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of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

Case Summaries           e-Mail to a Friend Printer Friendly Version

Cases appear under the following practice areas:


Business Law

 

Issues: Arbitration award; City of Ann Arbor v. AFSCME Local 369; Court-supervised dissolution of a partnership; Kranz v. Kranz; Johnson Family Ltd. P'ship v. White Pine Wireless, LLC; Rinke v. Rinke; The Uniform Arbitration Act (MCL 600.5001 et seq.); Statutory arbitration; Wold Architects & Engr's v. Strat; Brucker v. McKinlay Transp., Inc.; Hess v. Cannon Twp.; "Real party in interest"; MOSES, Inc. v. Southeast MI Council of Gov'ts;  Bowie v. Arder; Miller v. Allstate Ins. Co.; Wilkie v. Auto-Owners Ins. Co.; Whether the arbitrator exceeded his authority; Saveski v. Tiseo Architects, Inc.; Belen v. Allstate Ins. Co.; Washington v. Washington; MCL 449.1805(3); A "contribution" (MCL 449.1101(3)); Whether ¶ 4.2 of the partnership agreement entitled defendant to a six percent commission; Applicability of MCL 339.2501(g) (defining "real estate broker") to defendant and the single act of selling the partnership's sole asset; Applicability of the exception provided by MCL 339.2503(1) to the single sale of the partnership's property; Interest abatement; Whether defendant was entitled to management fees; MCL 339.2512a; Whether the alleged improper payment of legal fees and management fees should be deducted from the loans the partnership owed to defendant; Whether the trial court properly ruled interest on defendant's loans to the partnership ceased accruing as of the date of the sale of the partnership's building; Whether the loans earned simple rather than compound interest; Whether the arbitrator's ruling regarding interest applied to all loans defendant made to the partnership

Court: Michigan Court of Appeals (Unpublished)

Case Name: Benson v. Vanderbeke

e-Journal Number: 44214

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

 

The trial court's rulings on the arbitration award and the dissolution of the parties' partnership (Classic) were reversed in part, affirmed in part, and remanded. Plaintiff, defendant, and a third person formed Classic in 1986. In 1999, plaintiff, believing defendant had breached the partnership agreement and abused his authority as general partner, demanded arbitration. The arbitrator in general ruled for defendant. Plaintiff filed this suit to vacate in part or modify the arbitration award. Defendant argued on appeal, inter alia, the trial court erred by vacating the arbitrator's determination plaintiff did not sustain his burden of proof he improperly paid his own personal legal expenses with partnership funds in connection with the Benson Associates litigation. The arbitrator ruled plaintiff's claim would not be granted and declined to grant him any relief. The parties' arguments on appeal and the basis for the trial court's ruling centered on a stipulation of the parties' counsel during the arbitration proceedings to the effect defendant paid the legal fees at issue with partnership money pursuant to the indemnity clause in ¶ 42 of Classic's lease with Bodytechniques. The trial court agreed with plaintiff's argument "the arbitrator exceeded its powers by ignoring the parties' stipulation." Thus, the trial court ruled the stipulation mandated a finding the partnership "should not have paid for the attorney fees of defendant and Bodytechniques," defendant was liable to plaintiff for 20 percent of those fees, and the award had to be modified to this extent. Because the parties' agreement to arbitrate partnership disputes was in writing and provided for the enforcement of an award in any court having jurisdiction, proceedings under it were classified as statutory arbitration subject to the Uniform Arbitration Act. The arbitration clause in the parties' agreement broadly covered any controversy or claim arising out of or relating to the agreement. Plaintiff submitted to the arbitrator his claim the payment of the legal fees at issue was improper. The broad language of the parties' agreement and plaintiff's own actions defeated any claim the arbitrator acted beyond the material terms of the arbitration agreement. Further, the stipulation related to evidence before the arbitrator, statements of legal services. The stipulation regarding the legal bills did not compel the arbitrator to rule in a specific way. Defendant argued before the arbitrator using partnership funds to pay the legal fees at issue was a legitimate expense of Classic pursuant to its agreement to indemnify Bodytechniques. The fact a different conclusion might be drawn from the legal billings and the parties' stipulation was not justification for the trial court to substitute its judgment for that of the arbitrator. Further, the arbitrator's ruling declining to grant relief to plaintiff regarding payment of the litigation expenses at issue was not contrary to a controlling principle of law.

