O's custody in the absence of a court order or judicial determination to the contrary. In refusing to let Hofit take O to Israel, Avraham may arguably have committed a breach of Hofit's "rights of access" to O, but he did not commit a "breach of rights of custody . . . under the law of the State in which the child was habitually resident immediately before the [alleged] removal or retention." The court affirmed the district court's dismissal of the mother's petition for custody under the Hague Abduction Convention.

 


Insurance

 

This summary also appears under Contracts

 

Issues: Breach of a title insurance contract; Archambo v. Lawyers Title Ins. Corp.; Quinto v. Cross & Peters Co.; Maiden v. Rozwood; Policy exclusions; Hayley v. Allstate Ins. Co.; The "police power" exclusion; "Public records" as defined in the policy; MCL 565.25 and 565.29; Negligence; Duty to properly investigate the property; An action in tort for nonperformance of a contract; Casey v. Auto-Owners Ins.; Fultz v. Union-Commerce Assoc.; Breach of implied contract of good faith; Candelaria v. B C Gen. Contractors, Inc.; Hudson v. Mathers

Court: Michigan Court of Appeals (Unpublished)

Case Name: Glenn v. First Am. Title Ins. Co.

e-Journal Number: 43124

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

 

The trial court properly granted the defendant-title insurer's motion for summary disposition, finding the condemnation notice was not a "public record" as defined by the policy, thus excluding plaintiff's claim from coverage. In October 2006, plaintiff purchased a home located in the City of Pontiac. She obtained a policy of title insurance on the property issued by defendant in the amount of $31,500. The policy set forth a list of 29 covered risks and also several exclusions and conditions limiting the insurance coverage. Plaintiff claimed with no notice to her, approximately one week after purchasing the property, the home was demolished pursuant to a demolition order issued by the City of Pontiac. She then discovered the property had been listed on Pontiac's condemnation list, filed at the Building and Safety Department, since October 2005. In January 2007, plaintiff tendered a claim under the policy to defendant in the amount of $36,905.41. She sued alleging breach of contract, breach of implied contract, and negligence. Plaintiff argued the policy exclusion precluding recovery for any losses incurred through proper exercise of the government's police power was inapplicable because the notice of condemnation appeared in the public records at the policy date. Specifically, she contended "public records" consist of records beyond those found in the register of deeds and the notice of condemnation was a public record since it was on file with the City of Pontiac's condemnation records when the policy was issued. The trial court ruled coverage was excluded because the "police power" exclusion in the policy applied to plaintiff's claims. The policy defined "public records" as "records that give constructive notice of matters affecting Your Title, according to the state statutes where you land is located." "Title" was defined as "the ownership of Your Interest in the Land." The policy language was unambiguous. Public records were those records giving notice of matters affecting title under state law. Further, in Michigan, the Legislature has determined the office of the county Register of Deeds is the proper place to record documents giving constructive notice of matters affecting title to real property. As the trial court correctly noted, "drain commissioner records and circuit court judgments are public records in the colloquial sense, [but] they are not public records as defined by the title insurance policy." Similarly, records of the condemnation proceedings are available to the public but were not "public records" pursuant to the policy as they do not relate to title to the property and are not filed in the office of the county Register of Deeds. Affirmed.

 


Military Law

 

This summary also appears under Employment & Labor Law

 

Issues: Claim of employment discrimination under the Uniformed Services Employment & Reemployment Rights Act (USERRA)(38 USC §§ 4301-4333); Curby v. Archon; Whether a plaintiff's military service was a "motivating factor" in an adverse employment action (§ 4311(c)(1)); Sheehan v. Department of Navy (Fed. Cir.); Whether a supervisor's "anti-military animus" can be imputed to the employer; Whether the record showed a nondiscriminatory basis for the plaintiff's dismissal; Whether the arbitration decision was entitled to deference by the district court; Becton v. Detroit Terminal of Consol. Freightways; Accuracy of the damage award; USERRA § 4323(d)(1)(B); Rasimas v. Michigan Dep't of Mental Health; Offset for military pay; Bing v. Roadway Express, Inc.(5th Cir.); EEOC v. Wilson Metal Casket Co.; Damages for lost fringe and retirement benefits

