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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.
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Cases appear under the following practice areas:
- Bankruptcy (1)
- Contracts (1)
- Criminal Law (2)
- Employment & Labor Law (1)
- Intellectual Property (1)
- Litigation (2)
- Malpractice (1)
- Negligence & Intentional Tort (1)
- Real Property (2)
- Tax (1)
- Termination of Parental Rights (2)
Bankruptcy
Issues: Whether the BAP properly affirmed the bankruptcy court's conclusion the equities weighed against the mortgage holder-PCFS's claim and disallowed it; Unsecured creditors must file a timely proof of claim; Fed.R.Bankr.P. 3002(a); "Informal" proof of claim; Barlow v. M.J. Waterman & Assocs., Inc. (In re M.J. Waterman & Assocs., Inc.); Whether a secured creditor has to file a proof of claim to maintain its interest in the collateral; 11 USC § 506(d); Talbert v. City Mortgage Servs. (In re Talbert); Situation where the trustee successfully voids a creditor's lien under 11 USC § 544(a); The bankruptcy court's equitable determination; Notice to PCFS of the need to file a claim; Clark v. Valley Fed. Sav. & Loan Ass'n (In re Reliance Equities, Inc.)(10th Cir.); PCFS's unexplained failure to timely file a claim; In re Outboard Marine Corp. (7th Cir.); Distribution available to the other creditors; The "balancing of the equities"
Court: U.S. Court of Appeals Sixth Circuit
Case Name: In re Nowak
e-Journal Number: 44300
Judge(s): Gilman, O'Connor, and Gibbons
The bankruptcy court did not abuse its discretion in making an equitable determination and refusing to allow PCFS's informal proof of claim. Thus, the court affirmed the judgments of both the BAP and the bankruptcy court. Three years prior to filing for Chapter 7, the debtors executed a $470,900 mortgage on their home in favor of PCFS Financial. The trustee of the debtor's bankruptcy estate successfully voided PCFS's lien on the home based on a technical defect in the execution of the mortgage instrument. The debtors received a discharge from the bankruptcy court. The day after all proofs of claim were due, the trustee moved to hire an attorney for the purpose of voiding the lien on the debtors' home. The bankruptcy court granted the motion. Eventually, the home was sold for $300,000. After losing secured creditor status, PCFS failed to file a formal proof of claim. The trustee's final report thus, did not propose any distribution to PCFS from the bankruptcy estate. PCFS objected to the report and moved the court to allow an "informal" proof of claim based on its prior filings as a putative secured creditor. The bankruptcy court denied the motion, concluding PCFS's prior filings did not constitute an informal proof of claim. In the alternative, the court determined the equities did not favor PCFS even if the prior filings were deemed to meet the informal-proof criteria. On appeal, the BAP disagreed with the first conclusion, but affirmed on the basis the court's alternative conclusion regarding the equities was not an abuse of discretion. The sole issue on appeal was whether the bankruptcy court abused its discretion in not allowing PCFS's informal proof of claim. The bankruptcy court relied on three factors in denying the claim (1) the length of PCFS's delay in pursuing an unsecured claim in light of the notice it might lose its secured status, (2) the lack of any explanation from PCFS, a sophisticated lender represented by counsel, for its delay or for the failure to file any formal proof of claim, and (3) the significantly reduced distribution available to the other creditors if its claim were allowed. After review of the record, the court concluded the bankruptcy court's determination was not unreasonable. Affirmed.
Contracts
Issues: Whether the trial court properly granted the defendants summary disposition as to plaintiffs' breach of contract claim; Plaintiffs' claim for intentional infliction of emotional distress; Haverbush v. Powelson
Court: Michigan Court of Appeals (Unpublished)
Case Name: Sherrod v. American Physicians Capital, Inc.
e-Journal Number: 44271
Judge(s): Per Curiam - Stephens, Cavanagh, and Owens
The trial court properly granted the defendants summary disposition on the plaintiffs' breach of contract claim and the claim for intentional infliction of emotional distress. The breach of contract claim alleged defendants, plaintiffs' medical malpractice insurer, breached the contract when it satisfied a judgment without the consent of plaintiff-Sherrod. However the insurance policy provided "The COMPANY shall not settle any CLAIM by payment of DAMAGES without the NAMED INSURED's written consent, unless: (3) The trial court, or initial hearing level of an alternative proceeding has rendered final judgment or other disposition of the CLAIM and the COMPANY, in its sole discretion, decides that all feasible remedies by appeal or other legal proceedings shall not be pursued." The trial court entered a judgment in the underlying case and defendants decided not to pursue post-judgment or appellate remedies. Plaintiffs asserted defendants had an obligation to pursue a post-trial motion filed on her behalf and all appellate remedies. However, this was refuted by the language of the contract under which the decision to pursue those avenues was in the "sole discretion" of defendants. Plaintiffs' attempt to premise a contract action on an e-mail "promise" by defendants' claim representative, was not the basis of a breach of contract action where there was no indication it was supported by consideration, and the insurance policy was a fully integrated agreement, which could not be modified except by written endorsement. Thus, after a final judgment, defendants could settle a claim without the insured's consent, and the exercise of their contractual rights did not support a claim for intentional infliction of emotional distress. Affirmed.
