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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.
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Today's e-Journal includes summaries of two Michigan Supreme Court orders under Malpractice. Cases appear under the following practice areas:
- Construction Law (1)
- Contracts (2)
- Entertainment Law (1)
- Family Law (1)
- Insurance (1)
- Intellectual Property (1)
- Litigation (1)
- Malpractice (2)
- Negligence & Intentional Tort (2)
- Probate (1)
- Real Property (2)
- Termination of Parental Rights (1)
Construction Law
This summary also appears under Negligence & Intentional Tort
Issues: Whether the trial court erred by not granting the defendant-Great Lakes' dispositive motions for judgment as a matter of law based on its claim of a "sophisticated user" defense under MCL 600.2947(4); Diamond v. Witherspoon; Maiden v. Rozwood; Zantel Mktg. Agency v. Whitesell Corp.; Merkur Steel Supply Inc. v. Detroit; Fenton Area Pub. Schs. v. Sorensen-Gross Constr. Co.; Antcliff v. State Employees Credit Union; Gilliam v. Hi-Temp Prods. Inc.; Detroit v. Ambassador Bridge Co.; "Sophisticated user"; MCL 600.2945(j); Clark v. Dalman; Jury instruction regarding sophisticated user defense; Lewis v. LeGrow; Leavitt v. Monaco Coach Corp.; Bouverette v. Westinghouse Elec. Corp.; Palenkas v. Beaumont Hosp.; McManamon v. Redford Twp.; Kelly v. Builders Square, Inc.; Wiley v. Henry Ford Cottage Hosp.; Baranowski v. Strating; Whether the trial court abused its discretion by granting remittitur; Ensink v. Mecosta County Gen. Hosp.; Whether the trial court abused its discretion when awarding case evaluation sanctions by determining a reasonable hourly attorney fee rate was $185 and $70 per hour for paralegal services; Dessart v. Burak; Smith v. Khouri; MCR 2.403(O)(6)(b); Zdrojewski v. Murphy
Court: Michigan Court of Appeals (Unpublished)
Case Name: Heaton v. Pristine Home Builders
e-Journal Number: 44177
Judge(s): Per Curiam - Markey and Borrello; Concurring in part, Dissenting in part - Murray
The trial court properly denyied the defendant-Great Lakes' dispositive motion for judgment as a matter of law based on its claim of the "sophisticated user" defense under MCL 600.2947(4). Plaintiffs entered into a contract with defendant-Pristine, operated by defendant-Bonawitt, a licensed builder, to build their retirement home. Bonawitt subcontracted with Great Lakes to design, manufacture, and install pre-cast concrete foundation walls for the home. During the construction of the home the foundation walls twice shifted. Defendant argued it was entitled to judgment as a matter of law because, although plaintiffs couched their complaint in terms of negligence, the case was actually a product liability claim for failure to warn. Defendant contended the undisputed facts established it furnished a "product," pre-cast concrete foundation walls, and the undisputed facts established its "product" was neither defective nor the cause of the foundation movement at issue. Rather, the foundation shifted because Bonawitt failed to initially install shear walls, and then subsequently installed inadequately designed or constructed shear walls. The defendant's argument was Bonawitt was a "sophisticated user" of defendant's foundation walls, having been a licensed builder since 1997, and experienced in all phases of construction, including the use of shear walls. Thus, defendant argued, under MCL 600.2947(4) it had no duty to warn Bonawitt of the need for shear walls. Defendant correctly noted the question of duty is one for the trial court to decide as matter of law. The court held the trial did not err in ruling based on the facts of the case, Bonawitt was not a "sophisticated user" as contemplated by the statute. Because the court found no error in the trial court's ruling Bonawitt was not a "sophisticated user" as defined in MCL 600.2945(j), the "sophisticated user" defense provided for in MCL 600.2947(4) was inapplicable. MCL 600.2947(4) only limits product liability claims as to a duty to provide an "adequate warning" to sophisticated users where not otherwise required by state or federal statute or regulation. Plaintiffs' theory of liability was much broader than simply the failure to provide an adequate warning. It included a claim for breach of a duty to provide adequate instructions regarding the need for shear walls, and for defendant's active participation with Bonawitt in devising the shear walls subsequently, which failed to adequately support the foundation walls. Plaintiffs' theory of the case, supported by the evidence, was best characterized as an "application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others." Affirmed, but the trial court's order granting remittitur was reversed and remanded for entry of judgment for plaintiffs consistent with the jury's verdict.
Contracts
Issues: Breach of contract for failure to pay certain requested capital contributions; Kisiel v. Holz; Contract interpretation; Bandit Indus., Inc. v. Hobbs Int'l, Inc. (After Remand); Old Kent Bank v. Sobczak; Whether "loan" and "capital contribution" were used interchangeably in the operating agreement; Whether defendant's status as a member required he make capital contributions; The Limited Liability Company Act (MCL 450.4101 et seq.); MCL 450.4501(2); Effect of prior voluntary payments; Sprik v. Regents of the Univ. of MI; Whether the trial court properly held a representative of plaintiff's manager did not have the authority to enter into the utility agreement or the construction contract; Klapp v. United Ins. Group Agency, Inc.; Whether § 7.3 (titled "Limitations") was rendered nugatory under the court's interpretation; Whether the decision to hire Capitol Building was made without authority; Promissory estoppel; Novak v. Nationwide Mut. Ins. Co.; Marrero v. McDonnell Douglas Capital Corp.; Northern Warehousing, Inc. v. Department of Educ.; Whether the integration clause applied; Whether the trial court properly held there was no violation of MCL 450.4302; Whether the trial court properly held plaintiff did not have the authority to initiate legal action against defendant; MCL 450.4210
Court: Michigan Court of Appeals (Unpublished)
Case Name: 75-52 Inv. Group, LLC v. Lodish
e-Journal Number: 44198
Judge(s): Per Curiam - Davis, Whitbeck, and Shapiro
The trial court properly denied the plaintiff's motion and granted summary disposition in favor of the defendant in this case alleging breach of an operating agreement for failure to pay certain requested capital contributions. Plaintiff claimed defendant breached the operating agreement by failing to provide requested "cash equity" payments, which plaintiff claimed were required capital contributions for payment of ongoing operating expenses. The court agreed with the trial court although the operating agreement provided specific procedures for loans, it was silent as to procedures for "capital calls" and did not impose a duty on defendant to pay the capital contributions at issue. Plaintiff initially argued the trial court inappropriately focused on the fact § 3.2 was titled "Loans to the Company" because § 10.2 provided article headings "in no way . . . define, limit or describe the scope or intent of any provision of this Operating Agreement." However, in responding to defendant's claims on appeal, plaintiff abandoned this argument and claimed defendant's argument § 3.2 only applied to loans to the company ignored the fact Article III (which contained § 3.2) was titled "Capital Contributions and Member Share Ratios." Plaintiff could not have it both ways - either the titles carried meaning or they did not. The court held, consistent with § 10.2, the titles were of no consequence and it had to rely on the language contained in the articles themselves. The court also rejected plaintiff's claim the terms "loan" and "capital contribution" were used interchangeably in the operating agreement. Since the operating agreement provided for different handling of interest as to loans and capital contributions, the terms could not be synonymous or interchangeable. Thus, the loan provisions in § 3.2 could not provide the basis for plaintiff's breach of contract claim for defendant's failure to pay capital contributions. Further, defendant's status as a member did not require him to make capital contributions. Affirmed.
