• Animal Law (1)
• Criminal Law (2)
• Family Law (2)
• Litigation (1)
• Malpractice (2)
• Negligence & Intentional Tort (3)
• Real Property (3)
• Termination of Parental Rights (1)

Animal Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Dog bite; MCL 287.351; Whether the plaintiff was a "licensee" or a "trespasser"; Stitt v. Holland Abundant Life Fellowship; Whether the defendant "impliedly consented" to plaintiff's use of his driveway; Pippin v. Atallah; "Known, customary use"; Common law claim alleging that the defendant knew his dog had a propensity to bite; Trager v. Thor; Hiner v. Mojica; Plaintiff's reliance on characteristics of a breed; Whether defendant violated the "leash law" (MCL 287.262) by allowing his dogs to roam free on his farm; "Stray" defined; Statutory interpretation; Herman v. Berrien Cnty.; Yono v. Carlson

Court: Michigan Court of Appeals (Unpublished)

Case Name: Tieman v. Grinsteiner

e-Journal Number: 50074

Judge(s): Per Curiam – Stephens, Sawyer, and K.F. Kelly

 

Holding, inter alia, that the plaintiff was properly classified as a trespasser and there was no genuine issue of material fact, the court affirmed the trial court's order granting the defendant summary disposition on plaintiff's statutory claim pursuant to MCL 287.351. The court also held that summary disposition on his common law claim was proper because there was no evidence showing a dangerous propensity "unique to the particular animal" (an Australian Shepherd), and defendant did not violate the leash law where there was no claim that his dogs were off his property. The facts were largely undisputed. On 6/24/08, plaintiff drove his vehicle up the driveway at defendant's farm. A few years earlier, he purchased straw from defendant's predecessor in interest. He did not know that the same man no longer owned the farm. When plaintiff pulled into the driveway, defendant's two dogs ran to the vehicle, barking. Defendant was not home. Plaintiff talked to the dogs from the vehicle, and thinking of the adage that "a barking dog never bites," he exited his vehicle. One of the dogs bit him on his side. As plaintiff turned and got back in his vehicle, he allegedly injured his knee. It did "not appear that the actual wound from the bite was severe." Plaintiff asserted that he intended to seek treatment for his knee, but had not yet received it when, in 9/08, he put all his weight on the knee while working with a router. The knee gave out, causing his hand to slide forward and come into contact with the router. One of his fingers was severed and two others were injured. As to plaintiff's statutory claim, he asserted that he should be classified as a licensee because defendant impliedly consented to his use of the driveway. He contended that "because defendant failed to post a sign in the driveway warning potential entrants, he acquiesced to a known and customary use of the property by the public." However, he offered "no authority for the notion that an individual cannot trespass on a driveway that lacks a warning sign." While he argued that "it is known that members of the public, such as delivery persons and people seeking directions, generally" use driveways to perform their tasks and to provide services, the court concluded that his argument would require it to "over-broadly apply the term ‘known, customary use.'" As to his common law claim, while there was no allegation that the dog previously bit anyone, he cited "defendant's deposition testimony, in which he stated that the Australian Shepherd breed as a whole tended to be protective of personal property and family." However, plaintiff's position was "not consistent with the case law addressing this topic." The Michigan Supreme Court explained in Trager that the possessor of an animal that knows "of some dangerous propensity unique to the particular animal" has a duty to control the animal. Plaintiff did not cite any case supporting "the theory that an individual dog can be considered to have a dangerous propensity merely because of its breed." As to plaintiff's leash law claim, the court concluded that it was "evident that the legislature did not intend to require an owner to leash its dog if that dog remained on the owner's property."

 

Criminal Law

 

Issues: Sufficiency of the evidence that the defendant premeditated and deliberated the killing of the victim; People v. Nowack; People v. Ortiz; People v. Abraham; People v. Berry (On Remand); People v. Coy; People v. Kelly; People v. Haywood; Whether the trial court properly denied the defendant's motion to suppress his custodial statements; People v. Gipson; Request for counsel; People v. Paintman; People v. Slocum (On Remand); People v. Adams; Request to stop the interview; Whether defendant waived his Miranda rights; Voluntariness; People v. Cipriano; People v. Shipley; People v. Butler; People v. Manning; People v. Daoud

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bailey

e-Journal Number: 50117

Judge(s): Per Curiam - K.F. Kelly, Meter, and Gleicher

 

The court held, inter alia, that there was sufficient evidence to support the trial court's verdict that the defendant was guilty of first-degree premeditated murder. Further, the court held that under the totality of the circumstances, the prosecution proved by a preponderance of the evidence that he voluntarily waived his Miranda rights and offered his incriminating statements to the officers. Thus, the trial court properly denied his motion to suppress. The victim was found in her kitchen lying on her back bleeding heavily from the head. There were no signs of forced entry. An autopsy revealed at least 19 blunt force impacts to her head with both the head and claw of a hammer. She also suffered defensive wounds, including underlying palpable fractures of the hand bones. The police learned that the victim had hired defendant to do concrete work at her home. A search warrant was executed on his home, where officers found a pair of blood-stained work boots with the blood matching the victim's DNA. They also found papers inside his house and van on which someone had written the victim's name and phone number. Defendant contended on appeal, among other things, that there was insufficient evidence of his premeditation and deliberation. The court held that there was sufficient evidence in the record to support the verdict. Defendant admitted assaulting the victim. The ME's testimony and report detailed her numerous injuries on her head, which broke open her skull in several locations. The ME also testified that her wounds were consistent with being struck with different ends of a hammer. Police photographs supported an inference that the attack of the victim began in one room of her house and progressed to another area of the house. They also showed the presence of blood and brain matter in the kitchen and dining or living rooms. The court concluded that the evidence supported the trial court's finding beyond a reasonable doubt that he premeditated and deliberated his killing of the victim. The circumstances concerning the nature of the killing established that he had an opportunity to reconsider his actions in the course of his assault on the victim. The court also held that the record established that defendant voluntarily offered his statements to the police. Affirmed.

