• Animal Law (1)
• Constitutional Law (1)
• Contracts (1)
• Criminal Law (2)
• Litigation (1)
• Municipal (2)
• Negligence & Intentional Tort (1)
• Real Property (2)
• Termination of Parental Rights (1)

Animal Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether § 5(d) of the Equine Activity Liability Act (EALA)(MCL 691.1661 et seq.) creates a general claim of ordinary negligence; § 3 of the EALA (MCL 691.1663); "Inherent risk of an equine activity" defined; MCL 691.1662(f); "Equine activity" defined; MCL 691.1662(c); Whether plaintiff sufficiently supported a claim of negligence pursuant to the EALA; MCL 691.1665(d); To "engage in an equine activity" defined; MCL 691.1662(a); MCL 691.1665(b); Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendant's failure to post warning signs should have eliminated any limitation on his liability; § 6 (MCL 691.1666); "Equine professional" defined; MCL 691.1662(e); In re Wayne County Prosecutor; Whether the EALA violates the Title-Object Clause of the Michigan Constitution (Const. 1963, art. 4, § 24)

Court: Michigan Supreme Court

Case Name: Beattie v. Mickalich

e-Journal Number: 46323

Judge(s): Kelly, Cavanagh, Markman, and Hathaway; Concurrence - Markman and Kelly; Concurring in part, Dissenting in part - Young, Jr., Weaver, and Corrigan

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment in a published opinion (see e-Journal # 43098 in the 6/29/09 edition) and remanded the case to the trial court for further proceedings consistent with the court's order, holding a plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the EALA and while the EALA abolished strict liability for horse owners, it did not abolish negligence actions against them. The court noted the EALA expressly states § 3 "does not prevent or limit the liability . . . if the . . . person . . . [c]omits a negligent act or omission that constitutes a proximate cause of the injury." Further, since plaintiff offered documentary evidence supporting her argument the defendant was negligent and the content or substance of this documentary evidence would be admissible at trial, the lower courts erred in granting defendant's summary disposition motion.

The concurrence wrote separately only to respond to the dissent, respectfully disagreeing with the conclusion of both the dissent and the Court of Appeals the EALA only permits a negligence claim "when it involves something other than inherently risky equine activity." The concurring justices believed the dissent's and the Court of Appeals' interpretation of the EALA rendered aspects of the statute nugatory.

The concurring in part, dissenting in part justices would affirm the part of the Court of Appeals judgment affirming dismissal of plaintiff's claims based on the EALA, agreeing with the Court of Appeals "MCL 691.1665(d) cannot be construed as broadly allowing general negligence claims without completely eviscerating the entire concept of limited liability under the EALA." MCL 691.1665 had to be read together with MCL 691.1663 "to give effect to the act as a whole," and giving effect to both provisions, the Court of Appeals correctly interpreted the MCL 691.1665(d) exception as involving "human error" "not within the gamut of 'inherent[ly] risk[y] . . . equine activity.'" The justices concluded plaintiff failed to create a genuine issue of material fact her claim fell within the negligence exception to the EALA limitation on liability.

 

Constitutional Law

 

This summary also appears under Municipal

 

Issues: Zoning; Schwartz v. City of Flint; Brae Burn, Inc. v. Bloomfield Hills; The "no very serious consequences" rule related to extracting natural resources; Silva v. Ada Twp.; City of N. Muskegon v. Miller; Village of Terrace Park v. Errett (6th Cir.); Bloomfield Twp. v. Beardslee; Certain-teed Prod. Corp. v. Paris Twp.; Whether the "no very serious consequences" rule is constitutionally required; Due process; Const. 1963, art. 1, § 17; Shavers v. Attorney Gen.; The "reasonableness" test for assessing the constitutionality of zoning regulations; Whether the "no very serious consequences" rule violates the "separation of powers"; Const. 1963, art. 3, § 2; Const. 1963, art. 4, §52 (directing the Legislature to provide for the protection and management of the state's natural resources); Whether the rule was superseded by the enactment of the exclusionary zoning provision (MCL 125.297a) of the Township Zoning Act (TZA) (now recodified in nearly identical form as MCL 125.3207 under the Zoning Enabling Act - ZEA); Preemption of the common law by a statute; Millross v. Plum Hollow Golf Club; Hoerstman Gen. Contracting, Inc. v. Hahn; MCL 125.3201(1); MCL 125.3203(1); Stare decisis

Court: Michigan Supreme Court

Case Name: Kyser v. Kasson Twp.

e-Journal Number: 46329

Judge(s): Markman, Corrigan, Young, Jr., and Hathaway; Dissent - Kelly and Cavanagh; Not participating - Weaver

 