 


Civil Rights

 

This summary also appears under Municipal

 

Issues: Search and seizure; § 1983 claim for excessive force by the defendants-police officers; Qualified immunity; Whether the officers' actions were objectively unreasonable; Dunn v. Matatall; Right to freedom from unreasonable seizure; Pearson v. Callahan; Ewolski v. City of Brunswick; Hunter v. Bryant; Untalan v. City of Lorain; Brosseau v. Haugen; Kirby v. Duva; Boyd v. Baeppler; Yates v. City of Cleveland; Jurisdiction; 28 USC § 1291; Harrison v. Ash; Leary v. Livingston County; Livermore ex rel. Rohm v. Lubelan; Scott v. Harris

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Chappell v. City of Cleveland

e-Journal Number: 44217

Judge(s): McKeague, Daughtrey, and Sutton

 

The court held the district court erred by denying the defendants-officers' motion for summary judgment because they were entitled to qualified immunity where their decision to use deadly force in self-defense was not shown to have been objectively unreasonable. The action arose from the shooting by police officers of a 15-year old boy, M, in his own bedroom. While conducting a protective sweep of a home in the early-morning darkness prior to executing a search warrant, the officers encountered a male suspect hiding/standing in a bedroom closet. When they ordered him to come out and show his hands, the suspect came quickly toward the officers holding a knife with the blade pointed upward. When he ignored their commands to drop the knife and continued to move quickly toward them in close quarters, they opened fire, killing him instantly. Plaintiff-administratrix of M's estate sued the officers alleging the use of deadly force was excessive as the officers were not under imminent threat of serious bodily harm. Defendants contended the district court misapplied the standard by viewing the question of objective unreasonableness as a question of fact rather than a question of law. Careful review of the district court's opinion revealed the district court did not erroneously treat this ultimate question as one of fact. Rather, the district court found there was a genuine fact issue as to whether M posed a serious and immediate threat of harm. Whether the detectives identified themselves as they conducted the sweep was not a disputed material fact and did not represent grounds for denying defendants qualified immunity. In sum, plaintiff failed to present a genuine issue of material fact on her claim defendants violated M's Fourth Amendment right to freedom from unreasonable seizure. At best, plaintiff presented grounds for speculation the defendants misread her grandson's innocent intentions when he came out of the closet and advanced toward them with knife in hand. Qualified immunity protects officers from liability for mistakes of law and fact. Plaintiff failed to adduce facts demonstrating defendants, in potentially misinterpreting M's actions, were plainly incompetent or deliberately violated his rights when they acted in self-defense. She thus failed to carry her burden under the first prong of the qualified immunity analysis of demonstrating defendants violated M's constitutional rights. She also failed to demonstrate they were not entitled to qualified immunity. Moreover, since there was insufficient evidence of a constitutional violation, defendants, in effect, had no need of qualified immunity and were actually entitled to summary judgment as a matter of law. The district court's denial of defendants' motion for summary judgment was reversed and the case remanded to the district court for entry of judgment in favor of the officers on all of plaintiff's claims, under federal and state law.

