• Contracts (1)
• Criminal Law (2)
• Cyber Law (1)
• Employment & Labor Law (1)
• Litigation (2)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Real Property (1)
• Tax (1)
• Termination of Parental Rights (1)

Contracts

 

Issues: Breach of contract claim premised on third-party beneficiary status; Whether plaintiffs (as the sellers of the pizza franchise) were third-party beneficiaries within the meaning of MCL 600.1405(1) of the financing agreement between defendant-Lotsadough and defendant-Comerica Bank; MCL 600.1405; Schmalfeldt v. North Pointe Ins. Co.; Kisiel v. Holz; Real Estate One v. Heller; Frick v. North Bank; Whether the trial court's grant of summary disposition was premature; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Boylan v. Fifty Eight Ltd. Liab. Co.; Whether the trial court properly denied plaintiffs leave to amend their complaint to add additional claims sounding in tortious interference against Comerica; "Futile" amendments; PT Today, Inc. v. Commissioner of Fin. & Ins. Servs.; The elements of tortious interference with a contractual agreement or business relationship; Dalley v. Dykema Gossett PLLC; "Per se" wrongful act; Prysak v. R L Polk Co.; Cedroni Assocs. v. Tomblinson, Harburn Assocs. Architects & Planners, Inc.; Dowerk v. Oxford Charter Twp.; Rinke v. Auto Moulding Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Trescone v. Lotsadough, Inc.

e-Journal Number: 52510

Judge(s): Per Curiam – Saad, Sawyer, and Cavanagh

 

The court held, inter alia, that the trial court correctly determined that the plaintiffs were not intended third-party beneficiaries of the financing agreement between the buyer and defendant-Comerica. Thus, the court affirmed the trial court's order granting Comerica summary disposition on plaintiffs' claim against it. The case arose from a failed commercial transaction for the sale of plaintiffs' pizza franchise. Plaintiffs asserted a breach of contract claim, premised on third-party beneficiary status allegedly conferred on plaintiffs by MCL 600.1405, against Comerica, the buyer's (defendant-Lotsadough) lender. At closing, Comerica refused to fund Lotsadough's loan to purchase the franchise. The essential facts were undisputed. The primary question presented was whether plaintiffs, as the sellers of the pizza franchise, were third-party beneficiaries, within the meaning of MCL 600.1405(1), of the financing agreement between Lotsadough and Comerica. To establish a claim as a third-party beneficiary, plaintiffs had to establish, under an objective standard and from the language of the contract itself, "that Comerica undertook a promise - to loan funds to the buyer upon, and subject to, the satisfaction of certain conditions - directly to plaintiffs or for plaintiffs' direct benefit." Plaintiffs argued that they were intended third-party beneficiaries of the commercial financing agreement between the buyer and Comerica "merely because Comerica was aware of plaintiffs' role as seller in the transaction for which the buyer sought financing, and because information in a closing statement for the sale of the pizza franchise indicated" that plaintiff-JNL Ventures "would be receiving a disbursement in excess of the loan amount." Plaintiffs did not allege that this transaction presented any circumstances atypical of the usual commercial transaction involving financing. They did "not point to any particular language in the contractual documents between the buyer and Comerica setting forth any direct promise to act, or refrain from acting, for plaintiffs' benefit. Simply stated, '[w]here a contract is primarily for the benefit of the contracting parties, the incidental benefit that a third person derives from the contract does not vest that person with the right to sue for breach of contract.'" It was indisputable that the financing agreement between Comerica and the buyer was primarily for the benefit of those parties, and while plaintiffs would have benefited incidentally from that contract, they did not establish any genuine issue of material fact, under an objective standard and from the form and meaning of the financing agreement itself, that Comerica made any promise to them, or for their direct benefit.

 

Criminal Law

 

Issues: Search and seizure; Interlocutory appeals of the trial court's denial of defendant-G's requests to suppress evidence based on an unconstitutional search and motion to dismiss and for an evidentiary hearing under the Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.) and the trial court's denial of defendant-E's motion to suppress evidence and dismiss based on an unconstitutional search; People v. Unger; People v. Sierb; People v. Hyde; People v. Talley; People v. Kaufman; Applicability of Franks v. Delaware; MCR 6.110(D); G's claim that the trial court should not have denied his motion to dismiss pursuant to the MMMA without holding an evidentiary hearing; MCL 333.26424; People v. Redden; People v. King; People v. Kolanek; E's claim that the trial court erred in denying his request to suppress evidence obtained from the search of his car; People v. Jones; United States v. Percival (7th Cir.)

Court: Michigan Supreme Court

Case Name: People v. Watkins

e-Journal Number: 52590

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

 

In an order in lieu of granting leave to appeal, the court reversed that part of the Court of Appeals judgment (see e-Journal # 49108 in the 7/18/11 edition) holding that a defendant who seeks to assert the affirmative defense under § 8 of the MMMA (MCL 333.26428) must comply with the requirements of § 4 (MCL 333.26424). The court remanded to the trial court for an evidentiary hearing at which the defendant may raise the affirmative defense under § 8 of the MMMA.