This summary also appears under Real Property
Issues: Defendant-McCleese-Rosol's claim the trial court erred in holding the plaintiffs-Dettloffs established a prescriptive easement over the subject property; Killips v. Mannisto; Grand Rapids v. Green; Houdek v. Centerville Twp.; Plymouth Canton Cmty. Crier, Inc. v. Prose; Higgins Lake Prop. Owners Ass'n v. Gerrish Twp.; Reed v. Soltys; Haab v. Moorman; Widmayer v. Leonard; "Permissive"; Mumrow v. Riddle; Applicability of Banach v. Lawera; McCleese-Rosol's claim the trial court improperly granted the Hunt Trust summary disposition on the claims of breach of the land contract and warranty deed, innocent misrepresentation, and breach of warranty; Applicability of Godspeed v. Nichols and Omnicon of MI v. Giannetti Inv. Co.; Culver v. Castro; Joseph v. Rottschafter; The innocent misrepresentation claim; United States Fid. & Guar. Co. v. Black
Court: Michigan Court of Appeals (Unpublished)
Case Name: Dettloff v. McCleese-Rosol
e-Journal Number: 44086
Judge(s): Per Curiam - K.F. Kelly, Jansen, and Fitzgerald
In this property dispute, the trial court, inter alia, correctly granted the plaintiffs-Dettloffs a prescriptive easement in the property at issue. Defendant-McCleese-Rosol is the land contract vendee of the real property at issue. The Dettloffs own the adjacent parcel. The Hunt Trust is the land contract vendor of the parcel. Hilda Hunt and her late husband acquired fee title to commercial property at 1550 Union Lake Road in the 1960s, and operated a grocery store with a rear parking area which is the subject parcel here, and was conveyed to the Trust in 1991. Robert Dettloff had an insurance agency at 8262 Cooley Lake Road since 1975. Initially, he was a tenant of the building. He purchased the property on land contract in 1971. He currently has tenants occupying parts of the building and his lease agreements do not identify a parking area for them. Several businesses in the area also used the parking area for parking and access to their businesses. Dettloff opined the building owners around the parcel contributed toward maintenance and snow plowing and the record owners of the parcel never authorized or participated in these efforts. He described the parking as "wide open." In 1986, McCleese-Rosol acquired the commercial parcel at 1560 Union Lake Road next to the Hunt property and operated a business there. She later purchased the Hunt Trust property at 1550 Union Lake Road including the parcel. The land contract referenced the conveyance was subject to "any easements or zoning affecting the land," and also referenced a warranty deed conveying the property "subject to . . . easements and zoning ordinances, if any." A dispute arose among the parties over the parking on the parcel. In June 2004, the Dettloffs sued asserting a prescriptive easement over the parcel. The trial court entered an order holding the Dettloffs had a prescriptive easement for ingress, egress, and parking on the parcel finding they had established a continued use of the parcel for well in excess of the required 15 years and McCleese-Rosol failed to show their use of the parcel was permissive. In Mumrow, the court observed the "mere failure to object to an adverse claimant's use would not render that use necessarily permissive." The evidence considered by the trial court showed McCleese-Rosol's predecessor in title never objected to the Dettloffs' use of the parcel, and they never requested permission or gave permission. Affirmed.
Entertainment Law
This summary also appears under Intellectual Property
Issues: Copyright infringement; 17 USC § 101 et seq.; Jury instructions on "substantial similarity," "fair use," and "willfulness"; Standard of review for jury instructions; Williams v. Paint Valley Local Sch. Dist.; Whether defendant-UMG was entitled to judgment in its favor as a matter of law on the issue of substantial similarity; The two-part substantial-similarity test; Kohus v. Mariol; Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.; Ellis v. Diffie; Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp.; "Fragmented literal similarity"; Bridgeport, Inc. v. Dimension Films; Murray Hill Publ'ns, Inc. v. ABC Commc'ns., Inc.; Baxter v. MCA, Inc. (9th Cir.); The fair use affirmative defense; 17 USC § 107; Campbell v. Acuff-Rose Music, Inc.; Princeton Univ. Press v. Michigan Document Servs., Inc.; Willful infringement; 17 USC § 504(c)(2); Zomba Enters., Inc. v. Panorama Records, Inc.; Failure to present evidence to establish a basis for a "good faith" claim
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Bridgeport Music, Inc. v. UMG Recordings, Inc.