 


Criminal Law

 

Issues: Motion for relief from judgment on the basis of newly discovered evidence; People v. Clark; People v. Davis; People v. Cress; People v. Kimble; People v. Duncan; People v. Barbara; Sufficiency of the evidence to support defendant's conviction of two counts of CSC I; People v. Hawkins; People v. Johnson; People v. Lemmon; Confrontation Clause; People v. Bushard

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Grissom

e-Journal Number: 44190

Judge(s): Per Curiam – Borrello and Davis; Dissent - Gleicher

 

On remand from the Supreme Court, the court held the trial court did not abuse its discretion by denying the defendant's motion for relief from judgment on the basis of newly discovered evidence because even if the newly discovered evidence was admissible on retrial, there was no reasonable chance of an acquittal. Defendant was convicted by a jury of two counts of CSC I for a brutal rape committed in a shopping center parking lot on a Saturday afternoon in May 2001. In 2005, the prosecutor forwarded a packet of documents to defendant's trial and appellate counsel. The packet contained several police reports and three anonymous e-mails, all generally containing assertions to the effect the victim was a liar and had made false accusations of rape in California, some time after the rape in this case but before defendant's trial. Based on the discovery of evidence the victim may have made false allegations of sexual assault, defendant filed a motion with the trial court for relief from judgment. The prosecutor conceded all the Cress elements pertaining to good cause, but disputed actual prejudice. At issue was whether the newly discovered evidence would probably result in an acquittal on retrial. The court noted some of the documents contained in the packet would clearly be inadmissible - the three anonymous e-mails, for example, were never traced and the unknown author apparently did not respond to a request to come forward. Of the rest of the newly discovered evidence, none of it could be used for any purpose other than impeachment, which is not grounds for a new trial. Also, it appeared none of the newly discovered evidence was substantively admissible, because it only pertained to proving "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility." The court concluded none of the newly discovered evidence would justify a new trial, given even if it was ruled admissible, it would only be admissible for the limited purpose of impeaching the victim. However, pursuant to the Supreme Court's remand order, the court considered the possible effect it might have in the event of a retrial. The "newly discovered evidence" concerned events occurring in California between September 28, 2001, and October 1, 2001, which was after the sexual assault at issue in this case, but before the trial. The court held the only possible purpose for its admission would be to impeach the victim's credibility. Defendant's conviction was corroborated by substantial objective evidence, which was, and is, independent of and unaffected by the victim's credibility. This objective evidence was legally sufficient to support his convictions. "The newly discovered evidence paints an unflattering picture of the victim's mental state four months after suffering a violent sexual assault, but it does not tend to undermine confidence in defendant's conviction." The court did not find it "makes a different result probable on retrial." Affirmed.

 


Issues: Sentencing; Whether the trial court properly departed from the sentencing guidelines range by providing substantial and compelling reasons for the departure; MCL 769.34(3); People v. Smith; People v. Babcock; People v. Abramski; People v. Young; People v. Daniel

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Rowland

e-Journal Number: 44199

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

 

The trial court properly departed from the sentencing guidelines range and provided substantial and compelling reasons for the departure. Defendant broke the door of a home and took approximately $20 in change, a checkbook, Vicodin, Darvoset, and Levoxothyrine. He then went to a motel and knocked on the door of a room. A man answered, and defendant walked in without permission. He would not leave, and the man called the police. The police discovered him in bed and intoxicated at the motel, and the items taken from the homeowner were recovered. At sentencing, the trial court asked defense counsel to identify the substantial and compelling reasons for departing from the sentencing guidelines range, which the parties had previously calculated as 29 to 57 months. The trial court adopted the reasons mentioned on the record. On appeal, the prosecution argued the reasons provided by defense counsel and adopted by the trial court were not substantial and compelling, where defendant's background showed he was not a good candidate for leniency, and thus, the departure was an abuse of discretion. Although the trial court adopted some invalid reasons, its comments indicated it departed from the guidelines because it believed probation with continued treatment gave defendant the best chance at rehabilitation. The trial court would have reached the same result without consideration of the invalid factors, and thus, neither rearticulation nor resentencing was required. As to whether the extent of the departure was an abuse of discretion, the prosecutor did not expressly argue the sentence was disproportionately lenient but stated defendant's record provided many reasons the trial court should have sentenced him within the guidelines. Although defendant's lengthy criminal record provided support for the prosecutor's argument, the court deferred to the trial court's direct knowledge of the facts and familiarity with the offender. The court was not persuaded the trial court's determination probation and treatment was a proportionate sentence was an abuse of discretion. Defendant's conviction of second-degree home invasion and sentence were affirmed.