 

Issues: Ineffective assistance of counsel for failure to bring to the trial court's attention that the defendant's former counsel in this case also represented a prosecution witness; People v. Rodriguez; People v. Rodgers; People v. Carbin; People v. Effinger; People v. Unger; Conflict of interest; People v. Smith; MRPC 1.9(a); Breach of fiduciary duty; Alpha Capital Mgmt., Inc. v. Rentenbach; People v. Davenport; Evidence of defendant's flight and threats he made in an effort to dissuade a witness from testifying; People v Smelley; MRE 404(b)(1); People v. Sabin (After Remand); People v. Knox; People v. VanderVliet; People v. Lukity

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Williams

e-Journal Number: 50081

Judge(s): Per Curiams – Markey, Servitto, and Ronayne Krause

 

The court held that the defendant was not denied the effective assistance of counsel. His convictions arose from the stabbing of K and P. He admitted that he was present when they were stabbed, but denied responsibility for the crime. P identified defendant as the perpetrator during the 911 telephone call the night of the stabbings, and P and K each identified him as their assailant during later statements to police and at trial. Also, defendant's brother testified that on the night of the stabbings, defendant took his automobile without permission. Defendant then drove to Missouri, where he was later apprehended. He argued that he was afforded ineffective assistance of counsel when his trial counsel failed to bring to the trial court's attention that defendant's former counsel in this case also represented a prosecution witness (C). Defendant asserted that his trial counsel should have sought to exclude C's testimony and to disqualify the prosecutor's office. Attorney B was originally appointed to represent defendant and he served as his counsel during the initial stages of this case until he was replaced by retained counsel, T. B was also appointed to represent C "in an unrelated, separate and distinct criminal matter arising from a home invasion" to which C pleaded guilty. After T replaced B as defendant's counsel, and after C pleaded guilty to the separate charges against him but before C was sentenced, C wrote a letter to B advising that he had information as to defendant's involvement in this case. Defendant and C were in jail at the same time. B contacted the police, providing them with the letter he received from C. Police then interviewed C, who informed them that defendant admitted to stabbing K and P. In exchange for his "truthful testimony" against defendant, the prosecution agreed to provide C with a favorable sentencing recommendation in his criminal case. The court noted that the matters in which B represented defendant and C were distinct and unrelated. At the time B's representation of each commenced, and at all times until C advised B that he had information detrimental to defendant, there was no actual or implied conflict of interest. Also, that C obtained information detrimental to defendant during the course of B's representation of C was "merely fortuitous." The court held that, under the circumstances, B's representation of defendant and C did not present an actual conflict of interest. However, even if the court were to conclude that a conflict of interest arose at the moment that B became aware that C had information favorable to the prosecution in this case, defendant could not establish that there was a reasonable probability that but for T's failure to raise the issue the outcome of defendant's trial would have been different. Defendant did not offer any authority establishing that the trial court would have, or that it should have, precluded C's testimony at trial. There was no indication that C's testimony was the result of or was improperly influenced by B's prior representation of defendant. Had the trial court disqualified B from continued representation of C, there was no indication that if represented by different counsel C would have not testified or would have testified any differently at trial. Thus, T could not be deemed to have been ineffective for failing to move to exclude C's testimony. Also, defendant did not offer any authority indicating that a motion to disqualify the prosecutor's office from this case would have been successful. The court further concluded that, considering the overwhelming evidence of his guilt, he could not establish that the outcome of his trial would have been different but for counsel's failure to raise the conflict issue or move to disqualify the prosecutor's office. Defendant's convictions for two counts of assault with intent to murder and one count of UDAA were affirmed.

 

Family Law

 

Issues: Paternity; Standing; Adair v. Michigan; McHone v. Sosnowski; Lansing Schs. Educ Ass'n v. Lansing Bd. of Educ.; Miller v. Allstate Ins. Co.; Decision to hold a motion in abeyance to allow more discovery; Westlake Transp., Inc. v. Public Serv. Comm'n; Decision whether to appoint a guardian ad litem (GAL) to represent a minor child's interests; Borowsky v. Borowsky; The Paternity Act (MCL 722.711 et seq.); MCL 722.714(1) and (2); In re KH; Altman v. Nelson; Whether the trial court properly held defendant-mother's motion in abeyance; People v. Grove; Abandoned claim of error; Chen v. Wayne State Univ.; Summary disposition before the parties have a chance to conduct discovery; Prysak v. R L Polk Co.; Marilyn Froling Revocable Trust v. Bloomfield Hills Country Club; A motion under MCR 2.116(C)(5); Aichele v. Hodge; The Acknowledgement of Parentage (AOP) Act; MCL 722.1001 et seq.; MCL 722.1003(1) and (2); Whether the trial court properly appointed a GAL; MCL 722.717b; MCL 722.27(1) and (1)(d); Tuer v. Niedoliwka; MCL 722.1011(1) and (2); MCR 2.201(E)(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bazzi v. Macaulay

e-Journal Number: 50087

Judge(s): Per Curiam – M.J. Kelly and Borrello; Dissent - Owens

 

