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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published).

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Cases appear under the following practice areas:

Constitutional Law (1)
Contracts (2)
Criminal Law (2)
Employment & Labor Law (1)
Insurance (1)
Tax (2)
Termination of Parental Rights (2)

Constitutional Law

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Issues: Alleged violation of the plaintiffs' Fourth and Fourteenth Amendment rights by the defendants-deputies related to a repossession; Qualified immunity; Harlow v. Fitzgerald; Anderson v. Creighton; Pearson v. Callahan; Aldini v. Johnson; Whether the deputies' participation in the repossession transformed it into an "unreasonable seizure"; Soldal v. Cook Cnty.; MCL 440.9609(2); United States v. Coleman; "State action"; Menchaca v. Chrysler Credit Corp. (5th Cir); Blum v. Yaretsky; Barrett v. Harwood (2nd Cir.); Cochran v. Gilliam; Haverstick v. Financial Fed. Credit, Inc.; "Reasonableness"; Applicability of the Heck v. Humphrey doctrine; Whether the constitutional right was "clearly established"; Long v. Norris; Saylor v. Board of Educ.; Hope v. Pelzer; Claim alleging a conspiracy to violate plaintiffs' constitutional rights; Hooks v. Hooks; Establishing an agreement among conspirators; Spadafore v. Gardner; Re/Max Int'l, Inc. v. RealtyOne, Inc.; Whether the court had jurisdiction to hear the deputies' cross-appeal; Wheeler v. City of Lansing; Camreta v. Greene

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Hensley v. Gassman

e-Journal Number: 52614

Judge(s): Quist, Batchelder, and McKeague

The court held that the plaintiffs established a Fourth Amendment violation as a matter of law and that the defendants-deputies should have known that their conduct (as shown in the record and viewed in the light most favorable to plaintiffs) violated plaintiffs' clearly established constitutional rights. Thus, the court reversed the district court's order granting the deputies summary judgment on the Fourth Amendment claim based on qualified immunity and vacated the part of the district court's order denying plaintiffs' summary judgment motion on that claim. The court also dismissed the deputies' cross-appeal for lack of jurisdiction, affirmed the part of the district court's order granting the defendants summary judgment on the § 1983 conspiracy claim, vacated the district court's order declining supplemental jurisdiction over plaintiffs' state law claims, and remanded. The court concluded that the deputies' actions between the time they arrived and when plaintiff-Sheila Hensley got into the car "were more than mere police presence and reflect circumstances other courts have found indicative of state action" - (1) they arrived at plaintiffs' home with, and at the request of, defendant-Gassman (the repo-man), (2) defendant-Deputy Scott ordered plaintiff-Hensley Jr. to move from between the car and the tow truck, as Hensley Jr. was trying to thwart the repossession, (3) the deputies ignored Hensley Jr.'s demands to leave the property, (4) defendant-Deputy Gilbert told Hensley Jr. that Gassman was taking the car, and (5) Scott ignored both Sheila's protest and her explanation (the payments were up to date and the car was not supposed to be repossessed, which was accurate) and told her that Gassman was still going to take the car. The deputies conceded that Scott's act of ordering Gassman to tow the car to the road, which the deputies claimed was necessary to resolve the situation, was state action. "More importantly, although the Deputies do not expressly concede the point, it cannot be reasonably disputed that their conduct of breaking the car window, removing Sheila, and ordering her to remove her belongings from the car was state action. Equally clear is that this conduct was not only active participation, but was instrumental to Gassman's success in completing the repossession." Sheila asserted her right to object not only through words, but by physically taking control of the car. "At that point, Gassman's right to pursue his self-help remedy terminated, and he was required to cease the repossession." The deputies' subsequent actions "resolved the stalemate in favor of Gassman - the party neither factually nor legally entitled to" the car. As to whether the seizure was unreasonable, the court noted that the deputies knew - (1) the repossession was a private civil matter, (2) Gassman claimed that he was authorized to repossess the car, (3) Sheila disputed his authority to take the car and gave a specific reason why the repossession should not occur, and (4) the deputies lacked any evidence substantiating Gassman's claim of authority to repossess the car. "Given these undisputed facts, a reasonable trier of fact could certainly conclude that the seizure was unreasonable." As to whether the right was clearly established, the court noted that the U.S. Supreme Court's decision in Soldal, decided in 1992, confirmed that "state actors violate the Fourth Amendment by taking an active role in private evictions and repossessions when there is no apparent legal basis for such action."

