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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

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Today's e-Journal includes summaries of three Michigan Supreme Court orders under Malpractice, Negligence & Intentional Tort, and Termination of Parental Rights. Cases appear under the following practice areas:


Attorneys

 

This summary also appears under Malpractice

 

Issues: Legal malpractice; Statute of limitations; MCL 600.5805; MCL 600.5838; Seebacher v. Fitzgerald, Hodgman, Cawthorne & King, PC; Dowker v. Peacock; Basic Food Indus., Inc. v. Travis, Warren, Nayer & Burgoyne; When the defendant-attorney' s representation ended; Effect of a nunc pro tunc order; Sleboede v. Sleboede; Effect of the fact the attorney later received a settlement check on the plaintiff's behalf; Bauer v. Ferriby & Houston, PC; Whether the statute of limitations was tolled when the bankruptcy court declared plaintiff incompetent; MCL 600.5851(1); Leave to amend the complaint; Phillips v. Deihm; Ben P. Fyke & Sons v. Gunter Co.; Futility; Lyon v. Freshour's Estate; Whether the trial court should have referred the issue of plaintiff's "mental competence" to the probate court; Redding v. Redding; Sanctions; Bass v. Combs; Amount of sanctions; Maryland Cas. Co. v. Allen; The trial court's discretion to design an appropriate sanction; FMB-First Nat'l Bank v. Bailey

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kloian v. Cunningham

e-Journal Number: 44135

Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro

 

Agreeing with the trial court the operative date for the plaintiff's discharge of the defendant-attorney in the bankruptcy case was June 1, 2005, when he indicated he no longer wished him to serve as his counsel and stated he would seek alternative counsel, and the June 23, 2005 order in plaintiff's other case was the exercise of the trial court's authority to enter an order nunc pro tunc to formalize its decision in a June 3, 2005 hearing, the court held his legal malpractice claims were properly dismissed on the basis they were time-barred. Plaintiff filed his complaint on June 20, 2007. He stated he retained the attorney to represent him in a case seeking to recover damages for breach of a lease agreement, and also retained him to represent him in his bankruptcy case to revoke the appointment of a guardian ad litem. He argued the trial court erred in dismissing the malpractice claim related to the bankruptcy case based on the statute of limitations because the bankruptcy court issued an order discharging the attorney as of July 20, 2005. The trial court found the issue was whether plaintiff relieved the attorney of his obligation to represent him before the order was entered. The trial court noted plaintiff conceded the attorney's claims about their June 1, 2005 conversation in which he told him he no longer needed him as counsel, and found it significant he sent the attorney a letter on June 2 discharging him from service. The trial court pointed out "a client's instruction that the attorney no longer provide any further services is sufficient to terminate representation." The court concluded after accusing the attorney of malpractice and stating he would be seeking alternative counsel on June 1, plaintiff's "alleged apparent intention" the attorney "remain as his counsel until he could secure that new counsel is irrelevant." As to the effective date for the running of the malpractice limitations period related to the other case, plaintiff argued the trial court had no authority to backdate its June 23, 2005 order to June 3, and the attorney continued to represent him until he disbursed the settlement funds. The court held the trial court correctly found the June 23 order was the result of the June 3 hearing, during which the attorney requested on the record to withdraw, plaintiff consented, and the trial court granted the request on the record. Also, the fact the attorney later received the settlement check on plaintiff's behalf did not alter the operative date for calculating the running of the limitations period. The trial court's order granting the defendants summary disposition was affirmed.

 


Criminal Law

 

Issues: Sufficiency of the evidence to convict the defendant of assault with intent to do great bodily harm less than murder, unlawful imprisonment, and resisting or obstructing a police officer; People v. Bailey; People v. Parcha; People v. Harrington; MCL 750.349b(3)(a) and (1)(a); MCL 750.81d(1); People v. Ventura; People v. Chapo; Whether the prosecutor failed to produce a witness; MCL 767.40a(5); People v. Perez; People v. Lawton; People v. Cook; People v. Bonita Jackson; Ineffective assistance of counsel; People v. Matuszak; People v. Pickens; People v. Kelly; People v. Duff; People v. Davis; Prosecutorial misconduct; People v. Bahoda; People v. Ackerman; People v. Jones; People v. McGhee; Sentencing; Scoring of OVs 1, 7, 8, and 19; People v. Francisco; People v. Mack; Restitution; People v. Bell; Attorney fees; People v. Jackson; Whether the prosecutor presented false evidence; People v. Herndon; Discovery; MCR 6.201; People v. Greenfield (On Rehearing)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brady

e-Journal Number: 44074

Judge(s): Per Curiam - Donofrio, Wilder, and Owens

 

The court held, inter alia, the evidence was sufficient to convict the defendant of assault with intent to do great bodily harm less than murder, unlawful imprisonment, and resisting or obstructing a police officer and affirmed his convictions and sentences. He was convicted of physically assaulting and confining a 77-year old woman who befriended him and allowed him to stay in her home. The evidence indicated during an approximately 12-hour period beginning on one day and continuing until the early morning hours of the next day, defendant assaulted and forcibly confined the victim inside her own home, except for a brief period when he forcibly took her to a party store. Later, when he went to work, the police were called and later arrested him at his worksite. Defendant conceded there was sufficient evidence of an assault, but argued there was insufficient evidence of his intent to do great bodily harm. However, testimony he tried to smother the victim with a pillow several times, he loaded a gun, pointed it at her, and pulled the trigger, was sufficient to enable the jury to find beyond a reasonable doubt he assaulted her with the intent to do great bodily harm. The facts the victim was able to resist his attempts to smother her, and the gun did not fire when he pointed it and pulled the trigger, did not negate his intent. Further, while defendant argued the unlawful imprisonment was not proven because the victim was allowed to move around her house during the 12 hours defendant was present, the court noted § 349b(3)(a) specifically provides a defendant need not restrain the victim for any particular length of time. The testimony showed the defendant restrained the victim in her home by taking her from room to room with him several times and by disabling the telephones, during which time he threatened her with a gun. He also forced her to go with him to the store by not letting go of her arm while they went there. This evidence was sufficient for the jury to find him guilty of unlawful imprisonment for restraining the victim with a gun. The evidence was also sufficient to support his two convictions of resisting or obstructing a police officer. The evidence two police officers repeatedly ordered defendant to get down on the ground, he ignored their commands, stood up, and continued standing until the officers physically placed him on the ground, and he then refused to comply with their orders to place his arms at his sides was sufficient for the jury to find the elements of this offense were proven beyond a reasonable doubt.