The court held, inter alia, that the trial court properly issued an order staying the defendant-mother's (Macaulay) motion to dismiss plaintiff-Bazzi's paternity suit and appointing a GAL for her child. Macaulay gave birth to the child in 1/05 when she was involved in an intimate relationship with Bazzi. In 12/08, she abruptly broke off all contact with Bazzi and effectively precluded him from maintaining a relationship with the child. In 8/09, Bazzi sued Macaulay to establish his paternity. Macaulay did not answer the complaint. Instead, she moved for the dismissal of Bazzi's suit. In her motion, she stated that - one day after the child's birth - she and S signed an affidavit acknowledging S as the child's father. Macaulay also attached a copy of a document purporting to be an AOP. She contended the affidavit conclusively established the child's paternity. She further argued that, because Bazzi lacked standing to challenge the affidavit under Michigan law, the trial court had to dismiss Bazzi's suit. Bazzi did not answer Macaulay's motion. He moved to stay resolution of Macaulay's motion pending further discovery. Macaulay argued that, once she presented evidence that another man signed an AOP, the trial court had to dismiss Bazzi's paternity suit because Bazzi had no standing to bring the action. She further contended that because Bazzi had no standing, the trial court had no jurisdiction to appoint a GAL for her child. Macaulay argued that the trial court did not have the authority to hold her motion in abeyance because Bazzi did not have standing to bring a paternity suit. Bazzi sued to establish his paternity over a child that was not born to a married woman. "In addition to allegations to establish grounds for his belief that he was in fact the child's biological father, Bazzi alleged that Macaulay had not taken any action - to his knowledge - to establish the child's paternity. As pleaded, Bazzi established his standing to pursue a paternity claim under the Paternity Act." Thus, the trial court had jurisdiction over Bazzi's suit. With her motion to dismiss, Macaulay challenged Bazzi's standing. She appeared to be entitled to summary disposition in her favor under MCR 2.116(C)(5), because the child's paternity was already established through what appeared to be a valid AOP. "However, the mere filing of her motion to dismiss for lack of standing did not establish that Bazzi actually lacked standing and did not divest the trial court of jurisdiction" - Bazzi's standing remained and the trial court retained jurisdiction over his suit. The trial court has jurisdiction over Bazzi's paternity claim until it makes a judicial determination that Macaulay was entitled to dismissal under MCL 2.116(C)(5). It has not made such a determination. It specifically stated that it was neither denying nor granting Macaulay's motion to dismiss for lack of standing. Instead, the trial court determined that it was in the child's best interest to hold Macaulay's motion in abeyance pending further limited discovery - specifically, an investigation into the nature of the relationship between Bazzi and the child after the child's birth and into the background behind the execution of the affidavit that Macaulay submitted with her motion. "Thus, the allegations in Bazzi's complaint remain unrebutted - for the time being -" and the trial court retained jurisdiction over the suit. Affirmed.

 

Issues: Nunc pro tunc judgment of divorce; Vioglavich v. Vioglavich; In re Temple Marital Trust; Wilson v. Wilson; Tiedman v. Tiedman

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of St. Onge v. St. Onge

e-Journal Number: 50054

Judge(s): Per Curiam – Stephens, Sawyer, and K.F. Kelly

 

Holding that the trial court abused its discretion in entering the nunc pro tunc judgment of divorce, the court reversed and remanded for entry of an order dismissing the complaint. The underlying facts of the case were undisputed. Plaintiff-husband and defendant-wife were married in 2004 and then separated in 6/09. Plaintiff instituted the divorce action in 11/09. Because defendant failed to respond in any way to the suit, a default hearing was scheduled. Plaintiff participated in the hearing telephonically and provided testimony necessary to satisfy the requirements to enter a default judgment of divorce. However, the trial court expressed some concern related to plaintiff's competency, given the fact that plaintiff was hospitalized at the time and was noticeably struggling in giving his responses. The trial court requested an affidavit verifying plaintiff's competency from his treating physician. Plaintiff passed away a few days later. Nevertheless, his counsel moved forward with the divorce action by providing the requested affidavit of competency and scheduling a hearing for entry of the judgment of divorce. Defendant appeared for the first time at that hearing and challenged the entry of the judgment of divorce. After reviewing the matter, the trial court found that entry of a nunc pro tunc judgment of divorce was appropriate under the facts. Michigan law has long held that both parties must be living in order for an entry of a judgment of divorce to be valid and "there can be no decree after death has separated the parties." A review of the record showed that the trial court did not read all of the terms of the judgment of divorce into the record, nor did it pronounce an intention for an immediately effective divorce. The trial court specifically stated that it required further action, namely receipt of a verification of plaintiff's competency, before a judgment of divorce would be entered. The court also rejected the trial court's explanation that entering the judgment of divorce after plaintiff's death was appropriate in this case because "it was ever the intention of [the trial court] that these parties be divorced, contingent only on the competency issue." There could be no dispute that the trial court did not indicate on the record an intention for an immediately effective divorce. To the contrary, had plaintiff been found to have been incompetent, it was evident from the trial court's statement that it would not have granted the divorce, at least not without further proceedings. Also, the Tiedman court specifically noted that the determination related to whether a divorce had been granted "should not depend on . . . the judge's later declarations or interpretations of his intended meaning."