Full Text Opinion

Contracts

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This summary also appears under Insurance

Issues: Whether the employee-theft clause entitled the plaintiff-Tooling, Manufacturing & Technologies Association (TMTA) to recover under the CrimeShield Policy (the Policy); Defoe v. Spiva; Diversity jurisdiction; Corrigan v. U.S. Steel Corp.; Garden City Osteopathic Hosp. v. HBE Corp.; Consideration of Michigan appellate court opinions; Ziegler v. IBP Hog Mkt., Inc.; Insurance policy interpretation; Citizens Ins. Co. v. Pro-Seal Serv. Group, Inc.; Auto-Owners Ins. Co. v. Churchman; Heniser v. Frankenmuth Mut. Ins. Co.; Whether the TMTA Insurance Agency (Agency) was covered by the Policy; Whether the employee theft provision covered the TMTA's claims; "Directly," "direct," and "direct loss" defined; "Direct is direct" approach; "Proximate cause" approach; Whether the court should apply the "proximate cause" definition for "directly"; Direct Mtg. Corp. v. National Union Fire Ins. Co. (D UT); Fireman's Fund Ins. Co. v. Special Olympics Int'l, Inc. (D MA); Massachusetts Mut. Life Ins. Co. v. Certain Underwriters at Lloyd's of London (DE Ch.); Vons Cos., Inc. v. Federal Ins. Co. (9th Cir.); Acorn Inv. Co. v. Michigan Basic Prop. Ins. Ass'n (Unpub. MI App.); Whether Acorn was distinguishable; Effect of the fact the pilfering employee owed a fiduciary duty to both the TMTA and the Agency

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Tooling, Mfg., & Tech. Ass'n v. Hartford Fire Ins. Co.

e-Journal Number: 52613

Judge(s): Batchelder and Norris (Stranch joined in Sections I & II.A.); Concurring in part, Dissenting in part - Stranch

In an issue of first impression, the court declined to apply the "proximate cause" definition for "directly" because it found that the "direct is direct" approach more persuasive. The court held that as the Agency was a separate entity from the insured-TMTA, both legally and for the purposes of the Policy, the employee's theft of commissions intended for the Agency did not directly result in a loss to TMTA - there was an intermediate step between his theft and TMTA's loss, no matter how closely aligned the Agency and TMTA were. Thus, the court held that the Policy did not show that the parties intended to cover the TMTA's losses due to the employee's misdirection of Agency commissions. Concluding that it could not consider the Agency a party directly covered by the Policy and the Policy did not provide for the TMTA to recover funds that were diverted from the Agency, the court held that there was no breach of the insurance contract. The insurance policy at issue was a type of employee fidelity policy designed to transfer the risk of employee theft from the TMTA to defendant-Hartford (the insurer). "The TMTA's decision to insure against employee theft was prescient - almost immediately after the parties signed the Policy a TMTA employee began diverting funds into his own accounts that would have otherwise, in the fullness of time, accrued to the TMTA." The problem for the court was that the pilfering employee, third-party defendant-Tyler, diverted funds not from the TMTA but from the Agency - a limited liability corporation controlled by the TMTA and from which the TMTA received a significant portion of its income. The Agency was not a named insured under the Policy. Hartford refused to pay on the Policy because of its view that the Agency, not the TMTA, suffered the loss and the Agency was not a named insured. The TMTA appealed to enforce its interpretation of the Policy, arguing that the Agency was covered because the TMTA was covered, and that any loss to the Agency was actually a direct loss to the TMTA - direct losses being covered under the Policy's express terms. The court held that the Agency had no rights or benefits under the Policy, and the Policy did not cover any of the Agency's losses due to employee theft. The court also held that the Policy covered the TMTA only for "loss of or damage to 'money', 'securities' and 'other property' which results [immediately and without any intervening space, time, agency, or instrumentality] from 'theft' by an 'employee.'" On its face, this definition would exclude the type of loss sustained by the TMTA from coverage under the Policy. The court noted that regardless of the impetus for the "directly resulting from" language within employee fidelity policies, state courts and federal courts interpreting state law were split on how to interpret the provision. The court concluded that at least a simple majority of courts that have considered the issue favor a "direct is direct," or analogous reasoning, approach in employee fidelity bonds or insurance contracts. By claiming that it was "inevitable" and "inescapable" that it would suffer a loss due to Tyler's actions, the TMTA was essentially arguing that the court should apply the "proximate cause" definition for "directly." Declining to do so, the court affirmed the district court's judgment for Hartford.