 

Issues: Prosecutorial misconduct; "Hearsay"; People v. McDaniel; People v. Yost; People v. Carines; MRE 801(a) and (c); People v. Stamper; People v. Bahoda; MRE 801(d)(1)(B); People v. Hill; People v. Lyon; Whether the prosecutor's closing argument denied defendant a fair trial; People v. Unger; People v. Seals; People v. Dobek; People v. McGhee; People v. Thomas; People v. Watson; People v. Howard; People v. Fields; Ineffective assistance of counsel; Whether the prosecutor disparaged defense counsel's argument; People v. Brown; People v. Kennebrew; People v. Matuszak; People v. Moorer

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dean

e-Journal Number: 52562

Judge(s): Per Curiam - Saad, Sawyer, and Cavanagh

 

The court affirmed the defendant's convictions of armed robbery and first-degree home invasion because the prosecutor did not deny him a fair trial as to alleged hearsay elicited from the investigating officer, did not bolster the officer's credibility as to the statements of a witness, did not disparage defense counsel, and counsel was not ineffective for failing to object to alleged prosecutorial misconduct. Defendant was arrested after his children's mother (B) notified police that a couple of weeks earlier she had overheard defendant with two friends plan a robbery and then saw them leave his house with two handguns and a shotgun. She also overheard them discuss the details of the robbery after they returned, including that no money was acquired but an Xbox controller was taken and the male victim was "pistol whipped" with a pistol-gripped shotgun. A search warrant later executed at defendant's home recovered a shotgun shell in a bedroom closet, a shotgun shell and pistol-gripped shotgun in the basement, and an Xbox controller. Defendant's friend, who allegedly participated in the robbery, was also located hiding in the basement, which could only be accessed through a hidden door located in the floor of a utility closet. On appeal, he argued, inter alia, that he did not receive a fair trial because the prosecutor elicited hearsay testimony from the investigating officer which impermissibly bolstered B's credibility. Defendant argued the officer's testimony constituted hearsay. The officer did not testify as to any statement made by B to him. Rather, he merely indicated that her account of the planned robbery was detailed and included details she provided in her court testimony. Further, the prosecutor did not engage in improper bolstering of B's testimony through his questioning by implying special knowledge not known to the jury. However, even if such implication was made here, defendant did not establish that reversal was warranted by plain error considering the strength of the evidence, including the shotgun shells and a pistol-gripped shotgun matching the description of the one used in the robbery that were recovered in defendant's house, as will as the Xbox controller. The court also held that the other issues defendant raised on appeal had no merit and affirmed his convictions and sentences.

 

Cyber Law

 

This summary also appears under Litigation

 

Issues: Whether "specific personal jurisdiction" existed over out-of-state defendants solely because they provided passwords to access online banking services to a handful of in-state residents; Bird v. Parsons; Whether personal jurisdiction over the defendants was proper as a matter of federal due process; Southern Mach. Co. v. Mohasco Indus., Inc.; The "purposeful availment" requirement; Burger King Corp. v. Rudzewicz; Neogen Corp. v. Neo Gen. Screening, Inc.; Whether the cause of action arose from defendants' activities in the forum state; Trademark infringement claim under the Lanham Act (15 USC § 1114(1)) and state law; 15 USC § 1119; Motion to dismiss under Fed.R.Civ.P. 12(b)(2)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Community Trust Bancorp, Inc. v. Community Trust Fin. Corp.

e-Journal Number: 52529

Judge(s): Cole, Donald, and Sargus

 

Noting that the plaintiff sought specific personal jurisdiction over the out-of-state defendants solely because they provided passwords to access online banking services to a handful of in-state residents, the court held that plaintiff was unable to meet the second requirement for personal jurisdiction - that the cause of action arose from defendants' activities in the forum state. Thus, the court reversed the district court's judgment finding personal jurisdiction over defendants. The facts of the case were not in dispute. Plaintiff was a Kentucky corporation providing banking and financial services. Since at least 1995, it has used the mark "COMMUNITY TRUST" to promote its services. It included this mark on its website since 1998. Defendants were Community Trust Financial Corporation, and two of its wholly-owned subsidiaries, Community Trust Bank and Community Trust Bank of Texas. The first two were Louisiana corporations, and the last was a Texas corporation. Defendants also provide banking and financial services, use the marks "COMMUNITY TRUST" and "COMMUNITY TRUST BANK," and display these marks on their website. The court noted that defendants' contacts with Kentucky were limited. They had branch offices exclusively in Texas, Louisiana, and Mississippi and limited their advertising and marketing campaigns to those states. They had no officers, directors, employees, agents, or any other physical presence in Kentucky. However, they did have customers who live in Kentucky. While accounts can only be opened in branch offices, nine account owners moved to Kentucky and continued to maintain their accounts from there. Three or four account owners, while living in Kentucky, requested passwords to access defendants' online banking website. Plaintiff alleged that defendants' use of the "COMMUNITY TRUST" mark was likely to confuse customers and lead customers to believe erroneously that plaintiff was affiliated with defendants' banking and financial services. Plaintiff brought a trademark infringement claim against defendants under the Lanham Act and state law. Plaintiff also raised a claim under § 1119, asserting that defendants' use of the marks constituted false designation of origin and requesting an order canceling their U.S. Service Mark Registration for the mark "COMMUNITY TRUST BANK." Defendants unsuccessfully moved to dismiss the complaint under Rule 12(b)(2) for lack of personal jurisdiction. The only issue the court considered was whether personal jurisdiction over defendants was proper as a matter of federal due process. The court concluded that it did not need to decide "whether the issuance of a handful of passwords constitutes purposeful availment so as to satisfy due process" because there was "no substantial connection between three or four Kentucky residents accessing their online banking and the underlying trademark infringement claim." The court concluded that assuming that granting passwords for online banking constitutes in-state activity, defendants' only activity in Kentucky was permitting a handful of residents to access their online banking website. This activity was, at best, "tangentially related" to the allegation that defendants' use of the plaintiff's trademark was confusing and may lead Kentucky residents to the inaccurate conclusion that the banks are affiliated. "It is not enough that there be some connection between the in-state activity and the cause of action - that connection must be substantial." Plaintiff failed to meet this standard.

