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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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.
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Cases appear under the following practice areas:
- Aviation (1)
- Civil Rights (1)
- Contracts (1)
- Criminal Law (6)
- Employment & Labor Law (1)
- Family Law (1)
- Insurance (1)
- Litigation (1)
- Probate (1)
- Real Property (1)
- Termination of Parental Rights (2)
Aviation
This summary also appears under Contracts
Issues: Action for title to an historic fighter aircraft; Whether defendant-CAF's attempt to trade the aircraft violated the terms of the donation certificate calling for title to revest in the U.S. Air Force (USAF) if the CAF no longer desired to retain the aircraft; Whether the transfer certificate superseded the donation certificate; 49 USC § 44103(c) (effect of FAA registration on parties claiming title to an aircraft); Applicability of state law on inter vivos gifts; Federal law governing a government contract; United States v. Seckinger; Donation made under the authority of 10 USC § 2572(a)(3); The required elements of a government contract; D & N Bank v. United States (Fed. Cir.); Whether the contract was ambiguous; Community Heating & Plumbing Co. v. Kelso; Babinski v. American Family Ins. Group (8th Cir.); Modification of a government contract; Rumsfeld v. Freedom NY, Inc. (Fed. Cir.); Whether the action was rendered moot by CAF "undoing" the trade transaction; Inequitable forfeiture claim; Whether the USAF's action for replevin was proper
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Secretary of U.S. Air Force v. Commemorative Air Force
e-Journal Number: 44205
Judge(s): Rogers, Kennedy, and Hood
Concluding there was no genuine issue of material fact defendant-CAF's attempt to trade the F-82 aircraft at issue violated the terms of the 1966 donation certificate, which called for title to revest in the USAF if the CAF no longer desired to retain the aircraft, the court held the district court properly granted the USAF summary judgment. The CAF returns vintage aircraft to flying condition. In 1966, the Air Force Logistics Command sent the CAF a letter with 2 attachments - a copy of a letter to the commander of the air force base where the F-82 was on display authorizing the conditional release of an F-82 aircraft and 2 copies of a donation certificate for the F-82, with a request 1 copy be returned as soon as possible. The donation certificate stated, inter alia, if "at any time the donated property is no longer used for the purpose and/or end use for which it is donated or retention of the property is no longer desired, title to the donated property shall, at the option of the Government, revest in the Air Force . . . ." The CAF obtained a transfer certificate in 1968 to establish title to the aircraft for purpose of obtaining FAA certification and license for operating the aircraft. The CAF flew the aircraft in several air shows until it crash landed in 1987. The CAF was offered a deal to exchange a refurbished P-38 and the wreckage of another P-38 for the damaged F-82, and entered into an exchange agreement. After reading about the trade in a magazine, the director of the USAF National Museum sent the CAF's executive director a letter stating the letter was formal notification the USAF was exercising its option to retain title according to the terms of the donation certificate. The CAF cancelled the trade transaction. The court held because the CAF violated the terms and conditions of the donation certificate by trying to transfer the aircraft to another entity, the USAF was entitled to reclaim it as provided by the donation certificate. The CAF did not argue its actions were consistent with the donation certificate, but instead contended, inter alia, the 1968 transfer certificate superseded the donation certificate, and the USAF gave the CAF a right of disposal of the F-82 under the terms of the donation certificate by not electing to reclaim title when the CAF changed its use of the aircraft from "display" to "flight." The court concluded nothing in the transfer certificate indicated any intent to supersede the donation certificate, the flight of the aircraft did not give the CAF a right of disposal, and none of the CAF's other arguments had merit. Affirmed.
Civil Rights
This summary also appears under Employment & Labor Law
Issues: Claims of racial discrimination in employment in violation of the CRA (MCL 37.2101 et seq.); Sniecinski v. Blue Cross & Blue Shield of MI; The "burden shifting" analysis in McDonnell Douglas Corp. v. Green; Hazle v. Ford Motor Co.; Wilcoxon v. Minnesota Mining & Mfg. Co.; "Similarly situated"; Smith v. Goodwill Indus. of W. MI, Inc.; Lytle v. Malady (On Rehearing); Town v. Michigan Bell Tel. Co.; Performance Improvement Plan (PIP)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Hosendove v. AT&T
e-Journal Number: 44138
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
The trial court properly granted summary disposition to defendant-AT&T in this case alleging racial discrimination in employment in violation of the CRA. The plaintiff failed to show she and another employee, S, were similarly situated. Plaintiff presented several reports showing some of the monthly sales results for both employees in 2003 and early 2004. However, according to the documents presented at trial, S took an approved leave of absence from March 24 through August 11, 2003, which skewed the comparison of their sales figures. Although plaintiff argued defendant treated her less favorably by placing her on a PIP sooner than S, plaintiff did not present evidence showing whether S was on a PIP at the time. Also, plaintiff did not present evidence as to whether she and S were similarly situated in aspects other than sales. A director for defendant stated as of March 26, 2004, plaintiff was "not attempting to fulfill the activity requirements" of the PIP. The record showed S was placed on a PIP for "unsatisfactory performance" on March 18, 2004, but the record did not show what the PIP required and whether, like plaintiff, she also failed to fulfill its requirements. Plaintiff simply did not develop the record to show all the relevant aspects of her employment situation were nearly identical to S's situation, to support her claim there was disparate treatment creating the inference of unlawful discrimination. Even if the court concluded plaintiff created a factual question as to a prima facie case, defendant articulated a legitimate nondiscriminatory reason for plaintiff's termination, specifically her poor performance after having been placed on a PIP and supported the assertion with evidence. Affirmed.