Full Text Opinion

This summary also appears under Employment & Labor Law

Issues: Covenant not to compete; Brillhart v. Danneffel; Whether the parties unambiguously agreed to void the defendant's covenant not to compete; Archambo v. Lawyers Title Ins. Co.; Effect of the "merger" clause in the parties' 2009 stock redemption agreement; Contract interpretation; Flajole v. Gallaher; "All"; Perry v. Sied; The "merger doctrine"; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Use of the term "agreement"; Klapp v. United Ins. Group Agency, Inc.; Whether the contract provision was "patently ambiguous"; Shay v. Aldrich; "Latent ambiguity"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Van Tol, Magennis & Lang, Inc. v. Woodward

e-Journal Number: 52848

Judge(s): Per Curiam – M.J. Kelly, Hoekstra, and Stephens

The court held that the trial court erred in ruling that ¶ 10 of the parties' 2009 stock redemption agreement was unambiguous and reflected their agreement to void the defendant's earlier covenant not to compete. The court concluded that with ¶ 10, the parties might have intended to nullify all their prior agreements, including defendant's 2004 employment agreement containing the covenant, or they might have intended that ¶ 10 only apply to their prior agreements as to the sale and redemption of the plaintiff's stock. Since this ambiguity had to be resolved by the fact-finder, the trial court erred in granting defendant summary disposition. Defendant began working for plaintiff as an insurance agent in 1996. In 2004, he signed a new employment agreement, in which he agreed that he would not compete with plaintiff for a 3-year period after leaving its employ. On the same day, he signed an agreement with plaintiff and other persons owning shares in plaintiff, which restricted the shareholders' ability to transfer their shares. In 2009, defendant entered into the stock redemption agreement with plaintiff, in which plaintiff agreed to purchase his 1,000 shares of stock for more than $60,000. Paragraph 10, entitled "Merger," stated - "It is understood and agreed that all understandings and agreements heretofore had between the parties hereto are merged in this contract which alone fully and completely expresses their agreement. This Agreement may not be changed or terminated orally." After a lengthy medical leave of absence, defendant resigned from plaintiff in 8/10. The same month, plaintiff sued him to enforce the covenants in his 2004 employment agreement and for tortious interference with its business relationships. The court concluded that one possible interpretation of ¶ 10 was that the parties agreed that the 2009 stock agreement superseded all their prior understandings and agreements. The adjective "all" can mean "any whatever," and when given this meaning, "could be understood to mean every understanding or agreement that the parties had made, rather than some subset of understandings or agreements." However, the court concluded that when ¶ 10 was read together and in the context of the agreement as a whole, "the phrase ‘all understandings and agreements' could plausibly mean that the 2009 stock agreement superseded only those agreements and understandings that dealt with the same subject." The court found it "noteworthy that the parties did not explicitly state that the 2009 stock agreement 'superseded' all their prior agreements without regard to the subject of the prior agreement" - rather, they "agreed that ‘all understandings and agreements' were 'merged' and did so in a clause labeled 'merger.'" By labeling ¶ 10 with the common law term "merger," they might have intended to limit ¶ 10's effect to that consistent with the common law term - that the phrase "all understandings and agreements" be limited to understandings and agreements on the same subject. Because ¶ 10 was equally susceptible to either party's construction, it was patently ambiguous. Reversed and remanded.