Holding the Silva "no very serious consequences" rule is not a constitutional requirement, it violates the constitutional separation of powers, and was superseded by the exclusionary zoning provision (MCL 125.297a) of the TZA (now MCL 125.3207 of the ZEA), the court reversed the Court of Appeals judgment affirming the trial court's ruling enjoining enforcement of the defendant-township's zoning ordinance and remanded the case to the trial court. Over 50% of the township is either mostly or moderately suited for gravel mining. There were seven gravel mines operating in the township in 1988, and over the next six years there were seven rezoning applications submitted to allow for more gravel mining. The township established a gravel mining district in accordance with the ZEA, encompassing 6 of its 37 square miles. Plaintiff owned a 236-acre parcel adjacent to the gravel mining district, and 115.6 acres of her property contained a large deposit of the most commercially valuable type of gravel. She applied to rezone her property to permit gravel mining, but the township denied the application, asserting to do otherwise would undermine its comprehensive zoning plan and prompt more rezoning applications from similarly situated property owners. Plaintiff sued, arguing her due process rights were violated by the township's decision because gravel mining would cause "no very serious consequences" in accordance with Silva. Although the trial court determined the public interest in plaintiff's gravel was not high, it applied the rule and concluded a mining operation on her property would result in no very serious consequences. The court concluded the "no very serious consequences" rule was not a "species" of the "reasonableness" test used to assess the constitutionality of zoning regulations and thus, not a requirement of the Due Process Clause. Further, adoption of the rule violated the separation of powers where the Constitution directs the Legislature, not the judiciary, to provide for the protection and management of the state's natural resources and by "preferring the extraction of natural resources to competing public policies," the rule "usurps the responsibilities belonging to both the Legislature and to self-governing local communities." The court also concluded by enacting the ZEA, the Legislature superseded the rule. "The constitution only requires that a zoning ordinance be reasonable, regardless of whether the ordinance does or does not regulate the extraction of natural resources." An ordinance is presumed reasonable and the burden is on the party challenging it to overcome this presumption by showing there is no reasonable governmental interest being advanced. Because both the Court of Appeals and the trial court analyzed the zoning ordinance at issue "through the prism of the 'no very serious consequences' rule, rather than the 'reasonableness' test," the court reversed and remanded the case to the trial court.

 

The dissent concluded the "very serious consequences" test derived from constitutional due process considerations, did not violate the separation of powers, and was not superseded by the exclusionary zoning statute. The dissenting justices stated the majority opinion dismissed "over 80 years of precedent holding that minerals on property implicate unique due process concerns," and did not adequately consider whether stare decisis warranted overruling the constitutional underpinnings of Silva. Because the dissenting justices believed the very serious consequences test derived from constitutional due process, it followed the separation of powers principle was not violated. They also did not believe the test was superseded by the ZEA, noting, inter alia, both the TZA and ZEA were silent about the test. The dissenting justices would affirm the Court of Appeals judgment.

 

Contracts

 

This summary also appears under Litigation

 

Issues: Breach of guaranty contracts; Whether plaintiff provided any admissible evidence in support of its motion; Summary disposition under MCR 2.116(C)(10); Quinto v. Cross & Peters Co.; West v. General Motors Corp.; MCR 2.116(G)(3) & (6); Admissibility of documents as records of regularly conducted activity; MRE 803(6); Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; Whether the guaranties lacked a default provision; Contract interpretation; Wilkie v. Auto-Owners Ins. Co; Dobbelaere v. Auto-Owners Ins Co.; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; McDonald v. Farm Bureau Ins. Co.; Klapp v. United Ins. Group Agency, Inc. Whether the guaranty contracts were actually suretyships; Bandit Indus., Inc. v. Hobbs Int'l, Inc.; The "election of remedies" doctrine; Riverview Co-op, Inc. v. First Nat'l Bank & Trust Co. of MI; Jim-Bob, Inc. v. Mehling; Damages; Mazur v. Young (6th Cir.); Whether the judgment was in an amount in excess of what plaintiff claimed it was owed; Mudge v. Macomb County

Court: Michigan Court of Appeals (Unpublished)

Case Name: Flagstar Bank F.S.B. v. Dilorenzo

e-Journal Number: 46267

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

 

The trial court properly granted partial summary disposition in the plaintiff's favor holding the documents were sufficient to support plaintiff's motion with regard to its breach of contract claims and also properly later granted plaintiff summary disposition on the issue of damages. Plaintiff argued the undisputed facts established defendants guaranteed payment of a loan made by plaintiff, and defendants were now obligated to comply with the guaranties. Defendants claimed the trial court erred in granting partial summary disposition in plaintiff's favor where plaintiff failed to provide any admissible evidence in support of its motion. Plaintiff asserted defendants signed personal guaranties for payment of a loan obtained in the name of a company jointly owned by defendants, Bayside Mall, LLC. According to plaintiff, Bayside Mall defaulted on its loan, thus prompting plaintiff to make an immediate demand to defendants for the outstanding loan balance pursuant to their guaranties. Plaintiff attached several documents to its motion, including the loan agreements purportedly signed by defendants as members of Bayside Mall, and the guaranties concerning the loan appearing to bear defendants' individual signatures. Plaintiff also attached an October 30, 2006 letter it sent to defendant-Dilorenzo detailing the loan was in default and making demand to the guarantors (defendants) for payment of the loan in full, as well as a printout showing the principal amount Bayside Mall had paid on the loan and the outstanding balance. While defendants asserted plaintiff's motion should have been denied because the submitted documentation did not contain an affidavit and was otherwise inadmissible, the court found this argument without merit. First, defendants did not identify any court rule or other authority requiring the submission of an affidavit in support of a (C)(10) motion. With a proper foundation, the documents would be admissible as records of regularly conducted activity. Further, defendants did not challenge the authenticity or truth of the documents. Attached to their response to plaintiff's summary disposition motion was the affidavit of Dilorenzo, who swore he and defendant-Tinervia executed commercial guaranties in favor of plaintiff as part of a loan plaintiff executed in favor of Bayside Mall. Defendants admitted signing the guaranties. Additionally, in their response to plaintiff's motion for summary disposition, defendants relied on the very documentation they now claimed was inadmissible to support their assertion summary disposition was inappropriate because the documents were, for example, ambiguous and contained no default provision. For them to now challenge the trial court's reliance on documents they themselves directed the trial court to review in determining the summary disposition motion was "disingenuous." Affirmed.