 


Immigration

 

Issues: Whether an IJ has authority to determine an asylum application is "frivolous" after already determining it is time-barred under 8 USC § 1158(a)(2)(B); 8 USC § 1158(d)(6); 8 CFR § 1208.20; Matter of Y-L (BIA); Mingkid v. U.S. Attorney Gen. (11th Cir.); Luciana v. Attorney Gen. of the U.S. (3rd Cir.); Principles of administrative deference; Negusie v. Holder; Near-conclusive Bowles v. Seminole Rock & Sand Co. deference; Case precedent upholding frivolousness findings even after a petitioner offered to voluntarily withdraw an application; Lazar v. Gonzales; Shllaku v. Gonzales (Unpub. 6th Cir.); Jurisdiction; Sanusi v. Gonzales; Kucana v. Mukasey (7th Cir.); 8 USC § 1252(a)(2)(D)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Ghazali v. Holder

e-Journal Number: 44187

Judge(s): Sutton, Daughtrey, and McKeague

 

Rejecting the petitioner's argument once an IJ determines an asylum petition is time-barred, the IJ no longer has authority to determine it is frivolous, the court denied his petition for review. Petitioner entered the U.S. in 1999 on a non-immigrant visa with authorization to stay until 2001. When he overstayed his visa, the INS initiated removal proceedings against him. In 2004, an IJ found him removable. Petitioner filed an application for asylum, withholding of removal, and protection under the CAT two years later, all of which the IJ denied. The IJ found the asylum application was statutorily barred because, inter alia, petitioner did not apply for asylum within one year of entering the U.S. Further, the IJ determined even if the statutory bars did not preclude relief, the asylum claim failed on the merits. The IJ also separately determined petitioner deliberately fabricated material portions of his testimony and his asylum application was frivolous. The frivolous finding made petitioner "permanently ineligible" for asylum. After the BIA affirmed the IJ's decision, petitioner moved for reconsideration, arguing for the first time the IJ had no authority to make a finding of frivolousness after determining the petition was time-barred. The BIA denied the motion on the merits. The court concluded nothing in § 1158(d)(6) says an IJ "may enter a frivolousness finding only when the application is timely filed or otherwise free of statutory bars." All the statute says is an IJ may find an application frivolous upon determining an alien, on notice of the consequences of making a frivolous filing, "knowingly made a frivolous application for asylum." The court concluded the "statute does not contain an inflexible order of battle" to the effect IJs must address the statutory bars first and, once they do, they can no longer make a frivolousness finding if a statutory bar applies. The words of the statute allow an IJ to make a frivolousness finding about the merits of an asylum application and about its timeliness. Further, the implementing regulations also say "an applicant is subject to" a frivolousness determination upon a "specific[] find[ing] that the alien knowingly filed a frivolous asylum application," and an asylum application "is frivolous if any of its material elements is deliberately fabricated." An IJ may make this finding whenever an alien files a frivolous application, regardless of whether the IJ denies the application on statutory-bar or substantive grounds. The IJ met the regulations' requirements.

 


Litigation

 

Issues: Whether the trial court properly granted defendant summary disposition pursuant to MCR 2.116(C)(3) based on the failure of service of process; Whether MCR 2.102(E) (providing a party not served before the expiration of the summons is to be dismissed "unless the defendant has submitted to the court's jurisdiction") precluded dismissal; In re Gordon Estate; Penny v. ABA Pharm. Co. (On Remand); Woods v. SLB Prop. Mgmt., LLC; The Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Evans v. Grosse Pointe Pub. Sch. Sys.

e-Journal Number: 44150

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

Since the defendant did not respond to the case by filing a motion to quash or a motion for summary disposition based on insufficient service of process, but filed an answer and affirmative defenses, the answer was "an action on the part of a defendant that recognize[d] the pending proceedings," and constituted a general appearance. Thus, the case could not be dismissed for failure of service of process. The plaintiff sued defendant alleging he was discharged from his employment in violation of the PWDCRA. After an evidentiary hearing, the trial court found the executive assistant to defendant's superintendent had been provided a copy of the complaint, but not the summons. It was undisputed plaintiff failed to serve the superintendent by registered mail as required by MCR 2.105(G)(8). However, before defendant moved for summary disposition based on the failure of service of process, it timely filed an answer and affirmative defenses to the complaint. The court held MCR 2.102(E), which provides a party not served before expiration of a summons is to be dismissed "unless the defendant has submitted to the court's jurisdiction," precluded dismissal. The court in Gordon Estate held a "party who enters a general appearance and contests a cause of action on the merits submits to the court's jurisdiction and waives service of process objections." In Woods, the court said, "if an attorney files a paper with the court, the filing is deemed notice of the attorney's appearance." Here, defendant filed an answer and affirmative defenses. Although defendant listed insufficient service as a defense, the answer constituted a general appearance. Thus, the action could not be dismissed for failure of service of process. Reversed and remanded.