 


Litigation

 

This summary also appears under Native American Law

 

Issues: Subject-matter jurisdiction; Dismissal under Fed.R.Civ.P. 12(b)(1); Lovely v. United States; Whether the defendant (CNI) enjoyed tribal-sovereign immunity; The Oklahoma Indian Welfare Act (OIWA)(25 USC § 503 et seq.); The Indian Reorganization Act (IRA)(25 USC § 461 et seq.); § 17 of the IRA (25 USC §477); Whether incorporating under § 17 automatically waives tribal-sovereign immunity; GNS, Inc. v. Winnebago Tribe of NE (ND IA); American Vantage Cos. v. Table Mountain Rancheria (9th Cir.); Kiowa Tribe of OK v. Manufacturing Techs., Inc.; Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of OK; Liberal construction of statutes in favor of Native Americans; Montana v. Blackfeet Tribe of Indians; Whether CNI expressly waived tribal-sovereign immunity; Whether CNI's charter had a "sue-and-be-sued" clause expressly waiving immunity; Ninigret Dev. Corp. v. Narragansett Indian Wetumocuck Hous. Auth. (1st Cir.); Whether equitable doctrines applied to waive CNI's tribal-sovereign immunity; Effect of tribal officials' unauthorized acts; Native Am. Distrib. v. Seneca-Cayuga Tobacco Co. (10th Cir.); Sanderlin v. Seminole Tribe of FL (11th Cir.); American Arbitration Association (AAA)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc.

e-Journal Number: 44216

Judge(s): Cole, Martin, and Kethledge

 

In an issue of first impression, the court held the act of incorporation under IRA § 17 does not automatically waive tribal-sovereign immunity and the district court properly dismissed plaintiff-MBF's suit against defendant-CNI for lack of subject-matter jurisdiction. MBF was a biodiesel refining company. CNI is a federally chartered tribal corporation incorporated under the OIWA. The OIWA expanded the IRA to include tribes in Oklahoma. IRA § 17 allows a tribe to incorporate. Tribes incorporated under the IRA or OIWA are called "Section 17 corporations." As a Section 17 corporation, CNI is wholly owned by the Chickasaw Nation tribe but it is a separate and distinct entity from the Chickasaw Nation. The parties negotiated a deal for CNI to deliver diesel fuel and soybean oil to MBF's facility for refinement and resale as biodiesel. MBF insisted on a contract provision expressly waiving any sovereign immunity and a "representation and warranty" CNI's waiver was valid, enforceable, and effective. Both parties signed the agreement, but the CNI board did not waive immunity. CNI later repudiated the agreement, and MBF began mediation procedures through the AAA, as required by the contract. CNI refused to arbitrate and sued MBF and AAA, seeking a declaratory judgment the waiver of CNI's sovereign immunity was invalid due to lack of board approval. MBF filed this suit seeking, inter alia, a declaratory judgment CNI's waiver of sovereign immunity was effective. The district court held incorporating under § 17 does not automatically divest an entity of its tribal-sovereign immunity, and the court agreed. The statute was silent as to whether § 17 incorporated tribes have sovereign immunity, and the court concluded it was "more appropriate to interpret this silence as not abrogating sovereign immunity for two reasons." In Kiowa Tribe, the Supreme Court held as a matter of federal law, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." The Supreme Court has also held "abrogation of tribal-sovereign immunity must be clear and may not be implied." Since § 17 does not explicitly waive sovereign immunity, "it should not be interpreted to do so impliedly." The "better reading of Section 17 is that it creates 'arms of the tribe' that do not automatically forfeit tribal-sovereign immunity." The court also held without board approval of the contractual waiver provision, CNI's sovereign immunity remained intact, and CNI did not waive its immunity based on equitable doctrines. Affirmed.