Criminal Law
Issues: Sufficiency of the evidence to support the defendant's CCW, felon in possession, and felony-firearm convictions; People v. Patterson; People v. Wolfe; Possession; People v. Hill; Constructive possession; "Carrying" a weapon for purposes of CCW; People v. Butler; People v. Carines; "Self-defense" jury instruction; People v. Gillis; People v. Babcock; People v. Riddle; People v. Kemp; People v. Minor; People v. Pohl; Whether the trial court properly refused to allow a witness to testify because he was not disclosed before trial; People v. Phillips; People v. Banks; People v. Greenfield (On Reconsideration); People v. Burwick; People v. Taylor; Challenges to the admission of defendant's prior convictions into evidence; People v. Unger; People v. Nelson; MRE 609; People v. Gonzalez; People v. Vasher; People v. Allen; People v. Elston; People v. Meshell; People v. Travis; Whether the evidentiary errors resulted in constitutional error by removing defendant's presumption of innocence; People v. Graves; People v. Matuszak; People v. Carbin; People v. LaVearn; People v. Rockey; People v. Hoag; People v. Kevorkian
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Coats
e-Journal Number: 44295
Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly
There was sufficient evidence to conclude beyond a reasonable doubt the defendant possessed the gun to support his CCW, felon in possession, and felony-firearm convictions. After officers B and M executed a traffic stop of G's vehicle, defendant, who was sitting in the back seat, fled on foot. B pursued him and felt a gun when he tackled him around his waist, knocking the gun out of the front of defendant's waistband as they fell to the ground. B also heard the distinct sound of a metal gun hitting the pavement and saw a blue revolver when he got up from the ground. M "saw a hand-held object fall into the street" when B tackled defendant, and M also heard the distinct sound of a metal gun hitting cement. M then retrieved the gun. A reasonable inference could be drawn from the circumstantial evidence defendant possessed the gun when he was in the vehicle and when he fled because seconds later it was knocked out of his waistband or hands when B tackled him. Although defendant argued B's and M's testimony was incredible because of inconsistencies, the court does not reassess the jury's determinations regarding what weight to give the evidence and the credibility of witnesses, and must "make credibility choices in support of the jury verdict[,]." Affirmed.
Issues: Sufficiency of the evidence to support the defendant's CSC II conviction under MCL 750.520c(1)(h)(ii); Whether there was sufficient evidence the 15-year old victim was "mentally disabled" or "mentally incapable"; MCL 750.520a(g); People v. Breck; "Mentally retarded" (MCL 750.520a(i)); Whether there was evidence the defendant used "a position of authority over" the victim to coerce her; People v. Reid; People v. Knapp
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Graves
e-Journal Number: 44232
Judge(s): Per Curiam - Stephens, Cavanagh, and Owens
While concluding there was adequate evidence for a reasonable jury to find the victim was "mentally incapable" and "mentally disabled," the court reversed the defendant's CSC II conviction because it held a reasonable juror could not conclude beyond a reasonable doubt he used his "position of authority" to coerce the victim to submit thus, the evidence was insufficient to support his conviction. The defendant, who was 38 years old at the time, was convicted of sexually assaulting the 15-year old victim. At the time of the trial, the victim was attending an alternative school. A police officer testified she "did not appear to be quite as alert as most 15 year olds we deal with," she "seemed much younger, less mature," and she told him she was unable to read and write and could not write a statement. According to a sexual assault nurse who examined the victim after the incident, she did not understand the situation was not normal and did not seem to thoroughly understand the implications of what had occurred. The court concluded while the victim knew defendant as her mother's boyfriend, there was no evidence "she was cognizant of the inappropriate or unusual nature of the sexual contact by him in her mother's presence." Viewing the evidence in the light most favorable to the prosecution, the court held a reasonable juror could conclude due to her mental "disease or defect," the victim was "mentally incapable" - "incapable of appraising the nature of her conduct." However, the court disagreed with the trial court's reasoning as to the defendant's "position of authority" in denying his motion for a directed verdict. The court noted whether a parent's boyfriend has a position of authority as to a child "depends on the circumstances, including the parties' conduct and perceptions." There was no testimony defendant "ever acted as a surrogate parent" for the victim or "spent an appreciable amount of time with her." Unlike the defendant in Reid, the victim's mother did not seek or accept defendant's assistance in counseling her child, and the circumstances of this case were very different from those in Knapp. There was no evidence the victim was tricked into the contact or she feared the defendant. Reversed.
