e-Journal

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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

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Today's e-Journal includes summaries of six Michigan Supreme Court opinions under Criminal Law, Healthcare/Insurance, Judges, Negligence & Intentional Tort, and Real Property. Cases appear under the following practice areas:

Criminal Law (3)
Healthcare Law (1)
Insurance (1)
Judges (1)
Negligence & Intentional Tort (1)
Real Property (1)
Termination of Parental Rights (2)

Criminal Law

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Issues: Whether newly discovered impeachment evidence can constitute grounds for a new trial and under what circumstances; People v. Cress; Denial of defendant's requests for a new trial based on newly discovered evidence; People v. Andrews; People v. Pizzino; People v. Clark; Spray v. Ayotte; Luckhurst v. Schroeder; People v. Armstrong; United States. v. Taglia (7th Cir.); United States v. Quiles (3rd Cir.); White v. Coplan (1st Cir.); Napue v. Illinois

Court: Michigan Supreme Court

Case Name: People v. Grissom

e-Journal Number: 52317

Judge(s): M. Kelly, Cavanagh, Markman, and Hathaway; Concurrence - M. Kelly; Separate Concurrence - Markman; Concurring in part, Dissenting in part - Zahra, Young, Jr., and M.B. Kelly

In a case presenting the question whether newly discovered impeachment evidence can constitute grounds for a new trial and under what circumstances, the court held that impeachment evidence may be grounds for a new trial if it satisfies the four-part test in Cress. A material exculpatory connection must exist between the newly discovered evidence and significantly important trial evidence. It may be of a general character and need not contradict specific testimony at trial. The evidence also must make a different result probable on retrial. The case involved an alleged rape in a grocery store parking lot. The victim did not report the assault to the police for two days, and then did not report the sexual nature. The police treated the incident as an attempted carjacking. She did not tell her husband about the rape for several months. A jury convicted defendant of two counts of CSC I. The Court of Appeals affirmed his conviction. The court denied his application for leave to appeal. Two years later, the victim called a detective involved in the case against defendant and told him that she was sexually assaulted by relatives as a child. She told another officer and reported that she was raped in another state. The prosecutor obtained police reports from two towns in that state and gave them to defendant. The reports involved the victim's allegations of other rapes and sexual assaults. Based on the newly discovered police reports, defendant filed a pro se motion for relief from judgment and requested a new trial. The lower courts denied his request. The court noted that it recognized more than a century ago, newly discovered impeachment evidence ordinarily will not justify the grant of a new trial. The court's decision here did not disturb this statement. It will be a rare case in which the exculpatory connection exists between the heart of the witness's trial testimony and the new impeachment evidence and a different result is probable on retrial. But when that rare case presents itself, a court should not refuse to grant a new trial solely on the ground that the newly discovered evidence is impeachment evidence. It should not refuse even if the new evidence is not directly contradictory to specific trial testimony. Impeachment evidence may be grounds for a new trial if it satisfies the four-part test in Cress. Newly discovered impeachment evidence satisfies Cress when there is an exculpatory connection on a material matter between a witness's testimony at trial and the new evidence, and a different result is probable on retrial. The trial court abused its discretion by denying defendant's motion for a new trial where its ruling was legally incorrect. Defendant was entitled to a new trial. If the newly discovered evidence has an exculpatory connection to testimony as to a material matter and a different result is probable, a new trial is warranted. A remand for application of the applicable standards clarified here was appropriate. The court reversed the Court of Appeals judgment and remanded. The only facts the trial court should consider are those in the newly discovered evidence and those in the record.

In her concurrence, Justice M. Kelly opined that the case had lingered unresolved for six years and there was no impediment to a new trial. Also, on remand the case will go to a trial court that probably has no knowledge of the facts of the case. Further, the trial court can establish precedent as to the question of when newly discovered impeachment evidence can satisfy the fourth Cress factor. The justice would hold that the newly discovered evidence constituted materially exculpatory evidence and it made a different result probable on retrial, satisfying the fourth Cress factor. She would vacate defendant's convictions and remand to the trial court for a new trial.

Justice Markman concurred in part with the majority's test in Cress, and agreed that such evidence may be of a general character and need not meet specific testimony at trial. The justice opined that this was a "truly difficult and perplexing case," which makes it even more important that the trial court itself first consider the evidence in light of the court's clarification of the Cress test.

