• Administrative Law (1)
• Contracts (2)
• Criminal Law (4)
• Employment & Labor Law (1)
• Family Law (1)
• Municipal (1)
• Real Property (2)
• Termination of Parental Rights (2)

Administrative Law

 

Issues: Whether "equal" percentage increases for all base rates were required; Mootness; Attorney Gen. v. Public Serv. Comm'n; Validity of the Michigan Public Service Commission (PSC)'s interpretation of MCL 460.6a(1) and 11(1); In re Consumers Energy Application; Review of an agency's interpretation of a statute; In re Complaint of Rovas Against SBC MI; The doctrine of in pari materia; Robinson v. City of Lansing; Bush v. Shabahang; Tyler v. Livonia Pub. Schs.; In re Project Cost & Special Assessment Roll for Chappel Dam; Statutory interpretation; Michigan Basic Prop. Ins. Ass'n v. Office of Fin & Ins. Regulation

Court: Michigan Court of Appeals (Published)

Case Name: Attorney Gen. v. MPSC

e-Journal Number: 52127

Judge(s): Fitzgerald and Wilder; Dissent - Murray

 

The court held that § 11(1)'s "grant of authority to 'phase in' cost-based rates over a five-year period gave the PSC broad authority to accomplish the phase in in a fluid manner such that it could manipulate the interim self-implemented rate for the five-year phase-in period to the extent such manipulation would be consistent with the gradual implementation of cost-based rates." Petitioner-Indiana Michigan sought authority to amend its electric rates to increase annual jurisdictional operating revenues by approximately $62.5 million. Petitioner-Consumers Energy sought authorization to increase its electric rates to produce additional revenues of approximately $178 million annually. In both cases the PSC determined that interim self-implemented equal percentage increases would frustrate the phase in of cost-based electric rates. Thus, it allowed for interim self-implemented rate increases but required that they be of varying percentages for different base rates. The Attorney General appealed arguing that equal percentage increases for all base rates were required. Indiana Michigan argued that the appeal was moot because, after a settlement agreement, the PSC issued a final order setting Indiana Michigan's final rates on 10/14/10. Also a final rate was set as to Consumers Energy by an order entered on 11/4/10. Because the issue involved rates charged to a multitude of consumers, the court held that it was "publicly significant." Also, because the issue may arise when rate increases are sought through 2013 and such requests are likely, the court held that it was likely to recur. "Since the PSC must issue final orders on rates within one year, the issue would likely evade review. Final rates would presumably be set in most if not all instances before the issue wends its way through the appellate process." Thus, the court addressed the issue. The court concluded that there was a potential conflict between the authority granted to the PSC in § 6a(1) and the authority granted to it in § 11(1). Since both statutes were enacted by 2008 PA 286 and address ratemaking, the court held that the provisions must be read in pari materia to discern the Legislature's intent. The court concluded that the PSC did not stop self-implementation by the petitioners, but instead directed that, "if the utilities decided to self-implement rate increases (in other words, to implement rate increases before a final order), they must do so using cost-based rates." These orders were consistent both with the authority to issue cost-based rates granted to the PSC under § 11(1), and also the legislative mandate that "the commission shall phase in electric rates equal to the cost of providing service to each customer class over a period of 5 years. . . ." Further, nothing in the plain language of § 11(1) limited the PSC's obligation to impose cost-based rates to rates established in final orders. The court found "no cogent reason" for concluding that the PSC erred in interpreting the statute to mean that § 11(1) granted it overriding authority for the five-year phase in period. "Section 6a(1) is a statute that will presumably be in effect long after the authority in § 11(1) is exhausted." When § 6a(1) stands alone, the court held that the PSC will be barred from preventing or delaying self-implementation of equal percentage rate increases except for good cause. However, during the phase in period the PSC has authority to gradually bring about cost-based rates. The use of the phrase "phase in" suggested that a gradual approach was desired. The court concluded that § 11(1) was enacted with the intent of bringing about a specified change within five years. "The PSC's determination that varying percentage rate increases during that five years will allow it to better meet its mission of phasing in the change is consistent with the grant of authority in § 11(1). While this is greater than the authority conferred on the PSC by § 6a(1), the provisions, when read together, suggest that such flexibility was intended for the phase in period." Affirmed.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Applicability of the "material breach" doctrine where the contract contains an express forfeiture clause; Contract interpretation; Alpha Capital Mgmt. v. Rentenbach; Rory v. Continental Ins.; Difference between "rescission," "termination," and "forfeiture" of a contract; Alibri v. Detroit/Wayne Cnty. Stadium Auth.; Rewriting or reforming the contract; Titan Ins. Co. v. Hyten; Whether the forfeiture clause was contrary to public policy; Terrien v. Zwit; Applicability of the doctrine of "unconscionability"; Clark v. DaimlerChrysler Corp.; Whether the defendant-tenant was excused from complying with its lease obligation to agree to the easement agreement; Whether consent to the easement was contingent on finalization of a merger agreement; Whether the easement agreement was "ripe" for defendant's consent; Whether the plaintiff satisfied the notice requirements spelled out in the lease

Court: Michigan Court of Appeals (Published)

Case Name: Majestic Golf, L.L.C v. Lake Walden Country Club, Inc.

e-Journal Number: 52128

Judge(s): Wilder, Talbot, and Servitto

 