Employment & Labor Law
Issues: Arbitrator's order in a grievance arbitration under the parties' CBA; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n; Standard of review; Police Officers Ass'n of MI v. Manistee County; Lenawee County Sheriff v. Police Officers Labor Council; Determination the arbitrator exceeded his authority; The trial court's decision declining to enforce the arbitrator's award; Service Employees Int'l Union Local 466M v. Saginaw
Court: Michigan Court of Appeals (Unpublished)
Case Name: Police Officers Ass'n of MI v. Leelanau County
e-Journal Number: 44259
Judge(s): Per Curiam - Donofrio, Wilder, and Owens
The trial court did not exceed its mandate to review only the arbitrator's contractual authority and did not err in determining the arbitrator exceeded his authority in retaining jurisdiction over a fitness for duty issue and in awarding interest and half the costs of continuing arbitration to the plaintiff-union. The defendants terminated the employment of a sheriff's deputy (B). B filed a grievance asserting defendants did not terminate him for just cause. An arbitrator agreed defendants did not have just cause to terminate B, but also determined B required a psychological fitness for duty exam. The arbitrator ordered the defendants to put B back on the payroll and compensate him for back pay, but they could assign him to a desk job, put him on paid leave, or give him special projects until a favorable fitness report was received, when he could be returned to "law enforcement duties." The arbitrator ordered the defendants could terminate B if he received an unfit for duty report. The arbitrator retained jurisdiction to "resolve any issues which may arise over implementation of this award." The first fitness for duty exam found B unfit for his duties, and defendants terminated his employment. B objected and requested a second exam in accordance with the CBA's provisions. The second exam found him fit for duty. A third exam was performed at defendants' request, which also found him fit for duty. Defendants returned him to employment but assigned him to a newly created desk job rather than return him to road patrol. The arbitrator issued a supplemental opinion ordering the defendants to comply with the third fitness for duty evaluation by reinstating B to the payroll, paying interest on the back pay owed, and paying half the costs of the continuing arbitration. The court noted defendants reinstated B and assigned him to the desk job in August 2007. Since the arbitrator's supplemental opinion was issued in June 2007, the arbitrator did not address the issue of B's assignment to the desk job rather than the "law enforcement duties" to which he sought to be assigned. For the same reasons as in Service Employees, the trial court lacked jurisdiction to review or decide any aspect of B's employment duties. Thus, the court vacated the part of the trial court's order determining the defendants could not be compelled to return B to "law enforcement duties." The trial court's order was affirmed in all other respects.
Intellectual Property
This summary also appears under Malpractice
Issues: Legal malpractice; Whether the plaintiffs' legal malpractice claim was timely; MCL 600.5838(1); MCL 600.5805(6); Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v. Bakshi; Kloian v. Schwartz; Bauer v. Ferriby & Houston, PC; Whether the "tolling agreement" required plaintiffs to refile their legal malpractice complaint by a date certain; Rory v. Continental Ins. Co.; D'Avanzo v. Wise & Marsac, PC; Whether the "tolling agreement" was modified via subsequent oral communication; MCR 2.507(G)
Court: Michigan Court of Appeals (Unpublished)
Case Name: HVW Distribution, LLC v. Nemazi
e-Journal Number: 44258
Judge(s): Per Curiam - Stephens, Jansen, and Wilder
Since the plaintiffs were required to refile their legal malpractice complaint by August 31, 2007 under the "tolling agreement" but failed to do so, their complaint filed on October 22, 2007 was barred by the statute of limitations. Thus, the trial court properly held their claim was time barred. The plaintiffs designed a particular Christmas tree stand they wished to patent, produce, and sell, A German company (Krinner) holds several patents for a similar product. They formed a limited liability corporation (HVW) to explore business opportunities and retained defendants in January 2003 to assess the patentability of their design. Defendants allegedly told plaintiffs their tree stand did not infringe on any Krinner patent, the HVW stand was patentable, and plaintiffs could manufacture their product without fear of infringement. Plaintiffs had defendants file a patent application in July 2003, and began production. They began selling the product. Krinner contacted them, alleging infringement and plaintiffs then halted sales. Defendant-Nemazi was told of Krinner's