• Business Law (1)
• Contracts (1)
• Criminal Law (5)
• Election Law (1)
• Family Law (1)
• Insurance (1)
• Litigation (1)
• Negligence & Intentional Tort (2)
• Recreation & Sports Law (1)
• Tax (1)
• Termination of Parental Rights (2)

Business Law

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly entered judgment for plaintiffs on the contract count and granted defendants' motion for summary disposition as to the remaining counts of the complaint; MCR 2.115(B); Belle Isle Grill Corp. v. Detroit; Davidson v. General Motors Corp.; Contract damages; Farm Credit Servs., PCA v. Weldon; Schenburn v. Lehner Assocs., Inc.; Conversion; Foremost Ins. Co. v. Allstate Ins. Co.; Head v. Phillips Camper Sales & Rental, Inc.; Echelon Homes, LLC v. Carter Lumber Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gappy v. North Am. Funding Group, LLC

e-Journal Number: 44329

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

 

Concluding the plaintiffs properly prevailed on their contract claim and the only count which did not merely duplicate the remedies available to them for breach of contract was the conversion count which had no merit, the court held the trial court did not err in finding plaintiffs were not entitled to further relief. The parties entered into an agreement under which defendant-NAFG would obtain financing for plaintiffs' development project. Plaintiffs paid a $22,970 commitment fee. When defendants were unable to find satisfactory financing, plaintiffs sued them alleging, inter alia, breach of contract and conversion. Plaintiffs moved for partial summary disposition on the breach of contract count arguing defendants failed to secure financing as required by the contract, but kept the commitment fee even though plaintiffs were not in breach. The trial court granted the motion finding the contract language unambiguously provided defendants were to provide the funding for the project either directly or indirectly through a third-party lender. The trial court noted although the contract provided "retainer earned upon receipt," the loan proposal agreement stated NAFG could keep the retainer only if it successfully obtained financing and plaintiffs chose to go elsewhere for funding. Because NAFG failed to provide funding and came up with no more than another proposed brokerage arrangement, defendants were not entitled to retain the fee. On appeal, plaintiffs argued, inter alia, the trial court improperly struck their remaining claims and moved for reconsideration. The trial court quoted MCR 2.115(B) and dismissed the remaining claims. It appeared the trial court found no factual support for plaintiffs' allegations as to the other claims, and opined they had already been granted their remedy. Plaintiffs did not dispute they won their contract claim, but asserted they were seeking damages beyond the $22,970, including lost business expectations. However, they had the opportunity to prove those damages when they litigated the breach of contract claim, and did not argue on appeal the trial court's decision on that count was inadequate. Affirmed.

 

Contracts

 

This summary also appears under Business Law

 

Issues: Whether the trial court properly entered judgment for plaintiffs on the contract count and granted defendants' motion for summary disposition as to the remaining counts of the complaint; MCR 2.115(B); Belle Isle Grill Corp. v. Detroit; Davidson v. General Motors Corp.; Contract damages; Farm Credit Servs., PCA v. Weldon; Schenburn v. Lehner Assocs., Inc.; Conversion; Foremost Ins. Co. v. Allstate Ins. Co.; Head v. Phillips Camper Sales & Rental, Inc.; Echelon Homes, LLC v. Carter Lumber Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gappy v. North Am. Funding Group, LLC

e-Journal Number: 44329

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

 

Concluding the plaintiffs properly prevailed on their contract claim and the only count which did not merely duplicate the remedies available to them for breach of contract was the conversion count which had no merit, the court held the trial court did not err in finding plaintiffs were not entitled to further relief. The parties entered into an agreement under which defendant-NAFG would obtain financing for plaintiffs' development project. Plaintiffs paid a $22,970 commitment fee. When defendants were unable to find satisfactory financing, plaintiffs sued them alleging, inter alia, breach of contract and conversion. Plaintiffs moved for partial summary disposition on the breach of contract count arguing defendants failed to secure financing as required by the contract, but kept the commitment fee even though plaintiffs were not in breach. The trial court granted the motion finding the contract language unambiguously provided defendants were to provide the funding for the project either directly or indirectly through a third-party lender. The trial court noted although the contract provided "retainer earned upon receipt," the loan proposal agreement stated NAFG could keep the retainer only if it successfully obtained financing and plaintiffs chose to go elsewhere for funding. Because NAFG failed to provide funding and came up with no more than another proposed brokerage arrangement, defendants were not entitled to retain the fee. On appeal, plaintiffs argued, inter alia, the trial court improperly struck their remaining claims and moved for reconsideration. The trial court quoted MCR 2.115(B) and dismissed the remaining claims. It appeared the trial court found no factual support for plaintiffs' allegations as to the other claims, and opined they had already been granted their remedy. Plaintiffs did not dispute they won their contract claim, but asserted they were seeking damages beyond the $22,970, including lost business expectations. However, they had the opportunity to prove those damages when they litigated the breach of contract claim, and did not argue on appeal the trial court's decision on that count was inadequate. Affirmed.