In an issue of first impression (the applicability of the material breach doctrine where the contract contains an express forfeiture clause), the court held that the trial court erred in failing to enforce the forfeiture clause in the parties' lease based on the defendant-tenant's breach not being a "material breach." The court could not refuse to enforce the plain and unambiguous terms of the lease on the basis that the forfeiture clause was "unfair." Further, the court could not conclude that forfeiture clauses in a contract that is not a land contract violate public policy, and the forfeiture provision here was not avoidable under the unconscionability doctrine. Non-party WPL, the only member of the plaintiff-LLC, planned a golf course-real estate development on land it owned. It planned to lease the land for the golf course to a different entity that would be responsible for constructing and operating the golf course. In 1992, WPL, as landlord, entered into the lease with defendant. Defendant complied with its lease obligation to construct the 27-hole golf course. In 2003, defendant and WPL (and later plaintiff, as WPL's successor in interest) began merger negotiations, which continued until this case began. WPL (and later plaintiff) unsuccessfully sought defendant's consent to a proposed "Road Easement" that was needed for final approval of WPL's "Master Plan" for development. The trial court determined that defendant defaulted under the terms of the lease because the lease obligated defendant to agree to the easements requested by plaintiff. However, the trial court concluded that termination of the lease was not proper under principles of equity because defendant's breach was not material. Plaintiff argued on appeal that the trial court improperly used the material breach doctrine in deciding whether plaintiff could invoke the forfeiture clause in the lease. The court agreed, concluding that the trial court erred by not applying the plain language of the contract and that "by reading the default provision to include the term 'material breach,' the trial court effectively rewrote or reformed the contract." While Rory "did not expressly decide whether a contract forfeiture clause was enforceable, it made clear that a court has no power to ignore a contract's plain and unambiguous term because the court holds the view that the term ostensibly was 'unreasonable.'" Further, defendant did not show that "the requisite exceptional circumstances exist in this case, sufficient to ignore the plain language of its contract with plaintiff." Noting that defendant did not claim the forfeiture provision violated the law, the court concluded that the forfeiture clause was not contrary to public policy. The only recognized traditional contract defense that defendant could possibly rely on, based on its pleadings, was the doctrine of unconscionability. However, the court concluded that defendant could not establish any procedural unconscionability, and that the forfeiture clause was not substantively unconscionable. As to defendant's cross-appeal, the court concluded that the trial court correctly found that defendant breached the lease, and the court held that defendant was not excused from complying with its obligation under the lease. Affirmed in part, reversed in part, and remanded. The court instructed the trial court on remand to enter an order granting plaintiff summary disposition.

 

This summary also appears under Real Property

 

Issues: Breach of contract; Whether defendant-Ticor presented evidence that plaintiff had knowledge of the condo association's lien before the expiration of the pertinent redemption period; Contract interpretation; Morely v. Automobile Club of MI; Whether Ticor adequately set forth a genuine issue of material fact by way of a 4/3/07 letter from plaintiff's servicer; Damages; Interpretation of the phrase "as insured"; Motion for summary disposition under MCR 2.116(C)(10); Altairi v. Alhaj

Court: Michigan Court of Appeals (Unpublished)

Case Name: U.S. Bank Nat'l Ass'n v. Ticor Title Ins. Co.

e-Journal Number: 51979

Judge(s): Per Curiam – Servitto, Meter, and Fort Hood

 

The court agreed with the trial court's analysis of the 1/31/08 letter from plaintiff's attorney to defendant-Ticor, that it was insufficient to create a genuine issue of material fact as to plaintiff's actual knowledge of the condo association's lien before the expiration of the pertinent redemption period. Thus, the court affirmed the grant of summary disposition to the plaintiff. However, the court held that the trial court erred in simply awarding the amount of insurance to plaintiff. The case was remanded for a hearing and further arguments as to damages. Because the court vacated the award of damages, it also vacated the case-evaluation sanctions. The trial court shall reevaluate them on remand. On 1/9/06, non-party New Century Mortgage Corporation gave non-party P a loan secured by a mortgage on a condo unit in a condo development. Defendant-Sinutko, working for defendant-JPS Title Agency, conducted the closing, and Ticor issued a title insurance policy in the amount of $114,750 to insure the mortgage, which was assigned to plaintiff as trustee. Ticor issued a first lien letter to New Century indicating that its mortgage was senior to all other liens. After P failed to pay condo dues, the defendant-condo association, on 1/22/07, recorded a lien against the property in the amount of $625.75. In the meantime, plaintiff began foreclosure proceedings and discovered that its mortgage was never recorded. Thus, it filed a title claim with Ticor on 4/3/07. On 4/5/7, a title examiner from JPS Title signed an affidavit indicating that the mortgage was issued but had been lost. On 5/11/07, Ticor sent plaintiff a letter indicating that "it appears that the mortgage to New Century Mortgage Corporation has not been recorded. Our agent has been contacted regarding this claim and is in the process of having the mortgage recorded with an Affidavit of Lost Document." A second affidavit was recorded on 5/14/07. On 7/6/07, the condo association foreclosed on its lien and purchased the unit at a sheriff's sale for $3,721.95, subject to a 6-month redemption period. On 10/5/07, plaintiff foreclosed and purchased the property at a sheriff's sale for $128,433.48, subject to a 6-month redemption period. At the expiration of the condo association's redemption period on 1/7/08, it sent a letter to plaintiff indicating that it now owned the property, and plaintiff filed a claim with Ticor. Ticor denied the claim, arguing that plaintiff prejudiced Ticor because it did not tender the claim before the expiration of the condo association's redemption period. Ticor argued that if it had been notified in a timely manner, it could have cured the title defect for $3,721.95. Ticor argued on appeal that it presented evidence that plaintiff had knowledge of the condo association's lien before the expiration of the pertinent redemption period. Citing the language of the 1/31/08 letter, Ticor contended that because plaintiff admitted to discovering the lien "[d]uring foreclosure proceedings," and because plaintiff received its sheriff's deed on 10/5/07, plaintiff must have known about the lien at least by 10/5/07, which was before the expiration of the condo association's redemption period. The court agreed with the trial court that the 1/31/08 letter did not create a genuine issue of material fact as to actual knowledge, as required by the title insurance policy. While plaintiff admitted to having discovered the lien "[d]uring foreclosure proceedings," the foreclosure proceedings were still ongoing after the expiration of the condo association's redemption period. It was "mere conjecture for Ticor to claim that plaintiff knew of the lien before that expiration. Conjecture is insufficient to defeat a motion for summary disposition." As to damages, the key phrase in § (7)(a)(iii) of the policy was "as insured." The court concluded that the additional words "as insured" simply referred "to the estate as it exists in the state to be insured" - "without the defect, lien, or encumbrance at issue." Ticor insured against defects, liens, and encumbrances, not against changes in valuation due to market fluctuations. Affirmed in part, reversed in part, and remanded.