Full Text Opinion

Criminal Law

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Issues: Whether the defendant's felonious assault convictions violated his due process rights on the basis he was convicted of "cognate lesser included offenses" of assault with intent to commit murder (AWIM) in violation of People v. Cornell; People v. Wilder; "Plain error" review; People v. Bennett; Prosecutor's discretion as to charging decisions; People v. Morey; Genesee Prosecutor v. Genesee Circuit Judge; Permissibility of charging in a single information all crimes arising from a single criminal transaction or occurrence; People v. Nicolaides; People v. Johns; People v. Cleveland; MCL 767.55; Whether defendant was entitled to resentencing

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hall

e-Journal Number: 52849

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

Concluding that Cornell was not implicated, the court held that since the prosecution charged felonious assault as an alternative to the AWIM charges in the original information, the defendant was on notice of the elements of the charges that he had to defend. Thus, his claim that his felonious assault convictions violated his due process rights had no merit. He was convicted after a bench trial of felony-firearm and two counts of felonious assault. He was sentenced to 2 years' imprisonment for the felony-firearm conviction and 17 months to 4 years' imprisonment for the felonious assault convictions. The convictions arose from his occupancy of a gentlemen's club during renovations. Police officers received a dispatch to the club. They testified that they entered the club and identified themselves as police, but defendant opened fire on them. Defendant testified that they did not announce their presence, and he fired in self-defense. He was charged in the information with two counts of AWIM, two counts of felonious assault, and felony-firearm. The trial court acquitted him of the AWIM charges. Defendant argued on appeal that his felonious assault convictions violated his due process rights because he was convicted of cognate lesser included offenses of AWIM in violation of Cornell. The court disagreed. Due process requires that a defendant be on notice of all the elements of a crime that he is charged with and expected to defend against. Charging decisions are solely within the prosecutor's discretion, and it "'is generally permissible to charge in a single information all offenses which do arise out of a single criminal transaction or occurrence.'" The court noted that MCL 767.55 allows a prosecutor to file charges in the information in the alternative. The prosecutor here charged defendant with two counts of AWIM and two counts of felonious assault. "The felonious assault charges were alternative charges to the AWIM charges, and the prosecutor sought conviction on the highest offenses, AWIM, during closing argument." In light of the counts expressly charged in the information, defendant was aware of all the elements of the crimes that he had to defend against. "A due process violation, the lack of notice of the elements of a cognate lesser offense to be considered by the jury or trier of fact during deliberations, is simply not present when the alternative charges are set forth in the information." The court affirmed defendant's convictions. However, as the prosecution conceded that he was entitled to resentencing, the court remanded for resentencing.

Full Text Opinion

Issues: Claims of ineffective assistance of counsel for inter alia pursuing "a strategy of defense that was chosen by him, not by the defendant, a strategy that was doomed because of his lack of preparation, investigation, and research and because it was a lie" and for not investigating a claim of self-defense; People v. Petri; People v. Dendel; Strickland v. Washington; People v. Jordan; People v. Seals; People v. Payne; People v. Chapo; People v. McGhee; People v. Ericksen; MRE 609; People v. Darden; "Relevant evidence"; MRE 401, 402, and 403; People v. Unger; People v. Cress; Challenges to the trial court's decision denying his request to present an attorney as an expert witness at the Ginther hearing to testify as to whether defense counsel's performance adhered to community standards and norms; People v. McDaniel; People v. Yost; Expert testimony; MRE 702; Prosecutorial misconduct; People v. Brown; People v. Dobek; People v. Dumas; People v. Fisher; Whether a record was made of various juror notes or communications between trial the court and the jury; Whether "prejudice" must be presumed in the absence of a record; People v. Metamora Water Serv.; People v. Mayfield; "Plain error"; People v. Kowalski; MCR 6.414(B); Valentine v. United States (6th Cir.); People v. France; People v. Carter; Sentencing; Whether defendant was properly sentenced as a fourth habitual offender; People v. Carines; MCL 769.12; MCL 769.13; Whether the habitual offender notice was timely filed; MCL 769.13(1); Whether defendant's prior convictions were properly established; MCL 769.13(4); MCL 769.13(5)(d) and (e)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Marshall

