e-Journal

The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), and the U.S. Sixth Circuit Court of Appeals (published).

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Cases appear under the following practice areas:

Administrative Law (1)
Banking (1)
Criminal Law (5)
Litigation (2)
Negligence & Intentional Tort (2)
Real Property (2)
Termination of Parental Rights (1)

Administrative Law

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Issues: Review of final order of the Public Service Commission (PSC); Const. 1963, art. 6, § 28; In re Application of Consumers Energy Co.; MCL 462.25; Michigan Consol. Gas Co. v. Public Serv. Comm'n; MCL 462.26(8); In re MCI Telecom Complaint; Statutory interpretation; In re Complaint of Rovas; Approval of continued funding for the petitioner-Consumers Energy's advanced metering infrastructure (AMI); In re Applications of Detroit Edison Co.; The Attorney General's and The Association of Businesses Advocating Tariff Equity (ABATE)'s objections to the PSC's approval of a rate decoupling mechanism (RDM) for Consumers Energy; Objections to the continued funding of the Low Income and Energy Efficiency Fund (LIEEF); In re Application of MI Consol. Gas Co. to Increase Rates

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Application of Consumers Energy Co. to Increase Rates

e-Journal Number: 53231

Judge(s): Per Curiam – Borrello, Fitzgerald, and Owens

The court held, inter alia, that the PSC's continuation of funding for the AMI program had a sufficient evidentiary basis. The Attorney General and the ABATE appealed a PSC order authorizing petitioner-Consumers Energy to adopt a RDM, and to include $26,536,000 in funding for the LIEEF as an operation and maintenance expense. ABATE also appealed the order's approval of Consumers' allocation of certain costs between different retail rate classes, and approval of continued funding for Consumers' AMI program. ABATE argued that there was insufficient evidence of the program's costs and benefits, or that the new technology was necessary for the continued provision of electricity to Consumers' customers, to justify the expense to ratepayers involved. The issue was whether the evidence of record better justified the AMI funding involved than was the case in In re Applications of Detroit Edison. The court held that it did. Consumers' Manager of Smart Grid Demand Response Programs testified to how similar programs have worked elsewhere, and opined that "[s]mart meters and a fully enabled smart grid are going to be required for the consumers of Michigan to realize the full potential of coming changes in the electric markets." Consumers' Business Technology Solutions Director of Portfolio Integration Planning and Services testified that the new technology would be required to keep up with anticipated rising demands for electricity. The director of Consumers' smart-grid program also testified extensively about Consumers' collaboration with other entities to develop "interoperability" and security standards, about its monitoring of similar programs in place elsewhere, and about the anticipated timing of the eventual implementation of the new technology. Further, the director testified extensively on the anticipated benefits to its customers, including more accurate meter reading, reduction of losses resulting from theft, and the opportunity to aid in energy conservation through a pricing incentive. In its opinion and order, the PSC relied extensively on the testimony of its own expert. "Consumers' witnesses covered many particulars concerning benefits and timing, and what the PSC relied on from its own staff witness was decidedly guarded. Perhaps most significantly," the court noted that the amount of AMI funding that the PSC approved was "decidedly conservative - far below the amount requested." This case was distinguishable from In re Applications of Detroit Edison, in that the evidence underlying the PSC's funding decision here "went well beyond the merely 'aspirational testimony,' and the amount of approved funding far below, what was of concern in that case." Thus, the court held that its conclusion that no remand was required in this case comported with the dictates of In re Applications of Detroit Edison. However, the court reversed and remanded as to the RDM and reversed as to the LIEEF. Affirmed in part, reversed in part, and remanded.

Full Text Opinion

Banking

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This summary also appears under Real Property

Issues: Whether the trial court properly granted summary disposition to the defendant-bank in this action to enjoin defendant from foreclosing by advertisement on two mortgages executed by plaintiff in favor of defendant; Review; Ligon v. Detroit; Contract interpretation; Archambo v. Lawyers Title Ins. Corp.; MCL 600.3204(1); Statutory interpretation; Brightwell v. Fifth Third Bank; A "guaranty"; First Nat'l Bank & Trust Co. v. Dolph; Angelo Iafrate Co. v. M & K Dev. Co.; Whether a guaranty is an obligation separate from the mortgage note; Greenville Lafayette, LLC v. Elgin State Bank; United States v. Leslie (6th Cir.); Wells v. Firestone Tire & Rubber Co.; Whether foreclosure by advertisement was barred by res judicata; Estes v. Titus; Foreclosure; Cheff v. Edwards; MCL 600.3204(1)(b)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Canvasser Heritage, LLC v. Fifth Third Bank

