• Administrative Law (1)
• Business Law (1)
• Constitutional Law (1)
• Contracts (1)
• Corrections (1)
• Criminal Law (9)
• Family Law (1)
• Insurance (2)
• Litigation (3)
• Malpractice (1)
• Municipal (2)
• Negligence & Intentional Tort (4)
• Oil & Gas (1)
• Probate (1)
• Real Property (1)
• Tax (2)

Administrative Law

 

This summary also appears under Oil & Gas

 

Issues: Determination a dedication of gas reserves executed in conjunction with an agreement as to the transportation and treatment of gas from the reserves via a pipeline was a dedication for the life of the pipeline or the reserves; Standard of review for MPSC decisions; In re Application of Consumers Energy Co.; The parol evidence rule; Hamade v. Sunoco, Inc.; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Effect of the merger clause in the dedication; Contract interpretation; In re Smith Trust; Whether the language of the dedication was ambiguous; Whether the evidence supported the MPSC's decision; Whether the existence of a perpetual dedication in one agreement and the exclusion of a perpetual dedication in other agreements established discrimination

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dominion MidW. Energy, Inc. v. Michigan Pub. Serv. Comm'n

e-Journal Number: 44168

Judge(s): Per Curiam - Talbot, Wilder, and M.J. Kelly

 

Holding the MPSC's determination the dedication at issue was unambiguous and provided for a transfer of the reserves without termination was not contrary to law and not unreasonable, but rather, was supported by competent, material, and substantial evidence on the whole record, the court affirmed the MPSC's order. Respondent-Mich Con Gathering Company (MGAT) owned and operated the Antrim Expansion Pipeline. Petitioners-Dominion owned reserves of natural gas. Dominion's predecessor, Wolverine Gas & Oil Company, entered into an agreement with MGAT's predecessor in interest, MichCon. The agreement, known as ASATT #1, provided for the transportation of Dominion's gas via the pipeline and for the treatment of CO2 content for a 10-year period. A later agreement, ASATT #16, was between Dominion and MichCon, and was also for 10 years. A dedication of the natural gas reserves was simultaneously executed with ASATT #1. A commitment of reserves was executed with ASATT #16, which included some of the reserves referenced in the ASATT #1 dedication. Dominion claimed the dedication under ASATT #1 was only intended to cover the 10-year period of ASATT #1, while MGAT maintained the dedication under ASATT #1 was intended to continue for the life of the reserves or the pipeline. The MPSC agreed with MGAT. Noting the MPSC properly looked to the dedication alone in determining the parties' intent, the court held the relevant provision in the dedication "clearly and unambiguously provides for a transfer of all interests in the property." The absence of a termination date did not render the provision ambiguous - it indicated there was not a termination date. "There was no need for an express term as to the expiration of the dedication because, having transferred all interests in the reserves, the unambiguous result is that the term would not expire until there was no reserve left." Dominion failed to show the MPSC committed an error of law or its conclusion was unreasonable. The MPSC's "ruling was consistent with contract law governing unambiguous contracts with integration clauses." Affirmed.

 

Business Law

 

This summary also appears under Contracts

 

Issues: Docket No. 285393 - Breach of the covenant not to compete; Evidence of damages; Livonia Hotel, LLC v. Livonia; Reopening the proofs; Bonner v. Ames; Alan Custom Homes, Inc. v. Krol; Cramer v. Metropolitan Sav. & Loan Ass'n; Roland v. Kenzie; Zeeland Farm Servs., Inc. v. JBL Enters., Inc.; Attorney fees as damages for breach of the coveant not to compete; Central Transp., Inc. v. Fruehauf Corp.; Alleged anti-trust violation; Whether the parties' covenant not to compete was an illegal horizontal market allocation agreement to restrict competition; McDill v. McDonald Coop. Dairy Co.; Stoia v. Miskinis; Brillhart v. Danneffel; Contract interpretation; Archambo v. Lawyers Title Ins. Corp.; C H Barrett Co. v. Ainsworth; Buckingham Tool Corp. v. Evans; "Participation"; Laevin v. St. Vincent De Paul Soc'y; Ownership of an Internet domain name; Burden of proof; Pickering v. Pickering; Killips v. Mannisto; Docket No. 285394 - Motion for sanctions; Whether the complaint against defendant-Danielson was frivolous; MCR 2.114; MCL 600.2591; Kitchen v. Kitchen; Jerico Constr., Inc. v. Quadrants, Inc.; Louya v. William Beaumont Hosp.; Tortious interference with a contract; Civil conspiracy; Admiral Ins. Co. v. Columbia Cas. Ins. Co.; Whether the presence of a merger clause in the purchase agreement barred any recovery on the fraud claim; Custom Data Solutions, Inc. v. Preferred Capital, Inc.; Effect of the "as is" clause; Prejudgment interest; MCL 600.6013(8); Phinney v. Perlmutter; B & B Inv. Group v. Gitler; Ayar v. Foodland Distribs.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Leighio v. Loveland Inv.

e-Journal Number: 44193

Judge(s): Per Curiam - Saad, Whitbeck, and Zahra

 

The trial court did not abuse its discretion by reopening the proofs to allow the plaintiffs-Lieghios to present proof of reasonable attorney fees in a post-trial motion when attorney fees were specifically provided for as a remedy in the covenant not to compete. Defendant-Loveland accepted an offer from the Lieghios to purchase Loveland's Mackinaw City lodging business, which included four motel properties. After execution of the purchase agreement however, the Lieghios decided to purchase only two of the motel properties. At the closing of the sale, Loveland agreed to sign a covenant not to compete, which excepted from its terms his two other existing motels. The Lieghios alleged Loveland's participation in soliciting the investors for a deal by defendant-Danielson to purchase another hotel was influential and essential to its success. Loveland argued the trial court committed clear error in sustaining the Lieghios' claims for a violation of the covenant not to compete because they failed to present any evidence on the element of damages. Although the trial court acknowledged in its ruling awarding the Lieghios $94,290 in attorney fees and costs they failed to prove separate monetary damages, the trial court found it significant the covenant specifically allowed for injunctive relief and attorney fees as part of the remedy available for breach. The covenant not to compete provided "[a]ny breach of the foregoing covenant shall entitle [the Lieghios] to injunctive relief to prevent the same, money damages, and reasonable attorney fees and costs incidental to or required in the enforcement thereof." Loveland contended monetary damages are an essential and requisite element of breach, without which a breach of contract claim must fail. He was correct damages are usually a necessary element of a contract breach claim. However, the Michigan Supreme Court has stated "[t]he remedy for breach of a covenant is damages or an injunction[.]" As the Lieghios pointed out, injunctive relief is usually the proper remedy when money damages are difficult to prove, "as they usually are in a case like this." It would be incongruous to require a plaintiff to prove both money damages and entitlement to injunctive relief. Thus, because the parties specifically agreed in the covenant not to compete the breaching party would be responsible for attorney fees, the trial court properly considered the attorney fees as damages for Loveland's breach. Further, Loveland was not prejudiced by the trial court's decision to reopen the proofs and hold a separate evidentiary hearing on the issue of reasonable attorney fees. The court also held, inter alia, the trial court did not err in concluding the covenant not to compete was valid and enforceable, and in finding Loveland violated it by participating in Danielson's deal "by advising and counseling her and providing her the benefit of his reputation and expertise to engage in a competing business." The trial court was affirmed as to all the issues in both cases with the exception of its denial of prejudgment interest, which was reversed.

 

Constitutional Law

 

This summary also appears under Tax

 

Issues: Foreclosure under the General Property Tax Act (GPTA)(MCL 211.1 et seq.); Cancellation of a quitclaim deed issued by the petitioner-county treasurer; Whether the intervening parties were afforded minimum due process; Sidun v. Wayne County Treasurer; Statutory notice deficiencies; Gillie v. Genesee County Treasurer; The means used to notify interested parties; First Nat'l Bank of Chicago v. Department of Treasury; Whether the trial court properly found a denial of due process justifying relief from the foreclosure judgment without conducting an evidentiary hearing; Relevance of a personal visit to the property in assessing a titleholder's due process rights; Jones v. Flowers; Whether the undisputed evidence the county treasurer did not try to serve a party established a denial of due process; Property rights protected by due process; Dow v. Michigan; Michigan Educ. Ass'n v. State Bd. of Educ.; Whether the party was entitled to notice under MCL 211.78i(2); Ownership as a fact question; Ghaffari v. Turner Constr. Co. (On Remand); Standing; Kallman v. Sunseekers Prop. Owners Ass'n, LLC; Manuel v. Gill; Whether the alleged present lessee of the property showed it had the necessary relationship with the foreclosure to entitle it to notice; MCL 211.78g; MCL 211.78i(6)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Petition of Wayne County Treasurer

e-Journal Number: 44176

Judge(s): Per Curiam - O'Connell, Talbot, and Stephens

 

The court agreed with the respondents-appellants (the Casabs) the trial court erred in finding a denial of due process justifying relief from the foreclosure judgment without conducting an evidentiary hearing, concluding, inter alia, further factual development was needed to determine if intervening party-Kassem Beydoun's due process rights were violated. The Casabs appealed the trial court's order cancelling a quitclaim deed issued to them by the petitioner-county treasurer and quieting title to the property at issue in favor of Kassem and Ghada Beydoun. The property was one of several subject to a mass foreclosure action filed by petitioner under the GPTA. Title in the property vested in petitioner pursuant to a foreclosure judgment. After petitioner sold the property to the Casabs, the Beydouns and three entities claiming to be past and present lessees moved to set aside the foreclosure judgment, cancel the Casabs' deed, and quiet title in the property in the Beydouns, claiming they did not receive notice of the foreclosure and were denied constitutional due process. The trial court set aside the foreclosure judgment pursuant to MCR 2.612(C), finding the intervening parties were not afforded minimum due process. At the time of the foreclosure, Kassem was the only legal titleholder of the property according to a deed. The record lacked factual development about the actual measures petitioner took to determine appropriate addresses for giving Kassem notice of the foreclosure action. The trial court was presented with affidavits raising credibility issues about petitioner's use of certified mailings to provide notice and its undertaking to have a representative personally visit the property to give the occupant notice. The court noted a personal visit was "relevant in assessing a titleholder's due process rights because notice to an occupant increases the likelihood" the occupant "will alert the owner about the foreclosure, if only because a change in ownership could affect occupancy." The court also rejected the claim the undisputed evidence petitioner did not try to serve Ghada established a denial of due process, concluding the fact she was referred to a mortgagor, owner, and borrower in mortgage documents did not establish she had a vested interest in the property. A question of fact remained whether she was entitled to notice pursuant to MCL 211.78i(2). "Ownership is a question of fact," and there was conflicting evidence as to whether Ghada had an ownership interest in the property. Reversed and remanded.