 

Criminal Law

 

Issues: Sufficiency of the evidence to support the defendant's conviction of carjacking; People v. Perkins; "Larceny from a person"; People v. Perkins; "Carjacking"; People v. Harverson; Sentencing; Scoring of OV 19; People v. Smith; People v. Osantowski; People v. Witherspoon; People v. Lockett; People v. Barbee; People v. Passage

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Adams

e-Journal Number: 51955

Judge(s): Per Curiam – Gleicher, M.J. Kelly, and Boonstra

 

Viewed in a light most favorable to the prosecution, the court held that the evidence was sufficient to enable the jury to find beyond a reasonable doubt that "the victim was placed in fear during the commission of the larceny of the vehicle." Thus, the court affirmed the defendant's conviction of carjacking. His conviction arose from an incident in which he took a vehicle for a test drive, accompanied by the victim, and then eventually stole the vehicle. At trial, defendant did not contest that he stole the car. On appeal, defendant argued that the evidence did not support his carjacking conviction because there was insufficient evidence that he "put[] in fear any operator, passenger, or person in lawful possession of the motor vehicle" during the commission of the larceny. At trial, the victim testified that "he became 'fearful' during the offense because he eventually realized that defendant intended to steal the vehicle and he was afraid that he would be 'beaten up' or taken away in defendant's effort to steal the car." This evidence was sufficient to satisfy the fear during the commission of the larceny of the vehicle requirement. Further, a jury could reasonably infer that the victim was placed in fear when he was nearly struck by the car mirror as defendant sped away after expelling the victim from the vehicle. Defendant thus, inspired fear in the victim while in the course of committing a larceny of a motor vehicle. His reliance on an excerpt of the victim's preliminary examination testimony, to argue that the victim was not in fear, was misplaced because the testimony related to an earlier portion of the test drive, before the victim realized that defendant intended to steal the vehicle.

 

Issues: Sufficiency of the evidence to establish the defendant's identity as the shooter; People v. Osby; People v. Wolfe; Pretrial photo lineup; People v. Kurylczyk; Sufficiency of the in-court identification; United States v. Crews; People v. Jackson; Positive identification by witnesses as sufficient evidence to support a conviction; People v. Davis; Assault with intent to murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Granderson

e-Journal Number: 51940

Judge(s): Per Curiam – Borrello, O’Connell, and Talbot

 

The court held that the in-court identification of the defendant by two of the victims was sufficient to support his convictions of four counts of AWIM, two counts of felony-firearm, and one count of carrying a deadly weapon with unlawful intent. BW was driving his car with LA seated in the front passenger's seat, his girlfriend JR seated in the rear passenger's seat, and JR's six-month old nephew LR seated in the rear driver's side. While driving, BW approached a group of males who had congregated on the street. According to the testimony of BW and JR, "a tall light-skinned male had a chrome pistol in his hand." They testified that the tall light-skinned man raised the gun and fired shots into the car, causing windows to shatter. BW testified that "lots" of shots were fired, resulting in his losing control of the car and crashing into a tree. After the crash, BW discovered he was shot in the neck and shoulder. He believed LA was dead because he was unresponsive. JR testified that she broke her right ankle and right arm, while LR was shot and bleeding. A Michigan State Trooper who responded to the scene plugged LR's bleeding with his finger as he rushed the infant to the hospital. The ER doctor who cared for LR testified that LR was shot once with the bullet entering through his back and exiting through the groin. Defendant argued on appeal that the evidence was insufficient to establish his identity as the shooter. While he asserted that a pretrial photo lineup is invalid (with some exceptions) where the suspect is in custody, based on the record the court could not conclude that his identification by JR occurred when defendant was in custody. Rather, the record led the court to conclude that JR's identification formed the basis of the arrest warrant for defendant. However, even if the court presumed the photo lineup was tainted, the U.S. Supreme Court held in Crews that "even if a pretrial identification of the defendant is tainted, the in-court identification is admissible if the victim had independent recollection of the defendant which antedated the unlawful police conduct." JR's testimony revealed that "her in-court identification of defendant was independent of the presumed tainted pretrial identification." She testified that he approached her two days before the shooting and asked for her phone number. The court held that JR's testimony sufficiently showed that her in-court identification was based on her independent recollection of her encounter with defendant. Thus, presuming that he was in custody when she initially identified him, her in-court identification was not influenced by the presumed tainted lineup identification. The court held that the testimony of BW and JR identifying defendant, together with the testimony of others who saw him near the scene just before the shooting, could lead a rational trier of fact to conclude beyond a reasonable doubt that he committed the crimes for which he was convicted. Affirmed.

 

Issues: Docket No. 298711 - Defendant-Grant's appeal; Aiding and abetting first-degree home invasion; Whether the trial court properly denied Grant's motion for a new trial based on the great weight of the evidence; People v. Blackson; People v. Musser; People v. McCray; People v. Lemmon; "Witness credibility"; People v. Unger; People v. Carines; People v. Kevin Robinson; Prosecutorial misconduct; People v. Abraham; People v. Joezell Williams II; People v. McElhaney; People v. Ullah; People v. Rice (On Remand); People v. Bahoda; People v. Jones; Docket No. 29937 - Defendant-Dothard's appeal; Sufficiency of the evidence and great weight of the evidence; People v. Wolfe; Elements of felony murder; People v. Bobby Smith; People v. Riley (After Remand); Removal of appointed counsel; People v. Bauder; People v. Williams; People v. Ginther; Ineffective assistance of counsel; People v. Matuszak; People v. Pickens; People v. Johnnie Johnson; Whether the trial court properly allowed the prosecutor to cross-examine codefendant-W about other crimes; MRE 609; People v. Coleman; People v. McIntire; People v. Layher; United States v. Abel