 

Criminal Law

 

Issues: Docket No. 290688 (grant of new trial) - Whether the trial court properly granted defendant a new trial on the basis of its conclusion he did not have the effective assistance of counsel at trial; Strickland v. Washington; Bell v. Cone; People v. Toma; People v. LeBlanc; People v. Grant; "Self-defense' theory; People v. Riddle; People v. Krysztopaniec; Failure to object to improper prosecutorial conduct; People v. Dalessandro; People v. Abraham; Docket No. 284953 (original trial) - Prosecutorial misconduct; People v. Brown; Shifting the burden of proof; People v. Fields; Fisher v. United States; People v. Tesen; People v. Stanaway; People v. Reid; People v. Fortson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Anderson

e-Journal Number: 44316

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The court concluded, in this case where the defendant was convicted of assault with intent to do great bodily harm less than murder, felony-firearm, felon in possession, and second-degree murder, the trial court did not err in granting defendant's motion for a new trial, the prosecutor engaged in misconduct by improperly soliciting testimony about defendant's trial counsel's discussions with the police about evidence and argued to the jury it could draw improper inferences from those discussions. However, in light of the court's opinion in Docket No. 290688, the court declined to determine as moot whether the misconduct would independently warrant a new trial. The court affirmed in Docket No. 290688 and dismissed the appeal in Docket No. 284953. The court held in Docket No. 290688 defense counsel's decision to pursue a self-defense theory without recommending defendant testify on his own behalf -- especially in light of the evidence -- fell below an objective standard of reasonableness under the prevailing professional norms and there was a reasonable probability "that but for this error," the outcome would have been different. Thus, the trial court did not err in concluding defendant did not receive the effective of counsel and ordering a new trial on this basis. Further, even if the court were to conclude defense counsel's deficient handling of defendant's defense did not itself warrant a new trial, it would still conclude he was deprived of the effective assistance of counsel on the basis of the cumulative effect of the other deficiencies in his representation of defendant and would still agree with the trial court's decision to order a new trial. The trial court did not abuse its discretion in ordering a new trial based on ineffective assistance of counsel. In Docket No. 284953, the court agreed with defendant the prosecutor engaged in misconduct, but declined to consider whether the misconduct affected his substantial rights. The trial court properly ordered a new trial. For this reason, even if the court concluded the prosecutor's misconduct was harmless, it could not affirm defendant's conviction. Similarly if the court concluded the misconduct was not harmless, any relief it might grant would be cumulative. Thus, the court admonished the prosecutor to refrain from repeating the misconduct on retrial and dismissed as moot the appeal in Docket No. 284953.

 

Issues: Docket No. 286422 - Defendant-Carroll's ineffective assistance of counsel claim; Whether defense counsel was ineffective for not objecting or having her jury removed during the codefendant's counsel's questioning of an officer about a statement she made during the execution of the search warrant; People v. Effinger; People v. Johnson; Harris v. New York; People v. Rodgers; People v. Stewart; Whether her sentence was cruel and unusual; People v. Conley; People v. Broden; People v. Terry; Docket No. 286423 - Defendant-Portis' claim the evidence was insufficient to sustain his convictions where there was no evidence he possessed the drugs or weapon found in Carroll's home; People v. Wolfe; People v. Nowack; Aiding and abetting; People v. Lawton; People v. Carines; "Constructive" possession; People v. Konrad; People v. Fetterley; People v. Burgenmeyer; Prosecutorial misconduct; People v. Bahoda; People v. Stanaway; People v. Long; Curative instruction; People v. Haywood; Sentencing; Whether the information in the PSIR was accurate; People v. Thompson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Carroll

e-Journal Number: 44326

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

Holding, inter alia, defendant-Carroll failed to overcome the presumption defense counsel's handling of the statement she allegedly made to the police during the execution of the search warrant constituted effective assistance of counsel, the court affirmed her convictions of drug possession and felony-firearm. Following a joint trial before separate juries, both defendants were convicted of possession with intent to deliver 450 or more but less than 1,000 grams of cocaine, possession of marijuana, and felony-firearm. Carroll argued on appeal her counsel was ineffective for failing to object or have her jury removed when the codefendant's counsel questioned an officer about a statement Carroll allegedly made to the police during the execution of the search warrant. The officer testified during the search, she directed them to the drugs and gun in the master bedroom. The officer did not include the statement in the police report, or disclose it to the prosecutor until shortly before trial. The statement was discussed during a hearing on her motion to sever. The prosecutor admitted the statement was not admissible as substantive evidence, but argued it could be used for impeachment if Carroll testified and denied any knowledge of the drugs and gun. The trial court ruled the statement could be considered for impeachment. The officer testified in the prosecution's case-in-chief before Carroll testified in her own defense. The codefendant's counsel cross-examined the officer about the statement and defense counsel did not object. The officer acknowledged he was wrong in not including the statement in his report. During Carroll's testimony, she denied any knowledge of the drugs and gun, and denied making a statement to the police. The record indicated the defense strategy was for her to testify and deny any awareness of the drugs and gun. Thus, her statement directing the police to the drugs and gun would have been admissible for impeachment. Given she intended to testify, thus opening the door to the admission of the challenged statement as impeachment evidence, attacking the reliability of the statement became a crucial part of the defense strategy. Defense counsel tried to use the facts related to the statement to discredit the police officers raising questions about their claim she told them about the drugs and gun. Her counsel's decision to discuss the statement in this context, during the officers' testimony, had a purpose of both removing the sting of the statement and undermining the reliability of the police investigation. The fact the strategy did not work did not constitute ineffective assistance of counsel. The court also held the other issues raised by defendants had no merit.