 


This summary also appears under Real Property

 

Issues: Quiet title action; Whether the trial court properly set aside the case evaluation against defendant-London; Goch Props., LLC v. C. Van Boxell Transp., Inc.; State Farm Mut. Auto. Ins. Co. v. Galen; Whether unilateral mistakes are sufficient to set aside a case evaluation; CAM Constr. v. Lake Edgewood Condo. Ass'n; Kline v. Kline; "Unconscionable advantage"; Walker v. Walker; Whether the trial court properly denied plaintiff's request for attorney fees and costs; Dessart v. Burak; MCR 2.403(O); Muntean v. City of Detroit; Applicability of MCR 2.603(D)(4)

Court: Michigan Court of Appeals (Unpublished)

Case Name: MTGLQ Investors, L.P. v. London

e-Journal Number: 44077

Judge(s): Per Curiam - Saad, O'Connell, and Zahra

 

The trial court, inter alia, properly set aside the case evaluation award of $40,000 in this quiet title action based on the unfairness it imposed on defendant-London due to his unilateral "misunderstanding" and the fact there was no viable claim against London. The trial court accepted London's claim his acceptance of the evaluation was premised on plaintiff transferring its interest in the property to London in exchange for $40,000, and found plaintiff had no viable claim against London because plaintiff had absolutely no property interest at the time London conveyed title to two people, which was the act allegedly slandering the title. Although the trial court did not use the words "substantial injustice," allowing an innocent party to pay $40,000 in damages would constitute substantial injustice. Further, when the innocent party does not even receive a deed in exchange for the $40,000, the injustice is magnified. Thus, the trial court's decision to set aside the evaluation fell within the principled range of outcomes and the trial court did not abuse its discretion. Plaintiff contended unilateral mistakes are insufficient to set aside a case evaluation citing CAM Constr. as support. However, the court noted subsequent cases have added "unconscionable advantage" as an additional means of overturning a consent judgment. Thus, a unilateral mistake resulting in an "unconscionable advantage" or "substantial injustice" was sufficient to set aside a case evaluation. Further, the trial court had the authority to set aside the case evaluation if not doing so would have resulted in a substantial injustice. The court also held the trial court did not abuse its discretion by choosing not to award plaintiff attorney fees. Affirmed.

 


Issues: Class action alleging the defendants engaged in a fraudulent scheme in violation of the Real Estate Settlement Procedures Act (RESPA)(12 USC § 2607) and several related state law claims; Case settlement agreement releasing all plaintiffs' individual claims for damages, attorneys' fees, and costs after the district court denied class certification; Whether the district court properly dismissed the case with prejudice; Plaintiffs' motion to reverse the district court's denial of class certification; Mootness; Steel Co v. Citizens for a Better Env't; Whether the case was no longer within the jurisdiction of the federal courts under Article III of the Constitution; Demis v. Sniezek; UAW v. Dana Corp.; Brunet v. City of Columbus; Distinguishing cases where the Supreme Court has allowed named plaintiffs to appeal denials of class certification even after the claims of the named plaintiffs have become moot; Deposit Guar. Nat'l Bank v. Roper; United States Parole Comm'n v. Geraghty; Whether plaintiffs retained an interest in shifting the costs of litigation; Potter v. Norwest Mortgage, Inc. (8th Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Pettrey v. Enterprise Title Agency, Inc.

e-Journal Number: 44161

Judge(s): Thapar, Clay, and Sutton

 

Since the plaintiffs had settled and released all of their claims against the defendants, the court held the case was moot. Thus, the appeal had to be dismissed for lack of jurisdiction because there was no justiciable case or controversy under Article III of the Constitution. The Pettrey plaintiffs originally filed this case against defendants-Enterprise Title, First USA Title, and DeSantis alleging the defendants engaged in a fraudulent scheme where Enterprise essentially charged customers for services not performed and then used that money to give kickbacks to real estate agents who referred business to Enterprise. They asserted claims under the RESPA, and several related state law claims, and sought damages, attorney fees, and costs. The plaintiffs began discovery related to the issue of class certification and filed a motion to certify the case as a class action. The district court denied the motion and plaintiffs' motion for reconsideration, and granted the defendants' motion to strike the class action allegations in the complaint. The court denied interlocutory review. Plaintiffs then entered into a settlement agreement and released all of their individual claims for damages, attorney fees, and costs against the defendants. They did not settle their right to appeal the denial of class certification, their claims for attorney fees and costs attributable to class claims, and their right to seek injunctive relief on behalf of the class. The defendants paid the plaintiffs $4,287 in damages and $20,048 in costs and fees. In light of the settlement the district court dismissed the case with prejudice. Here, plaintiffs sought reversal of the order denying class certification. The problem was the case was no longer within the jurisdiction given to the federal courts under Article III of the Constitution, which conditions the exercise of federal judicial power on the existence of a live, ongoing case or controversy. "If a case in federal court loses its character as an actual, live controversy at any point during its pendency, it is said to be moot." When that happens, the case is no longer within the jurisdiction of the federal courts, and must be dismissed.

 


Malpractice

 

Issues: Medical malpractice; Whether the plaintiff pleaded a claim for "lost opportunity"; Stone v. Williamson; MCL 600.2912a(2); Craig v. Oakwood Hosp.; Falcon v. Memorial Hosp.; Lanigan v. Huron Valley Hosp.; The doctrine of "informed consent"; Lincoln v. Gupta; Application of Fulton v. William Beaumont Hosp.