 

Contracts

 

This summary also appears under Business Law

 

Issues: Docket No. 285393 - Breach of the covenant not to compete; Evidence of damages; Livonia Hotel, LLC v. Livonia; Reopening the proofs; Bonner v. Ames; Alan Custom Homes, Inc. v. Krol; Cramer v. Metropolitan Sav. & Loan Ass'n; Roland v. Kenzie; Zeeland Farm Servs., Inc. v. JBL Enters., Inc.; Attorney fees as damages for breach of the coveant not to compete; Central Transp., Inc. v. Fruehauf Corp.; Alleged anti-trust violation; Whether the parties' covenant not to compete was an illegal horizontal market allocation agreement to restrict competition; McDill v. McDonald Coop. Dairy Co.; Stoia v. Miskinis; Brillhart v. Danneffel; Contract interpretation; Archambo v. Lawyers Title Ins. Corp.; C H Barrett Co. v. Ainsworth; Buckingham Tool Corp. v. Evans; "Participation"; Laevin v. St. Vincent De Paul Soc'y; Ownership of an Internet domain name; Burden of proof; Pickering v. Pickering; Killips v. Mannisto; Docket No. 285394 - Motion for sanctions; Whether the complaint against defendant-Danielson was frivolous; MCR 2.114; MCL 600.2591; Kitchen v. Kitchen; Jerico Constr., Inc. v. Quadrants, Inc.; Louya v. William Beaumont Hosp.; Tortious interference with a contract; Civil conspiracy; Admiral Ins. Co. v. Columbia Cas. Ins. Co.; Whether the presence of a merger clause in the purchase agreement barred any recovery on the fraud claim; Custom Data Solutions, Inc. v. Preferred Capital, Inc.; Effect of the "as is" clause; Prejudgment interest; MCL 600.6013(8); Phinney v. Perlmutter; B & B Inv. Group v. Gitler; Ayar v. Foodland Distribs.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Leighio v. Loveland Inv.

e-Journal Number: 44193

Judge(s): Per Curiam - Saad, Whitbeck, and Zahra

 

The trial court did not abuse its discretion by reopening the proofs to allow the plaintiffs-Lieghios to present proof of reasonable attorney fees in a post-trial motion when attorney fees were specifically provided for as a remedy in the covenant not to compete. Defendant-Loveland accepted an offer from the Lieghios to purchase Loveland's Mackinaw City lodging business, which included four motel properties. After execution of the purchase agreement however, the Lieghios decided to purchase only two of the motel properties. At the closing of the sale, Loveland agreed to sign a covenant not to compete, which excepted from its terms his two other existing motels. The Lieghios alleged Loveland's participation in soliciting the investors for a deal by defendant-Danielson to purchase another hotel was influential and essential to its success. Loveland argued the trial court committed clear error in sustaining the Lieghios' claims for a violation of the covenant not to compete because they failed to present any evidence on the element of damages. Although the trial court acknowledged in its ruling awarding the Lieghios $94,290 in attorney fees and costs they failed to prove separate monetary damages, the trial court found it significant the covenant specifically allowed for injunctive relief and attorney fees as part of the remedy available for breach. The covenant not to compete provided "[a]ny breach of the foregoing covenant shall entitle [the Lieghios] to injunctive relief to prevent the same, money damages, and reasonable attorney fees and costs incidental to or required in the enforcement thereof." Loveland contended monetary damages are an essential and requisite element of breach, without which a breach of contract claim must fail. He was correct damages are usually a necessary element of a contract breach claim. However, the Michigan Supreme Court has stated "[t]he remedy for breach of a covenant is damages or an injunction[.]" As the Lieghios pointed out, injunctive relief is usually the proper remedy when money damages are difficult to prove, "as they usually are in a case like this." It would be incongruous to require a plaintiff to prove both money damages and entitlement to injunctive relief. Thus, because the parties specifically agreed in the covenant not to compete the breaching party would be responsible for attorney fees, the trial court properly considered the attorney fees as damages for Loveland's breach. Further, Loveland was not prejudiced by the trial court's decision to reopen the proofs and hold a separate evidentiary hearing on the issue of reasonable attorney fees. The court also held, inter alia, the trial court did not err in concluding the covenant not to compete was valid and enforceable, and in finding Loveland violated it by participating in Danielson's deal "by advising and counseling her and providing her the benefit of his reputation and expertise to engage in a competing business." The trial court was affirmed as to all the issues in both cases with the exception of its denial of prejudgment interest, which was reversed.

 

Corrections

 

This summary also appears under Criminal Law

 

Issues: Sufficiency of the evidence to support the defendant's conviction of assaulting a prison employee; MCL 750.197c; People v. Johnson; People v. Tombs; People v. Wolfe; People v. Jones; People v. Robinson; People v. Fetterley; People v. Vaughn; Whether because the jury acquitted defendant of felonious assault it necessarily found evidence of his handing a weapon to J was lacking; Sufficiency of the evidence to support the defendant's conviction of instigating a prison riot; MCL 752.542a;  Soupal v. Shady View, Inc.; People v. Schaefer; People v. Rutledge; "Or" defined; Yankee Springs Twp. v. Fox; "Instigate" defined; People v. Thompson; Pittsfield Charter Twp. v. Washtenaw County; Pre-arrest delay; People v. Cain; People v. Tanner; People v. Adams;  People v. Fletcher; United States v. Lovasco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Woods

e-Journal Number: 44196

Judge(s): Per Curiam - Murray, Markey, and Borrello

 

There was sufficient evidence to support the defendant's convictions of assaulting a prison employee. Defendant asserted the prosecution failed to prove he had any contact with J, let alone he aided and abetted J's assault of B, a corrections officer. Defendant conceded J assaulted B and only contested the evidence established he encouraged the assault and he shared J's intent. Neither argument withstood scrutiny. Several of the corrections officers present during the riot observed the video showed defendant "nudge" or tap J on the back and apparently hand him a small item just prior to J's attack on B, which consisted of punching, kicking, and stabbing motions. Further, officer P explained defendant was a high-ranking member of a prison religious organization, who by his actions on the video, appeared to be giving directions throughout the attack on B. In particular, defendant circled the melee and gave hand directions during the assault, and even B noticed defendant was standing right behind him just before the riot began. Also damaging to defendant were his comments before the assault. Shortly after the fight between M and L concluded, defendant accused the guards of permitting L to be stabbed on purpose and stated, "You mother [expletives] are going to die," and "You're going to get yours." Similarly, in the hectic moments before the riot, an officer asked defendant what was going on and defendant merely replied, "You'll see." When this evidence was considered in light of the fact B sustained a puncture wound consistent with being stabbed, a reasonable juror could conclude defendant handed J an item he used to stab B, or at the very least defendant encouraged and directed J's admitted punching and kicking of B during the riot and in fact, intended the attacks. Given the difficulty in establishing an actor's state of mind, minimal circumstantial evidence was sufficient to demonstrate the disputed elements of the crime. Affirmed.

 

Criminal Law

 

Issues: Whether the prosecutor's office undertook adequate safeguards to shield the prosecutor, M, from communications about the case from S, a prosecuting attorney who formerly represented defendant; Ineffective assistance of counsel; People v. Ackerman; People v. Odom; Sentencing; Scoring of OV 4 at 10 points; People v. Apgar

Court: Michigan Court of Appeals (Published)

Case Name: People v. Davenport

e-Journal Number: 44207

Judge(s): Per Curiam - Saad, Murphy, and Donofrio

 

After remand to the trial court for an evidentiary hearing as to whether the prosecutor's office undertook adequate safeguards to shield the prosecutor, M, from communications about the case from S, a prosecuting attorney who formerly represented defendant, the court held, inter alia, while the prosecutor should have notified the trial court about the potential conflict, it appeared the defense was aware of the issue and chose not to raise it until after the trial. As in the prior opinion, the court reiterated the trial court correctly concluded "that defense counsel's failure to raise this matter constitutes an objectively unreasonable error." On remand, the trial court conducted a lengthy evidentiary hearing during which the assistant attorney general presented testimony from the staff members employed by the county prosecutor's office when defendant's case was pending. The court held the trial court correctly ruled the prosecutor, through the assistant attorney general, established "that it implemented measures to prevent improper communications and that it consistently followed through with these measures." After reviewing the factors set forth in the prior opinion, the court ruled based on the procedures employed by the office, S exchanged no information with M about any aspect of defendant's case. Though the office maintained no written procedures about how to handle a potential conflict or the defendant's file in particular, it was abundantly clear both attorneys and all staff members were informed, and understood S was to have no contact with the defendant's file and he would not participate in any discussions, interviews or meetings about the case. Members of the staff all testified to their knowledge, S no contact with the case file and was not present for and did not participate in any discussions about the case. Both S and M testified after an initial discussion about the potential conflict if S joined the prosecutor's office, they exchanged no information about the case. Moreover, M testified his investigation and interviews were completed before S joined the prosecutor's office. The record further reflected S immediately disclosed his decision to join the prosecutor's office to defendant and his wife and he repeatedly assured them he would not reveal to M anything about his representation of defendant. Though defendant's subsequent attorney, F, denied she knew about the conflict, M testified all the attorneys knew about S's move to the prosecutor's office. The court held defendant was not entitled to relief on this issue because he failed to show he was prejudiced by defense counsel's error. After the trial court explored the matter on remand, the record did not indicate he was prejudiced by S's move to the prosecutor's office. The prosecution met its burden to show the prosecutor's office took adequate steps to prevent improper communications, consistently followed through with those steps, and no evidence showed there were any improper communications about the case. Affirmed.

 

Issues: Claims under the Sex Offender Registration Act (SORA)(MCL 28.721 et seq.); People v. Rahilly; Whether the SORA registration requirement as applied to the defendant constituted cruel and unusual punishment; People v. Ayres; People v. Golba; MCL 28.721a; "Social stigma"; Mollett v. Taylor; Doe v. Kelly (WD MI); Lanni v. Engler (ED MI); The Holmes Youthful Trainee Act (HYTA)(MCL 762.11(1)); MCL 762.14(3); Whether the registration and notification requirements of SORA impose cruel or unusual punishment; People v. Launsburry; Wallace v. Indiana (IN SC)

Court: Michigan Court of Appeals (Published)

Case Name: People v. Dipiazza

e-Journal Number: 44210

Judge(s): Fitzgerald, Servitto, and Bandstra

 

After consideration of the gravity of the offense, the harshness of the penalty, a comparison of the penalty to penalties imposed for the same offense in other states, and the goal of rehabilitation, the court vacated the trial court's order denying the defendant's request to have his name removed from the Sex Offender Registry, but granting his request to reduce the registration period to 10 years, and remanded to the trial court to enter an order consistent with the court's decision holding the SORA registration requirement as applied to defendant constituted a cruel and unusual punishment, there was no goal of rehabilitation, defendant never posed a danger to the public or of reoffending, and is not a sexual predator. In 2004, when defendant was 18, he had a consensual sexual relationship with a girl who was almost 15. He was adjudicated under the HYTA for attempted CSC III and on August 29, 2004 he was sentenced to probation and required to register as a sex offender. He successfully completed his probation and under the terms of the HYTA, his case was dismissed and he has no criminal conviction on his record, but continued to remain required to register as a sex offender. He petitioned the trial court to remove his name from the registry and/or to shorten the period, and told the trial court based on the amendments to SORA, which were effective on October 1, 2004, had he been convicted six weeks later he would not have had to register on the public registry. The court concluded, "[I]t is incongruous to find that a teenager that engages in consensual sex and is assigned to youthful trainee status after October 1, 2004, is not considered dangerous enough to require registration, but that a teen that engaged in consensual sex and was assigned youthful trainee status before October 1, 2004, is required to register. The implied purpose of SORA, public safety, is not served by requiring an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship." The court noted defendant actually suffered disability and losses of rights or privileges, where he is unable to find work after applying for 75 jobs even though he has no criminal conviction. He lives on food stamps and was diagnosed with depression. Here, the circumstances of the offense were not grave. The girl's parents knew of the relationship, condoned it, and defendant married her five years later. However, the penalty has been very harsh. The "social stigma" has been overwhelming where persons who view the PSOR are unable to determine whether a person who is registered is a rapist, pedophile, or just a person who engaged in consensual sexual activity with a teen.