e-Journal Number: 44218
Judge(s): Daughtrey, Cook, and Farris
Holding, inter alia, the district court did not err in basing its "substantial similarity" jury instruction on the "fragmented literal similarity" standard, the court rejected defendant-UMG's claims the jury was improperly instructed in this copyright infringement case and it was entitled to judgment as a matter of law on the issue of substantial similarity. The court affirmed the jury's verdict finding the defendants willfully infringed plaintiff-Bridgeport's rights in the song "Atomic Dog" and awarding the plaintiffs $88,980 in statutory damages. This appeal challenged the propriety of the jury instructions in three respects - substantial similarity, "fair use," and "willfulness." Defendants argued, inter alia, the jury should have been instructed to consider the two songs as a whole in determining substantial similarity, and if the jurors had been so instructed, they would not have found substantial similarity because "the two songs differed in theme, tempo, and style." The court disagreed. While the court has not explicitly adopted the "fragmented literal similarity" approach, it has recognized its viability and other courts have applied the standard. Bridgeport alleged UMG copied specific elements of "Atomic Dog" and those elements were copied literally. "Thus, the overall concept or tone of the work was not relevant to the jury's task." The jury heard testimony describing the copied elements of "Atomic Dog" as "unique to the song and the Bow Wow refrain, in particular, as the most well-known aspect of the song - in terms of iconology, perhaps the functional equivalent of 'E.T., phone home.'" Thus, the court held the jury did not act unreasonably in finding there was substantial similarity in light of evidence "the copied elements had such great qualitative importance to the song." The court also rejected UMG's challenge to the district court's jury instructions on fair use. UMG contended the district court erred in its charge to the jury an homage or tribute is "not necessarily fair use." However, the district court's charge was an accurate statement of the law. Further, applying the § 107 factors, the court concluded the jury's verdict was not unreasonable. While one of the factors favored UMG, "on balance it is clear that the greater weight favors Bridgeport." The court also concluded read as a whole, it appeared the jury received a correct instruction on willful infringement. Affirmed.
Family Law
Issues: Divorce; Division of the marital estate; Berger v. Berger; Date of valuation of marital assets; Everett v. Everett; Due process; Reed v. Reed; Dart v. Dart; Alleged judicial bias; Gates v. Gates; Whether the property division was fair and equitable; Dougherty v. Dougherty; Marrobie v. Marrobie; Consideration of the parties' health; Deference given to the trial court's special opportunity to judge the witnesses' credibility; Thames v. Thames; Consideration of the parties' conduct or fault; Division of the parties' liabilities; Division of securities; General rule the parties' separate assets may not be invaded; McNamara v. Horner; Whether the trial court specifically found facts necessary to apply an exception to the general rule; MCL 552.23(1); Byington v. Byington; Attorney fees; MCL 552.13; MCR 3.206(C)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Granader v. Granader
e-Journal Number: 44191
Judge(s): Per Curiam - Murray, Markey, and Borrello
Concluding the defendant-husband's argument the division of certain securities was inequitable had merit and the trial court's findings did not overcome the presumption a fair and equitable division of the securities would be one achieving "congruence," the court remanded the case to the trial court to modify the divorce judgment to award each party one half of the securities in the marital estate. The trial court awarded the plaintiff-wife almost all the marital assets and assigned defendant almost all the marital debts, except those secured by the marital home awarded to plaintiff. However, under some circumstances a "lopsided division of the marital estate may be upheld as fair and equitable." The court concluded although the record did not appear to support the trial court's "ascribing to defendant an unnamed nefarious motive for establishing the trust and the annuity," the trial court made fact findings as to the traditional factors courts must consider in trying to achieve a fair and equitable division of a martial estate. The trial court found the marriage was lengthy, each party contributed to the growth of the marital estate, they were in their 60s, plaintiff's health was precarious but defendant's health was relatively good, and plaintiff was out of the work force and a "stay-at-home mom" for years while defendant engaged in real estate development and property management, earning the family a very comfortable lifestyle. The trial court also found plaintiff needed $25,000 for her support while defendant's expenses were $7,000 a month, and due to her age, health, and decades of being out of the work force, plaintiff was incapable of supporting herself while defendant was fully capable of continuing his career. The trial court also found defendant had liquidated relatively safe real estate investments in the marital estate to pursue "a single and highly risky investment." As to most of defendant's claims of error, the court was not left with "a definite and firm conviction" the trial court clearly erred. However, it appeared the trial court justified its disparate award of the RK securities in the marital estate on the basis defendant inherited substantial RK securities from his father, which were not part of the marital estate. The court noted the general rule is a party's separate assets may not be invaded, and concluded the trial court did not specifically find the necessary facts to apply an exception to the general rule. Affirmed but remanded for modification of the judgment.
Insurance
This summary also appears under Negligence & Intentional Tort
Issues: Benefits under the No-Fault Act (MCL 500.3101 et seq.); Penalty interest for "overdue" payments under MCL 500.3142(2) and (3); Whether the defendant-insurer was on notice medical expenses were part of the case; Sufficiency of the complaint; Stanke v. State Farm Mut. Auto. Ins. Co.; MCR 2.111(B)(1); Smith v. Stolberg; MCL 500.3107; Interrogatory answers and deposition testimony; Motion in limine to exclude financial records on relevancy grounds; "Relevant" evidence under MRE 401; Department of Transp. v. Haggerty Corridor Partners Ltd. P'ship; "Materiality"; People v. Mills; Harmless error; MCR 2.613(A); Mitigation of damages; MCL 500.3107(b); Bak v. Citizens Ins. Co.; Award of future benefits; Claims of instructional error; Cox v. Flint Bd. of Hosp. Managers; Effect of plaintiff's failure to request declaratory relief; MCR 2.605; Rose v. State Farm Mut. Auto. Ins. Co.; Manley v. Detroit Auto. Inter-Ins. Exch.; Award of attorney fees under MCL 500.3148(1) and MCR 2.403(O)(6)(b); University Rehab. Alliance v. Farm Bureau Gen. Ins. Co.; Attard v. Citizens Ins. Co.; Campbell v. Sullins; Smith v. Khouri; Wood v. Detroit Auto. Inter-Ins. Exch.; MRPC 1.5(a); Michigan Tax Mgmt. Servs. Co. v. Warren
Court: Michigan Court of Appeals (Unpublished)
Case Name: Byers v. State Farm Mut. Auto. Ins. Co.