e-Journal Number: 53196

Judge(s): Per Curiam - Fort Hood, Meter, and Murray

In this action to enjoin the defendant-bank from foreclosing by advertisement on two mortgages executed by plaintiff in favor of the bank, the court held, inter alia, plaintiff-Canvasser Heritage did not adequately show that the action against the guarantors was an action "to recover the debt secured by the mortgage[s] or any part of the mortgage[s]." Thus, the trial court did not err in finding that defendant was not prohibited from pursuing foreclosure by advertisement because of the prior action against the guarantors. Plaintiff, a LLC, executed two promissory notes in favor of the bank for commercial loans in the amounts of $3,740,000 and $3,135,000. Plaintiff's sole member (C) signed the notes on behalf of plaintiff. Each note was secured by a separate mortgage in favor of defendant on property in a development. On the same day, C individually and as trustee of the Canvasser Revocable Living Trust, also executed two separate guarantees of the obligations and debt evidenced by the two promissory notes. After plaintiff defaulted on the notes, defendant sued in the Oakland County circuit court against C, indivdually and as the trustee of the trust, to recover under the guaranties. Later the trial court granted defendant's motion for summary disposition in that case, rejecting C's argument that the bank failed to mitigate its damages by failing to foreclose on the mortgages that secured the notes. The trial court noted that the guaranties specifically provided that defendant was not required to foreclose on the collateral before pursuing the guaranties. Three other cases involving the property brought by three construction lien creditors were filed in the Macomb County circuit court. That court dismissed those claims with prejudice. Plaintiff then filed suit in that circuit court seeking to enjoin defendant from foreclosing. Plaintiff claimed that MCL 600.3204(1)(b) prohibited foreclosure by advertisement because defendant's Oakland County action was to recover the debt secured by the "mortgage." Plaintiff also sought a declaratory ruling that the "mortgage" was extinguished and an order requiring defendant to discharge the "mortgage." The trial court granted summary disposition to defendant, finding that the prior action on the guaranties in Oakland County and the Macomb County case concerning the construction liens did not prohibit foreclosure by advertisement. The court was persuaded by the rationale in Leslie, agreeing that "guaranties are 'obligations separate from . . . mortgage note[s]." The court also noted that Michigan courts generally recognize the principle that separate entities will be respected. A member of a LLC "is not liable for the acts, debts, or obligations of the limited liability company." The court affirmed the trial court's order granting the bank summary disposition.

Full Text Opinion

Criminal Law

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Issues: Motion for a more specific order for DNA testing; Applying the rules of contract interpretation in interpreting stipulated orders; Phillips v. Jordan; Universal Underwriters Ins. Co. v. Kneeland; Rossow v. Brentwood Farms Dev., Inc.; Complexity of DNA testing; People v. Coy; People v. Chandler

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Evans

e-Journal Number: 53195

Judge(s): Per Curiam – Jansen, Stephens, and Riordan

Holding that the completion of the preliminary steps of testing for and quantifying the presence of human DNA on certain items of biological evidence contained in the "rape kit" did not constitute DNA testing under the trial court's prior order, the court reversed the trial court's order denying the defendant's motion for a more specific order for testing. The court remanded the case for entry of an order directing that the biological material in the rape kit be further tested to determine whether a DNA profile may be obtained. Defendant was convicted of CSC III in 1998. Medical records from the victim's post-assault hospital exam indicated that biological evidence was collected. However, when defendant requested that this evidence be subject to testing before trial, the prosecution advised that there was no biological evidence available for testing. After his conviction, defendant made more inquiries about the existence and location of the rape kit. In 2007, he was informed that the kit was in the possession of the Detroit Property Control Unit. He petitioned the trial court for the release and testing of the rape kit under MCL 770.16. Based on the parties' stipulation that the requirements of the statute were met, the trial court ordered DNA testing of the rape kit. The rape kit was transferred to the Michigan State Police Crime Lab, "which performed presumptive testing on certain items in the rape kit, resulting in the identification of a very small quantity of possible epithelial male DNA from the victim's rectal swab. Apparently, the Lab declined to conduct further testing on this material to determine whether a DNA profile might be obtained from it." Defendant moved the trial court for an order directing that the material be sent to an outside lab capable of performing such testing, pursuant to the terms of the parties' stipulation. After a hearing, the trial court denied his motion, concluding that DNA testing "was done" in this case and that it was satisfied there was compliance with its prior order. The court noted that the parties did not dispute that the only testing done "was the preliminary determination of whether human DNA was present, and in what amount, on some of the biological samples contained in the rape kit." No attempt was made "to test the possible male DNA identified during this process to determine whether a DNA profile could be obtained, or to test biological evidence, other than the vaginal, oral and rectal swabs, for the presence of DNA." The stipulation underlying the trial court's prior order required "advanced testing on the items of evidence contained within the rape kit" and recognized the possibility that "DNA testing beyond the [Lab's] capabilities" may be required in order to complete DNA testing of the evidence. This indicated that "the presumptive testing and quantification of potential DNA performed on certain items of biological evidence" contained in the kit was "not the DNA testing to which defendant is entitled by the parties' stipulation and the resulting trial court order."