 

Litigation

 

This summary also appears under Malpractice

 

Issues: Venue in a medical malpractice/wrongful death claim; Dimmitt & Owens Fin., Inc. v. Deloitte & Touche, LLC; Karpinski v. St. John Hosp.-Macomb Ctr. Corp.; Automatic external defibrillator (AED); Automatic implantable cardioverter defibrillator (ICD); Venue statute; MCL 600.1629(1); Yono v. Carlson; Taha v. Basha Diagnostics, PC; Massey v. Mandell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Grekowicz v. Farooki

e-Journal Number: 50120

Judge(s): Per Curiam - K.F. Kelly, Meter, and Gleicher

 

The court held that the trial court erred in finding that the "original injury" for purposes of MCL 600.1629(1) occurred in Wayne County where the deceased plaintiff treated with the defendants-physicians and institutional medical centers and hospitals. Because the original injury occurred in Macomb County where the corporate registered office of a defendant was located, the trial court erred in denying the defendants' motion to change venue. The decedent (M) was diagnosed with a serious heart condition shortly after birth in 1991. From 1991 through 2008, he treated with the defendants in Wayne County. In 5/08, defendant-Farooki prescribed an AED to detect abnormalities in M's heartbeat and to restart his heart after a cardiac event. On 8/11/08 he died during a car accident in Macomb County from "sudden cardiac arrest." His mother, acting as PR of his estate, filed this case against defendants in Wayne County, alleging that they breached their standards of care by failing to include an ICD in M's treatment plan to reduce his risk of sudden cardiac arrest. An ICD would have monitored M's heart rhythms and automatically corrected any detected abnormalities. MCL 600.1629(1) provides the venue guidelines for "action[s] based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death." While the statute does not define "original injury" the court has interpreted the term in medical malpractice cases. In Karpinski the court construed the venue statute and the wrongful death statute to define "original injury." The court explained that in a wrongful death case, the word "injury" in the venue statute "refers to the injury resulting in death, rather than the death itself." The court in that case also noted that "the Legislature intended to make the place where the injury transpires paramount for venue purposes." The issue here was whether the "original injury" in a medical malpractice case "involving a failure to recommend a course of treatment occurs at the time of treatment." In Taha, the court filled that gap, where the case explained that the injury that was the subject of the case "is the corporeal harm that results from the defendant's alleged failure to meet the recognized standard of care." The court concluded that the essential point of Taha was that the location of the alleged breach of the standard of care was not the place of the "original injury." In Dimmitt, the Supreme Court clarified that "a deficient treatment plan is only a potential injury until the plan proves ineffective and itself causes an injury." Thus, Dimmitt instructed that in a malpractice case, the location of an allegedly breached duty of care does not control venue. Rather, for venue purposes, the appropriate focus must remain on the location of plaintiff's injury. Here, M did not experience an actual injury until he suffered a sudden cardiac arrest and died. That was the "original injury," and it occurred in Macomb County. Reversed.

 

Malpractice

 

Issues: Medical malpractice; Woodard v. Custer; "Proximate causation"; Velez v. Tuma; "Speculation"; Skinner v. Square D Co.; Summary disposition under MCR 2.116(C)(10); Coblentz v. Novi

Court: Michigan Court of Appeals (Unpublished)

Case Name: Brown v. Burk

e-Journal Number: 50072

Judge(s): Per Curiam – Stephens, Sawyer, and K.F. Kelly

 

Holding that the plaintiffs failed to prove that a genuine issue of material fact existed as to proximate cause because their expert (B) did not opine with a reasonable degree of medical certainty what a dilated eye exam might have shown, the court affirmed the trial court's order granting the defendants summary disposition. The injured plaintiff (Brown) underwent surgery to have a cataract removed from his right eye on 4/6/06. He moved his head during the surgery, which caused a tear in the posterior capsule. Defendants-Burk and Wacksman saw him on 4/7/06 and 4/13/06 - "the medical records indicated no problems from the surgery." When he awoke on 4/14/06, he noticed a loss of vision in his right eye. He contacted defendants, who saw him on an emergency basis and immediately referred him to a specialist. The specialist diagnosed a detached retina, and Brown underwent surgery to reattach his retina. Plaintiffs sued defendants for malpractice and negligence. After B's deposition, two allegations remained - (1) Burk should have told Brown about the tear in the posterior capsule and warned the plaintiffs of the signs and symptoms of retinal detachment, and (2) Burk and Wacksman should have performed a dilated exam on 4/7 or 4/13, respectively, to examine the back of the eye and retina. Defendants successfully moved for summary disposition under MCR 2.116(C)(10). The trial court found that B's opinion was based on speculation and could not support the causation element. Plaintiffs argued on appeal that B's opinions showed that it was more likely than not that had the defendants performed a dilated exam of Brown's right eye, the retinal damage would have been found and his vision loss would have been reduced. The court disagreed, concluding that the statements the plaintiffs relied on were not based on fact, and were "speculation and conjecture" on B's part. B "used language like ‘if' and ‘had' when talking about the dilated exams. He also admitted that he could only speculate about the results of dilated exams, since no such exam had been done." Reviewing B's statement that the plaintiffs argued showed the necessary causation, the court concluded that B said, "had an exam been performed and had that exam revealed retinal damage, then had the proper action been taken, Brown's outcome would have been better." Those statements were speculation. Plaintiffs also argued that Burk's failure to warn them of signs and symptoms of retinal detachment was also a proximate cause of the injuries. The court held that even accepting the standard of care proposed by plaintiffs, they would not be entitled to relief. "Had such a warning been given it would have merely resulted in plaintiff presenting himself to defendants with specific complaints." However, B was unable to testify as to the likely outcome of the resulting retinal exam.