e-Journal Number: 44194
Judge(s): Per Curiam - Murray, Markey, and Borrello
The court held, inter alia, the trial court did not err in granting the plaintiff partial summary disposition, resulting in the award of payments for "overdue" medical benefits and attorney fees under the No-Fault Act, concluding it was "disingenuous" for the defendant-insurer to now argue it was unaware medical benefits were part of the case where it had declined to pay those benefits until shortly before the trial was scheduled. Plaintiff was injured when the vehicle defendant's insured was driving struck his motorcycle. At the time of the accident, plaintiff worked as an "apprehension officer" (a bounty hunter) for a bail bonds company owned and run by his wife. Plaintiff sued defendant in June 2006, alleging it failed to pay expenses for wage loss, replacement services, and any other allowable expense under the No-Fault Act. He also requested attorney fees under MCL 500.3148. In November 2006, plaintiff underwent knee surgery and he submitted a $9,459.87 bill for the surgery. Defendant made partial payments in March and November 2007 before paying the balance of the bill in late November 2007. On November 30, 2007, the last business day before trial, plaintiff moved for summary disposition seeking penalty interest for defendant's overdue payments for the knee surgery under MCL 500.3142(2) and (3) and attorney fees under MCL 500.3148(1). He also filed a motion in limine to exclude certain evidence on relevancy grounds. The trial court partially granted the motion in limine and granted the motion for partial summary disposition. The jury returned a verdict for plaintiff, awarding him $62,246.96. As to defendant's claim it was not on notice medical expenses were part of the case, the court noted plaintiff's complaint broadly indicated he sought "any" benefits under MCL 500.3107, attorney fees, and penalty interest. Further, "importantly, defendant was well aware that plaintiff sought medical benefits pertaining to his knee surgery." The court held summary disposition was appropriate. The court also held the trial court either did not abuse its discretion in its evidentiary rulings, or if it did, the error was harmless, and rejected defendant's claim the trial court erred in allowing the jury to consider and award damages for future benefits. As to the trial court's award of $70,300 in attorney fees, the court reversed to the extent it was based on MCR 2.403, but upheld the award under MCL 500.3148(1).
Intellectual Property
This summary also appears under Entertainment Law
Issues: Copyright infringement; 17 USC § 101 et seq.; Jury instructions on "substantial similarity," "fair use," and "willfulness"; Standard of review for jury instructions; Williams v. Paint Valley Local Sch. Dist.; Whether defendant-UMG was entitled to judgment in its favor as a matter of law on the issue of substantial similarity; The two-part substantial-similarity test; Kohus v. Mariol; Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.; Ellis v. Diffie; Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp.; "Fragmented literal similarity"; Bridgeport, Inc. v. Dimension Films; Murray Hill Publ'ns, Inc. v. ABC Commc'ns., Inc.; Baxter v. MCA, Inc. (9th Cir.); The fair use affirmative defense; 17 USC § 107; Campbell v. Acuff-Rose Music, Inc.; Princeton Univ. Press v. Michigan Document Servs., Inc.; Willful infringement; 17 USC § 504(c)(2); Zomba Enters., Inc. v. Panorama Records, Inc.; Failure to present evidence to establish a basis for a "good faith" claim
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Bridgeport Music, Inc. v. UMG Recordings, Inc.
e-Journal Number: 44218
Judge(s): Daughtrey, Cook, and Farris
Holding, inter alia, the district court did not err in basing its "substantial similarity" jury instruction on the "fragmented literal similarity" standard, the court rejected defendant-UMG's claims the jury was improperly instructed in this copyright infringement case and it was entitled to judgment as a matter of law on the issue of substantial similarity. The court affirmed the jury's verdict finding the defendants willfully infringed plaintiff-Bridgeport's rights in the song "Atomic Dog" and awarding the plaintiffs $88,980 in statutory damages. This appeal challenged the propriety of the jury instructions in three respects - substantial similarity, "fair use," and "willfulness." Defendants argued, inter alia, the jury should have been instructed to consider the two songs as a whole in determining substantial similarity, and if the jurors had been so instructed, they would not have found substantial similarity because "the two songs differed in theme, tempo, and style." The court disagreed. While the court has not explicitly adopted the "fragmented literal similarity" approach, it has recognized its viability and other courts have applied the standard. Bridgeport alleged UMG copied specific elements of "Atomic Dog" and those elements were copied literally. "Thus, the overall concept or tone of the work was not relevant to the jury's task." The jury heard testimony describing the copied elements of "Atomic Dog" as "unique to the song and the Bow Wow refrain, in particular, as the most well-known aspect of the song - in terms of iconology, perhaps the functional equivalent of 'E.T., phone home.'" Thus, the court held the jury did not act unreasonably in finding there was substantial similarity in light of evidence "the copied elements had such great qualitative importance to the song." The court also rejected UMG's challenge to the district court's jury instructions on fair use. UMG contended the district court erred in its charge to the jury an homage or tribute is "not necessarily fair use." However, the district court's charge was an accurate statement of the law. Further, applying the § 107 factors, the court concluded the jury's verdict was not unreasonable. While one of the factors favored UMG, "on balance it is clear that the greater weight favors Bridgeport." The court also concluded read as a whole, it appeared the jury received a correct instruction on willful infringement. Affirmed.