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's convictions of two counts of CSC IV; People v. Tombs; People v. Ericksen; People v. Tennyson; People v. Unger; Whether there was sufficient evidence of "force or coercion"; MCL 750.520e(1)(b)(i) and MCL 750.520e(1)(b)(v); People v. Crippen; "Force"; People v. Premo; "Sexual contact . . . by the element of surprise"

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Lynn

e-Journal Number: 53232

Judge(s): Per Curaim – Jansen, Stephens, and Riordan

The court held that there was sufficient evidence to support the jury's finding that defendant used physical force when inflicting the sexual contact on the victim. Thus, viewing the facts in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the elements of CSC IV were proven beyond a reasonable doubt. The victim and her boyfriend went to defendant's residence in order to purchase marijuana. She testified that defendant pulled down her shirt and placed his hand under her shirt and bra. Defendant then "play[ed]" with the victim's nipples. Defendant also used his hand to "rub[]" the victim's vagina. She repeatedly requested that defendant stop, and he ignored her pleas. A reasonable jury could have found that this physical contact with the victim's breasts and vagina constituted an exertion of "strength or power" on her body, as defendant was physically touching and moving his hand. Thus, viewing the facts in a light most favorable to the prosecution, a rational jury could have found that defendant's actions constituted physical force pursuant to MCL 750.520e(1)(b)(i). Alternatively, a reasonable jury could have found beyond a reasonable doubt that defendant achieved the sexual contact with the victim through the element of surprise. The victim testified that she had no expectation of physical contact with defendant when she went to his residence and that defendant touched her while his girlfriend and her boyfriend were in close proximity. She also testified that she was scared, she did not know what to do, and she was unable to process what was happening. A rational trier of fact could have found that these facts constituted "sexual contact . . . by the element of surprise," especially considering the unexpectedness of defendant's behavior and the immobility it caused in the victim. Affirmed.

Full Text Opinion

Issues: Sufficiency of the evidence to convict the defendant of domestic violence (MCL 750.81(2)); People v. Tombs; People v. Ericksen; People v. Tennyson; People v. Unger; People v. Starks; Whether the trial court properly admitted photographs of the victim's injuries; People v. Washington; Discovery violation; People v. Greenfield; Brady v. Maryland; People v. Cox; People v. Paris; People v. Lester; Whether the trial court properly denied defendant's request to admit the victim's prior inconsistent statement; MRE 801(d); MCR 2.613(A)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Owens