 

Issues: Docket No. 281673 - defendant-Mann's claim the evidence was insufficient to convict him of second-degree murder as either a principal or an aider and abettor; People v. Smith; People v. Robinson; People v. Brown; CJI2d 17.7(4); People v. Moore; Conflicting expert opinions as to the victim's cause of death; Self-defense; People v. Deason; Evidence of Mann's prior incarceration; People v. Spencer; People v. Griffin; MRE 402 and 403; People v. Knox; People v. Magyar; Ineffective assistance of counsel; People v. Rodriguez; People v. Henry; Docket No. 281674 - Defendant-Butler's claim the evidence was insufficient to convict him of second-degree murder as a principal or an aider and abettor; People v. Johnson; Alleged extrinsic influence on the jury; People v. Budzyn; People v. Williams; Evidence of Butler's prior incarceration and drug use; People v. Pipes; Judicial misconduct; People v. Paquette; People v. Sardy; People v. Davis; People v. Cheeks; Whether there was probable cause to search a particular house; People v. Hellstrom; People v. Ulman; People v. Darwich; Whether probable cause can be based on hearsay; People v. Harris; Whether the information in the warrant affidavit was "stale"; People v. David; Alleged violation of Butler's right to silence and counsel; People v. McElhaney; People v. Harris; People v. Tierney; Davis v. United States; People v. Adams

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mann

e-Journal Number: 44169

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

 

Concluding none of the issues raised by the defendants in this case where they were both convicted of second-degree murder were meritorious, the court affirmed their convictions and sentences. The case arose from the death of the victim who was allegedly involved in an altercation with a group of men and suffered a fatal head injury. Defendant-Mann contended, inter alia, the evidence presented at trial was insufficient to sustain his conviction. Mann "all but concede[d]" he intended to inflict great bodily harm on the victim. He stated, "Mann hit [the victim] with the bottle and that could have caused great bodily harm," and there was no indication he did not so intend. Trial testimony established after the victim pushed him in the chest, Mann called upstairs to B saying, "[W]e have a problem," "I need you to come down here," and "We're going to have to get him," referring to the victim. Mann then entered his bedroom, removed his shirt, and said to S, "Let's get him." He walked into the kitchen and grabbed a glass beer bottle, later admitting to S he had selected a 22-ounce bottle because it would hurt more than a 40-ounce bottle. Mann then hit the left side of the victim's head with the bottle while his back was turned. The bottle broke and the victim fell to the floor unconscious, indicating Mann had used significant force in striking the victim. As the victim lay on the floor, Mann and several others surrounded him. Although there was conflicting testimony about who actually kicked the victim, at least two witnesses saw Mann kick him. S testified Mann kicked the victim in the head and D testified Mann stomped on his face two or three times. The court held, inter alia, the evidence presented at trial was sufficient to convict Mann of second-degree murder as either a principal or an aider and abettor. The jury could have concluded he acted with intent to inflict great bodily harm and either caused the victim's death or performed acts or gave encouragement assisting in the commission of the murder. Affirmed.

 

Issues: Sentencing; Scoring of OV 3; People v. Hornsby; People v. Sargent; Whether a "transactional approach" to scoring the OVs is appropriate; People v. McGraw; Whether the defendant was entitled to resentencing; People v. Francisco; Reimbursement of court-appointed attorney fees; People v. Dunbar; People v. Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Ploof

e-Journal Number: 44180

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

 

Since it was apparent the trial court, in reaching the conclusion OV 3 should be scored at 10 points, adopted a "transactional approach" to scoring the OVs, the Supreme Court held in McGraw this approach is inappropriate and the proper approach is the "offense-specific approach," the trial court erred in scoring OV 3 at 10 points. Further, the defendant was entitled to resentencing because his minimum sentences for his firearm-related offenses exceeded the corrected guidelines range applicable to the offenses.  Defendant was convicted of felon in possession of a firearm, possession of a short-barreled shotgun, and domestic violence. He was originally sentenced as a fourth habitual offender to 48 to 120 months for the felon in possession and short-barreled shotgun convictions, and 55 days for the domestic violence conviction. The court previously granted his motion to remand the case to the trial court for resentencing. On remand, the trial court upheld its prior scoring decision and the length of defendant's sentence, but he was granted 55 days' credit for time served for each conviction and the trial court lowered the amount of court-appointed attorney fees he was ordered to reimburse the county. In sentencing defendant for his firearm-related offenses, the trial court assessed 10 points for OV 3, degree of physical harm to the victim. While it was undisputed the victim sustained bodily injury requiring medical treatment due to the domestic violence perpetrated by the defendant, she "did not suffer this injury as part of defendant's commission of the sentencing offense" and there was no evidence he either threatened or attempted to use the confiscated firearms during the commission of the sentencing offense. The victim testified she never saw defendant with a firearm. Under the offense-specific approach, "OV 3 does not permit consideration of conduct occurring other than during the sentencing offense." The court affirmed the trial court's reimbursement order as amended on the prior remand, but remanded for resentencing.

 

Issues: Sentencing; Scoring of OVs 1, 2, 9, and 10; People v. Endres; "Exploit" for purposes of OV 10 (MCL 777.40(3)(b)); People v. Cannon; Scoring of OV 9 based on the sentencing offense; People v. McGraw; Plain error review; People v. Odom; Double jeopardy; Submission to the jury of charges of assault with intent to do great bodily harm less than murder (assault GBH) and felonious assault; People v. McGee; People v. Walls; People v. Brown; Mistrial; People v. Horn; MCR 6.410(A); People v. Echavarria; Whether a visiting judge was properly assigned to the defendant's second trial; MCR 8.111(C); Sufficiency of the evidence to support defendant's assault GBH conviction; People v. Wolfe; Jury instruction on assault and battery; People v. Martin; People v. Cornell; Exclusion of a demonstrative exhibit; People v. Washington; Ineffective assistance of counsel; People v. Pickens; People v. Tommolino; Prejudice; People v. Johnnie Johnson, Jr.; Factual support; People v. Hoag; People v. Rockey; Correction of the PSIR; People v. Uphaus (On Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Taylor

e-Journal Number: 44172

Judge(s): Per Curiam - Davis and Whitbeck; Concurring in part, Dissenting in part - Shapiro

 

The trial court did not err in scoring OVs 1, 2, 9, and 10 in light of testimony the 30-year old defendant struck the 16-year victim (S) in the head with some type of metal object, leaving a wound requiring 5 staples, after he placed S's girlfriend in danger of physical injury. Defendant was convicted of assault GBH and sentenced as a fourth offense habitual offender to 11 to 25 years in prison. His conviction arose from an altercation in which he struck S. Some witnesses testified defendant used a metal object, while others testified he only used his fist. He was acquitted of felonious assault. The court held, inter alia, the trial court did not err in scoring 10 points for OV 9 in light of evidence defendant initially threatened S's girlfriend and approached her, causing her to feel she was in danger and causing S to intervene to protect her. Defendant assaulted S when he intervened. This evidence supported a finding defendant placed S's girlfriend in danger of physical injury, making her an additional victim within the meaning of OV 9. While a "trial court's scoring of OV 9 must be based only on the sentencing offense," assaulting S while he was intervening to protect his girlfriend from defendant indicated the risk of danger of physical injury to S's girlfriend "was intertwined with the sentencing offense." Further, the record provided sufficient support for the trial court's finding defendant exploited S's youthfulness. The court concluded the evidence showed defendant used "his significant age difference to attempt to intimidate" S, and then escalated the situation by threatening S's girlfriend to provoke him. This evidence supported a finding defendant manipulated S based on his youth. The court affirmed defendant's conviction and sentence, but remanded the case for further proceedings regarding his challenges to the accuracy of his PSIR.

 

Issues: Sufficiency of the evidence to support the defendant's second-degree child abuse (MCL 750.136b(3)(a)) conviction; People v. McGhee; People v. Wolfe; People v. Edwards; People v. Gregg; "Reckless" defined; Circumstantial evidence and reasonable inferences; People v. Fennell; Effect of a defendant's false exculpatory police statements; People v. Dandron

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. White

e-Journal Number: 44178

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

 

Holding there was sufficient evidence to allow a rational jury to conclude beyond a reasonable doubt the defendant was "reckless" and acted in disregard of, or with indifference to, the consequences of his actions, the court affirmed his second-degree child abuse conviction. The court concluded there was sufficient circumstantial evidence for the jury to reasonably conclude he intentionally inflicted the child's injuries. His account of the incident was inconsistent with the injuries. Three doctors testified the child's burns were inconsistent with burns caused by hot water coming from a faucet or showerhead. Police found other injuries on the child's body consistent with his being struck. The police also found the bathtub faucet knobs were difficult to turn, making it unlikely a two-year old was able to operate the knobs. The court noted a defendant's false exculpatory police statements can be circumstantial evidence of consciousness of guilt. Defendant initially lied to the police, claiming he was not home when the burns occurred and the child's mother was bathing him when he was injured. "Based on this evidence and inferences drawn from it, a rational jury could conclude beyond a reasonable doubt that defendant intentionally caused the injuries." The court also concluded there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt "defendant acted recklessly, even under his own version of events, when he left the child in the bathtub unattended." He knew the bathtub faucet was leaking a constant stream of hot water for at least two weeks before the child was injured, and he kept the hot water heater on the highest setting, stating this was the only way to get hot water. The police determined the hot water temperature was 154 degrees when the hot water heater was set just below the highest setting. Defendant testified he left the child unattended in the bathtub while he went downstairs to speak to a yard worker, and he then washed his dirty dishes. "He did not check on or supervise the child until he heard a scream." This evidence and the inferences drawn from it allowed a rational jury to conclude beyond a reasonable doubt defendant was reckless under circumstances involving danger to a two-year old child, even if no harm was intended. Affirmed. 