position and wrote plaintiffs a letter indicating, in his opinion, the Krinner claim was invalid, plaintiffs had valid defenses, and recommended they might try to reach a settlement with Krinner rather than engage in costly litigation. Nemazi faxed a letter to plaintiff-Simon noting his disappointment with Simon's expressed dissatisfaction "with the legal services our firm has provided" concerning the tree stand and search as to a driveway hockey backstop. Nemazi stated, "[s]ince you are no longer making payments on your outstanding bill and have retained new counsel," it was better for all concerned the defendants terminate representing plaintiffs at that time. Plaintiffs filed a legal malpractice claim against defendants on October 28, 2005. The parties entered into a written "tolling agreement," in which they agreed if plaintiffs filed another complaint they would do so no later than August 31, 2007. The original complaint was dismissed. The parties were unable to resolve the dispute and plaintiffs refiled their complaint on October 22, 2007. The trial court granted defendant's motion for summary disposition. The court held the complaint was untimely because plaintiffs' malpractice claim accrued on November 7, 2003 rather than January 28, 2004. Parties may contractually shorten a statutory limitations period, regardless of the reasonableness of the agreement. The court held the contract language as to plaintiffs refiling the complaint no later than August 31, 2007, was an unambiguous condition precedent to the tolling of the limitations period at the time the complaint was dismissed. The bargained-for exchange involved plaintiffs receiving the benefit of an additional 75 days of tolling, while defendants gained the assurance the litigation would be resolved by settlement, or refiled by a date certain. Affirmed.
Litigation
Issues: Whether the trial court properly applied the doctrine of res judicata and granted defendants' motion for summary disposition; Sewell v. Clean Cut Mgmt., Inc.; Richards v. Tibaldi; Baraga County v. State Tax Comm'n; "Same parties"; Gomber v. Dutch Maid Dairy Farms, Inc.; Eyde v. Charter Twp. of Meridian; "Privity"; ANR Pipeline Co. v. Department of Treasury
Court: Michigan Court of Appeals (Unpublished)
Case Name: Fairways Dev. of N. MI, Inc. v. SPL of Bloomfield, LLC
e-Journal Number: 44294
Judge(s): Per Curiam - Meter and Beckering; Dissent - Murphy
Since the plaintiffs-Fairway and Resort North were within their rights to preserve their claims for a future suit (this suit) and because the pertinent parties were not legally adversarial in the earlier suit where plaintiffs were not in privity with defendant-SPL's earlier adversary, Chestnut, the trial court erred in granting defendants' motion for summary disposition based on res judicata and its decision had to be reversed. The issue at this point was whether plaintiffs' claims could have been raised or were decided by an earlier case involving these parties. The prior case arose when plaintiffs defaulted on payments for a golf course they owned and were developing. After the sheriff's sale, plaintiffs had until June 15, 2007, to redeem the properties. In the meantime, plaintiffs engaged in transactions in which they "sold" the property to other would-be-developers. Eventually they had a contract with entities referred to here as "Chestnut," under which plaintiffs were to get clear title to the golf course and sell it and other assets to Chestnut. However, the day before the redemption period expired, SPL purchased the property before plaintiffs could redeem it. Plaintiffs learned of the purchase on June 14, 2007, and made no attempt to also redeem the property or seek an extension of the redemption period. Chestnut sued plaintiffs and SPL and alleged, inter alia, plaintiffs held title to the property and SPL had no right to redeem. Later, Chestnut reached an agreement with SPL to dismiss the case with prejudice. The trial court dismissed the case "with prejudice." Plaintiffs did not appeal. Plaintiffs sued SPL to quiet title, SPL moved to dismiss, and the trial court held res judicata applied and the prior decision was on the merits. As to the "same parties" issue, the court noted the two parties must be "adversarial" in both actions and the failure to plead an issue against a codefendant does not bar the claim in the future. Here, there were no pleadings in the prior case identifying plaintiffs and SPL as being adversarial. Neither one filed an actual legal claim against the other. The court could not conclude plaintiffs and SPL were sufficiently "adversarial" in the prior case for purposes of applying res judicata. Further, plaintiffs were not in privity with Chestnut in the prior case where there was no "substantial identity of interests between them and a working or functional relationship." Thus, the court reversed and remanded.