 

Employment & Labor Law

 

Issues: Whether the current Plan language (independent of any ERISA requirements) entitled plaintiff-Corley to the value of his pre-amendment early retirement subsidy; Price v. Board of Trs. of the IN Laborer's Pension Fund; 26 CFR § 1.411(a)-11(a)(2); Whether the Committee's calculation of Corley's lump-sum payment violated an ERISA provision known as the "anti-cutback rule"; 29 USC § 1054(g); Daft v. Advest, Inc.; § 1002(23)(A); Cattin v. General Motors Corp.; § 1054(g)(2); § 1054(g)(2)(A) & (B); Rybarczyk v. TRW, Inc.; Whether the district court properly held that the statute of limitations barred the claims of eight plaintiffs under § 1132(a)(1)(B); Redmon v. Sud-Chemie Inc. Ret. Plan for Union Employees; Whether Corley's claim was timely because it was "equitably tolled" while he pursued administrative remedies; Hill v. Blue Cross & Blue Shield of MI

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Fallin v. Commonwealth Indus., Inc.

e-Journal Number: 52528

Judge(s): Kethledge, Siler, and Graham

 

The court held, inter alia, that the Benefits Committee's interpretation of the Plan was not arbitrary or capricious. However, under the anti-cutback rule, the Plan could not reduce plaintiff-Corley's benefit, and it was not clear whether the Plan actually reduced his benefits. Thus, the court affirmed the district court's order dismissing the claims of all plaintiffs but Corley, vacated the district court's order granting defendants summary judgment on Corley's claim, and remanded the case. Plaintiffs are retirees who received benefits under Commonwealth Industries' pension plan. They alleged that the Plan underpaid them, in violation of the ERISA, when it did not include a subsidy for early retirement in its benefit calculations. Corley argued that the current Plan language, independent of any ERISA requirements, entitled him to the value of his pre-amendment early retirement subsidy. The Plan provides a default early-retirement benefit equal to "the amount of the Normal Retirement Benefit . . . reduced by 5/12 of 1% for each month" that the participant is younger than 62. The benefit cannot "be less than the Actuarial Equivalent of the Participant's Accrued Benefit." The Plan defines "Accrued Benefit" as "[t]he benefit to which the Participant would be entitled under the Normal Form commencing at age 65 and computed under the provisions of Section 4.1[,]" which defines the Normal Retirement Benefit. Corley interpreted these provisions to mean that the Plan was required to pay him the value of the pre-amendment early-retirement subsidy. The Committee had discretion in interpreting the Plan. Thus, the court would overturn the Committee's interpretation only if it was arbitrary or capricious. The Committee interpreted the Plan's early-retirement provisions to mean that a participant would get early-retirement benefits calculated according to the default formula, unless the default provided less than an actuarial equivalent of the benefits he would get if he waited until normal retirement age. The court held that this interpretation "flows naturally when one reads the provisions together." Also, the Treasury Department has promulgated a regulation that leads to the same conclusion. It gives plans two options - If a plan specifically provides that the lump-sum payment "is the present value of the subsidized early retirement annuity benefit[,]" then the plan must include the value of the early-retirement subsidy in the payment. But if a plan instead defines the early-retirement benefit as "the present value of the normal retirement annuity benefit" - as this plan does - then it need not include the subsidy. The court held that the Committee's interpretation comported with this regulation. Corley also argued that the Committee's calculation of his lump-sum payment violated an ERISA provision known as the anti-cutback rule. The court held that Rybarczyk controlled. "That Corley satisfied the service condition before the plan was amended, and the age condition afterward, was enough for his subsidy to be accrued." Thus, under the anti-cutback rule, the Plan could not reduce that benefit. However, neither party explained the calculations the Plan was supposed to perform or those it did perform. "On remand, the district court should consider whether the benefits payable to Corley under the relevant versions of the Plan constituted 'an early retirement benefit' or 'a retirement-type subsidy' which would be protected from elimination or reduction, or 'an optional form of benefit' which would only be protected from elimination."