 

This summary also appears under Corrections

 

Issues: Sufficiency of the evidence to support the defendant's conviction of assaulting a prison employee; MCL 750.197c; People v. Johnson; People v. Tombs; People v. Wolfe; People v. Jones; People v. Robinson; People v. Fetterley; People v. Vaughn; Whether because the jury acquitted defendant of felonious assault it necessarily found evidence of his handing a weapon to J was lacking; Sufficiency of the evidence to support the defendant's conviction of instigating a prison riot; MCL 752.542a;  Soupal v. Shady View, Inc.; People v. Schaefer; People v. Rutledge; "Or" defined; Yankee Springs Twp. v. Fox; "Instigate" defined; People v. Thompson; Pittsfield Charter Twp. v. Washtenaw County; Pre-arrest delay; People v. Cain; People v. Tanner; People v. Adams;  People v. Fletcher; United States v. Lovasco

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Woods

e-Journal Number: 44196

Judge(s): Per Curiam - Murray, Markey, and Borrello

 

There was sufficient evidence to support the defendant's convictions of assaulting a prison employee. Defendant asserted the prosecution failed to prove he had any contact with J, let alone he aided and abetted J's assault of B, a corrections officer. Defendant conceded J assaulted B and only contested the evidence established he encouraged the assault and he shared J's intent. Neither argument withstood scrutiny. Several of the corrections officers present during the riot observed the video showed defendant "nudge" or tap J on the back and apparently hand him a small item just prior to J's attack on B, which consisted of punching, kicking, and stabbing motions. Further, officer P explained defendant was a high-ranking member of a prison religious organization, who by his actions on the video, appeared to be giving directions throughout the attack on B. In particular, defendant circled the melee and gave hand directions during the assault, and even B noticed defendant was standing right behind him just before the riot began. Also damaging to defendant were his comments before the assault. Shortly after the fight between M and L concluded, defendant accused the guards of permitting L to be stabbed on purpose and stated, "You mother [expletives] are going to die," and "You're going to get yours." Similarly, in the hectic moments before the riot, an officer asked defendant what was going on and defendant merely replied, "You'll see." When this evidence was considered in light of the fact B sustained a puncture wound consistent with being stabbed, a reasonable juror could conclude defendant handed J an item he used to stab B, or at the very least defendant encouraged and directed J's admitted punching and kicking of B during the riot and in fact, intended the attacks. Given the difficulty in establishing an actor's state of mind, minimal circumstantial evidence was sufficient to demonstrate the disputed elements of the crime. Affirmed.

 

This summary also appears under Malpractice

 

Issues: Legal malpractice; Whether the trial court properly granted the defendant-attorney summary disposition of the plaintiff's legal malpractice claim based on the "attorney judgment" rule; Simko v. Blake; Mitchell v. Dougherty; People v. Dixon; Whether defendant should have moved for a directed verdict in the criminal case; Whether the issue was preserved; Fast Air, Inc. v. Knight; People v. Lemmon; Barrow v. Pritchard

Court: Michigan Court of Appeals (Unpublished)

Case Name: Trakhtenberg v. McKelvy

e-Journal Number: 44173

Judge(s): Per Curiam - Murray, Markey, and Borrello

 

Concluding summary disposition of the plaintiff's legal malpractice claims against the defendant (appointed defense counsel in plaintiff's criminal case where he was charged with five counts of CSC II) was proper based on the "attorney judgment" rule, the court affirmed. Following a bench trial in the criminal case, plaintiff was convicted of three counts of CSC II. The victim was his then 9-year old daughter. He appealed to the court, which held he failed to establish defendant's representation was ineffective and affirmed his convictions. The Supreme Court denied leave to appeal. Later the victim and her mother filed a civil claim against plaintiff and his adult daughter. The case resulted in a judgment of no cause of action. Plaintiff filed this case alleging legal malpractice against defendant and claimed, inter alia, she failed to call a "crucial" witness, failed to meaningfully cross-examine the prosecutor's witnesses, persuaded him to waive a jury trial, failed to properly defend the criminal charge, and protect his legal rights. Defendant moved for summary disposition citing Barrow and the attorney judgment rule claiming her decisions in the criminal case were matters of trial strategy. The trial court granted her motion for summary disposition. The court found the defendant acted in the criminal case as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances and her alleged acts and omissions were matters of trial tactics based on reasonable professional judgment. Decisions as to whether to cross-examine a witness and the extent of cross-examination are tactical decisions, which "do not constitute grounds for a legal malpractice action." Similarly, defendant's advice to plaintiff as to his right to a jury trial was also a matter of trial strategy. Even if defendant made an error in judgment in advising plaintiff to waive his right to a jury trial and another attorney would not have so advised him, this also was a tactical decision and was not a ground for a legal malpractice action. There was also no evidence the defendant did not act with full knowledge or in good faith in this regard.

 

Issues: Sentencing; Whether the district court properly considered the potential for a future Fed. R.Crim. P. 35(b) motion when denying the government's USSG § 5K1.1  motion; United States v. Ridge; United States v. Bureau; United States v. Recla; Whether the 120-month sentence was reasonable; Gall v. United States; United States v. Vonner; United States v. Conatser; United States v. Williams

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Rosenbaum

e-Journal Number: 44206

Judge(s): Martin, Guy, and McKeague

 

The court's review of the sentencing transcript as a whole led it to conclude the district court's denial of the 5K1.1 motion was not influenced by the possibility of a future Rule 35 motion and it was convinced the result would have been the same even if there had never been any mention of a Rule 35 motion. Defendant and his codefendants employed numerous illegal aliens, paid them in cash, and failed to withhold federal income tax, medicare, or social security from their paychecks. After being caught, he eventually pleaded guilty (1) to conspiracy to defraud the US and to harbor illegal aliens and (2) to a substantive count of harboring more than 100 illegal aliens, though not before trying to expatriate his assets and flee the US. At sentencing, the district court denied the government's motion under § 5K1.1 seeking a reduction in defendant's offense level for substantial assistance to the government and sentenced him to 120 months in prison. The sentence represented the statutory maximum sentence possible after imposing sentence on the two counts consecutively, but was also within the advisory Guidelines range. After reviewing the transcript of defendant's sentencing hearing, the court held it was apparent the district court based its decision to deny the government's § 5K1.1 motion on two main factors. First, the court found it significant defendant did not begin cooperating until after one of his codefendants agreed to cooperate. Thus, in the court's view, the decision to cooperate was not so impressive as to warrant a reduction. Second, the court explained it found the bulk of his cooperation incomplete, or, in the court's words "contingent," at the time of sentencing. The court indicated it gave "substantial weight" to the government's appraisal of defendant's efforts thus far and accepted as true everything the government said as to the details of his cooperation. However, the court remained unimpressed with the current state of defendant's cooperation. A review of the transcript led the court to conclude this case fell more along the lines of Ridge than of Bureau and Recla. The court took this opportunity to note sentencing judges should use caution when discussing Rule 35 at the sentencing stage. While it can be appropriate at times to apprise a defendant of the effect of his future cooperation, this information might have the unintended effect of giving the defendant an issue on appeal, which the court has encountered with increasing frequency. To avoid this scenario, the court encouraged an appropriate level of care when discussing Rule 35, if at all, at sentencing. Nevertheless, just because something is a bad idea does not mean it is legally improper. The court found no error in the sentencing court's denial of the 5K1.1 motion. Affirmed.

 

Family Law

 

Issues: Divorce; The plaintiff-husband's challenge to the division of the marital estate by including in the marital estate assets owned by the Piche Family Trust; Whether a divorce trial court may divide property owned by a third-party; Przeklas v. Przeklas; Thames v. Thames; Separate property; Reeves v. Reeves; MCL 552.19, MCL 552.23(1), and MCL 552.401; The Mendota Property; Dart v. Dart; The Montgomery Point Property; The CDs; Whether the trial court should have specifically divided the personal property; Valuation of assets held by the family trust; Whether the trial court made sufficient findings to equitably divide the marital property; MCR 2.517(A)(1) and (2); Fletcher v. Fletcher; Sparks v. Sparks; Motion for relief from judgment; Wickings v. Artic Enters., Inc.; MCR 7.208(A)(4); Motion for stay; MCR 7.208(F); MCR 7.209(A)(2) and (E)(1); MCR 2.614(B); Defendant's motions to enforce the divorce judgment; MCR 2.614(A)(1); MCR 2.621(A); MCR 2.209(A)(1); MCR 2.614(D)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Piche v. Piche

e-Journal Number: 44142

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

 

Concluding there were unresolved questions of fact about various marital assets allegedly owned by the plaintiff-husband's "Piche Family Trust" and the equitable division of the marital estate, the court inter alia, remanded for further factual development as to those assets. The court also held the division of the personal property was inequitable in light of the parties' testimony, the trial court made sufficient findings of fact concerning the factors relevant to an equitable division of the marital property, the trial court correctly held it lacked jurisdiction to grant the plaintiff's motion for relief from judgment, the trial court recognized it had "dual authority" with the court to grant plaintiff's motion for a stay without bond, the defendant-wife's motion to enforce the divorce judgment was premature, and the trial court erred in finding it did not have jurisdiction to entertain her motion to enforce the judgment's alimony provisions or her request for a writ of garnishment. In a divorce case a trial court may not divide property owned by a third-party, absent allegations the third-party conspired with one of the spouses to deprive the other spouse of marital property or spousal support. Plaintiff was the settlor of the family trust. Defendant did not allege he transferred any marital properties to the trust with the intent to defraud her. Thus, the property rights of the trust could not be adjudicated and were not subject to distribution. The trial court erred to the extent it awarded defendant a property interest in property owned by the trust. The CDs at issue were owned by the trust and there was also an issue as to whether the "Mendota Property" was partially owned by the trust. Here, it was possible based on appropriate proof, the trial court may have been justified in invading any separate interest by plaintiff in property which is part of the trust. Even though plaintiff argued his interest in the family trust was inchoate, not vested, and may never come to fruition, if he predeceases his father, the defendant did not ask for a share of plaintiff's separate trust property. Rather, she argued the CDs and the Mendota Property were part of the marital estate. Alternatively, she asked to be awarded credit for the appreciation in the Mendota Property, and to be awarded credit for the marital funds expended in improving that property and another property. It was unnecessary for the court to address plaintiff's claim his interest in the family trust was inchoate and could not be divided as part of the marital estate where defendant was entitled to credit for one half the martial funds used to improve and/or purchase the properties. Affirmed in part, reversed in part, and remanded.