e-Journal Number: 52842

Judge(s): Per Curiam – Servitto, Fitzgerald, and Talbot

The court held, inter alia, that giving deference to the trial court's finding that defense counsel was credible, there was no error in the trial court's determination that defense counsel was not ineffective in his choice of defense strategies. Defendant's convictions arose from the nonfatal shooting of H. Defendant argued that defense counsel was ineffective for pursuing "a strategy of defense that was chosen by him, not by the defendant, a strategy that was doomed because of his lack of preparation, investigation, and research and because it was a lie." Defendant further argued that counsel was ineffective for not investigating a claim of self-defense. At the Ginther hearing, defendant and defense counsel presented conflicting accounts of their pretrial discussions of the case and possible defense strategies. According to defense counsel, defendant told him that he shot H in self-defense during a struggle with H over the gun. Counsel, who was retained, testified that he expressed a desire to hire a private investigator and a medical expert to explore the self-defense theory, but defendant did not want to spend any more money and refused to provide the names of any witnesses or allow counsel to use that defense. Counsel explained that he thus, elected to pursue a strategy of attacking the sufficiency of the evidence and establishing reasonable doubt. According to counsel, even after he informed defendant that a "reasonable doubt" defense only had a 20 to 30% chance of success, defendant was still convinced that he could "beat" the charge because he had been acquitted of a previous shooting using that strategy. Conversely, defendant testified that he told defense counsel that the shooting occurred during a struggle between himself and H, but denied telling defense counsel what defense theory to pursue, or refusing to allow counsel to pursue a defense of self-defense. According to defendant, defense counsel told him that, based on the preliminary examination testimony, no one could identify him as being there, so he "should go with I wasn't there." The trial court's findings indicated that it credited defense counsel's testimony and found that counsel's defense strategy was objectively reasonable. The trial court had the opportunity to judge the credibility of defense counsel and defendant, and found that defense counsel's account of the events was credible. The court concluded that defense counsel was not ineffective "for failing to investigate a defense that Defendant refused to let him run." Although defendant's witnesses at the Ginther hearing testified in support of a self-defense theory, defense counsel's testimony indicated that he wanted to pursue a self-defense claim, but that defendant did not want to do so, would not provide the names of witnesses, and would not permit counsel to hire a private investigator to explore that defense. The court held that crediting defense counsel's testimony that defendant refused to cooperate in presenting a self-defense claim, counsel could not be faulted for not pursuing that defense. Without defendant's cooperation, it would have been implausible to present that defense at trial. Further, considering the conflicting and widely varied testimony elicited at the preliminary examination and at trial, the court held that it was not unreasonable for counsel to pursue a "reasonable doubt" strategy. Affirmed.