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hance v. Norfolk S. Ry. Co.

e-Journal Number: 43166

Judge(s): Per Curiam - Daughtrey, Clay, and McKeague

 

The court held the district court properly imposed liability on the defendant-NSRC for violation of the USERRA because it failed to demonstrate a valid, nondiscriminatory basis for plaintiff's dismissal as measured by the standard in § 4311(c)(1) and affirmed the entry of judgment in plaintiff's favor on the issue. However, the court found the district court's calculation of certain aspects of the damages award required correction, reversed that part of the judgment, and remanded for additional findings of fact and the entry of a new damages award consistent with the opinion. Defendant appealed the district court's judgment for the plaintiff, who prevailed on his claim under the USERRA. Plaintiff, defendant's former employee and member of the National Guard, sued claiming defendant discharged him because of his military service. After a bench trial, the district court entered a judgment for plaintiff, ordering defendant to reinstate him to his prior position and awarding him back pay, lost benefits, and interest in the amount of $352,845.93. Defendant appealed claiming plaintiff was discharged for insubordination, his military service obligations were not a motivating factor in his discharge, and the district court abused its discretion in calculating his damages. Defendant contended the district court erroneously attributed anti-military animus to the company and in holding it failed to prove a nondiscriminatory reason motivated the discharge. However, there was testimony related to anti-military animus of two persons -- plaintiff's immediate supervisor and an assistant superintendent who made the decision to fire him. The court held this evidence of anti-military animus from a decision-maker combined with the close temporal relationship between plaintiff's two-week leave for military service and his discharge was legally sufficient to support the district court's finding he was discharged in violation of the USERRA. The district court did not err in attributing anti-military animus to defendant. The court disagreed with defendant's claim the district court erred in concluding the record did not reflect a valid, nondiscriminatory basis for plaintiff's dismissal. The court has previously held the district courts are not bound by arbitration decisions in employment discrimination cases. Here, the district court considered the arbitrator's decision, the factual dispute over whether plaintiff's reporting instructions were clear, and the evidence of anti-military animus by his superiors. Since the district court was not required to consider the arbitrator's decision as conclusive, its decision could not prevent the district court from correctly holding defendant failed to demonstrate a valid nondiscriminatory reason for plaintiff's dismissal.

 


Real Property

 

Issues: Quiet title action; Fowler v. Doan; Deutsche Bank Trust Co. Ams. v. Spot Realty, Inc.; Stokes v. Millen Roofing Co.; Advanta Nat'l Bank v. McClarty; Ameriquest Mortgage Co. v. Alton; MCL 600.5803; Standing; Department of Consumer & Indus. Servs. v. Shah; Whether there was a satisfaction of judgment; Becker v. Halliday; Eltel Assocs., LLC v. City of Pontiac; Fraud, accident, or mistake; MCL 600.3201 et seq.; MCL 600.3240; MCL 600.3240(8); Heimerdinger v. Heimerdinger; Senters v. Ottawa Sav. Bank, FSB; Unjust enrichment; Morris Pumps v. Centerline Piping, Inc.; Sweet Air Inv., Inc. v. Kenney

Court: Michigan Court of Appeals (Unpublished)

Case Name: Tus v. Hurt

e-Journal Number: 43102

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

 

