• Criminal Law (4)
• Family Law (1)
• Negligence & Intentional Tort (1)
• Real Property (2)
• Termination of Parental Rights (2)

Criminal Law

 

Issues: Whether the trial court properly granted the defendant's motion for a new trial; People v. Blackston; Ineffective assistance of counsel; People v. Noble; People v. LeBlanc; Failure to file a pretrial motion to disqualify the trial judge after defendant elected to have a bench trial; People v. Lyles; People v. Cheeks; People v. Wells; Presumption that the trial court in a bench trial knows the applicable law and the difference between admissible and inadmissible evidence; People v. Lanzo Constr. Co.; Failure to make a futile motion; People v. Brown; "Prejudice"; MCR 6.431(B); MCL 770.1; MCL 769.26

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Cogborn

e-Journal Number: 49862

Judge(s): Per Curiam – Servitto, Markey, and K.F. Kelly

 

The court held that the trial court abused its discretion in granting the defendant's motion for a new trial because defendant did not show that defense counsel's failure to move to disqualify the trial judge constituted deficient performance. There was no basis for finding that the trial judge was actually biased or prejudiced against defendant. Thus, the court reversed the trial court's order granting defendant's motion, reinstated his convictions of marijuana possession, CCW, felon in possession, and felony-firearm (second offense), and remanded for sentencing. Defendant argued that defense counsel should have filed a pretrial motion to disqualify the trial judge after defendant elected to have a bench trial because after the trial judge heard the substantive evidence he ruled inadmissible, "he was inherently biased and prejudiced" toward defendant. However, the court concluded that the record showed the trial court was impressed with defense counsel's efforts on defendant's behalf, but it found the properly admitted testimony from two police officers credible. The court noted that "in a bench trial, the trial court is presumed to know the applicable law and the difference between admissible and inadmissible evidence." In making its findings of fact, the trial court did not mention the evidence it previously ruled inadmissible, and the court concluded that it could be presumed the trial court never considered the inadmissible evidence in convicting defendant. Since he did not overcome the presumption of judicial impartiality, "a pretrial motion to disqualify the trial judge based on judicial bias would have been futile" and counsel is "not ineffective for failing to make a futile motion." In granting defendant's motion, the trial court stated it would "err on the side of caution" even though it was "confident I made every effort to be as fair and correct in my rulings and my verdict as possible . . . ." The trial court adopted defense counsel's ineffective assistance of counsel argument "just to avoid the appearance of any impropriety or injustice here." The court held that there were no grounds for appellate reversal of defendant's convictions and no reason to conclude that a miscarriage of justice occurred. "Because no legally recognized basis for relief existed, the trial court's decision to grant defendant's motion for a new trial fell outside the range of principled outcomes and was an abuse of discretion."

 

Issues: Sufficiency of the evidence to support defendant-Lovell's convictions of armed robbery, unlawful imprisonment, torture, and first-degree home invasion; People v. Ericksen; People v. Kanaan; People v. Wolford; "Identity"; People v. Kern; Aiding and abetting; People v. Izarraras-Placante; People v Robinson; Ineffective assistance of counsel; Failure to move to suppress evidence related to a photographic lineup or to move for a separate trial; People v. Petri; People v. Sabin (On Second Remand); People v. Gray; People v. Kurylczyk; People v. Anderson; People v. Davis; Futile motion; People v. Fike; People v. Butler; People v. Hana; People v. Daniel; Admission of a witness's (W) testimony that the conversation he heard between the codefendants led him to conclude that they were guilty of the charged offenses; Whether the trial court properly compelled W to testify as to his delivery of marijuana; In re Watson; People v. Coy; People v. Fletcher; People v. Coleman; Whether the prosecutor's comments highlighting the victim's and W's military service constituted improper "vouching" and "civic duty" arguments; People v. Brown; People v. Seals; People v. Abraham; Opening statement; People v. Moss; People v. Parker; Whether Lovell was entitled to a new trial on the basis of newly discovered evidence; Motion for a separate trial; Plain error; People v. Carines; Rebuttal closing argument; People v. Fyda; People v. Kennebrew; People v. Fields; Jury instructions concerning circumstantial evidence and aiding and abetting; Waiver; People v. Harper; Sentencing; Upward departure from the minimum guidelines range; People v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Riley

e-Journal Number: 49845

Judge(s): Per Curiam - M.J. Kelly, Owens, and Borrello

 