Litigation
Issues: Docket No. 281686 - Whether the trial court properly dismissed the plaintiffs' complaint and confirmed the arbitration award based on its ruling plaintiffs' complaint to vacate the arbitration award was not timely filed under MCR 3.602; MCR 3.602(J)(2); Konal v. Forlini; Saveski v. Tiseo Architects, Inc.; Associated Builders & Contractors v. Department of Consumer & Indus. Servs. Dir.; Docket No. 288223 - Sanctions under MCL 600.2591; Kitchen v. Kitchen; Evans & Luptak, PLC v. Lizza; Cvengros v. Farm Bureau Ins.; In re Costs & Attorney Fees (Powell Prod., Inc. v. Jackhill Oil Co.); Yee v. Shiawassee County Bd. of Comm'rs; National Association of Securities Dealers (NASD)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Healey v. Spoelstra
e-Journal Number: 44120
Judge(s): Per Curiam - Murray, Markey, and Borrello
The trial court properly dismissed the plaintiffs' complaint and confirmed the arbitration award based on its ruling the complaint to vacate the arbitration award was not timely filed under MCR 3.602. The arbitration award was issued on July 27, 2006. The lower court record contained documentary evidence indicating the same day the award was issued, the NASD faxed a copy of the award to counsel for the parties, although plaintiffs asserted they did not receive a copy of the award until August 1, 2006. Plaintiffs filed a complaint seeking to vacate the award in the US District Court for the Eastern District of Michigan on August 21, 2006. In order for the complaint to have been filed within 21 days as required by MCR 3.602(J)(2), it would have had to be made by August 17, 2006. The federal complaint was thus filed about four days too late. The federal district court dismissed the complaint for lack of diversity and subject matter jurisdiction. Before the federal district court dismissed the complaint, plaintiffs filed a complaint to vacate the arbitration award in state court on about September 21, 2006, which was about 56 days after the issuance of the award and delivery of a copy of the award to the parties. Defendant asserted the arbitration award was faxed to the parties on July 27, 2006, and provided the trial court with a copy of the fax sent to his counsel and counsel for plaintiffs on July 27, 2006. The cover page to the fax was dated July 27, 2006, and clearly identified the NASD case number assigned to the case, the name of plaintiffs' attorney, L, and L's fax number. Plaintiffs did not assert the fax number for plaintiffs' counsel on the fax cover sheet was incorrect. However, they asserted L did not receive the arbitration award until August 1, 2006. Plaintiffs attached to their response to defendant's motion to dismiss and confirm the arbitration award an unsigned and undated affidavit purporting to be by attorney L. The trial court rejected plaintiffs' reliance on the unsworn affidavit, as did the court. In light of plaintiffs' arbitration counsel's refusal to sign an affidavit stating he received the award on August 1, 2006, and because the NASD fax cover form indicated it faxed a copy of the award to plaintiffs' counsel on July 27, 2006, there was no genuine issue of material fact as to this issue. Because plaintiffs received the arbitration award on July 27, 2006, they had until August 17, 2006, to file an application to vacate the award. Plaintiffs' federal court complaint to vacate the award was not filed until August 21, 2006 and the state complaint was not filed until September 21, 2006, which was well beyond the 21-day period in MCR 3.602(J)(2). Because the federal complaint was not timely filed, the court did not address plaintiffs' claims the filing of the complaint in federal court tolled the 21-day period in MCR 3.602(J)(2) and saved the state complaint to vacate the arbitration award. Affirmed
Malpractice
Issues: Medical malpractice; Whether the trial court properly ruled the NOI failed to provide a sufficiently detailed statement of proximate cause; MCL 600.2912b(4); Bush v. Shabahang; Potter v. McLeary
Court: Michigan Supreme Court
Case Name: Bond v. Cooper
e-Journal Number: 44221
Judge(s): Kelly, Cavanagh, Weaver, Corrigan, Young, Jr., Markman, and Hathaway
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 42021 in the 3/12/09 edition) and the trial court's order granting the defendants' summary disposition motion, and remanded the case to the trial court for reconsideration in light of Bush and Potter.
Issues: Medical malpractice; Whether the trial court properly dismissed plaintiff's case because the Notices of Intent were insufficient to provide notice within meaning of MCL 600.2912b: Roberts v. Mecosta County Gen. Hosp.; Bush v. Shabahang; Potter v. McLeary
Court: Michigan Supreme Court
Case Name: Zunich v. Family Med. Assocs. of Midland, P.C.
e-Journal Number: 44222
Judge(s): Kelly, Cavanagh, Weaver, Corrigan, Young, Jr., Markman, and Hathaway
In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 35928 in the 5/22/07 edition) and the orders of the trial court granting the defendants' motions for summary disposition, and remanded the case to the trial court for reconsideration in light of Bush and Potter.
Negligence & Intentional Tort
This summary also appears under Insurance
Issues: Benefits under the No-Fault Act (MCL 500.3101 et seq.); Penalty interest for "overdue" payments under MCL 500.3142(2) and (3); Whether the defendant-insurer was on notice medical expenses were part of the case; Sufficiency of the complaint; Stanke v. State Farm Mut. Auto. Ins. Co.; MCR 2.111(B)(1); Smith v. Stolberg; MCL 500.3107; Interrogatory answers and deposition testimony; Motion in limine to exclude financial records on relevancy grounds; "Relevant" evidence under MRE 401; Department of Transp. v. Haggerty Corridor Partners Ltd. P'ship; "Materiality"; People v. Mills; Harmless error; MCR 2.613(A); Mitigation of damages; MCL 500.3107(b); Bak v. Citizens Ins. Co.; Award of future benefits; Claims of instructional error; Cox v. Flint Bd. of Hosp. Managers; Effect of plaintiff's failure to request declaratory relief; MCR 2.605; Rose v. State Farm Mut. Auto. Ins. Co.; Manley v. Detroit Auto. Inter-Ins. Exch.; Award of attorney fees under MCL 500.3148(1) and MCR 2.403(O)(6)(b); University Rehab. Alliance v. Farm Bureau Gen. Ins. Co.; Attard v. Citizens Ins. Co.; Campbell v. Sullins; Smith v. Khouri; Wood v. Detroit Auto. Inter-Ins. Exch.; MRPC 1.5(a); Michigan Tax Mgmt. Servs. Co. v. Warren
Court: Michigan Court of Appeals (Unpublished)
Case Name: Byers v. State Farm Mut. Auto. Ins. Co.