 

Insurance

 

Issues: Whether the probate court had jurisdiction to order respondent-Farm Bureau to pay the petitioner's attorney fees arising from an action on an insurance contract; In re Haque; In re Wirsing; The Mental Health Code; In re Neal; In re Shields Estate; MCL 700.1108(a) (defining "ward"); MCL 700.1303(1)(i) (probate court's jurisdiction to hear petitioner's contract dispute with respondent); Whether attorney's fees are "allowable expenses" under the No-Fault Insurance Act (MCL 500.3101 et seq.); Griffith v. State Farm Mut. Auto. Ins. Co.; Maloney ex rel Gauntlett v. Auto Owners Ins.; Sprague v. Farmers Ins. Exch.; Heinz v. Auto Club Ins. Ass'n; Hamilton v. AAA MI

Court: Michigan Court of Appeals (Published After Release)

Case Name: In re Geror

e-Journal Number: 44211

Judge(s): Per Curiam - Saad, Sawyer, and Borrello

 

[This opinion was previously released as an unpublished opinion on 8/6/09.] The court held the probate court had jurisdiction to order respondent-Farm Bureau to pay the petitioner's attorney fees. Respondent argued MCL 330.1615, the section of the Mental Health Code pertaining to attorney fees, contains no provision granting the probate court the authority to order payment of attorney fees by third parties like respondent. However, the court held this statute did not control the issue. While it is true an action to appoint a guardian for a developmentally disabled person must be done pursuant to the Mental Health Code, the issue here was attorney fees arising from an action on an insurance contract. The court found this question to be within the probate court's jurisdiction in In re Shields Estate. The court in Shields explained - "Under MCL 700.1303(1)(i), the probate court has jurisdiction to 'hear and decide a contract proceeding or action by or against an estate, trust, or ward.' The statute imposes no limits on the types of contract actions and, further, the Legislature explained in MCL 700.1303(3) that the purpose of the statute was to simplify the disposition of actions involving estates . . . . Accordingly, the probate court had jurisdiction to decide this case." This reasoning applied here because, according to MCL 700.1108(a), as used in EPIC, "ward" means an individual for whom a guardian is appointed. Petitioner is a developmentally disabled person and her mother was appointed her guardian. Thus, petitioner was a ward and the probate court had jurisdiction to hear her contract dispute with respondent under MCL 700.1303(1)(i) and to award attorney fees. The court also held the attorney fees were an "allowable expense" under the No-Fault Act. The attorney's "ultimate task was to investigate the facts and determine whether petitioner was receiving the necessary care, as well as represent her interests in a dispute over who, ultimately, would provide her future care." Thus, the legal services directly related to petitioner's care and were allowable expenses pursuant to MCL 500.3107(1)(a). Affirmed.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Whether the driver was a resident relative of her parents (the defendant's insureds) at the time of the accident; "Residence" and "domicile"; Dairlyland Ins. Co. v. Auto-Owners Ins. Co.; Fowler v. Auto Club Ins. Ass'n; University of MI Regents v. State Farm Mut. Ins. Co.; Cervantes v. Farm Bureau Ins. Co.; Workman v. DAIIE; Dobson v. Maki; Beecher v. Common Council of Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gunther v. AAA/ACIA

e-Journal Number: 44170

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

 

Concluding the balance of the relevant factors for determining "residence" favored a finding the driver (R) was residing with her parents (the defendant's insureds) at the time of the accident, the court held the trial court did not err in granting the plaintiff-PR's motion for partial summary disposition on the issue. R was involved in an accident with the PR's decedent. She assigned any insurance rights she had in her parents' policy to the PR in a consent judgment resolving the underlying wrongful death claim. Several factors are balanced and weighed in determining residence, and no one factor is determinative. R was a young adult in transition at the time of the accident. She had moved out of state from her Michigan childhood home, but returned to Michigan when she could no longer afford to live out of state. She typically stayed at her parents' home, although she also stayed at her sister's or with a friend, and she was waiting for an apartment to become available. Since her parents' home only had one bedroom, R slept on the floor with some blankets. She put most of her belongings in a storage facility, but kept enough clothing at her parents' home to wear for a week. She also kept her cat at her parents' home, forwarded her mail there, listed their address on employment applications, forms to open a bank account, and to rent the storage facility. R had free access to the amenities of her parents' home, including food. She stayed at her sister's home for three or four nights to help baby-sit, but only when her brother-in-law was not home. She was involved in the accident while borrowing her sister and brother-in-law's car. Noting the Michigan Supreme Court stated in Beecher every person "must have a domicile somewhere" and "very slight circumstances must often decide the question," the court concluded there were arguably three places possibly serving as R's residence at the time of the accident - her parents' home, her sister's home, or a friend's home. The court concluded she was not a resident of her sister's home since she was only allowed to stay there for baby-sitting purposes, she did not leave any belongings there, and she was not welcome there when her brother-in-law was home. There was no evidence she was a resident of a friend's home. "Thus, the only supportable conclusion, if only, perhaps, by 'very slight circumstances,'" was R resided in her parents' home until she moved into her own apartment shortly after the accident. Affirmed.

 

Litigation

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly granted the plaintiff summary disposition on the slander, libel, and defamation claims; Mitan v. Campbell; Locricchio v. Evening New Ass'n; Whether a question of fact existed as to whether defendant-Smith was at least negligent in publishing the statements alleging plaintiff had stolen her money; Whether the trial court properly awarded plaintiff damages, costs, and attorney fees

Court: Michigan Court of Appeals (Unpublished)

Case Name: Michigan First Credit Union v. Smith

e-Journal Number: 44126

Judge(s): Per Curiam - O'Connell, Talbot, and Stephens

 

Since defendant-Smith's affidavits claiming she had $40,000 in her account at the plaintiff-credit union, which subsequently disappeared and remained unaccounted for, raised a question of fact as to whether she was at least negligent when she claimed plaintiff took her money, the trial court erred in granting plaintiff summary disposition under MCR 2.116(C)(10). Plaintiff is a state-chartered credit union with its principal place of business in Oakland County. Defendant owned an account at the credit union. In October 2001, she received a loan from plaintiff to finance the purchase of a car, but she defaulted on the loan in 2005. Plaintiff filed suit in the district court to recover possession of the car and to collect the balance of the money owed on the loan. In response, defendant claimed plaintiff had taken or misappropriated funds from her account. In support of her claim, she produced a transaction summary she alleged was generated by the credit union which she acquired from an "inside source." In response, plaintiff claimed the transaction summary was fraudulent and the statements and other records it provided to defendant about her account did not indicate the withdrawals alleged by plaintiff occurred. Defendant claimed she had $40,000 in her account. Defendant sent the CEO of the credit union a letter introducing materials she intended to distribute at its branches "disclosing the type of fiduciary they are intrusting [sic] their money to." Three days later defendant appeared at the main branch with a picket sign stating "see how Detroit Teacher's credit union now known as Michigan First stole my $40,000." She also passed out flyers to customers stating, "They used ‘double bookkeeping' to take my money (I only found out by an inside source)." Apparently, several customers saw the picketing and went into credit union to inquire about the situation. Plaintiff's attorney sent defendant a letter asking her to stop passing out the disparaging information about the credit union. However, she picketed and passed out flyers several more times. Plaintiff sued alleging, inter alia, slander, libel, and defamation. The trial court granted plaintiff summary disposition. On appeal, the court concluded the affidavits defendant submitted were sufficient to create a question of fact, the trial court erred, reversed, and remanded.

 

Issues: Judgment affirming an arbitration award; The "law of the case" doctrine; Grievance Adm'r v. Lopatin; Whether the trial court properly vacated the second arbitration award; Effect of the fact the plaintiff did not move to vacate the second award within the 21-day period in MCR 3.602(J)(2) where the defendants moved to vacate it; MCR 3.602(J)(1); Whether the court correctly decided Mosher, Dolan, Cataldo & Kelly, Inc. v. Feinbloom (Mosher I); Grace v. Grace; Hill v. City of Warren; Applicability of exceptions to the law of the case doctrine; People v. Herrera (On Remand); Locricchio v. Evening News Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mosher, Dolan, Cataldo & Kelly, Inc. v. Feinbloom

e-Journal Number: 44174

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

 

Since the second arbitration award was clearly inconsistent with the court's decision in Mosher I, the trial court correctly refused to confirm the second award, and the court declined the defendants' invitation to reexamine the merits of Mosher I or the original arbitration award. Thus, the court affirmed the trial court's judgment affirming the original arbitration award in its entirety. The defendants contracted with plaintiff to construct their new home. Pursuant to an arbitration clause in the parties' contract, defendants filed a complaint in arbitration claiming the house was defective and plaintiff breached the contract. Plaintiff counter-claimed for the remaining balance on the contract. An arbitrator found the home contained several defects, which constituted material breaches of the contract, express warranties, and code requirements. The arbitrator also concluded the defects required appropriate and specified remediation, but did not justify demolition of the home. When the plaintiff sought to enforce the final arbitration award in the trial court, defendants moved to vacate the award. The trial court vacated the part of the award denying defendants' claim for consequential damages, but confirmed it in all other respects. Both parties appealed, and while the appeal was pending, defendants initiated a second arbitration proceeding related to consequential damages. The second arbitration panel eventually awarded defendants $179,337.67 in consequential damages. However, when the court later decided Mosher I, it rejected defendants' challenges to the original arbitration award and concluded the trial court erred in reversing the part of the award denying consequential damages. The court in Mosher I remanded the case "for entry of an order affirming the entire arbitration award." In this appeal, the court concluded if the trial court had confirmed the second arbitration award on remand, it would have impermissibly taken action inconsistent with the court's award in Mosher I. The court also rejected defendants' argument it incorrectly decided Mosher I, noting no exception to the "law of the case" doctrine applied and the defendants failed to convince the court "justice has not been done." The Mosher I court considered and rejected each of the arguments defendants raised in this appeal. They did not claim the law had changed, or dispute aside from the second arbitration award, the facts were substantially the same. Thus, the law of the case doctrine applied. Affirmed.

 

This summary also appears under Real Property

 

Issues: Quiet title; Easement; Abandoned appeal; Failure to include an issue in the statement of the questions presented; MCR 7.212(C)(5); Ypsilanti Fire Marshal v. Kircher (On Reconsideration); Failure to include meaningful argument or offer any authority on an issue; Berger v. Berger

Court: Michigan Court of Appeals (Unpublished)

Case Name: Paul v. Carroll

e-Journal Number: 44181

Judge(s): Memorandum - Hoekstra, Bandstra, and Servitto

 

Concluding the defendant abandoned his appeal, the court affirmed the trial court's judgment for the plaintiffs, which ruled they had an easement over a portion of defendant's land. The dispute arose from a conflict over a two-track trail crossing the western side of defendant's property and leading to plaintiffs' property. Plaintiffs' property was landlocked and could only be reached by means of the private trail. Plaintiffs and their predecessors in interest had always used the trail as the sole means of ingress and egress to their property. In 2006, defendant placed a cable across the trail, preventing plaintiffs from using it to access their property. They filed this quiet title action, claiming a prescriptive easement and the defendant tortiously interfered with their property rights. After a bench trial, the trial court found while the plaintiffs did not establish a prescriptive easement, a recorded express right of way had ripened into a negative reciprocal easement extending through defendant's land. The trial court also found all the parties (grantors and grantees) were bound by the easement to permit each other to use the trail. In his questions presented, the defendant stated the issue on appeal was whether, as the trial court found, the right of way created a reciprocal negative easement. However, he did not provide any argument in his brief addressing this issue. His only argument and analysis in his brief was a challenge to the existence of a prescriptive easement, an issue not set forth in his question presented and an issue on which he prevailed in the trial court. "An issue not raised in a party's questions presented is deemed abandoned on appeal." Further, "an issue is considered abandoned on appeal if the party raising it fails to present a meaningful argument or offer any authority on that point." Since the argument presented was not properly raised and the issue presented was not properly addressed, the court considered the appeal abandoned. Affirmed.