Court: Michigan Supreme Court

Case Name: Compton v. Pass

e-Journal Number: 44184

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

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal #42060 in the 3/11/09 edition) held the Court of Appeals erred in analyzing the case under the "lost-opportunity" standard in MCL 600.2912a(2). The plaintiff alleged the defendants failed to obtain her informed consent, this breach of the standard of care caused her to undergo a more extensive medical procedure with a higher risk of morbidity than she would have knowingly elected, and she was injured as a result. The court concluded the evidence was sufficient to permit a fact-finder to find the alleged breach of the standard of care caused the plaintiff to suffer physical injury (including removal of additional lymph nodes, axillary cording, and lymphedema), which "more probably than not was proximately caused by the negligence of the defendants." Thus, the requirements of the first sentence of MCL 600.2912a(2) were satisfied and this was a traditional malpractice claim. For these reasons, the Court of Appeals erred in ruling the trial court should have granted the defendants' summary disposition motion. The court remanded the case to the Court of Appeals for consideration of the remaining issues raised by the parties but not previously addressed by the Court of Appeals.

Justice Markman concurred in the order reversing the Court of Appeals judgment for the reasons stated in his prior concurring statement in the case.

 


This summary also appears under Attorneys

 

Issues: Legal malpractice; Statute of limitations; MCL 600.5805; MCL 600.5838; Seebacher v. Fitzgerald, Hodgman, Cawthorne & King, PC; Dowker v. Peacock; Basic Food Indus., Inc. v. Travis, Warren, Nayer & Burgoyne; When the defendant-attorney' s representation ended; Effect of a nunc pro tunc order; Sleboede v. Sleboede; Effect of the fact the attorney later received a settlement check on the plaintiff's behalf; Bauer v. Ferriby & Houston, PC; Whether the statute of limitations was tolled when the bankruptcy court declared plaintiff incompetent; MCL 600.5851(1); Leave to amend the complaint; Phillips v. Deihm; Ben P. Fyke & Sons v. Gunter Co.; Futility; Lyon v. Freshour's Estate; Whether the trial court should have referred the issue of plaintiff's "mental competence" to the probate court; Redding v. Redding; Sanctions; Bass v. Combs; Amount of sanctions; Maryland Cas. Co. v. Allen; The trial court's discretion to design an appropriate sanction; FMB-First Nat'l Bank v. Bailey

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kloian v. Cunningham

e-Journal Number: 44135

Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro

 

Agreeing with the trial court the operative date for the plaintiff's discharge of the defendant-attorney in the bankruptcy case was June 1, 2005, when he indicated he no longer wished him to serve as his counsel and stated he would seek alternative counsel, and the June 23, 2005 order in plaintiff's other case was the exercise of the trial court's authority to enter an order nunc pro tunc to formalize its decision in a June 3, 2005 hearing, the court held his legal malpractice claims were properly dismissed on the basis they were time-barred. Plaintiff filed his complaint on June 20, 2007. He stated he retained the attorney to represent him in a case seeking to recover damages for breach of a lease agreement, and also retained him to represent him in his bankruptcy case to revoke the appointment of a guardian ad litem. He argued the trial court erred in dismissing the malpractice claim related to the bankruptcy case based on the statute of limitations because the bankruptcy court issued an order discharging the attorney as of July 20, 2005. The trial court found the issue was whether plaintiff relieved the attorney of his obligation to represent him before the order was entered. The trial court noted plaintiff conceded the attorney's claims about their June 1, 2005 conversation in which he told him he no longer needed him as counsel, and found it significant he sent the attorney a letter on June 2 discharging him from service. The trial court pointed out "a client's instruction that the attorney no longer provide any further services is sufficient to terminate representation." The court concluded after accusing the attorney of malpractice and stating he would be seeking alternative counsel on June 1, plaintiff's "alleged apparent intention" the attorney "remain as his counsel until he could secure that new counsel is irrelevant." As to the effective date for the running of the malpractice limitations period related to the other case, plaintiff argued the trial court had no authority to backdate its June 23, 2005 order to June 3, and the attorney continued to represent him until he disbursed the settlement funds. The court held the trial court correctly found the June 23 order was the result of the June 3 hearing, during which the attorney requested on the record to withdraw, plaintiff consented, and the trial court granted the request on the record. Also, the fact the attorney later received the settlement check on plaintiff's behalf did not alter the operative date for calculating the running of the limitations period. The trial court's order granting the defendants summary disposition was affirmed.

 


Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Third-party claims for negligence resulting in serious impairment of body function arising from an accident involving two of defendant-SMART's buses; The Metropolitan Transportation Authorities Act (MCL 124.401 et seq.); Written notice requirement for any claim based on injury to persons or property (MCL 124.419); Whether the information plaintiff provided to SMART during the 60-day period was sufficient to constitute written notice of her tort claim; "Claim" defined; CAM Constr. v. Lake Edgewood Condo Ass'n; Substantial compliance; Meredith v. Melvindale; Livonia v. Department of Soc. Servs.; Whether all applications for first-party no-fault benefits would satisfy the statute

Court: Michigan Court of Appeals (Unpublished)