There was sufficient evidence to support the defendant-Lovell's convictions of armed robbery, unlawful imprisonment, torture, and first-degree home invasion. The case arose from the armed robbery, unlawful imprisonment, torture, and home invasion of an 84-year old victim. Lovell argued that there was no evidence that he was in the victim's house during the crimes, or was defendant-Riley's accomplice. Thus, he was challenging the evidence of his identity as a perpetrator. He also argued that there was insufficient evidence that the second person in the house intended the crimes of armed robbery, unlawful imprisonment, and torture. Viewing the evidence in the light most favorable to the prosecution, the court held that the prosecutor established that Lovell purchased a hard hat, pry bar, and work gloves at a hardware store the day before the crimes. In reference to the pry bar, the hardware store manager heard Lovell's companion inquire - "are you going to buy that tool to beat that guy's ass[?]" Lovell was identified as the individual who rented the vehicle seen in the victim's driveway at the time the crimes occurred. Cell phone call logs showed that Lovell's telephone was in the vicinity of the victim's house and that numerous calls were made to Riley at the time of the crimes. While the victim was bound, Riley severely beat him and poked him with a knife while stealing his coin collection. As this was occurring, the other individual in the house threatened to kill the victim if he did not reveal the location of his money. When Lovell and Riley met W the next day, W heard them talking about how they were going to sell coins, and heard Riley berate Lovell for the method he used to ransack drawers. The court concluded that "ample circumstantial evidence" existed identifying Lovell as one of the perpetrators of the charged offenses. The evidence showed that he performed acts and gave encouragement that assisted the commission of the crimes. Further, circumstantial evidence existed that Lovell intended the charged offenses of armed robbery, unlawful imprisonment, and torture. The court affirmed the convictions and sentences of both defendants.

 

Issues: Denial of request to instruct the jury as to unanimity; People v. Dupree; People v. Unger; People v. Cooks

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. White

e-Journal Number: 49878

Judge(s): Per Curiam – Gleicher, Hoekstra, and Stephens

 

The court held that the trial court did not err when it denied the defendant's request to instruct the jury as to unanimity where the denial of the instruction did not run afoul of Cooks. Defendant's conviction arose out of the death of his wife, D. It was undisputed that she was killed after being struck by a vehicle that defendant was driving while he was intoxicated. Defendant asserted that, because there were multiple theories presented as to the negligent act that led to D's death, he was entitled to have the jury instructed as to the unanimity requirement. While defendant contended that the jurors may have disagreed as to the act that led to D's death, the prosecution's brief on appeal asserted that there was only one theory of liability at trial - "The defendant operated a motor vehicle with an unlawful" BAC "and ran over his wife thereby causing her death." According to the prosecution, there was no material distinction between the theory that defendant first hit D while backing up and the theory that the vehicle only struck her while driving forward. "In this instance there was no dispute that defendant operated a motor vehicle with a" BAC "that rendered him in violation of law, thus raising the inference that he was negligent." The court concluded that whether "the deceased met her demise as a consequence of defendant backing over her person or running her over as she exited the vehicle does not constitute a material difference when determining if he is guilty of the crime of negligent homicide. While the nature of the impact might be of some consequence for a specific intent crime, negligent homicide is a general intent crime." Defendant's conviction of negligent homicide was affirmed. Also, in an order, the court corrected a clerical error. The second sentence of the first paragraph should read - "Defendant was also convicted of operating a motor vehicle while intoxicated, MCL 257.625(1), as a lesser offense to the original charge of operating a motor vehicle while intoxicated and causing death, MCL 257.625(4), though he does not challenge that conviction on appeal."