 

Malpractice

 

This summary also appears under Criminal Law

 

Issues: Legal malpractice; Whether the trial court properly granted the defendant-attorney summary disposition of the plaintiff's legal malpractice claim based on the "attorney judgment" rule; Simko v. Blake; Mitchell v. Dougherty; People v. Dixon; Whether defendant should have moved for a directed verdict in the criminal case; Whether the issue was preserved; Fast Air, Inc. v. Knight; People v. Lemmon; Barrow v. Pritchard

Court: Michigan Court of Appeals (Unpublished)

Case Name: Trakhtenberg v. McKelvy

e-Journal Number: 44173

Judge(s): Per Curiam - Murray, Markey, and Borrello

 

Concluding summary disposition of the plaintiff's legal malpractice claims against the defendant (appointed defense counsel in plaintiff's criminal case where he was charged with five counts of CSC II) was proper based on the "attorney judgment" rule, the court affirmed. Following a bench trial in the criminal case, plaintiff was convicted of three counts of CSC II. The victim was his then 9-year old daughter. He appealed to the court, which held he failed to establish defendant's representation was ineffective and affirmed his convictions. The Supreme Court denied leave to appeal. Later the victim and her mother filed a civil claim against plaintiff and his adult daughter. The case resulted in a judgment of no cause of action. Plaintiff filed this case alleging legal malpractice against defendant and claimed, inter alia, she failed to call a "crucial" witness, failed to meaningfully cross-examine the prosecutor's witnesses, persuaded him to waive a jury trial, failed to properly defend the criminal charge, and protect his legal rights. Defendant moved for summary disposition citing Barrow and the attorney judgment rule claiming her decisions in the criminal case were matters of trial strategy. The trial court granted her motion for summary disposition. The court found the defendant acted in the criminal case as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances and her alleged acts and omissions were matters of trial tactics based on reasonable professional judgment. Decisions as to whether to cross-examine a witness and the extent of cross-examination are tactical decisions, which "do not constitute grounds for a legal malpractice action." Similarly, defendant's advice to plaintiff as to his right to a jury trial was also a matter of trial strategy. Even if defendant made an error in judgment in advising plaintiff to waive his right to a jury trial and another attorney would not have so advised him, this also was a tactical decision and was not a ground for a legal malpractice action. There was also no evidence the defendant did not act with full knowledge or in good faith in this regard.

 

Municipal

 

This summary also appears under Tax

 

Issues: Claims related to the reclassification of the subject property as commercial instead of tax exempt; Whether the tribunal properly found the petitioner was not a charitable institution pursuant to MCL 211.7o; Engineering Soc'y of Detroit v. Detroit; Ladies Literary Club v. Grand Rapids; Factors to be considered when determining whether an institution is a "charitable institution"; Wexford Med. Group v. City of Cadillac; Whether plaintiff's purpose met the definition of "charity" in Wexford; Liberty Hill Housing Corp. v. Livonia; Whether the tribunal's conclusion petitioner was not organized chiefly or solely for charity was based on the erroneous finding it was recreational in nature; Whether the tribunal added an additional requirement to the definition of "charity"; Michigan United Conservation Clubs v. Township of Lansing; Whether the tribunal correctly found petitioner could not have lessened the county's burden unless there was a governmental requirement the county provide recreational activities for its residents; Whether the tribunal addressed the fourth element of the Ladies Literary Club test

Court: Michigan Court of Appeals (Unpublished)

Case Name: Involved Citizens Enters., Inc. v. Township of E. Bay

e-Journal Number: 44192

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

 

The Tax Tribunal did not err in holding the petitioner was not a charitable institution within the meaning of Wexford Medical and was not entitled to the property tax exemption for a charitable institution in MCL 211.7o. The issue in the case related to the reclassification of the subject property as commercial instead of tax exempt, which was upheld in the tribunal's grant of summary disposition to the respondent-township. In the early 1990s, Grand Traverse County, where the parties are located, determined there was insufficient capacity at a local ice rink owned by the county and operated by petitioner to accommodate various user groups -- including area schools, individuals, and local amateur ice skating and ice hockey associations. A county bond proposal to fund construction of a new ice arena next to the existing rink was proposed, but was defeated. Petitioner, however, was able to complete construction of a new ice hockey rink in 1997. The rink was funded through two limited obligation revenue bonds ($4.8 million) issued by the county development body, the land was donated to petitioner, and it raised an additional $1 million through fund raising efforts and usage fees from the existing rink. The new rink was tax exempt until respondent's assessor conducted an audit and as a result, petitioner was added to the tax roll as a commercial property. Petitioner appealed to the tribunal, which rejected petitioner's arguments, found the new rink did not qualify for any of the property tax exemptions authorized by the relevant statutes, and concluded petitioner was not a charitable institution under MCL 211.7o. The tribunal specifically held petitioner did not meet the second part of the tests in Engineering Society and Ladies Literary because it did not offer a "gift" to the general public, but instead only made the property (the new rink) available to the public for a fee. The parties did not dispute petitioner was a nonprofit institution, but the tribunal found it did not satisfy the other Wexford Medical factors. Wexford Medical provides a charity must provide "a gift that benefits an indefinite number of persons" in one of several ways. The tribunal held this requirement was not met where the electors rejected the bond proposal to fund the construction of this type of recreational activity by a three to one margin. The court held the tribunal's decision was supported by competent, material, and substantial evidence on the whole record and affirmed.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly denied the defendant's motion for summary disposition based on the "motor vehicle" exception to governmental immunity; MCL 691.1405; Whether the trial court properly held the "Gator" utility tractor involved in the case was a "motor vehicle"; Stanton v. Battle Creek; Overall v. Howard; Regan v. Washtenaw County Bd. of Rd. Comm'rs (On Remand); Wesche v. Mecosta County Rd. Comm'n; Standard of review; Spiek v. Department of Transp.; Detroit v. Ambassador Bridge Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Yousif v. City of Sterling Heights

e-Journal Number: 44201

Judge(s): Per Curiam - Markey and Borrello; Dissent - Murray

 

The court held under binding case law, the "Gator" involved in the minor plaintiff's injury was a motor vehicle where it was transporting passengers from one location to another, just like a shuttle bus, and although it was smaller and less powerful than a regular bus, nothing in the statute indicates such considerations are controlling. Thus, the court affirmed the trial court's denial of the defendant's motion for summary disposition based on the "motor vehicle" exception to governmental immunity. The issue was whether the vehicle involved, a Gator utility tractor, was a "motor vehicle" within the statutory exception. In Stanton, the Supreme Court consulted dictionaries and applied "an automobile, truck, bus, or similar motor-driven conveyance" as the proper definition, noting a narrow definition provided the correct interpretation of an exception to governmental immunity. Here, defendant argued the Gator utility tractor was like the golf cart in Overall, while plaintiff contended it was more like the vehicles in Regan and Wesche. The Gator was being used as a trailer shuttle to transport festivalgoers visiting downtown Sterling Heights. The streets were closed off, and people would use the shuttle to go from the parking area to the festival area via public roads which were closed off to public traffic for the festival. Plaintiff fell off the passenger trailer and was injured when the driver allegedly turned too sharply. Defendant claimed the Gator was similar in size and appearance to a golf cart, is not required to be registered by the Secretary of State (like a golf cart), has a top speed of 18 mph precluding it from being driven in high-speed traffic, and was being used in the same way defendant was also using golf carts to transport passengers. Defendant argued the Gator's operation did not endanger a motorist on the public highway, unlike the situations in Regan and Wesche. Plaintiff contended the Gator was driven and operated in a way identical to that of a car, truck, or bus. It was not being used as equipment like a forklift. The court agreed with plaintiff, the Gator in this case was a motor vehicle falling within the statutory exception. "Nothing in the statute or Stanton or later cases indicated that the vehicle's top speed, size, appearance, or powertrain are of significance when applying the statute." Affirmed.

 

Negligence & Intentional Tort

 

Issues: The "highway exception" to governmental immunity; MCL 691.1402(1); MCL 691.1404 pre-suit notice; "Substantial compliance"; Rowland v. Washtenaw County Rd. Comm'n; Burise v. City of Pontiac; Brown v. City of Owosso; Meredith v. City of Melvindale; Hussey v. Muskegon Heights; Smith v. Warren; Jones v. Ypsilanti; Botsford v. Charter Twp. of Clinton (Unpub.); Chambers v. Wayne County Airport Auth. (Unpub.); Whether there was an actionable highway defect; Wilson v. Alpena County Rd. Comm'n; MCL 691.1403; Transient conditions such as rain, ice, or snow; Buckner Estate v. City of Lansing; Stord v. Department of Transp.; Haliw v. City of Sterling Heights; Design defects; Hanson v. Mecosta County Rd. Comm'n

Court: Michigan Court of Appeals (Published)

Case Name: Plunkett v. Department of Transp.

e-Journal Number: 44209

Judge(s): Per Curiam - Saad, Whitbeck, and Zahra

 

While the trial court did not err in concluding plaintiff's pre-suit notice "substantially complied" with the statutory requirements and reasonably apprised defendant-MDOT of the nature of the alleged defect, MDOT was entitled to summary disposition because plaintiff failed to allege there was a "persistent defect" in the roadway rendering it unsafe for public travel "at all times," which, together with the pooling water, caused his deceased wife's fatal accident. Plaintiff's wife, H, was driving on US-127 at about 8:30 PM in May 2005 when she lost control of her vehicle, which then struck a tree. It was raining and the road was wet. Plaintiff's pre-suit notice alleged, inter alia, MDOT failed to keep the highway at issue in reasonable repair and in a condition reasonably safe for vehicular travel because defects in the roadbed allowed an unnatural accumulation of rainfall to pool, there was excessive wheel track rutting, an uneven gradient due to excessive wear, an inadequate cross-slope/crown, and an inadequate super-elevation. The court held taken as a whole, plaintiff's notice reasonably apprised MDOT of the nature of the alleged defect. Plaintiff's reference to "standing/pooled water on the roadway was caused by excessive wear and uneven wear, and/or lack of drainage due to uneven and unreasonable wear," along with the attached police report's description of the location of the accident "were sufficient to bring the defect to MDOT's attention." However, plaintiff's claims about the "cross-slope/crown and/or super-elevation" of the roadbed were not claims for lack of repair or maintenance. This prong of his theory was based on a claimed design defect allowing water to collect. The "water on the roadway was a design issue, controlled by design factors, including elevation, angle, and width, and how much rainfall an hour the road is designed to handle." "MDOT is immune from liability for claims related to the construction, design, or redesign of a highway, including making sure the highway has a specific geometry or cross-slope." Plaintiff also claimed "rutting" in the roadbed surface, together with the unnaturally pooled water, proximately caused H's accident. Applying Haliw, the court held plaintiff failed to plead or produce evidence "the rutting was a 'persistent defect' 'at all times' of which MDOT had or should have had notice." Expert testimony established "the rutting was not a significant enough condition to put MDOT on notice" the road needed repair. Affirmed in part, reversed in part, and remanded for entry of an order granting MDOT summary disposition and dismissing plaintiff's claims with prejudice.