 

Litigation

 

This summary also appears under Cyber Law

 

Issues: Whether "specific personal jurisdiction" existed over out-of-state defendants solely because they provided passwords to access online banking services to a handful of in-state residents; Bird v. Parsons; Whether personal jurisdiction over the defendants was proper as a matter of federal due process; Southern Mach. Co. v. Mohasco Indus., Inc.; The "purposeful availment" requirement; Burger King Corp. v. Rudzewicz; Neogen Corp. v. Neo Gen. Screening, Inc.; Whether the cause of action arose from defendants' activities in the forum state; Trademark infringement claim under the Lanham Act (15 USC § 1114(1)) and state law; 15 USC § 1119; Motion to dismiss under Fed.R.Civ.P. 12(b)(2)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Community Trust Bancorp, Inc. v. Community Trust Fin. Corp.

e-Journal Number: 52529

Judge(s): Cole, Donald, and Sargus

 

Noting that the plaintiff sought specific personal jurisdiction over the out-of-state defendants solely because they provided passwords to access online banking services to a handful of in-state residents, the court held that plaintiff was unable to meet the second requirement for personal jurisdiction - that the cause of action arose from defendants' activities in the forum state. Thus, the court reversed the district court's judgment finding personal jurisdiction over defendants. The facts of the case were not in dispute. Plaintiff was a Kentucky corporation providing banking and financial services. Since at least 1995, it has used the mark "COMMUNITY TRUST" to promote its services. It included this mark on its website since 1998. Defendants were Community Trust Financial Corporation, and two of its wholly-owned subsidiaries, Community Trust Bank and Community Trust Bank of Texas. The first two were Louisiana corporations, and the last was a Texas corporation. Defendants also provide banking and financial services, use the marks "COMMUNITY TRUST" and "COMMUNITY TRUST BANK," and display these marks on their website. The court noted that defendants' contacts with Kentucky were limited. They had branch offices exclusively in Texas, Louisiana, and Mississippi and limited their advertising and marketing campaigns to those states. They had no officers, directors, employees, agents, or any other physical presence in Kentucky. However, they did have customers who live in Kentucky. While accounts can only be opened in branch offices, nine account owners moved to Kentucky and continued to maintain their accounts from there. Three or four account owners, while living in Kentucky, requested passwords to access defendants' online banking website. Plaintiff alleged that defendants' use of the "COMMUNITY TRUST" mark was likely to confuse customers and lead customers to believe erroneously that plaintiff was affiliated with defendants' banking and financial services. Plaintiff brought a trademark infringement claim against defendants under the Lanham Act and state law. Plaintiff also raised a claim under § 1119, asserting that defendants' use of the marks constituted false designation of origin and requesting an order canceling their U.S. Service Mark Registration for the mark "COMMUNITY TRUST BANK." Defendants unsuccessfully moved to dismiss the complaint under Rule 12(b)(2) for lack of personal jurisdiction. The only issue the court considered was whether personal jurisdiction over defendants was proper as a matter of federal due process. The court concluded that it did not need to decide "whether the issuance of a handful of passwords constitutes purposeful availment so as to satisfy due process" because there was "no substantial connection between three or four Kentucky residents accessing their online banking and the underlying trademark infringement claim." The court concluded that assuming that granting passwords for online banking constitutes in-state activity, defendants' only activity in Kentucky was permitting a handful of residents to access their online banking website. This activity was, at best, "tangentially related" to the allegation that defendants' use of the plaintiff's trademark was confusing and may lead Kentucky residents to the inaccurate conclusion that the banks are affiliated. "It is not enough that there be some connection between the in-state activity and the cause of action - that connection must be substantial." Plaintiff failed to meet this standard.

 

This summary also appears under Real Property

 

Issues: Process for approving the defendant-condo association's annual budget and the levying of assessments; Whether the Consolidating Master Deed and 2010 Bylaws were void; Whether removing the requirement that co-owners approve the annual budget was a "material alteration or change" in the co-owners' rights; Contract interpretation; Rossow v. Brentwood Farms Dev.; Construing the contract as a whole; Smith v. Smith; Avoiding an interpretation that would render a provision nugatory; Woodington v. Shokoohi; Injunctive relief; Whether the requested injunctive relief was "moot"; Tenneco, Inc. v. Amerisure Mut. Ins. Co.; Whether the trial court should have held an evidentiary hearing; Campau v. McMath; Whether the injunctive order met the requirements of MCR 3.310(C); "Harmless error"; MCR 2.613(A); Failure to preserve an issue; Booth Newspapers, Inc. v. University of MI Bd. of Regents; Fast Air, Inc. v. Knight; Resolution of an issue necessary to a proper determination of the case; Laurel Woods Apts. v. Roumayah; Abandoning an issue; Woods v. SLB Prop. Mgmt., LLC

Court: Michigan Court of Appeals (Unpublished)

Case Name: Pole v. Sterling Woods Condo. Ass'n

e-Journal Number: 52398

Judge(s): Per Curiam – K.F. Kelly, Wilder, and Boonstra

 