Case Name: Atkins v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 44149

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

Noting MCL 124.419 does not require any specific information as long as the defendant has notice of a "claim" ("notice of the aggregate of operative facts giving rise to an enforceable right or notice of a demand for payment"), the court held the information defendant-SMART had before the 60-day notice period expired was sufficient to provide written notice of the plaintiff's third-party tort claim. Plaintiff was injured when two of SMART's buses collided on September 15, 2006. She sued alleging, inter alia, third-party claims for negligence resulting in serious impairment of body function. MCL 124.419 requires written notice of any claim based on injury to persons or property to be served on the transportation authority no later than 60 days from the occurrence resulting in the injury. The issue was whether SMART had timely notice of the third-party claim. SMART investigated the accident right after the collision. Plaintiff did not feel any pain and got off to catch the next bus. However, while she was on the second bus she began to feel pain in her back and shoulder, for which she received medical treatment. She called SMART's agent on September 25, 2006 to report her injury. SMART sent her an application for no-fault benefits, which she completed and returned. SMART received the attending physician's report, and its case file noted on October 30, 2006 plaintiff was on a short leave of absence from work due to pain. The last entry before the 60-day period expired noted plaintiff's daughter and mother were performing some of her household services. The noted stated, "[E]xaminer should keep an eye on this" and "With anticipate[d] wage loss, treatment and household services, current reserve will not covered expected costs." Plaintiff's condition worsened, and a December MRI showed disc herniations and degenerative changes in her spine. The trial court agreed with SMART the plaintiff provided only notice of her injury, not her tort claim, within 60 days and granted it summary disposition. The court reversed, concluding by the time the 60-day period expired, SMART had notice of the operative facts needed to anticipate plaintiff's tort claim and she had demanded payment for her injuries. The court noted not all applications for first-party no-fault benefits will satisfy the statute, even when made directly to a defendant. For example, if a plaintiff's injury is an abrasion or bruise, or the circumstances of the accident indicate there was no apparent negligence by the defendant, a defendant would not necessarily have notice a tort claim would follow. However, SMART had notice of all the facts supporting plaintiff's third-party claim. Reversed and remanded.

 


This summary also appears under Negligence & Intentional Tort

 

Issues: Nuisance abatement; An uncompleted structure as blight; Effect of the defendants' failure to file a responsive pleading or take other action permitted by law to respond to the plaintiff-city's complaint; MCR 2.108(A)(1); MCR 2.110(B); MCR 2.111(E)(1); Effect of the entry of a default and defendants' failure to move to set aside the entry of default; MCR 2.603(A)(3); Effect of defendants' conceding in the trial court the unfinished structure on their property constituted blight and a nuisance; Blazer Foods, Inc. v. Restaurant Props., Inc.; The trial court's broad equitable authority to abate a nuisance; Ypsilanti Twp. v. Kircher; Whether the abatement ordered by the trial court was a drastic and punitive measure; Eyde Bros. Dev. Co. v. Roscommon County Bd. of Rd. Comm'rs; Whether defendants' proposed remedial measures would have remedied the nuisance

Court: Michigan Court of Appeals (Unpublished)

Case Name: City of Mackinac v. Webster

e-Journal Number: 44151

Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto

 

The court affirmed the trial court's order granting the plaintiff-city's motion to abate a nuisance (an unfinished single-family home) on the defendants' property and requiring them to abate the nuisance in accordance with the city's requested relief, rejecting their arguments the specific abatement ordered by the trial court was a "drastic and punitive measure" and it failed to consider alternative remedies before issuing its order for specific abatement. Defendants purchased a vacant lot in 1993, intending to construct a single-family home. They obtained the required building and zoning permits in 1999, and began construction. By 2001, they had excavated and poured a concrete foundation with walls extending 3 to 4 feet above grade, and installed a septic pit. They had an eight-foot fence constructed in 2003, at the city's insistence, to enclose the foundation work. However, primarily due to financial problems, defendants were unable to complete any more construction on the property and the home remained unfinished. While they argued on appeal the trial court erred in ruling the unfinished home constituted blight and a nuisance, the court declined to address the merits of their argument because they conceded this point in the trial court. They also argued the abatement ordered by the trial court required the complete destruction of the unfinished house and the trial court abused its discretion in failing to consider and impose an alternative form of abatement. The court concluded other than "defendants' own self-serving statement, they failed to present any evidence that the court-ordered remedy would completely destroy the unfinished basement structure." Further, "partial removal and filling in of an unfinished structure, which had been in an unfinished state for nine years and in violation of plaintiff's zoning ordinances for most of that time, was not too drastic a remedy where defendants were repeatedly given opportunities to obtain financing" to remedy the blight, but did failed to do so. The court concluded the record showed the trial court addressed the reasonableness of defendants' alternative proposal, and their proposed remedy would not provide the city with sufficient relief "because the structure, after defendants' proposed remedial measures were completed, would still violate plaintiff's ordinances." Affirmed.

 


Negligence & Intentional Tort

 

Issues: Applicability of the "public building" exception to governmental immunity; Chambers v. Wayne County Airport Auth.; Evans & Luptak, PLC v. Lizza; The "proprietary function" exception to governmental immunity; "Governmental function"; MCL 691.1401(f); Harris v. University of MI Bd. of Regents; Smith v. Department of Pub. Health; MCL 691.1413; Coleman v. Kootsilas; Rowland v. Washtenaw County Rd. Comm'n

Court: Michigan Supreme Court

Case Name: Ward v. Michigan State Univ.

e-Journal Number: 44185

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

 

In an order in lieu of granting leave to appeal, the court vacated the judgment of the Court of Appeals (see e-Journal # 41669 in the 2/2/09 edition) and remanded the case to that court for reconsideration of the defendant's appeal in light of the court's order on reconsideration in Chambers. In all other respects, leave to appeal was denied because the court was not persuaded the remaining question presented should be reviewed by the court.

Justice Kelly concurred in the order vacating the Court of Appeals judgment and remanding in light of the court's order on reconsideration in Chambers, but wrote separately to address the dissenting justices' claim the court by remanding in light of Chambers ignored Rowland. The dissenting justices showed the notice requirements of MCL 691.1406, the "public building" exception to governmental immunity, are similar to those of the "highway" exception statute, and concluded because the latter provision was at issue in Rowland, the case was controlling here. However, the highway exception statute was not involved here. This case involved the public building exception and Rowland was not binding here. Also, the Court of Appeals based its decision on the court's 12/19/08 order in Chambers, which the court vacated on 6/12/09 when addressing the plaintiff's motion for reconsideration. Because the Court of Appeals relied on an order that was no longer controlling, the underpinnings of its decision were swept away. Thus, the decision should be reconsidered in light of Chambers.