Full Text Opinion

Employment & Labor Law

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This summary also appears under Contracts

Court: Michigan Court of Appeals (Unpublished)

Case Name: Van Tol, Magennis & Lang, Inc. v. Woodward

e-Journal Number: 52848

Judge(s): Per Curiam – M.J. Kelly, Hoekstra, and Stephens

Full Text Opinion

Insurance

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This summary also appears under Contracts

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Tooling, Mfg., & Tech. Ass'n v. Hartford Fire Ins. Co.

e-Journal Number: 52613

Judge(s): Batchelder and Norris (Stranch joined in Sections I & II.A.); Concurring in part, Dissenting in part - Stranch

Full Text Opinion

Tax

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Issues: Whether the petitioner was entitled to the "industrial processing exemption" from use taxes under MCL 205.94r; Elias Bros. Rests., Inc. v. Department of Treasury; Whether the Tax Tribunal (TT) properly held that petitioner qualified for the industrial processing exemption; Briggs Tax Serv., LLC v. Detroit Pub. Schs.; Deference to an agency's interpretation of a statute; In re Rovas Complaint; Gladych v. New Family Homes, Inc.; Statutory analysis; People v. Jackson; USF&G Co. v. Michigan Catastropic Claims Ass'n; Liberty Hill Hous. Corp. v. City of Livonia; Veenstra v. Washtenaw Country Club; Beckman Prod. Servs. Inc. v. Department of Treasury; Michigan Auto. Research Corp. v. Department of Treasury; 1979 AC, R 205.90 known as Rule 40; Clonlara, Inc. v. State Bd. of Educ.; Michigan Sportservice, Inc. v. Department of Revenue Comm'r

Court: Michigan Court of Appeals (Unpublished)

Case Name: K&S Indus. Servs., Inc. v. Department of Treasury

e-Journal Number: 52809

Judge(s): Per Curiam - Shapiro, Gleicher, and Ronayne Krause

Since the respondent-Department of Treasury explicitly conceded that the petitioner-K&S was entitled to the "industrial processing exemption" from use taxes under MCL 205.94r (essentially identical to Rule 40), which the court found had the "force and effect of law" at all relevant times, the court deemed that to be a concession that, whatever the nature of petitioner's activities they fit the factual prerequisites for an exemption under Rule 40. Thus, the court could not conclude that the TT committed any legal or factual errors. Petitioner operated a circuit board repair business for its automotive manufacturing customers. Petitioner's customers used computer assisted manufacturing (CAM) to fabricate automobiles for sale. CAM systems require the use of robotics and automated machines, and these machines in turn require functional computer circuit boards. When a circuit board stopped functioning, customers shipped the nonoperational board to petitioner. Petitioner then utilized its test beds and test stands to diagnose the problem with the board and petitioner then either made the necessary repairs if possible, or obtained a replacement board. The test beds and stands were integral to the repair and reconditioning process of the circuit boards. Petitioner contended that the repair process changes the board from a nonfunctional state into a functional state by altering the flow of electricity through them. Respondent described the process as "mere repairs." Pursuant to contract, the customers are not entitled to return of the defective circuit board, because petitioner may elect to either order a new board or repair the existing board. Specifically, the customers transfer title over the defective boards based on petitioner's promise to return a functional circuit board, while petitioner agrees to provide a functional circuit board in exchange for the customer's promise to pay for the functional circuit board. Petitioner sold the reconditioned circuit boards at a set price, irrespective of the repair costs. Based on these activities, respondent assessed use taxes against petitioner for (1) purchasing and using the test beds and stands to diagnose and repair circuit boards, and (2) consuming utilities while operating the test beds and stands. After petitioner's unsuccessful appeal to respondent before an informal conference referee, petitioner filed the petition with the TT arguing that it was entitled to the "industrial processing" exemption from use taxes under MCL 205.94r (now 94o). The court agreed and affirmed.

Full Text Opinion

Issues: Claim involving the application of the Use Tax Act (MCL 205.91 et seq.); Review; Wexford Med. Group v. Cadillac; Generally the use tax covers transactions that fall outside the ambit of the general sales tax; Ameritech Publ'g, Inc. v. Department of Treasury; Tax exemptions are strictly construed against the taxpayer and in favor of the taxing authority; Betten Auto Ctr. v. Department of Treasury; Michigan Milk Producers Ass'n v. Department of Treasury; MCL 205.94(1)(c) providing that "property purchased for resale" is exempt from use tax; People v. Rodriguez; Tax Tribunal (TT)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Knight Facilities Mgm't, Inc. v. Department of Treasury