e-Journal Number: 44194
Judge(s): Per Curiam - Murray, Markey, and Borrello
The court held, inter alia, the trial court did not err in granting the plaintiff partial summary disposition, resulting in the award of payments for "overdue" medical benefits and attorney fees under the No-Fault Act, concluding it was "disingenuous" for the defendant-insurer to now argue it was unaware medical benefits were part of the case where it had declined to pay those benefits until shortly before the trial was scheduled. Plaintiff was injured when the vehicle defendant's insured was driving struck his motorcycle. At the time of the accident, plaintiff worked as an "apprehension officer" (a bounty hunter) for a bail bonds company owned and run by his wife. Plaintiff sued defendant in June 2006, alleging it failed to pay expenses for wage loss, replacement services, and any other allowable expense under the No-Fault Act. He also requested attorney fees under MCL 500.3148. In November 2006, plaintiff underwent knee surgery and he submitted a $9,459.87 bill for the surgery. Defendant made partial payments in March and November 2007 before paying the balance of the bill in late November 2007. On November 30, 2007, the last business day before trial, plaintiff moved for summary disposition seeking penalty interest for defendant's overdue payments for the knee surgery under MCL 500.3142(2) and (3) and attorney fees under MCL 500.3148(1). He also filed a motion in limine to exclude certain evidence on relevancy grounds. The trial court partially granted the motion in limine and granted the motion for partial summary disposition. The jury returned a verdict for plaintiff, awarding him $62,246.96. As to defendant's claim it was not on notice medical expenses were part of the case, the court noted plaintiff's complaint broadly indicated he sought "any" benefits under MCL 500.3107, attorney fees, and penalty interest. Further, "importantly, defendant was well aware that plaintiff sought medical benefits pertaining to his knee surgery." The court held summary disposition was appropriate. The court also held the trial court either did not abuse its discretion in its evidentiary rulings, or if it did, the error was harmless, and rejected defendant's claim the trial court erred in allowing the jury to consider and award damages for future benefits. As to the trial court's award of $70,300 in attorney fees, the court reversed to the extent it was based on MCR 2.403, but upheld the award under MCL 500.3148(1).
This summary also appears under Construction Law
Issues: Whether the trial court erred by not granting the defendant-Great Lakes' dispositive motions for judgment as a matter of law based on its claim of a "sophisticated user" defense under MCL 600.2947(4); Diamond v. Witherspoon; Maiden v. Rozwood; Zantel Mktg. Agency v. Whitesell Corp.; Merkur Steel Supply Inc. v. Detroit; Fenton Area Pub. Schs. v. Sorensen-Gross Constr. Co.; Antcliff v. State Employees Credit Union; Gilliam v. Hi-Temp Prods. Inc.; Detroit v. Ambassador Bridge Co.; "Sophisticated user"; MCL 600.2945(j); Clark v. Dalman; Jury instruction regarding sophisticated user defense; Lewis v. LeGrow; Leavitt v. Monaco Coach Corp.; Bouverette v. Westinghouse Elec. Corp.; Palenkas v. Beaumont Hosp.; McManamon v. Redford Twp.; Kelly v. Builders Square, Inc.; Wiley v. Henry Ford Cottage Hosp.; Baranowski v. Strating; Whether the trial court abused its discretion by granting remittitur; Ensink v. Mecosta County Gen. Hosp.; Whether the trial court abused its discretion when awarding case evaluation sanctions by determining a reasonable hourly attorney fee rate was $185 and $70 per hour for paralegal services; Dessart v. Burak; Smith v. Khouri; MCR 2.403(O)(6)(b); Zdrojewski v. Murphy
Court: Michigan Court of Appeals (Unpublished)
Case Name: Heaton v. Pristine Home Builders
e-Journal Number: 44177
Judge(s): Per Curiam - Markey and Borrello; Concurring in part, Dissenting in part - Murray
The trial court properly denyied the defendant-Great Lakes' dispositive motion for judgment as a matter of law based on its claim of the "sophisticated user" defense under MCL 600.2947(4). Plaintiffs entered into a contract with defendant-Pristine, operated by defendant-Bonawitt, a licensed builder, to build their retirement home. Bonawitt subcontracted with Great Lakes to design, manufacture, and install pre-cast concrete foundation walls for the home. During the construction of the home the foundation walls twice shifted. Defendant argued it was entitled to judgment as a matter of law because, although plaintiffs couched their complaint in terms of negligence, the case was actually a product liability claim for failure to warn. Defendant contended the undisputed facts established it furnished a "product," pre-cast concrete foundation walls, and the undisputed facts established its "product" was neither defective nor the cause of the foundation movement at issue. Rather, the foundation shifted because Bonawitt failed to initially install shear walls, and then subsequently installed inadequately designed or constructed shear walls. The defendant's argument was Bonawitt was a "sophisticated user" of defendant's foundation walls, having been a licensed builder since 1997, and experienced in all phases of construction, including the use of shear walls. Thus, defendant argued, under MCL 600.2947(4) it had no duty to warn Bonawitt of the need for shear walls. Defendant correctly noted the question of duty is one for the trial court to decide as matter of law. The court held the trial did not err in ruling based on the facts of the case, Bonawitt was not a "sophisticated user" as contemplated by the statute. Because the court found no error in the trial court's ruling Bonawitt was not a "sophisticated user" as defined in MCL 600.2945(j), the "sophisticated user" defense provided for in MCL 600.2947(4) was inapplicable. MCL 600.2947(4) only limits product liability claims as to a duty to provide an "adequate warning" to sophisticated users where not otherwise required by state or federal statute or regulation. Plaintiffs' theory of liability was much broader than simply the failure to provide an adequate warning. It included a claim for breach of a duty to provide adequate instructions regarding the need for shear walls, and for defendant's active participation with Bonawitt in devising the shear walls subsequently, which failed to adequately support the foundation walls. Plaintiffs' theory of the case, supported by the evidence, was best characterized as an "application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others." Affirmed, but the trial court's order granting remittitur was reversed and remanded for entry of judgment for plaintiffs consistent with the jury's verdict.