Issues: Plaintiffs' claim defendant-Gitler's appeal was "frivolous" entitling them to sanctions; MCR 7.216(C)(1); MCR 7.211(C)(8); MCR 7.212; Whether Gitler's claim was properly before the court; "Abandonment" of issue; Shember v. University of MI Med. Ctr.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Parker v. Home Solutions of MI, Inc.
e-Journal Number: 44262
Judge(s): Memorandum - Stephens, Cavanagh, and Owens
Since the plaintiffs failed to file an appropriate motion claiming defendant-Gitler's appeal was frivolous/vexatious, the court denied their request for sanctions without prejudice to them filing an appropriate motion under MCR 7.211(C)(8). MCR 7.216(C)(1) authorizes sanctions for a vexatious appeal. MCR 7.211(C)(8) provides a request for damages under MCR 7.216(C) must be contained in a motion, and a request contained in any other pleading, including a brief filed under MCR 7.212, does not constitute a motion under this rule. Such a motion may be filed "at any time within 21 days after the date of the order or opinion disposing of the matter asserted to have been vexatious." The court also held Gitler's arguments related to her appeal and the order awarding sanctions were without merit. Affirmed.
Malpractice
This summary also appears under Intellectual Property
Issues: Legal malpractice; Whether the plaintiffs' legal malpractice claim was timely; MCL 600.5838(1); MCL 600.5805(6); Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v. Bakshi; Kloian v. Schwartz; Bauer v. Ferriby & Houston, PC; Whether the "tolling agreement" required plaintiffs to refile their legal malpractice complaint by a date certain; Rory v. Continental Ins. Co.; D'Avanzo v. Wise & Marsac, PC; Whether the "tolling agreement" was modified via subsequent oral communication; MCR 2.507(G)
Court: Michigan Court of Appeals (Unpublished)
Case Name: HVW Distribution, LLC v. Nemazi
e-Journal Number: 44258
Judge(s): Per Curiam - Stephens, Jansen, and Wilder
Since the plaintiffs were required to refile their legal malpractice complaint by August 31, 2007 under the "tolling agreement" but failed to do so, their complaint filed on October 22, 2007 was barred by the statute of limitations. Thus, the trial court properly held their claim was time barred. The plaintiffs designed a particular Christmas tree stand they wished to patent, produce, and sell, A German company (Krinner) holds several patents for a similar product. They formed a limited liability corporation (HVW) to explore business opportunities and retained defendants in January 2003 to assess the patentability of their design. Defendants allegedly told plaintiffs their tree stand did not infringe on any Krinner patent, the HVW stand was patentable, and plaintiffs could manufacture their product without fear of infringement. Plaintiffs had defendants file a patent application in July 2003, and began production. They began selling the product. Krinner contacted them, alleging infringement and plaintiffs then halted sales. Defendant-Nemazi was told of Krinner's position and wrote plaintiffs a letter indicating, in his opinion, the Krinner claim was invalid, plaintiffs had valid defenses, and recommended they might try to reach a settlement with Krinner rather than engage in costly litigation. Nemazi faxed a letter to plaintiff-Simon noting his disappointment with Simon's expressed dissatisfaction "with the legal services our firm has provided" concerning the tree stand and search as to a driveway hockey backstop. Nemazi stated, "[s]ince you are no longer making payments on your outstanding bill and have retained new counsel," it was better for all concerned the defendants terminate representing plaintiffs at that time. Plaintiffs filed a legal malpractice claim against defendants on October 28, 2005. The parties entered into a written "tolling agreement," in which they agreed if plaintiffs filed another complaint they would do so no later than August 31, 2007. The original complaint was dismissed. The parties were unable to resolve the dispute and plaintiffs refiled their complaint on October 22, 2007. The trial court granted defendant's motion for summary disposition. The court held the complaint was untimely because plaintiffs' malpractice claim accrued on November 7, 2003 rather than January 28, 2004. Parties may contractually shorten a statutory limitations period, regardless of the reasonableness of the agreement. The court held the contract language as to plaintiffs refiling the complaint no later than August 31, 2007, was an unambiguous condition precedent to the tolling of the limitations period at the time the complaint was dismissed. The bargained-for exchange involved plaintiffs receiving the benefit of an additional 75 days of tolling, while defendants gained the assurance the litigation would be resolved by settlement, or refiled by a date certain. Affirmed.