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Grant

e-Journal Number: 52031

Judge(s): Per Curiam - K.F. Kelly, Sawyer, and Ronayne Krause

 

Defendant-Grant argued on appeal, inter alia, that his conviction for aiding and abetting first-degree home invasion was against the great weight of the evidence because it was dependent on the testimony of L, who admitted she was under the influence of drugs and alcohol on the date of the offense to the point where her mind was "messed up." L also admittedly lied when testifying at a prior proceeding and at the preliminary examination, and her testimony was inconsistent with that of other witnesses. However, the court held that it was up to the jury to weigh L's testimony against the other evidence and to determine whether it was credible. The court held that the trial court did not abuse its discretion by deferring to the jury's determination. Thus, the trial court did not abuse its discretion in denying Grant's motion for a new trial. Defendants' convictions arose from the shooting death of JH during the commission of a robbery. Three others were also charged in the offense, F, L, and W. L and F pleaded guilty to second-degree murder pursuant to agreements in which they agreed to testify truthfully for the prosecution. W was charged with first-degree premeditated murder, but pleaded guilty to second-degree murder and felony-firearm pursuant to a plea agreement. W was called as a defense witness by defendant-Dothard. Testimony at trial indicated that L, F, W, and defendants were all at a house together when someone raised the idea of committing a robbery. According to L, Grant, who was her boyfriend, identified JH as a potential target. Grant had previously found JH's telephone number in L's purse and he threatened to end his relationship with L if she did not agree to contact JH to arrange to meet. L then called JH who later picked up L and F and took them to his house. L and F claimed at some point later that evening, W and Dothard both entered JH's house at gunpoint and announced a robbery. W and Dothard took JH to the basement in his house, where he was later shot to death, apparently by W. The women and Dothard then removed several garbage bags of clothing, jewelry, and other items from JH's house, returned to the prior house, and divided up the stolen property. L and other witnesses testified that Grant was present in the house and received a share of the stolen property. Grant did not dispute that L's testimony, if believed, was sufficient to allow the jury to find that he encouraged the commission of the home invasion at JH's house by identifying him as the target and asking L to call JH to meet and by threatening her. However, Grant argued that L's testimony lacked any probative value because of her admitted drug and alcohol use on that day, her admitted history of lying, and inconsistent testimony. The court noted that the credibility of all of the witnesses was an issue. But L's testimony was not so implausible or incredible that it could not be believed. She knew what was happening on the night of the offense. The court held that the trial court did not abuse its discretion in denying Grant's motion for a new trial and affirmed in both cases.

 

Issues: Sufficiency of the evidence to support the defendant's conviction for conspiracy to commit larceny from a person; People v. Hawkins; People v. Hunter; People v. Solmonson; "Criminal conspiracy"; People v. Jackson; People v. Mass; People v. Cotton; People v. Taurianen; Elements of larceny from a person; People v. Perkins; Sufficiency of the evidence of a conversation between defendant and his co-conspirators to establish beyond a reasonable doubt that there was an agreement to commit the larceny; People v. Hintz; People v. Lemmon; People v. Wolfe

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Nickens

e-Journal Number: 52007

Judge(s): Per Curiam – Donofrio, Markey, and Owens

 

The court held that viewed in the light most favorable to the prosecution, the evidence was sufficient to allow a rational jury to find the defendant guilty beyond a reasonable doubt of conspiracy to commit larceny from a person. The court affirmed the defendant's convictions for conspiracy to commit larceny from a person, armed robbery, and assault with intent to do great bodily harm less than murder. His convictions arose from an assault in which he struck the victim in the head with a brick and continued to hit him while his two co-conspirators searched through the victim's pockets and took his wallet. The court held that viewed in a light most favorable to the prosecution, there was ample evidence that defendant and his co-conspirators worked together to commit a larceny. Before defendant attacked the victim, he was seen whispering separately to his co-conspirators. He subsequently yelled "Let's get um [sic]" immediately before the victim was attacked. Defendant then hit the victim in the head with a brick, causing the victim to fall to the ground, and continued to hit him while his co-conspirators searched the victim's pockets and took the victim's wallet. All three men then ran from the scene. "This evidence of a concert of action gives rise to fair inferences" that defendant and his co-conspirators conspired and intended to accomplish an illegal objective - to take the victim's property from his person and carry it away with the intent to permanently deprive him of the property. The evidence that defendant and his co-conspirators worked together to commit the larceny provided sufficient evidence of the conspiracy. Also, to the extent that defendant argued that he and his co-conspirators did not have an opportunity to conspire because they were in the victim's presence, the court held that such a contention was belied by the testimony that defendant and his co-conspirators engaged in whispered conversations while the group was walking together. Further, there was evidence that before the assault, the victim went to the door of a home looking for a friend and that while he was at the door, defendant and his co-conspirators remained near the street. Based on this evidence, the court held that a rational inference could be drawn that defendant and his co-conspirators had an opportunity to discuss any planned crime at that time, particularly in light of the fact that the assault took place only a short time later.

 

Employment & Labor Law

 

This summary also appears under Municipal

 

Issues: Whether the plaintiff was "wrongfully discharged" from his position as a building official because the defendants failed to comply with the termination procedure in the Michigan Building Code (MBC) and the International Property Maintenance Code (IPMC); Applicability of the Veterans Preference Act (VPA); MCL 35.402; Defining "department head"; McCormick v. Carrier; Statutory construction; Driver v. Naini; Robertson v. DaimlerChrysler Corp.; Whether the trial court correctly determined that plaintiff was an "independent contractor"; Candelaria v. BC Gen. Contractors, Inc.; The "economic realities test"; Buckley v. Professional Plaza Clinic Corp.; Mantei v. Michigan Pub. Sch. Employees Ret. Sys.; Coblentz v. City of Novi; Argument on appeal contrary to the position taken in the trial court; Dresselhouse v. Chrysler Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Giera v. City of Belleville

e-Journal Number: 51922

Judge(s): Per Curiam – Jansen, Cavanagh, and Hoekstra

 