Probate
This summary also appears under Real Property
Issues: Whether the trial court's ruling in the divorce case was res judicata and barred the probate court's determination respondents had an interest in the real property; Sewell v. Clean Cut Mgmt., Inc.; Baraga County v. State Tax Comm'n; Jones v. State Farm Mut. Auto. Ins. Co.; MCR 2.116(C)(4) and (6); Whether a trial court in a divorce case has jurisdiction to compel a party to convey property or a property interest to a third person even a child of the parties or to adjudicate claims of third persons; Reed v. Reed; Hoffman v. Hoffman; Krueger v. Krueger; Whether the probate court correctly determined the provision in the divorce judgment controlled over the decedent's will
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Estate of Noon
e-Journal Number: 44213
Judge(s): Per Curiam - Fort Hood, Wilder, and Borrello
The probate court erred by determining the provision in the 1974 divorce default judgment controlled over the decedent's will. Thus, the court reversed the probate court's decision and remanded to the probate court where it shall determine the rights of the parties as to the real property at issue, including a determination of the effect of the 2000 quitclaim deed on the decedent's will and codicil. Petitioner-Virginia Noon was the decedent's second wife and was married to him at the time of his death. Respondent-Motte was decedent's first wife. Respondents-O'Malley, Luoma, Dunn, and Noon were decedent's children from his first marriage, and were petitioner's stepchildren. The decedent and Motte purchased the property in 1970. In 1973 Motte filed for divorce. A default judgment of divorce was entered in 1974. The divorce judgment stated as to the property at issue, it would be occupied by decedent, but when the property was sold or disposed of, 50 percent of the equity would be divided equally between the children, and it would be an encumbrance on the property, precedent to any later-created encumbrance. The judgment was recorded in March 1999. On May 11, 1999, while he was engaged to the petitioner and before he married her, decedent executed a will, which gave her a life estate in the property. The remainder, after the termination of the life estate, would be distributed under the residuary clause, and would be divided in equal shares to his children. A few weeks later, decedent executed a codicil modifying the life estate. In November 1999, the decedent and petitioner were married. In 2000, he quitclaimed the property to himself and petitioner. In 2003, decedent and petitioner refinanced the property, discharging the original mortgage, and signing a new mortgage, which was recorded. Decedent died in January 2005. In June 2005, Luoma filed a petition on behalf of herself and her siblings asserting an interest in the property and stating decedent died intestate. Petitioner filed a petition for probate and appointment of a PR, asserting the decedent died testate, and disputing the assertion the property was not an estate asset (based on the quitclaim deed). The children and Motte filed a quiet title action in the circuit court against the estate, petitioner, and the mortgagee. The probate court appointed petitioner and Luoma as joint PRs of the estate. In the quiet title case, the trial court denied the children's motion for summary disposition and granted the motion filed by petitioner under MCR 2.116(C)(4) and (6). Later, Motte filed a motion under the caption of the 1973 divorce case seeking an order directing the PRs to specifically perform the property settlement clause of the divorce judgment. In April 2007, the trial court denied the motion on the grounds the relief requested was within the exclusive jurisdiction of the probate court. The court held res judicata was not applicable where the trial court's decision was not a prior decision on the merits. Dismissal of the claim under MCR 2.1116(C)(4) and (6) was not a prior decision on the merits. However, the court held the trial court entering the default judgment of divorce had no authority to order the decedent to convey a property interest to his children. The divorce judgment was not entered based on a settlement between Motte and the decedent. Thus, the provision conveying the property to his children was unenforceable and the probate court erred in determining the provision controlled over the will.
Real Property
This summary also appears under Contracts
Issues: Defendant-McCleese-Rosol's claim the trial court erred in holding the plaintiffs-Dettloffs established a prescriptive easement over the subject property; Killips v. Mannisto; Grand Rapids v. Green; Houdek v. Centerville Twp.; Plymouth Canton Cmty. Crier, Inc. v. Prose; Higgins Lake Prop. Owners Ass'n v. Gerrish Twp.; Reed v. Soltys; Haab v. Moorman; Widmayer v. Leonard; "Permissive"; Mumrow v. Riddle; Applicability of Banach v. Lawera; McCleese-Rosol's claim the trial court improperly granted the Hunt Trust summary disposition on the claims of breach of the land contract and warranty deed, innocent misrepresentation, and breach of warranty; Applicability of Godspeed v. Nichols and Omnicon of MI v. Giannetti Inv. Co.; Culver v. Castro; Joseph v. Rottschafter; The innocent misrepresentation claim; United States Fid. & Guar. Co. v. Black
Court: Michigan Court of Appeals (Unpublished)
Case Name: Dettloff v. McCleese-Rosol
e-Journal Number: 44086
Judge(s): Per Curiam - K.F. Kelly, Jansen, and Fitzgerald
In this property dispute, the trial court, inter alia, correctly granted the plaintiffs-Dettloffs a prescriptive easement in the property at issue. Defendant-McCleese-Rosol is the land contract vendee of the real property at issue. The Dettloffs own the adjacent parcel. The Hunt Trust is the land contract vendor of the parcel. Hilda Hunt and her late husband acquired fee title to commercial property at 1550 Union Lake Road in the 1960s, and operated a grocery store with a rear parking area which is the subject parcel here, and was conveyed to the Trust in 1991. Robert Dettloff had an insurance agency at 8262 Cooley Lake Road since 1975. Initially, he was a tenant of the building. He purchased the property on land contract in 1971. He currently has tenants occupying parts of the building and his lease agreements do not identify a parking area for them. Several businesses in the area also used the parking area for parking and access to their businesses. Dettloff opined the building owners around the parcel contributed toward maintenance and snow plowing and the record owners of the parcel never authorized or participated in these efforts. He described the parking as "wide open." In 1986, McCleese-Rosol acquired the commercial parcel at 1560 Union Lake Road next to the Hunt property and operated a business there. She later purchased the Hunt Trust property at 1550 Union Lake Road including the parcel. The land contract referenced the conveyance was subject to "any easements or zoning affecting the land," and also referenced a warranty deed conveying the property "subject to . . . easements and zoning ordinances, if any." A dispute arose among the parties over the parking on the parcel. In June 2004, the Dettloffs sued asserting a prescriptive easement over the parcel. The trial court entered an order holding the Dettloffs had a prescriptive easement for ingress, egress, and parking on the parcel finding they had established a continued use of the parcel for well in excess of the required 15 years and McCleese-Rosol failed to show their use of the parcel was permissive. In Mumrow, the court observed the "mere failure to object to an adverse claimant's use would not render that use necessarily permissive." The evidence considered by the trial court showed McCleese-Rosol's predecessor in title never objected to the Dettloffs' use of the parcel, and they never requested permission or gave permission. Affirmed.
