Tuesday, November 3, 2009
Staples Ad
Sign up to receive the Disabilities Project Newsletter, a free quarterly electronic newsletter addressing issues faced by people with disabilities.

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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

Case Summaries           e-Mail to a Friend Printer Friendly Version

Today's e-Journal includes summaries of two Michigan Supreme Court orders under Debtor/Creditor, Municipal, and Real Property. Cases appear under the following practice areas:


Contracts

 

This summary also appears under Litigation

 

Issues: Fraud; Hi-Way Motor Co. v. International Harvester Co.; Whether an employee acted recklessly by following a supervisor's direction to forward information to a third party without verifying the information; Echelon Homes, LLC v. Carter Lumber Co.; Whether the trial court should have considered defendant-Paul Paulson's affidavit before granting the plaintiff summary disposition on its fraud claim against defendant-Dixie Paulson; Craig v. Oakwood Hosp.; Rule adopted by federal courts barring a civil litigant who raised the Fifth Amendment privilege against self-incrimination during discovery from presenting evidence on the issue during trial and/or in response to a summary disposition motion; Dunkin' Donuts, Inc. v. Taseski (ED MI); Traficant v. Commissioner of IRS (6th Cir.); In re Edmund (4th Cir.); US v. Parcels of Land (1st Cir.); U.S. v. Sixty Thousand Dollars in U.S. Currency (ED MI); SEC v. Graystone Nash, Inc. (3rd Cir.); Tolliver v. Federal Republic of Nigeria (WD MI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cadle Co. II, Inc. v. Lakeside Mach., Inc.

e-Journal Number: 44153

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

 

The trial court abused its discretion by refusing to consider defendant-Paul Paulson's affidavit before granting the plaintiff summary disposition on its fraud claim against defendant-Dixie Paulson where Paul's invocation of his privilege against self-incrimination occurred in a separate case, and plaintiff made no showing of any prejudice resulting from submission of his affidavit. Further, the trial court erred in granting plaintiff summary disposition because there was a genuine issue of material fact whether Dixie acted with reckless indifference to the truth of the representations made by defendant-Lakeside about its financial status by not verifying the data Paul provided to her, particularly since the evidence established her job responsibilities or authority did not include the maintenance or the auditing of this information. The case arose from a default on a revolving loan issued to Lakeside. Dixie was Lakeside's office manager and sometimes Paul asked her to generate, sign, and submit "collateral reports" to the bank, based on financial information provided to her by Paul. Lakeside obtained loan advances by submitting the reports. After an independent review of Lakeside's records, the bank determined it had "overadvanced" more than $2 million to Lakeside and declined to provide it with any more credit. Lakeside ceased operation. The bank sued Lakeside and its owners, including Paul. He filed for bankruptcy and during his debtor's exam, refused to answer questions about the responsibility for preparation of the financial data in the collateral reports. Plaintiff later moved to amend its complaint in this case to add a fraud claim against Dixie based on her signing some of the reports. Plaintiff deposed Dixie during this case, but not Paul. In response to plaintiff's summary disposition motion, Dixie submitted Paul's affidavit confirming Dixie's deposition testimony she acted in a ministerial role when she inserted the financial information he provided into the reports, signed them on Lakeside's behalf, and submitted them to the bank. The trial court refused to consider the affidavit based on several federal cases holding a party cannot invoke the Fifth Amendment privilege against self-incrimination during discovery and then later submit evidence on issues on which the party declined to testify in opposition to a summary judgment motion. The court held even if this federal rule applied under Michigan law, it did not warrant the trial court's refusal to consider Paul's affidavit under the circumstances. He did not assert the privilege in this case, plaintiff did not try to depose him in this case, and the trial court invoked the rule against Dixie, a party other than the one who had asserted the privilege. Further, summary disposition was improper due to unresolved fact issues. Reversed and remanded.

 


Criminal Law

 

Issues: Cross-examination of the defendant about prior alleged assaults; MRE 608(b)(1); People v. Fields; People v. Orr; MRE 404(a)(1); MRE 405(a); Rebuttal testimony; People v. Nantelle; People v. Leo; People v. Losey; Sufficiency of the evidence on the injury element of the aggravated domestic violence conviction; People v. Meshell; CJI2d 17.6; People v. Brown; Sentencing; Upward departure from the guidelines; Whether the departure was proportionate; People v. Smith; Intermediate sanction; MCL 777.68; MCL 769.31(b); People v. Muttscheler; MCL 769.34(4)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Arwood

e-Journal Number: 44127

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

 