 

Criminal Law

 

Issues: Habeas corpus; Murphy v. Ohio; Williams v. Taylor; Williams v. Bagley; Whether the petitioner's statements were obtained in violation of his constitutional rights; Miranda v. Arizona; Sufficiency of the Miranda warnings; Florida v. Powell; Whether the state supreme court's conclusion the officer's incomplete warnings were sufficient to remind petitioner of the previously recited Miranda warnings was contrary to or an unreasonable application of clearly established federal law; Wyrick v. Fields; United States v. Weekley; "Knowing and intelligent waiver"; Moran v. Burbine; Whether an express written or oral statement of waiver is required; North Carolina v. Butler; Ineffective assistance of counsel for failing to exclude certain jurors; Strickland v. Washington; Whether AEDPA deference applied to the "prejudice" prong of Strickland; Johnson v. Luoma; Whether a "biased" juror was impaneled; Hughes v. United States; Actual bias and "implied" bias; Smith v. Phillips; Effect of a student-teacher relationship between a juror and the prosecutor in the case; Prior exposure to media coverage of the case; DeLisle v. Rivers; Foley v. Parker

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Treesh v. Bagley

e-Journal Number: 46293

Judge(s): Siler and Griffin; Concurrence - Clay

 

Holding, inter alia, the state supreme court's conclusion an officer's incomplete warnings were sufficient to remind petitioner of the previously recited Miranda warnings was not contrary to or an unreasonable application of clearly established federal law, the court affirmed the district court's denial of the petition for a writ of habeas corpus. An Ohio jury convicted petitioner of aggravated murder and other charges. He argued the trial court admitted statements obtained from him in violation of his constitutional rights and he was denied the effective assistance of counsel by his trial counsel's failure to exclude two jurors. Petitioner contended, inter alia, he was never fully apprised of his Miranda rights. The Ohio Supreme Court concluded while the warnings petitioner received from an officer (D) before and during his first interrogation were incomplete, the arresting officer (J) recited all four Miranda warnings and this, viewed together with the partial rewarnings at the interrogations, indicated he was sufficiently apprised of his Miranda rights. The state court relied on Fields, under which additional warnings are only required if the circumstances seriously changed between the initial warnings and the interrogation. Between J's warnings and D's questioning, petitioner was taken first to the city jail and then to another police department. However, only about two hours passed between his arrest and interrogation. Further, D partially readvised petitioner of his Miranda rights, which alerted him to the fact he could still invoke those rights. Petitioner's recitation of at least three of the rights during his interrogation also showed he was aware of his rights. Thus, the state court's conclusion D was not required to fully readvise petitioner of his Miranda rights was not contrary to or an unreasonable application of Fields, particularly in light of the application of Fields by other circuits. The court also held the state court's failure to find implied bias as to a juror who had a student-teacher relationship with the prosecutor in the case was not contrary to clearly established federal law, the record did not establish actual bias, and without actual or implied bias petitioner could not show prejudice in seating the juror. The state court's conclusion it was unlikely the other juror would have been excluded pursuant to a challenge for cause based on, inter alia, her prior exposure to media coverage of the case was also not contrary to clearly established U.S. Supreme Court precedent. 

 

Issues: Federal investment adviser fraud; The Investment Advisers Act; 15 USC § 80b-6; Jury instruction and sufficiency of the evidence challenges; Fiduciary duty; Goldstein v. SEC (Fed.Cir.); Whether the 150% limit on leveraging served only as a guideline rather than a binding limitation; United States v. Mick; Jackson v. Virginia; Sufficiency of the evidence to support the defendant's convictions of mail and wire fraud; United States v. Prince; United States v. Daniel; Motion for a new trial; Whether defendant's deposition testimony from a previous case was admissible non-hearsay; Fed.R.Evid. 801(d)(2); United States v. Moffie (Unpub. 6th Cir.); United States v. Sheffey; The district court's refusal to instruct the jury not to take the re-read deposition testimony out of context; United States v. Epley; Whether the district court correctly ordered $590,526.23 be forfeited; 18 USC §§ 981 and 982; United States v. Sosebee; Apprendi v. New Jersey

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Lay

e-Journal Number: 46322

Judge(s): Rogers and Gibbons; Concurring in part, Dissenting in part – Kethledge

 