 

This summary also appears under Litigation

 

Issues: Venue in a medical malpractice/wrongful death claim; Dimmitt & Owens Fin., Inc. v. Deloitte & Touche, LLC; Karpinski v. St. John Hosp.-Macomb Ctr. Corp.; Automatic external defibrillator (AED); Automatic implantable cardioverter defibrillator (ICD); Venue statute; MCL 600.1629(1); Yono v. Carlson; Taha v. Basha Diagnostics, PC; Massey v. Mandell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Grekowicz v. Farooki

e-Journal Number: 50120

Judge(s): Per Curiam - K.F. Kelly, Meter, and Gleicher

 

The court held that the trial court erred in finding that the "original injury" for purposes of MCL 600.1629(1) occurred in Wayne County where the deceased plaintiff treated with the defendants-physicians and institutional medical centers and hospitals. Because the original injury occurred in Macomb County where the corporate registered office of a defendant was located, the trial court erred in denying the defendants' motion to change venue. The decedent (M) was diagnosed with a serious heart condition shortly after birth in 1991. From 1991 through 2008, he treated with the defendants in Wayne County. In 5/08, defendant-Farooki prescribed an AED to detect abnormalities in M's heartbeat and to restart his heart after a cardiac event. On 8/11/08 he died during a car accident in Macomb County from "sudden cardiac arrest." His mother, acting as PR of his estate, filed this case against defendants in Wayne County, alleging that they breached their standards of care by failing to include an ICD in M's treatment plan to reduce his risk of sudden cardiac arrest. An ICD would have monitored M's heart rhythms and automatically corrected any detected abnormalities. MCL 600.1629(1) provides the venue guidelines for "action[s] based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death." While the statute does not define "original injury" the court has interpreted the term in medical malpractice cases. In Karpinski the court construed the venue statute and the wrongful death statute to define "original injury." The court explained that in a wrongful death case, the word "injury" in the venue statute "refers to the injury resulting in death, rather than the death itself." The court in that case also noted that "the Legislature intended to make the place where the injury transpires paramount for venue purposes." The issue here was whether the "original injury" in a medical malpractice case "involving a failure to recommend a course of treatment occurs at the time of treatment." In Taha, the court filled that gap, where the case explained that the injury that was the subject of the case "is the corporeal harm that results from the defendant's alleged failure to meet the recognized standard of care." The court concluded that the essential point of Taha was that the location of the alleged breach of the standard of care was not the place of the "original injury." In Dimmitt, the Supreme Court clarified that "a deficient treatment plan is only a potential injury until the plan proves ineffective and itself causes an injury." Thus, Dimmitt instructed that in a malpractice case, the location of an allegedly breached duty of care does not control venue. Rather, for venue purposes, the appropriate focus must remain on the location of plaintiff's injury. Here, M did not experience an actual injury until he suffered a sudden cardiac arrest and died. That was the "original injury," and it occurred in Macomb County. Reversed.

 

Negligence & Intentional Tort

 

Issues: Premises liability; Whether the trial court properly granted the defendant's motion for summary disposition concluding that the condition was "open and obvious" and plaintiff failed to establish a statutory duty as to the allegedly leaking gutter; Dressel v. Ameribank; Slaughter v. Blarney Castle Oil Co.; Statutory duties; Benton v. Dart Props., Inc.; The Michigan Housing Law; MCL 554.139; MCL 125.536; MCL 125.471; Applicability of Allison v. AEW Capital Mgmt., LLP; O'Donnell v. Garasic

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sasu v. Village Park of Royal Oak, LLC

e-Journal Number: 50123

Judge(s): Per Curiam - Servitto, Cavanagh, and Stephens

 

The court held that the plaintiff adequately alleged that the defendant, by failing to repair and maintain its leaky gutter, violated statutory duties under MCL 554.139 and MCL 125.471. Although the court agreed with the trial court that the hazard was open and obvious, it reversed and remanded based on an applicable statutory duty. Plaintiff's case arose from a fall that occurred in the parking lot of defendant's premises on 3/23/08, after a storm that resulted in 4 to 6 inches of snow. At the time, her car was parked outside and was uncovered. She went outside to clean off her car. When she walked outside, she saw that both the sidewalk and parking lot were clear of snow, but there was four to six inches of snow on the grass. She went to her car, retrieved her snow brush, and cleaned off the passenger side. As she was walking around the rear of her car, she slipped and fell. She said that a patch of ice caused her fall, and described the ice patch as being two feet wide and two or three feet long. She also said it looked like the ice was running out from under her car, it was black, hard to see in the shadow of the car, and there was snow on it. She further said that she first saw the ice as she stepped on it and she was unable to stop. Plaintiff filed a complaint alleging defendant was negligent in its maintenance of the parking lot, walk ways, and gutters. She claimed that the negligence arose from breaches of statutory and common law duties. As a result of that negligence, she claimed black ice accrued on the parking lot, was not timely removed, and that the black ice caused her to fall and suffer injuries, and "severe shock, fright, and mental anguish." Plaintiff's expert opined that the temperature rose and melted the snow on the roof and if the gutter leaked it would form black ice on the surface below. Defendant moved for summary disposition, which the trial court granted concluding that the icy condition was open and obvious and the alleged gutter leak did not rise to the level of disrepair. The trial court also held that she failed to establish an applicable statutory duty. Plaintiff contended that the condition causing her fall was not open and obvious because it was invisible since it did not have snow on it. The court concluded her argument was not supported by the record. Just because she did not see the ice until she could not avoid it, did not mean that it was not visible on casual inspection. At best, her testimony showed that her failure to see the ice could be attributed to the fact it was behind her vehicle and she came in contact with it immediately after walking from the side of the vehicle. An average Michigan resident would be cautious of encountering slippery conditions. Thus, the condition was open and obvious. Plaintiff also alleged that defendant violated its statutory duties when it failed to fix the leaky gutter. Defendant offered no authority for the notion that it was not statutorily required to maintain the gutters. The court held that the alleged hazard was open and obvious, but plaintiff had adequately alleged defendant, by failing to repair the gutter, violated its statutory duty.