 


Municipal

 

This summary also appears under Civil Rights

 

Issues: Search and seizure; § 1983 claim for excessive force by the defendants-police officers; Qualified immunity; Whether the officers' actions were objectively unreasonable; Dunn v. Matatall; Right to freedom from unreasonable seizure; Pearson v. Callahan; Ewolski v. City of Brunswick; Hunter v. Bryant; Untalan v. City of Lorain; Brosseau v. Haugen; Kirby v. Duva; Boyd v. Baeppler; Yates v. City of Cleveland; Jurisdiction; 28 USC § 1291; Harrison v. Ash; Leary v. Livingston County; Livermore ex rel. Rohm v. Lubelan; Scott v. Harris

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Chappell v. City of Cleveland

e-Journal Number: 44217

Judge(s): McKeague, Daughtrey, and Sutton

 

The court held the district court erred by denying the defendants-officers' motion for summary judgment because they were entitled to qualified immunity where their decision to use deadly force in self-defense was not shown to have been objectively unreasonable. The action arose from the shooting by police officers of a 15-year old boy, M, in his own bedroom. While conducting a protective sweep of a home in the early-morning darkness prior to executing a search warrant, the officers encountered a male suspect hiding/standing in a bedroom closet. When they ordered him to come out and show his hands, the suspect came quickly toward the officers holding a knife with the blade pointed upward. When he ignored their commands to drop the knife and continued to move quickly toward them in close quarters, they opened fire, killing him instantly. Plaintiff-administratrix of M's estate sued the officers alleging the use of deadly force was excessive as the officers were not under imminent threat of serious bodily harm. Defendants contended the district court misapplied the standard by viewing the question of objective unreasonableness as a question of fact rather than a question of law. Careful review of the district court's opinion revealed the district court did not erroneously treat this ultimate question as one of fact. Rather, the district court found there was a genuine fact issue as to whether M posed a serious and immediate threat of harm. Whether the detectives identified themselves as they conducted the sweep was not a disputed material fact and did not represent grounds for denying defendants qualified immunity. In sum, plaintiff failed to present a genuine issue of material fact on her claim defendants violated M's Fourth Amendment right to freedom from unreasonable seizure. At best, plaintiff presented grounds for speculation the defendants misread her grandson's innocent intentions when he came out of the closet and advanced toward them with knife in hand. Qualified immunity protects officers from liability for mistakes of law and fact. Plaintiff failed to adduce facts demonstrating defendants, in potentially misinterpreting M's actions, were plainly incompetent or deliberately violated his rights when they acted in self-defense. She thus failed to carry her burden under the first prong of the qualified immunity analysis of demonstrating defendants violated M's constitutional rights. She also failed to demonstrate they were not entitled to qualified immunity. Moreover, since there was insufficient evidence of a constitutional violation, defendants, in effect, had no need of qualified immunity and were actually entitled to summary judgment as a matter of law. The district court's denial of defendants' motion for summary judgment was reversed and the case remanded to the district court for entry of judgment in favor of the officers on all of plaintiff's claims, under federal and state law.

 


Native American Law

 

This summary also appears under Litigation

 

Issues: Subject-matter jurisdiction; Dismissal under Fed.R.Civ.P. 12(b)(1); Lovely v. United States; Whether the defendant (CNI) enjoyed tribal-sovereign immunity; The Oklahoma Indian Welfare Act (OIWA)(25 USC § 503 et seq.); The Indian Reorganization Act (IRA)(25 USC § 461 et seq.); § 17 of the IRA (25 USC §477); Whether incorporating under § 17 automatically waives tribal-sovereign immunity; GNS, Inc. v. Winnebago Tribe of NE (ND IA); American Vantage Cos. v. Table Mountain Rancheria (9th Cir.); Kiowa Tribe of OK v. Manufacturing Techs., Inc.; Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of OK; Liberal construction of statutes in favor of Native Americans; Montana v. Blackfeet Tribe of Indians; Whether CNI expressly waived tribal-sovereign immunity; Whether CNI's charter had a "sue-and-be-sued" clause expressly waiving immunity; Ninigret Dev. Corp. v. Narragansett Indian Wetumocuck Hous. Auth. (1st Cir.); Whether equitable doctrines applied to waive CNI's tribal-sovereign immunity; Effect of tribal officials' unauthorized acts; Native Am. Distrib. v. Seneca-Cayuga Tobacco Co. (10th Cir.); Sanderlin v. Seminole Tribe of FL (11th Cir.); American Arbitration Association (AAA)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc.