Contracts
This summary also appears under Aviation
Issues: Action for title to an historic fighter aircraft; Whether defendant-CAF's attempt to trade the aircraft violated the terms of the donation certificate calling for title to revest in the U.S. Air Force (USAF) if the CAF no longer desired to retain the aircraft; Whether the transfer certificate superseded the donation certificate; 49 USC § 44103(c) (effect of FAA registration on parties claiming title to an aircraft); Applicability of state law on inter vivos gifts; Federal law governing a government contract; United States v. Seckinger; Donation made under the authority of 10 USC § 2572(a)(3); The required elements of a government contract; D & N Bank v. United States (Fed. Cir.); Whether the contract was ambiguous; Community Heating & Plumbing Co. v. Kelso; Babinski v. American Family Ins. Group (8th Cir.); Modification of a government contract; Rumsfeld v. Freedom NY, Inc. (Fed. Cir.); Whether the action was rendered moot by CAF "undoing" the trade transaction; Inequitable forfeiture claim; Whether the USAF's action for replevin was proper
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Secretary of U.S. Air Force v. Commemorative Air Force
e-Journal Number: 44205
Judge(s): Rogers, Kennedy, and Hood
Concluding there was no genuine issue of material fact defendant-CAF's attempt to trade the F-82 aircraft at issue violated the terms of the 1966 donation certificate, which called for title to revest in the USAF if the CAF no longer desired to retain the aircraft, the court held the district court properly granted the USAF summary judgment. The CAF returns vintage aircraft to flying condition. In 1966, the Air Force Logistics Command sent the CAF a letter with 2 attachments - a copy of a letter to the commander of the air force base where the F-82 was on display authorizing the conditional release of an F-82 aircraft and 2 copies of a donation certificate for the F-82, with a request 1 copy be returned as soon as possible. The donation certificate stated, inter alia, if "at any time the donated property is no longer used for the purpose and/or end use for which it is donated or retention of the property is no longer desired, title to the donated property shall, at the option of the Government, revest in the Air Force . . . ." The CAF obtained a transfer certificate in 1968 to establish title to the aircraft for purpose of obtaining FAA certification and license for operating the aircraft. The CAF flew the aircraft in several air shows until it crash landed in 1987. The CAF was offered a deal to exchange a refurbished P-38 and the wreckage of another P-38 for the damaged F-82, and entered into an exchange agreement. After reading about the trade in a magazine, the director of the USAF National Museum sent the CAF's executive director a letter stating the letter was formal notification the USAF was exercising its option to retain title according to the terms of the donation certificate. The CAF cancelled the trade transaction. The court held because the CAF violated the terms and conditions of the donation certificate by trying to transfer the aircraft to another entity, the USAF was entitled to reclaim it as provided by the donation certificate. The CAF did not argue its actions were consistent with the donation certificate, but instead contended, inter alia, the 1968 transfer certificate superseded the donation certificate, and the USAF gave the CAF a right of disposal of the F-82 under the terms of the donation certificate by not electing to reclaim title when the CAF changed its use of the aircraft from "display" to "flight." The court concluded nothing in the transfer certificate indicated any intent to supersede the donation certificate, the flight of the aircraft did not give the CAF a right of disposal, and none of the CAF's other arguments had merit. Affirmed.