 

Issues: Sufficiency of the evidence to support both defendants' convictions of carjacking; People v. Lewis (On Remand); People v. Houthoofd; MCL 750.529a; People v. Flick; People v. Wilcox; Whether the failure to establish a completed larceny precluded defendants' convictions for carjacking; People v. Williams; Conspiracy; People v. Mass; People v. Justice (After Remand); People v. Cotton; People v. Carter; People v. Fennell; Defendant-Idris - Identity; People v. Yost; People v. Kern; People v. Palmer; Aiding and abetting; People v. Robinson; People v. Turner; People v. Carines; People v. Kanaan; Defendant-Demarcus - Sufficiency of the evidence to support his conviction of assault with intent to commit murder; People v. Brown; People v. Hawkins; People v. Dumas; Sentencing; Scoring of OV 13; People v. McLaughlin; People v. Francisco; People v Jackson; Ineffective assistance of counsel; People v. Ginther; People v. Wilson; People v. Mesik (On Reconsideration); People v. Waclawski; People v. Toma; Judicial impartiality; People v. Cheeks; In re Contempt of Henry; Prosecutorial misconduct; People v. Lester; People v. Aceval; Photo lineup identification; People v. Gray; People v. Kurylczyk; Jury instructions; People v. Katt

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Young

e-Journal Number: 49887

Judge(s): Per Curiam – Donofrio, Borrello, and Beckering

 

Considering its analysis in Williams, the court rejected both defendants' argument that the failure to establish a completed larceny precluded their convictions for carjacking. The court held, inter alia, that there was sufficient evidence to support their convictions of carjacking. Defendants' convictions arose from an incident outside a store. As the victim entered the store, he observed two men standing outside. One man, whom the victim identified as defendant-Demarcus, was wearing a thick coat, which was unusual because of the warm weather. The other man, whom the victim identified as defendant-Idris, had the lower part of his face covered with his shirt or a cloth. According to the victim, as he walked by defendants, Idris made a gesture like he was racking a gun and made direct eye contact with the victim, with a "cold look" in his eyes. When the victim left the store, Demarcus pointed a gun at him and told him to surrender his car keys. When the victim hesitated, Demarcus told him he was "not playing." The victim turned, ducked, and ran. He heard one gunshot as he ran. A videotape from the store's surveillance cameras showed that Demarcus fired a second time, and tried to fire a third time, but his gun jammed. Defendants argued that the evidence was insufficient to establish the crime of carjacking, because it was undisputed that an actual larceny of a motor vehicle was never completed. They argued that the phrase "in the course of committing a larceny" contemplates a completed or actual larceny, not an attempted larceny. In Williams, the court considered this identical issue in the context of construing the companion armed and unarmed robbery statutes, MCL 750.529 and MCL 750.530, respectively. Like the carjacking statute, the unarmed robbery statute, MCL 750.530(1) and (2), proscribes conduct "in the course of committing a larceny," which the statute defines as including "acts that occur in an attempt to commit the larceny, or during commission of the larceny[.]" The armed robbery statute, MCL 750.529, incorporates the same conduct proscribed under MCL 750.530. In Williams, the court concluded that the robbery statutes incorporate acts taken in an attempt to commit a larceny, regardless of whether the act is completed. Here, the "evidence that Demarcus threatened the victim with a gun while demanding his car keys was sufficient evidence of an act in the course of committing a larceny of a motor vehicle as defined in the carjacking statute." Thus, the court rejected this claim of error. Affirmed.