Justices Zahra, Young, Jr., and M.B. Kelly concurred in part and dissented in part, and agreed with the use of the Cress test. They also agreed that a material, exculpatory connection must exist between the newly discovered evidence and significantly important evidence presented at trial, but strongly disagreed that "it may be of a general character and need not contradict specific evidence at trial." They opined that the new impeachment evidence could make a different result probable on retrial only if it directly contradicts material trial testimony in a manner that tends to exculpate defendant. Because the justices did not believe that defendant's impeachment evidence satisfied the Cress test, they dissented from the majority's application of that test and its decision to remand. The new evidence offered to impeach the victim did not contradict any of her trial testimony. Further, the case did not hinge on the victim's uncorroborated account of the assault. Substantial independent evidence at trial corroborated her testimony that defendant raped her.

Full Text Opinion

Issues: Michigan's Felony-Nonsupport statute and the proper defense to a "nonsupport charge"; Whether the trial courts denied the defendants' constitutional right to due process when they refused to consider evidence of their "inability to pay" as a defense to the charge of Felony Nonsupport; MCL 750.165; Statutory interpretation; In re MCI Telecom Complaint; Farrington v. Total Petroleum, Inc.; House Speaker v. State Admin. Bd.; Lorencz v. Ford Motor Co.; Sidun v. Wayne Cnty. Treasurer; People v. Adams; "Mens rea"; Lambert v. California; People v. Quinn; People v. Kowalski; "Strict-liability"; Common-law defense of "impossibility"; "Actus reus"; People v. Freeman (CA App.); People v. Newton (CA App.); State v. Welsh (WA App.); Willing v. United States; Port Huron v. Jenkinson; Bearden v. Georgia; Procedural aspects of the defense; Martin v. Ohio; People v. Mills; Patterson v. New York; People v. Monaco; Hicks ex rel Feiock v. Feiock; Stevenson v. United States; Application to the defendants; Washington v. Texas; People v. Carines; People v. New

Court: Michigan Supreme Court

Case Name: People v. Likine

e-Journal Number: 52315

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

Deciding an issue of first impression, as to the nature of Michigan's felony-nonsupport statute and the proper defense to a nonsupport charge, the court held that Adams correctly held that "MCL 750.165 imposes strict liability because it does not require a mens rea, and that evidence of a defendant's inability to pay, without more, is not a valid defense to a charge of felony nonsupport." However, the court held that "a defendant charged with felony nonsupport may, in exceptional circumstances, on making the requisite evidentiary showing, establish impossibility as a defense to a charge of felony nonsupport." The court concluded that defendant-Likine preserved this claim of constitutional error and that the prosecution did not show that the error was harmless. Thus, the court reversed her conviction and remanded the case to the trial court for further proceedings. Because the court concluded that defendant-Parks was not entitled to relief, the court affirmed the judgment of the Court of Appeals. Lastly, defendant-Harris entered an unconditional guilty plea, which affirmatively waived the defense at issue, and thus, the court held that he was not entitled to relief. The cases involved the felony of failure to pay court-ordered child support (felony nonsupport) under MCL 750.165 and the rule of Adams, which held that inability to pay is not a defense to this crime. All of the defendants argued that the trial courts denied their constitutional right to due process when they refused to consider evidence of their "inability to pay" as a defense to the charge of felony nonsupport. Only Likine explicitly equated her alleged inability to pay with a claim of impossibility. The court agreed with the holding in Adams that the revised language of MCL 750.165 evinces a clear legislative intent to dispense with the mens rea element and impose strict liability by eliminating the language regarding a defendant's "refus[al] or neglect" to pay the ordered support, and instead providing simply that if "the individual does not pay the support . . . the individual is guilty of a felony." The court held that concluding that MCL 750.165 is a strict-liability offense did not end its analysis. The court held that "the Adams Court only addressed the defense of inability to pay and did not address the common-law defense of impossibility, which if proven negates the actus reus of a crime. MCL 750.165, however, criminalizes an omission, or a failure to act. At common law, an established defense to a crime of omission is impossibility." The court held that "genuine impossibility is a defense to the charge of felony nonsupport under MCL 750.165." However, the court also held that "a defendant's failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects 'an insufficient concern for paying the debt he owes to society,' it also reflects an insufficient concern for the child. In those instances, the defendant may not invoke the shield of the impossibility defense." The court also held that "the outcome of the family court proceeding simply does not preclude a defendant in a criminal proceeding for felony nonsupport from asserting impossibility as a defense." The court emphasized that nothing in its opinion "undermines the validity of the family court proceeding or its role in setting the amount of child support."

The dissenting justices believed that the majority's new "impossibility-to-pay" defense created a nearly "insurmountable barrier" to successfully defending felony nonsupport charges. They believed that the majority's impossibility-to-pay defense will prove "grossly unjust" in its application and that it is fundamentally unconstitutional. Because they believed that a defendant's inability to pay is the proper defense to a felony nonsupport charge, they respectfully dissented.