The trial court erred in quieting title in favor of plaintiffs-the Tuses where the trial court's decision to quiet title in the Tuses' names, despite the determination defendant-Sterling Mortgage & Investment Company (Sterling) was lawfully entitled to foreclose on the mortgage, constituted an impermissible attempt to act in equity to avoid the application of a statute. On October 10, 1990, WH and Sterling entered into a 15-year mortgage agreement on the property, in the amount of $76,500. The mortgage was recorded on October 11, 1990. A payment of almost $58,000 was made against the principal balance of the loan within a few weeks. It was followed by two additional payments totaling approximately $9,500, leaving a balance of approximately $9,000. As a result of the large payments made, Sterling lowered the monthly payment. However, the last payment Sterling received was in May 1991. In February 2000, WH executed a quitclaim deed conveying the property to himself and his wife, defendant-Hurt. She then became the sole owner of the property when WH passed away. On June 28, 2000, the Tuses purchased the property from Hurt, and a closing was held. In 2005, after discovering its misplaced file related to the mortgage, Sterling instituted foreclosure proceedings by publishing a notice for sale. A foreclosure sale was held and Sterling acquired a sheriff's deed. The trial court concluded Sterling was legally entitled to start a foreclosure proceeding when it did based on its mortgage. The Tuses did not establish this finding was clear error. The foreclosure of a mortgage operates to extinguish subordinate liens and interests. The Tuses' predecessor in title executed a promissory note and granted the mortgage in favor of Sterling in October 1990. Sterling duly recorded the mortgage. Sterling's mortgage remained a matter of public record in June 2000, when the Tuses purchased the property. There was no dispute the mortgage was not satisfied by the proceeds from the sale, or at any other time. The Tuses' interest in the property was subordinate to Sterling's interest. The lawful foreclosure extinguished the Tuses' interest, notwithstanding available redemption remedies. The Tuses failed to redeem within the statutory period. They contended the trial court reached the correct result because Sterling "sat on its hands for almost 15 years" and because Sterling's representative testified the mortgage was misfiled or misplaced. However, Sterling was entitled to foreclose on the mortgage up to 15 years from the date of the last payment. Thus, the admitted delay did not affect its right to foreclose on the property. Reversed in part, affirmed in part, and remanded.

 


Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Miller; Denial of request for an adjournment of the termination hearing; In re Utrera; MCR 3.923(G); "Good cause"; Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Alvey

e-Journal Number: 43132

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

 

The trial court did not clearly err in determining the statutory grounds for termination of the respondent-mother's parental rights were established by clear and convincing evidence and in terminating her rights. The initial petition filed in January 2007 alleged respondent was homeless, mentally unstable, and had a history of drug use. She was ordered in May 2007 to comply with the PAA and made great progress, although she did not secure daycare and continued to have problems interacting with others. It appeared reunification would occur. However, by the March 2008 review hearing it was reported she had lost her apartment in a fire, leaving her again without housing, and since she had been working for her landlord, she was also unemployed. Further, she had dropped out of school. Respondent was still unemployed and without housing by the October 2008 termination hearing. She also continued to have anger management problems, and her failure to visit the children was of great concern. While she was granted unsupervised visits, she never utilized them, and when she did see the children, she did not do so for the amount of time she was permitted. The children were also often returned hungry. Respondent had visited with her daughter for a total of 6 hours since January 2008, and had only visited her son 3 times since January 2008. The court noted the children had been out of her care for 15 months, and she was no closer to being able to care for them. Affirmed.

 


Issues: Termination of parental rights pursuant to §§ 19b(3)(g), (i), and (j); In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Riggins

e-Journal Number: 43162

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

 

The trial court did not clearly err in finding the statutory grounds for termination of the respondent-father's parental rights were established by clear and convincing evidence and in terminating his parental rights. The evidence showed respondent's parental rights to another child were terminated in 1994, and many of the same conditions existing then continued to exist at the time of the proceeding. The evidence also showed respondent had a history of domestic violence and he failed to complete a treatment plan when two children were previously placed in foster care in 1997. Recently, respondent was living in New York where he has two other children who have been court wards for about two years. He also failed to complete treatment plans required by the New York courts to regain custody of these children. At the time of termination, respondent lacked suitable housing or stable income and was tens of thousands of dollars behind in child support. Respondent's failure to provide for his children, combined with his history of domestic violence and his decision to abandon his minor children with their drug-addicted mother indicated a reasonable likelihood of harm to the children if they were returned to him. Affirmed.