The jury instructions were proper and there was sufficient evidence supporting the jury's verdict on the investment adviser fraud and mail and wire fraud counts because the jury could reasonably find, as a matter of fact, defendant owed the investor (the Bureau) a fiduciary duty as to the hedge fund investment and he used interstate mail or wires in furtherance of a scheme or artifice to defraud with intent to deprive the Bureau of money when he misrepresented to the Bureau the extent of his overleveraging and omitted material information in his reports to the Bureau. In 1992 defendant began serving as investment adviser to the Ohio Bureau of Workers' Compensation when his company, Capital Management, Inc., began managing the Bureau's investment in a long-term bonds fund, the Long Fund. The Bureau remained his client as to its Long Fund investment from 1992 onward. In 1998, defendant founded the Active Duration Fund, a hedge fund. In September 2003, the Bureau shifted $100 million from the Long Fund to the Active Duration Fund. The hedge fund agreement governing the Bureau's Active Duration Fund investment set a non-binding 150% leveraging guideline, but defendant consistently leveraged Active Duration Fund assets far over 150%. In March 2004, the Active Duration Fund lost $7 million. After Bureau officials discussed the loss with defendant, the Bureau invested an additional $100 million in the Active Duration Fund. The fund's value continued to decline. The Bureau invested an additional $25 million in the fund to avoid losing its entire investment, and then terminated its interest in the fund. The Bureau recovered only about $9 million from its $225 million Active Duration Fund investment. Defendant's primary argument was as to the hedge fund, he owed no duty to the Bureau. His theory was a hedge fund adviser's duty is to the hedge fund and cannot be to the various investors in the fund. The court held the theory failed for the reasons stated by the district court. Permitting the jury to determine the existence of a fiduciary relationship was proper and, on the facts of this case, a reasonable jury could find defendant owed the Bureau a fiduciary duty with respect to the Active Duration Fund. As explained by the district court, there was evidence the characteristics of an adviser-client relationship were present between defendant and the Bureau regarding the Active Duration Fund. Defendant never disputed he had an investment adviser-client relationship - and thus a fiduciary relationship - with the Bureau as to its Long Fund investment, and the evidence supported the conclusion this relationship continued through the existence of the Active Duration Fund and encompassed the Bureau's Active Duration Fund investment. As the Bureau's Chief Financial Officer and the person who initially decided to invest Bureau money in the Active Duration Fund testified, the Bureau invested in the Active Duration Fund to diversify existing investments, achieve positive returns regardless of market conditions, and increase returns above those the Bureau could achieve with the Long Fund alone. Capital Management, Inc.'s inclusion of the Active Duration Fund as "other assets" in its Long Fund reports indicated the Active Duration Fund and the Long Fund were part of a single investment strategy and thus, part of the Bureau's single relationship with defendant. Unlike a typical hedge fund investor, the Bureau was the only investor in the Active Duration Fund at the relevant time and had an active role in its investment. Affirmed.

 

Litigation

 

This summary also appears under Contracts

 

Issues: Breach of guaranty contracts; Whether plaintiff provided any admissible evidence in support of its motion; Summary disposition under MCR 2.116(C)(10); Quinto v. Cross & Peters Co.; West v. General Motors Corp.; MCR 2.116(G)(3) & (6); Admissibility of documents as records of regularly conducted activity; MRE 803(6); Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; Whether the guaranties lacked a default provision; Contract interpretation; Wilkie v. Auto-Owners Ins. Co; Dobbelaere v. Auto-Owners Ins Co.; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; McDonald v. Farm Bureau Ins. Co.; Klapp v. United Ins. Group Agency, Inc. Whether the guaranty contracts were actually suretyships; Bandit Indus., Inc. v. Hobbs Int'l, Inc.; The "election of remedies" doctrine; Riverview Co-op, Inc. v. First Nat'l Bank & Trust Co. of MI; Jim-Bob, Inc. v. Mehling; Damages; Mazur v. Young (6th Cir.); Whether the judgment was in an amount in excess of what plaintiff claimed it was owed; Mudge v. Macomb County

Court: Michigan Court of Appeals (Unpublished)

Case Name: Flagstar Bank F.S.B. v. Dilorenzo

e-Journal Number: 46267

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

 

The trial court properly granted partial summary disposition in the plaintiff's favor holding the documents were sufficient to support plaintiff's motion with regard to its breach of contract claims and also properly later granted plaintiff summary disposition on the issue of damages. Plaintiff argued the undisputed facts established defendants guaranteed payment of a loan made by plaintiff, and defendants were now obligated to comply with the guaranties. Defendants claimed the trial court erred in granting partial summary disposition in plaintiff's favor where plaintiff failed to provide any admissible evidence in support of its motion. Plaintiff asserted defendants signed personal guaranties for payment of a loan obtained in the name of a company jointly owned by defendants, Bayside Mall, LLC. According to plaintiff, Bayside Mall defaulted on its loan, thus prompting plaintiff to make an immediate demand to defendants for the outstanding loan balance pursuant to their guaranties. Plaintiff attached several documents to its motion, including the loan agreements purportedly signed by defendants as members of Bayside Mall, and the guaranties concerning the loan appearing to bear defendants' individual signatures. Plaintiff also attached an October 30, 2006 letter it sent to defendant-Dilorenzo detailing the loan was in default and making demand to the guarantors (defendants) for payment of the loan in full, as well as a printout showing the principal amount Bayside Mall had paid on the loan and the outstanding balance. While defendants asserted plaintiff's motion should have been denied because the submitted documentation did not contain an affidavit and was otherwise inadmissible, the court found this argument without merit. First, defendants did not identify any court rule or other authority requiring the submission of an affidavit in support of a (C)(10) motion. With a proper foundation, the documents would be admissible as records of regularly conducted activity. Further, defendants did not challenge the authenticity or truth of the documents. Attached to their response to plaintiff's summary disposition motion was the affidavit of Dilorenzo, who swore he and defendant-Tinervia executed commercial guaranties in favor of plaintiff as part of a loan plaintiff executed in favor of Bayside Mall. Defendants admitted signing the guaranties. Additionally, in their response to plaintiff's motion for summary disposition, defendants relied on the very documentation they now claimed was inadmissible to support their assertion summary disposition was inappropriate because the documents were, for example, ambiguous and contained no default provision. For them to now challenge the trial court's reliance on documents they themselves directed the trial court to review in determining the summary disposition motion was "disingenuous." Affirmed.