The court held, inter alia, that based on the plain language of the MBC, because there is a difference between the MBC and the IPMC as to the appointment and removal of the building official, the MBC provision applied and the MBC does not require any pre-termination hearing. Thus, the trial court correctly granted the defendants summary disposition on the plaintiff-former building official's claim that his termination was contrary to the MBC. Further, the trial court did not err in finding that the facts clearly showed that he was a "department head" and thus, the VPA's termination procedure did not apply. In 2003, plaintiff applied for the position of the defendant-City's building official after being encouraged to do so by the then-city manager, defendant-Walters. Plaintiff and Walters agreed that plaintiff would work part-time as an independent contractor for $30 an hour. Walters recommended plaintiff to the city council, which approved plaintiff's contract. A resolution was issued stating in relevant part that "a proposed service contract for an independent contractor is recommended by the city manager for the position of building official." It further stated that it was resolved, that the city council approved "an independent contract with" plaintiff as the City Building Official and Code Enforcement Officer. Walters was plaintiff's supervisor. Plaintiff was informed by letter in 8/06 that his position would be terminated effective 9/1/06. He argued on appeal, inter alia, that he was wrongfully discharged because defendants did not comply with the termination procedure set forth in the MBC and the IPMC, and that their failure to comply with the VPA's provisions entitled him to reinstatement and back pay. It was undisputed that the City adopted the state construction code, which includes the MBC, as its regulatory building and maintenance codes. The IPMC was also applicable in part pursuant to MBC § 101.4.5. The 2003 version of the IPMC stated that the code official "shall not be removed from office except for cause and after full opportunity to be heard on specific and relevant charges by and before the appointing authority." However, the MBC section about appointment of a building official provides only that "building official shall be appointed by the chief appointing authority of the jurisdiction," and does not contain any provision as to removal procedures. The MBC also provides that the "codes and standards referenced in this code shall be considered part of the requirements of this code to the extent of each such reference. Where differences occur between provisions of this code and referenced codes and standards, the provisions of this code shall apply." As to plaintiff's VPA claim, the trial court ruled that summary disposition for defendants was proper because the undisputed facts showed that plaintiff was a department head and the plain language of the VPA states that the termination procedure does not apply to department heads. The court concluded that the facts showed that "plaintiff's only supervisor was the city manager, and that plaintiff was in charge of the entire building department, including the individuals who conducted the plumbing, electrical, and mechanical inspections." Plaintiff explained that the building official was "in charge of the entire building department, plumbing, electrical and mechanical." Walters stated that the building official was "in charge of the building department operations." Affirmed.

 

Family Law

 

Issues: Custody; The Child Custody Act (MCL 722.21 et seq.); Berger v. Berger; Fletcher v. Fletcher; Dailey v. Kloenhamer; "Established custodial environment" (ECE); MCL 722.27(1)(c); The Acknowledgment of Paternity Act (MCL 722.1001 et seq.); Foster v. Wolkowitz; "Mootness"; The statutory "best interest" factors (MCL 722.23); McIntosh v. McIntosh; Attorney fees; MCR 3.206(C)(1) & (2)(a); Whether the trial court should have conducted an evidentiary hearing; John J. Fannon Co. v. Fannon Prods., LLC; Whether the trial court made sufficient findings under Smith v. Khouri; Wood v. DAIIE; Borowsky v. Borowsky; Due process; Subject-matter jurisdiction; Whether the later attorney fee orders were voided by subsequent judicial acts; MCR 3.207(C)(6); Adequacy of the trial court's findings; Schoensee v. Bennett; Jurisdiction to determine whether the attorney fees qualified as "domestic support obligations" that were nondischargeable in bankruptcy; 11 USC §§ 362(b)(2)(A)(ii) & (B); Chao v. Hospital Staffings Servs., Inc. (6th Cir.); § 101(14A); Alleged evidentiary errors; Reed v. Reed; Admission of the plaintiff-father's vacated federal conviction; Inability to call nonexpert witnesses; MCR 2.401(I)(2); "Harmless error"; Ireland v. Smith; MRE 103(a)(2); Judicial disqualification/"bias"; Effect of the trial judge's recusal; Hull & Smith Horse Vans, Inc. v. Carras; The "law of the case" doctrine; Claim that the trial court's custody decision was the result of "predisposition"; Bayati v. Bayati; Parenting time; MCR 7.202(6)(a)(iii); Shade v. Wright; MCL 722.28; Pickering v. Pickering; MCL 722.27a(1) & (6); Pierron v. Pierron; Child support; Carlson v. Carlson; Gross income determination; Whether the trial court properly treated various bank deposits as income; 2008 MCSF 2.01(A)-(D); Stallworth v. Stallworth; Civil contempt; In re Moroun

Court: Michigan Court of Appeals (Unpublished)

Case Name: Rugiero v. Dinardo

e-Journal Number: 51928

Judge(s): Per Curiam – K.F. Kelly, Sawyer, and Ronayne Krause

 