The prosecutor's cross-examination of defendant about alleged prior assaults against his girlfriend (the victim) was permissible under MRE 608(b)(1), and the girlfriend's rebuttal testimony directly responded to his claims of his excellent treatment of her and his nonviolent character. Defendant was convicted of domestic violence, second offense and aggravated domestic violence, second offense. The trial court departed upward from the guidelines on the aggravated domestic violence conviction and sentenced him to 16 to 24 months in prison to be served concurrently with 93 days on the domestic violence conviction. Defendant testified he treated his girlfriend "like a princess" and he believed "it's not right for anybody to put their hands on each other" except in self-defense. The court concluded "once defendant made these gratuitous statements, the prosecutor was entitled to attempt to impeach his testimony by reference to allegations of prior assaults." Defendant also argued the trial court erred in permitting the prosecution to present rebuttal testimony from the victim. Under Leo and Losey, "rebuttal testimony is not permissible if offered to counter testimony improperly elicited on cross-examination." However, here the cross-examination was proper. Defendant placed his character at issue, opening the door for rebuttal testimony. While the specific instances of his conduct described in the rebuttal testimony might not have been admissible to impeach his credibility under MRE 608(b), the court held the evidence was admissible to rebut the character evidence he offered under MRE 404(a)(1). The court affirmed defendant's convictions, but vacated his sentence and remanded for resentencing under Smith. His guidelines score placed him in an intermediate sanction cell, and his characteristics were not comparable to the characteristics warranting a prison sentence under the guidelines. To warrant a prison sentence, a defendant would have to have a PRV score of more than twice his PRV score. Even if he received PRV points for his prior assaults on his girlfriend, his scores still placed him in an intermediate sanction cell. Further, the fact he had previously assaulted this particular victim did "not necessarily support the upward departure from the guidelines." On remand, the trial court may sentence defendant within the guidelines, or explain on the record why a departure sentence is more proportionate in this case and justify the level of departure imposed.

 


Issues: Sufficiency of the evidence of the defendant's identity to support his armed robbery, felon in possession of a firearm, and felony-firearm convictions; Whether the trial court's finding in defendant's bench trial he was the robber was against the great weight of the evidence; People v. Lemmon; People v. Robinson; People v. Passage; Adequate record for meaningful appellate review; People v. Adkins; Effect of the prosecution's failure to produce some exhibits; People v. Drake; The accuracy of the victim's description as one factor affecting the reliability of her identification testimony; People v. Davis; People v. Anderson; Whether the victim's in-court identification of defendant should have been suppressed because it was the product of unduly suggestive identification procedures; People v. Colon; People v. Gray; Plain error review; People v. Carines; Denial of defendant's motion for the victim to attend a live lineup before trial; People v. McAllister; Ineffective assistance of counsel for withdrawing a motion to suppress the identification testimony; People v. Chambers; People v. Carbin; Striking statements from the PSIR; People v. Uphaus (On Remand); MCL 771.14(6); People v. Spanke; MCR 6.425(E)(2); Waiver; People v. Carter

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brandon

e-Journal Number: 44121

Judge(s): Per Curiam - Wilder, Meter, and Fort Hood

 

Holding, inter alia, the alleged discrepancies between the defendant's appearance in photographs and at trial and the testimony by the victim (W) and another witness (P) did not establish a basis for vacating his armed robbery, felon in possession, and felony-firearm convictions or ordering a new trial, the court affirmed his convictions. On appeal, he argued the evidence was insufficient to establish his identity as the robber and thus, his conviction should be vacated. Alternatively, he sought a new trial on the basis the trial court's finding in his bench trial he was the robber was against the great weight of the evidence. The court disagreed. For purposes of review, it accepted the trial court's description of the booking photographs as depicting defendant's head was closely shaven, not bald, and accepted defense counsel's description of defendant's appearance at the time of trial as including a tattoo on his left forearm and a scar on his neck. Although W estimated the length of the robber's hair as "about one inch," the trial evidence did not show how much defendant's hair could have grown in the nine days after his booking photos were taken. Further, assuming it was physically impossible for his hair to reach the estimated length W gave, "the accuracy of her description, as compared to defendant's actual appearance, is only one factor affecting the reliability of her identification testimony." W was "adamant" at trial her attention was focused on defendant's face. She testified her identification "was not by the hair, my identification was looking him straight in the eye and studying his face." Asked if she saw any unusual disfigurations or scars, she testified, "I was staring at a gun and his face." She had no doubt about her identification of defendant at trial. P, who claimed he was seated in the front passenger seat during the robbery, also made an in-court identification of defendant. Viewing the evidence in the light most favorable to the prosecution, W's testimony alone was sufficient for the trier of fact to find beyond a reasonable doubt defendant was the robber. The court also held the verdict was not against the great weight of the evidence. There was no basis for finding this case presented "the type of physical impossibility or other exceptional circumstances" justifying removal of credibility issues from the fact finder. The court affirmed defendant's convictions and sentences, but reversed and remanded for further proceedings related to the trial court's treatment of information in his PSIR.