 

Municipal

 

This summary also appears under Real Property

 

Issues: Zoning; Whether the trial court had jurisdiction to entertain an exclusionary zoning claim and grant relief allowing the plaintiffs to use the property for a 498-unit manufactured housing community (MHC); Paragon Props. Co. v. City of Novi; Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City; Electro-Tech, Inc. v. H F Campbell Co.; Odom v. Wayne County; Henry v. Dow Chem. Co.; Village of Euclid v. Ambler Realty Co.; The former Township Zoning Act (MCL 125.271 et seq.); MCL 125.297a; Applicability of the "futility" doctrine; Bannum, Inc v. City of Louisville (6th Cir.); Applicability of Paragon's "ripeness" and "finality" rules to a "facial" attack on a zoning ordinance; Warth v. Seldin; Planned unit development (PUD)

Court: Michigan Supreme Court

Case Name: Hendee v. Putnam Twp.

e-Journal Number: 46328

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

 

The lead opinion held the trial court and the Court of Appeals erred by reaching the question whether the defendant-township's zoning ordinance was unconstitutional and thus, also erred by holding the plaintiffs were entitled to an order enjoining the township from interfering with plaintiffs' development of a 498-unit MHC. Because plaintiffs never submitted an application for rezoning or a variance to construct an MHC, their claim was not ripe for judicial review. Thus, the trial court had no basis to enjoin the township from enforcing its zoning ordinance, nor should the trial court have awarded plaintiffs their costs and expert witness fees. Plaintiffs-the Hendees own a 144-acre tract of land, formerly used as a dairy farm, in the township. They filed an application with the township Planning Commission to rezone their land from A-O to R-1-B. They later unsuccessfully applied for approval of a 95-unit PUD and rezoning to R-1-B. At some point during the application process concerning the 95-unit PUD, the Hendees filed a new application to rezone the property to permit MHC development. However, they withdrew this application after the township informed them it would not process a new application for an MHC while the PUD application was still pending. The Hendees, and the proposed buyer/developer, plaintiff-Village Pointe, sued the township, alleging the refusal to rezone the property from A-O zoning to allow MHC development deprived them of equal protection and substantive due process, constituted an unconstitutional taking, and the township's zoning was exclusionary, in violation of former MCL 125.297a, because it excluded MHC zoning. Plaintiffs' exclusionary zoning claim was based on the notion because the township's zoning map classified no appropriate land for MHC use and the township's master plan designated only unsuitable property for this use, the township's ordinance was facially invalid. Citing the U.S. Supreme Court's opinion in Williamson as well as the court's express adoption of Williamson in Electro-Tech, the court observed in Paragon the importance of requiring finality in land-use-regulation disputes. Consistent with Williamson, the court held in Paragon judicial review in zoning cases is not available until the zoning authority has rendered a final decision. Here, the trial court and the Court of Appeals majority erred (1) to the extent they held the township zoning ordinance was facially invalid because it unconstitutionally excluded a lawful use (MHC) and (2) by holding the futility exception excused compliance with the finality rule and the appropriate remedy was to enjoin the township from interfering with plaintiffs' development of a 498-unit MHC. "An ordinance is not facially invalid merely because it does not authorize every conceivable lawful use, nor does a zoning authority's denial of an application for residential rezoning at a proposed lower-density level automatically establish that it would be futile for the property owner to apply for a higher-density use, such as MHC rezoning or a variance allowing MHC use." Because plaintiffs never submitted an application to the township for MHC rezoning or for a use variance permitting construction of an MHC, their claim was not ripe for judicial review. The Court of Appeals judgment was reversed and remanded for entry of a dismissal order.

Justices Cavanagh and Kelly disagreed with the lead opinion's analysis, which would extend and exacerbate the errors in Electro-Tech and Paragon, but ultimately agreed with its conclusion plaintiffs had not presented any exclusionary zoning claims ripe for review. Thus, they concurred with the decision to reverse the Court of Appeals judgment and remand the case for entry of a dismissal order consistent with the court's decision.

Justices Corrigan, Young, Jr., and Markman concluded plaintiffs' exclusionary zoning claim was not ripe for adjudication because plaintiffs neither sought nor obtained a decision concerning their contemplated development of a 498-unit MHC before filing suit. They would hold plaintiffs' as applied challenge to the validity of defendant's zoning ordinance was subject to the threshold doctrine of ripeness and the interrelated rule of finality. Because plaintiffs could not cross this threshold and because the futility exception to the rule of finality was inapplicable in this case, the justices concurred in the result of the lead opinion reversing the Court of Appeals judgment.

 

This summary also appears under Constitutional Law

 

Issues: Zoning; Schwartz v. City of Flint; Brae Burn, Inc. v. Bloomfield Hills; The "no very serious consequences" rule related to extracting natural resources; Silva v. Ada Twp.; City of N. Muskegon v. Miller; Village of Terrace Park v. Errett (6th Cir.); Bloomfield Twp. v. Beardslee; Certain-teed Prod. Corp. v. Paris Twp.; Whether the "no very serious consequences" rule is constitutionally required; Due process; Const. 1963, art. 1, § 17; Shavers v. Attorney Gen.; The "reasonableness" test for assessing the constitutionality of zoning regulations; Whether the "no very serious consequences" rule violates the "separation of powers"; Const. 1963, art. 3, § 2; Const. 1963, art. 4, §52 (directing the Legislature to provide for the protection and management of the state's natural resources); Whether the rule was superseded by the enactment of the exclusionary zoning provision (MCL 125.297a) of the Township Zoning Act (TZA) (now recodified in nearly identical form as MCL 125.3207 under the Zoning Enabling Act - ZEA); Preemption of the common law by a statute; Millross v. Plum Hollow Golf Club; Hoerstman Gen. Contracting, Inc. v. Hahn; MCL 125.3201(1); MCL 125.3203(1); Stare decisis

Court: Michigan Supreme Court

Case Name: Kyser v. Kasson Twp.

e-Journal Number: 46329

Judge(s): Markman, Corrigan, Young, Jr., and Hathaway; Dissent - Kelly and Cavanagh; Not participating - Weaver