 

Issues: Other acts evidence; People v. Aldrich; People v. Farquharson; MRE 801(d)(2)(A); People v. Kowalak; Whether the out-of-court statements threatening to inform the police of defendant's whereabouts were inadmissible under MRE 804(b)(6); People v. Jones; Whether the statements were inadmissible under MRE 403; People v. Murphy (On Remand); People v .Ortiz; Whether defendant was denied a fair trial because a defense witness was denied the opportunity to change out of his prison clothes into civilian clothes; People v. Banks; People v. Lee; Estelle v. Williams; Prosecutorial misconduct; People v. Brown; People v. Schumacher; People v. Thomas; People v. McGhee; People v. Morton; Sufficiency of the evidence to support defendant's second-degree murder conviction; People v. Cline; People v. Wilkens; People v. Smith;  People v. Goecke; People v. Carines

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Pippen

e-Journal Number: 44325

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The trial court properly admitted evidence relating to the murders of T and W because the statements were admissible under MRE 801(d)(2)(A) where defendant made the statements, and the statements were offered against him. His convictions arose from the shooting death of H. While standing outside, H was shot in the head. Minutes before he was shot, J saw H talking with defendant and A. After H was shot, J observed defendant running away with a gun in his hand. Defendant claimed statements made by him, and overheard by JT about "taking care" of or "knocking off" W were not admissible under MRE 801(d)(2)(A). His statements of wanting to "take care" of or "knock off" W met the requirements of MRE 801(d)(2)(A)). Defendant's convictions of being a felon in possession of a firearm, felony-firearm, and second-degree murder were affirmed.

 

Issues: "Other acts" evidence; MRE 404(b); People v. Knox; People v. Pipes; MRE 403; People v. Ortiz; Sentencing; Scoring of OV 3; People v. Houston; Paige v. Sterling Heights; Right to confrontation; People v. Buie; Waiver; People v. Lawson; People v. Johnson; People v. Carter; Whether the trial court properly denied defendant's motion for directed verdict on the first-degree murder charge; People v. Taylor; People v. Abraham; Prosecutorial misconduct; People v.  Rodriguez; People v. Thomas; People v. Ackerman; People v. Schumacher; Ineffective assistance of counsel; People v. Davis; Strickland v. Washington; People v. LeBlanc; People v. Davenport

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Powe

e-Journal Number: 44323

Judge(s): Per Curiam - Shapiro, Jansen, and Beckering

 

Since the defendant's personal use of marijuana was relevant to the prosecutor's theory of the case and he failed to show this evidence posed a danger of unfair prejudice, the court held, inter alia, the admission of the "other acts" evidence was proper to show he had a motive to steal the duffle bag full of marijuana from the victim. Defendant contended he was denied a fair trial because of the introduction of damaging irrelevant evidence he regularly smoked marijuana where his marijuana habits were not relevant to the charged crimes of murder and felony-firearm. Other acts evidence may be admissible under MRE 404(b) for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, or plan. Here, it tended to show his motive. There was other testimony he was seeking to "cop" some marijuana from the victim. The evidence of his marijuana use put his need to acquire marijuana in context for the fact-finder. In fact, the prosecutor, in her pursuit of a first-degree murder conviction, used the theory the defendant premeditated the victim's murder in order to obtain the marijuana for free. Thus, his personal use of marijuana was relevant to that theory. The court concluded defendant failed to show how this evidence posed a danger of unfair prejudice. It was implausible a fact-finder, let alone a judge in a bench trial, would be swayed to convict defendant of second-degree murder because he previously committed the misdemeanor offense of using marijuana. The court also held none of defendant's other claims had merit. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's convictions for second-degree murder; People v. Wilkens; People v. McKinney; People v. Wolfe; People v. Hardiman; People v. Fletcher; People v. Mendoza; People v. Wofford; People v. Carines; Self-defense; People v. Riddle; People v. Kemp; People v. Fortson; Motion for a directed verdict on the first-degree murder charge; People v. Gillis; People v. Lemmon; People v. Mehall; People v. Peña; People v. Plummer; People v. Abraham; People v. McRunels; People v. Ortiz; Jury instruction relating to voluntary manslaughter; People v. Dobek; People v. McGhee; People v. Aldrich; People v. Cornell; People v. Sullivan; People v. Pouncey; Whether the trial court's admonitions to defense counsel and defendant pierced the veil of judicial impartiality and denied defendant a fair trial; MCL 768.29; People v. Taylor; People v. Conley; People v. Paquette

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Price

e-Journal Number: 44322

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The prosecution presented sufficient evidence for a rational trier of fact to conclude, beyond a reasonable doubt, (1) defendant caused R's death with malice, (2) defendant's asserted belief the use of deadly force was necessary was dishonest or unreasonable under the circumstances, and (3) the prosecution presented sufficient evidence for a rational trier of fact to conclude defendant committed second-degree murder. Viewing the evidence in a light most favorable to the prosecution, and according to defendant's trial testimony, he used a firearm to shoot the victim, R, in the back. Dr. H, the assistant medical examiner who performed the autopsy on R, testified R's death was the result of a single gunshot wound to the back. A reasonable trier of fact could have reasonably inferred defendant acted with malice from defendant's use of a firearm to shoot R. Thus, the prosecution presented sufficient evidence for a rational trier of fact to conclude, beyond a reasonable doubt, defendant caused R's death with malice. Viewing the evidence in a light most favorable to the prosecution, defendant shot R in the back as R and his cousin, T, walked toward their vehicle intending to leave the scene and withdraw from the verbal altercation between R and defendant's girlfriend, L. Neither T, D, nor R threatened defendant or L with their words (i.e. threatening to harm defendant) or a weapon. From this evidence, a rational trier of fact could conclude, beyond a reasonable doubt, defendant did not "honestly and reasonably believe that he [was] in imminent danger of death or great bodily harm and that it [was] necessary for him to exercise deadly force." Defendant admitted if he felt he was in danger, he "could have gone in the gas station." Even if defendant's testimony was taken as true, his act of shooting R in order to prevent R from obtaining a weapon defendant claimed R could have had, would have been a "preemptive strike."Affirmed.

 

Election Law

 

This summary also appears under Litigation

 

Issues: Claim related to the Michigan Campaign Finance Act (MCFA)(MCL 169.201 et seq.); Whether the trial court properly held it lacked subject matter jurisdiction and dismissed the case; Etefia v. Credit Techs., Inc.; Statutory analysis; In re Petition of Attorney Gen. for Investigative Subpoenas; Fieger v. Cox; MCL 169.221(1)-(6); MCL 169.222; MCL 169.226; Corporate contributions; MCL 169.254(1); Civil and criminal penalties; MCL 169.221(13); MCL 169.233(8); MCL 169.266(4); MCL 169.204(3)(a); Whether a county prosecutor may enforce the MCFA's criminal penalty provisions despite the fact the Secretary of State had already initiated civil proceedings resulting in a civil fine; "Chief election" officer; MCL 168.21; MCL 169.215(10)-(11); Bloomfield Charter Twp. v. Oakland County Clerk; People v. Hill; Macomb County Prosecutor v. Murphy; The prosecutor's duties; Genesee Prosecutor v. Genesee Circuit Judge; MCL 49.153; MCL 168.31(1); Saginaw Pub. Libraries Bd. of Comm'rs v. 70th Dist. Court Judges; OAG, 1999-2000, No. 7040, p 82 (Dec. 9, 1999); MCFA §§ 15 and 54(4) criminalizing some corporate campaign contributions; Interpreting these provisions in pari materia; People v. Harper; Walters v. Leech; In re Project Cost & Special Assessment Roll for Chappel Dam; Forster v. Delton Sch. Dist.; Roberts v. Mecosta County Gen. Hosp.; Burt Twp. v. Department of Natural Res.; Whether the "Conciliation Agreement" bars both further civil proceedings and criminal enforcement of the MCFA even if initiated by the Attorney General

Court: Michigan Court of Appeals (Published)

Case Name: In re Investigative Subpoenas

e-Journal Number: 44346

Judge(s): Gleicher, Jansen, and Fort Hood

 

Holding a county prosecutor may enforce the MCFA's criminal penalty provisions even though the Secretary of State has already initiated civil proceedings resulting in a civil fine because absent a clear and unambiguous expression the Legislature intended to limit the prosecutor's authority, the court held there is no intent in MCL 169.215 to divest the trial court of jurisdiction to entertain the criminal prosecution of campaign finance law violators. Acme Township conducted an election to determine whether to recall any township trustees. About a year later, the prosecutor filed a petition in the trial court seeking authorization to issue investigative subpoenas pursuant to MCL 767A.2(1). The petition alleged the investigation centered on an alleged violation of MCL 169.254 prohibiting corporations, their agents, and others from making election campaign contributions. The trial court authorized the subpoenas, finding "reasonable cause to believe a felony has been committed and those persons who are the subject of the petition may have knowledge regarding the felony." Two subpoena recipients, respondents-Meijer, Inc and Dickinson Wright, refused to produce the requested information. The prosecutor filed a motion in the trial court to compel their compliance. They moved to quash the subpoenas and dismiss for lack of jurisdiction arguing the MCFA invests the Secretary of State with exclusive jurisdiction to investigate and enforce violations of the act, the prosecutor had no legal basis for seeking the subpoenas, and the trial court had no authority to enforce them. The trial court agreed and granted respondents' motion. The court rejected the claim that by enacting the MCFA, the Legislature intended to divest county prosecutors of their duty to investigate and prosecute election law crimes. The MCFA authorizes the Secretary of State to investigate, commence a hearing, and determine whether a civil violation occurred and may impose a civil fine. The court held there is no language in MCL 169.215 or elsewhere in the MCFA plainly conveying to the secretary a prosecutorial function, or any language attenuating the traditional enforcement powers of prosecutors. Further, the court could not detect any legislative intent the informal methods of resolving campaign finance disputes, including conciliation agreements and civil fines, should entirely substitute for the prosecution of persons who "knowingly" violate MCL 169.254. Reversed and remanded.

 

Family Law

 

Issues: Paternity action; The Paternity Act (MCL 722.711 et seq.); Barnes v. Jeudevine; MCL 722.714(1) and (8); McHone v. Sosnowski; In re KH; Aichele v. Hodge; Standing under the Child Custody Act (MCL 722.23); Whether defendant has standing because he has a constitutionally protected liberty interest due to his biological link to the child and his established relationship with the child; Hauser v. Reilly; Sinicropi v. Mazurek

Court: Michigan Court of Appeals (Unpublished)

Case Name: Beckwith v. Quinn

e-Journal Number: 44344

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The trial court properly entered an order in favor of plaintiff and the interested party-AB, dismissing plaintiff's complaint in this paternity action where the facts were clear the child was not born out of wedlock and there had been no judicial determination the child was not an issue of the marriage. Defendant argued the trial court erred by dismissing plaintiff's complaint based on a lack of standing. It was indisputable AB and plaintiff were married during the time the child was conceived and born. Although they were not living together for the time in which defendant and plaintiff engaged in a relationship, neither plaintiff nor AB ever took any steps to end their marriage. The allegation in plaintiff's complaint, which defendant admitted, was the child was born out of wedlock. However, the allegation was a complete misrepresentation of the known marital situation of plaintiff and AB. Further, as the trial court stated, there had been no prior judicial determination the child was not an issue of the marriage. The current state of the law in Michigan is that a putative father of a child born in wedlock has no constitutional liberty interest relative to commencing a paternity action and requesting custody or parenting time regardless of a biological connection or any parent-child relationship. The trial court's decision not to recognize standing under a theory of a due process liberty interest was not in error. Affirmed.

 

Insurance

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Priority dispute between the two defendants-insurers as to who was responsible for paying the uninsured plaintiff PIP benefits; MCL 500. 3114; Whether plaintiff was domiciled with his mother at the time of the accident and had no-fault PIP benefits through her insurer (defendant-State Farm); "Domicile"; Henry v. Henry; Fowler v. Automobile Club Ins. Ass'n; Beecher v. Common Council of Detroit; Goldstein v. Progressive Cas. Ins. Co.; Dairyland Ins. Co. v. Auto-Owners Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Teeple v. Pioneer State Mut. Ins. Co.

e-Journal Number: 44338

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

 

Since the circumstances of the case pertaining to the availability of no-fault PIP benefits as they were related to the plaintiff's "domicile" did not rebut the prima facie conclusion he intended to reside with his girlfriend indefinitely, if not permanently, at the time of the accident, the court affirmed the trial court's grant of summary disposition to defendant-State Farm and denied defendant-Pioneer's cross-motion for summary disposition. The plaintiff suffered a shoulder injury while riding in a car driven by JB in September 2006. At the time of the accident plaintiff did not have a driver's license, did not own a car, and did not have automobile insurance. JB was insured by Pioneer. However, when plaintiff tried to obtain PIP benefits from Pioneer it raised the question of whether he was domiciled with his mother JT, who was insured by State Farm. The trial court held plaintiff was not domiciled with JT as of the date of the accident. Because plaintiff did not have his own insurance, the priority provisions of § 3114 determined whether Pioneer or State Farm was responsible for paying him PIP benefits. Plaintiff was 34 years old at the time of the accident and was living on a state campground in a recreational vehicle with his girlfriend, GW. They had been living there since July 2006. Before that, plaintiff lived with a friend on and off for a year in another trailer "down on the beach." He went to the area to attend a junior college and work as a construction contractor for the college and others. Prior to that, he lived with friends before going to Wisconsin for eight months to work. He said he stayed with his mother one or two weekends a month when he had visitation with his child. Plaintiff did not have a driver's license, but his tribal ID card had his mother's address and it continued to be where he received his mail. He also used the address for FOC purposes. He had not lived with his mother full time for 15 years. He used that address most of that time except when he lived with a fiancée. He testified he still used his bedroom at his mother's during visits, stored some belongings there, including tools and off-season clothing. He did not pay rent to his mother, but had to do chores around the house during his visits. He maintained he had had no intent to remain at his mother's house or reside there for many years. The testimony of his mother and girlfriend were similar to plaintiff's testimony. The court held the trial court did not err in holding plaintiff was no longer domiciled with his mother where nothing in the facts showed his clear intent to return or be domiciled there. Affirmed.

 

Litigation

 

This summary also appears under Election Law

 

Issues: Claim related to the Michigan Campaign Finance Act (MCFA)(MCL 169.201 et seq.); Whether the trial court properly held it lacked subject matter jurisdiction and dismissed the case; Etefia v. Credit Techs., Inc.; Statutory analysis; In re Petition of Attorney Gen. for Investigative Subpoenas; Fieger v. Cox; MCL 169.221(1)-(6); MCL 169.222; MCL 169.226; Corporate contributions; MCL 169.254(1); Civil and criminal penalties; MCL 169.221(13); MCL 169.233(8); MCL 169.266(4); MCL 169.204(3)(a); Whether a county prosecutor may enforce the MCFA's criminal penalty provisions despite the fact the Secretary of State had already initiated civil proceedings resulting in a civil fine; "Chief election" officer; MCL 168.21; MCL 169.215(10)-(11); Bloomfield Charter Twp. v. Oakland County Clerk; People v. Hill; Macomb County Prosecutor v. Murphy; The prosecutor's duties; Genesee Prosecutor v. Genesee Circuit Judge; MCL 49.153; MCL 168.31(1); Saginaw Pub. Libraries Bd. of Comm'rs v. 70th Dist. Court Judges; OAG, 1999-2000, No. 7040, p 82 (Dec. 9, 1999); MCFA §§ 15 and 54(4) criminalizing some corporate campaign contributions; Interpreting these provisions in pari materia; People v. Harper; Walters v. Leech; In re Project Cost & Special Assessment Roll for Chappel Dam; Forster v. Delton Sch. Dist.; Roberts v. Mecosta County Gen. Hosp.; Burt Twp. v. Department of Natural Res.; Whether the "Conciliation Agreement" bars both further civil proceedings and criminal enforcement of the MCFA even if initiated by the Attorney General

Court: Michigan Court of Appeals (Published)

Case Name: In re Investigative Subpoenas

e-Journal Number: 44346

Judge(s): Gleicher, Jansen, and Fort Hood

 

Holding a county prosecutor may enforce the MCFA's criminal penalty provisions even though the Secretary of State has already initiated civil proceedings resulting in a civil fine because absent a clear and unambiguous expression the Legislature intended to limit the prosecutor's authority, the court held there is no intent in MCL 169.215 to divest the trial court of jurisdiction to entertain the criminal prosecution of campaign finance law violators. Acme Township conducted an election to determine whether to recall any township trustees. About a year later, the prosecutor filed a petition in the trial court seeking authorization to issue investigative subpoenas pursuant to MCL 767A.2(1). The petition alleged the investigation centered on an alleged violation of MCL 169.254 prohibiting corporations, their agents, and others from making election campaign contributions. The trial court authorized the subpoenas, finding "reasonable cause to believe a felony has been committed and those persons who are the subject of the petition may have knowledge regarding the felony." Two subpoena recipients, respondents-Meijer, Inc and Dickinson Wright, refused to produce the requested information. The prosecutor filed a motion in the trial court to compel their compliance. They moved to quash the subpoenas and dismiss for lack of jurisdiction arguing the MCFA invests the Secretary of State with exclusive jurisdiction to investigate and enforce violations of the act, the prosecutor had no legal basis for seeking the subpoenas, and the trial court had no authority to enforce them. The trial court agreed and granted respondents' motion. The court rejected the claim that by enacting the MCFA, the Legislature intended to divest county prosecutors of their duty to investigate and prosecute election law crimes. The MCFA authorizes the Secretary of State to investigate, commence a hearing, and determine whether a civil violation occurred and may impose a civil fine. The court held there is no language in MCL 169.215 or elsewhere in the MCFA plainly conveying to the secretary a prosecutorial function, or any language attenuating the traditional enforcement powers of prosecutors. Further, the court could not detect any legislative intent the informal methods of resolving campaign finance disputes, including conciliation agreements and civil fines, should entirely substitute for the prosecution of persons who "knowingly" violate MCL 169.254. Reversed and remanded.

 

Negligence & Intentional Tort

 

This summary also appears under Recreation & Sports Law

 

Issues: Claims under the Roller Skating Safety Act (RSSA)(MCL 445.1721 et seq.); Whether the trial court properly denied the defendant's motion for summary disposition; Babula v. Robertson; MCL 445.1725 and .1726; "Roller skater" defined (MCL 445.1722(c)); "Operator" defined (MCL 445.1722(b)); Duties owed by operators (MCL 445.1723); Dale v. Beta-C, Inc.; Wright v. Plainfield Skating Rink (MI Unpub.); Assumption of the risk

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hines v. Skateland Arena

e-Journal Number: 44310

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The trial court erred in denying the defendant-skating rink's motion for summary disposition because there were no issues of fact as to whether it violated any duties owed by a roller skating center operator under MCL 445.1723. The minor plaintiff alleged he was injured in a collision with defendant's employee, KM, while skating at its roller skating rink. Defendant moved for summary disposition alleging the claim was barred by the RSSA. In support of its motion, defendant relied on plaintiff's deposition testimony where he stated the collision occurred during a game of dodge ball. According to plaintiff, KM, a floor guard, was on the rink floor monitoring a dodge ball game. Plaintiff testified he saw KM and noticed she was focused on the game. He said he stopped paying attention to KM and turned to watch the game when the two collided. Defendant contended plaintiff assumed the risk of a collision with another roller skater and thus, his claim was barred under § 1725. The trial court denied the motion concluding there was an issue of fact whether KM was negligent in causing the collision. The court held plaintiff "assume[d] the risks of obvious and necessary dangers inherent in the sport of roller skating," which included the possibility he might be injured in a "collision[] with other roller skaters." His deposition testimony indicated he was aware KM was on the rink and she was monitoring the ongoing dodge ball game. Plaintiff admitted he too was watching the game and admitted he stopped watching KM. After reviewing the evidence, the court concluded there was no genuine issue of material fact as to plaintiff's claim KM did not use good judgment while supervising the game. Thus, he failed to establish a violation of the duties prescribed in MCL 445.1723. Reversed and remanded.

 

This summary also appears under Insurance

 

Issues: Automobile negligence; Priority dispute between the two defendants-insurers as to who was responsible for paying the uninsured plaintiff PIP benefits; MCL 500. 3114; Whether plaintiff was domiciled with his mother at the time of the accident and had no-fault PIP benefits through her insurer (defendant-State Farm); "Domicile"; Henry v. Henry; Fowler v. Automobile Club Ins. Ass'n; Beecher v. Common Council of Detroit; Goldstein v. Progressive Cas. Ins. Co.; Dairyland Ins. Co. v. Auto-Owners Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Teeple v. Pioneer State Mut. Ins. Co.

e-Journal Number: 44338

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

 

Since the circumstances of the case pertaining to the availability of no-fault PIP benefits as they were related to the plaintiff's "domicile" did not rebut the prima facie conclusion he intended to reside with his girlfriend indefinitely, if not permanently, at the time of the accident, the court affirmed the trial court's grant of summary disposition to defendant-State Farm and denied defendant-Pioneer's cross-motion for summary disposition. The plaintiff suffered a shoulder injury while riding in a car driven by JB in September 2006. At the time of the accident plaintiff did not have a driver's license, did not own a car, and did not have automobile insurance. JB was insured by Pioneer. However, when plaintiff tried to obtain PIP benefits from Pioneer it raised the question of whether he was domiciled with his mother JT, who was insured by State Farm. The trial court held plaintiff was not domiciled with JT as of the date of the accident. Because plaintiff did not have his own insurance, the priority provisions of § 3114 determined whether Pioneer or State Farm was responsible for paying him PIP benefits. Plaintiff was 34 years old at the time of the accident and was living on a state campground in a recreational vehicle with his girlfriend, GW. They had been living there since July 2006. Before that, plaintiff lived with a friend on and off for a year in another trailer "down on the beach." He went to the area to attend a junior college and work as a construction contractor for the college and others. Prior to that, he lived with friends before going to Wisconsin for eight months to work. He said he stayed with his mother one or two weekends a month when he had visitation with his child. Plaintiff did not have a driver's license, but his tribal ID card had his mother's address and it continued to be where he received his mail. He also used the address for FOC purposes. He had not lived with his mother full time for 15 years. He used that address most of that time except when he lived with a fiancée. He testified he still used his bedroom at his mother's during visits, stored some belongings there, including tools and off-season clothing. He did not pay rent to his mother, but had to do chores around the house during his visits. He maintained he had had no intent to remain at his mother's house or reside there for many years. The testimony of his mother and girlfriend were similar to plaintiff's testimony. The court held the trial court did not err in holding plaintiff was no longer domiciled with his mother where nothing in the facts showed his clear intent to return or be domiciled there. Affirmed.

 

Recreation & Sports Law

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Claims under the Roller Skating Safety Act (RSSA)(MCL 445.1721 et seq.); Whether the trial court properly denied the defendant's motion for summary disposition; Babula v. Robertson; MCL 445.1725 and .1726; "Roller skater" defined (MCL 445.1722(c)); "Operator" defined (MCL 445.1722(b)); Duties owed by operators (MCL 445.1723); Dale v. Beta-C, Inc.; Wright v. Plainfield Skating Rink (MI Unpub.); Assumption of the risk

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hines v. Skateland Arena

e-Journal Number: 44310

Judge(s): Per Curiam - Hoekstra, Murray, and M.J. Kelly

 

The trial court erred in denying the defendant-skating rink's motion for summary disposition because there were no issues of fact as to whether it violated any duties owed by a roller skating center operator under MCL 445.1723. The minor plaintiff alleged he was injured in a collision with defendant's employee, KM, while skating at its roller skating rink. Defendant moved for summary disposition alleging the claim was barred by the RSSA. In support of its motion, defendant relied on plaintiff's deposition testimony where he stated the collision occurred during a game of dodge ball. According to plaintiff, KM, a floor guard, was on the rink floor monitoring a dodge ball game. Plaintiff testified he saw KM and noticed she was focused on the game. He said he stopped paying attention to KM and turned to watch the game when the two collided. Defendant contended plaintiff assumed the risk of a collision with another roller skater and thus, his claim was barred under § 1725. The trial court denied the motion concluding there was an issue of fact whether KM was negligent in causing the collision. The court held plaintiff "assume[d] the risks of obvious and necessary dangers inherent in the sport of roller skating," which included the possibility he might be injured in a "collision[] with other roller skaters." His deposition testimony indicated he was aware KM was on the rink and she was monitoring the ongoing dodge ball game. Plaintiff admitted he too was watching the game and admitted he stopped watching KM. After reviewing the evidence, the court concluded there was no genuine issue of material fact as to plaintiff's claim KM did not use good judgment while supervising the game. Thus, he failed to establish a violation of the duties prescribed in MCL 445.1723. Reversed and remanded.

 

Tax

 

Issues: Whether the plaintiffs were entitled to the "bad debt" deduction (MCL 205.54i); DaimlerChrysler Servs. N. Am., LLC v. Department of Treasury; Effect of the amendment to MCL 205.54i effective 10/1/07 (2007 PA 105); Statutory interpretation; Department of Transp. v. Tomkins; Thompson v. Thompson; Baker v. General Motors Corp.; Burden of proof for entitlement to a tax exemption; Elias Bros. Rests., Inc. v. Treasury Dep't; Rules of construction regarding taxation; Detroit v. Detroit Commercial Coll.; Whether retroactive application of the amended MCL 205.54i violated due process; Whether plaintiffs accrued "vested" rights; Detroit v. Walker; Whether the seven-year retroactive application of the amended MCL 205.54i constituted a violation of due process and the requirement retroactive legislation be limited to a modest period of retroactivity; United States v. Carlton; Summary disposition under MCR 2.116(C)(10); Hottmann v. Hottmann

Court: Michigan Court of Appeals (Published)

Case Name: GMAC, LLC v. Department of Treasury

e-Journal Number: 44347

Judge(s): Per Curiam - Fort Hood, Cavanagh, and K.F. Kelly

 

Concluding the plaintiffs' claim the Legislature, in amending MCL 205.54i (the "bad debt" deduction), intended to preserve refunds for any entity previously entitled to them pursuant to the DaimlerChrysler decision was contrary to the plain language of the statute, the court affirmed the trial court's ruling plaintiffs were not entitled to the deduction. In DaimlerChrysler, the plaintiff was held to be a taxpayer under MCL 205.54i and entitled to recover sales tax overpayments under this provision. Plaintiffs, like the plaintiff in DaimlerChrysler, provided financing for consumer motor vehicle purchases from Michigan auto dealerships, which included Michigan sales tax. They concluded they overstated their gross receipts due to bad debts. Based on the DaimlerChrysler decision, they filed sales tax refund claims on September 21, 2007 and December 20, 2007. However, the Legislature amended MCL 205.54i to limit who could be characterized as a "taxpayer" for purposes of the bad debt provision. The enacting section of the amendment (2007 PA 105) stated the amendatory act was curative and expressly provided for retroactive application. The amendment was approved and filed on October 1, 2007, and given immediate effect. The trial court granted defendant summary disposition, agreeing with defendant the plain meaning of the statutory language retroactively reversed the DaimlerChrysler ruling except as to taxpayers who had final judgments for a refund when the amendment was enacted. On appeal, plaintiffs argued, inter alia, the trial court erred in its construction of the enacting section because the plain and unambiguous language of this section provided for a refund of the sales tax. The court disagreed. The first sentence of the enacting provision showed the Legislature determined the DaimlerChrysler decision was contrary to legislative intent and the statute was amended to correct the conclusion reached by the DaimlerChrysler decision. To correct the judicial interpretation, the Legislature provided the statute was curative, "shall be retroactively applied," and expressed its intent the bad debt deduction was only available to those persons who remitted the tax. The Legislature's intent was plainly expressed, and it did "not provide for a window of opportunity" for financing companies similarly situated to the DaimlerChrysler plaintiff "to hurriedly obtain a refund that was never intended." Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Miller; The child's best interests; In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Depottey

e-Journal Number: 44337

Judge(s): Per Curiam - Shapiro, Jansen, and Beckering

 

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. Among the conditions leading to the initial adjudication were her mental health problems and her drug and alcohol use. The evidence showed respondent received services through Community Mental Health, which referred her to Consumer Services. She will require life-long psychiatric care, occasionally has problems adjusting her medications, and is not always prompt in seeking a medical review. She blamed her medications for her failure to attend various meetings and two court hearings. She also used her medication problems as an excuse to self-medicate with illegal drugs and alcohol. She requires assistance to parent a child and would likely have trouble comprehending simple documents. She would need at least six months to a year of additional therapy before she could step down to case management services and potentially be a full-time parent. Although respondent never tested positive for drugs or alcohol on the drug screens she completed during the pendency of the case, she admittedly relapsed after completing the drug court program, despite having spent nine months in an inpatient treatment facility. She failed to complete any of the three substance abuse treatment programs to which she was referred. Respondent enlisted her therapist and her grandmother's help, in blaming the DHS for her failures. Her therapist admitted respondent would need another six months to a year before she would be ready to step down to case management services. By then, the child will have been in foster care for almost three years. In light of this evidence, the trial court did not clearly err in finding the conditions that led to the initial adjudication had not been rectified and there was no reasonable likelihood they would be rectified within a reasonable time considering the child's age, thereby justifying termination under § 19b(3)(c)(i). Affirmed.

 

Issues: Termination under §§ 19b(3)(c)(i), (g), (h), and (j); In re Sours Minors; In re McIntyre; The child's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Sikorski

e-Journal Number: 44343

Judge(s): Memorandum - Talbot, O’Connell, and Davis

 

The trial court clearly erred by finding clear and convincing evidence to terminate the respondent-father's parental rights under § 19b(3)(h), but the trial court's error in terminating his parental rights under § 3(h) was harmless and he failed to contest the termination of his parental rights under §§ 19b(3)(c)(i), (g), and (j) on appeal. Respondent's earliest release date from prison was in June 2009, only two months after the termination hearing. MCL 712A.19b(3)(h) allows for termination of parental rights if a respondent is unable to provide a "normal home" for the child within two years of the termination hearing. There is too much uncertainty in potential release dates for § 3(h) to be used as a basis for terminating parental rights when a respondent inmate's earliest release date is close to the time of the termination hearing. Only one statutory ground needs to be proven in order to terminate parental rights. A review of the record showed no clear error in the trial court's finding of clear and convincing evidence to terminate his parental rights under the other sections. Affirmed.

 

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