e-Journal Number: 53211

Judge(s): Per Curiam - Jansen, Stephens, and Riordan

The court held that there was sufficient evidence supporting the defendant's conviction of domestic violence, and the trial court committed no errors requiring reversal as to its decision to admit photographs of the victim's bruises or to exclude evidence of the victim's prior deposition testimony. Defendant and his wife, the victim, argued about a threat from defendant's son to blow up the house. The argument escalated, as defendant became angry that the victim had awakened him. Defendant kicked the victim in the side, knocked her into the bedrail, and continued to kick her while she was on the floor. The victim had bruises on her wrist, arm, hand, and leg. She testified that photographs of her bruises were taken "right afterwards," and the prosecution admitted the photographs, taken by her son, at trial. The police arrived. Defendant had put on his winter jacket and the victim alerted the police that he was carrying a gun. They searched him and found a handgun in his coat pocket, which defendant said he was licensed to carry. A police officer spoke to the victim and saw the bruising on her left wrist and right leg. The officer testified that the victim told him that she and defendant had been fighting for a couple of days and that at some point defendant physically assaulted her. At trial the officer examined the photographs of the victim's bruises and testified that they were a fair and accurate representation of the bruises he saw on the day he spoke with the victim. Defendant was convicted of domestic violence. He contended on appeal, inter alia, that there was insufficient evidence to support his conviction because the victim gave inconsistent testimony as to the time of the physical abuse. The court noted that in order to prove defendant guilty of domestic violence, the prosecution had to establish that defendant committed an assault or an assault and battery on the victim. These elements were established beyond a reasonable doubt. Defendant was correct that the victim's testimony as to the time of the physical assault was less than clear. However, the exact time of the physical assault is not an element of the offense. Rather, the prosecution merely had to prove that an assault or an assault and battery actually occurred. As the trial court noted, there was sufficient evidence that he committed an assault and battery on the victim. She testified as to her bruises and his conduct. The photographs displayed the injuries to the victim, which the fact-finder could have found resulted from defendant's conduct. Further, a police officer corroborated the accuracy of the photographs and their depiction of her injuries. The officer also testified that the victim reported that the defendant physically assaulted her. Affirmed.

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's conviction of possession with intent to deliver ecstasy; People v. Tombs; People v. Ericksen; People v. Tennyson; People v. Unger; People v. Johnson; People v. Mette; "Possession"; People v. Hardiman; People v. Flick; People v. McKinney; Intent to deliver the pills; People v. Ray; People v. Wolfe; Expert testimony; People v. Metamora Water Serv., Inc.; "Plain error"; People v. Carines; People v. Coy; People v. Haywood; Whether the second and third prong of MRE 702 (helpfulness to the jury and a recognized discipline) were met; Ineffective assistance of counsel; People v. Murray; People v. Ginther; People v. Matuszak; People v. Davis; Strickland v. Washington; People v. Grant

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Sampson

e-Journal Number: 53235

Judge(s): Per Curiam – Jansen, Stephens, and Riordan

The court held that there was sufficient evidence presented from which a reasonable jury could have found defendant guilty of possession with intent to distribute ecstasy beyond a reasonable doubt. There also was no plain error in admitting the officer's testimony at trial and defendant was not denied constitutionally effective counsel when defense counsel did not object to the officer's testimony. Defendant was the passenger of a van that police suspected of being involved in recent thefts. The police executed a traffic stop and smelled marijuana. They called a canine unit and the dog alerted on the passenger seat of the vehicle. Two bags of marijuana were located between the passenger seat cushion and the bottom plastic molding. A search of defendant's person revealed a bag of red and blue ecstasy pills in "corner tie" bags, which defendant told police were Flintstone vitamins. The police also discovered $883 in defendant's pocket, consisting of three $1 bills, one $10 bill, one $20 bill, one $50 bill, and eight $100 bills. A canine alerted on the money, indicating that there was narcotic residue. Defendant was arrested and taken to jail. After arriving at the jail, he was asked to remove his socks and shoes. A police officer testified that defendant was attempting to hide his sock when another bag of red, blue, and yellow pills fell out from the sock. In total, 55 pills of ecstasy were confiscated from defendant in 11 individual bags. The court held that there was sufficient evidence from which a reasonable jury could have found that the prosecution had proven each element of possession with intent to deliver ecstasy beyond a reasonable doubt. The ecstasy pills in this case were found on defendant, in his pocket and sock. Thus, a reasonable jury could have found that this constituted actual possession, as he had "physical control" over the pills. There also was sufficient evidence that defendant had an intent to deliver the pills. He had 55 ecstasy pills in his possession. Also, the pills were packaged in separate bags secured by corner ties, further demonstrating that the pills were not solely for personal consumption. Since only minimal circumstantial evidence is necessary to establish intent to deliver, a rational trier of fact could have found beyond a reasonable doubt that based on the quantity and packaging of the pills, defendant had an intent to distribute. Lastly, there was sufficient evidence that the pills confiscated from defendant were ecstasy. He claimed that because the prosecution failed to offer the laboratory report into evidence, there was insufficient evidence that the pills were ecstasy. The court held that this argument was specious. First, the trial court admitted the ecstasy pills and pictures of the pills into evidence. Further, during his testimony, defendant actually acknowledged that the pills found in his pocket were ecstasy. Thus, while defendant certainly disputed the prosecution's theory of how the ecstasy pills came to be in his possession, he acknowledged that the pills were ecstasy. Finally, defense counsel, on the first day of trial, recognized that the pills were ecstasy through his consent to the admission of the Michigan State Police Forensic Science Division's laboratory report. Affirmed.