 


Issues: Exclusion of evidence; "Relevant" evidence; MRE 401 and 402; Whether the evidence was relevant to the defendant's self-defense claim; People v. Heflin; Whether exclusion of the evidence violated defendant's constitutional right to present a defense; People v. Unger; Plain error review; People v. Carines; Whether the trial court should have instructed the jury to disregard gestures made by a police officer; People v. Dobek; Presumption jurors follow their instructions; People v. Graves; Sentencing; Scoring of OVs 7 and 19; People v. Hornsby

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Edwards

e-Journal Number: 44147

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

 

The trial court did not abuse its discretion in excluding a 12-year old girl's testimony the victim touched her in a sexual manner while tickling her because the evidence was not relevant to the defendant's self-defense claim. He was convicted of assault with intent to do great bodily harm less than murder for striking his neighbor several times with a child's aluminum baseball bat. A female witness interfered in the assault and called 911. Defendant ran to the residence of a friend, M, and asked him to hide him. M refused. Defendant then asked M's son to drive him away from the area, the son refused, and defendant was arrested. He was charged with assault with intent to commit murder. He claimed at trial he struck the victim in self-defense. On appeal, defendant argued the 12-year old girl's testimony was relevant to his self-defense claim because the incident influenced his perception of the risks he faced from the victim. He contended the evidence was relevant to the issue of whether he honestly believed he was in danger from the victim, an element of self-defense. However, he did not explain how the victim's "alleged inappropriate behavior with the girl contributed to his fear of danger." The record did not contain any reference establishing the date of the alleged inappropriate touching, and defendant acknowledged the alleged incident did not involve any violence between him and the victim. The court held under the circumstances, the trial court was within its discretion to find the evidence was irrelevant. Further, defendant was not denied his constitutional right to present a defense because the "exclusion of irrelevant evidence does not infringe on a defendant's right to present a defense." Defendant's challenges to the scoring of OVs 7 and 19 also failed. The court held the scoring of 50 points for OV 7 was supported by trial testimony defendant repeatedly pounded the victim with a baseball bat and the victim sustained serious injuries, including facial fractures. The scoring of 10 points for OV 19 was also supported by defendant's actions in asking M to hide him, M's son to drive him away from the area, and the fact he then hid in a dark crevice, where the police found him and arrested him. Affirmed.

 


Issues: Sufficiency of the evidence to support the defendant's second-degree murder conviction; People v. Nowack; Denial of motion for a directed verdict on the first-degree murder charge; People v. Gillis; People v. Morrin; Premeditation; People v. Berry (On Remand); Use of a deadly weapon; People v. Plummer; "Jury compromise"; Effect of the fact a jury asked questions during deliberations; People v. Clark; Presumption a jury follows its instructions; People v. Graves; Admission of a photograph of the victim's heart; People v. Mills; MRE 403; People v. Turner; People v. Lukity; Ineffective assistance of counsel; People v. Pubrat; People v. LeBlanc; People v. Frazier; People v. Mack; Review limited to mistakes apparent on the record; People v. Sabin (On Second Remand); Matters of trial strategy; People v. Unger; People v. Odom; People v. Matuszak; People v. Avant; Prosecutorial misconduct; Plain error review; People v. Callon; People v. Thomas; People v. Dobek; Knowing presentation of false testimony; People v. Aceval; Cumulative error; People v. McLaughlin; Denial of motion to sever the felon in possession charge; People v. Swint; MCR 6.120(B) and (C); People v. Mayfield; Jury venire; Taylor v. Louisiana; People v. Hubbard (After Remand); People v. McKinney

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gamble

e-Journal Number: 44125

Judge(s): Per Curiam - Jansen, Fort Hood, and Gleicher

 