 

Holding the Silva "no very serious consequences" rule is not a constitutional requirement, it violates the constitutional separation of powers, and was superseded by the exclusionary zoning provision (MCL 125.297a) of the TZA (now MCL 125.3207 of the ZEA), the court reversed the Court of Appeals judgment affirming the trial court's ruling enjoining enforcement of the defendant-township's zoning ordinance and remanded the case to the trial court. Over 50% of the township is either mostly or moderately suited for gravel mining. There were seven gravel mines operating in the township in 1988, and over the next six years there were seven rezoning applications submitted to allow for more gravel mining. The township established a gravel mining district in accordance with the ZEA, encompassing 6 of its 37 square miles. Plaintiff owned a 236-acre parcel adjacent to the gravel mining district, and 115.6 acres of her property contained a large deposit of the most commercially valuable type of gravel. She applied to rezone her property to permit gravel mining, but the township denied the application, asserting to do otherwise would undermine its comprehensive zoning plan and prompt more rezoning applications from similarly situated property owners. Plaintiff sued, arguing her due process rights were violated by the township's decision because gravel mining would cause "no very serious consequences" in accordance with Silva. Although the trial court determined the public interest in plaintiff's gravel was not high, it applied the rule and concluded a mining operation on her property would result in no very serious consequences. The court concluded the "no very serious consequences" rule was not a "species" of the "reasonableness" test used to assess the constitutionality of zoning regulations and thus, not a requirement of the Due Process Clause. Further, adoption of the rule violated the separation of powers where the Constitution directs the Legislature, not the judiciary, to provide for the protection and management of the state's natural resources and by "preferring the extraction of natural resources to competing public policies," the rule "usurps the responsibilities belonging to both the Legislature and to self-governing local communities." The court also concluded by enacting the ZEA, the Legislature superseded the rule. "The constitution only requires that a zoning ordinance be reasonable, regardless of whether the ordinance does or does not regulate the extraction of natural resources." An ordinance is presumed reasonable and the burden is on the party challenging it to overcome this presumption by showing there is no reasonable governmental interest being advanced. Because both the Court of Appeals and the trial court analyzed the zoning ordinance at issue "through the prism of the 'no very serious consequences' rule, rather than the 'reasonableness' test," the court reversed and remanded the case to the trial court.

 

The dissent concluded the "very serious consequences" test derived from constitutional due process considerations, did not violate the separation of powers, and was not superseded by the exclusionary zoning statute. The dissenting justices stated the majority opinion dismissed "over 80 years of precedent holding that minerals on property implicate unique due process concerns," and did not adequately consider whether stare decisis warranted overruling the constitutional underpinnings of Silva. Because the dissenting justices believed the very serious consequences test derived from constitutional due process, it followed the separation of powers principle was not violated. They also did not believe the test was superseded by the ZEA, noting, inter alia, both the TZA and ZEA were silent about the test. The dissenting justices would affirm the Court of Appeals judgment.

 

Negligence & Intentional Tort

 

This summary also appears under Animal Law

 

Issues: Whether § 5(d) of the Equine Activity Liability Act (EALA)(MCL 691.1661 et seq.) creates a general claim of ordinary negligence; § 3 of the EALA (MCL 691.1663); "Inherent risk of an equine activity" defined; MCL 691.1662(f); "Equine activity" defined; MCL 691.1662(c); Whether plaintiff sufficiently supported a claim of negligence pursuant to the EALA; MCL 691.1665(d); To "engage in an equine activity" defined; MCL 691.1662(a); MCL 691.1665(b); Libralter Plastics, Inc. v. Chubb Group of Ins. Cos.; Whether defendant's failure to post warning signs should have eliminated any limitation on his liability; § 6 (MCL 691.1666); "Equine professional" defined; MCL 691.1662(e); In re Wayne County Prosecutor; Whether the EALA violates the Title-Object Clause of the Michigan Constitution (Const. 1963, art. 4, § 24)

Court: Michigan Supreme Court

Case Name: Beattie v. Mickalich

e-Journal Number: 46323

Judge(s): Kelly, Cavanagh, Markman, and Hathaway; Concurrence - Markman and Kelly; Concurring in part, Dissenting in part - Young, Jr., Weaver, and Corrigan

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment in a published opinion (see e-Journal # 43098 in the 6/29/09 edition) and remanded the case to the trial court for further proceedings consistent with the court's order, holding a plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the EALA and while the EALA abolished strict liability for horse owners, it did not abolish negligence actions against them. The court noted the EALA expressly states § 3 "does not prevent or limit the liability . . . if the . . . person . . . [c]omits a negligent act or omission that constitutes a proximate cause of the injury." Further, since plaintiff offered documentary evidence supporting her argument the defendant was negligent and the content or substance of this documentary evidence would be admissible at trial, the lower courts erred in granting defendant's summary disposition motion.

The concurrence wrote separately only to respond to the dissent, respectfully disagreeing with the conclusion of both the dissent and the Court of Appeals the EALA only permits a negligence claim "when it involves something other than inherently risky equine activity." The concurring justices believed the dissent's and the Court of Appeals' interpretation of the EALA rendered aspects of the statute nugatory.

The concurring in part, dissenting in part justices would affirm the part of the Court of Appeals judgment affirming dismissal of plaintiff's claims based on the EALA, agreeing with the Court of Appeals "MCL 691.1665(d) cannot be construed as broadly allowing general negligence claims without completely eviscerating the entire concept of limited liability under the EALA." MCL 691.1665 had to be read together with MCL 691.1663 "to give effect to the act as a whole," and giving effect to both provisions, the Court of Appeals correctly interpreted the MCL 691.1665(d) exception as involving "human error" "not within the gamut of 'inherent[ly] risk[y] . . . equine activity.'" The justices concluded plaintiff failed to create a genuine issue of material fact her claim fell within the negligence exception to the EALA limitation on liability.