In his dissent, Justice Young said, "[o]nly in the legal order of Chief Justice Kelly's creation would judges treat differently identical notice provisions that address the same topic - governmental immunity - and that appear in the same statute." He stated Chief Justice Kelly's idea nearly identical provisions in the same statute should receive different constructions because they concern different aspects of governmental immunity would be "laughable were it not so destructive to the development of the predictable rule of law."

The other dissenting justices concluded the notice requirements of the public building and highway exceptions to governmental immunity were "nearly identically worded" and the court said in Rowland "the plain language of this statute should be enforced as written." Thus, when a statute says 120 days, it means 120 days. In this case the plaintiff's attorney sent a letter addressed to "MSU Munn Ice Arena" nine months after the hockey game in which the plaintiff was allegedly injured. The letter failed to address the other requirements as to the location, nature of the defect, the injury sustained, and the names of any witnesses, and was not "served upon any individual . . . who may lawfully be served with civil process." Because the Court of Appeals applied the clear language of § 1406, defendant was entitled to summary disposition and the justices would deny leave to appeal.

 


This summary also appears under Municipal

 

Issues: Third-party claims for negligence resulting in serious impairment of body function arising from an accident involving two of defendant-SMART's buses; The Metropolitan Transportation Authorities Act (MCL 124.401 et seq.); Written notice requirement for any claim based on injury to persons or property (MCL 124.419); Whether the information plaintiff provided to SMART during the 60-day period was sufficient to constitute written notice of her tort claim; "Claim" defined; CAM Constr. v. Lake Edgewood Condo Ass'n; Substantial compliance; Meredith v. Melvindale; Livonia v. Department of Soc. Servs.; Whether all applications for first-party no-fault benefits would satisfy the statute

Court: Michigan Court of Appeals (Unpublished)

Case Name: Atkins v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 44149

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

Noting MCL 124.419 does not require any specific information as long as the defendant has notice of a "claim" ("notice of the aggregate of operative facts giving rise to an enforceable right or notice of a demand for payment"), the court held the information defendant-SMART had before the 60-day notice period expired was sufficient to provide written notice of the plaintiff's third-party tort claim. Plaintiff was injured when two of SMART's buses collided on September 15, 2006. She sued alleging, inter alia, third-party claims for negligence resulting in serious impairment of body function. MCL 124.419 requires written notice of any claim based on injury to persons or property to be served on the transportation authority no later than 60 days from the occurrence resulting in the injury. The issue was whether SMART had timely notice of the third-party claim. SMART investigated the accident right after the collision. Plaintiff did not feel any pain and got off to catch the next bus. However, while she was on the second bus she began to feel pain in her back and shoulder, for which she received medical treatment. She called SMART's agent on September 25, 2006 to report her injury. SMART sent her an application for no-fault benefits, which she completed and returned. SMART received the attending physician's report, and its case file noted on October 30, 2006 plaintiff was on a short leave of absence from work due to pain. The last entry before the 60-day period expired noted plaintiff's daughter and mother were performing some of her household services. The noted stated, "[E]xaminer should keep an eye on this" and "With anticipate[d] wage loss, treatment and household services, current reserve will not covered expected costs." Plaintiff's condition worsened, and a December MRI showed disc herniations and degenerative changes in her spine. The trial court agreed with SMART the plaintiff provided only notice of her injury, not her tort claim, within 60 days and granted it summary disposition. The court reversed, concluding by the time the 60-day period expired, SMART had notice of the operative facts needed to anticipate plaintiff's tort claim and she had demanded payment for her injuries. The court noted not all applications for first-party no-fault benefits will satisfy the statute, even when made directly to a defendant. For example, if a plaintiff's injury is an abrasion or bruise, or the circumstances of the accident indicate there was no apparent negligence by the defendant, a defendant would not necessarily have notice a tort claim would follow. However, SMART had notice of all the facts supporting plaintiff's third-party claim. Reversed and remanded.

 


This summary also appears under Municipal

 

Issues: Nuisance abatement; An uncompleted structure as blight; Effect of the defendants' failure to file a responsive pleading or take other action permitted by law to respond to the plaintiff-city's complaint; MCR 2.108(A)(1); MCR 2.110(B); MCR 2.111(E)(1); Effect of the entry of a default and defendants' failure to move to set aside the entry of default; MCR 2.603(A)(3); Effect of defendants' conceding in the trial court the unfinished structure on their property constituted blight and a nuisance; Blazer Foods, Inc. v. Restaurant Props., Inc.; The trial court's broad equitable authority to abate a nuisance; Ypsilanti Twp. v. Kircher; Whether the abatement ordered by the trial court was a drastic and punitive measure; Eyde Bros. Dev. Co. v. Roscommon County Bd. of Rd. Comm'rs; Whether defendants' proposed remedial measures would have remedied the nuisance

Court: Michigan Court of Appeals (Unpublished)

Case Name: City of Mackinac v. Webster

e-Journal Number: 44151

Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto

 