Full Text Opinion

Issues: Waiver of the right to a jury trial; Whether the trial court adequately determined that the defendant "knowingly and voluntarily" waived the right; People v. Cook; Compliance with MCR 6.402; People v. Pasley; People v. Leonard; People v. James (After Remand); United States v. Martin (6th Cir.); Sowell v. Bradshaw (6th Cir.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Medlin

e-Journal Number: 52188

Judge(s): Per Curiam – Gleicher and Beckering; Concurring in the result only – Saad

Holding that the trial court complied with MCR 6.402 and was not required to inform the defendant of the benefits of a jury trial over a bench trial, the court rejected his claim that the trial court failed to adequately determine whether he knowingly and voluntarily waived his right to a jury trial. Thus, the court affirmed his first-degree home invasion conviction. However, the court noted that it agreed with defendant that "the trial court should have engaged in a more thoughtful and in-depth interview with him on the record." The trial court advised him in open court that he had a constitutional right to a jury trial. The trial court addressed him personally, asking him if he wished to waive his right. Defendant answered in the affirmative. The trial court made a verbatim record of the proceeding. Defendant did not dispute these elements. Rather, he argued that this colloquy was insufficient for the trial court to "ascertain" that he understood his jury trial right and voluntarily waived it. The court noted that there "is no formulaic inquiry" that a trial court "must make to ensure the voluntariness of a defendant's waiver of the jury trial right." The trial court "is not required to explain to the defendant that the 12-member jury would have to reach a unanimous decision to convict." The court noted that in Martin, the Sixth Circuit Court of Appeals "'implore[d]' lower courts, before accepting a jury trial waiver, to inform the defendant 'that a jury is composed of 12 members of the community, he may participate in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.'" However, while "such a colloquy would greatly assist the court's decision, it is not constitutionally required." The court stated that it did "not condone the trial court's abbreviated approach to complying with MCR 6.402." The trial court "did the absolute minimum required by generally referencing defendant's constitutional right and asking defendant directly if he wished to waive that right." However, the court noted that defendant did not claim that he was actually unwilling or coerced into proceeding with a bench trial. Also, he was "a fourth habitual offender with significant prior experience with the criminal justice system." The court concluded that the trial court "complied with the minimum procedural requirements to protect defendant's constitutional right to a jury trial."

Full Text Opinion

Healthcare Law

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This summary also appears under Insurance

Issues: The No-Fault Act (NFA)(MCL 500.3101 et seq.); Whether a person injured while driving a motor vehicle that he or she took contrary to the express prohibition of the owner may avail himself or herself of PIP benefits; MCL 500.3113(a); MCL 750.413 and 750.414 (the "joyriding" statutes in the Michigan Penal Code - MPC); The "chain of permissive use" theory; Bronson Methodist Hosp. v. Forshee; The "family joyriding exception"; Priesman v. Meridian Mut. Ins. Co.; Butterworth Hosp. v. Farm Bureau Ins. Co.; Mester v. State Farm Mut. Ins. Co.; Allen v. State Farm Mut. Auto. Ins. Co.; Roberts v. Titan Ins. Co. (On Reconsideration)

Court: Michigan Supreme Court

Case Name: Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI

e-Journal Number: 52314

Judge(s): Zahra, Young, Jr., Markman, and M.B. Kelly; Dissent – Cavanagh, M. Kelly, and Hathaway (as to the Progressive case only); Separate Dissent – Hathaway and M. Kelly