 

This summary also appears under Insurance

 

Issues: Automobile negligence; Whether the driver was a resident relative of her parents (the defendant's insureds) at the time of the accident; "Residence" and "domicile"; Dairlyland Ins. Co. v. Auto-Owners Ins. Co.; Fowler v. Auto Club Ins. Ass'n; University of MI Regents v. State Farm Mut. Ins. Co.; Cervantes v. Farm Bureau Ins. Co.; Workman v. DAIIE; Dobson v. Maki; Beecher v. Common Council of Detroit

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gunther v. AAA/ACIA

e-Journal Number: 44170

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

 

Concluding the balance of the relevant factors for determining "residence" favored a finding the driver (R) was residing with her parents (the defendant's insureds) at the time of the accident, the court held the trial court did not err in granting the plaintiff-PR's motion for partial summary disposition on the issue. R was involved in an accident with the PR's decedent. She assigned any insurance rights she had in her parents' policy to the PR in a consent judgment resolving the underlying wrongful death claim. Several factors are balanced and weighed in determining residence, and no one factor is determinative. R was a young adult in transition at the time of the accident. She had moved out of state from her Michigan childhood home, but returned to Michigan when she could no longer afford to live out of state. She typically stayed at her parents' home, although she also stayed at her sister's or with a friend, and she was waiting for an apartment to become available. Since her parents' home only had one bedroom, R slept on the floor with some blankets. She put most of her belongings in a storage facility, but kept enough clothing at her parents' home to wear for a week. She also kept her cat at her parents' home, forwarded her mail there, listed their address on employment applications, forms to open a bank account, and to rent the storage facility. R had free access to the amenities of her parents' home, including food. She stayed at her sister's home for three or four nights to help baby-sit, but only when her brother-in-law was not home. She was involved in the accident while borrowing her sister and brother-in-law's car. Noting the Michigan Supreme Court stated in Beecher every person "must have a domicile somewhere" and "very slight circumstances must often decide the question," the court concluded there were arguably three places possibly serving as R's residence at the time of the accident - her parents' home, her sister's home, or a friend's home. The court concluded she was not a resident of her sister's home since she was only allowed to stay there for baby-sitting purposes, she did not leave any belongings there, and she was not welcome there when her brother-in-law was home. There was no evidence she was a resident of a friend's home. "Thus, the only supportable conclusion, if only, perhaps, by 'very slight circumstances,'" was R resided in her parents' home until she moved into her own apartment shortly after the accident. Affirmed.

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly granted the plaintiff summary disposition on the slander, libel, and defamation claims; Mitan v. Campbell; Locricchio v. Evening New Ass'n; Whether a question of fact existed as to whether defendant-Smith was at least negligent in publishing the statements alleging plaintiff had stolen her money; Whether the trial court properly awarded plaintiff damages, costs, and attorney fees

Court: Michigan Court of Appeals (Unpublished)

Case Name: Michigan First Credit Union v. Smith

e-Journal Number: 44126

Judge(s): Per Curiam - O'Connell, Talbot, and Stephens

 

Since defendant-Smith's affidavits claiming she had $40,000 in her account at the plaintiff-credit union, which subsequently disappeared and remained unaccounted for, raised a question of fact as to whether she was at least negligent when she claimed plaintiff took her money, the trial court erred in granting plaintiff summary disposition under MCR 2.116(C)(10). Plaintiff is a state-chartered credit union with its principal place of business in Oakland County. Defendant owned an account at the credit union. In October 2001, she received a loan from plaintiff to finance the purchase of a car, but she defaulted on the loan in 2005. Plaintiff filed suit in the district court to recover possession of the car and to collect the balance of the money owed on the loan. In response, defendant claimed plaintiff had taken or misappropriated funds from her account. In support of her claim, she produced a transaction summary she alleged was generated by the credit union which she acquired from an "inside source." In response, plaintiff claimed the transaction summary was fraudulent and the statements and other records it provided to defendant about her account did not indicate the withdrawals alleged by plaintiff occurred. Defendant claimed she had $40,000 in her account. Defendant sent the CEO of the credit union a letter introducing materials she intended to distribute at its branches "disclosing the type of fiduciary they are intrusting [sic] their money to." Three days later defendant appeared at the main branch with a picket sign stating "see how Detroit Teacher's credit union now known as Michigan First stole my $40,000." She also passed out flyers to customers stating, "They used ‘double bookkeeping' to take my money (I only found out by an inside source)." Apparently, several customers saw the picketing and went into credit union to inquire about the situation. Plaintiff's attorney sent defendant a letter asking her to stop passing out the disparaging information about the credit union. However, she picketed and passed out flyers several more times. Plaintiff sued alleging, inter alia, slander, libel, and defamation. The trial court granted plaintiff summary disposition. On appeal, the court concluded the affidavits defendant submitted were sufficient to create a question of fact, the trial court erred, reversed, and remanded.

 

This summary also appears under Municipal

 

Issues: Whether the trial court properly denied the defendant's motion for summary disposition based on the "motor vehicle" exception to governmental immunity; MCL 691.1405; Whether the trial court properly held the "Gator" utility tractor involved in the case was a "motor vehicle"; Stanton v. Battle Creek; Overall v. Howard; Regan v. Washtenaw County Bd. of Rd. Comm'rs (On Remand); Wesche v. Mecosta County Rd. Comm'n; Standard of review; Spiek v. Department of Transp.; Detroit v. Ambassador Bridge Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Yousif v. City of Sterling Heights

e-Journal Number: 44201

Judge(s): Per Curiam - Markey and Borrello; Dissent - Murray

 

The court held under binding case law, the "Gator" involved in the minor plaintiff's injury was a motor vehicle where it was transporting passengers from one location to another, just like a shuttle bus, and although it was smaller and less powerful than a regular bus, nothing in the statute indicates such considerations are controlling. Thus, the court affirmed the trial court's denial of the defendant's motion for summary disposition based on the "motor vehicle" exception to governmental immunity. The issue was whether the vehicle involved, a Gator utility tractor, was a "motor vehicle" within the statutory exception. In Stanton, the Supreme Court consulted dictionaries and applied "an automobile, truck, bus, or similar motor-driven conveyance" as the proper definition, noting a narrow definition provided the correct interpretation of an exception to governmental immunity. Here, defendant argued the Gator utility tractor was like the golf cart in Overall, while plaintiff contended it was more like the vehicles in Regan and Wesche. The Gator was being used as a trailer shuttle to transport festivalgoers visiting downtown Sterling Heights. The streets were closed off, and people would use the shuttle to go from the parking area to the festival area via public roads which were closed off to public traffic for the festival. Plaintiff fell off the passenger trailer and was injured when the driver allegedly turned too sharply. Defendant claimed the Gator was similar in size and appearance to a golf cart, is not required to be registered by the Secretary of State (like a golf cart), has a top speed of 18 mph precluding it from being driven in high-speed traffic, and was being used in the same way defendant was also using golf carts to transport passengers. Defendant argued the Gator's operation did not endanger a motorist on the public highway, unlike the situations in Regan and Wesche. Plaintiff contended the Gator was driven and operated in a way identical to that of a car, truck, or bus. It was not being used as equipment like a forklift. The court agreed with plaintiff, the Gator in this case was a motor vehicle falling within the statutory exception. "Nothing in the statute or Stanton or later cases indicated that the vehicle's top speed, size, appearance, or powertrain are of significance when applying the statute." Affirmed.

 

Oil & Gas

 

This summary also appears under Administrative Law

 

Issues: Determination a dedication of gas reserves executed in conjunction with an agreement as to the transportation and treatment of gas from the reserves via a pipeline was a dedication for the life of the pipeline or the reserves; Standard of review for MPSC decisions; In re Application of Consumers Energy Co.; The parol evidence rule; Hamade v. Sunoco, Inc.; UAW-GM Human Res. Ctr. v. KSL Recreation Corp.; Effect of the merger clause in the dedication; Contract interpretation; In re Smith Trust; Whether the language of the dedication was ambiguous; Whether the evidence supported the MPSC's decision; Whether the existence of a perpetual dedication in one agreement and the exclusion of a perpetual dedication in other agreements established discrimination

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dominion MidW. Energy, Inc. v. Michigan Pub. Serv. Comm'n

e-Journal Number: 44168

Judge(s): Per Curiam - Talbot, Wilder, and M.J. Kelly

 

Holding the MPSC's determination the dedication at issue was unambiguous and provided for a transfer of the reserves without termination was not contrary to law and not unreasonable, but rather, was supported by competent, material, and substantial evidence on the whole record, the court affirmed the MPSC's order. Respondent-Mich Con Gathering Company (MGAT) owned and operated the Antrim Expansion Pipeline. Petitioners-Dominion owned reserves of natural gas. Dominion's predecessor, Wolverine Gas & Oil Company, entered into an agreement with MGAT's predecessor in interest, MichCon. The agreement, known as ASATT #1, provided for the transportation of Dominion's gas via the pipeline and for the treatment of CO2 content for a 10-year period. A later agreement, ASATT #16, was between Dominion and MichCon, and was also for 10 years. A dedication of the natural gas reserves was simultaneously executed with ASATT #1. A commitment of reserves was executed with ASATT #16, which included some of the reserves referenced in the ASATT #1 dedication. Dominion claimed the dedication under ASATT #1 was only intended to cover the 10-year period of ASATT #1, while MGAT maintained the dedication under ASATT #1 was intended to continue for the life of the reserves or the pipeline. The MPSC agreed with MGAT. Noting the MPSC properly looked to the dedication alone in determining the parties' intent, the court held the relevant provision in the dedication "clearly and unambiguously provides for a transfer of all interests in the property." The absence of a termination date did not render the provision ambiguous - it indicated there was not a termination date. "There was no need for an express term as to the expiration of the dedication because, having transferred all interests in the reserves, the unambiguous result is that the term would not expire until there was no reserve left." Dominion failed to show the MPSC committed an error of law or its conclusion was unreasonable. The MPSC's "ruling was consistent with contract law governing unambiguous contracts with integration clauses." Affirmed.