 

Family Law

 

Issues: Divorce; Attorney fees; Whether the trial court had the authority to award fees and expenses incurred in a collateral bankruptcy proceeding; MCR 3.206(C)(1); Applicability of Gates v. Gates; "Related"; DaimlerChrysler Corp. v. G Tech Prof'l Staffing, Inc.; MCR 3.206(C)(2)(a) & (b); Effect of attempting to avoid compliance with an arbitration award; MCR 3.602(L); MCL 600.5079(1); Desjardins v. Desjardins (Unpub.); Requirement that a party "refuse" to comply; MCL 552.13; Smith v. Smith; Jurisdiction over the appeal; "Final order" (MCR 7.202(6)(a)(iv))

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kalaydjian v. Kalaydjian

e-Journal Number: 49847

Judge(s): Per Curiam – Ronayne Krause and Cavanagh; Concurring in the result only – Jansen

 

The court held, inter alia, that the trial court correctly concluded that it could not award the plaintiff-wife attorney fees and expenses incurred in a collateral action (the defendant-husband's bankruptcy proceeding) under MCR 3.206(C)(1). Further, while plaintiff was correct that MCR 3.206(C)(2) provides two independent possible bases for awarding attorney fees and expenses, she failed to satisfy all of the prerequisites to be entitled to fees and expenses under either provision. The only issue on appeal was plaintiff's motion for attorney fees incurred due to defendant's bankruptcy filing. Plaintiff argued, inter alia, that "a party may be awarded fees and expenses incurred relative to an action, not merely in an action." The court agreed that MCR 3.206(C) "is not necessarily limited strictly to fees and expenses incurred in an action," but disagreed that it extended "to fees and expenses incurred in a separate, collateral action, no matter how closely related that separate action might be." "MCR 3.206(C)(1) provides for ‘fees and expenses related to the action,' not fees and expenses related to a related action." As to MCR 3.206(C)(2)(a), the court found no error in the trial court's factual findings because plaintiff did not present any evidence that she was truly "unable to bear" the requested attorney fees or that defendant was truly "able to pay" them. Plaintiff contended that she was entitled to attorney fees under MCR 3.206(C)(2)(b) because defendant tried to avoid complying with the arbitration award and pursuant to MCR 3.602(L) and MCL 600.5079(1), courts are to enforce arbitration awards as if they were court orders. In "the absence of instructive authority," the court concluded that plaintiff's position was "rational and correct." The court noted that Michigan "jurisprudence simply depends on parties complying with orders, even if the party does not like an order, and no matter whether a superior court might ultimately conclude that the order is for some reason flawed. If an arbitrator's award is to be enforced as a court order, it should be treated as one for purposes of MCR 3.206(C)(2)(b), even if the award has not yet been confirmed by a court." However, MCR 3.206(C)(2)(b) requires that a party "refuse" to comply with an order, not simply fail to comply, and that the party has the ability to comply. Plaintiff asserted that defendant's bankruptcy filing constituted a refusal to comply with the arbitration award because his Chapter 13 plan "would have eviscerated the provisions of the arbitration award." The court concluded that even if that was true, "going through proper legal procedures is not the kind of unilateral refusal to comply with an order contemplated by MCR 3.206(C)(2)(b)." Under the circumstances, plaintiff was not entitled to attorney fees under MCR 3.206(C)(2)(b). MCL 552.13, like MCR 3.206(C)(2)(a), requires a showing that one party is unable to afford to carry on the action and the other party can afford to pay. Neither fact was proven here. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Real Property

 

Issues: Whether the trial court properly held that defendants-Meng and MP locked out the plaintiff-JFI's business (the LAN Lounge); The Anti-Lockout Statute (MCL 600.2918(1) and (2)); Deroshia v. Union Terminal Piers; Shaw v. Hoffman; McIntyre v. Murphy; Ramirez v. Baran (OK); Whether JFI defaulted on the lease by failing to pay rent; Whether JFI first breached the lease and relinquished any right to seek breach of contract damages; Whether the evidence supported the trial court's finding that Meng converted JFI's property; Whether the trial court properly relied on JFI's uncontroverted testimony as to the value of the property converted; Head & Phillips Camper Sales & Rentals, Inc.; Foremost Ins. Co. v. Allstate Ins. Co.; Gum v. Fitzgerald; Prosser & Keeton, Torts (5th ed.), § 15, p. 93; Bernhardt v. Ingham Reg'l Med. Ctr.; Elman v. Libralter Plastics, Inc.; Willis v. Ed Hudson Towing, Inc.; Whether the trial court correctly imposed on JFI the duty to demand return of the property; Damages; Conversion as a strict liability tort; Poggi v. Scott (CA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: J. Franklin Interests, L.L.C. v. Meng

e-Journal Number: 49846

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

 