 

Real Property

 

This summary also appears under Municipal

 

Issues: Zoning; Whether the trial court had jurisdiction to entertain an exclusionary zoning claim and grant relief allowing the plaintiffs to use the property for a 498-unit manufactured housing community (MHC); Paragon Props. Co. v. City of Novi; Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City; Electro-Tech, Inc. v. H F Campbell Co.; Odom v. Wayne County; Henry v. Dow Chem. Co.; Village of Euclid v. Ambler Realty Co.; The former Township Zoning Act (MCL 125.271 et seq.); MCL 125.297a; Applicability of the "futility" doctrine; Bannum, Inc v. City of Louisville (6th Cir.); Applicability of Paragon's "ripeness" and "finality" rules to a "facial" attack on a zoning ordinance; Warth v. Seldin; Planned unit development (PUD)

Court: Michigan Supreme Court

Case Name: Hendee v. Putnam Twp.

e-Journal Number: 46328

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

 

The lead opinion held the trial court and the Court of Appeals erred by reaching the question whether the defendant-township's zoning ordinance was unconstitutional and thus, also erred by holding the plaintiffs were entitled to an order enjoining the township from interfering with plaintiffs' development of a 498-unit MHC. Because plaintiffs never submitted an application for rezoning or a variance to construct an MHC, their claim was not ripe for judicial review. Thus, the trial court had no basis to enjoin the township from enforcing its zoning ordinance, nor should the trial court have awarded plaintiffs their costs and expert witness fees. Plaintiffs-the Hendees own a 144-acre tract of land, formerly used as a dairy farm, in the township. They filed an application with the township Planning Commission to rezone their land from A-O to R-1-B. They later unsuccessfully applied for approval of a 95-unit PUD and rezoning to R-1-B. At some point during the application process concerning the 95-unit PUD, the Hendees filed a new application to rezone the property to permit MHC development. However, they withdrew this application after the township informed them it would not process a new application for an MHC while the PUD application was still pending. The Hendees, and the proposed buyer/developer, plaintiff-Village Pointe, sued the township, alleging the refusal to rezone the property from A-O zoning to allow MHC development deprived them of equal protection and substantive due process, constituted an unconstitutional taking, and the township's zoning was exclusionary, in violation of former MCL 125.297a, because it excluded MHC zoning. Plaintiffs' exclusionary zoning claim was based on the notion because the township's zoning map classified no appropriate land for MHC use and the township's master plan designated only unsuitable property for this use, the township's ordinance was facially invalid. Citing the U.S. Supreme Court's opinion in Williamson as well as the court's express adoption of Williamson in Electro-Tech, the court observed in Paragon the importance of requiring finality in land-use-regulation disputes. Consistent with Williamson, the court held in Paragon judicial review in zoning cases is not available until the zoning authority has rendered a final decision. Here, the trial court and the Court of Appeals majority erred (1) to the extent they held the township zoning ordinance was facially invalid because it unconstitutionally excluded a lawful use (MHC) and (2) by holding the futility exception excused compliance with the finality rule and the appropriate remedy was to enjoin the township from interfering with plaintiffs' development of a 498-unit MHC. "An ordinance is not facially invalid merely because it does not authorize every conceivable lawful use, nor does a zoning authority's denial of an application for residential rezoning at a proposed lower-density level automatically establish that it would be futile for the property owner to apply for a higher-density use, such as MHC rezoning or a variance allowing MHC use." Because plaintiffs never submitted an application to the township for MHC rezoning or for a use variance permitting construction of an MHC, their claim was not ripe for judicial review. The Court of Appeals judgment was reversed and remanded for entry of a dismissal order.

Justices Cavanagh and Kelly disagreed with the lead opinion's analysis, which would extend and exacerbate the errors in Electro-Tech and Paragon, but ultimately agreed with its conclusion plaintiffs had not presented any exclusionary zoning claims ripe for review. Thus, they concurred with the decision to reverse the Court of Appeals judgment and remand the case for entry of a dismissal order consistent with the court's decision.

Justices Corrigan, Young, Jr., and Markman concluded plaintiffs' exclusionary zoning claim was not ripe for adjudication because plaintiffs neither sought nor obtained a decision concerning their contemplated development of a 498-unit MHC before filing suit. They would hold plaintiffs' as applied challenge to the validity of defendant's zoning ordinance was subject to the threshold doctrine of ripeness and the interrelated rule of finality. Because plaintiffs could not cross this threshold and because the futility exception to the rule of finality was inapplicable in this case, the justices concurred in the result of the lead opinion reversing the Court of Appeals judgment.