This summary also appears under Probate
Issues: Whether the trial court's ruling in the divorce case was res judicata and barred the probate court's determination respondents had an interest in the real property; Sewell v. Clean Cut Mgmt., Inc.; Baraga County v. State Tax Comm'n; Jones v. State Farm Mut. Auto. Ins. Co.; MCR 2.116(C)(4) and (6); Whether a trial court in a divorce case has jurisdiction to compel a party to convey property or a property interest to a third person even a child of the parties or to adjudicate claims of third persons; Reed v. Reed; Hoffman v. Hoffman; Krueger v. Krueger; Whether the probate court correctly determined the provision in the divorce judgment controlled over the decedent's will
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Estate of Noon
e-Journal Number: 44213
Judge(s): Per Curiam - Fort Hood, Wilder, and Borrello
The probate court erred by determining the provision in the 1974 divorce default judgment controlled over the decedent's will. Thus, the court reversed the probate court's decision and remanded to the probate court where it shall determine the rights of the parties as to the real property at issue, including a determination of the effect of the 2000 quitclaim deed on the decedent's will and codicil. Petitioner-Virginia Noon was the decedent's second wife and was married to him at the time of his death. Respondent-Motte was decedent's first wife. Respondents-O'Malley, Luoma, Dunn, and Noon were decedent's children from his first marriage, and were petitioner's stepchildren. The decedent and Motte purchased the property in 1970. In 1973 Motte filed for divorce. A default judgment of divorce was entered in 1974. The divorce judgment stated as to the property at issue, it would be occupied by decedent, but when the property was sold or disposed of, 50 percent of the equity would be divided equally between the children, and it would be an encumbrance on the property, precedent to any later-created encumbrance. The judgment was recorded in March 1999. On May 11, 1999, while he was engaged to the petitioner and before he married her, decedent executed a will, which gave her a life estate in the property. The remainder, after the termination of the life estate, would be distributed under the residuary clause, and would be divided in equal shares to his children. A few weeks later, decedent executed a codicil modifying the life estate. In November 1999, the decedent and petitioner were married. In 2000, he quitclaimed the property to himself and petitioner. In 2003, decedent and petitioner refinanced the property, discharging the original mortgage, and signing a new mortgage, which was recorded. Decedent died in January 2005. In June 2005, Luoma filed a petition on behalf of herself and her siblings asserting an interest in the property and stating decedent died intestate. Petitioner filed a petition for probate and appointment of a PR, asserting the decedent died testate, and disputing the assertion the property was not an estate asset (based on the quitclaim deed). The children and Motte filed a quiet title action in the circuit court against the estate, petitioner, and the mortgagee. The probate court appointed petitioner and Luoma as joint PRs of the estate. In the quiet title case, the trial court denied the children's motion for summary disposition and granted the motion filed by petitioner under MCR 2.116(C)(4) and (6). Later, Motte filed a motion under the caption of the 1973 divorce case seeking an order directing the PRs to specifically perform the property settlement clause of the divorce judgment. In April 2007, the trial court denied the motion on the grounds the relief requested was within the exclusive jurisdiction of the probate court. The court held res judicata was not applicable where the trial court's decision was not a prior decision on the merits. Dismissal of the claim under MCR 2.1116(C)(4) and (6) was not a prior decision on the merits. However, the court held the trial court entering the default judgment of divorce had no authority to order the decedent to convey a property interest to his children. The divorce judgment was not entered based on a settlement between Motte and the decedent. Thus, the provision conveying the property to his children was unenforceable and the probate court erred in determining the provision controlled over the will.
Termination of Parental Rights
Issues: Termination pursuant to §§ 19b(3)(c)(i), (g), and (j); In re Utrera; Children's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Tew
e-Journal Number: 44203
Judge(s): Per Curiam - Saad, O'Connell, and Zahra
The trial court did not clearly err in finding §§ 19b(3)(c)(i), (g), and (j) were established by clear and convincing evidence and in terminating the respondent-mother's parental rights to her three children. The record showed despite years of services to assist her with her parenting responsibilities, respondent remained unable to maintain a safe home or give the children proper care. Evidence established she completed anger management and parenting classes, and underwent a psychological evaluation as required by her PAA, but she was unable to maintain employment and she lost her public assistance for falsifying job reports. She also allowed unauthorized people to live in her home after the trial court ordered her not to do so. The evidence also showed one child reported respondent did not have food in the home and he did not eat during lengthy in-home visitations. After visits with respondent, this child began wetting the bed, throwing things, and acting defiantly. Another child reported respondent choked her during an unsupervised visitation. There was also evidence on more than one overnight visit, respondent had an unauthorized person watch the children while she went out with friends. Further, when asked to give one of the children a dose of medication, she did not do so, claiming to have lost it somewhere in her house. The court held the record showed respondent did not benefit from the several services she received, and the foster care testified at this point, no more services were available to help respondent. The court also agreed with the trial court termination was in the children's best interests. Two of the children had severe developmental delays, and all three of them needed attention and time to meet their developmental goals. Affirmed.
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