The court held that the trial court properly determined that the landlord (defendants-Meng and MP) unlawfully locked out the tenant (plaintiff-JFI) by barring the access door, changing the locks, and placing a sign in the window stating that the tenant's business was closed. The trial court also correctly held that the landlord converted a portion of the tenant's belongings by holding them as security against overdue rent and other debts. The court affirmed the trial court's ruling that the landlord locked out the tenant and converted the tenant's property, but vacated the award of damages and remanded for a recalculation of damages. Defendants own the office building at issue. JFI entered into a 3-year lease with defendants. The lease recited that JFI would use the premises to operate a computer gaming business and Internet access center, named the LAN Lounge. Meng operated a computer business (AFD Solutions) located in the same building. Plaintiff's principal (Franklin) testified that he invested $60,000 in developing the LAN Lounge. JFI hired AFD to assemble the computers and to configure the LAN Lounge computer network. AFD invoiced the LAN Lounge $7,586.25 for this service. A notation on the invoice indicated that Franklin personally guaranteed payment "based on 10% of net quarterly profits." The lease recited that JFI would pay $750 monthly rent beginning 7/16/07. Franklin made a $1,500 security deposit with a check to Meng personally, rather than to MP. Later, Franklin wrote 8 $750 checks payable to AFD, noting on the checks that they were for "rent." Franklin claimed that Meng told him to make the rent checks payable to AFD and claimed that because the LAN Lounge failed to generate any profits, he made no payments on the computer service invoices after tendering the $750 "down payment." Meng denied directing Franklin to draw the rent checks payable to AFD and insisted that the $750 payments applied to Franklin's invoiced debt. On 2/19/08, Franklin arrived at the LAN Lounge and found the parking lot unplowed and inaccessible. He voiced his unhappiness to Meng, who told him the lot would be plowed later that day. Franklin consulted an attorney. That afternoon, he terminated the lease by delivering a letter to Meng. Franklin claimed that he told Meng of his intent to vacate the premises in 30 days. An AFD employee said that Franklin threatened to sue Meng and Meng asked whether he would return to the premises. Franklin said that Meng would not get another penny from him. Meng asserted Franklin's words signaled his intent to permanently abandon the LAN Lounge. Later, Franklin returned to retrieve personal items and tried to enter the LAN Lounge, but discovered the door was barred from being opened. A sign was in the window that said "Closed for business. Property belongs to Meng's Properties. Any questions please call . . . ." Franklin's attorney sent Meng a second letter, which Franklin delivered to Meng. The door to the LAN Lounge was barricaded and Meng admitted that he had changed the locks and alarm code. Plaintiff sued alleging, inter alia, violation of the Anti-Lockout Statute and common law and statutory conversion. The trial court held that Meng's actions locked out Franklin, but because he failed to make a reasonable effort to recover his assets exceeding $11,235 in value, his conversion claim was limited. The trial court trebled the damages resulting in an award of $35,455 for JFI, and determined that Meng was "personally liable" along with MP. The court vacated only that part of the judgment awarding JFI damages against Meng and MP, and remanded for recalculation of those damages consistent with the opinion. The court affirmed the trial court's judgment in all other respects.