The court held, inter alia, that by removing the requirement that the co-owners approve the annual budget, the developer took away their check on the defendant-condo association's power. Thus, the amendment to the Bylaws "materially altered the rights of the co-owners and needed to be approved by two thirds of all co-owners as required by the Master Deed." The court concluded that the trial court properly granted the plaintiffs-co-owners summary disposition. However, the court vacated the trial court's order in two respects because the requested relief was moot. The dispute centered on the process for approving the association's annual budget and the levying of assessments. The 2000 Bylaws were recorded with the Master Deed. Article II, § 3(a)(2) of the 2000 Bylaws provided that the co-owners must approve the association's proposed annual budget "by an affirmative vote of at least two-thirds of all Co-owners of Units in the Project, before an annual assessment may be levied or collected by the Association." However, on 2/26/10, the developer recorded a document entitled "Consolidating Master Deed," which stated that it superseded and replaced the Master Deed and the 2000 Bylaws. A new set of Bylaws (the 2010 Bylaws) recorded with the Consolidating Master Deed removed the requirement that co-owners approve the annual budget before the association can levy and collect assessments. In 5/10, plaintiffs sued for injunctive relief. They alleged, inter alia, that the association's board of directors failed to obtain co-owner approval of the 2010 budget, was trying to forgo approval of the 2011 budget, and despite not having a properly approved budget, the association spent money, incurred debt, and tried to levy assessments against the co-owners. The court noted that the Master Deed and 2000 Bylaws were governed by the rules of contract interpretation. While Article II, § 3(c) supported the association's argument that the co-owners' rights were not materially altered because the board always had the authority to levy assessments without co-owner approval, that provision had to be read together with Article II, § 3(a). "Section 3(a)(2) specifically states that the annual budget must be approved by the co-owners 'before an annual assessment may be levied or collected by the Association.'" Accepting the association's argument would render Article II, § 3(a) nugatory, and such an interpretation must be avoided. "A more reasonable interpretation that harmonizes the competing provisions is that co-owner approval of the annual budget is required as provided for in Article II, section 3(a) of the 2000 Bylaws." If the assessments levied pursuant to the approved budget prove to be insufficient to cover the condo project's operational costs, then the association has the authority to levy additional assessments as needed. However, the starting point "must be a co-owner approved budget to determine what maintenance and improvements will be undertaken by the Association. This provides a check on the Association's power and only allows it to undertake projects that were budgeted for." The court vacated the trial court's order to the extent that it required the association to (1) hold a meeting for the purpose of approving the 2010 and 2011 budgets and (2) hold a special meeting for the purpose of removing the board of directors elected in 2009. The association was no longer operating under the 2010 budget and a new board was elected before the trial court issued its opinion and order.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the defendant-police officer was entitled to governmental immunity for the intentional tort of assault and battery claim; Odom v. Wayne Cnty.; "Good faith"; Brosseau v. Haugen; "Gross negligence"; Maiden v. Rozwood; VanVorous v. Burmeister

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Latits v. Phillips

e-Journal Number: 52507

Judge(s): Per Curiam – Saad, Sawyer, and Cavanagh

 

Concluding, inter alia, that summary disposition should have been granted to the defendant-police officer based on governmental immunity, the court reversed the trial court's denial of his motion for summary disposition and remanded to the trial court with instructions to enter an order of summary disposition in his favor. The events that gave rise to the case began with a routine traffic stop by Officer J. The decedent, Latits, initially stopped as directed. When he opened his glove compartment, presumably to retrieve his registration and proof of insurance, J saw a bag of marijuana. J ordered Latits out of the vehicle. Instead of complying, he took off in his vehicle, with J giving chase. J and three other officers, including defendant, attempted to box in the Latits vehicle. Latits was still trying to evade capture and drive off, including ramming one of the patrol cars. Defendant left his vehicle and approached the Latits vehicle from the passenger side with his weapon drawn. As Latits continued to try to evade capture by driving backwards, defendant fired four times. The Latits vehicle came to a stop. Latits was arrested and transported to the hospital, where he later died from three gunshot wounds to the arm, chest and abdomen. The autopsy also disclosed the presence of alcohol and hydrocodone in Latits' system. As to the assault and battery claim, the plaintiff-PR conceded the first and third prongs of the governmental immunity test, but argued that defendant was not acting in good faith. The substance of plaintiff's argument was that defendant exercised poor judgment or was mistaken as to his justification in using deadly force. Even if the court were to agree with plaintiff, that did not affect the immunity analysis. As the Supreme Court explained in Odom, showing that an officer made a mistake does not defeat immunity. While "plaintiff would ultimately have to prove that defendant was not justified in using deadly force in order to prevail at trial on her assault and battery claim, such a showing is inadequate to defeat the defense of governmental immunity. So long as defendant can show that he was acting in a good-faith belief that he was acting properly in using deadly force, he is entitled to the protections of governmental immunity regardless whether he was correct in that belief." There was no evidence showing that defendant did not have such a belief. His stated reason for firing his weapon was to ensure his safety and the safety of others. The facts supported the conclusion that he would have such a reason and plaintiff presented no evidence to establish any other motivation. Defendant testified in his deposition that he was informed that Latits had rammed and attempted to ram police cars, that there had been a chase, and he had engaged in erratic driving. That defendant actually would have had this belief was supported not only by his own testimony, but by the statements of the other officers involved as recorded in the police reports and to which they would presumably testify at trial. Plaintiff pointed to no evidence supporting a finding of malice. Plaintiff spent a good portion of her argument on this point discussing whether the use of deadly force was justified. "But the standard in evaluating the governmental immunity question is not whether, when viewing the facts objectively with the benefit of hindsight, the use of deadly force was justified." Rather, as discussed in Odom, "the standard is a subjective one from the perspective of defendant with respect to whether he was acting in good faith. Whether the legal standards for acting in self-defense or defense of others was met is not controlling. Whether the information relayed to defendant by the other officers was accurate is not relevant. What is relevant was whether defendant, in good faith, believed that he needed to fire his sidearm to protect himself and others." The closest that plaintiff came to defeating defendant's claim of acting in good faith was that three rounds he apparently fired were unaccounted for in the time frame. He maintained that he fired a single, four-round burst at Latits. Yet seven shell casings were recovered at the scene. But because there was no explanation of the extra three rounds being fired, plaintiff could "merely speculate as to when those rounds were fired, whether they are the rounds that struck Latits, and what defendant's motivation was in firing those rounds."