Criminal Law
Issues: Sufficiency of the evidence to convict the defendant of felon in possession; People v. Perkins; MCL 750.224(f); The jury's lack of knowledge of the proposed stipulation defendant was ineligible to possess a firearm at the time of the alleged incident; Admissibility of an Offender Tracking Information System (OTIS) printout; People v. Lukity; Prosecutorial misconduct; People v. Unger; People v. Carines; People v. Abraham; Whether the trial court properly ordered defendant to reimburse the state for his court-appointed counsel without first assessing his ability to pay; People v. Jackson
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Boykins
e-Journal Number: 44175
Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro
There was sufficient evidence to convict the defendant of felon in possession. The victim testified defendant aimed a firearm at him as he stood nearby, and also while inside his vehicle. The victim's testimony alone, if believed, established the possession element of felon in possession of a firearm. Defendant was identified as the perpetrator based on the victim's description, a telephone bill listing his address, and an OTIS printout including his photograph. When a police officer investigated defendant's address, she observed a white four-door vehicle in the driveway. Further, defendant did not contest his status as a fourth habitual offender, which substantiated his felon in possession of a firearm conviction. Defendant argued on appeal the evidence was insufficient to support his felon in possession conviction. At issue was the jury's lack of knowledge of a proposed stipulation indicating defendant was ineligible to possess a firearm at the time of the alleged incident. The trial court articulated an intention to instruct the jury defendant had been previously convicted of an unnamed felony, but the parties did not formally stipulate to the prior conviction on the record, in the presence of the jury. At the conclusion of his trial, the trial court did not inform the jury of the intended stipulation. Defendant argued without knowledge of the stipulation, the jurors must have improperly inferred his prior conviction from the OTIS printout, which was inadmissible based on its disclaimer. Assuming without deciding this was error, the court held it was not outcome determinative and in spite of any error, his conviction did not result in a miscarriage of justice. Defense counsel did not object to the admission of the printout into evidence and in fact, at the beginning of the trial, prior to jury selection, the parties agreed to redact the printout. Defendant's other issues on appeal were without merit. Affirmed.
Issues: Limitation on cross-examination; MRE 602; People v. Burwick; "Harmless error"; People v. Clemons; Applicability of the "consent" defense; The fact finder's role in determining the weight of the evidence and the witnesses' credibility; People v. Wolfe
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Butler
e-Journal Number: 44137
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
The trial court did not abuse its discretion in prohibiting defense counsel from questioning a police witness whether the victim made a statement in her police report the defendant might have believed she was consenting to his sexual advances, which was inconsistent with her trial testimony. The court held the alleged statement "clearly involved speculation on the part of the victim and was not admissible under MRE 602." Defendant was convicted of one count of CSC I and two counts of assault with intent to commit CSC involving penetration. He argued on appeal he was denied a fair trial when the trial court barred defense counsel from questioning a police witness about the victim's alleged prior inconsistent statement. The trial court sustained the prosecutor's objection on the basis the alleged statement called for speculation about defendant's thoughts at the time of the incident. The court noted defense counsel could, and did, ask the victim whether she did or said anything possibly indicating she was consenting to defendant's sexual advances. This line of questioning was proper since it did not call for speculation about what defendant might have believed at the time. Defense counsel also could, and did, ask the police witness whether the victim's testimony about explicitly rejecting defendant's advances was inconsistent with anything she said in her police statement after the incident. The court concluded assuming the trial court abused its discretion in barring defense counsel's questions, the error was harmless because it could not be said one juror might have voted to acquit defendant in light of the overwhelming evidence against him. Further, while defendant claimed the victim willingly performed one act, he denied any digital or penile intercourse. Thus, the "consent" defense only applied to one of the assault convictions - it did not apply to the CSC or the other assault conviction since he insisted those offenses never occurred. "In convicting defendant of all three charges, the jury clearly believed the victim's version of the incident to be credible." The court will not interfere with the fact finder's role of determining the witnesses' credibility or the weight of the evidence. Affirmed.
Issues: Sentencing; Whether the defendant was given an opportunity to allocute; MCR 6.425(E)(1)(c); People v. Petty; Minimum sentence within the guidelines; MCL 769.34(10); People v. Kimble; MCL 769.34(4)(c)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Jenkins
e-Journal Number: 44143
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
The defendant's claim he was not given an opportunity to allocute was without merit - he was provided the opportunity, but he elected to raise unrelated concerns rather than to provide the trial court with a possible reason for sentencing him below the guidelines to probation. Defendant was convicted after a bench trial of felon in possession of a firearm, possession of less than 25 grams of cocaine, felony-firearm, and marijuana possession. Prior to sentencing, the trial court asked him if he would like to say anything. Defendant replied someone had taken $10 from his account. After follow-up questioning, the trial court clarified the commissary at the jail had removed the money. Defendant also requested a transcript, which the trial court agreed to send to his attorney. Defendant then added, "And a rush on wherever you're sending me to." After clarifying what defendant had said, the trial court replied it was sure the deputy "will get you on the express train." The trial court then sentenced defendant. The court noted defendant's minimum guidelines range for his felon in possession conviction was 9 to 23 months, which placed him in a "straddle cell" where the trial court had the option of imposing a term of imprisonment with a minimum term within this range or an intermediate sanction. Defendant was sentenced at the bottom of the sentencing range. He did not argue to the trial court, or on appeal, the guidelines were incorrectly scored or the trial court relied on inaccurate information. Thus, the court affirmed his sentences.