 

Real Property

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly held that defendants-Meng and MP locked out the plaintiff-JFI's business (the LAN Lounge); The Anti-Lockout Statute (MCL 600.2918(1) and (2)); Deroshia v. Union Terminal Piers; Shaw v. Hoffman; McIntyre v. Murphy; Ramirez v. Baran (OK); Whether JFI defaulted on the lease by failing to pay rent; Whether JFI first breached the lease and relinquished any right to seek breach of contract damages; Whether the evidence supported the trial court's finding that Meng converted JFI's property; Whether the trial court properly relied on JFI's uncontroverted testimony as to the value of the property converted; Head & Phillips Camper Sales & Rentals, Inc.; Foremost Ins. Co. v. Allstate Ins. Co.; Gum v. Fitzgerald; Prosser & Keeton, Torts (5th ed.), § 15, p. 93; Bernhardt v. Ingham Reg'l Med. Ctr.; Elman v. Libralter Plastics, Inc.; Willis v. Ed Hudson Towing, Inc.; Whether the trial court correctly imposed on JFI the duty to demand return of the property; Damages; Conversion as a strict liability tort; Poggi v. Scott (CA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: J. Franklin Interests, L.L.C. v. Meng

e-Journal Number: 49846

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

 

The court held that the trial court properly determined that the landlord (defendants-Meng and MP) unlawfully locked out the tenant (plaintiff-JFI) by barring the access door, changing the locks, and placing a sign in the window stating that the tenant's business was closed. The trial court also correctly held that the landlord converted a portion of the tenant's belongings by holding them as security against overdue rent and other debts. The court affirmed the trial court's ruling that the landlord locked out the tenant and converted the tenant's property, but vacated the award of damages and remanded for a recalculation of damages. Defendants own the office building at issue. JFI entered into a 3-year lease with defendants. The lease recited that JFI would use the premises to operate a computer gaming business and Internet access center, named the LAN Lounge. Meng operated a computer business (AFD Solutions) located in the same building. Plaintiff's principal (Franklin) testified that he invested $60,000 in developing the LAN Lounge. JFI hired AFD to assemble the computers and to configure the LAN Lounge computer network. AFD invoiced the LAN Lounge $7,586.25 for this service. A notation on the invoice indicated that Franklin personally guaranteed payment "based on 10% of net quarterly profits." The lease recited that JFI would pay $750 monthly rent beginning 7/16/07. Franklin made a $1,500 security deposit with a check to Meng personally, rather than to MP. Later, Franklin wrote 8 $750 checks payable to AFD, noting on the checks that they were for "rent." Franklin claimed that Meng told him to make the rent checks payable to AFD and claimed that because the LAN Lounge failed to generate any profits, he made no payments on the computer service invoices after tendering the $750 "down payment." Meng denied directing Franklin to draw the rent checks payable to AFD and insisted that the $750 payments applied to Franklin's invoiced debt. On 2/19/08, Franklin arrived at the LAN Lounge and found the parking lot unplowed and inaccessible. He voiced his unhappiness to Meng, who told him the lot would be plowed later that day. Franklin consulted an attorney. That afternoon, he terminated the lease by delivering a letter to Meng. Franklin claimed that he told Meng of his intent to vacate the premises in 30 days. An AFD employee said that Franklin threatened to sue Meng and Meng asked whether he would return to the premises. Franklin said that Meng would not get another penny from him. Meng asserted Franklin's words signaled his intent to permanently abandon the LAN Lounge. Later, Franklin returned to retrieve personal items and tried to enter the LAN Lounge, but discovered the door was barred from being opened. A sign was in the window that said "Closed for business. Property belongs to Meng's Properties. Any questions please call . . . ." Franklin's attorney sent Meng a second letter, which Franklin delivered to Meng. The door to the LAN Lounge was barricaded and Meng admitted that he had changed the locks and alarm code. Plaintiff sued alleging, inter alia, violation of the Anti-Lockout Statute and common law and statutory conversion. The trial court held that Meng's actions locked out Franklin, but because he failed to make a reasonable effort to recover his assets exceeding $11,235 in value, his conversion claim was limited. The trial court trebled the damages resulting in an award of $35,455 for JFI, and determined that Meng was "personally liable" along with MP. The court vacated only that part of the judgment awarding JFI damages against Meng and MP, and remanded for recalculation of those damages consistent with the opinion. The court affirmed the trial court's judgment in all other respects.