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Whether the defendant-police officer was entitled to governmental immunity for the intentional tort of assault and battery claim; Odom v. Wayne Cnty.; "Good faith"; Brosseau v. Haugen; "Gross negligence"; Maiden v. Rozwood; VanVorous v. Burmeister

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Latits v. Phillips

e-Journal Number: 52507

Judge(s): Per Curiam – Saad, Sawyer, and Cavanagh

 

Concluding, inter alia, that summary disposition should have been granted to the defendant-police officer based on governmental immunity, the court reversed the trial court's denial of his motion for summary disposition and remanded to the trial court with instructions to enter an order of summary disposition in his favor. The events that gave rise to the case began with a routine traffic stop by Officer J. The decedent, Latits, initially stopped as directed. When he opened his glove compartment, presumably to retrieve his registration and proof of insurance, J saw a bag of marijuana. J ordered Latits out of the vehicle. Instead of complying, he took off in his vehicle, with J giving chase. J and three other officers, including defendant, attempted to box in the Latits vehicle. Latits was still trying to evade capture and drive off, including ramming one of the patrol cars. Defendant left his vehicle and approached the Latits vehicle from the passenger side with his weapon drawn. As Latits continued to try to evade capture by driving backwards, defendant fired four times. The Latits vehicle came to a stop. Latits was arrested and transported to the hospital, where he later died from three gunshot wounds to the arm, chest and abdomen. The autopsy also disclosed the presence of alcohol and hydrocodone in Latits' system. As to the assault and battery claim, the plaintiff-PR conceded the first and third prongs of the governmental immunity test, but argued that defendant was not acting in good faith. The substance of plaintiff's argument was that defendant exercised poor judgment or was mistaken as to his justification in using deadly force. Even if the court were to agree with plaintiff, that did not affect the immunity analysis. As the Supreme Court explained in Odom, showing that an officer made a mistake does not defeat immunity. While "plaintiff would ultimately have to prove that defendant was not justified in using deadly force in order to prevail at trial on her assault and battery claim, such a showing is inadequate to defeat the defense of governmental immunity. So long as defendant can show that he was acting in a good-faith belief that he was acting properly in using deadly force, he is entitled to the protections of governmental immunity regardless whether he was correct in that belief." There was no evidence showing that defendant did not have such a belief. His stated reason for firing his weapon was to ensure his safety and the safety of others. The facts supported the conclusion that he would have such a reason and plaintiff presented no evidence to establish any other motivation. Defendant testified in his deposition that he was informed that Latits had rammed and attempted to ram police cars, that there had been a chase, and he had engaged in erratic driving. That defendant actually would have had this belief was supported not only by his own testimony, but by the statements of the other officers involved as recorded in the police reports and to which they would presumably testify at trial. Plaintiff pointed to no evidence supporting a finding of malice. Plaintiff spent a good portion of her argument on this point discussing whether the use of deadly force was justified. "But the standard in evaluating the governmental immunity question is not whether, when viewing the facts objectively with the benefit of hindsight, the use of deadly force was justified." Rather, as discussed in Odom, "the standard is a subjective one from the perspective of defendant with respect to whether he was acting in good faith. Whether the legal standards for acting in self-defense or defense of others was met is not controlling. Whether the information relayed to defendant by the other officers was accurate is not relevant. What is relevant was whether defendant, in good faith, believed that he needed to fire his sidearm to protect himself and others." The closest that plaintiff came to defeating defendant's claim of acting in good faith was that three rounds he apparently fired were unaccounted for in the time frame. He maintained that he fired a single, four-round burst at Latits. Yet seven shell casings were recovered at the scene. But because there was no explanation of the extra three rounds being fired, plaintiff could "merely speculate as to when those rounds were fired, whether they are the rounds that struck Latits, and what defendant's motivation was in firing those rounds."