 

Issues: Injury while operating a power press that did not have point of operation guards; Whether a genuine issues of material fact existed as to whether defendant was the owner of the press and whether defendant owed plaintiff a duty to provide a "safe" press; Ghrist v. Chrysler Corp.; Allison v. AEW Capital Mgmt., LLP; Amerisure Ins. Co. v. Plumb; White v. Chrysler Corp. Fredericks v. General Motors Corp.; Hart v. Ludwig; Smith v. Allendale Mut. Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sparks v. Century Tool & Die, Inc.

e-Journal Number: 50090

Judge(s): Per Curiam – Wilder, Cavanagh, and Donofrio

 

Holding that no genuine issue of material fact existed as to whether the defendant owed the plaintiff a duty to ensure the press had the proper guards, the court concluded that the trial court properly granted summary disposition in favor of the defendant-Mian in this negligence action. Plaintiff, an underage employee of defendant-Century Tool & Die, severely injured his hands while operating a power press that did not have point of operation guards. Plaintiff sued defendant, alleging that defendant owned the power press and had a duty to ensure that the press had the proper point of operation guards. Later, defendant filed a motion for summary disposition, arguing that he did not own the power press - he had given it to plaintiff's employer, and it was plaintiff's employer's duty, not defendant's, to ensure that the press had the proper point of operation guards. Plaintiff argued that defendant did own the power press, not plaintiff's employer and, as set forth in Ghrist defendant had a duty to ensure proper guards were on the press. Plaintiff claimed genuine issues of material fact existed as to whether defendant was the owner of the press and whether defendant owed plaintiff a duty to provide a safe press. The court agreed with plaintiff that the trial court erred when it improperly resolved a genuine issue of disputed fact by concluding that defendant gave the press to plaintiff's employer. The court held that in light of the evidence presented, including the deposition testimony from several witnesses, reasonable minds could differ on the issue whether defendant owned the press at the time plaintiff sustained his injuries. The trial court may not make findings of fact in deciding a summary disposition motion. However, the error was harmless. Regardless of whether defendant owned the press or had formerly owned the press, defendant did not owe plaintiff a duty to ensure that point of operation guards were in place. Plaintiff's reliance on Ghrist in support of his argument that defendant owed him such a duty was misplaced. If defendant was the owner of the press, he could not be held liable for plaintiff's injuries. In light of plaintiff's employer's duties imposed by MIOSHA, it was not foreseeable to defendant that his press would be used in an unsafe manner rendering it defective. If defendant was the former owner of the press, he could not be held liable for the same reason - no duty was owed to plaintiff. Thus, whether defendant was the owner or former owner of the press, plaintiff failed to establish a genuine issue of fact showing that defendant owed him a duty imposed by law to ensure that the press had the proper point of operation guards. Contrary to plaintiff's claims, the cases of Hart and Smith were inapposite. In short, defendant did not assume a duty to plaintiff as demonstrated by an affirmative action. Like the defendant in Smith, defendant did not voluntarily and actively undertake to assist plaintiff's employer in its obligation to provide a safe place to work for its employees. Affirmed.

 

This summary also appears under Animal Law

 

Issues: Dog bite; MCL 287.351; Whether the plaintiff was a "licensee" or a "trespasser"; Stitt v. Holland Abundant Life Fellowship; Whether the defendant "impliedly consented" to plaintiff's use of his driveway; Pippin v. Atallah; "Known, customary use"; Common law claim alleging that the defendant knew his dog had a propensity to bite; Trager v. Thor; Hiner v. Mojica; Plaintiff's reliance on characteristics of a breed; Whether defendant violated the "leash law" (MCL 287.262) by allowing his dogs to roam free on his farm; "Stray" defined; Statutory interpretation; Herman v. Berrien Cnty.; Yono v. Carlson

Court: Michigan Court of Appeals (Unpublished)

Case Name: Tieman v. Grinsteiner

e-Journal Number: 50074

Judge(s): Per Curiam – Stephens, Sawyer, and K.F. Kelly

 