The court held, inter alia, that the trial court did not abuse its discretion in awarding sole legal and physical custody of the parties' children to the defendant-mother. The court upheld the trial court's finding that an ECE existed with defendant and thus, that the plaintiff-father had the burden to show by clear and convincing evidence that a change of custody was in the children's best interests. Further, plaintiff did not establish any error requiring reversal in the trial court's consideration of the best interest factors. The court also rejected his claim that the trial court erred in awarding defendant attorney fees totaling $110,000. Plaintiff appealed several orders arising from two separate child custody actions. In the first action, the parties were initially awarded joint custody of their nine-month old daughter pursuant to a 5/08 custody order. In 6/09, plaintiff moved for sole custody of this child, and filed a separate action for sole custody of the parties' son, who was then about three months old. The trial court administratively consolidated the cases. In addition to challenging the trial court's custody and parenting time decisions, plaintiff appealed its order establishing child support, its orders awarding defendant attorney fees, its order providing that the awarded attorney fees were not dischargeable in bankruptcy, and its order declaring him in contempt of court for not complying with prior attorney fee orders. The court rejected, inter alia, plaintiff's argument that the trial court made insufficient factual findings under Smith. MCR 3.206(C)(2)(a) did not require the trial court to compute the amount of attorney fees using an hourly rate and apply it to specific hours. "Although the trial court was still required to determine that the attorney fees awarded were reasonable," the record sufficiently showed that it recognized the appropriate factors. The trial court "was not required to issue detailed findings for each factor under Wood or MRPC 1.5(a)." The court also found no merit to plaintiff's claim that the trial court's later $20,000 and $80,000 awards warranted appellate relief. "On more than one occasion, the trial court painstakingly reviewed the evidence, including the reasonableness of the fees in light of the protracted litigation, as well as plaintiff's ability to pay." The record clearly showed that "the trial court recognized and applied appropriate factors in determining a reasonable fee." It was presented with detailed billing statements. While defendant requested $130,000 in fees, the trial court awarded $80,000, considering the fact that there was a 10-day trial and various motions filed by plaintiff near the end of trial. "Defendant had only recently started working part-time. She was also attending nursing school. Her meager income would hardly cover the extraordinary amount of fees. In contrast, plaintiff was fully employed and, notably, had access to funds beyond his stated income." Further, while the trial court did not specifically order plaintiff to pay fees based on his conduct, the court noted that he "appeared to engage in a campaign of attempting to overwhelm defendant with his greater financial resources." Plaintiff failed to show that the awards of $20,000 and $80,000 in attorney fees constituted an abuse of discretion. The court declined to consider his challenge to the contempt decision based on lack of jurisdiction, and otherwise affirmed the trial court's orders.

 

Municipal

 

This summary also appears under Employment & Labor Law

 

Issues: Whether the plaintiff was "wrongfully discharged" from his position as a building official because the defendants failed to comply with the termination procedure in the Michigan Building Code (MBC) and the International Property Maintenance Code (IPMC); Applicability of the Veterans Preference Act (VPA); MCL 35.402; Defining "department head"; McCormick v. Carrier; Statutory construction; Driver v. Naini; Robertson v. DaimlerChrysler Corp.; Whether the trial court correctly determined that plaintiff was an "independent contractor"; Candelaria v. BC Gen. Contractors, Inc.; The "economic realities test"; Buckley v. Professional Plaza Clinic Corp.; Mantei v. Michigan Pub. Sch. Employees Ret. Sys.; Coblentz v. City of Novi; Argument on appeal contrary to the position taken in the trial court; Dresselhouse v. Chrysler Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Giera v. City of Belleville

e-Journal Number: 51922

Judge(s): Per Curiam – Jansen, Cavanagh, and Hoekstra

 

The court held, inter alia, that based on the plain language of the MBC, because there is a difference between the MBC and the IPMC as to the appointment and removal of the building official, the MBC provision applied and the MBC does not require any pre-termination hearing. Thus, the trial court correctly granted the defendants summary disposition on the plaintiff-former building official's claim that his termination was contrary to the MBC. Further, the trial court did not err in finding that the facts clearly showed that he was a "department head" and thus, the VPA's termination procedure did not apply. In 2003, plaintiff applied for the position of the defendant-City's building official after being encouraged to do so by the then-city manager, defendant-Walters. Plaintiff and Walters agreed that plaintiff would work part-time as an independent contractor for $30 an hour. Walters recommended plaintiff to the city council, which approved plaintiff's contract. A resolution was issued stating in relevant part that "a proposed service contract for an independent contractor is recommended by the city manager for the position of building official." It further stated that it was resolved, that the city council approved "an independent contract with" plaintiff as the City Building Official and Code Enforcement Officer. Walters was plaintiff's supervisor. Plaintiff was informed by letter in 8/06 that his position would be terminated effective 9/1/06. He argued on appeal, inter alia, that he was wrongfully discharged because defendants did not comply with the termination procedure set forth in the MBC and the IPMC, and that their failure to comply with the VPA's provisions entitled him to reinstatement and back pay. It was undisputed that the City adopted the state construction code, which includes the MBC, as its regulatory building and maintenance codes. The IPMC was also applicable in part pursuant to MBC § 101.4.5. The 2003 version of the IPMC stated that the code official "shall not be removed from office except for cause and after full opportunity to be heard on specific and relevant charges by and before the appointing authority." However, the MBC section about appointment of a building official provides only that "building official shall be appointed by the chief appointing authority of the jurisdiction," and does not contain any provision as to removal procedures. The MBC also provides that the "codes and standards referenced in this code shall be considered part of the requirements of this code to the extent of each such reference. Where differences occur between provisions of this code and referenced codes and standards, the provisions of this code shall apply." As to plaintiff's VPA claim, the trial court ruled that summary disposition for defendants was proper because the undisputed facts showed that plaintiff was a department head and the plain language of the VPA states that the termination procedure does not apply to department heads. The court concluded that the facts showed that "plaintiff's only supervisor was the city manager, and that plaintiff was in charge of the entire building department, including the individuals who conducted the plumbing, electrical, and mechanical inspections." Plaintiff explained that the building official was "in charge of the entire building department, plumbing, electrical and mechanical." Walters stated that the building official was "in charge of the building department operations." Affirmed.