Issues: Denial of the defendant's motion for a directed verdict on armed robbery and conspiracy to commit armed robbery charges; People v. Gillis; Circumstantial evidence and reasonable inferences; People v. Carines; Inferring an actor's intent; People v. Fetterley; Aiding and abetting; People v. Smielewski; People v. Blume; Credit for time served; Effect of the fact defendant was arrested while on parole for a prior offense; People v. Idziak
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Mooring
e-Journal Number: 44129
Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto
The trial court did not err in denying the defendant's motion for a directed verdict on armed robbery and conspiracy to commit armed robbery charges because viewing the evidence and the reasonable inferences arising from it in the light most favorable to the prosecution, a rational trier of fact could conclude defendant knew about the armed robbery, and by acting as the "wheelman," intended to aid the principal in the crime. Defendant was convicted of armed robbery under an aiding and abetting theory, conspiracy to commit armed robbery, and resisting or obstructing a police officer. The trial court sentenced him as a third habitual offender to 240 to 720 months in prison for the armed robbery and conspiracy convictions, and to 32 to 48 months for the resisting or obstructing conviction. The sentences, while concurrent to each other, were to be served consecutive to the sentence from which defendant was on parole at the time of these crimes. He received no credit for time served. On appeal, he argued the trial court erred in denying his motion for a directed verdict on the armed robbery and conspiracy charges because while the evidence established the principal, D, committed the armed robbery and he drove D to the store, there was no evidence supporting an inference he knew of and intended to aid D in the armed robbery. The court disagreed. The prosecution produced evidence the defendant drove two companions, including D, to the store. He parked his vehicle in front of the gas station and went inside to buy a pop. Another gas station customer saw an African-American male crouched down in the passenger seat of defendant's vehicle. After defendant returned to his vehicle, he drove it to a dark area behind the gas station. D then entered the gas station and committed the armed robbery. When the police questioned defendant the next day, he lied about his whereabouts the previous evening. The court also held the trial court properly denied defendant credit for time served from the date of his arrest to the date of his sentencing because he was not entitled to credit where he was arrested while on parole for a prior offense. Affirmed.
Issues: Sufficiency of the evidence to convict the defendant of possession with intent to deliver at least 50 grams but less than 450 grams of cocaine and possession of less than 25 grams of heroin; People v. Wolfe; People v. Carines; People v. Hardiman; People v. Terry; "Constructive or joint possession"; United States v. Manzella (7th Cir.); People v. Konrad; People v. Nowack; Sufficiency of the evidence of possession with intent to deliver; Sentencing; Whether the trial court should have awarded defendant 107 days sentencing credit; MCL 769.11b; People v. Filip; People v. Seiders; People v. Idziak
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Sellers
e-Journal Number: 44195
Judge(s): Per Curiam - Murphy, Meter, and Beckering
Viewing the evidence in the bench trial in the light most favorable to the prosecution, the court held it was sufficient to prove the defendant's possession of the drugs to convict him of possession with intent to deliver at least 50 but less than 450 grams of cocaine and possession of less than 25 grams of heroin. He contended the evidence of his possession was insufficient. Contrary to his argument, a defendant need not own a controlled substance or have actual physical possession of it when it is discovered to have "possession" of it. The controlled substance may be constructively possessed or jointly possessed. Defendant gave the address where the drugs were found as his own, and another resident verified he lived in the home when asked by defendant's parole agent. Defendant did not tell his parole agent he had moved out until a number of months after the search, and he did not tell the agent at that time he had moved out before the search. The drugs were found in a locked safe together with his identification and bankcard. Male clothing found in the bedroom provided additional circumstantial evidence he lived there. Considering the circumstantial evidence, the reasonable inferences arising from it, the totality of the circumstances, and resolving all evidentiary conflicts in favor of the prosecution, there was sufficient evidence to show he had dominion and control over the drugs in the safe. Even if the evidence also connected the additional resident to the drugs as well, "possession may be joint, with more than one person actually or constructively possessing a controlled substance." The court also held defendant's other issues on appeal had no merit. Affirmed.
Issues: Right to jury trial; Effect of the trial court's failure to follow the procedure in MCR 6.402(B); People v. Godbold; People v. Mosly; Whether the error was structural error requiring reversal; People v. Cook
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Timmer
e-Journal Number: 44141
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
The defendant was entitled to reversal of her OUIL, third offense conviction because the trial court did not follow the procedure in MCR 6.402(B) governing waiver of the right to a jury trial and this structural error required reversal. The case was set for a jury trial on June 12, 2008 after a March 24, 2008 pretrial. However, after a hearing on June 9, 2008 on defendant's unrelated motion to quash the information, the trial court indicated in its docket sheet the "parties agree to adjourn trial and have a non-jury trial." This proceeding was not transcribed, and defendant did not sign a written waiver form. The trial court's last pretrial note stated, "prosecutor and [defense counsel] agree to adjourn trial [and] to have a non-jury trial when reset." Defendant did not challenge the absence of a jury during her bench trial. On appeal, the prosecution acknowledged the trial court did not comply with the requirements of MCR 6.402(B), the defendant did not waive her right to a jury trial on the record, and there was no signed written jury trial waiver form in the file. However, the prosecution argued the failure to follow the rule's procedure did not warrant automatic reversal as long as defendant's waiver was made knowingly, voluntarily, and intelligently. The court rejected this argument in light of the nature of the error, noting an attorney cannot waive the right to a jury trial "'without the fully informed and publicly acknowledged consent of the client.'" Thus, the evidence defense counsel agreed to change the proceedings to a bench trial was insufficient to show waiver. Further, as in Cook, no evidence demonstrated the defendant understood her right to a jury trial and voluntarily elected to waive it. Nothing showed she, rather than defense counsel, made the decision to waive a jury trial or whether any decision by the defendant was made after adequate counsel. Reversed and remanded for a new jury trial or a bench trial after a valid jury waiver.