The court held that any person who takes a motor vehicle contrary to a provision of the MPC (including the "joyriding" statutes) has taken the vehicle unlawfully for purposes of MCL 500.3113(a). Further, a "person" for purposes of MCL 500.3113(a) "clearly and plainly includes a family member who has taken a vehicle unlawfully," thus precluding that person from receiving PIP benefits. The court overruled Branson's application of the "chain of permissive use" theory as inconsistent with MCL 500.3113(a). Also, concluding that "the family-joyriding exception has no basis in the language of MCL 500.3113(a)," the court disavowed Justice Levin's plurality opinion in Priesman and overruled the Court of Appeals decisions applying it - Butterworth, Mester, Allen, and Roberts. Two cases were consolidated for purposes of this appeal - Spectrum Health Hospitals v. Farm Bureau Mut. Ins. Co. of MI and Progressive Marathon Ins. Co. v. DeYoung (in which Spectrum Health Hospitals and Mary Free Bed Rehabilitation Hospital were intervenors/cross-plaintiffs). In Spectrum Health, PIP claimant Craig Smith, Jr. was injured in a single-car accident that occurred while he was driving a vehicle owned by his father (Craig Sr.) and insured by Farm Bureau. Craig Sr. had forbidden Craig Jr. to operate the vehicle because he had no valid driver's license. Craig Jr. acknowledged that he knew he was forbidden to operate the vehicle. Craig Sr. entrusted the vehicle to Craig Jr.'s girlfriend, K, to enable Craig Jr. and K to perform landscaping services. Nevertheless, Craig Sr. instructed K, in Craig Jr.'s presence, that she was not to allow Craig Jr. to drive it. That night, Craig Jr. began drinking and asked K for the keys to Craig Sr.'s vehicle. Although she initially resisted, K eventually gave him the keys, and he later crashed the vehicle into a tree. Spectrum Health Hospitals, which rendered care to Craig Jr., sued Farm Bureau to recover payment for those services. In Progressive, Ryan DeYoung's wife N owned and insured the family's four vehicles with Progressive Marathon Insurance. Ryan was a named excluded driver on the Progressive policy. As a result, N expressly prohibited Ryan from driving the vehicles, including the SUV that she used as her principal vehicle. One night, "Ryan came home intoxicated and without his house key. He banged on the window of their home." N rose from bed, "admitted him, and, perceiving his intoxicated state, went back to bed." Ryan took the key to the SUV, contrary to N's standing instruction and without her permission, out of N's purse and then took the SUV, contrary to N's standing instructions. Within 20 minutes of taking the SUV, he was badly injured in a single-vehicle accident. He incurred bills of more than $53,000 at Spectrum Health Hospitals and another $232,000 at Mary Free Bed Rehabilitation Hospital. Progressive denied PIP benefits, arguing that Ryan was injured while using a vehicle that he had unlawfully taken. It filed a declaratory action against Ryan and N on this basis. Spectrum Health and Mary Free Bed intervened as cross-plaintiffs to recover payment from Progressive for the outstanding bills. In Spectrum Health, the court held that "Bronson erred by applying a theory developed in owner-liability caselaw to the context of MCL 500.3113(a) because this caselaw did not address whether the end user of a vehicle violated" the MPC, including MCL 750.413 or MCL 750.414, "by unlawfully taking a vehicle." Thus, the court concluded that the Court of Appeals erred by affirming the trial court's grant of summary disposition to Spectrum Health because MCL 500.3113(a) precluded the claimant from receiving PIP benefits. In Progressive, the court concluded that Progressive and intervenor/cross-defendant-Citizens Insurance were entitled to summary disposition because MCL 500.3113(a) excluded the injured claimant from coverage.

Justices Cavanagh, M. Kelly, and Hathaway (as to Progressive only) would reaffirm the "chain of permissive use" doctrine as well as the interpretation of MCL 500.3113(a) from Priesman. Because the Court of Appeals correctly applied these principles, the justices would affirm the Court of Appeals' judgment in both cases. Priesman's analysis formally became part of Michigan's caselaw when it was adopted by the Court of Appeals in Butterworth. Thus, under MCR 7.215(J)(1), the Court of Appeals in Progressive "accurately applied Priesman's progeny as binding caselaw to conclude that MCL 500.3113(a) does not prohibit Ryan DeYoung from recovering PIP benefits." The justices concluded that the majority's reading of Priesman was flawed. Like "the majority opinion in this case, Priesman focused on the requirement that the vehicle be 'taken unlawfully' in order to trigger the exclusion under MCL 500.3113(a)." The justices concluded that "Priesman accurately interpreted the phrase 'taken unlawfully' as including only car thieves." The justices saw no reason to reject Priesman, noting that while Priesman and its progeny were not entitled to stare decisis consideration, "the reliance interests related to this area of the law are significant, worthy of some consideration, and strongly counsel against departing from the existing state of the law." The justices also agreed with Justice Hathaway's conclusion that the Court of Appeals in Spectrum Health did not clearly err in holding that Craig Jr. did not unlawfully take the vehicle.

Justices Hathaway and M. Kelly fully joined Justice Cavanagh's opinion as to Progressive, but wrote separately to address the majority's decision in Spectrum Health, in which the majority rejected and discarded the "chain of permissive use" theory. The justices were "not persuaded that this theory should be discarded. It is a well-reasoned and well-established doctrine that has been part of this state's jurisprudence for decades." The justices disagreed with the majority's interpretation of "taken unlawfully," concluding that its "interpretation precludes a class of injured parties from recovering PIP benefits even when a party was given permission to take a car by an intermediate user. The Bronson interpretation is the better interpretation because it was more consistent with the purpose" of the NFA "to provide a source and means of recovery to persons injured in auto accidents."