 

Real Property

 

This summary also appears under Contracts

 

Issues: Applicability of the "material breach" doctrine where the contract contains an express forfeiture clause; Contract interpretation; Alpha Capital Mgmt. v. Rentenbach; Rory v. Continental Ins.; Difference between "rescission," "termination," and "forfeiture" of a contract; Alibri v. Detroit/Wayne Cnty. Stadium Auth.; Rewriting or reforming the contract; Titan Ins. Co. v. Hyten; Whether the forfeiture clause was contrary to public policy; Terrien v. Zwit; Applicability of the doctrine of "unconscionability"; Clark v. DaimlerChrysler Corp.; Whether the defendant-tenant was excused from complying with its lease obligation to agree to the easement agreement; Whether consent to the easement was contingent on finalization of a merger agreement; Whether the easement agreement was "ripe" for defendant's consent; Whether the plaintiff satisfied the notice requirements spelled out in the lease

Court: Michigan Court of Appeals (Published)

Case Name: Majestic Golf, L.L.C v. Lake Walden Country Club, Inc.

e-Journal Number: 52128

Judge(s): Wilder, Talbot, and Servitto

 

In an issue of first impression (the applicability of the material breach doctrine where the contract contains an express forfeiture clause), the court held that the trial court erred in failing to enforce the forfeiture clause in the parties' lease based on the defendant-tenant's breach not being a "material breach." The court could not refuse to enforce the plain and unambiguous terms of the lease on the basis that the forfeiture clause was "unfair." Further, the court could not conclude that forfeiture clauses in a contract that is not a land contract violate public policy, and the forfeiture provision here was not avoidable under the unconscionability doctrine. Non-party WPL, the only member of the plaintiff-LLC, planned a golf course-real estate development on land it owned. It planned to lease the land for the golf course to a different entity that would be responsible for constructing and operating the golf course. In 1992, WPL, as landlord, entered into the lease with defendant. Defendant complied with its lease obligation to construct the 27-hole golf course. In 2003, defendant and WPL (and later plaintiff, as WPL's successor in interest) began merger negotiations, which continued until this case began. WPL (and later plaintiff) unsuccessfully sought defendant's consent to a proposed "Road Easement" that was needed for final approval of WPL's "Master Plan" for development. The trial court determined that defendant defaulted under the terms of the lease because the lease obligated defendant to agree to the easements requested by plaintiff. However, the trial court concluded that termination of the lease was not proper under principles of equity because defendant's breach was not material. Plaintiff argued on appeal that the trial court improperly used the material breach doctrine in deciding whether plaintiff could invoke the forfeiture clause in the lease. The court agreed, concluding that the trial court erred by not applying the plain language of the contract and that "by reading the default provision to include the term 'material breach,' the trial court effectively rewrote or reformed the contract." While Rory "did not expressly decide whether a contract forfeiture clause was enforceable, it made clear that a court has no power to ignore a contract's plain and unambiguous term because the court holds the view that the term ostensibly was 'unreasonable.'" Further, defendant did not show that "the requisite exceptional circumstances exist in this case, sufficient to ignore the plain language of its contract with plaintiff." Noting that defendant did not claim the forfeiture provision violated the law, the court concluded that the forfeiture clause was not contrary to public policy. The only recognized traditional contract defense that defendant could possibly rely on, based on its pleadings, was the doctrine of unconscionability. However, the court concluded that defendant could not establish any procedural unconscionability, and that the forfeiture clause was not substantively unconscionable. As to defendant's cross-appeal, the court concluded that the trial court correctly found that defendant breached the lease, and the court held that defendant was not excused from complying with its obligation under the lease. Affirmed in part, reversed in part, and remanded. The court instructed the trial court on remand to enter an order granting plaintiff summary disposition.

 

This summary also appears under Contracts

 

Issues: Breach of contract; Whether defendant-Ticor presented evidence that plaintiff had knowledge of the condo association's lien before the expiration of the pertinent redemption period; Contract interpretation; Morely v. Automobile Club of MI; Whether Ticor adequately set forth a genuine issue of material fact by way of a 4/3/07 letter from plaintiff's servicer; Damages; Interpretation of the phrase "as insured"; Motion for summary disposition under MCR 2.116(C)(10); Altairi v. Alhaj

Court: Michigan Court of Appeals (Unpublished)

Case Name: U.S. Bank Nat'l Ass'n v. Ticor Title Ins. Co.

e-Journal Number: 51979

Judge(s): Per Curiam – Servitto, Meter, and Fort Hood

 

The court agreed with the trial court's analysis of the 1/31/08 letter from plaintiff's attorney to defendant-Ticor, that it was insufficient to create a genuine issue of material fact as to plaintiff's actual knowledge of the condo association's lien before the expiration of the pertinent redemption period. Thus, the court affirmed the grant of summary disposition to the plaintiff. However, the court held that the trial court erred in simply awarding the amount of insurance to plaintiff. The case was remanded for a hearing and further arguments as to damages. Because the court vacated the award of damages, it also vacated the case-evaluation sanctions. The trial court shall reevaluate them on remand. On 1/9/06, non-party New Century Mortgage Corporation gave non-party P a loan secured by a mortgage on a condo unit in a condo development. Defendant-Sinutko, working for defendant-JPS Title Agency, conducted the closing, and Ticor issued a title insurance policy in the amount of $114,750 to insure the mortgage, which was assigned to plaintiff as trustee. Ticor issued a first lien letter to New Century indicating that its mortgage was senior to all other liens. After P failed to pay condo dues, the defendant-condo association, on 1/22/07, recorded a lien against the property in the amount of $625.75. In the meantime, plaintiff began foreclosure proceedings and discovered that its mortgage was never recorded. Thus, it filed a title claim with Ticor on 4/3/07. On 4/5/7, a title examiner from JPS Title signed an affidavit indicating that the mortgage was issued but had been lost. On 5/11/07, Ticor sent plaintiff a letter indicating that "it appears that the mortgage to New Century Mortgage Corporation has not been recorded. Our agent has been contacted regarding this claim and is in the process of having the mortgage recorded with an Affidavit of Lost Document." A second affidavit was recorded on 5/14/07. On 7/6/07, the condo association foreclosed on its lien and purchased the unit at a sheriff's sale for $3,721.95, subject to a 6-month redemption period. On 10/5/07, plaintiff foreclosed and purchased the property at a sheriff's sale for $128,433.48, subject to a 6-month redemption period. At the expiration of the condo association's redemption period on 1/7/08, it sent a letter to plaintiff indicating that it now owned the property, and plaintiff filed a claim with Ticor. Ticor denied the claim, arguing that plaintiff prejudiced Ticor because it did not tender the claim before the expiration of the condo association's redemption period. Ticor argued that if it had been notified in a timely manner, it could have cured the title defect for $3,721.95. Ticor argued on appeal that it presented evidence that plaintiff had knowledge of the condo association's lien before the expiration of the pertinent redemption period. Citing the language of the 1/31/08 letter, Ticor contended that because plaintiff admitted to discovering the lien "[d]uring foreclosure proceedings," and because plaintiff received its sheriff's deed on 10/5/07, plaintiff must have known about the lien at least by 10/5/07, which was before the expiration of the condo association's redemption period. The court agreed with the trial court that the 1/31/08 letter did not create a genuine issue of material fact as to actual knowledge, as required by the title insurance policy. While plaintiff admitted to having discovered the lien "[d]uring foreclosure proceedings," the foreclosure proceedings were still ongoing after the expiration of the condo association's redemption period. It was "mere conjecture for Ticor to claim that plaintiff knew of the lien before that expiration. Conjecture is insufficient to defeat a motion for summary disposition." As to damages, the key phrase in § (7)(a)(iii) of the policy was "as insured." The court concluded that the additional words "as insured" simply referred "to the estate as it exists in the state to be insured" - "without the defect, lien, or encumbrance at issue." Ticor insured against defects, liens, and encumbrances, not against changes in valuation due to market fluctuations. Affirmed in part, reversed in part, and remanded.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), (h), and (j); In re Sours; In re Trejo Minors; In re JK; In re Miller; Whether termination of the respondent-father's parental rights was premature; In re Mason; Best-interests determination; In re Terry; Whether the trial court properly considered that it was in the children's best interests to be placed with family and that relative placement was a "critical factor" to consider in determining whether termination was in the children's best interests; In re Curry