 


Issues: Termination pursuant to § 19b(3)(c)(i); In re Sours Minors; Effect of the respondent-mother's failure to substantially comply with aspects of the PAA; In re Trejo Minors; Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tavorn

e-Journal Number: 43129

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

 

The trial court did not clearly err in determining § 19b(3)(c)(i) was established by clear and convincing evidence and in terminating the respondent-mother's parental rights to the three children. The conditions leading to the adjudication included domestic violence, alcohol abuse, and neglect. Although more than two years had elapsed since the children were removed from respondent's custody, she had failed to sufficiently address her domestic violence and anger management issues, and she continued to have alcohol abuse problems. Despite individual therapy and group sessions designed to address the domestic violence issue, she still experienced those issues with her former boyfriend, requiring her to obtain a PPO, which was later violated. Further, evidence was presented from several witnesses the respondent inappropriately used aggression and anger throughout treatment. Despite the abundant evidence of anger management issues, she refused to acknowledge her problem and thus, was resistant to seeking and benefiting from treatment. As to the adjudication of neglect, the record showed at the time of the termination trial respondent was still unemployed, had no legal source of income, and did not have a suitable home for the children. While the trial court found substantial compliance with some of the PAA's requirements, it did not err in finding respondent failed to substantially comply with other, crucial aspects of the PAA, which can be a valid indication of neglect. Despite the fact respondent was offered several referrals and services over the course of two years to address the issues bringing the children into care, the conditions of adjudication continued to exist. Affirmed.

 


Issues: Termination under §§ 19b(3)(g), (j), and (l); In re Trejo Minors; Child's best interests; Whether the fact the petitioner-DHS did not seek termination of the mother's parental rights affected the analysis of the case against the respondent-father; In re Marin

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tillery

e-Journal Number: 43164

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

 

There trial court properly terminated the respondent-father's parental rights to the minor child where clear and convincing evidence established the statutory grounds for termination. He had a history of drug abuse and criminal activity. Despite receiving substance abuse treatment, he continued to abuse drugs during the pendency of these proceedings and was once again incarcerated at the time of the termination hearing. Evidence was presented indicating respondent had anger management issues and had previously been accused of domestic violence. Given his apparent struggles with anger management issues, repeated incarcerations, and continued abuse of several controlled substances, including cocaine and methamphetamines, a reasonable likelihood existed the child would be harmed if placed in respondent's custody. Therefore, termination was appropriate under § 19b(3)(j). Respondent also had three other children who were the subject of child protective proceedings in 2005, and his parental rights to those children were terminated in February 2007, just months before the present child was born. Thus, termination was also appropriate under § 19b(3)(l). Affirmed.

 


Issues: Termination of parental rights pursuant to §§ 19b(3)(a)(ii), (g), (j), and (k)(i); In re Miller; Best interests of the children; In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Williams

e-Journal Number: 43160

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

 

The trial court did not clearly err in finding at least one statutory ground for termination of the respondent-mother's parental rights was established by clear and convincing evidence and in terminating those rights. The children first came to the petitioner's attention when respondent and K tested positive for cocaine and opiates at K's birth. Voluntary services were offered to her, including outpatient substance abuse treatment and infant support services, in an attempt to avoid removal of the children, but she did not participate in the services. As a result, the children were later removed from her care, primarily because of the substance abuse. At the hearing for temporary custody, respondent's behavior suggested she was under the influence of illegal substances. The trial court referred her for an immediate drug screen, but she claimed to be unable to provide a sample. She failed to appear at the next hearing but did appear at a later hearing where she admitted to allegations of drug use at the time of K's birth and her failure to complete a substance abuse treatment program. Respondent again failed to appear at a later hearing where the trial court adopted a treatment plan for her. She began a 30-day drug treatment inpatient program, but left after 12 days. She failed to provide a single drug screen, admitting she would test positive for marijuana if screened following the adjudication hearing. Although she promised to go into treatment that day, there was no indication she ever resumed any treatment program. Respondent also did not complete parenting classes, failed to visit the children for 17 months, failed to consistently attend hearings, and last verbalized a desire to seek custody of them about 4 months before the termination hearing. But she did not attend a related appointment the next day. The evidence at the termination hearing clearly showed she had completely failed to meaningfully address, let alone rectify, her substance abuse problem and she failed to visit her children for the prior 17 months. Affirmed.