Negligence & Intentional Tort
Issues: Premises liability; Whether the plaintiff's claim was barred by the exclusive remedy provision of the Worker's Disability Compensation Act (WDCA)(MCL 418.131(1)); Clark v. United Techs. Auto., Inc.; The "economic realities" test; James v. Commercial Carriers, Inc.; The corporate relationship of plaintiff's employer and defendant-Affiliated Health Services (which leased the parking structure where plaintiff was injured); Wells v. Firestone Tire & Rubber Co.; "Notice"; Case v. Consumers Power Co.; Clark v. Kmart Corp.; Whether the icy condition of the parking structure was "open and obvious"; Ghaffari v. Turner Constr. Co.; Slaughter v. Blarney Castle Oil Co.; Summary disposition under MCR 2.116(C)(10); Universal Underwriters Group v. Allstate Ins. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Lefevre v. Mack/Moross Corp.
e-Journal Number: 44269
Judge(s): Per Curiam - Stephens, Cavanagh, and Owens
The trial court did not err in denying defendant-Affiliated Health Services summary disposition on the basis of the WDCA's exclusive remedy provision where there was no documentary evidence establishing whether Affiliated or St. John Health could be considered the plaintiff's employer under the "economic realities" test. Plaintiff worked for St. John Hospital & Medical Center, and Affiliated leased the parking structure where she was injured. Both entities were wholly owned subsidiaries of St. John Health. The court noted the corporate structure in this case more closely resembled the one in James than the one in Wells. Affiliated produced documentary evidence the worker's compensation benefits for it, St. John Health, and St. John Hospital & Medical Center were administered jointly and paid from the same funding source, and plaintiff received worker's compensation benefits. However, no evidence was presented St. John Health controlled plaintiff's duties, paid her wages, or had the right to hire, fire, or discipline her, or the performance of her duties was an integral part of St. John Health's business. Further, unlike in James, there was no evidence the two subsidiaries were "integral components" of St. John Health, they shared "numerous financial functions through their connection to the parent corporation," or there was "unity of management" between the subsidiaries and St. John Health. The court also rejected Affiliated's claims it was entitled to summary disposition because plaintiff failed to establish it had notice of the icy condition in the parking structure, or the condition was "open and obvious." No documentary evidence showed what steps Affiliated took the day of plaintiff's fall, or what steps it routinely took, to maintain the structure and keep it free of accumulated water or ice. However, plaintiff presented climate data showing there was some rain on April 2, 3, and 4, and the temperature dropped to 31 degrees both April 4 and 5 (the day she fell), establishing the presence of weather conditions which should have alerted Affiliated to the possibility accumulated rainwater would turn into ice. The court also concluded, inter alia, Affiliated failed to show there was no genuine issue of material fact the ice would have been visible upon casual inspection. The trial court's order denying Affiliated's motion for summary disposition was affirmed.
Real Property
Issues: Whether the general public can obtain a prescriptive right to use private land as a public park or beach and whether the public established the right to use the land at issue as a public beach; AutoAlliance Int'l, Inc. v. Department of Treasury; Applicability of collateral estoppel; VanVorous v. Burmeister; Public prescriptive easement; Jonkers v. Summit Twp.; Kempf v. Ellixson; Marshall v. Ganges Twp. implicating the preclusion doctrine of collateral estoppel; Nummer v. Department of Treasury; Dedication under MCL 221.20; Kentwood v. Sommerdyke; US Gypsum Co. v. Christenson; Eyde Bros. Dev. Co. v. Eaton County Drain Comm'r; Thies v. Howland; Pigorsh v. Fahner; Higgins Lake Prop. Owners v. Gerrish Twp.; Stickley v. Sodus Twp.; Comstock v. Wheelock; Summers v. Hoffman; Prescriptive rights for recreational use; People v. Hardiman; Inverse condemnation; Period of limitations; Moll v. Abbott Labs.; In re Finlay Estate; Hart v. Detroit; Gorte v. Department Transp.; Texaco, Inc. v. Short; Difronzo v. Port Sanilac; Etherington v. Bailiff; Missaukee Lakes Land Co. v. Missaukee County Rd. Comm'n; Recreational Trespass Act (RTA)(MCL 324.73101 et seq.); Heydon v. MediaOne of Se. MI, Inc.; Department of Natural Res. v. Carmody-Lahti Real Estate, Inc.; Schadewald v. Brule; Glass v. Goeckel; Whether defendants' counterclaim based on the RTA must be dismissed; Peterman v. Department Natural Res.; Pohutski v. City of Allen Park; Jackson County Drain Comm'r v. Village of Stockbridge; State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc.; Waiver of appeal; Chen v. Wayne State Univ.; People v. Torres
Court: Michigan Court of Appeals (Unpublished)
Case Name: Benninghoff v. Tilton
e-Journal Number: 44289
Judge(s): Per Curiam - M.J. Kelly, K.F. Kelly, and Shapiro
Deciding whether the general public can obtain a prescriptive right to use private land as a public park or beach and whether the public established the right to use the land at issue as a public beach, the court held under Michigan law, the general public can obtain prescriptive rights to use private land as a public beach. However, there were questions of fact as to whether and when the public might have established a prescriptive right to use the end of 121st Avenue as a public beach. Thus, the court held the trial court erroneously granted summary disposition on this claim. Similarly, because there were questions of fact as to whether and when the public might have obtained a prescriptive right, the trial court erred to the extent it concluded defendants' inverse condemnation claim was untimely. The timeliness of defendants' inverse condemnation claim could not be ascertained absent resolution of these fact questions. In June 1962, the Marshalls sued the Township, the Road Commission, and various private persons over the public's use of 121st Avenue. The present case had its origins in the efforts by defendants-Tiltons and Steges to limit the public's use of the beach at the end of 121st Avenue. The court concluded the trial judge's opinion in Marshall did not establish the public's right to use the land at the point where 121st Avenue intersects Lake Michigan for any purposes beyond those normally conveyed under MCL 221.20. Further, the scope of a dedication under MCL 221.20 does not vary based on the nature of the public uses giving rise to the dedication. Thus, the Marshall case only established the public's right to use 121st Avenue for ingress and egress to and from Lake Michigan and the trial court properly dismissed plaintiffs' claims to the extent they were based on the preclusive effect of the judge's opinion and order. There were questions of fact as to whether and when the Township or the Road Commission took actions to facilitate and control the public's use of the road end as a public beach. Because there were questions of fact on these issues, the trial court erred to the extent it dismissed plaintiffs' claim based on a public prescriptive right and to the extent it dismissed defendants' inverse condemnation claim as untimely. In docket number 284637, the court affirmed the trial court to the extent it dismissed plaintiffs' claims other than their claim premised on a public prescriptive right to use the end of 121st Avenue as a public beach. In docket number 284736, the court affirmed the trial court to the extent it dismissed defendants' claims other than its claim for inverse condemnation. The court reversed the trial court's decision to dismiss plaintiffs' claim based on a public prescriptive right to use the road end as a public beach in docket number 284637, and reversed the trial court's decision to dismiss defendants' counterclaim for inverse condemnation in docket number 284736. These claims could not be resolved without findings as to the nature of any public entities' actions to facilitate and control the public's use of the road end and the timing of those actions. They must be tried on the merits. Reversed in part, affirmed in part, and remanded.
Issues: Foreclosure; Notice; MCL 600.3208; Burden of proof; White v. Burkhardt; Effect of lack of actual notice; Jennings v. Arnold; Whether the trial court prevented the plaintiffs from testifying; Whether the proposed amendments to the complaint would have changed the outcome
Court: Michigan Court of Appeals (Unpublished)
Case Name: Brown v. Fremont Inv. & Loan
e-Journal Number: 44278
Judge(s): Per Curiam - Stephens, Cavanagh, and Owens
The trial court did not err in granting the defendant summary disposition in this foreclosure case because at most, the plaintiffs showed they did not have actual notice, but defendant was not required to ensure notice was actually given - all it had do was publish and post the property pursuant to the statutory requirements. Plaintiffs defaulted on their mortgage, and defendant began foreclosure proceedings. Plaintiffs sued, alleging they had no notice by publication or posting until July 2008, after the sale had taken place and defendant tried to evict them. In support of its summary disposition motion, defendant provided an affidavit of posting, stating the property was posted on December 3, 2007, an affidavit of publication (including a copy of the notice) stating publication was made on November 21, November 28, December 5, and December 12, 2007, and a copy of a letter sent to plaintiffs by certified mail dated November 29, 2007, informing them of the date and time of the sale and the amount needed for redemption. The deputy sheriff who posted the property testified at the motion hearing. He stated he had been posting properties for 34 years, and while he did not specifically remember posting plaintiffs' property, he was familiar with the house because he posted several properties in the neighborhood. Plaintiffs' counsel cross-examined him, but did not ask to call any witnesses. The court noted the party asserting the posting was insufficient had the burden of proof. Plaintiffs' "bare statements" they did not receive notice were not clear and convincing evidence adequate notice was not given. Affirmed.
Tax
Issues: Whether the Tax Tribunal properly established the true cash value (TCV), state equalized value (SEV), and the taxable value (TV) of the petitioner's property for 2005, 2006, and 2007; Standard of review; Continental Cablevision v. Roseville; "Substantial evidence"; Jones & Laughlin Steel Corp. v. Warren
Court: Michigan Court of Appeals (Unpublished)
Case Name: Slade v. Township of Atlas
e-Journal Number: 44274
Judge(s): Memorandum - Stephens, Cavanagh, and Owens
The tribunal did not legally err and had sufficient evidence from which to determine the TCV of petitioner's property. It had a copy of his mortgage for $2,400,000, and photographs of the home's exterior showing how much was still to be completed. Petitioner refused to allow the assessor inside the home -- a fair inference from this was the inside was basically complete. As to the equipment, the tribunal had a valuation by respondent dated February 19, 2006, identifying more than $10,000 of equipment. The elevator alone was valued at $24,000. Although the tribunal did not discuss how the difference in equipment valuation affected its determination, if it assumed the interior was completed, it would not be hard to find the respondent's figure more accurate. As to "superadequacy," while petitioner's appraiser noted most homes in the area were less than $200,000 in price, he did not explain how this fact would affect the market value of a large, executive home. Also, petitioner's appraiser conceded "[t]hose on the lake are typically higher in value than that." The tribunal did not err in concluding the petitioner identified features which might affect the value but did not provide specific information on how the value was decreased by too much land and an overbuilt house. Affirmed.
Termination of Parental Rights
Issues: Termination pursuant to §§ 19b(3)(b)(ii) and (j); In re JK; Deference to the trial court's superior opportunity to view the witnesses' demeanor and judge the credibility of their testimony; In re Miller; Children's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re DLS
e-Journal Number: 44240
Judge(s): Per Curiam - Jansen, Fort Hood, and Gleicher
Concluding the respondent-mother failed to take even minimal steps toward compliance with the DHS's requirements, she did not protect her two minor children from known harms, and there was no evidence she was reasonably likely to do so within the foreseeable future, the court affirmed the trial court's order terminating her parental rights. The case came to the DHS's attention when respondent's husband admitted to the police he had sexually abused at least one of the children. Before his admission, respondent was informed by one of the children her husband was doing "bad things," but she did not immediately intervene and she initially allowed him to continue to have unsupervised contact with the children. Her "failures in this regard led to further sexual abuse, which apparently continued until respondent's husband was arrested." Further, after the children were removed from her custody, respondent refused to participate in services offered by the DHS. She believed the DHS's goal was termination of her parental rights and thus, she refused to comply with several of its requests. Instead, she sought her own services. However, those services did not address the impetus for the termination petition, but rather dealt with unrelated concerns with little or no bearing on her parental fitness. The trial court found respondent's testimony was not credible. Respondent had not taken steps to divorce her husband, and it did not appear (contrary to her therapist's testimony) she had experienced a "breakthrough." The court deferred to the trial court's superior opportunity to view the witnesses' demeanor and judge the credibility of their testimony. In light of the evidence, the court could not conclude the trial court erred in determining she failed to protect her children despite the opportunity to do so. The trial court also did not clearly err in finding termination was in the children's best interests. Affirmed.
Issues: Termination under §§ 19b(3)(c)(i), (g), (j), and (l); In re Trejo Minors; The child's best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Murray
e-Journal Number: 44298
Judge(s): Memorandum - Stephens, Cavanagh, and Owens
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. Her parental rights to seven other children were previously terminated in 2006. This alone supported the trial court's determination termination was warranted under § 19b(3)(l). Further, the child involved in this case was born in 2007, and tested positive for marijuana at birth. Although respondent participated in services and made sufficient progress to allow the child to be returned to her custody on two separate occasions, removal was required a short time later each time because she exposed the child to violence and drugs in her own home. The court disagreed with respondent's argument termination was inappropriate because she could have obtained appropriate housing and employment if she was given more time. Housing and employment were not the principal issues in the case. The record showed respondent was able to obtain housing with public assistance, and the trial court did not consider her lack of employment against her. The principal issue was respondent's inability to make proper parenting decisions and her continued involvement in relationships and conduct placing the child at risk of harm. Considering her past history, and her inability to provide a safe and stable environment for her child when given the opportunity to do so after receiving services, there was no reasonable likelihood she would be able to rectify the conditions leading to the adjudication, or be able to provide proper care and custody, within a reasonable time considering the child's age, and the child was reasonably likely to be harmed if returned to respondent's home again. Affirmed.
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