Employment & Labor Law
This summary also appears under Civil Rights
Issues: Claims of racial discrimination in employment in violation of the CRA (MCL 37.2101 et seq.); Sniecinski v. Blue Cross & Blue Shield of MI; The "burden shifting" analysis in McDonnell Douglas Corp. v. Green; Hazle v. Ford Motor Co.; Wilcoxon v. Minnesota Mining & Mfg. Co.; "Similarly situated"; Smith v. Goodwill Indus. of W. MI, Inc.; Lytle v. Malady (On Rehearing); Town v. Michigan Bell Tel. Co.; Performance Improvement Plan (PIP)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Hosendove v. AT&T
e-Journal Number: 44138
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
The trial court properly granted summary disposition to defendant-AT&T in this case alleging racial discrimination in employment in violation of the CRA. The plaintiff failed to show she and another employee, S, were similarly situated. Plaintiff presented several reports showing some of the monthly sales results for both employees in 2003 and early 2004. However, according to the documents presented at trial, S took an approved leave of absence from March 24 through August 11, 2003, which skewed the comparison of their sales figures. Although plaintiff argued defendant treated her less favorably by placing her on a PIP sooner than S, plaintiff did not present evidence showing whether S was on a PIP at the time. Also, plaintiff did not present evidence as to whether she and S were similarly situated in aspects other than sales. A director for defendant stated as of March 26, 2004, plaintiff was "not attempting to fulfill the activity requirements" of the PIP. The record showed S was placed on a PIP for "unsatisfactory performance" on March 18, 2004, but the record did not show what the PIP required and whether, like plaintiff, she also failed to fulfill its requirements. Plaintiff simply did not develop the record to show all the relevant aspects of her employment situation were nearly identical to S's situation, to support her claim there was disparate treatment creating the inference of unlawful discrimination. Even if the court concluded plaintiff created a factual question as to a prima facie case, defendant articulated a legitimate nondiscriminatory reason for plaintiff's termination, specifically her poor performance after having been placed on a PIP and supported the assertion with evidence. Affirmed.
Family Law
This summary also appears under Termination of Parental Rights
Issues: Termination of parental rights pursuant to § 51(6) of the Adoption Code (MCL 710.51(6)); In re Hill; Due process; Mathews v. Eldridge; Whether the trial court should have adjourned the hearing to permit the incarcerated respondent-father to be physically present; Participation in the hearing via telephone; In re Vasquez; Failure to make a timely request to appear in person; No "incarcerated parent" exception to § 51(6)(b); In re Caldwell; Deference to the trial court's assessment of the respondent's credibility; In re Newman
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re M.J.B.
e-Journal Number: 44157
Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro
Applying the three-part Mathews balancing test adopted in Vasquez, the court held the failure to secure the incarcerated respondent-father's physical presence at the hearing did not violate his right to due process where he participated by telephone, and the trial court did not clearly err in finding the petitioners met their burden under § 51(6)(b), justifying termination of respondent's parental rights to the two minor children under the Adoption Code. While the private interest at stake, respondent's parental rights to his children, was a compelling one, the court concluded the risk of an erroneous deprivation of this interest was not increased by the absence of his physical presence at the hearing. He was represented by counsel at the hearing and there was no indication he was unable to confer with his attorney. The trial court also allowed respondent to participate in the hearing by telephone and he was permitted to testify. Although respondent contended on appeal if he had been physically present, he could have assisted in his defense by offering records in support of his testimony, he admitted he did not have the records and had not tried to obtain them himself or request his attorney do so. Thus, he could not have presented the records even if he had been physically present. Further, after hearing his offer of proof about the content of the alleged telephone records, the trial court stated they would not have affected the outcome of the case. Respondent also argued the trial court clearly erred in finding he had the ability to contact, communicate, or visit with his children, and regularly and substantially failed to do so during the 2-year period preceding the filing of the petition, as required by § 51(6)(b). He asserted he did not have the ability to do so because the children lived in Illinois for part of this period and because he was incarcerated for parts of this period. The court disagreed, concluding even if respondent was unable to travel to Illinois, he was not prevented from maintaining regular and substantial contact by e-mail, letter, or telephone. The court also noted "there is no incarcerated parent exception to § 51(6)(b)." Affirmed.