Full Text Opinion

Issues: Sentencing; Whether the PSIR and the SIR contained inaccurate information as to defendant's criminal history; Scoring of OV 11; Minimum sentence guideline range; People v. Norman

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Walker

e-Journal Number: 53234

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

Following the prosecution's concession that defendant was entitled to correction of the SIR and PSIR, the court remanded to the trial court for the ministerial task of correcting defendant's SIR and PSIR and forwarding a corrected copy to the Department of Corrections. Following a bench trial, defendant was convicted of two counts of CSC II. At sentencing, the parties and the trial court agreed that defendant's adult criminal history included three misdemeanors and one low severity felony. The trial court also determined OV 11 should be scored at 0 points instead of at 25 points. This changed defendant's recommended minimum sentence range under the legislative guidelines to 43 to 86 months. Nevertheless, defendant's SIR and PSIR erroneously indicated that his criminal history included two felonies and two misdemeanors, that OV 11 was scored at 25 points, and that his minimum sentence range was 50 to 100 months, contrary to the trial court's findings.

Full Text Opinion

Litigation

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This summary also appears under Negligence & Intentional Tort

Issues: Motion in limine to exclude documents; KBD & Assoc., Inc. v. Great Lakes Foam Techs., Inc.; "Relevant evidence" (MRE 401); Hardrick v. Auto Club Ins. Ass'n; MRE 402; MRE 403; Shaw v. City of Ecorse; Elements of a claim under the "common work area doctrine"; Latham v. Barton Malow Co.; Applicability of the "law of the case doctrine"; Ashker v. Ford Motor Co.; Kidder v. Ptacin; Grievance Adm'r v. Lopatin

Court: Michigan Court of Appeals (Unpublished)

Case Name: Banaszak v. Northwest Airlines, Inc.

e-Journal Number: 53189

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

The court held, inter alia, that the trial court did not abuse its discretion in excluding the eight documents at issue due to the potential for unfair prejudice and confusion of the issues, particularly where the plaintiff was able to present other relevant evidence on the same issue. Thus, the court affirmed the judgment of no cause of action in favor of defendant-Northwest Airlines. Plaintiff, who was employed by non-party State Group, was injured in 2001 when she fell through a plywood-covered wellway at the McNamara Terminal construction site at Detroit Metropolitan Airport. She sued Northwest, as representative of the owner of the airport, defendant-Wayne County. Defendant-Hunt Construction Group was a contractor on the project. State Group subcontracted with Hunt to perform electrical work. Non-party Otis Elevator contracted directly with Northwest to install elevators, escalators, and moving walkways in the terminal. The case was the subject of a prior appeal. On remand, the case went to trial on plaintiff's common work area claim. Before trial, Northwest filed a motion in limine to exclude eight documents, "which consisted of correspondence between Hunt and Northwest, and Northwest and Otis, recounting communications about safety concerns presented by open holes throughout the moving walkways and escalators." The trial court granted Northwest's motion, primarily because the documents addressed a different hazard (open wellway holes) than the hazard that caused plaintiff's injury (an improperly covered wellway hole). Plaintiff argued on appeal that the documents were relevant to establishing Northwest's liability for her injuries under the common work area doctrine. "A substantial issue at trial involved the factual question whether Northwest, as an owner's representative, was in a position to coordinate work." The court concluded that the documents were relevant to the general issue of whether Northwest had supervisory authority to avoid a risk of harm from safety concerns, including unprotected or improperly protected holes. However, they did not address the particular safety hazard that led to plaintiff's injuries. The court concluded that the trial court was properly concerned that the jury would be confused by the documents. Further, even if the trial court erred in excluding the documents, plaintiff was not entitled to reversal because excluding them did not affect her substantial rights. The court noted that she extensively cross-examined three witnesses with reference to another set of documents. "Plaintiff elicited these witnesses' testimonies that these documents showed that Hunt sometimes designated Northwest as the 'ball-in-court' entity responsible for dealing with Otis's safety issues, and that Northwest did not object to this designation." Plaintiff also examined witnesses about the contractual relationships in the construction project and the contractors' means of resolving safety concerns. Considering this evidence, the excluded documents "would have been cumulative of the substantial evidence presented on the question of Northwest's supervising and coordinating authority."