e-Journal Number: 52812

Judge(s): Per Curiam - Servitto, Fitzgerald, and Talbot

The court held that the TT's findings of fact were supported by competent, material, and substantial evidence on the record. Property "purchased for resale" is completely exempt from the imposition of use tax "upon the satisfaction of applicable statutory criteria." Thus, petitioner's satisfaction of these criteria was dispositive and the court did not need to address the respondent-Department's additional arguments advanced on appeal. Petitioner and GM entered into a contract where petitioner provides GM with managers who supervise its janitorial employees. Petitioner purchases the majority of the supplies used by the janitorial staff from Supply Pro, which ships the supplies directly to the appropriate GM facility. Petitioner provided Supply Pro with its resale exemption certificate. GM also provided petitioner with a "direct pay permit" that instructed petitioner not to charge sales or use tax as further provided in GM's master purchase agreement and gave petitioner its direct pay permit numbers. Respondent conducted an audit and found that petitioner was a service provider, not a seller of tangible property, and held that petitioner was liable for use tax from 11/1/00 to 4/30/04, on $16,287,136 of taxable purchases at a 6% tax rate. Petitioner was assessed $983,812 in tax and $156,203.04 in applicable interest. Petitioner challenged respondent's assessment in the TT. Petitioner claimed that of the $16,287,136 in purchases attributed to it, $15,263,365 in purchases was resold to GM. Petitioner alleged that it was exempt from use tax pursuant to MCL 204.94(1)(c) and MCL 204.54(1)(b) because the property was purchased for resale to GM and was not consumed or used by petitioner. Petitioner also claimed that it was not liable for sales tax on its sale of goods to GM under GM's Direct Pay Permit and MCL 205.98. The TT initially denied petitioner's motion and granted summary disposition for respondent. Petitioner moved for reconsideration asserting that the TT wrongfully interpreted the language of exclusion 8 and regardless of that interpretation, petitioner was per se exempt from collecting the sales tax because GM presented it with a direct pay permit. Petitioner contended that no statutory burden is placed on sellers to construe the precise language of a direct pay permit. The TT later entered an order on 7/29/11 granting petitioner's motion for partial reconsideration and vacating the 10/21/10 order granting respondent summary disposition "to the extent that it conflicts with the statements and conclusions reached in the" 7/29/11 order, granting summary disposition for petitioner, and canceling the assessment in its entirety concluding that petitioner's argument was correct. Thus, the TT found that "petitioner has met its burden of proof in establishing that it is not liable for the use tax, interest, and penalty assessed by Respondent." The court agreed and affirmed.

Full Text Opinion

Termination of Parental Rights

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Sours Minors; In re Trejo Minors; In re JK; The trial court's credibility determinations; In re LE; Children's best interests; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Barden/Bryne