Insurance
This summary also appears under Probate
Issues: Claims for PIP benefits related to the No-Fault Act; The respondent-insurer's challenge to the trial court's order denying application of the "one-year back" rule to the case; MCL 500.3145(1); Devillers v. Auto. Club Ins. Ass'n; Community Res. Consultants, Inc. v. Progressive MI Ins. Co.; Henry Ford Health Sys. v. Titan Ins. Co.; Applicability of Proudfoot v. State Farm Mut. Ins. Co.; Walden v. Auto-Owners Ins. Co.; Whether the trial court properly awarded conservator fees; In re Shields Estate; MCL 500.3107(1)(a); Nassar v. Auto. Club Ins. Ass'n; Manley v. DAIIE; Hoffman v. Auto. Club Ins. Ass'n; Heinz v. Auto. Club Ins. Ass'n
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re LeBoeuf
e-Journal Number: 44179
Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto
Concluding the trial court erred in refusing to apply the "one-year back" rule because the conservator's fees were incurred when the services were rendered not when the trial court approved them, and the trial court properly awarded the conservator's fees even though the conservator did not provide as detailed an invoice as respondent would have liked, the court affirmed in part, reversed in part, and remanded. The "one-year back" rule limits recovery "to those losses incurred within the one year preceding the filing of the action." The trial court concluded conservator fees are not incurred for purposes of § 3145 until the trial court approves them. Applying the general rule to the case, the court held "petitioner's conservator fees were incurred when the services were rendered, not when the probate court approved them." The trial court based its decision on Proudfoot, which dealt with future expenses, not expenses "already incurred." As to the trial court's award of conservator fees, the court noted the No-Fault Act dictates the scope of PIP benefits and there are three requirements which must be met in order for an item to be considered an "allowable expense: (1) the expense must have been incurred; (2) the expense must have been for a product, service, or accommodation reasonably necessary for the injured person's care, recovery, or rehabilitation; and (3) the amount of the expense must have been reasonable." At issue were the second and third requirements. Relying on Heinz, the trial court concluded if it is necessary to appoint a guardian or conservator for the injured person, then the services performed by the petitioner were by definition "reasonably necessary." The court agreed. As to the third requirement, the court held the trial court did not err in awarding conservator fees despite petitioner's failure to present detailed evidence in support of his claim, where the memorandum of services outlined the types of services he rendered to the estate, an estimate of the time he spent each month rendering the services, and appeared to be consistent with the general duties of a conservator.
Litigation
Issues: Whether the trial court properly awarded sanctions based on a frivolous lawsuit; Whether an action or defense is "frivolous"; MCL 600.2591; Plaintiffs' defamation claims; Rouch v. Evening News; Royal Palace Homes, Inc. v. Channel 7 of Detroit, Inc.; MCR 2.114(D)(2); Plaintiffs' breach of contract claims including the "noncompete clause"; MCL 445.774a(1); St. Clair Med., PC v. Borgiel; The trial court's reduction of the award sought for attorney fees and costs to the two defendants-Wilson and Ellena; Taylor v. Currie; In re Attorney Fees & Costs; MCR 2.625(A)(1) and (2)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Evergreen Home Health Care, LLC v. Wilson
e-Journal Number: 44085
Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio
Concluding the plaintiffs' lawsuit against defendants-Wilson and Ellena was frivolous the court affirmed the trial court's order closing the case, but remanded for a determination of the amount of attorney fees awarded. The only issues presented were whether the trial court erred in awarding sanctions after concluding plaintiffs' case was frivolous and erred in reducing the amount of attorney fees awarded. The original suit concerned plaintiffs' treatment of patients in its care. Plaintiffs-Evergreen provides home health care services and is set up in several apartment buildings in the state. Wilson is a RN and Ellena is a nurse's aide. Evergreen employed them in 2005. Defendants allegedly became unhappy with Evergreen's treatment of patients. Wilson quit and Evergreen terminated Ellena's employment because there was "not enough work" for her. Evergreen sued, alleging, inter alia, breach of a noncompete clause by working for another home health care provider, intentional interference with its contractual relationships, defamation where defendants said it provided substandard care, and civil conspiracy. Defendants made an offer of settlement of $500 each, which Evergreen rejected. The case went to mediation, and the panel unanimously awarded $100 to Evergreen for each of the two defendants. Defendants accepted, and Evergreen rejected the award. Defendants characterized the suit as a "spite" suit filed in retaliation for their involvement in Evergreen being reported to the Attorney General. Evergreen claimed defendants were spreading lies and acting out of vengeance. The trial court granted defendants' motion for summary disposition finding Evergreen never produced the noncompete agreement as to Wilson, the agreement as to Ellena was unreasonable, there were no material statements amounting to defamation, and no evidence supporting its tortious interference claims. Defendants filed a motion for costs and fees based on Evergreen's rejection of mediation. Defense counsel requested $27,000 in fees at a rate of $200/hour and $1,755 in costs, and noted defendants had already paid him $17,000. The court held the trial court did not abuse its discretion in awarding costs and fees. The court observed Evergreen's likely purpose was "defendants' financial ruin." The court concluded it was unable to determine whether the trial court abused its discretion in reducing the amount of attorney fees and costs and remanded for the trial court's "reasoned determination" of the amount of attorney fees awarded.
Probate
This summary also appears under Insurance
Issues: Claims for PIP benefits related to the No-Fault Act; The respondent-insurer's challenge to the trial court's order denying application of the "one-year back" rule to the case; MCL 500.3145(1); Devillers v. Auto. Club Ins. Ass'n; Community Res. Consultants, Inc. v. Progressive MI Ins. Co.; Henry Ford Health Sys. v. Titan Ins. Co.; Applicability of Proudfoot v. State Farm Mut. Ins. Co.; Walden v. Auto-Owners Ins. Co.; Whether the trial court properly awarded conservator fees; In re Shields Estate; MCL 500.3107(1)(a); Nassar v. Auto. Club Ins. Ass'n; Manley v. DAIIE; Hoffman v. Auto. Club Ins. Ass'n; Heinz v. Auto. Club Ins. Ass'n
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re LeBoeuf
e-Journal Number: 44179
Judge(s): Per Curiam - Hoekstra, Bandstra, and Servitto
Concluding the trial court erred in refusing to apply the "one-year back" rule because the conservator's fees were incurred when the services were rendered not when the trial court approved them, and the trial court properly awarded the conservator's fees even though the conservator did not provide as detailed an invoice as respondent would have liked, the court affirmed in part, reversed in part, and remanded. The "one-year back" rule limits recovery "to those losses incurred within the one year preceding the filing of the action." The trial court concluded conservator fees are not incurred for purposes of § 3145 until the trial court approves them. Applying the general rule to the case, the court held "petitioner's conservator fees were incurred when the services were rendered, not when the probate court approved them." The trial court based its decision on Proudfoot, which dealt with future expenses, not expenses "already incurred." As to the trial court's award of conservator fees, the court noted the No-Fault Act dictates the scope of PIP benefits and there are three requirements which must be met in order for an item to be considered an "allowable expense: (1) the expense must have been incurred; (2) the expense must have been for a product, service, or accommodation reasonably necessary for the injured person's care, recovery, or rehabilitation; and (3) the amount of the expense must have been reasonable." At issue were the second and third requirements. Relying on Heinz, the trial court concluded if it is necessary to appoint a guardian or conservator for the injured person, then the services performed by the petitioner were by definition "reasonably necessary." The court agreed. As to the third requirement, the court held the trial court did not err in awarding conservator fees despite petitioner's failure to present detailed evidence in support of his claim, where the memorandum of services outlined the types of services he rendered to the estate, an estimate of the time he spent each month rendering the services, and appeared to be consistent with the general duties of a conservator.
Real Property
Issues: Whether the trial court properly concluded all the elements of adverse possession were established; West MI Dock & Mkt. Corp. v. Lakeland Invs.; Killips v. Mannisto; MCL 600.5829; Kipka v. Fountain; Whether plaintiffs' use of the disputed property was "permissive"; Whether plaintiffs established they were making their claim under the cover of a "claim of right"; Walker v. Bowen; Whether plaintiffs established their claim was "hostile"; Wengel v. Wengel; Whether the trial court should have considered the "fiduciary" relationship between plaintiff-Jeanie and defendant-Murlin Wagner; The "presumption of undue influence"; In re Peterson Estate; In re Karmey Estate; In re Estate of Swantek; Whether the trial court found in favor of plaintiffs on the basis of "acquiescence"; Whether the trial court improperly relied on a distinguishable unpublished opinion; Stanford v. Baublis (Unpub.); MCR 7.215(C)(1); Vanzandt v. State Employees Ret. Sys.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Youtsey v. Wagner
e-Journal Number: 44130
Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro
The trial court in this property dispute correctly held the plaintiffs/counter defendants-Youtsey owned the disputed property by adverse possession where they established all the elements of adverse possession. To establish adverse possession, a "party must show that his or her possession is actual, visible, open, notorious, exclusive, hostile, under cover of a claim of right, and continuous and uninterrupted for the statutory period of fifteen years." The 15-year period begins "when the rightful owner is disseised of the land," which occurs "when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership." Defendants basically conceded plaintiffs' possession of the disputed property was actual, visible, open, notorious, and exclusive because they did not provide any argument to the contrary. Further, testimony by five neighbors, who were all familiar with the 20 feet wide by 300 feet long strip of disputed property supported the trial court's finding because the testimony indicated plaintiffs were the only ones they saw using, maintaining, and improving the disputed property. They did so by mowing the grass, removing the snow, adding a paved driveway to part of the disputed property, parking vehicles on the property, and also using the property as the sole means to access the barn on the back of their property. Disseisin occurred in 1988 when plaintiff moved into the house on parcel A and began using the disputed property, which was a part of the vacant lot on parcel B. Defendants contended plaintiffs' claim had to fail because their use of the disputed property was permissive. They claimed the permission began when plaintiff-Jeanie grew up on parcel A as a child. However, after moving out and then returning some years later when she purchased parcel A in 1988, there was no evidence plaintiffs were given permission to use the disputed property. Although there was testimony from Kathleen Wagner, plaintiff's mother, and defendants purporting to show there were no restrictions on the use of the disputed property, the same testimony established explicit permission was never given. "A lack of restrictions does not equate to permission." There was also no evidence the implied permission she may have had as a child included plaintiffs' exercising the powers and privileges of ownership by adding a paved drive, planting trees and shrubs, inter alia, keeping vehicles on the property, and allowing their children to play on the disputed property for a continuous 15 years. The court also held defendants' other claims on appeal had no merit. Affirmed.