Holding, inter alia, that the plaintiff was properly classified as a trespasser and there was no genuine issue of material fact, the court affirmed the trial court's order granting the defendant summary disposition on plaintiff's statutory claim pursuant to MCL 287.351. The court also held that summary disposition on his common law claim was proper because there was no evidence showing a dangerous propensity "unique to the particular animal" (an Australian Shepherd), and defendant did not violate the leash law where there was no claim that his dogs were off his property. The facts were largely undisputed. On 6/24/08, plaintiff drove his vehicle up the driveway at defendant's farm. A few years earlier, he purchased straw from defendant's predecessor in interest. He did not know that the same man no longer owned the farm. When plaintiff pulled into the driveway, defendant's two dogs ran to the vehicle, barking. Defendant was not home. Plaintiff talked to the dogs from the vehicle, and thinking of the adage that "a barking dog never bites," he exited his vehicle. One of the dogs bit him on his side. As plaintiff turned and got back in his vehicle, he allegedly injured his knee. It did "not appear that the actual wound from the bite was severe." Plaintiff asserted that he intended to seek treatment for his knee, but had not yet received it when, in 9/08, he put all his weight on the knee while working with a router. The knee gave out, causing his hand to slide forward and come into contact with the router. One of his fingers was severed and two others were injured. As to plaintiff's statutory claim, he asserted that he should be classified as a licensee because defendant impliedly consented to his use of the driveway. He contended that "because defendant failed to post a sign in the driveway warning potential entrants, he acquiesced to a known and customary use of the property by the public." However, he offered "no authority for the notion that an individual cannot trespass on a driveway that lacks a warning sign." While he argued that "it is known that members of the public, such as delivery persons and people seeking directions, generally" use driveways to perform their tasks and to provide services, the court concluded that his argument would require it to "over-broadly apply the term ‘known, customary use.'" As to his common law claim, while there was no allegation that the dog previously bit anyone, he cited "defendant's deposition testimony, in which he stated that the Australian Shepherd breed as a whole tended to be protective of personal property and family." However, plaintiff's position was "not consistent with the case law addressing this topic." The Michigan Supreme Court explained in Trager that the possessor of an animal that knows "of some dangerous propensity unique to the particular animal" has a duty to control the animal. Plaintiff did not cite any case supporting "the theory that an individual dog can be considered to have a dangerous propensity merely because of its breed." As to plaintiff's leash law claim, the court concluded that it was "evident that the legislature did not intend to require an owner to leash its dog if that dog remained on the owner's property."

 

Real Property

 

Issues: Whether Mortgage Electronic Registration System (MERS) qualified under MCL 600.3204(1)(d) to foreclose by advertisement; What being the "owner . . . of an interest in the indebtedness secured by the mortgage" requires; Whether having an "interest in the mortgage" is sufficient; A "mortgage"; Citizens Mortgage Corp. v. Michigan Basic Prop. Ins. Ass'n; Whether MERS was a contractual owner of an interest in the notes based on its agreement with the lenders; Whether MERS had authority to foreclose by advertisement as the "agent" or "nominee" of the lender; Statutory interpretation; Coblentz v. City of Novi; Wickens v. Oakwood Healthcare Sys.; DiBenedetto v. West Shore Hosp.; Applicability of Jackson v. Mortgage Elec. Registration Sys., Inc. (MN); Applicability of Davenport v. HSBC Bank USA; Arnold v. DMR Fin. Servs., Inc. (After Remand); MERS v. Nebraska Dep't of Banking & Fin. (NE); Judicial foreclosure (MCL 600.3105(2)); Church & Church Inc. v. A-1 Carpentry; McKeighan v. Citizens Commercial & Sav. Bank; Cavnasser v. Bankers Trust Co.

Court: Michigan Supreme Court

Case Name: Residential Funding Co. v. Saurman

e-Journal Number: 50185

Judge(s): Young, Jr., Markman, M.B. Kelly, and Zahra; Voting to grant leave to appeal - Cavanagh, M. Kelly, and Hathaway

 

In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals in a published opinion (see e-Journal # 48625 in the 4/25/11 edition). As the Court of Appeals dissenting opinion explained, "pursuant to MCL 600.3204(1)(d), Mortgage Electronic Registration System (MERS) is the ‘owner . . . of in interest in the indebtedness secured by the mortgage' at issue in each of these consolidated cases" because "MERS' contractual obligations as mortgagee were dependent on whether the mortgagor met the obligation to pay the indebtedness which the mortgage secured." The court clarified that MERS' status as an "owner of an interest in the indebtedness" did not equate to an ownership interest in the note. Rather, "as record holder of the mortgage, MERS owned a security lien on the properties, the continued existence of which was contingent "upon the satisfaction of the indebtedness." This interest in the indebtedness - "the ownership of legal title to a security lien whose existence is wholly contingent on the satisfaction of the indebtedness - authorized MERS to foreclose by advertisement under MCL 600.3204(1)(d)." In interpreting predecessor foreclosure-by-advertisement statutes, in cases in which the mortgagee had transferred a beneficial interest, but retained record title, the court has unanimously held that "[o]nly the record holder of the mortgage has the power to foreclose; the validity of the foreclosure is not affected by any unrecorded assignment of interest held for security." The court could discern no indication that when the Legislature amended MCL 600.3204(1), it meant to establish a new legal framework in which an undisputed record holder of a mortgage, such as MERS, no longer possessed the statutory authority to foreclose.

 

Issues: Dispute over an easement; Whether the trial court properly denied the plaintiffs' motion for a preliminary injunction and sua sponte dismissed the case; Wiggins v. City of Burton; MCR 3.310(A)(4); Thermatool Corp. v. Borzym; Pontiac Fire Fighters Union Local 376 v. City of Pontiac; Al-Maliki v. LaGrant; Reed v. Reed

Court: Michigan Court of Appeals (Unpublished)

Case Name: Maghielse v. Van't Hof

e-Journal Number: 50126

Judge(s): Per Curiam - Markey, Servitto, and Ronayne Krause

 

The court held that under the circumstances the easement agreement between the parties needed further clarification and affirmed in part, reversed in part, and remanded for proceedings consistent with its opinion. Plaintiffs own a waterfront parcel on a lake and defendant owns the non-waterfront parcel directly behind plaintiffs' parcel. In 2006, the parties were involved in a legal dispute over the ownership of a piece of land that abuts the lake. They settled the lawsuit by entering into a waterfront access easement agreement where plaintiffs granted defendant access to the lake via an access easement across their property, subject to certain restrictions. Plaintiffs claimed that since 2008 defendant had continually violated the restrictions and requirements of the easement. They initiated this case seeking specific performance of the easement requirements by way of a preliminary and permanent injunction prohibiting defendant from violating the easement restrictions. Plaintiffs also sought declaratory and injunctive relief as to use of the easement in the event defendant's property is used in the future as anything other than a single family residence. The trial court held a hearing on plaintiffs' motion and not only denied the claimed violations but also dismissed the case. The court noted that in denying plaintiffs' request for an injunction, the trial court did not articulate any consideration of the four factors necessary to decide whether a preliminary injunction should issue. It was likely that the trial court treated the motion as one for summary disposition and disposed of it in defendant's favor. Plaintiffs asserted on appeal, inter alia, that the trial court erred in concluding that the easement agreement did not require that an adult be physically present with a minor to supervise the minor while he or she was using the easement area. The court held that the trial court's interpretation of the relevant part of the agreement rendered the part requiring adult supervision to be present for minors using the easement meaningless. Thus, the court decided that "present" or being at hand meant that adults were to be at hand or in attendance when minors were present in the easement and that the trial court erred in failing to apply the plain, unambiguous meaning of the contractual language. The court also held that the easement was silent as to whether dogs were allowed in the easement. Thus, the plaintiffs were incorrect in their claim that dogs were not allowed from being present in the easement, and the trial court properly held that dogs were not excluded from the easement. Plaintiffs also raised a number of other issues as to various alleged violations of the easement agreement. The court held that dismissal of plaintiffs' entire complaint without consideration of each claim was erroneous.

 

Issues: Action challenging a mortgage foreclosure by advertisement; Residential Funding Co., LLC v. Saurman

Court: Michigan Court of Appeals (Unpublished)

Case Name: Voydanoff v. Select Portfolio Servicing, Inc.

e-Journal Number: 50070

Judge(s): Memorandum – Wilder, Cavanagh, and Donofrio

 

Since defendant-Select Portfolio Servicing admitted at oral argument that Saurman was dispositive of the issues on appeal, the court reversed the trial court's order granting Select Portfolio Servicing summary disposition, vacated the foreclosure proceedings, and remanded the case to the trial court. Plaintiff sued the defendants to challenge a mortgage foreclosure by advertisement. Select Portfolio Servicing requested that the court (1) reverse the trial court's order granting it summary disposition and (2) vacate the foreclosure proceedings. The court did so.

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(c)(i), (c)(ii), (g), and (j); In re McIntyre; In re Miller; Whether the petitioner-DHS made "reasonable efforts" to reunify the family; In re HRC; Children's best interests; In re Trejo Minors; Whether the trial court should have given the respondent-father 12 months to comply with the PAA; MCR 3.976(B)(2); Court rule interpretation; CAM Constr. v. Lake Edgewood Condo. Ass'n; In re Mason; In re Rood

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Jones/Metheny

e-Journal Number: 50076

Judge(s): Per Curiam – Markey, Servitto, and Ronayne Krause

 

The court held that while the trial court clearly erred in terminating the respondent-mother's parental rights pursuant to § 19b(3)(c)(i), there was clear and convincing evidence to support terminating her rights under §§ 19b(3)(c)(ii), (g), and (j). The court also rejected the respondent-father's claim that under MCR 3.976(B)(2), the trial court should have given him 12 months to comply with the PAA. Thus, the court affirmed the trial court's orders terminating the respondents' parental rights. The condition that led to adjudication was the mother's use of meth and marijuana while she was caring for her children. "This condition did not continue to exist at the time of the termination hearing in April of 2011." However, as the case progressed and the case service plan was developed, other conditions that caused the children to come within the trial court's jurisdiction were brought to the mother's attention and services were offered to rectify them. Those conditions included the mother's "lack of stable housing, lack of steady employment, lack of stability, and poor judgment, which would have harmed the children if they had been in" her custody. While she argued that the DHS failed to make reasonable efforts to help her in finding housing and with her compliance after her youngest child was born, the court concluded that the DHS made reasonable efforts to assist her in reunifying with her children. The mother's continued association with the father prevented her from taking advantage of all the services the DHS offered her, "prevented her from seeing her children during the times she was in jail, prevented her from maintaining employment and housing, and as a result, prevented her from rectifying other conditions that caused her children to come under the trial court's jurisdiction." Further, her termination hearing testimony "provided clear and convincing evidence that she would not be able to rectify the conditions within a reasonable time considering the children's ages." She was unemployed, living on someone else's couch, still wanted to be with the father, and did not offer any plan or timeframe for reunifying with her children. As to the father, the court held that MCR 3.976(B)(2) only mandates that the trial court "conduct a permanency planning hearing within 12 months of the child's removal from the home, not that a respondent have the full 12 months to comply with the service plan" as he argued. Further, the father participated in the hearings "and was given a meaningful opportunity to comply with a case service plan." While the DHS referred him to parenting classes, a psychological evaluation, a substance abuse assessment, random drug screens, and offered him weekly visitation, he "failed to take advantage of these services and did not participate in the case service plan." The court noted that he did not explain on appeal "what he would have done with more time."

 

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