Full Text Opinion

Insurance

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This summary also appears under Healthcare Law

Court: Michigan Supreme Court

Case Name: Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI

e-Journal Number: 52314

Judge(s): Zahra, Young, Jr., Markman, and M.B. Kelly; Dissent – Cavanagh, M. Kelly, and Hathaway (as to the Progressive case only); Separate Dissent – Hathaway and M. Kelly

Full Text Opinion

Judges

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Issues: Removal from office for judicial misconduct; The standards of discipline in MCR 9.104 and 9.205; In re Ferrara; In re Brown; Const. 1963, art. 6, §§ 4 and 30(2); Financial improprieties; Finding that the respondent misappropriated and abused Community Service Program (CSP) funds subject to MCL 775.22 and MCL 780.826a; Failure to establish a budget for the CSP account as mandated by MCL 600.8271; Administrative improprieties; Finding that respondent implemented an unreasonable business-attire policy that was enforced at the court and resulted in people being denied access to the court; Employment improprieties; Finding that respondent knowingly rehired an unqualified magistrate in violation of MCL 600.8501 and 600.8507 and misrepresented that he was qualified; Requiring the magistrate to sign bench warrants in violation of MCL 600.8511; Violation of the Michigan Supreme Court's antinepotism policy; Admin. Order No. 1996-11; Finding that respondent made misrepresentations during the investigation and the hearing (including lying under oath); Determining appropriate sanctions; In re Justin; In re Probert; Judicial Tenure Commission (JTC); Judicial information system (JIS)

Court: Michigan Supreme Court

Case Name: In re James

e-Journal Number: 52308

Judge(s): M. Kelly, Young, Jr., Markman, M.B. Kelly, and Zahra; Concurring in the result – Cavanagh and Hathaway; Concurring in part, Dissenting in part – Markman and Young, Jr.

Holding that the evidence established that the respondent-district court judge "misappropriated public funds," denied people access to the court by instituting and enforcing an improper business-attire policy, employed a family member in violation of court policy, and "made numerous misrepresentations of fact under oath during the investigation and hearing" of this case, the court ordered that she be removed from office. The court affirmed the JTC's findings and its recommendation. The court agreed with the master and JTC's finding that respondent engaged in financial improprieties, the "most significant" of which involved her "misappropriation and abuse" of CSP funds. These funds were collected from the public and were subject to MCL 775.22 and MCL 780.826a, which govern how they should be allotted. The statutes require that the first 50% of certain CSP-fund payments be allocated to crime victims in restitution for their financial losses due to criminal acts. The district court's JIS system is programmed to automatically apply those payments in compliance with the statutes. However, "respondent ordered her clerks to override the JIS to allocate them first to the court's CSP account," which did not use the first 50% for crime victim restitution. "Respondent expended monies intended for crime-victim restitution and for additional legislatively mandated priorities to other sources in a manner that she alone controlled. She expended thousands of dollars on items having no relation to the operation of the CSP." She chose the charities and organizations that received the funds and personally signed the checks. "Many of these expenditures were for advertisements that promoted the judge, prominently displaying her picture and only tangentially mentioning the CSP. She also allocated CSP funds to local charities of her choice and spent them on travel and other expenses as she deemed fit." As to the business-attire policy, respondent asserted that somehow the policy was improperly enforced. "She refused to acknowledge that she alone was responsible for overseeing the enforcement of her dress policy" in the district court. The master noted that while the judicial canons allow a judge to require that certain attire be worn in the courtroom, "the requirements must be reasonable." The court concluded that respondent "should have known that people were appearing for court and being turned away because of her policy. And she should have taken steps to prevent this from happening." The court also agreed with the master and the JTC that "respondent knowingly rehired an unqualified magistrate in violation of MCL 600.8501 and MCL 600.8507 and misrepresented that he was qualified." "Even more troubling, respondent required the magistrate to sign bench warrants in violation of MCL 600.8511." As a result, approximately 15,000 bench warrants were improperly issued and had to be reissued. The master and JTC also found "respondent made misrepresentations during the investigation and the hearing, including lying under oath." The court also agreed with those findings. The court concluded that respondent's "misconduct persisted for years, permeating and infecting every corner of" the district court. The court directed the JTC to submit a bill costs, which is to include "an itemization pursuant to MCR 9.205(B) showing the costs, fees, and expenses incurred by the JTC in prosecuting the complaint." Also, "because certain of the misappropriated funds were by law to be paid to crime victims, the JTC may specify the amount that respondent should have allotted to victim restitution." She will be given an opportunity to respond to the bill of costs.

The concurring in part, dissenting in part justices agreed with the majority that respondent (1) "used several hundred thousand dollars of public funds as her 'personal piggybank,' without regard for either the law or the victims of crime" who were entitled to receive a share of those funds, (2) violated court policy by hiring a family member, and (3) lied under oath during the investigation and hearing conducted by the JTC and the master appointed in this case. They also agreed that this misconduct compelled the removal of respondent from office, and the payment of costs and restitution for the funds diverted from the crime victims. However, the justices disagreed that the sanctions imposed by the majority sufficiently addressed "the continuing harm that her misconduct has inflicted on the integrity of the judiciary in our state." The justices would impose a six-year conditional suspension in addition to the sanctions imposed by the majority.