Termination of Parental Rights
Issues: Termination pursuant to §§ 19b(3)(c)(i), (c)(ii), (g), (h), (i), (k), and (l); Effect of the respondent-mother's failure to challenge two of the statutory grounds the trial court relied on to terminate her rights; In re Sours; Child's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re King
e-Journal Number: 44155
Judge(s): Per Curiam - Saad, O'Connell, and Zahra
The trial court did not clearly err in determining, inter alia, § 19b(3)(c)(i) was established by clear and convincing evidence and in terminating the respondent-mother's parental rights to her minor child. The court noted while respondent challenged the trial court's decision as to several of the grounds cited for termination of her parental rights, she did not dispute termination was justified under §§ 19b(3)(i) and (l). Since a trial court's decision to terminate parental rights only has to be supported by one statutory ground, her failure to challenge the trial court's decision as to §§ 19b(3)(i) and (l) rendered it unnecessary to consider the other grounds cited by the trial court. However, the court addressed §19b(3)(c)(i). The minor child was adjudicated a court ward primarily because respondent continued to abuse marijuana. She did not stop even while she was pregnant. Other conditions leading to adjudication were respondent's unstable housing and income status. "These problems were never resolved. Respondent failed to complete two drug treatment programs. She submitted only two drug screens in 2008, both of which were ordered on a day when she attended a court hearing, and both tested positive." While she blamed the DHS for preventing her from completing a drug treatment program by not giving her bus tickets, the court concluded her long history of abusing marijuana for almost 14 years, including repeated recent failures to complete treatment, clearly outweighed "her speculative claim" she could complete a program if she had bus tickets or enrolled in an inpatient program. Further, the respondent failed to establish housing or an income. She denied the DHS access to the home where she lived with her aunt, and she did not make any progress on her plan to obtain her own home. Under the circumstances, the trial court did not err in terminating her parental rights under §19b(3)(c)(i). Affirmed.
This summary also appears under Family Law
Issues: Termination of parental rights pursuant to § 51(6) of the Adoption Code (MCL 710.51(6)); In re Hill; Due process; Mathews v. Eldridge; Whether the trial court should have adjourned the hearing to permit the incarcerated respondent-father to be physically present; Participation in the hearing via telephone; In re Vasquez; Failure to make a timely request to appear in person; No "incarcerated parent" exception to § 51(6)(b); In re Caldwell; Deference to the trial court's assessment of the respondent's credibility; In re Newman
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re M.J.B.
e-Journal Number: 44157
Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro
Applying the three-part Mathews balancing test adopted in Vasquez, the court held the failure to secure the incarcerated respondent-father's physical presence at the hearing did not violate his right to due process where he participated by telephone, and the trial court did not clearly err in finding the petitioners met their burden under § 51(6)(b), justifying termination of respondent's parental rights to the two minor children under the Adoption Code. While the private interest at stake, respondent's parental rights to his children, was a compelling one, the court concluded the risk of an erroneous deprivation of this interest was not increased by the absence of his physical presence at the hearing. He was represented by counsel at the hearing and there was no indication he was unable to confer with his attorney. The trial court also allowed respondent to participate in the hearing by telephone and he was permitted to testify. Although respondent contended on appeal if he had been physically present, he could have assisted in his defense by offering records in support of his testimony, he admitted he did not have the records and had not tried to obtain them himself or request his attorney do so. Thus, he could not have presented the records even if he had been physically present. Further, after hearing his offer of proof about the content of the alleged telephone records, the trial court stated they would not have affected the outcome of the case. Respondent also argued the trial court clearly erred in finding he had the ability to contact, communicate, or visit with his children, and regularly and substantially failed to do so during the 2-year period preceding the filing of the petition, as required by § 51(6)(b). He asserted he did not have the ability to do so because the children lived in Illinois for part of this period and because he was incarcerated for parts of this period. The court disagreed, concluding even if respondent was unable to travel to Illinois, he was not prevented from maintaining regular and substantial contact by e-mail, letter, or telephone. The court also noted "there is no incarcerated parent exception to § 51(6)(b)." Affirmed.
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