 

Issues: Whether the trial court properly ruled that the personal property in the bar transferred to the defendant based on the foreclosure; Whether the plaintiffs raised any appealable issue in their brief; English v. Blue Cross Blue Shield of MI; Axford v. Matthew; Emmons v. Easter

Court: Michigan Court of Appeals (Unpublished)

Case Name: Russo v. Shurbet Partners, Inc.

e-Journal Number: 49890

Judge(s): Per Curiam - O’Connell, Meter, and Beckering

 

Concluding that the plaintiffs did not raise any appealable issue in their brief, the court held that the trial court properly entered judgment in favor of the defendant. Plaintiff-Winner's Circle is a corporation founded by members of the Russo family. In 1/06, Russo Real Estate Development, L.L.C., of which Winner's Circle is a subsidiary, entered into a land contract with defendant to purchase real property. Defendant and the buyer agreed on a price of $605,000, with the first payment to be made 6 months after the beginning of the contract. After the first 6 months, the buyer was to make monthly payments of $4,158. Defendant allowed the buyer to make no down payment, and the buyer agreed to furnish the premises with equipment necessary to run a sports bar. In 6/08, plaintiffs-Salvatore and Karen Russo, along with plaintiff-Russo's Pizza, filed a complaint against defendant alleging conversion of the personal property that was located in the bar after defendant foreclosed on the land due to the buyer's default. In 7/09, an amended complaint added Winner's Circle as a plaintiff, alleging a violation of the Michigan UCC. Plaintiffs argued that the trial court erred in ruling that the personal property in the bar transferred to defendant based on the foreclosure. The court concluded that plaintiffs waived Winner's Circle's UCC claim. There was no substantive mention of Winner's Circle's UCC claim anywhere in plaintiffs' brief, rendering this issue abandoned on appeal. Also, plaintiffs' question presented for appeal referred to whether there was a transfer of ownership of the personal property "from Winner's Circle to Defendant when the land contract was forfeited[.]" Thus, plaintiffs took the position that Winner's Circle owned the property at issue. The problem was that they did not make a conversion argument below in connection with Winner's Circle, rendering their current appeal untenable. "In this transaction, either the Russos or Winner's Circle owned the disputed property before defendant foreclosed." Plaintiffs could not claim on appeal that Winner's Circle was the original owner when they argued in the trial court that the Russos were the original owners. Further, assuming that plaintiffs' appeal was properly presented, their appellate argument, which was based on Emmons, failed. "The property in Emmons was not considered by the parties when the agreements were drafted and simply brought onto the premises by the plaintiffs later," while in this case "the property at issue was brought onto the land as a result of the land contract." Affirmed.

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(g), (j), and (k); In re Trejo Minors; In re Miller; Deference to a trial court's "special opportunity" to observe and judge the witnesses' credibility; In re HRC; Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Jett

e-Journal Number: 49866

Judge(s): Per Curiam – Gleicher, Hoekstra, and Stephens

 

Based on the record, the court could not characterize as clearly erroneous the trial court's finding that the respondent-father's expert's (M) theory remained unproven and generally unaccepted in the medical community. Thus, the court held that the record substantiated that respondent abused the injured child (KJJ), he could not provide his children with proper care and custody within a reasonable time considering their ages, and there was a reasonable likelihood that KJJ or her twin brother would suffer harm if returned to his custody. The trial court terminated respondent's parental rights pursuant to §§ 19b(3)(g), (j), and (k). Respondent served as the twins' primary care provider from the time of their birth. On 4/28/10, he told the twins' mother that seven-month old KJJ had "been kind of fussy all day," and "got her leg stuck in the crib this morning." The mother noticed that KJJ's right leg appeared swollen, and when she tried to feed her, KJJ would not eat. The mother took KJJ to a children's hospital, where x-rays revealed a spiral fracture of her right proximal femur and bilateral metaphyseal fractures of both distal femurs and both distal tibias. The evidence at the termination hearing primarily focused on whether KJJ suffered from a metabolic bone condition that rendered her vulnerable to fractures. M opined that her fractures resulted from "metabolic bone disease of infancy," also known as temporary brittle bone disease. M based his opinion on a combination of factors, including KJJ's status as a premature twin, her "modestly low level" of Vitamin D when tested after birth, and her mother's intrauterine exposure to six-days' of magnesium sulfate. S evaluated KJJ at the children's hospital and testified in opposition to M. According to S, "temporary brittle bone disease remains an unaccepted medical diagnosis." S also "disagreed that the combination of prematurity, intrauterine confinement, magnesium sulfate and Vitamin D deficiency could have weakened KJJ's bones." S concluded that given KJJ's size and weight, and assuming her bones were healthy, it "would be beyond her abilities to generate enough force to fracture" her femur. The trial court "determined that KJJ did not suffer from a bone abnormality, and that the force necessary to break her bones precluded an accidental origin for her injuries." The court concluded that the trial court "appropriately invoked all three statutory grounds" for terminating respondent's parental rights. The court also detected no clear error in the trial court's best interests finding, and affirmed its order terminating respondent's parental rights.