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Sagi/Griswold

e-Journal Number: 51958

Judge(s): Per Curiam – Servitto, Meter, and Fort Hood

 

The court held that the trial court properly terminated the respondent-father's parental rights to two minor children where three statutory grounds for termination were established by clear and convincing evidence and it did not clearly err in its best-interests determination. Termination of respondent's parental rights was proper under §§ 19b(3)(c)(i) and (g) because the conditions leading to the adjudication continued to exist, he was unable to provide proper care for his children, and there was no likelihood of rectification within a reasonable time. "At the time of the adjudication, respondent admitted having a substance abuse history involving marijuana and heroin." He had a criminal history that included an OWI conviction and an arrest for malicious destruction of property. He left the children with their mother even though she had a protective-services history and was not a fit caregiver. "By the time of the termination hearing, respondent had not addressed his substance-abuse issues." He was terminated from substance-abuse counseling in 4/10 and 10/10 due to noncompliance. "There was no evidence that he had addressed his substance-abuse issues and could maintain a drug-free lifestyle for any sustained period of time. Respondent also continued demonstrating criminal behavior." At the time of the termination hearing, he was incarcerated and without suitable housing or income. He had not participated in parenting classes in an effort to show that he had learned appropriate parental judgment. Also, his inability to provide proper care and custody of his children was evidenced by his failure to consistently visit them, which showed a lack of commitment to them. While respondent was unable to visit his children in 2011 due to his incarceration, in 2010, before his arrest, he regularly missed visits, and he never sent letters to them from jail. Given all the circumstances, the court concluded that there was no evidence that he could provide proper care for the children. The court also held that the trial court "did not clearly err in finding that the children would be subject to a risk of harm in respondent's care." Affirmed.

 

Issues: Termination of both respondents-parents' parental rights under §§ 19b(3)(c)(i), (g), and (j), and as to respondent-father only under § 19b(3)(a)(ii); In re Sours; In re BZ; The children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Wilson

e-Journal Number: 52016

Judge(s): Per Curiam – Donofrio, Markey, and Owens

 

The court held that the trial court properly terminated both respondents-parents' parental rights to the minor children where the statutory grounds for termination were established by clear and convincing evidence, and termination of both parents' parental rights was in the children's best interests. The issues that led to adjudication included the respondent-mother leaving the children, then aged 5 and 12, home alone, her relapse into cocaine use, and her noncompliance with treatment for anxiety attacks and bipolar disorder. Throughout the proceedings, she made some progress and would then relapse. This occurred with her cocaine use, investment in therapy, and compliance with taking her mental health medications. She tested positive for cocaine in a hair follicle test almost a year and a half after the children were removed from her care. Her case manager observed her to be overmedicated just before the second date of the termination hearing and observed a crack pipe in her bedroom. Although the mother made some progress with her treatment plan, her continued use of cocaine and her noncompliance with medications to treat her anxiety and bipolar disorder continued throughout the proceedings. Her therapist, who testified as to the progress she made, was unaware of her continued drug use but stated he would be concerned if she had continued to use drugs. At the time of the termination hearing, the mother had been recently diagnosed with diabetes and had exhibited difficulty managing it. When she ran out of test strips, she took her insulin when she felt like it. She was unable to care for her own needs, much less the needs of her two children. The trial court also did not clearly err in terminating respondent-father's parental rights. He did not appear at any of the hearings, despite having notice of them. Although he was provided with supervised parenting time and had been offered assistance with transportation, he did not attend any parenting time with the children. He had very limited contact with the caseworkers and did not sign any of the documents requested of him, including the initial parent questionnaire and the PAA, despite his promise to do so. He had telephone contact with the children during parenting time but did not always answer his phone and, over time, the children did not ask to phone him. He did want to plan for them and wanted the mother to care for them. Although the trial court erred as to § 19b(3)(c)(i) because the issues that led to adjudication did not have anything to do with the father, and possibly as to § 19b(3)(a)(ii), because it was not clear that a 91-day period passed with no contact between the father and the children, the court held that any error was harmless because the trial court only needed to find clear and convincing evidence as to one statutory subsection. Affirmed.

 

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