 

Real Property

 

This summary also appears under Litigation

 

Issues: Process for approving the defendant-condo association's annual budget and the levying of assessments; Whether the Consolidating Master Deed and 2010 Bylaws were void; Whether removing the requirement that co-owners approve the annual budget was a "material alteration or change" in the co-owners' rights; Contract interpretation; Rossow v. Brentwood Farms Dev.; Construing the contract as a whole; Smith v. Smith; Avoiding an interpretation that would render a provision nugatory; Woodington v. Shokoohi; Injunctive relief; Whether the requested injunctive relief was "moot"; Tenneco, Inc. v. Amerisure Mut. Ins. Co.; Whether the trial court should have held an evidentiary hearing; Campau v. McMath; Whether the injunctive order met the requirements of MCR 3.310(C); "Harmless error"; MCR 2.613(A); Failure to preserve an issue; Booth Newspapers, Inc. v. University of MI Bd. of Regents; Fast Air, Inc. v. Knight; Resolution of an issue necessary to a proper determination of the case; Laurel Woods Apts. v. Roumayah; Abandoning an issue; Woods v. SLB Prop. Mgmt., LLC

Court: Michigan Court of Appeals (Unpublished)

Case Name: Pole v. Sterling Woods Condo. Ass'n

e-Journal Number: 52398

Judge(s): Per Curiam – K.F. Kelly, Wilder, and Boonstra

 

The court held, inter alia, that by removing the requirement that the co-owners approve the annual budget, the developer took away their check on the defendant-condo association's power. Thus, the amendment to the Bylaws "materially altered the rights of the co-owners and needed to be approved by two thirds of all co-owners as required by the Master Deed." The court concluded that the trial court properly granted the plaintiffs-co-owners summary disposition. However, the court vacated the trial court's order in two respects because the requested relief was moot. The dispute centered on the process for approving the association's annual budget and the levying of assessments. The 2000 Bylaws were recorded with the Master Deed. Article II, § 3(a)(2) of the 2000 Bylaws provided that the co-owners must approve the association's proposed annual budget "by an affirmative vote of at least two-thirds of all Co-owners of Units in the Project, before an annual assessment may be levied or collected by the Association." However, on 2/26/10, the developer recorded a document entitled "Consolidating Master Deed," which stated that it superseded and replaced the Master Deed and the 2000 Bylaws. A new set of Bylaws (the 2010 Bylaws) recorded with the Consolidating Master Deed removed the requirement that co-owners approve the annual budget before the association can levy and collect assessments. In 5/10, plaintiffs sued for injunctive relief. They alleged, inter alia, that the association's board of directors failed to obtain co-owner approval of the 2010 budget, was trying to forgo approval of the 2011 budget, and despite not having a properly approved budget, the association spent money, incurred debt, and tried to levy assessments against the co-owners. The court noted that the Master Deed and 2000 Bylaws were governed by the rules of contract interpretation. While Article II, § 3(c) supported the association's argument that the co-owners' rights were not materially altered because the board always had the authority to levy assessments without co-owner approval, that provision had to be read together with Article II, § 3(a). "Section 3(a)(2) specifically states that the annual budget must be approved by the co-owners 'before an annual assessment may be levied or collected by the Association.'" Accepting the association's argument would render Article II, § 3(a) nugatory, and such an interpretation must be avoided. "A more reasonable interpretation that harmonizes the competing provisions is that co-owner approval of the annual budget is required as provided for in Article II, section 3(a) of the 2000 Bylaws." If the assessments levied pursuant to the approved budget prove to be insufficient to cover the condo project's operational costs, then the association has the authority to levy additional assessments as needed. However, the starting point "must be a co-owner approved budget to determine what maintenance and improvements will be undertaken by the Association. This provides a check on the Association's power and only allows it to undertake projects that were budgeted for." The court vacated the trial court's order to the extent that it required the association to (1) hold a meeting for the purpose of approving the 2010 and 2011 budgets and (2) hold a special meeting for the purpose of removing the board of directors elected in 2009. The association was no longer operating under the 2010 budget and a new board was elected before the trial court issued its opinion and order.

 

Tax

 

Issues: Challenge to the penalties imposed on the petitioner for non-payment of income taxes; The Revenue Act (MCL 205.1 et seq.); MCL 205.23(3)-(5); MCL 205.22(1); Subject-matter jurisdiction; MCR 2.116(C)(4); Whether the "pre-payment provision" of MCL 205.22(1) violates the state and federal Due Process Clause; By Lo Oil Co. v. Department of Treasury; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; McKesson Corp. v. Division of Alcoholic Beverages & Tobacco; English v. Blue Cross Blue Shield; Review of Michigan Tax Tribunal (MTT) decisions; Toaz v. Department of Treasury

Court: Michigan Court of Appeals (Unpublished)

Case Name: Anderson v. Department of Treasury

e-Journal Number: 52418

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

 