 

Issues: Condemnation; Whether business interruption damages include moving and relocation expenses; The Uniform Condemnation Procedures Act (MCL 213.51 et seq.); Department of Transp. v. Tomkins; "Just compensation"; Const. 1963, art. 10, § 2; DOT v. Frankenlust Lutheran Congregation; Grand Rapids & I R Co. v. Weiden; In re Grand Haven Hwy.; Detroit v. Hamtramck Cmty. Fed. Credit Union; Michigan State Hwy. Comm'n v. Great Lakes Express Co.; In re Slum Clearance; In re Acquisition of Land for Civic Ctr.; In re Condemnation for Battle Creek Park; Detroit Trust Co. v. Detroit City Serv. Co.; Colton v. Michigan Lafayette Bldg. Co.; Whether state and federal statutes exclusively govern recovery for moving and relocation expenses;  The Relocation Assistance for Persons Displaced by Acquisition of Property for Highways Act; MCL 252.143; MCL 213.328(1); The Allowances for Moving Personal Property from Acquired Real Property Act; MCL 213.355; Oklahoma v. Little (OK); Silver Creek Drain Dist. v. Extrusions Div., Inc.; Whether the trial court properly excluded MDOT's evidence showing the permanent site to which the defendants ultimately moved was available at the time they first moved to the allegedly unnecessary interim site; Barrett v. Kirtland Cmty. Coll.; Woodard v. Custer; Whether plaintiff-MDOT was entitled to a new trial; MCR 2.613(A); Novi v. Robert Adell Children's Funded Trust

Court: Michigan Court of Appeals (Published)

Case Name: Michigan Dep't of Transp. v. Gilling

e-Journal Number: 46330

Judge(s): Saad, Whitbeck, and Zahra

 

The court agreed in part with the trial court's ruling business interruption damages include moving and relocation expenses and the statutorily authorized administrative reimbursement proceedings is a supplementary scheme for the recovery of moving and relocation expenses not otherwise fully compensable under state condemnation law. These consolidated appeals arose out of a condemnation proceeding brought by plaintiff-MDOT to acquire a multi-acre parcel located on a highway as part of a road-widening project. The court held claims for business interruption damages do not allow for lost profits, but permit recovery of moving and relocation expenses. However, although moving and relocation expenses can include expenses for moving trade fixtures, the court held the trial court erred in classifying defendants' nursery stock as trade fixtures. The trees, bushes, and the like, making up the inventory of a nursery business, are not trade fixtures. A nursery might successfully argue unattached water pumps, chemical fertilizers, and fertilizing equipment are trade fixtures because they are used to produce or maintain the products of the business, or it might establish, in operating the business, flower display racks and free-standing counters designed for the space are trade fixtures. Those items, while not necessarily attached to the land or building, could be considered "constructively annexed" to the property because they are intended to be permanent, they would lose value if removed from the building, and they enable and are essential to the business of keeping and selling plant material. In contrast, defendants-Gilling's inventory of trees and bushes were the products of the business, they were specifically intended to be sold and removed from the property, and their removal did not impair their value or the value of the property. This moveable inventory did not fall within the definition of a "trade fixture" under any of the relevant cases and, because it was more akin to personal property, Gilling was not entitled to recover for the expense of moving inventory. The trial court should not have ruled Gilling had the right to recover for the cost of moving inventory in the form of trees, shrubbery, etc. These plants were not trade fixtures. Any losses arising from the movement of the nursery products fell within the category of non-compensable lost profits. The court further held the trial court abused its discretion in excluding key expert testimony supporting MDOT's position Gilling was unreasonable in moving to an interim location before moving to its final destination, and MDOT was entitled to a new trial on this basis. Affirmed in part, reversed in part, and remanded for a new trial.

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(c)(i) and (h); Effect of the DHS's failure to engage the respondent-father in the proceedings; In re Rood; In re Mason; Effect of the failure to adhere to the procedures in MCR 2.004(B) & (C); In re LaFlure; The withholding of services from respondent; Concerns with the trial court's evidentiary rulings; Whether the trial court properly allowed the prosecutor to admit evidence otherwise inadmissible under the MREs; MCR 3.977(F)

Court: Michigan Court of Appeals (Published)

Case Name: In re Kleyla

e-Journal Number: 46331

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

 

Concluding there was "a 'hole' in the evidence" precluding termination of the respondent-father's parental rights because the DHS refused to engage him in the proceedings and the record lacked any evidence as to his ability to care for his child in the near future, the court reversed the trial court's order terminating his parental rights. CPS received a referral about the minor child's "general well being" in October 2007. The child lived with respondent. The child's mother was previously substantiated as a perpetrator of child neglect and only had supervised parenting time with the child. A CPS worker and a police officer visited respondent's home to investigate the complaint. The officer learned an outstanding warrant authorized respondent's arrest and took him into custody. Respondent advised them he had given the mother of another child of his a power of attorney authorizing her to care for the minor child. He was incarcerated on the outstanding warrant. The court concluded by the time the trial court recognized respondent's right to participate in the proceedings, the trial court and the DHS were ready to move on to the termination hearing. As in Mason, "respondent 'missed the crucial, year-long review period during which the court was called upon to evaluate the parents' efforts and decide whether reunification of the children with their parents could be achieved.'" Due to the prosecutor, the trial court, and respondent's counsel all failing to adhere to the procedures in MCR 2.004(B) and (C), he was deprived of the opportunity to participate in all proceedings conducted between November 2007 and July 2008. While the DHS highlighted the fact respondent was represented by counsel at nearly all the proceedings and participated in the proceedings during the year leading up to the termination, the court held he "endured prejudice because he remained absent during a critical time in these child welfare proceedings." He did not appear telephonically at the adjudication, the dispositional hearing, or the first three dispositional review hearings. His incarceration did not alter the fact had he participated, he could have given the trial court highly relevant information about the child's needs, paternal family history, familial placement options, and the services needed to achieve a permanency goal serving the child's best interests. The court rejected the DHS's suggestion "excluding a parent for a prolonged period of the proceedings can be considered harmless error." Further, the failure to offer respondent any services clearly contravened the Michigan Supreme Court's decision in Mason. Reversed and remanded for petitioner to provide the services it had neglected to supply respondent and for further proceedings.

 

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