Full Text Opinion

Negligence & Intentional Tort

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Issues: Premises liability; Slip and fall on ice; Duty a landowner owes to "invitees"; Stitt v. Holland Abundant Life Fellowship; Williams v. Cunningham Drug Stores, Inc.; Bertrand v. Alan Ford, Inc.; Application of the "open and obvious" doctrine; Riddle v. McLouth Steel Prods. Corp.; Joyce v. Rubin; "Special aspects" making an open and obvious condition "unreasonably dangerous"; Lugo v. Ameritech Corp.; Ice and snow hazards; Quinlivan v. Great Atl. & Pac. Tea Co.; Mann v. Shusteric Enters., Inc.; Janson v. Sajewski Funeral Home, Inc.; Corey v. Davenport Coll. of Bus. (On Remand); Robertson v. Blue Water Oil Co.; Whether the hazard was "effectively unavoidable" because the injured plaintiff had a business interest in entering the premises; The "unreasonableness of the hazard" as the "touchstone" for permitting recovery under the "special aspects" exception to the open and obvious doctrine; Perkoviq v. Delcor Homes-Lake Shore Pointe Ltd.; 2 Restatement Torts, 2d, §§ 343 and 343A

Court: Michigan Supreme Court

Case Name: Hoffner v. Lanctoe

e-Journal Number: 52316

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

Concluding that the "touchstone" of the "special aspects" analysis is that the condition must be characterized by its "unreasonable risk of harm," the court rejected plaintiff's argument that the hazard in this case was effectively unavoidable because she had a business interest in entering the premises. The fact that plaintiff, a business invitee, had a contractual right to enter the premises did not mean that she was "unavoidably compelled to confront the icy condition." Thus, the court reversed in part the Court of Appeals and remanded the case to the trial court for entry of summary disposition in favor of the defendants-premises owners, the Lanctoes. On a January morning, plaintiff drove to defendants' commercial building in Ironwood. She had a paid membership to a fitness center that was one of several tenants in the building. While defendants had cleared and salted the parking lot and sidewalk earlier that day, by the time plaintiff arrived she saw the sidewalk was icy at the one entrance to the fitness center. She stated that she could "see the ice and the roof was dripping." However, she decided it "didn't look like it would be that bad" and decided to enter the building since "it was only a few steps" and she thought she could make it. Plaintiff fell on the ice and injured her back. She sued defendants, the fitness center, and the fitness center's owners and operator. The trial court denied all the defendants' summary disposition motions. The Court of Appeals reversed the trial court as to the fitness center and its owners/operator, but affirmed as to the Lanctoes on the basis that the dangerous condition was effectively unavoidable. The court held that an "effectively unavoidable" condition "must be an inherently dangerous hazard that a person is inescapably required to confront under the circumstances." In this case, the "ice on the sidewalk was open and obvious," and plaintiff did not provide evidence of special aspects of the condition "that justify imposing liability on the Lanctoes despite the open and obvious nature of the danger." The court stated that "the standard for 'effective unavoidability' is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so." The court concluded that "plaintiff's proposed rule represents an unwarranted expansion of liability. It would, in effect, create a new subclass of invitees consisting of those who have a business or contractual relationship." To the extent that Robertson or any other case alluded to a new breed of business invitee protection, the court disavowed "that reasoning as inconsistent with traditional principles of premises liability law." The court concluded that "this case calls for little more than a simple application of the open and obvious doctrine to bar plaintiff's claim" because she was injured "as a result of an avoidable open and obvious danger" and provided no evidence of a special aspect justifying the imposition of liability. She saw the ice at the entrance to the fitness center. She admitted that she knew that it posed a danger, "but that she saw the danger as surmountable and the risk apparently worth assuming in order to take part in a recreational activity. Plaintiff was not forced to confront the risk" - "she was not 'trapped' in the building or compelled by extenuating circumstances with no choice but to traverse a previously unknown risk." Further, she did not present any evidence "that the risk of harm associated with the ice patch was so unreasonably high that its presence was inexcusable, even in light of its open and obvious nature."

In their dissent, Justices Cavanagh and M. Kelly stated that the "majority's opinion creates an illogical and unworkable rule that will serve only to bar the courthouse doors to Michigan's injured invitees. Rather than clarifying the law, the majority opinion creates a host of unanswered questions that will create confusion as courts and practitioners attempt to find the answers. Further, by reducing the invitor's duty to the very rarest of situations involving extenuating circumstances, the majority opinion also reduces the beneficial incentives for Michigan's business owners to take reasonable measures to protect against ice and snow hazards on their property." Under the Restatement and the court's historical jurisprudence, the dissenting justices would hold that the Court of Appeals did not err when it affirmed the trial court's ruling that summary disposition for the Lanctoes was not appropriate. "Despite the open-and obvious nature of the hazard and the fact that plaintiff knew of the risk, the Lanctoes should have anticipated that all customers entering the facility through the sole approach to the front door would be at risk of injury."

In their dissent, Justices Hathaway and M. Kelly joined Justice Cavanagh in his criticisms of the majority's conclusion and stated agreement with his criticisms of the "ever-evolving and elusive" special aspects doctrine. The justices concluded that under the circumstances of this case, a jury could find that the Lanctoes should have anticipated that plaintiff would fail to protect herself from the hazard presented by the ice and snow "because there was no other method of public ingress to and egress from the business." A jury could also reasonably conclude that they took "appropriate steps to diminish the hazard or that plaintiff did not take appropriate actions to protect her own safety. Most importantly, however, these are questions of fact for the trier of fact to decide and are not properly decided by the court on a motion for summary disposition or on appellate review." Thus, the justices concluded that the court not only erred by holding that the case was to be decided as a matter of law, "the decision diminishes the role of juries, in favor of judicial fact-finding, in direct contravention of the specific mandates of the Michigan Constitution."

Full Text Opinion

Real Property

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Issues: Claims involving the issue of the priority of competing liens between a court-appointed receiver and the holder of a first-recorded mortgage on real property; Whether the common law rule permitting the court to give priority to a receiver should be extended to the foreclosure-by-advertisement context even though application of that rule would contradict the priorities established by a 1846 statute (MCL 600.3236); Bailey v. Bailey; Fisk v. Fisk: Attica Hydraulic Exch. v. Seslar; In re Lamphere; In re Dissolution of Henry Smith Floral Co.; Detroit Trust Co. v. Detroit City Serv. Co.; In re Rite-Way Tool & Mfg. Co.; Gray v. Lincoln Hous. Trust; Consent; Waiver; Quality Prods. & Concepts v. Nagel Precision, Inc.

Court: Michigan Supreme Court

Case Name: In re Receivership of 11910 S. Francis Rd.

e-Journal Number: 52305

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

The court concluded that because MCL 600.3236 operates to preserve the order of priority after the expiration of the applicable redemption period, it necessarily follows that the order of priority for any liens preexisting the mortgage that is the subject of the foreclosure will remain as it did at the time of the mortgage's execution. Because this statutory provision cannot be reconciled with the common law rule (that receivership expenses are entitled to first priority) and because that rule has never been applied to a foreclosure by advertisement under § 3236, the court declined to extend the common law rule here. Thus, the statute controlled. The case involved the issue of the priority of competing liens between a court-ordered receiver and the holder of a first-recorded mortgage on real property. The receiver (appellee-Woods) sought to recover receivership expenses before the holder of the first-recorded mortgage (intervening-defendant/appellant-Dart Bank) satisfied its mortgage interest. The Court of Appeals relied on Bailey and Fisk and its decision in Attica to hold that because Dart did not object to and benefited from the receivership, it "may be held responsible for the receivership expenses." The case required the court to decide whether the general common law rule permitting the court to give priority to a receiver should be extended to the foreclosure-by-advertisement context even though the application of that rule would contradict the priorities established by the statute. The real property at issue was previously owned by S, and secured by a single mortgage held by Dart, which was recorded on 8/8/03. Upon S's death in 4/07, the property was bequeathed to K. At the time the property was valued at $350,000 and the mortgage balance was less than $170,000. In 9/07, plaintiffs sued K to collect a judgment in an unrelated case. When they learned K had inherited the property from S, they moved for the appointment of a receiver to seize and sell the property in order to satisfy all or part of the judgment against K. Dart was not given notice of the motion for a receivership. In 4/08, the trial court granted plaintiffs' request for a receivership and appointed Woods as receiver. Later, the trial court entered an amended stipulated order of appointment, authorizing Woods to take possession of the property, keep, manage, and preserve it. Since the property was uninhabitable, Woods borrowed $20,000 to finance repairs. About a month before the receiver's appointment, K defaulted on the mortgage and Dart initiated foreclosure proceedings by advertisement in 4/08. At the 6/08 sheriff's sale, Dart purchased the property for $169,312.50, which was the amount due on its mortgage and obtained a sheriff's deed subject to the one-year redemption period. The next month Woods moved to void the sale arguing that Dart violated the court's receivership order. Dart intervened in the case. Dart received title to the property on 8/26/09. Woods moved to hold Dart liable for payment of the costs incurred by the receivership ($41,874.57). He argued that Dart had acquiesced and benefited from the receivership and he was entitled to reimbursement of his costs and fees from Dart. The trial court agreed and entered an order granting Woods a lien on the net proceeds of the sale of the property, which was given priority over Dart's preexisting mortgage. The Court of Appeals affirmed. The court held that assuming a receiver's lien postdates the mortgage subject to foreclosure under MCL 600.3236, as the receiver's lien did here, "it is clear that the receiver's interest under the lien will be subordinated to the interests of the purchaser and any prior lien holders." A mortgagee may waive its right of first priority satisfaction of its lien, but the waiver must be "explicitly and unequivocally given." The court reversed the judgment of the Court of Appeals imposing on Dart the costs of the receivership and remanded for entry of an order in Dart's favor.