e-Journal Number: 52854

Judge(s): Per Curiam – Murphy, Markey, and Whitbeck

Holding that the trial court did not clearly err in finding that termination of both respondents-parents' parental rights was warranted under §§ 19b(3)(c)(i), (g), and (j), and that terminating their parental rights was in the children's best interests, the court affirmed the trial court's order terminating their parental rights. Several conditions led to the trial court's taking jurisdiction over the children. Respondents "did not provide their children with proper care and custody and did not provide for their basic housing, hygiene, and medical needs." Their living conditions "were unstable, filthy, and hazardous. They exposed their young children to hazards that include choking, suffocation, infection, and physical injury." While the respondent-father (the father of two of the children) argued that an investigating deputy (P) caused the conditions at the medical clinic because he placed the medical debris on the floor at P's direction, P testified that he discovered the conditions at the medical clinic and that he asked the father to open a single trash bag to see what it contained. The court noted that before moving to the medical clinic, respondents "lived in a house that had a pile of trash, dirty diapers, and medical waste near the back door." The father also argued that he fully complied with and benefited from his service plan. However, the doctor who conducted the respondents' psychological evaluation, respondents' couples' counselor, and the father's counselor in his parenting program all testified that he did not fully participate in or benefit from their services. Deferring to the trial court's determination of credibility, the court was "not definitely and firmly convinced that the trial court made a mistake when it found" that P did not cause the conditions at the medical clinic and that the father did not benefit from services. While the mother argued that a counselor's (W) testimony showed that she made progress in counseling and it was likely that she could rectify the conditions within a reasonable time, the court concluded that the majority of the testimony showed that her prognosis was poor and that her behavior was unlikely to change. The trial court found W's testimony "incredible." The court noted that for over two years, respondents "maintained to a variety of service providers that they had done nothing wrong. Multiple experts testified that when a person will not admit that they have done something wrong, that person will not take steps to change his or her behavior." Thus, the court was also not convinced that the trial court erred in concluding that the conditions would not change within a reasonable time. For the same reasons that supported the trial court's findings under § 19b(3)(c)(i), the court held that the trial court did not clearly err in finding that §§ 19b(3)(g) and (j) were also proven. As to the children's best interests, while there was evidence that respondents loved them, there was also evidence that they were not bonded to respondents, that respondents had deficient parenting abilities, and that a foster home had advantages over respondents' home.

Full Text Opinion

Issues: Termination of parental rights pursuant to §§ 19b(3)(g) and (j); Parenting time; In re Mason; Muskegon Area Rental Ass'n v. City of Muskegon; Service of process; People v. Cole; In re Gillespie; People v. Kowalski; MCR 3.920(B)(a)(i); Discovery in child protective proceedings; "Mootness"; People v. Richmond; MCR 3.922(A)(2); MCR 7.212(C)(5) & (7); Mettler Walloon, LLC v. Melrose Twp.; In re Sours Minors; In re Trejo Minors; In re JK; In re Foster; In re Hudson; Best interests of the child; In re Olive/Metts; In re Miller

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Snyder

e-Journal Number: 52889

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

The court held that the trial court properly terminated the respondent-father's parental rights to his minor child where the statutory bases were established by clear and convincing evidence and termination was in the child's best interest. In 4/10, the child was admitted to a hospital and diagnosed with aspiration pneumonia and failure to thrive syndrome. The DHS filed a petition to remove the child from respondent's care because the hospital suspected that he was force-feeding her. Respondent pleaded to the allegations in the petition. At the dispositional hearing, the trial court granted respondent supervised visitation in accordance with a prior custody order. The trial court moved the child's placement three times because her foster home could not handle her behavior difficulties caused by her mental health issues, which included harming herself and hoarding food. In the third foster home, her behavior improved. Through 7/11, the trial court found that respondent substantially complied with his service plan, although it characterized his progress as limited. His caseworker testified that his service plan required him to participate in counseling. However, he attended only two sessions and his psychologist reported that he was unable to identify needs or goals. He testified that respondent attended parenting classes, but resisted implementing what he learned in the classes. The child' mental health therapist testified that respondent participated in but resisted her services as well, and benefitted only "slightly." However, he stopped play-therapy with his daughter, became frustrated and hostile, and his daughter began to say that she did not want to be near him or participate in activities with him. When asked why he stopped participating in services, he said that he struggled with a tooth that was causing him pain, and tried to balance his schedule between his daughter and stepson. He disagreed with a therapist on parenting tactics and admitted that he was using marijuana at the time. The trial court noted that the daughter's circumstances were "dire." It found credible the therapists' assertion that if the daughter did not find a stable environment soon, she could suffer from poor mental health the rest of her life. The trial court found that the daughter "desperately needs permanency" but that respondent proved unable to provide her with it. It noted that if it were not dealing with a child with his daughter's mental health difficulties and needs, it would afford him more time, but because of her needs and respondent's decreased commitment to the service plan, it was in her best interest to terminate his parental rights. Also, none of respondent's procedural arguments had merit. Affirmed.

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