The court held that MCL 205.22(1) does not violate the state or federal Due Process Clause because it gives taxpayers the opportunity to be heard, and "the state has a legitimate interest in the prompt payment of taxes such that it can condition a hearing on the prepayment of uncontested taxes." Thus, when the petitioner failed to first pay the uncontested portion of the tax assessments at issue, he failed to invoke the MTT's subject-matter jurisdiction to hear his appeal. The court concluded that the MTT properly granted the respondent's motions for summary disposition under MCR 2.116(C)(4). Respondent issued assessments to petitioner for unpaid income tax for the 2006-2009 tax years. Not including interest and penalties, he owed $43,903 in unpaid income tax. Respondent also assessed $10,975.75 in penalties. On 1/19/11, petitioner appealed the assessments to the MTT and challenged the penalties. He did not contest the tax liabilities - he limited his petition to challenging the penalties imposed for non-payment. Petitioner acknowledged that he had not yet paid the tax liabilities, but stated that he was working with respondent to arrange an installment agreement. He alleged that he was not liable for the penalties because his wife failed to file state tax returns, she was the subject of a criminal investigation for this failure, and that the Michigan State Police determined that petitioner had no knowledge of her failure to file the returns. Petitioner indicated that his wife handled all financial matters, both business and personal. He acknowledged that MCL 205.22(1) requires that the "uncontested portion of an assessment . . . shall be paid as a prerequisite to appeal," but he argued that this requirement deprived him of due process. However, the court noted that petitioner was given the opportunity to be heard and had two opportunities to contest the challenged portion of the assessment. Before respondent issues a final assessment, it must submit a letter of inquiry or notice of intent to assess, and it must inform the taxpayer, inter alia, of the taxpayer's right to an informal conference where he or she can challenge the contested amounts of the assessment. Petitioner did not indicate whether he requested an informal conference before respondent issued the final assessments. Regardless of whether he sought an informal conference, he had an opportunity to be heard after respondent issued the final assessments. He had the opportunity to contest the assessment before the MTT or before the court of claims pursuant to MCL 205.22(1). Thus, the court concluded that the tax scheme provides taxpayers such as petitioner a meaningful opportunity to be heard both before and after respondent enters a final assessment and satisfies the "'fundamental requirement of due process.'" Further, the U.S. Supreme Court, in McKesson, "articulated that a state can condition the right to a hearing on a taxpayer's pre-payment of taxes." The court also noted that due process is similarly defined in both the state and federal constitutions. Affirmed.

 

Termination of Parental Rights

 

Issues: Jurisdiction over the minor child; In re BZ; The "doctrine of anticipatory neglect"; In re Gazella; In re Powers; Whether the petitioner-DHS allegedly violated its own policies and procedures and the law by filing a delayed petition for the trial court to take jurisdiction over the minor child and for the termination of the respondent-mother's parental rights to the child; "Plain error" review; In re Williams; Due process; In re Beck; In re Rood; Whether the trial court violated respondent's right to due process of law by allegedly allowing "hearsay" testimony into evidence during the adjudication; Evidentiary rulings; Michigan Dep't of Transp. v. Haggerty Corridor Partners Ltd. P'ship; In re CR; MRE 801(c); Whether the trial court allowed the "speculative" testimony of a psychologist into evidence during the adjudicative phase of the proceedings; Failure to brief an issue on appeal; State Treasurer v. Sprague; Applicability of Matter of Hurlbut; Abandonment of issue

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Palacios

e-Journal Number: 52522

Judge(s): Per Curiam – Gleicher, Owens, and Boonstra

 

The court held, inter alia, that the respondent-mother failed to show that the trial court clearly erred by exercising jurisdiction over the minor child based on the doctrine of anticipatory neglect. Thus, the court affirmed the trial court's termination of her parental rights to the child. Respondent argued that the trial court erred in finding by a preponderance of the evidence that the child came within its jurisdiction. Her parental rights to her other child, AJ (the child's sister), were previously terminated in 12/10 because she failed to complete and benefit from services pursuant to a PAA. Respondent was supposed to comply with services to aid her with parenting skills and therapy for her anger management. She was supposed to obtain stable housing and a legal source of income. During the proceedings as to AJ, respondent completed parenting classes through a program. However, she was diagnosed as mildly mentally retarded, which is why she was referred for services. Respondent's compliance with the services was inconsistent and she had not successfully completed them at the time her parental rights as to AJ were terminated. DHS did not believe that she would benefit from additional services. DHS also believed that there was a substantial risk for harm of the child in this case if the child was returned to her care because there was no evidence that any circumstances had changed since her parental rights were terminated as to AJ. Also, there was concern about respondent's disability and that she was not able to meet the special needs of the child, who has sickle cell anemia. While in respondent's care, when the child was two months old, the child stopped gaining weight. When the child was three months old she started gaining weight again, but never caught back up with the normal weight range for a child her age. However, to the best of DHS's knowledge, respondent did have housing at the time of trial. The trial court exercised jurisdiction over the child based on the doctrine of anticipatory neglect. The trial court did not base its finding of anticipatory neglect solely on respondent's failure to complete the services pursuant to the previous proceedings involving AJ - it exercised jurisdiction over the child and found anticipatory neglect based on all of the evidence, including that respondent had failed to properly care for AJ. The trial court entered an order exercising jurisdiction over the child pursuant to MCL 712A.2(b), respondent's "failure to provide, when able to do so, support, education, medical, surgical, or other necessary care for health or morals."

 

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