The dissenting justices would hold that "a mortgagee may also waive its superior priority rights if the mortgagee acquiesces to and benefits from the receivership." In the justices' view "Bailey and Fisk indicate that although consent by the mortgagee is one method by which a receiver may obtain superior priority, acquiescence by a mortgagee is also sufficient to grant a receiver's expenses priority over a preexisting mortgage." The justices opined that at a minimum, Dart acquiesced to the receivership. Further, while Dart initiated a foreclosure by advertisement before it was aware of the receivership, after receiving actual notice of the receivership only three days later, Dart expressed its willingness to work with the receiver. Also, Dart benefited from the receiver's efforts to repair, preserve, and protect the property because the repairs increased the property's value. The justices would affirm the judgment of the Court of Appeals, because Dart waived its statutory right to superior priority under § 3236 since it had knowledge of the receivership, acquiesced to it, and benefited from the receiver's efforts to repair, preserve, and protect the property.

Full Text Opinion

Termination of Parental Rights

Issues: Termination under §§ 19b(3)(g) and (j); In re Sours; In re Trejo Minors; In re JK; In re Miller; The children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Jackson

e-Journal Number: 52257

Judge(s): Per Curiam – Donofrio, Ronayne Krause, and Boonstra

The court held that the trial court properly terminated the respondent-father's parental rights to the three minor children where the statutory grounds were established by clear and convincing evidence and termination was the children's best interests. The record evidence revealed that respondent abandoned his case services plan, stopped contacting his caseworkers, did not rectify his drinking problem, violated the law, and returned to jail while his children were in foster care. His case services plan was instituted to improve his parenting skills and prevent these destructive patterns from continuing, but he either could not or would not comply with his plan and truly benefit from it. "[A] parent's failure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." The court held that while respondent loved his children, his choices throughout the case did not show that he could put the needs of his children before his own and provide a safe, stable, and suitable home for them. Thus, by virtue of clear and convincing evidence, the court held that he failed to give the children proper care and custody, and no reasonable expectation existed that respondent would be able to do so within a reasonable time. Affirmed.

Full Text Opinion

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; In re Mason; The child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tyler

e-Journal Number: 52254

Judge(s): Per Curiam – Shapiro, Hoekstra, and Whitbeck

The court held that the trial court properly terminated the respondent-father's parental rights to the minor child where the statutory grounds were established by clear and convincing evidence and termination was the child's best interests. The minor child was born in 8/10 and removed in early September. At this time, respondent was incarcerated on a child support bench warrant. He admitted being arrested for DWI, his fourth drunk driving offense, and that he had a statewide pickup for child support arrearage. The trial court held a dispositional hearing on 9/30/10, and ordered respondent to adhere to the service plan and PAA drafted by the petitioner-DHS. The PAA called for drug screens, a substance abuse assessment and compliance with recommendations from the assessment, parenting skills training with the Infant Mental Health program, and visitation with the child. Respondent was released from jail on 10/13/10, and at the first review hearing in 12/10, he accepted assigned counsel. Regular reviews were held in February and 5/11, and a combination review/permanency planning hearing was held in 7/11. Respondent never obtained a substance abuse assessment as required by the PAA and attended only two sessions of parenting class and six out of 20 parenting time visits. He stated that he did not need the parenting class because he had raised four other children. He returned to jail in early 3/11, where he remained until the termination hearing in 9/11. While incarcerated, he completed a 4-session, 16-hour recovery program for substance abuse. DHS and the child's caretaker also arranged to have the child visit respondent in jail once a month. However, when he was granted work release, he quickly accepted the sheriff's statement that he could not have visits with the child. DHS and the caretaker later arranged with the sheriff's office to allow supervised visits at a coffee shop. The trial court found that during the time respondent was not incarcerated, his participation in court-ordered services was insufficient. "Failure to cooperate in a court-ordered service plan is evidence of neglect." Considering his history, the court found he could not provide a safe, nurturing home. Affirmed.

Full Text Opinion