e-Journal Number: 44216

Judge(s): Cole, Martin, and Kethledge

 

In an issue of first impression, the court held the act of incorporation under IRA § 17 does not automatically waive tribal-sovereign immunity and the district court properly dismissed plaintiff-MBF's suit against defendant-CNI for lack of subject-matter jurisdiction. MBF was a biodiesel refining company. CNI is a federally chartered tribal corporation incorporated under the OIWA. The OIWA expanded the IRA to include tribes in Oklahoma. IRA § 17 allows a tribe to incorporate. Tribes incorporated under the IRA or OIWA are called "Section 17 corporations." As a Section 17 corporation, CNI is wholly owned by the Chickasaw Nation tribe but it is a separate and distinct entity from the Chickasaw Nation. The parties negotiated a deal for CNI to deliver diesel fuel and soybean oil to MBF's facility for refinement and resale as biodiesel. MBF insisted on a contract provision expressly waiving any sovereign immunity and a "representation and warranty" CNI's waiver was valid, enforceable, and effective. Both parties signed the agreement, but the CNI board did not waive immunity. CNI later repudiated the agreement, and MBF began mediation procedures through the AAA, as required by the contract. CNI refused to arbitrate and sued MBF and AAA, seeking a declaratory judgment the waiver of CNI's sovereign immunity was invalid due to lack of board approval. MBF filed this suit seeking, inter alia, a declaratory judgment CNI's waiver of sovereign immunity was effective. The district court held incorporating under § 17 does not automatically divest an entity of its tribal-sovereign immunity, and the court agreed. The statute was silent as to whether § 17 incorporated tribes have sovereign immunity, and the court concluded it was "more appropriate to interpret this silence as not abrogating sovereign immunity for two reasons." In Kiowa Tribe, the Supreme Court held as a matter of federal law, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." The Supreme Court has also held "abrogation of tribal-sovereign immunity must be clear and may not be implied." Since § 17 does not explicitly waive sovereign immunity, "it should not be interpreted to do so impliedly." The "better reading of Section 17 is that it creates 'arms of the tribe' that do not automatically forfeit tribal-sovereign immunity." The court also held without board approval of the contractual waiver provision, CNI's sovereign immunity remained intact, and CNI did not waive its immunity based on equitable doctrines. Affirmed.

 


Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(e), (g), and (j); In re JK; The child's best interests; In re Trejo Minors; Jurisdiction; In re BZ; MCL 712A.2(b)(4); In re Gazella; In re Miller; Judicial bias; In re Egbert R. Smith Trust; In re Forfeiture of $1,159,420; Chmielewski v. Xermac, Inc. Whether the trial court abused its discretion in precluding respondent from calling an expert witness; Gates v. Gates; Whether the trial court determined respondent had a disability under the ADA (42 USC § 12101 et seq.); In re Terry; Ineffective assistance of counsel; In re CR

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Bell

e-Journal Number: 44202

Judge(s): Per Curiam – Stephens, Jansen, and Wilder

 

The trial court properly terminated the respondent-mother's parental rights to the minor child where clear and convincing evidence established the statutory grounds for termination. The evidence indicated she failed to provide proper care for the child after his birth, failed to substantially comply with the court-structured plan subsequently established, and had cognitive and mental limitations preventing her from providing proper care for the child in the future, which would place the child at risk of harm if he was returned to her custody. Because respondent failed to comply with the court-structured plan, she saw her child only in a supervised setting just a few hours a week, and the child unsurprisingly did not view her as a parent figure. In addition, given respondent's cognitive and mental limitations, the fact the child was under a guardianship for most of his life, and the child did not view respondent as his mother, the trial court did not clearly err in finding termination of respondent's parental rights was in the child's best interests. Affirmed.