The court affirmed the trial court's order granting the plaintiff-city's motion to abate a nuisance (an unfinished single-family home) on the defendants' property and requiring them to abate the nuisance in accordance with the city's requested relief, rejecting their arguments the specific abatement ordered by the trial court was a "drastic and punitive measure" and it failed to consider alternative remedies before issuing its order for specific abatement. Defendants purchased a vacant lot in 1993, intending to construct a single-family home. They obtained the required building and zoning permits in 1999, and began construction. By 2001, they had excavated and poured a concrete foundation with walls extending 3 to 4 feet above grade, and installed a septic pit. They had an eight-foot fence constructed in 2003, at the city's insistence, to enclose the foundation work. However, primarily due to financial problems, defendants were unable to complete any more construction on the property and the home remained unfinished. While they argued on appeal the trial court erred in ruling the unfinished home constituted blight and a nuisance, the court declined to address the merits of their argument because they conceded this point in the trial court. They also argued the abatement ordered by the trial court required the complete destruction of the unfinished house and the trial court abused its discretion in failing to consider and impose an alternative form of abatement. The court concluded other than "defendants' own self-serving statement, they failed to present any evidence that the court-ordered remedy would completely destroy the unfinished basement structure." Further, "partial removal and filling in of an unfinished structure, which had been in an unfinished state for nine years and in violation of plaintiff's zoning ordinances for most of that time, was not too drastic a remedy where defendants were repeatedly given opportunities to obtain financing" to remedy the blight, but did failed to do so. The court concluded the record showed the trial court addressed the reasonableness of defendants' alternative proposal, and their proposed remedy would not provide the city with sufficient relief "because the structure, after defendants' proposed remedial measures were completed, would still violate plaintiff's ordinances." Affirmed.

 


Issues: Premises liability; Lugo v. Ameritech Corp.; Slip and fall on ice in a "handicap" area in a parking lot; Whether the defendant-landlord had possession and control of the premises at the time of the plaintiff's injury; Merritt v. Nickelson; Derbabian v. S & C Snowplowing, Inc.; A "possessor" of land; "Possession" defined; Whether the defendant retained control over the premises despite the fact its lease with the plaintiff's employer expressly gave the tenant sole possession of the part of the parking lot at issue and expressly provided the tenant was responsible for ice and snow removal

Court: Michigan Court of Appeals (Unpublished)

Case Name: Thwaite v. Vincenti Court, LLC

e-Journal Number: 44145

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

The trial court properly granted the defendant-landlord summary disposition in this case where the plaintiff slipped and fell when he parked in a "handicap" area in the parking lot at work because the agreement between defendant and its tenant, plaintiff's employer, expressly gave the tenant sole possession of the part of the parking lot at issue and expressly provided the tenant was responsible for keeping it safe and free of ice and snow. The court noted to succeed in a premises liability case, the plaintiff must show "the defendant had both possession and control of the premises at the time of the injury." Further, in this context "possession" is "'the right under which one may exercise control over something to the exclusion of all others,'" and "control" is "'exercising restraint or direction over; dominate, regulate, or command'" and "'the power to . . . manage, direct, or oversee.'" Plaintiff argued on appeal the defendant retained control over the premises because it only leased part of the building and it was responsible for aspects of the maintenance and repair of the building. A pipe draining water from the building roof was the cause of unnatural accumulation of water, which turned the parking lot icy in cold weather, and defendant was planning on redesigning it, but had not done so by the time plaintiff fell. He argued the drain was defendant's responsibility. The court disagreed in light of the express provisions of the agreement between defendant and plaintiff's employer. The court concluded plaintiff's employer was in the position to know it had an employee on crutches who would be using the "handicap" area, "and it was plaintiff's employer who was responsible for clearing the ice." Even if defendant was responsible for the drain routing water into the parking lot, this did "not diminish the tenant's duty to keep the parking lot safe." Affirmed.

 


This summary also appears under Real Property

 

Issues: Claims under the Condominium Act (CA)(MCL 559.239); Whether the trial court properly granted defendant summary disposition on the plaintiff-condo owner's negligence claim related to the replacement of the condo roof; Whether defendant was vicariously liable for the allegedly negligent acts of the company (an independent contractor) hired to replace the roof; Janice v. Hondzinski; Jenkins v Raleigh Trucking Servs., Inc.; Applicability of Restatement Contracts, 2d § 318; Fultz v. Union-Commerce Assoc.; Whether plaintiff was entitled to a set off for his condo assessments because defendant breached its contract under the condo bylaws; Applicability of landlord-tenant law; Newport W. Condo. Ass'n v. Veniar; Whether defendant was entitled to attorney fees; MCL 559.206(b), .207, and .208(2); Condo bylaw Art. XVII, § 1(b); Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club

Court: Michigan Court of Appeals (Unpublished)

Case Name: Valentine v. Barclay Ass'n

e-Journal Number: 44083

Judge(s): Per Curiam - Saad, O'Connell, and Zahra

 

The trial court properly granted the defendant-condo association summary disposition and held, inter alia, it was not liable for slander of title or for negligence, plaintiff was not statutorily permitted to withhold his assessments based on defendant's alleged failure to repair his condo, defendant was entitled to the assessments together with interest and attorney fees, and because the trial court awarded it only one-third of its attorney fees without considering the condo bylaws allowing them, the court affirmed in part, reversed in part, and remanded. Plaintiff owns a condo in defendant's development, which is a nonprofit corporation formed under the CA for management purposes. Plaintiff sued defendant for negligence allegedly because his condo was damaged when a roofer hired by defendant replaced the roof. He also sued for slander of title because defendant placed a lien on his property after he stopped paying his assessment fees, which he withheld because defendant failed to repair his condo. Defendant filed a counterclaim seeking the amount plaintiff owed or to foreclose. Plaintiff argued defendant was vicariously liable for the allegedly negligent acts of the roofing company. The court held the rule "an independent contractor is not subject to the control of the employer, and therefore the employer should not be held vicariously liable for actions outside its control," applied here. Based on its bylaws, defendant is responsible for the maintenance of the "common elements" in the condo complex. The parties agreed the condo buildings' roofs were "common elements." There was no dispute the roofer was an independent contractor and plaintiff did not claim defendant retained any control over the roofing work. Thus, as a matter of law defendant could not be held vicariously liable for damages caused by the roofer's allegedly negligent work when it replaced the roof over plaintiff's condo. The court also held the plaintiff's other claims were without merit.