Full Text Opinion

This summary also appears under Negligence & Intentional Tort

Issues: Claims challenging pension fund investments made by the City of Detroit's General Retirement System and its Police & Fire Retirement System; The Public Employee Retirement System Investment Act (PERSIA)(MCL 38.1132 et seq.); "Standing" under the PERSIA; Whether the plaintiffs could bring a "private" cause of action under the PERSIA; Effect of the fact the City is a "home rule city"; Detroit Police Officers Ass'n v. City of Detroit; Retirement plans as a "permissible charter provision"; Kelly v. City of Detroit; Rule that the state's applicable general laws must be read into the charters of municipal corporations; Council of City of Saginaw v. Board of Trs. of Policemen & Firemen Ret. Sys. of City of Saginaw; Governmental immunity; MCL 691.1407(1); A "governmental function" (MCL 691.1401(f)); Tate v. Grand Rapids; Mack v. Detroit; Whether the defendants-Anderson and North Point Advisors (the "investment advisor defendants") were entitled to governmental immunity; Rambus v. Wayne Cnty. Gen. Hosp.; "Declaratory relief" under the PERSIA; MCR 2.605(A)(1); "Actual controversy"; Groves v. Department of Corrs.; Purpose of a declaratory judgment; Rose v. State Farm Mut. Auto. Ins. Co.; Standing to bring claims for breach of common-law fiduciary duties, common-law and statutory conversion, and violation of Const. 1963, art. 9, § 24; Breach of fiduciary claim as a common-law tort; Miller v. Magline, Inc.; "Gross negligence" (MCL 691.1407(7)(a)); MCL 691.1407(2)(c); Effect of incomplete discovery; VanVorous v. Burmeister; Class certification; MCR 3.501(A)(1) & (C)(3); Henry v. Dow Chem. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estes v. Anderson

e-Journal Number: 53186

Judge(s): Per Curiam – Murray, Cavanagh, and Stephens

The court held, inter alia, that the trial court erred in concluding that Detroit ordinances gave the plaintiffs standing to challenge investment decisions made by the defendants-current and former members of the boards of trustees (the trustee defendants) of the two City retirement systems. None of the plaintiffs in these consolidated cases may pursue a legal cause of action for alleged PERSIA violations against the trustee defendants. However, the trial court correctly concluded that plaintiffs had standing to pursue their PERSIA violation claims against defendants-Anderson and North Point Advisors (the investment advisor defendants). Further, plaintiffs had standing as to their claims for breach of common-law fiduciary duties, gross negligence, common-law and statutory conversion, and violation of article 9, § 24 of the Michigan Constitution. Plaintiffs, as plan participants, alleged that the trustee defendants violated, inter alia, their fiduciary duties arising under the PERSIA. The court concluded that this was a tort claim because plaintiffs alleged breach of duties imposed by law. Article 11 of the City Charter provided for the establishment of two boards of trustees as governing bodies for administering the City's retirement plans. Plaintiffs' claims arose from the trustee defendants' alleged acts related to administering the City's retirement plans - a governmental function. "The Legislature has not specifically authorized a private cause of action under the PERSIA in avoidance of governmental immunity." While the Detroit Municipal Code may appear to have authorized such a cause of action, the City could not create a cause of action against itself in contravention of the broad scope of governmental immunity. However, since the investment advisor defendants were not engaged in a governmental function when they rendered their services, they were not entitled to the protection of governmental immunity. The court also held that plaintiffs did not have standing to pursue a declaratory judgment action against the trustee defendants or the investment advisor defendants as to their PERSIA-based claims. As to plaintiffs' claims for breach of common-law fiduciary duties, the court concluded that they "alleged and offered evidence that the trustee defendants breached their fiduciary duties in several respects, including by making imprudent and improper investments causing losses of retirement funds, destroying evidence, and engaging in self-dealing such as spending funds on unnecessary and extravagant travel." While Michigan treats a breach of fiduciary duty claim as a common-law tort, plaintiffs also alleged that the trustee defendants were not entitled to immunity because their conduct was grossly negligent. Thus, plaintiffs pleaded in avoidance of governmental immunity. In Docket No. 294537, the court affirmed the trial court's order granting plaintiffs' motion for class certification, holding, inter alia, that they "satisfied their obligation 'to provide the certifying court with information sufficient to establish that each prerequisite for class certification in MCR 3.501(A) is in fact satisfied.'" Affirmed in part, reversed in part, and remanded.

Full Text Opinion

Negligence & Intentional Tort

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This summary also appears under Litigation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Banaszak v. Northwest Airlines, