• Construction Law (1)
• Contracts (2)
• Criminal Law (5)
• Family Law (1)
• Litigation (3)
• Negligence & Intentional Tort (1)
• Real Property (3)
• Tax (1)
• Termination of Parental Rights (3)

Construction Law

 

This summary also appears under Litigation

 

Issues: Claims related to MCL 600.5839 (limitation of actions against architects, professional engineers or contractors arising from improvements to real property); Whether the three-part portable room partition (PRP) that fell on the plaintiff constituted an "improvement to real property"; Whether the trial court properly granted summary disposition (MCR 2.116(C)(7)) to defendants-Christman, Osler, and Moneo under MCL 600.5839(1)(a); RDM Holdings, Ltd. v. Continental Plastics Co.; Statutory interpretation; McCormick v. Carrier; Ostroth v. Warren Regency, GP, LLC; Miller-Davis Co. v. Ahrens Constr., Inc.; Pendzsu v. Beazer E., Inc.; Whether the PRPs were "constructively annexed to the realty"; Reames v. Hawthorne-Seving, Inc.(TX App.); Whether summary disposition was premature because further discovery was necessary; Prysak v. R L Polk Co.; Michigan Nat'l Bank v. Metro Institutional Food Serv., Inc.; Ensink v. Mecosta Cnty. Gen. Hosp.

Court: Michigan Court of Appeals (Published After Release)

Case Name: Caron v. Cranbrook Educ. Cmty.

e-Journal Number: 53337

Judge(s): Murphy, Markey, and Whitbeck

 

[This opinion was previously released as an unpublished opinion on 10/4/12.] The court held, inter alia, that the PRP that fell on the injured plaintiff was part of the original designs and plans for the construction of the art classroom addition and was actually incorporated into and placed in the addition as part of the construction project. The court also held that there could be no reasonable dispute that the project, which entailed the erection of a building, involved an improvement to real property. Thus, plaintiffs' claims were time-barred by MCL 600.5839(1)(a). The trial court properly granted defendants-Christman, Osler, and Moneo summary disposition. On 6/22/09, plaintiff-Katie Caron suffered serious injuries when a T-shaped three-part PRP fell on her as she and a graduate student attempted to move the PRP on its casters in order to expand the space in which Caron, an art instructor, was going to teach a class at Cranbrook Academy of Art. The art classroom addition was constructed as part of a larger construction project known as the New Studios Building project that was completed in the fall of 2002. The PRPs were envisioned to satisfy the ever-changing needs within the art classroom addition. In 4/10, plaintiffs sued alleging various causes of action arising out of the design, construction, sale, and architectural use and incorporation of the PRP and the accident when the PRP fell on Caron. Thus, the issue was whether the PRP that fell on her constituted "an improvement to real property" under MCL 600.5839. Given that the accident occurred in 6/09, which as plaintiffs conceded was more than "six years after the time of occupancy of the completed improvement, use, or acceptance of the improvement," the statute would bar plaintiffs' claim if the PRP constituted an "improvement to real property." The court held that the PRPs were improvements to real property, inter alia, where there was no evidence that they have ever been removed from the building or that there was a plan to someday move them to another building, and that they were "constructively annexed" to the art classroom addition. Thus, MCL 600.5839(1)(a) barred plaintiffs' claims. Affirmed.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Whether the trial court properly granted summary disposition to plaintiff-Peelman in the equitable action involving rescission of a purchase agreement for real property; Steinmann v. Dillon; BC Tile & Marble Co. v. Multi Bldg. Co.; Comerica Bank v. Cohen; Whether a genuine issue of material fact existed precluding summary disposition; Fries v. Mavrick Metal Stamping, Inc.; "Fraud in the inducement"; Johnston v. Livonia; Custom Data Solutions, Inc. v. Preferred Capital, Inc.; Samuel D. Begola Servs., Inc. v. Wild Bros.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Peelman v. Gould

e-Journal Number: 53208

Judge(s): Per Curiam - Talbot, Beckering, and M.J. Kelly

 

The court held that a genuine issue of material fact existed as to whether the defendants intended to permit plaintiff to reside on the property for the remainder of his life at the time the representation was made. Thus, the trial court erred when it granted plaintiff summary disposition. The court reversed and remanded for further proceedings. The defendants argued that the trial court erred in granting plaintiff summary disposition. The court agreed. Plaintiff filed a complaint to "set aside conveyance of real property." The record indicated that he alleged that rescission was proper based on fraud in the inducement. This "occurs where a party materially misrepresents future conduct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon." "[A]t the option of the defrauded party[,]" a contract entered into because of fraud in the inducement is rendered "voidable." Assuming arguendo that plaintiff established all of the other elements of fraud in the inducement, he failed to demonstrate that when the defendants made the representation that he could reside on the property for the remainder of his life, they knew the representation was false. Although the defendants purchased the house at a reduced price, they did not terminate plaintiff's tenancy immediately after the purchase. Rather, plaintiff resided on the property for one year after the execution of the purchase agreement, which stated that the option to reside on the property was for plaintiff only. In opposition to his motion, the defendants provided an affidavit indicating that their reason for seeking plaintiff's eviction was because there were other individuals living with him on the property in violation of the purchase agreement. Plaintiff disputed that the language of the purchase agreement limited the occupancy of the property to him only. Evidence was presented that the defendants' attempted eviction of plaintiff was based on his alleged failure to comply with the purchase agreement. Thus, a genuine issue of material fact existed as to whether the defendants intended to let plaintiff reside on the property for the rest of his life at the time the representation was made.

 

Issues: Purchase agreement (PA) for the sale of a real estate development company; Whether the PA was ambiguous; Meagher v. Wayne State Univ.; Contract interpretation; In re Egbert R. Smith Trust; Woodington v. Shokoohi; Use of dictionary definitions; Coates v. Bastian Bros., Inc.; "Sell"; "Purchase"; "Sale"; "Shall"; Ligons v. Crittenton Hosp.; Standard of review; Maiden v. Rozwood; Alan Custom Homes, Inc. v. Krol; Henderson v. State Farm Fire & Cas. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Wieder v. Spears

e-Journal Number: 53209

Judge(s): Per Curiam – Jansen, Fort Hood, and Shapiro

 

Holding that the trial court's interpretation of the parties' contract was contrary to the plain and unambiguous contract language, and the trial court erred when it entered judgment in favor of defendant, the court reversed and remanded for an entry of judgment in favor of plaintiff. In 2006, plaintiff purchased a 10% interest in M&M, a real estate development company. In late 2007, he and defendant entered into a PA for the sale of plaintiff's interest in M&M to defendant. Defendant made the first installment payment to plaintiff, and plaintiff assigned one-half of his ownership interest to defendant. However, defendant failed to make the second installment payment, so plaintiff never assigned his remaining interest to defendant. Plaintiff then filed this case. Shortly before trial, the parties agreed to submit the case to the trial court for a decision on briefs. The trial court entered an opinion and order finding in favor of defendant and dismissing plaintiff's complaint with prejudice. Defendant argued, and the trial court held, that the PA was ambiguous. However, the court held that the PA was susceptible to but one reasonable interpretation. The PA provided that "Purchaser agrees to purchase from Seller, and Seller agrees to sell to Purchaser, Seller's Membership Interest in the Company for the total amount of $105,000, plus interest." Under the unambiguous terms of the contract, plaintiff agreed "to transfer" his ownership interest to defendant "in exchange for money." Defendant agreed "to acquire by the payment of money" plaintiff's ownership interest. "The only condition on the transaction was how and when the money and ownership interest would be exchanged." The PA stated that "[t]he sale of the Membership Interest shall be completed in two installments." "Sale" means the "transfer of property for money or credit." The court noted that "shall" is a mandatory rather than a permissive term. Thus, the unambiguous terms of the contract provided for the transfer of plaintiff's membership interest for $105,000 to be completed in 2 installments. This first installment was made after the PA was executed. The only issue was the second installment. The PA provided that "[o]n or before February 29, 2008, the Seller shall deliver an Assignment for the balance of his Membership Interest to Purchaser upon Purchaser's payment of the remaining balance due hereunder, including all accrued interest to the date of payment." The court held that the PA provided for the assignment of plaintiff's remaining membership interest "upon [defendant's] payment of the remaining balance due hereunder." Plaintiff's duty to assign his membership interest was contingent upon defendant tendering payment on the remaining balance due. Nothing in the plain language of the PA made defendant's payment of the remaining purchase price conditional upon plaintiff's assignment of his membership interest. "Plaintiff's duty would only arise upon defendant's payment, which did not occur." The trial court concluded that defendant did not have an obligation to tender the second installment. However, the trial court's interpretation examined the contract terms related to the second installment in isolation from the rest of the paragraph. The court held that when those terms were read in context it was clear that the defendant had an affirmative obligation to tender payment on or before 2/29/08. He did not make the second installment payment. Thus, plaintiff retained his ownership interest in M&M. Plaintiff's retention of his ownership did not negate defendant's breach. "Defendant had an obligation to pay, and he failed to do so."

 

Criminal Law

 

Issues: Claims of ineffective assistance of counsel for inter alia choice of trial strategy and for not investigating a claim of self-defense; People v. Petri; People v. Dendel; Strickland v. Washington; People v. Jordan; People v. Seals; People v. Payne; People v. Chapo; People v. McGhee; People v. Ericksen; MRE 609; People v. Darden; "Relevant evidence"; MRE 401, 402, and 403; People v. Unger; People v. Cress; Challenges to the trial court's decision denying his request to present an attorney as an expert witness at the Ginther hearing to testify as to whether defense counsel's performance adhered to community standards and norms; People v. McDaniel; People v. Yost; Expert testimony; MRE 702; Prosecutorial misconduct; People v. Brown; People v. Dobek; People v. Dumas; People v. Fisher; Whether a record was made of various juror notes or communications between the trial court and the jury; Whether "prejudice" must be presumed in the absence of a record; People v. Metamora Water Serv.; People v. Mayfield; "Plain error"; People v. Kowalski; MCR 6.414(B); Valentine v. United States (6th Cir.); People v. France; People v. Carter; Sentencing; Whether defendant was properly sentenced as a fourth habitual offender; People v. Carines; MCL 769.12; MCL 769.13; Whether the habitual offender notice was timely filed; MCL 769.13(1); Whether defendant's prior convictions were properly established; MCL 769.13(4); MCL 769.13(5)(d) and (e)

Court: Michigan Court of Appeals (Published After Release)

Case Name: People v. Marshall

e-Journal Number: 53336

Judge(s): Per Curiam - Servitto, Fitzgerald, and Talbot

 

[This opinion was previously released as an unpublished opinion on 10/4/12.] The court held, inter alia, that giving deference to the trial court's finding that defense counsel was credible, there was no error in the trial court's determination that defense counsel was not ineffective in his choice of defense strategies. Defendant's convictions arose from the nonfatal shooting of H. Defendant argued that defense counsel was ineffective for pursuing "a strategy of defense that was chosen by him, not by the defendant, a strategy that was doomed because of his lack of preparation, investigation, and research and because it was a lie." Defendant further argued that counsel was ineffective for not investigating a claim of self-defense. At the Ginther hearing, defendant and defense counsel presented conflicting accounts of their pretrial discussions of the case and possible defense strategies. According to defense counsel, defendant told him that he shot H in self-defense during a struggle with H over the gun. Counsel, who was retained, testified that he expressed a desire to hire a private investigator and a medical expert to explore the self-defense theory, but defendant did not want to spend any more money and refused to provide the names of any witnesses or allow counsel to use that defense. Counsel explained that he thus, elected to pursue a strategy of attacking the sufficiency of the evidence and establishing reasonable doubt. According to counsel, even after he informed defendant that a "reasonable doubt" defense only had a 20 to 30% chance of success, defendant was still convinced that he could "beat" the charge because he had been acquitted of a previous shooting using that strategy. Conversely, defendant testified that he told defense counsel that the shooting occurred during a struggle between himself and H, but denied telling defense counsel what defense theory to pursue, or refusing to allow counsel to pursue a defense of self-defense. According to defendant, defense counsel told him that, based on the preliminary examination testimony, no one could identify him as being there, so he "should go with I wasn't there." The trial court's findings indicated that it credited defense counsel's testimony and found that counsel's defense strategy was objectively reasonable. The trial court had the opportunity to judge the credibility of defense counsel and defendant, and found that defense counsel's account of the events was credible. The court concluded that defense counsel was not ineffective "for failing to investigate a defense that Defendant refused to let him run." Although defendant's witnesses at the Ginther hearing testified in support of a self-defense theory, defense counsel's testimony indicated that he wanted to pursue a self-defense claim, but that defendant did not want to do so, would not provide the names of witnesses, and would not permit counsel to hire a private investigator to explore that defense. The court held that crediting defense counsel's testimony that defendant refused to cooperate in presenting a self-defense claim, counsel could not be faulted for not pursuing that defense. Without defendant's cooperation, it would have been implausible to present that defense at trial. Further, considering the conflicting and widely varied testimony elicited at the preliminary examination and at trial, the court held that it was not unreasonable for counsel to pursue a "reasonable doubt" strategy. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of the felonious assault and felony-firearm charges; People v. Kissner; People v. Hardiman; People v. Brantley; People v. Avant; People v. Johnson; People v. Harrison; Whether the verdict was against the great weight of the evidence; People v. Musser; People v. Herbert; People v. Lacalamita

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Blair

e-Journal Number: 53202

Judge(s): Per Curiam - Murphy, O'Connell, and Whitbeck

 

Viewing the evidence in the light most favorable to the prosecution and allowing for reasonable inferences based on U's testimony, the court held that there was sufficient evidence for the trial court to find that defendant assaulted A with a firearm. Further, the evidence did not preponderate so heavily against the verdict that allowing it to stand would result in a miscarriage of justice. The trial court's verdict indicated that it found U's testimony credible and that it did not believe the conflicting testimony. Thus, the court affirmed the defendant's convictions of felonious assault and felony-firearm. Defendant's convictions arose from an altercation that caused a serious brain injury to A. At the time of the altercation, A and some other people were at a house with defendant. Defendant believed that A stole drugs from him and the two began to scuffle. A third man joined the scuffle and shortly a fourth man, U, was called in to splash water on A, who was unconscious. At trial U testified that after he splashed water on A, defendant pointed a pistol at A and ordered him to leave. U also testified that A jumped or was pushed out of a closed window. A was hospitalized for more than a month and could not recall the details of the altercation. Defendant argued that the trial evidence was insufficient on the weapon element of felonious assault and felony-firearm. The court disagreed because U's testimony was sufficient to establish the weapon/firearm elements of both charges. U testified that defendant had a Glock pistol, and he pointed it at A. Although U's other testimony was somewhat confused as to whether defendant had a pellet gun, the trial court indicated that it found U's testimony credible as to whether defendant pointed a weapon at A. The trial court also specifically found that defendant had a handgun. Questions of witness credibility and weight of the evidence are for the trier of fact, not the appellate courts. The court also held that the verdict was not against the great weight of the evidence. Affirmed.

 

Issues: Self-defense; MCL 780.972(1); MCL 768.21c; People v. James; Consideration of the duty to retreat; Use of deadly force; Requirement of an "honest and reasonable belief" that the defendant or his wife was in danger of death or serious injury; People v. Conyer; People v. Goree; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Janovski

e-Journal Number: 53201

Judge(s): Per Curiam – Murphy, O’Connell, and Whitbeck

 

Concluding that the testimony supported the trial court's finding in the defendant's bench trial that the prosecution disproved defendant's self-defense claim, the court affirmed his AWIGBH conviction. The conviction arose from an altercation with defendant's neighbor's cousin, H, during which he stabbed H at least three times with a sword. Defendant went into his home to obtain the sword while H was outdoors scuffling with defendant's wife. The trial testimony established that H was unarmed during the altercation. However, there was conflicting testimony about whether the altercation was instigated by defendant or by H. The testimony also conflicted as to whether the altercation occurred on the neighbor's property or on defendant's property. Defendant asserted that he was acting in self-defense on his own property when he stabbed H. The trial court concluded that the prosecution proved beyond a reasonable doubt that defendant did not act in self-defense. The trial court first noted that defendant and H had a separate altercation less than an hour before the sword incident, during which defendant knocked H down multiple times. The trial court found that defendant could not have reasonably believed he was in danger of imminent death or serious injury, given that he "got the better of" H shortly before the sword incident. Second, H did not attack defendant, but simply walked unarmed toward him, apparently expecting a fistfight. "The trial court found that under those circumstances defendant could not have had a reasonable belief of death or serious injury." The trial court also concluded that defendant had several opportunities to retreat, but did not do so. Finally, the trial court determined that he could not have reasonably believed that his wife was in danger of imminent death or serious injury, because H was unarmed and defendant left H scuffling with his wife while he went to get his sword. Defendant's sole argument on appeal was that the trial court erred by considering the duty to retreat when he had no duty to retreat as a matter of law. The court found no error warranting reversal. Testimony indicated that during the first altercation, defendant voluntarily confronted H and pushed him to the ground at least three times. During the second altercation, defendant voluntarily came out of his home to confront H. When his wife joined the scuffle, defendant left her outside alone with H while he went back inside to retrieve his sword. As to the duty to retreat, the trial court found that H did not attack defendant on defendant's property. Having found that H did not attack defendant, "the home/curtilage exception to the duty to retreat was inapplicable as a matter of law." The trial court's other references to the duty to retreat were consistent with its general finding that defendant could not have reasonably believed he or his wife was in danger of imminent death or serious injury.

 

Issues: Prosecutorial misconduct; People v. Mann; People v. Callon; People v. Dobek; People v. Brown; Evidence of defendant's driving without insurance; MCL 500.3102; People v. Bahoda; The prosecutor's comments about the credibility of the witnesses and defense; People v. Gray; People v. Seals; Denigration of the defense; People v. Howard; The prosecution's questions to defendant as to a witness's credibility; People v. Buckey; People v. Blackmon; Ineffective assistance of counsel; People v. Sabin (On Second Remand); People v. Unger; People v. Swain; People v. Ericksen

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Macovei

e-Journal Number: 53199

Judge(s): Per Curiam - Wilder, Gleicher, and Boonstra

 

Holding that the prosecutorial comments and questions were not so unduly prejudicial as to effect the outcome or integrity of the trial and defense counsel was not ineffective, the court affirmed defendant's conviction of OUIL third offense. During the evening rush hour in 1/11, defendant's truck was the fourth vehicle in line in a five-car string rear-end collision. That afternoon, he consumed cognac and wine with P at T's home. Defendant and T testified that P drove defendant's truck when P and defendant left T's home. B drove the third vehicle in the line of colliding cars. She claimed that two men approached her immediately after the accident and one asked her not to contact the police. B indicated that the man had a foreign accent, but she could not identify him. Defendant is a Romanian immigrant with a thick accent. L drove the second vehicle in the line. She called 911 about five minutes after the crash. L testified that defendant then approached her car and asked her "in a pleading voice" not to call the police. Neither B nor L, nor the driver of the first vehicle in the line saw who was driving defendant's truck at the time of the accident. The witnesses also saw no one leave the scene on foot. Officers responding to the scene testified that defendant told them that he was driving his truck during the accident and did not mention P. Defendant had possession of the keys when a tow truck arrived. Defendant agreed to take a breath test, his BAC was 0.15 or 0.16. He was unable to recite the alphabet in English or count backward from 97 to 83, and claimed he could not stand on one foot due to back and hip pain. He did, however, walk a straight line. Defendant contended on appeal, inter alia, that the prosecutor committed misconduct by introducing evidence that defendant had driven without insurance since 2005, denigrating the defense, and bolstering his own witness's credibility. The court held that the prosecutor's improper comments and questions were brief, isolated, and were not so unduly prejudicial as to effect the outcome or integrity of the trial. The court also held that defendant's claim that his counsel was ineffective had no merit.

 

Issues: "Double jeopardy"; Whether defense counsel's request for a "mistrial" "waived" defendant's double jeopardy claim; People v. Smith; U.S. Const., Am. V; People v. Szalma; Const. 1963, art. 1, § 15; People v. Lett; People v. Tracey; Oregon v. Kennedy; People v. Kowalski

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Smith

e-Journal Number: 53218

Judge(s): Per Curiam – Murphy, O’Connell, and Whitbeck

 

Because the court determined that defendant-Smith consented to the mistrial, it held that it did not need to determine whether the trial court based its mistrial on manifest necessity. Smith's waiver extinguished any error. For these reasons, the court reversed the trial court's dismissal of the felon in possession of a firearm and felony-firearm charges against Smith, and remanded for retrial. The prosecution appealed as of right from the trial court's order dismissing charges against Smith. After the first trial court declared a mistrial, the second trial court dismissed the charges because, in the trial court's opinion, double jeopardy principles barred retrying Smith. The court held that it was very clear from the facts of this case that defense counsel did not consent to the mistrial. However, it was equally clear that defense counsel requested a mistrial. The court held that defense counsel's request waived his double jeopardy claim. The court further held that this case was "very analogous" to the court's decision in Tracey. Here, defense counsel moved the trial court to declare a mistrial. As in Tracey, Smith's rights to due process were implicated when the trial court erroneously admitted evidence. As in Tracey, the trial court sua sponte declared a mistrial because the circumstances deprived the defendant of a fair trial. And even more clearly than in Tracey, Smith expressly objected to continuing the trial. Defense counsel made a formal motion for a mistrial, arguing similar due process concerns as those that led the trial court to reconsider the motion sua sponte only five minutes later. The court further held that Smith unequivocally consented to the discontinuance of the trial. Thus, the court held that he waived his double jeopardy interests by requesting a mistrial, even though he later challenged the trial court's grant of a mistrial.

 

Family Law

 

Issues: Grandparenting time; MCL 722.27b(4); Whether the plaintiff-grandmother met her burden of establishing that the lack of grandparent visitation raised a "substantial risk of harm" to the minor child; Keenan v. Dawson; Deference to a fit parent's decision about grandparenting time; DeRose v. DeRose; The "great weight of the evidence" standard; Fletcher v. Fletcher

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hollis v. Miller

e-Journal Number: 53165

Judge(s): Per Curiam – Shapiro and Gleicher; Concurrence – Gleicher; Dissent – Ronayne Krause

 

The court held that in light of the plaintiff-grandmother's failure to present any evidence supporting that the lack of grandparent visitation raised a substantial risk of harm to the child, the trial court's finding that there was a substantial risk of harm was against the great weight of the evidence. Thus, the court vacated the trial court's order granting grandparenting time to plaintiff under MCL 722.27b(4) and remanded the case. The defendant-father and plaintiff's daughter (R) are the child's parents. They were never married. Defendant has had sole legal and physical custody of the child since the child was about two years old and a no-contact order prevents R from seeing him. However, R's family, including plaintiff, were active in his life to varying degrees until, in late 2009 or early 2010, defendant began denying plaintiff visitation. The court noted that plaintiff "was required to produce sufficient evidence that the denial of contact would result in a substantial risk of harm to the child to overcome the presumption that defendant's denial of grandparenting time would not result in a substantial risk of harm." The court concluded that the trial court did not give the required deference to defendant's decision, but rather, shifted the burden to him to justify it. Plaintiff's evidence consisted of testimony from friends and relatives. While several witnesses testified about the close relationship plaintiff and her family had with the child, "none could provide personal observations of how the later lack of contact had affected the child. Thus, these witnesses could not testify that the lack of contact with plaintiff posed a substantial risk of harm to the child." Plaintiff testified that she believed he was suffering emotional harm because he did not know why contact had ceased. However, she also admitted that she had no personal knowledge of his reaction. While her husband testified about the negative effect the lack of contact was having on the other grandchildren, he also could not state how the lack of contact affected defendant's child. Defendant presented testimony from two witnesses (the child's therapist and a doctor) that the child was not being harmed by having no contact with plaintiff and her family. "Plaintiff's entire argument was that a child needs a loving grandparent and some access to the maternal side of the family." However, if that were sufficient to overcome the presumption in favor of the defendant's decision, it was hard to imagine a case when the presumption would not be overcome. "This would not be consistent with the Legislature's decision to set up a presumption that denial of grandparenting time by a fit parent does not create a substantial risk of harm."

 

Litigation

 

This summary also appears under Real Property

 

Issues: Motion to change venue in a case arising from a residential lease agreement; Dimmitt & Owens Fin., Inc. v. Deloitte & Touche (ISC), LLC; Provider Creditors Comm. v. United American Health Care Corp.; MCL 600.1641; Shiroka v. Farm Bureau Gen. Ins. Co. of MI; Whether MCL 600.1641(2) was applicable; Statutory interpretation; State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; MCL 600.1629; "Or"; "And"; Amerisure Ins. Co. v. Plumb; The "last antecedent" rule of statutory construction; Greater Bethesda Healing Springs Ministry v. Evangel Builders & Constr. Managers, LLC; Whether MCL 600.1629(1)(a)(i) and (ii) were applicable; Massey v. Mandell; MCL 600.1629(1)(b); MCL 600.1629(1)(b)(i); MCL 600.1621(a); MCR 7.215(J)(1); Michigan Notary Public Act (MNPA); Michigan Consumer Protection Act (MCPA); Intentional infliction of emotional distress (IIED)

Court: Michigan Court of Appeals (Published)

Case Name: Angelucci v. Dart Props., Inc.

e-Journal Number: 53335

Judge(s): Donofrio, Fort Hood, K.F. Kelly

 

Although the trial court correctly determined that venue was proper in Macomb County pursuant to MCL 600.1629(1)(b)(i), MCR 7.215(J)(1) required the court to follow the rule of law announced in Provider Creditors. Thus, the court held that the trial court erred by granting the defendants' motion to change venue from Oakland County. The court explained its disagreement with Provider Creditors pursuant to MCR 7.215(J)(2), and called for the convening of a special panel in accordance with MCR 7.215(J)(3). The action arose out of a residential lease agreement that plaintiff, as the tenant, and defendant-Oak Hill II, as the landlord, executed on 12/1/10. The property is located in Macomb County. According to the lease, plaintiff's monthly rent was $635, which included a monthly concession in the amount of $125 for on-time payments. His rent was due on the first day of every month. If he failed to pay his rent by the fifth day of the month, he forfeited the monthly concession and was required to pay $125 in addition to his regular payment of $635 plus a late charge. The dispute involved whether plaintiff timely paid his 4/11 rent. Oak Hill II filed a summary proceedings action against him in district court, which was dismissed after he paid the full amount requested. Plaintiff asserted claims of negligence, violation of the MNPA, violation of the MCPA, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, IIED, and unlawful interference with a possessory interest. Defendants moved for a change of venue, arguing that venue was proper in Macomb County, where the alleged tortious acts occurred, where plaintiff resided, where Oak Hill II's registered office was located, and where all defendants except Dart Properties II and Albrough resided or had their principal offices. Defendants argued that because plaintiff pleaded multiple causes of action, some of which are based on tort, MCL 600.1641(2) applied and directed that venue be determined as set forth in MCL 600.1629, which relates to tort actions. Plaintiff argued that MCL 600.1641(2) did not apply because he was not seeking damages for property damage, wrongful death, or "personal injury" as the court interpreted that term in Provider Creditors. Thus, he contended that MCL 600.1641(1) controlled venue. Although the court believed that Provider Creditors was wrongly decided, it was constrained to follow the rule of law articulated in that case pursuant to MCR 7.215(J)(1). In the court's view, the court in Provider Creditors erred by focusing solely on the phrase "personal injury, property damage, or wrongful death" in MCL 600.1641(2). Pursuant to MCL 600.1641(2), MCL 600.1629 applies "if one of the causes of action alleged is based on tort or on 'another legal theory seeking damages for personal injury, property damage, or wrongful death . . . .'" Further, the phrase "personal injury, property damage, or wrongful death" modifies only the clause "another legal theory seeking damages" and does not modify the word "tort." Following the "last antecedent" rule, the phrase "personal injury, property damage, or wrongful death" modifies only the immediately preceding clause "or another legal theory seeking damages." Nothing in the statute indicated that the Legislature intended a different interpretation. Thus, MCL 600.1629 applies if one of the causes of action alleged is based on tort or on another legal theory that seeks damages for personal injury, property damage, or wrongful death. Applying the court's interpretation of MCL 600.1641(2) in this case, it concluded that the trial court correctly determined that venue was proper in Macomb County pursuant to MCL 600.1629(1)(b)(i). The court would affirm the trial court's order if it was not bound to follow Provider Creditors.

 

This summary also appears under Construction Law

 

Issues: Claims related to MCL 600.5839 (limitation of actions against architects, professional engineers or contractors arising from improvements to real property); Whether the three-part portable room partition (PRP) that fell on the plaintiff constituted an "improvement to real property"; Whether the trial court properly granted summary disposition (MCR 2.116(C)(7)) to defendants-Christman, Osler, and Moneo under MCL 600.5839(1)(a); RDM Holdings, Ltd. v. Continental Plastics Co.; Statutory interpretation; McCormick v. Carrier; Ostroth v. Warren Regency, GP, LLC; Miller-Davis Co. v. Ahrens Constr., Inc.; Pendzsu v. Beazer E., Inc.; Whether the PRPs were "constructively annexed to the realty"; Reames v. Hawthorne-Seving, Inc.(TX App.); Whether summary disposition was premature because further discovery was necessary; Prysak v. R L Polk Co.; Michigan Nat'l Bank v. Metro Institutional Food Serv., Inc.; Ensink v. Mecosta Cnty. Gen. Hosp.

Court: Michigan Court of Appeals (Published After Release)

Case Name: Caron v. Cranbrook Educ. Cmty.

e-Journal Number: 53337

Judge(s): Murphy, Markey, and Whitbeck

 

[This opinion was previously released as an unpublished opinion on 10/4/12.] The court held, inter alia, that the PRP that fell on the injured plaintiff was part of the original designs and plans for the construction of the art classroom addition and was actually incorporated into and placed in the addition as part of the construction project. The court also held that there could be no reasonable dispute that the project, which entailed the erection of a building, involved an improvement to real property. Thus, plaintiffs' claims were time-barred by MCL 600.5839(1)(a). The trial court properly granted defendants-Christman, Osler, and Moneo summary disposition. On 6/22/09, plaintiff-Katie Caron suffered serious injuries when a T-shaped three-part PRP fell on her as she and a graduate student attempted to move the PRP on its casters in order to expand the space in which Caron, an art instructor, was going to teach a class at Cranbrook Academy of Art. The art classroom addition was constructed as part of a larger construction project known as the New Studios Building project that was completed in the fall of 2002. The PRPs were envisioned to satisfy the ever-changing needs within the art classroom addition. In 4/10, plaintiffs sued alleging various causes of action arising out of the design, construction, sale, and architectural use and incorporation of the PRP and the accident when the PRP fell on Caron. Thus, the issue was whether the PRP that fell on her constituted "an improvement to real property" under MCL 600.5839. Given that the accident occurred in 6/09, which as plaintiffs conceded was more than "six years after the time of occupancy of the completed improvement, use, or acceptance of the improvement," the statute would bar plaintiffs' claim if the PRP constituted an "improvement to real property." The court held that the PRPs were improvements to real property, inter alia, where there was no evidence that they have ever been removed from the building or that there was a plan to someday move them to another building, and that they were "constructively annexed" to the art classroom addition. Thus, MCL 600.5839(1)(a) barred plaintiffs' claims. Affirmed.

 

Issues: Subject matter jurisdiction; Davis v. Department of Corrs.; Pontiac Food Ctr. v. Department of Cmty. Health; Interpretation of the relevant court rules; Kloian v. Domino's Pizza, LLC; Jurisdictional nature of the time limit for an appeal of right; MCR 7.204(A); Schlega v. Detroit Bd. of Zoning Appeals; Valeo Switches & Detection Sys., Inc v. Emcom, Inc.; MCR 7.101(B)(1)(b) prior to the amendments effective 5/1/12; The district court's authority to extend the filing of post-judgment motions; MCR 2.108(E); Arrington v. Detroit Osteopathic Hosp. Corp.; The circuit court's dismissal of the defendant's appeal for alleged procedural defects; MCR 7.101(C)(3); Denial of motion for reconsideration; MCR 2.119(F)(3); Request for assignment to a different judge; Bayati v. Bayati

Court: Michigan Court of Appeals (Unpublished)

Case Name: Smith v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53193

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that the district court's extension of time for the defendant to file post-judgment motions extended the time for taking an appeal to the circuit court, the court concluded that the circuit court had jurisdiction to decide defendant's appeal. Further, the court held that the circuit court improperly dismissed defendant's appeal based on noncompliance with MCR 7.101(C)(3) because the requirements of MCR 7.101(C)(3) were satisfied, and the circuit court abused its discretion in denying defendant's motion for reconsideration. The case originated in the district court. Judgment was entered on a jury verdict for plaintiff on 5/8/09. The same day, the district court entered an order "extending time for filing post-judgment motions until 21 days after the receipt of the complete trial transcript." On 9/29/09, within 21 days after receipt of the transcripts, defendant moved for JNOV or a new trial. An order denying the motion entered on 2/10/11. Defendant filed a claim of appeal in the circuit court on 3/2/11. The circuit court dismissed the appeal as not having been perfected pursuant to MCR 7.101(C)(3). The circuit court found that the file appeared not to reflect the filing of certain required documents. Plaintiff argued that the circuit court never had jurisdiction to hear the appeal because it was not timely filed. The court first concluded that "a claim of appeal to the circuit court is timely if it is filed within 21 days after the denial of a timely post-judgment motion in the district court." The court also concluded that the circuit court abused its discretion in dismissing defendant's appeal because defendant's claim of appeal was not defective. A copy of the claim of appeal, five notices of filing transcripts, and a proof of service were in the circuit court file. As to MCR 7.101(C)(3)(b), concerning an appeal bond, defendant did not file a statement with the original claim of appeal. However, the rule requires a statement specifying "when an appeal bond, if any, was filed, the amount of the bond, and the sureties." Defendant indicated that no statement was filed because no appeal bond was required. There was a stipulation waiving appeal bond, which was signed by the district court on 3/3/11. Although defendant did not file this stipulation with the appeal, it was submitted with defendant's motion to reinstate. The court concluded that "the language of the court rule did not require the filing of a statement when, as here, there was no appeal bond. The language of MCR 7.101(C)(3)(b) does not require such a statement." Thus, the court held that "the rule does not require the filing of a statement of appeal bond when the appellant is exempt from the bonding requirement, whether by stipulated waiver or otherwise." The court reversed the circuit court's denial of defendant's claim of appeal and remanded for reinstatement of that appeal. However, the court denied defendant's request to assign the appeal to a different judge.

 

Negligence & Intentional Tort

 

Issues: Injuries suffered when the injured plaintiff was knocked down by a dog; Common law "strict liability" claim; Whether the defendant-Richie's dogs had "dangerous propensities" and posed a risk of harm; Trager v. Thor; Claim that Richie's alleged violation of a county ordinance constituted negligence that proximately caused the damages; Applicability of the rules of statutory construction to ordinances; Wayne Cnty. v. Wayne Cnty. Ret. Comm'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Kibbe v. Richie

e-Journal Number: 53168

Judge(s): Per Curiam – Fitzgerald and Boonstra; Concurring in part, Dissenting in part – Meter

 

Holding that there was no basis for finding that defendant-Richie's dogs harbored abnormally dangerous propensities, and that there was no evidence to support the plaintiffs' ordinance violation claim, the court affirmed the trial court's order granting Richie summary disposition. Plaintiff-Bernard Kibbe is Richie's father. He lived across the street from her. Richie and her husband were out of town. As she had previously, Richie asked Kibbe to look after her property while she was away. Richie's grandmother looked after Richie's three dogs - a St. Bernard, a white Labrador, and a black Labrador. At approximately 8:30 AM, Kibbe drove to Richie's house to check on the property. As he drove up the driveway, he noticed the dogs running loose. He pulled his car near the garage and noticed the dogs coming up the hill behind his car. He walked around the house toward the side door of the garage. As he neared the door he was struck from behind, causing him to fall to the ground and sustain injuries. Plaintiffs' strict liability count alleged that Richie knew that her dogs had a dangerous propensity not normal to their class to knock people down. Plaintiffs alleged that in the fall of 2008 Richie was knocked down by the dogs and was injured. Plaintiffs also alleged that Richie violated the county animal control ordinance making it unlawful for a dog to run at large at any time or to attack or bite another person. They alleged that Richie's violation of the ordinance constituted negligence that proximately caused Kibbe's injuries. As to the strict liability claim, the court concluded that at most, the evidence showed that "two of Richie's three dogs were playing with each other in the yard on one occasion and in the midst of their play made contact with Richie while she was in the yard. No evidence was presented that the dogs intentionally jumped on her." Essentially, the only evidence about the dogs' behavior was the testimony of Kibbe, his wife (the other plaintiff), and Richie that the dogs are playful and that none of them had ever acted aggressively or bitten or attacked anyone. As to the ordinance violation claim, the court agreed with the trial court that "there was no evidence to support a finding that the dogs were running at large or attacked or bit another person." Contrary to plaintiffs' argument, "the ordinance's prohibition against a dog 'running at large' does not require a dog to be restrained at all times regardless of the dog's location. Had the county intended for all dogs to be restrained on an owner's property at all times, it would have stated that it shall be unlawful for 'any dog . . . to be unrestrained at any time.'" Also, the undisputed evidence showed that Kibbe was not attacked or bitten by any dog.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Motion to change venue in a case arising from a residential lease agreement; Dimmitt & Owens Fin., Inc. v. Deloitte & Touche (ISC), LLC; Provider Creditors Comm. v. United American Health Care Corp.; MCL 600.1641; Shiroka v. Farm Bureau Gen. Ins. Co. of MI; Whether MCL 600.1641(2) was applicable; Statutory interpretation; State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; MCL 600.1629; "Or"; "And"; Amerisure Ins. Co. v. Plumb; The "last antecedent" rule of statutory construction; Greater Bethesda Healing Springs Ministry v. Evangel Builders & Constr. Managers, LLC; Whether MCL 600.1629(1)(a)(i) and (ii) were applicable; Massey v. Mandell; MCL 600.1629(1)(b); MCL 600.1629(1)(b)(i); MCL 600.1621(a); MCR 7.215(J)(1); Michigan Notary Public Act (MNPA); Michigan Consumer Protection Act (MCPA); Intentional infliction of emotional distress (IIED)

Court: Michigan Court of Appeals (Published)

Case Name: Angelucci v. Dart Props., Inc.

e-Journal Number: 53335

Judge(s): Donofrio, Fort Hood, K.F. Kelly

 

Although the trial court correctly determined that venue was proper in Macomb County pursuant to MCL 600.1629(1)(b)(i), MCR 7.215(J)(1) required the court to follow the rule of law announced in Provider Creditors. Thus, the court held that the trial court erred by granting the defendants' motion to change venue from Oakland County. The court explained its disagreement with Provider Creditors pursuant to MCR 7.215(J)(2), and called for the convening of a special panel in accordance with MCR 7.215(J)(3). The action arose out of a residential lease agreement that plaintiff, as the tenant, and defendant-Oak Hill II, as the landlord, executed on 12/1/10. The property is located in Macomb County. According to the lease, plaintiff's monthly rent was $635, which included a monthly concession in the amount of $125 for on-time payments. His rent was due on the first day of every month. If he failed to pay his rent by the fifth day of the month, he forfeited the monthly concession and was required to pay $125 in addition to his regular payment of $635 plus a late charge. The dispute involved whether plaintiff timely paid his 4/11 rent. Oak Hill II filed a summary proceedings action against him in district court, which was dismissed after he paid the full amount requested. Plaintiff asserted claims of negligence, violation of the MNPA, violation of the MCPA, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, IIED, and unlawful interference with a possessory interest. Defendants moved for a change of venue, arguing that venue was proper in Macomb County, where the alleged tortious acts occurred, where plaintiff resided, where Oak Hill II's registered office was located, and where all defendants except Dart Properties II and Albrough resided or had their principal offices. Defendants argued that because plaintiff pleaded multiple causes of action, some of which are based on tort, MCL 600.1641(2) applied and directed that venue be determined as set forth in MCL 600.1629, which relates to tort actions. Plaintiff argued that MCL 600.1641(2) did not apply because he was not seeking damages for property damage, wrongful death, or "personal injury" as the court interpreted that term in Provider Creditors. Thus, he contended that MCL 600.1641(1) controlled venue. Although the court believed that Provider Creditors was wrongly decided, it was constrained to follow the rule of law articulated in that case pursuant to MCR 7.215(J)(1). In the court's view, the court in Provider Creditors erred by focusing solely on the phrase "personal injury, property damage, or wrongful death" in MCL 600.1641(2). Pursuant to MCL 600.1641(2), MCL 600.1629 applies "if one of the causes of action alleged is based on tort or on 'another legal theory seeking damages for personal injury, property damage, or wrongful death . . . .'" Further, the phrase "personal injury, property damage, or wrongful death" modifies only the clause "another legal theory seeking damages" and does not modify the word "tort." Following the "last antecedent" rule, the phrase "personal injury, property damage, or wrongful death" modifies only the immediately preceding clause "or another legal theory seeking damages." Nothing in the statute indicated that the Legislature intended a different interpretation. Thus, MCL 600.1629 applies if one of the causes of action alleged is based on tort or on another legal theory that seeks damages for personal injury, property damage, or wrongful death. Applying the court's interpretation of MCL 600.1641(2) in this case, it concluded that the trial court correctly determined that venue was proper in Macomb County pursuant to MCL 600.1629(1)(b)(i). The court would affirm the trial court's order if it was not bound to follow Provider Creditors.

 

Issues: Quiet title action; Claim that because the quitclaim deed was admitted as evidence without objection and the validity of a written, signed, witnessed, and notarized deed was presumed, plaintiff's title must be presumed valid; Beulah Hoagland Appleton Qualified Pers. Residence Trust v. Emmet Cnty. Rd. Comm'n; Chelsea Inv. Group, LLC v. City of Chelsea; Ambs v. Kalamazoo Cnty. Rd. Comm'n; Special Prop. VI v. Woodruff; MCL 565.47; MCL 565.152; Boothroyd v. Engles; Vriesman v. Ross; Foodland Distribs. v. Al-Naimi; Detroit Trust Co. v. Struggles; Challenges to the trial court's failure to address specifically the presumption of validity afforded to a written, signed, witnessed, and notarized deed

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bennett v. Kerr

e-Journal Number: 53221

Judge(s): Per Curiam – Cavanagh, Hoekstra, and Shapiro

 

Holding that the trial court did not clearly err by finding that plaintiff-Bennett failed to produce sufficient evidence demonstrating the exchange of consideration for title to the property, the court affirmed the trial court's order denying his request to quiet title to real property.  The property at issue is about 80 acres of vacant land. Bennett maintained that he purchased the property from defendant-Kerr on 6/1/03, for $10,000 in cash. Bennett recorded a quitclaim deed on 9/25/09. He filed a complaint to quiet title to the property on 11/16/11, after defendant-Bugbee, acting as guardian and conservator of Kerr, filed a notice of lis pendens and a claim of ownership of the property on 10/6/09. Bugbee is Kerr's sister, and was appointed his guardian and conservator on 5/16/07. The trial court found that there was no credible evidence that consideration, the $10,000, was paid by Bennett to Kerr. At trial, Kerr specifically testified that he did not receive $10,000 from Bennett. Also, Bennett acknowledged that the trial court would have to "take his word for it," and that there was no physical evidence of the money transfer since he allegedly paid with cash that was never in a bank and did not have Kerr sign any kind of receipt for the cash. Kerr's bank records, which were admitted as evidence during trial, did not reveal any deposit of $10,000. Further, Kerr purchased the property for $25,000, and Bugbee testified that Kerr was very attached to the property, so much so that a condition of her guardianship was not to sell the property. Kerr also specifically testified that he never sold the property to Bennett, had never seen the quitclaim deed, and that the signature purporting to be his on the deed did not exactly match his own signature. Bugbee similarly testified that the signature on the deed did not look like Kerr's signature. On appeal, Bennett argued that because the quitclaim deed was admitted as evidence without objection and the validity of a written, signed, witnessed, and notarized deed was presumed, his title must also be presumed valid. He maintained that because the deed is presumed valid, and the deed states that $10,000 was paid for transfer of title, the trial court's order denying his request to quiet title must be reversed because the trial court clearly erred by finding there was no credible evidence to demonstrate consideration was paid for the property. In light of the evidence, and keeping in mind "the trial court's superior ability to judge the credibility of the witnesses who appeared before it," the court could not conclude that the trial court clearly erred by finding that no consideration was paid for the property.

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly granted summary disposition to plaintiff-Peelman in the equitable action involving rescission of a purchase agreement for real property; Steinmann v. Dillon; BC Tile & Marble Co. v. Multi Bldg. Co.; Comerica Bank v. Cohen; Whether a genuine issue of material fact existed precluding summary disposition; Fries v. Mavrick Metal Stamping, Inc.; "Fraud in the inducement"; Johnston v. Livonia; Custom Data Solutions, Inc. v. Preferred Capital, Inc.; Samuel D. Begola Servs., Inc. v. Wild Bros.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Peelman v. Gould

e-Journal Number: 53208

Judge(s): Per Curiam - Talbot, Beckering, and M.J. Kelly

 

The court held that a genuine issue of material fact existed as to whether the defendants intended to permit plaintiff to reside on the property for the remainder of his life at the time the representation was made. Thus, the trial court erred when it granted plaintiff summary disposition. The court reversed and remanded for further proceedings. The defendants argued that the trial court erred in granting plaintiff summary disposition. The court agreed. Plaintiff filed a complaint to "set aside conveyance of real property." The record indicated that he alleged that rescission was proper based on fraud in the inducement. This "occurs where a party materially misrepresents future conduct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon." "[A]t the option of the defrauded party[,]" a contract entered into because of fraud in the inducement is rendered "voidable." Assuming arguendo that plaintiff established all of the other elements of fraud in the inducement, he failed to demonstrate that when the defendants made the representation that he could reside on the property for the remainder of his life, they knew the representation was false. Although the defendants purchased the house at a reduced price, they did not terminate plaintiff's tenancy immediately after the purchase. Rather, plaintiff resided on the property for one year after the execution of the purchase agreement, which stated that the option to reside on the property was for plaintiff only. In opposition to his motion, the defendants provided an affidavit indicating that their reason for seeking plaintiff's eviction was because there were other individuals living with him on the property in violation of the purchase agreement. Plaintiff disputed that the language of the purchase agreement limited the occupancy of the property to him only. Evidence was presented that the defendants' attempted eviction of plaintiff was based on his alleged failure to comply with the purchase agreement. Thus, a genuine issue of material fact existed as to whether the defendants intended to let plaintiff reside on the property for the rest of his life at the time the representation was made.

 

Tax

 

Issues: The Single Business Tax (SBT)(MCL 208.1 et seq.); The Michigan Business Tax (MBT) Act (MBTA)(MCL 208.1101 et seq.); Interpretation of MCL 208.1503; MCL 208.1503(1); MCL 208.1513 and MCL 208.152; "Elect"; Statutory interpretation; Farrington v. Total Petroleum, Inc.; The "in pari materia" rule; Michigan Deferred Presentment Servs. Ass'n, Inc. v. Commissioner of the Office of Fin. & Ins. Regulation; Beznos v. Department of Treasury; Tyler v. Livonia Pub. Sch.; The Department of Treasury's authority to issue revenue administrative bulletins (RABs); MCL 205.3(f); Requirement that an RAB be adopted under the Administrative Procedures Act (MCL 24.201 et seq.) in order to have the force of law; Catalina Mktg. Sales Corp. v. Department of Treasury; RAB 2007-5; Whether MCL 208.152 "is not susceptible to a plain meaning interpretation" in order to ascertain legislative intent; Alleged creation of an implied tax exemption; In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38; Guardian Indus. Corp. v. Department of Treasury; Manske v. Department of Treasury; Claim that if MCL 208.1503 does not require consistency in the methods of filing the final SBT and initial MBT returns MCL 208.1503 must be stricken from the MBTA because it violates the Constitution's uniformity guarantee; 1963 Const., art. 9, § 3; "Standing"; Manuel v. Gill; Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ.; MCR 2.605(A)(1); Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ. (On Remand); MCL 205.1(1); "Rational-basis" review; TIG Ins. Co. v. Department of Treasury; Crego v. Coleman; Corporate income tax (CIT)

Court: Michigan Court of Appeals (Unpublished)

Case Name: P & M Holding Group, LLP v. Department of Treasury

e-Journal Number: 53212

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

Holding, inter alia, that the trial court correctly interpreted MCL 208.1503, the court affirmed the trial court's order granting plaintiff-P & M Holding Group's (P & M) motion for reconsideration and denying the defendant-Department of Treasury's motion for reconsideration. P & M is a fiscal year taxpayer whose fiscal year begins on 7/1 and ends on 6/30 of the next year. On 1/1/08, Michigan transitioned from using the SBT to the MBT. For the tax period beginning 7/1/07 and ending 12/31/07, P & M filed a short year SBT return using the "actual method." At the same time, P & M filed a short year MBT return for the tax period beginning 1/1/08 and ending 6/30/08, using the "annual method." The Department notified P & M that it was voiding its MBT return because P & M's final SBT and initial MBT were filed using different filing methods. It advised P & M that the filing methods for its final SBT and initial MBT had to match, and requested that P & M submit its initial MBT return "correcting the filing method." P & M filed a complaint for declaratory judgment requiring the Department to accept its MBT return as originally filed. After initially affirming the Department's assessment of taxes due, the trial court granted P & M's and denied the Department's motion for reconsideration and ordered the Department to refund the amount paid by P & M, plus statutory interest. The trial court affirmed that RAB 2007-5 was non-binding, but held that it erred in finding that P & M had to use the annual method to calculate its final SBT because the parties agreed that using the actual method was proper. The trial court also concluded that the uniformity guarantee in the Michigan Constitution was not violated by MCL 208.1503 because the purpose of providing the taxpayer with two choices for calculating its initial short year MBT met the rational basis standard of review. The court concluded on appeal that MCL 208.1503(1) does not apply to all taxpayers equally. "Rather, it applies to taxpayers whose tax year will end before the calendar year, or whose first tax year will be less than 12 months." It appears to primarily apply to fiscal year filers. The statute states that the taxpayer "may elect to compute tax . . . in accordance with 1 of the following methods[.]" The court concluded that the statute "does not indicate that the method elected by the taxpayer must be the same method as was used by the taxpayer when computing its final short year SBT return. Because the statute clearly provides the applicable taxpayers with an unconditional choice of methods for their initial short year MBT return," the court would "not speculate about the probable intent of the Legislature beyond the language expressed in the statute." The Department appeared to assert that the Legislature's intent that taxpayers were to use the same accounting method for their final SBT and initial MBT returns was supported by the statute addressing the transition from the MBT to the CIT, which occurred on 1/1/12. However, because the consistency requirement was not included in MCL 208.1503, it should not be included in its interpretation. The court was not persuaded by the Department's argument that when MCL 208.1503 is read in conjunction with MCL 208.1513 and MCL 208.152, it is clear that the Legislature intended the interpretation of MCL 208.1503 to include a consistency requirement. Because the court found that MCL 208.1503 was not ambiguous, the Department's in pari materia argument failed.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; Harmless error; In re Powers Minors; Child's best interests; Reasonable accommodations for parents with disabilities under the Americans with Disabilities Act (ADA)(42 USC § 12101 et seq.); In re Terry

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Carl

e-Journal Number: 53178

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

The court held that there was clear and convincing evidence that most of the conditions leading to adjudication remained and that there was no reasonable likelihood the conditions would be rectified within a reasonable time considering the child's age. Further, the trial court did not clearly err in finding that terminating the respondent-mother's parental rights was in the child's best interests, and respondent failed to timely raise her failure to accommodate claim. Thus, the court affirmed the trial court's order terminating her parental rights. The conditions that led to adjudication were respondent's "history of prostitution, long-term history of substance abuse, inability to maintain stable housing, and lack of medical attention given to the minor child." During the 19 months that this case was open, respondent failed to obtain stable housing and continued to engage in prostitution and use marijuana. Although she managed to secure housing for 5 months, during the other 14 months, she lived in 11 different locations and was homeless twice. Also, three months prior to the termination hearing, she was arrested for "commercializing sex." Respondent was currently awaiting trial on a 2009 solicitation charge and owed court costs from a 2009 solicitation plea. Further, even though she admitted that using marijuana was counterproductive to her mental health, she continued to smoke marijuana until a week before the trial. As to respondent's challenge to the trial court's findings that §§ 19b(3)(g) and (j) were established by clear and convincing evidence, the court noted that any error was harmless since the trial court properly found that termination was warranted under § 19b(3)(c)(i). Respondent also argued that the trial court erred in terminating her rights because she was not offered reasonable accommodations in light of her bipolar disorder and severe psychosis, which constituted a violation of the ADA. The court held in Terry that the DHS must make reasonable accommodations for parents with disabilities, but it also stated that "a parent may not raise violations of the ADA as a defense to [the] termination of parental rights . . . ." An aggrieved parent "must timely raise the failure to accommodate when the 'service plan is adopted or soon afterward.'" Where, as here, a parent does not timely raise the issue, "her sole remedy for an alleged failure to provide reasonable accommodations is 'to commence a separate action under the ADA.'"

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Conley; Children's best interests; In re Trejo Minors; Consideration of the effect of the children's placement with relatives in making the best interests determination; In re Mason; In re Mays; In re Olive/Metts

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Coote

e-Journal Number: 53172

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

The court held that the trial court did not clearly err in finding that §§ 19b(3)(c)(i), (g), and (j) supported terminating the respondent-mother's parental rights, and that terminating her parental rights was in the children's best interests. However, the trial court clearly erred by failing to explicitly consider the children's placement with maternal relatives in making its best interests determination. Thus, the court vacated the termination order and remanded for further consideration of the best interest factors. "The principal conditions that led to adjudication were respondent's alcoholism and mental instability. These conditions were not rectified at the time of the termination proceeding, which was more than 182 days after the initial dispositional order." Respondent did not dispute that the conditions that led to adjudication continued to exist. Rather, she argued that she could rectify these issues within a reasonable period of time. The court disagreed, noting that even before the petitioner-DHS filed a protective proceedings petition, "respondent had a history of becoming intoxicated and threatening suicide, sometimes in the presence of her children." She was offered services for over a year, but she made inconsistent progress. She went through periods where she maintained sobriety and participated in services. But she would become stressed and return to abusing alcohol. "For respondent, the children were a significant source of stress." She testified that she would likely relapse if they were returned to her care because of the stress involved in caring for them. The court concluded that while respondent showed a desire to maintain sobriety, she did not show an ability to do so. Thus, the trial court's findings as to § 19b(3)(c)(i) were not clearly erroneous. Further, "a respondent's persistent struggles with alcohol abuse also are grounds for termination under § 19b(3)(g)." The court also concluded that respondent's inability to maintain sobriety, especially when caring for the children, established a reasonable likelihood that they would be harmed if returned to her care. Thus, the trial court also did not clearly err in finding that § 19b(3)(j) was established. Further, evidence supported the trial court's finding that terminating respondent's parental rights was in the children's best interests. However, pursuant to Mason, "children's placement with relatives is an 'explicit factor to consider in determining whether termination was in the children's best interests' when considering a termination" under §§ 19b(3)(c)(i) and (g). "A trial court's failure to consider the children's placement with relatives in making its termination decision renders the factual record 'inadequate' for appellate review." Under Olive/Metts, a trial court must also consider the children's placement with relatives in making a best interest determination after § 19b(3)(j) is established. Affirmed in part, vacated in part, and remanded.

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (b)(ii), (g), (h), and (j); Whether the trial court properly held that termination was in the children's best interests; In re Trejo Minors; In re Foster

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ziza

e-Journal Number: 53326

Judge(s): Memorandum - Fort Hood, K.F. Kelly, and Donofrio

 

In this case where the trial court properly terminated the respondent-mother's parental rights to her children, the sole issue was whether the trial court properly found that termination was in the children's best interests. The court held that the children's best interests were well-served by the termination. The children are with their father.  According to the psychologist who performed a psychological evaluation of the family, the father appeared to be a good parent and showed no psychopathology. The father could now protect the children from their mother, who is a sexual predator. The mother pleaded guilty to child sexually abusive communication activity, distributing or promoting child sexually abusive material, accosting, enticing, or soliciting a child for immoral purposes, and using a computer to commit a crime. She was sentenced to 3.75 to 7 years' imprisonment. Respondent admitted the abuse in her criminal case but denied it at the disposition and best interest hearings, and claimed that she was merely attempting to "trap" men who demonstrated an interest in young children. Respondent conceded that the statutory bases for termination were proven by clear and convincing evidence. Thus, the trial court's obligation was to determine if termination was in the children's best interests. In making this determination, the court noted that the focus was to be on the child's present-day interests, and whether respondent would benefit from prison services was irrelevant to the trial court's present-day determination of the children's best interests. There was no information from the record that the children would benefit from a continued relationship with her. Quite the opposite was true. A psychologist who examined the children opined that their cognition "clearly had been damaged" and both urgently needed therapy and school or preschool. Without treatment they would not be resilient or resistant to stress. Both saw the world as a "very scary place." The doctor believed that the children were "very fragile" and "in need of exceptionally good care." They were damaged and were functioning below their potential. Although they had special needs, they were "very remediable." He also testified that they would be harmed by contact with their mother, if she did not address her issues. The doctor's evaluation of the mother indicated that she would not likely address her issues. He believed that she would not only place her needs before the children's needs but she would likely use her children to satisfy her own needs. She has significant underlying pathology and emotional issues that she hid or refused to address and would be noncompliant with any type of treatment. She was diagnosed with narcissistic personality disorder and continued to believe that she did nothing wrong. Given the "horrific" circumstances of the case, and the needs of the children, the trial court did not clearly err in finding that termination of respondent's parental rights was in the children's best interests. Affirmed.

 

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