 

Probate

 

Issues: Whether the probate court erred by ordering the award of the decedent's personal savings plan (PSP) proceeds to his son (respondent-Eric); Whether the petitioner-widow was entitled to the PSP proceeds under ERISA as a surviving spouse; Boggs v. Boggs; Shields v. Reader's Digest Ass'n (6th Cir.); 29 USC § 1055; Subject-matter jurisdiction; White v. Harrison-White; Wayne County Treasurer v. Westhaven Manor Ltd. Dividend Hous. Ass'n; In re Wirsing; MCL 700.1302; MCL 700.1303; Scripps v. Wayne Probate Judge; Effect of the fact the PSP was governed by ERISA; Aetna Health Inc. v. Davila; Yellow Freight Sys., Inc. v. Donnelly

Court: Michigan Court of Appeals (Published)

Case Name: In re Lager

e-Journal Number: 44208

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

 

The probate court erred by ordering the award of the decedent Ernest's PSP proceeds to his son, respondent-Eric, because in keeping with authority from other jurisdictions and the plain language and purpose of ERISA § 1055(c)(2), the court held an election by an unmarried participant is not effective after a subsequent marriage if the new spouse fails to consent to the election. In this case, petitioner-Georgia, the PR and Ernest's widow, did not consent to Ernest's election of Eric according to § 1055(c). Thus, the probate court erred when it determined Eric was the proper beneficiary. Georgia claimed under ERISA, Ernest needed her consent to uphold his election of Eric as the beneficiary of his PSP. Because she never provided the consent, she argued she was entitled to the PSP proceeds as a surviving spouse. The court agreed. The parties did not dispute Ernest elected Eric as a beneficiary prior to the marriage or Georgia did not consent to this election following the marriage. Thus, the key issue on appeal was whether an election by an unmarried participant is effective after the participant's subsequent marriage if the new spouse fails to consent to the election. The plain language of § 1055(c)(2) suggests such an election is ineffective. The last sentence of this section provides - "Any consent by a spouse (or establishment that the consent of a spouse may not be obtained) under the preceding sentence shall be effective only with respect to such spouse." This language contemplates the possibility of subsequent spouses and grants them the same consent rights enjoyed at the time of the election. The court concluded this interpretation of the plain language of § 1055(c)(2) comports with the purpose of ERISA to protect surviving spouses, and with authority in other jurisdictions. Reversed.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Quiet title; Easement; Abandoned appeal; Failure to include an issue in the statement of the questions presented; MCR 7.212(C)(5); Ypsilanti Fire Marshal v. Kircher (On Reconsideration); Failure to include meaningful argument or offer any authority on an issue; Berger v. Berger

Court: Michigan Court of Appeals (Unpublished)

Case Name: Paul v. Carroll

e-Journal Number: 44181

Judge(s): Memorandum - Hoekstra, Bandstra, and Servitto

 

Concluding the defendant abandoned his appeal, the court affirmed the trial court's judgment for the plaintiffs, which ruled they had an easement over a portion of defendant's land. The dispute arose from a conflict over a two-track trail crossing the western side of defendant's property and leading to plaintiffs' property. Plaintiffs' property was landlocked and could only be reached by means of the private trail. Plaintiffs and their predecessors in interest had always used the trail as the sole means of ingress and egress to their property. In 2006, defendant placed a cable across the trail, preventing plaintiffs from using it to access their property. They filed this quiet title action, claiming a prescriptive easement and the defendant tortiously interfered with their property rights. After a bench trial, the trial court found while the plaintiffs did not establish a prescriptive easement, a recorded express right of way had ripened into a negative reciprocal easement extending through defendant's land. The trial court also found all the parties (grantors and grantees) were bound by the easement to permit each other to use the trail. In his questions presented, the defendant stated the issue on appeal was whether, as the trial court found, the right of way created a reciprocal negative easement. However, he did not provide any argument in his brief addressing this issue. His only argument and analysis in his brief was a challenge to the existence of a prescriptive easement, an issue not set forth in his question presented and an issue on which he prevailed in the trial court. "An issue not raised in a party's questions presented is deemed abandoned on appeal." Further, "an issue is considered abandoned on appeal if the party raising it fails to present a meaningful argument or offer any authority on that point." Since the argument presented was not properly raised and the issue presented was not properly addressed, the court considered the appeal abandoned. Affirmed.

 

Tax

This summary also appears under Constitutional Law

 

Issues: Foreclosure under the General Property Tax Act (GPTA)(MCL 211.1 et seq.); Cancellation of a quitclaim deed issued by the petitioner-county treasurer; Whether the intervening parties were afforded minimum due process; Sidun v. Wayne County Treasurer; Statutory notice deficiencies; Gillie v. Genesee County Treasurer; The means used to notify interested parties; First Nat'l Bank of Chicago v. Department of Treasury; Whether the trial court properly found a denial of due process justifying relief from the foreclosure judgment without conducting an evidentiary hearing; Relevance of a personal visit to the property in assessing a titleholder's due process rights; Jones v. Flowers; Whether the undisputed evidence the county treasurer did not try to serve a party established a denial of due process; Property rights protected by due process; Dow v. Michigan; Michigan Educ. Ass'n v. State Bd. of Educ.; Whether the party was entitled to notice under MCL 211.78i(2); Ownership as a fact question; Ghaffari v. Turner Constr. Co. (On Remand); Standing; Kallman v. Sunseekers Prop. Owners Ass'n, LLC; Manuel v. Gill; Whether the alleged present lessee of the property showed it had the necessary relationship with the foreclosure to entitle it to notice; MCL 211.78g; MCL 211.78i(6)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Petition of Wayne County Treasurer

e-Journal Number: 44176

Judge(s): Per Curiam - O'Connell, Talbot, and Stephens

 

The court agreed with the respondents-appellants (the Casabs) the trial court erred in finding a denial of due process justifying relief from the foreclosure judgment without conducting an evidentiary hearing, concluding, inter alia, further factual development was needed to determine if intervening party-Kassem Beydoun's due process rights were violated. The Casabs appealed the trial court's order cancelling a quitclaim deed issued to them by the petitioner-county treasurer and quieting title to the property at issue in favor of Kassem and Ghada Beydoun. The property was one of several subject to a mass foreclosure action filed by petitioner under the GPTA. Title in the property vested in petitioner pursuant to a foreclosure judgment. After petitioner sold the property to the Casabs, the Beydouns and three entities claiming to be past and present lessees moved to set aside the foreclosure judgment, cancel the Casabs' deed, and quiet title in the property in the Beydouns, claiming they did not receive notice of the foreclosure and were denied constitutional due process. The trial court set aside the foreclosure judgment pursuant to MCR 2.612(C), finding the intervening parties were not afforded minimum due process. At the time of the foreclosure, Kassem was the only legal titleholder of the property according to a deed. The record lacked factual development about the actual measures petitioner took to determine appropriate addresses for giving Kassem notice of the foreclosure action. The trial court was presented with affidavits raising credibility issues about petitioner's use of certified mailings to provide notice and its undertaking to have a representative personally visit the property to give the occupant notice. The court noted a personal visit was "relevant in assessing a titleholder's due process rights because notice to an occupant increases the likelihood" the occupant "will alert the owner about the foreclosure, if only because a change in ownership could affect occupancy." The court also rejected the claim the undisputed evidence petitioner did not try to serve Ghada established a denial of due process, concluding the fact she was referred to a mortgagor, owner, and borrower in mortgage documents did not establish she had a vested interest in the property. A question of fact remained whether she was entitled to notice pursuant to MCL 211.78i(2). "Ownership is a question of fact," and there was conflicting evidence as to whether Ghada had an ownership interest in the property. Reversed and remanded.

 

This summary also appears under Municipal

 

Issues: Claims related to the reclassification of the subject property as commercial instead of tax exempt; Whether the tribunal properly found the petitioner was not a charitable institution pursuant to MCL 211.7o; Engineering Soc'y of Detroit v. Detroit; Ladies Literary Club v. Grand Rapids; Factors to be considered when determining whether an institution is a "charitable institution"; Wexford Med. Group v. City of Cadillac; Whether plaintiff's purpose met the definition of "charity" in Wexford; Liberty Hill Housing Corp. v. Livonia; Whether the tribunal's conclusion petitioner was not organized chiefly or solely for charity was based on the erroneous finding it was recreational in nature; Whether the tribunal added an additional requirement to the definition of "charity"; Michigan United Conservation Clubs v. Township of Lansing; Whether the tribunal correctly found petitioner could not have lessened the county's burden unless there was a governmental requirement the county provide recreational activities for its residents; Whether the tribunal addressed the fourth element of the Ladies Literary Club test

Court: Michigan Court of Appeals (Unpublished)

Case Name: Involved Citizens Enters., Inc. v. Township of E. Bay

e-Journal Number: 44192

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

 

The Tax Tribunal did not err in holding the petitioner was not a charitable institution within the meaning of Wexford Medical and was not entitled to the property tax exemption for a charitable institution in MCL 211.7o. The issue in the case related to the reclassification of the subject property as commercial instead of tax exempt, which was upheld in the tribunal's grant of summary disposition to the respondent-township. In the early 1990s, Grand Traverse County, where the parties are located, determined there was insufficient capacity at a local ice rink owned by the county and operated by petitioner to accommodate various user groups -- including area schools, individuals, and local amateur ice skating and ice hockey associations. A county bond proposal to fund construction of a new ice arena next to the existing rink was proposed, but was defeated. Petitioner, however, was able to complete construction of a new ice hockey rink in 1997. The rink was funded through two limited obligation revenue bonds ($4.8 million) issued by the county development body, the land was donated to petitioner, and it raised an additional $1 million through fund raising efforts and usage fees from the existing rink. The new rink was tax exempt until respondent's assessor conducted an audit and as a result, petitioner was added to the tax roll as a commercial property. Petitioner appealed to the tribunal, which rejected petitioner's arguments, found the new rink did not qualify for any of the property tax exemptions authorized by the relevant statutes, and concluded petitioner was not a charitable institution under MCL 211.7o. The tribunal specifically held petitioner did not meet the second part of the tests in Engineering Society and Ladies Literary because it did not offer a "gift" to the general public, but instead only made the property (the new rink) available to the public for a fee. The parties did not dispute petitioner was a nonprofit institution, but the tribunal found it did not satisfy the other Wexford Medical factors. Wexford Medical provides a charity must provide "a gift that benefits an indefinite number of persons" in one of several ways. The tribunal held this requirement was not met where the electors rejected the bond proposal to fund the construction of this type of recreational activity by a three to one margin. The court held the tribunal's decision was supported by competent, material, and substantial evidence on the whole record and affirmed.

 

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