While most, if not all, the evidence against defendant was circumstantial, viewed in a light most favorable to the prosecution it was sufficient for a rational trier of fact to conclude he was the individual responsible for the victim's death. Thus, the court rejected his claim the evidence was insufficient to support his second-degree murder conviction. The testimony showed about a week before the murder, defendant and the victim were allegedly involved in an incident at a bar, during which the victim allegedly shot at and damaged defendant's vehicle. Defendant did not deny this testimony demonstrated a possible motive. Other testimony showed on the night of the shooting at a nightclub, defendant was angry with the victim and told a friend of the victim to tell him defendant wanted money to fix his vehicle. According to a witness, defendant told him if the victim tried anything funny, he was ready for him. The witness testified defendant then showed him the butt of a gun, and he believed defendant might use it on the victim. Other witnesses testified moments before the victim was shot, he and the defendant had a conversation near the front of the nightclub. One witness overheard defendant tell the victim in an angry voice, "Wait until we get outside." Another witness testified days after the shooting, he overheard defendant say he had shot someone at the nightclub. It was determined the victim was shot with either a .38 special or a .357 magnum. There was testimony defendant had a .357 magnum in his possession before the shooting. The court also held, inter alia, while the prosecutor committed misconduct by knowingly presenting false testimony from a witness (R), no plain error occurred. The court concluded the evidence clearly established the prosecutor knew before calling R his testimony about defendant's alleged alibi was false. Thus, the prosecutor's only benefit in calling R was to try to establish defendant was trying to create a false alibi and to attack his credibility. "This was clearly impermissible," and the court did not "condone such behavior by prosecutors in this state." However, defendant was not entitled to relief on this issue because it was not plain the trial's outcome would have been different if R's testimony was excluded. Defendant admitted he was at the nightclub, he did not file a notice of alibi, and the jury was told he did not endorse R's testimony. In light of the other evidence, it could not be said he would have been acquitted if R had not testified. Affirmed.

 


Debtor/Creditor

 

This summary also appears under Real Property

 

Issues: Efforts to collect on a judgment; Claim to set aside mortgages as fraudulent conveyances; The former Uniform Fraudulent Conveyance Act (MCL 566.17); The Uniform Fraudulent Transfer Act (MCL 566.34(1)(a)); Foodland Distribs. v. Al-Naimi; Fraudulent intent; In re Auto Specialties Mfg. Co. (WD MI); In re Otis & Edwards, P.C. (ED MI); "Badges of fraud"; Coleman-Nichols v. Tixon Corp.; MCL 566.34(2)

Court: Michigan Supreme Court

Case Name: Al-Naimi v. Foodland Distribs., Inc.

e-Journal Number: 44188

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 # 42906 in the 6/12/09 edition) for the reasons stated in the Court of Appeals dissenting opinion and remanded the case to the trial court for further proceedings not inconsistent with the court's order.

 


Employment & Labor Law

 

This summary also appears under Insurance

 

Issues: ERISA claim; "The highly deferential arbitrary and capricious" standard of review; University Hosp. of Cleveland v. Emerson Elec.; Conflict of interest; Metropolitan Life Ins. Co. v. Glenn; Whether defendant-Standard changed its justification for terminating benefits; Wenner v. Sun Life Assur. Co. of Canada; Decision to discontinue benefits; Whitaker v. Hartford Life & Accident Ins. Co.; Smith v. Ameritech; Calvert v. Firstar Fin., Inc.; Glenn v. Metlife; Independent medical examiner (IME)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Cox v. Standard Ins. Co.

e-Journal Number: 44186

Judge(s): Martin, Guy, and McKeague

 

Taking the record as a whole in this ERISA case and applying the highly deferential arbitrary and capricious standard of review, the court held defendant-Standard's decision to discontinue plaintiff's long-term disability benefits appeared to have been based on a "principled and deliberative reasoning process," and affirmed the district court's order approving the decision. The 42-year old plaintiff worked as a family practice physician until April 2003, when he suffered a disabling event both he and his physician described as a stroke. He had a history of complex migraine headaches and suffered a migraine on April 23, which left him hospitalized. He underwent neurological scans and blood-flow tests in the next weeks. His neurologist, V, evaluated plaintiff in early June and noted the MRI showed "evidence for ischemic change in the brainstem and cerebellum." V's progress notes over the next few years continued to describe plaintiff as suffering from "complicated migraine syndrome" resulting in an "ischemic brainstem event." He further described him as having "suffered a stroke related to a complicated migraine." In June 2003, after V advised plaintiff not to return to work, he began receiving short-term disability benefits from Standard under a group plan through his employer. The short-term benefits expired in October and plaintiff then received long-term disability benefits under a plan also administered by Standard. At Standard's request, plaintiff applied for and was approved for disability benefits through Social Security. During this time he continued to receive follow-up care from V. Plaintiff reported daily headaches precipitated by stress, weather, and bright lights. He also reported persistent problems with balance and disequilibrium and V noted he was at risk for "ongoing ischemic injury." Standard's "own occupation" long-term benefits lasted until October 2005. It sent him a letter informing him he would have to meet the "any occupation" definition to continue benefits, began review of more medical records, had him seen by an IME, and had a private investigator survey his activities over a three-day period. As a result of the review, Standard notified plaintiff he no longer qualified for long-term benefits. He requested a review but the decision did not change. The court noted in reviewing Standard's decision, it kept in mind the fact Standard both determines eligibility for benefits and pays those benefits. The court held taken as a whole, the evidence supported Standard's decision and affirmed.

 


Insurance

 

This summary also appears under Employment & Labor Law

 

Issues: ERISA claim; "The highly deferential arbitrary and capricious" standard of review; University Hosp. of Cleveland v. Emerson Elec.; Conflict of interest; Metropolitan Life Ins. Co. v. Glenn; Whether defendant-Standard changed its justification for terminating benefits; Wenner v. Sun Life Assur. Co. of Canada; Decision to discontinue benefits; Whitaker v. Hartford Life & Accident Ins. Co.; Smith v. Ameritech; Calvert v. Firstar Fin., Inc.; Glenn v. Metlife; Independent medical examiner (IME)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Cox v. Standard Ins. Co.

e-Journal Number: 44186

Judge(s): Martin, Guy, and McKeague

 

Taking the record as a whole in this ERISA case and applying the highly deferential arbitrary and capricious standard of review, the court held defendant-Standard's decision to discontinue plaintiff's long-term disability benefits appeared to have been based on a "principled and deliberative reasoning process," and affirmed the district court's order approving the decision. The 42-year old plaintiff worked as a family practice physician until April 2003, when he suffered a disabling event both he and his physician described as a stroke. He had a history of complex migraine headaches and suffered a migraine on April 23, which left him hospitalized. He underwent neurological scans and blood-flow tests in the next weeks. His neurologist, V, evaluated plaintiff in early June and noted the MRI showed "evidence for ischemic change in the brainstem and cerebellum." V's progress notes over the next few years continued to describe plaintiff as suffering from "complicated migraine syndrome" resulting in an "ischemic brainstem event." He further described him as having "suffered a stroke related to a complicated migraine." In June 2003, after V advised plaintiff not to return to work, he began receiving short-term disability benefits from Standard under a group plan through his employer. The short-term benefits expired in October and plaintiff then received long-term disability benefits under a plan also administered by Standard. At Standard's request, plaintiff applied for and was approved for disability benefits through Social Security. During this time he continued to receive follow-up care from V. Plaintiff reported daily headaches precipitated by stress, weather, and bright lights. He also reported persistent problems with balance and disequilibrium and V noted he was at risk for "ongoing ischemic injury." Standard's "own occupation" long-term benefits lasted until October 2005. It sent him a letter informing him he would have to meet the "any occupation" definition to continue benefits, began review of more medical records, had him seen by an IME, and had a private investigator survey his activities over a three-day period. As a result of the review, Standard notified plaintiff he no longer qualified for long-term benefits. He requested a review but the decision did not change. The court noted in reviewing Standard's decision, it kept in mind the fact Standard both determines eligibility for benefits and pays those benefits. The court held taken as a whole, the evidence supported Standard's decision and affirmed.

 


Litigation

 

This summary also appears under Contracts

 

Issues: Fraud; Hi-Way Motor Co. v. International Harvester Co.; Whether an employee acted recklessly by following a supervisor's direction to forward information to a third party without verifying the information; Echelon Homes, LLC v. Carter Lumber Co.; Whether the trial court should have considered defendant-Paul Paulson's affidavit before granting the plaintiff summary disposition on its fraud claim against defendant-Dixie Paulson; Craig v. Oakwood Hosp.; Rule adopted by federal courts barring a civil litigant who raised the Fifth Amendment privilege against self-incrimination during discovery from presenting evidence on the issue during trial and/or in response to a summary disposition motion; Dunkin' Donuts, Inc. v. Taseski (ED MI); Traficant v. Commissioner of IRS (6th Cir.); In re Edmund (4th Cir.); US v. Parcels of Land (1st Cir.); U.S. v. Sixty Thousand Dollars in U.S. Currency (ED MI); SEC v. Graystone Nash, Inc. (3rd Cir.); Tolliver v. Federal Republic of Nigeria (WD MI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cadle Co. II, Inc. v. Lakeside Mach., Inc.

e-Journal Number: 44153

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

 

The trial court abused its discretion by refusing to consider defendant-Paul Paulson's affidavit before granting the plaintiff summary disposition on its fraud claim against defendant-Dixie Paulson where Paul's invocation of his privilege against self-incrimination occurred in a separate case, and plaintiff made no showing of any prejudice resulting from submission of his affidavit. Further, the trial court erred in granting plaintiff summary disposition because there was a genuine issue of material fact whether Dixie acted with reckless indifference to the truth of the representations made by defendant-Lakeside about its financial status by not verifying the data Paul provided to her, particularly since the evidence established her job responsibilities or authority did not include the maintenance or the auditing of this information. The case arose from a default on a revolving loan issued to Lakeside. Dixie was Lakeside's office manager and sometimes Paul asked her to generate, sign, and submit "collateral reports" to the bank, based on financial information provided to her by Paul. Lakeside obtained loan advances by submitting the reports. After an independent review of Lakeside's records, the bank determined it had "overadvanced" more than $2 million to Lakeside and declined to provide it with any more credit. Lakeside ceased operation. The bank sued Lakeside and its owners, including Paul. He filed for bankruptcy and during his debtor's exam, refused to answer questions about the responsibility for preparation of the financial data in the collateral reports. Plaintiff later moved to amend its complaint in this case to add a fraud claim against Dixie based on her signing some of the reports. Plaintiff deposed Dixie during this case, but not Paul. In response to plaintiff's summary disposition motion, Dixie submitted Paul's affidavit confirming Dixie's deposition testimony she acted in a ministerial role when she inserted the financial information he provided into the reports, signed them on Lakeside's behalf, and submitted them to the bank. The trial court refused to consider the affidavit based on several federal cases holding a party cannot invoke the Fifth Amendment privilege against self-incrimination during discovery and then later submit evidence on issues on which the party declined to testify in opposition to a summary judgment motion. The court held even if this federal rule applied under Michigan law, it did not warrant the trial court's refusal to consider Paul's affidavit under the circumstances. He did not assert the privilege in this case, plaintiff did not try to depose him in this case, and the trial court invoked the rule against Dixie, a party other than the one who had asserted the privilege. Further, summary disposition was improper due to unresolved fact issues. Reversed and remanded.

 


Issues: Whether the trial court properly dismissed the complaint on the ground it was barred by the doctrine of res judicata; RDM Holdings, Ltd. v. Continental Plastics Co.; Maldonado v. Ford Motor Co.; In re Temple Marital Trust; Whether dismissal with prejudice for violating the court rules is an adjudication on the merits; Makowski v. Towles; Identical issues; Huggett v. Department of Natural Res.; "Privity"; Richards v. Tibaldi; Failure to comply with the relevant court rules; MCR 2.11(A)(1) and (B)(1); National Waterworks, Inc. v. International Fid. & Sur., Ltd.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Clanton v. Department of Transp.

e-Journal Number: 44171

Judge(s): Memorandum - Jansen, Fort Hood, and Gleicher

 

The trial court properly dismissed plaintiff's complaint on the ground it was barred by the doctrine of res judicata. Plaintiff filed two previous cases where the court affirmed the trial court's dismissal of plaintiff's lawsuit for failure to comply with the relevant court rules. Unless the dismissal order provides otherwise, a dismissal with prejudice for violating the court rules is an adjudication on the merits. The issues raised in the prior actions were identical to the case before the court. Plaintiff did not dispute the satisfaction of the privity requirement and this defendant was expressly named in a prior action. Further, as in his prior cases, plaintiff failed to comply with the relevant court rules where his allegations were not concise, clear, direct, and his statement of claim failed to provide the requisite clarity to inform defendant of the nature of his claims. Similarly, plaintiff's brief on appeal was "confusing, often incoherent, and lacking intelligible legal argument and relevant supporting authority." Affirmed.

 


Municipal

 

This summary also appears under Real Property

 

Issues: Zoning; Whether short-term rentals were allowed under the ordinance in effect when the defendant began using the property in this manner; Interpretation of ordinance language; Goldstone v. Bloomfield Twp. Pub. Library; Standard of review; Jonkers v. Summit Twp.; Nonconforming use; Heath Twp. v. Sall; MCL 125.3208(1)

Court: Michigan Supreme Court

Case Name: Laketon Twp. v. Advanse, Inc.

e-Journal Number: 44189

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 judgment of the Court of Appeals (see e-Journal # 42228 in the 3/31/09 edition) and reinstated the trial court's Februay 9, 2007 opinion and order and the February 28, 2007 judgment and final order for injunctive relief. Under § 200 of the 1979 zoning ordinance, use of the subject premises, which were zoned Residential District A, was restricted to "single family dwellings." Single family dwellings were a subset of the 1979 ordinance's more expansive definition of "dwelling." Thus, the defendant's expansion of the rental use of the subject premises to include the main residence situated on the property, after purchasing it in 2003, constituted an impermissible expansion of an existing nonconforming use lawful under the 1979 ordinance.

 


Probate

 

This summary also appears under Wills & Trusts

 

Issues: Whether the probate court erred in considering extrinsic evidence in appointing petitioner-Borman as successor trustee; In re Temple Marital Trust; In re Reisman Estate; In re Kostin Estate; Whether the trust agreement was unambiguous; "Patent" and "latent" ambiguities; In re Woodworth Trust; In re McPeak Estate

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Faulhaber Trust

e-Journal Number: 44122

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

 

Concluding the trust document was ambiguous and the trial court did not err in considering extrinsic evidence in appointing petitioner-Borman as successor trustee, the court affirmed. In 1998, Lillian Faulhaber created the Trust, which contained a successor trustee provision in which the Grantor was the Primary Trustee and Old Kent Bank was the Successor Trustee. It was undisputed Old Kent Bank and Fifth Third Bank merged and Old Kent is longer in existence. Borman moved the probate court to appoint him successor trustee and presented the trial court with a letter from Fifth Third indicating it was unwilling to act as successor trustee. He also presented letters from two doctors stating Faulhaber suffered from Alzheimer's disease. Respondent-Cerisano opposed the motion and argued Fifth Third should be appointed as successor trustee. The trial court held the Trust agreement was ambiguous because Faulhaber wanted "Old Kent Bank, not Fifth Third" to be successor trustee, and appointed Borman. The court concluded the Trust agreement contained no patent ambiguity, and unambiguously named Old Kent as successor trustee. However, the extrinsic fact Old Kent was no longer in existence created the possibility of more than one meaning. There was no language in the agreement to establish Faulhaber intended a corporate successor of Old Kent to be named successor trustee. The agreement was silent as to her intent if Old Kent was subsumed by another corporate entity. Thus, the Trust agreement was ambiguous as to whether Faulhaber intended Fifth Third to be successor trustee. The trial court properly considered extrinsic evidence in determining whether to appoint Borman or Fifth Third.

 


Real Property

 

This summary also appears under Debtor/Creditor

 

Issues: Efforts to collect on a judgment; Claim to set aside mortgages as fraudulent conveyances; The former Uniform Fraudulent Conveyance Act (MCL 566.17); The Uniform Fraudulent Transfer Act (MCL 566.34(1)(a)); Foodland Distribs. v. Al-Naimi; Fraudulent intent; In re Auto Specialties Mfg. Co. (WD MI); In re Otis & Edwards, P.C. (ED MI); "Badges of fraud"; Coleman-Nichols v. Tixon Corp.; MCL 566.34(2)

Court: Michigan Supreme Court

Case Name: Al-Naimi v. Foodland Distribs., Inc.

e-Journal Number: 44188

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 # 42906 in the 6/12/09 edition) for the reasons stated in the Court of Appeals dissenting opinion and remanded the case to the trial court for further proceedings not inconsistent with the court's order.

 


This summary also appears under Municipal

 

Issues: Zoning; Whether short-term rentals were allowed under the ordinance in effect when the defendant began using the property in this manner; Interpretation of ordinance language; Goldstone v. Bloomfield Twp. Pub. Library; Standard of review; Jonkers v. Summit Twp.; Nonconforming use; Heath Twp. v. Sall; MCL 125.3208(1)

Court: Michigan Supreme Court

Case Name: Laketon Twp. v. Advanse, Inc.

e-Journal Number: 44189

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 judgment of the Court of Appeals (see e-Journal # 42228 in the 3/31/09 edition) and reinstated the trial court's Februay 9, 2007 opinion and order and the February 28, 2007 judgment and final order for injunctive relief. Under § 200 of the 1979 zoning ordinance, use of the subject premises, which were zoned Residential District A, was restricted to "single family dwellings." Single family dwellings were a subset of the 1979 ordinance's more expansive definition of "dwelling." Thus, the defendant's expansion of the rental use of the subject premises to include the main residence situated on the property, after purchasing it in 2003, constituted an impermissible expansion of an existing nonconforming use lawful under the 1979 ordinance.

 


Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (j), and (k)(ii); In re Trejo Minors; Whether the trial court properly barred respondent's expert witness from testifying as a sanction for the violation of a sequestration order; People v. Meconi; Maldonado v. Ford Motor Co.; MRE 615; Whether the trial court properly barred respondent's other expert witness; People v. Murray; MRE 702; Trial court's preclusion of two other of respondent's proposed witnesses; Whether the trial court should have barred the testimony of a therapist as to disclosures by one of respondent's children about sexual abuse; MCR 3.972(C)(2)(a); In re Brimer; Whether the trial court properly admitted the testimony of a forensic interviewer; Admission of portions of a polygraph examiner's interviews of respondent; Richardson v. Ryder Truck Rental, Inc.; MRE 106

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re D. K.

e-Journal Number: 44152

Judge(s): Per Curiam - Murphy, Meter, and Beckering

 

The court held, inter alia, given the clear and convincing evidence the respondent-father committed CSC involving penetration against child X, given the fact both X and her sibling are females of around the same age, and given the fact respondent denied having done anything inappropriate, it could not conclude the trial court clearly err in finding § 19b(3)(k)(ii) was established by clear and convincing evidence and in terminating respondent's parental rights to the two minor children. The case was initiated after it was alleged respondent sexually abused one of his daughters (X) born in 2003. The court concluded at a minimum, § 19b(3)(k)(ii) was established by clear and convincing evidence. There was testimony by a therapist and a forensic interviewer who worked with the child, and her mother testified X informed her she was having pain while trying to urinate and there was red mark on the child's vagina. The mother also testified X stated respondent "kissed her" and then pointed to her "private parts." Further, respondent admitted during an interview conducted by a Secret Service Agent that he penetrated X's vagina with his finger. This evidence adequately supported the trial court's conclusion § 19b(3)(k)(ii) was established. While respondent testified at trial he did not inappropriately touch X, it was up to the trial court to judge the credibility of the witnesses. The court also held none of respondent's other claims on appeal had any merit. Affirmed.

 


Issues: Termination of the respondent-mother's parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Miller; In re Conley; In re Powers Minors; The best interests of the children; In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Walker

e-Journal Number: 44182

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

 

The trial court did not clearly err in finding the statutory grounds for termination of the respondent-mother's parental rights to her children were established by clear and convincing evidence and in terminating those rights, and did not clearly err in holding termination of both the respondents-parents' parental rights was in the children's best interests. The conditions leading to the initial adjudication included environmental and educational neglect, and the mother's substance abuse, which she never resolved. She never completed a substance abuse treatment program and several attempts at treatment were unsuccessful. She also did not begin regularly submitting random drug screens until after the termination petition was filed. Nearly three years after the children were placed in care, the mother twice tested positive for cocaine. She claimed to be attending NA/AA meetings, but failed to provide proof of attendance, did not have a sponsor, and had little knowledge of the 12-step programs. Considering her more than 20-year substance abuse history, her failure to successfully complete a treatment program, and her refusal to cooperate with other services, the trial court did not clearly err in finding she was not reasonably likely to rectify her substance abuse problem within a reasonable time. The record also showed the mother had a serious anger management problem, which she claimed no longer existed. She refused to believe her volatile temper affected her children. She displayed an inability to, as the trial court put it, "maintain herself" during the court proceedings. Her psychological profile indicated she is resistant to treatment and unlikely to benefit from services. The evidence also showed the children were harmed when they were born with cocaine in their system, and they were emotionally harmed by the mother's addiction and uncontrolled anger. They were also harmed by her failure to send them to school. Considering the fact the respondent-father had not seen the children for almost two years since he was serving a prison sentence, the court rejected his claim of error as to the best interests issue. The trial court properly held termination of his parental rights was in the children's best interests. Affirmed.

 


Wills & Trusts

This summary also appears under Probate

 

Issues: Whether the probate court erred in considering extrinsic evidence in appointing petitioner-Borman as successor trustee; In re Temple Marital Trust; In re Reisman Estate; In re Kostin Estate; Whether the trust agreement was unambiguous; "Patent" and "latent" ambiguities; In re Woodworth Trust; In re McPeak Estate

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Faulhaber Trust

e-Journal Number: 44122

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

 

Concluding the trust document was ambiguous and the trial court did not err in considering extrinsic evidence in appointing petitioner-Borman as successor trustee, the court affirmed. In 1998, Lillian Faulhaber created the Trust, which contained a successor trustee provision in which the Grantor was the Primary Trustee and Old Kent Bank was the Successor Trustee. It was undisputed Old Kent Bank and Fifth Third Bank merged and Old Kent is longer in existence. Borman moved the probate court to appoint him successor trustee and presented the trial court with a letter from Fifth Third indicating it was unwilling to act as successor trustee. He also presented letters from two doctors stating Faulhaber suffered from Alzheimer's disease. Respondent-Cerisano opposed the motion and argued Fifth Third should be appointed as successor trustee. The trial court held the Trust agreement was ambiguous because Faulhaber wanted "Old Kent Bank, not Fifth Third" to be successor trustee, and appointed Borman. The court concluded the Trust agreement contained no patent ambiguity, and unambiguously named Old Kent as successor trustee. However, the extrinsic fact Old Kent was no longer in existence created the possibility of more than one meaning. There was no language in the agreement to establish Faulhaber intended a corporate successor of Old Kent to be named successor trustee. The agreement was silent as to her intent if Old Kent was subsumed by another corporate entity. Thus, the Trust agreement was ambiguous as to whether Faulhaber intended Fifth Third to be successor trustee. The trial court properly considered extrinsic evidence in determining whether to appoint Borman or Fifth Third.