 

Issues: Termination pursuant to §§ 19b(3)(c)(i), (c)(ii), and (g); Due process; Santosky v. Kramer; In re JK; In re Rood; Whether the respondent-mother's waiver of timely service of the termination petition was accepted without determining if it was freely, voluntarily, and understandingly made; MCL 712A.19b(2)(c); MCR 3.977(C)(1); MCR 3.920(D)(3)(b); In re Atkins; MCR 3.920(B)(2)(b) and (B)(5)(a)(i); MCR 3.920(F); Plain error review; In re Williams; Ineffective assistance of counsel; In re CR; People v. Rodriguez; People v. Toma; Whether it was probable that the outcome would have been different if respondent had not signed the waiver; People v. Johnson

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Naab

e-Journal Number: 49867

Judge(s): Per Curiam – O’Connell, Meter, and Beckering

 

Noting that the respondent-mother signed a "Waiver of Summons/Notice of Hearing" form, the court held that she waived timely notice and service of the termination petition. Further, the court rejected her ineffective assistance of counsel claim, concluding, inter alia, that she was "not denied a fair hearing because it was not probable the outcome would have been different had she not signed the waiver." The trial court terminated respondent's parental rights pursuant to §§ 19b(3)(c)(i), (c)(ii), and (g). She argued that her due process rights were violated because the trial court accepted her waiver of timely service of the termination petition without determining if her waiver was freely, voluntarily, and understandingly made. However, she signed the waiver form and she did not cite any authority requiring the trial court to make further inquiries. Reviewing the 9/2/10 termination hearing transcript, the court concluded that her attorney's statements were not sufficient reason for the trial court to believe the waiver was not knowingly and understandingly made. Respondent also argued that her attorney's advice to sign the waiver constituted ineffective assistance of counsel. The court noted that her right to effective assistance of counsel was only violated "if her attorney's performance fell below an objective level of reasonableness and she was denied a fair hearing as a result." The court held that her attorney's advice was reasonable, and it was "difficult to see how delaying when the termination hearing began could have possibly changed the outcome." The termination hearing continued nearly two months later on 10/28/10, when respondent testified. At that time, the trial court did not find clear and convincing evidence of statutory grounds to terminate her parental rights - it only found the grounds established by a preponderance of the evidence. The trial court then allowed respondent three more months to show that she could live substance-free. However, she failed a breathalyzer and was awaiting sentencing for violating her probation when her rights were terminated at a 1/25/11 hearing.

 

Classifieds

Announcement
Association Desired
Employment Available
Employment Wanted
Event/Seminar
For Sale
Office Space
Public Notice
Referrals
Advertising Marketplace

Fields of Practice

Adoption
ADR
Appellate Practice
Arbitration & Mediation
Attorney Discipline
Business Law
Commercial Litigation
Copyrights
Divorce
Family Law
Federal False Claims
Health Care
Immigration
Intellectual Property
Law Enforcement
Legal Malpractice
Lemon Law
Licensing
Medicare Liens
Patents
Personal Injury
Stockbrokers
Taxation
Trademarks

Disclaimer