 


Real Property

 

This summary also appears under Litigation

 

Issues: Quiet title action; Whether the trial court properly set aside the case evaluation against defendant-London; Goch Props., LLC v. C. Van Boxell Transp., Inc.; State Farm Mut. Auto. Ins. Co. v. Galen; Whether unilateral mistakes are sufficient to set aside a case evaluation; CAM Constr. v. Lake Edgewood Condo. Ass'n; Kline v. Kline; "Unconscionable advantage"; Walker v. Walker; Whether the trial court properly denied plaintiff's request for attorney fees and costs; Dessart v. Burak; MCR 2.403(O); Muntean v. City of Detroit; Applicability of MCR 2.603(D)(4)

Court: Michigan Court of Appeals (Unpublished)

Case Name: MTGLQ Investors, L.P. v. London

e-Journal Number: 44077

Judge(s): Per Curiam - Saad, O'Connell, and Zahra

 

The trial court, inter alia, properly set aside the case evaluation award of $40,000 in this quiet title action based on the unfairness it imposed on defendant-London due to his unilateral "misunderstanding" and the fact there was no viable claim against London. The trial court accepted London's claim his acceptance of the evaluation was premised on plaintiff transferring its interest in the property to London in exchange for $40,000, and found plaintiff had no viable claim against London because plaintiff had absolutely no property interest at the time London conveyed title to two people, which was the act allegedly slandering the title. Although the trial court did not use the words "substantial injustice," allowing an innocent party to pay $40,000 in damages would constitute substantial injustice. Further, when the innocent party does not even receive a deed in exchange for the $40,000, the injustice is magnified. Thus, the trial court's decision to set aside the evaluation fell within the principled range of outcomes and the trial court did not abuse its discretion. Plaintiff contended unilateral mistakes are insufficient to set aside a case evaluation citing CAM Constr. as support. However, the court noted subsequent cases have added "unconscionable advantage" as an additional means of overturning a consent judgment. Thus, a unilateral mistake resulting in an "unconscionable advantage" or "substantial injustice" was sufficient to set aside a case evaluation. Further, the trial court had the authority to set aside the case evaluation if not doing so would have resulted in a substantial injustice. The court also held the trial court did not abuse its discretion by choosing not to award plaintiff attorney fees. Affirmed.

 


This summary also appears under Negligence & Intentional Tort

 

Issues: Claims under the Condominium Act (CA)(MCL 559.239); Whether the trial court properly granted defendant summary disposition on the plaintiff-condo owner's negligence claim related to the replacement of the condo roof; Whether defendant was vicariously liable for the allegedly negligent acts of the company (an independent contractor) hired to replace the roof; Janice v. Hondzinski; Jenkins v Raleigh Trucking Servs., Inc.; Applicability of Restatement Contracts, 2d § 318; Fultz v. Union-Commerce Assoc.; Whether plaintiff was entitled to a set off for his condo assessments because defendant breached its contract under the condo bylaws; Applicability of landlord-tenant law; Newport W. Condo. Ass'n v. Veniar; Whether defendant was entitled to attorney fees; MCL 559.206(b), .207, and .208(2); Condo bylaw Art. XVII, § 1(b); Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club

Court: Michigan Court of Appeals (Unpublished)

Case Name: Valentine v. Barclay Ass'n

e-Journal Number: 44083

Judge(s): Per Curiam - Saad, O'Connell, and Zahra

 

The trial court properly granted the defendant-condo association summary disposition and held, inter alia, it was not liable for slander of title or for negligence, plaintiff was not statutorily permitted to withhold his assessments based on defendant's alleged failure to repair his condo, defendant was entitled to the assessments together with interest and attorney fees, and because the trial court awarded it only one-third of its attorney fees without considering the condo bylaws allowing them, the court affirmed in part, reversed in part, and remanded. Plaintiff owns a condo in defendant's development, which is a nonprofit corporation formed under the CA for management purposes. Plaintiff sued defendant for negligence allegedly because his condo was damaged when a roofer hired by defendant replaced the roof. He also sued for slander of title because defendant placed a lien on his property after he stopped paying his assessment fees, which he withheld because defendant failed to repair his condo. Defendant filed a counterclaim seeking the amount plaintiff owed or to foreclose. Plaintiff argued defendant was vicariously liable for the allegedly negligent acts of the roofing company. The court held the rule "an independent contractor is not subject to the control of the employer, and therefore the employer should not be held vicariously liable for actions outside its control," applied here. Based on its bylaws, defendant is responsible for the maintenance of the "common elements" in the condo complex. The parties agreed the condo buildings' roofs were "common elements." There was no dispute the roofer was an independent contractor and plaintiff did not claim defendant retained any control over the roofing work. Thus, as a matter of law defendant could not be held vicariously liable for damages caused by the roofer's allegedly negligent work when it replaced the roof over plaintiff's condo. The court also held the plaintiff's other claims were without merit.

 


Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); Plain error; People v. Carines; Failing to timely appoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3.915(B)(1), MCR 3.965(B)(5), and MCR 3.974(B)(3)(a)(i); Failing to advise the respondent-father his plea could later be used in a proceeding to terminate his parental rights in violation of MCR 3.917(B)(4)

Court: Michigan Supreme Court

Case Name: In re Mitchell

e-Journal Number: 44183

Judge(s): Kelly, Cavanagh, Weaver, Corrigan, Young, Jr., Markman, and Hathaway

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 42260 in the 3/30/09 edition) for the reasons stated in the Court of Appeals dissenting opinion and because the trial court committed plain error in failing to timely appoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3.915(B)(1), MCR 3.965(B)(5), and MCR 3.974(B)(3)(a)(i), and in failing to advise the respondent-father his plea could later be used in a proceeding to terminate his parental rights in violation of MCR 3.917(B)(4). Thus, the court remanded the case to the trial court for further proceedings not inconsistent with this order.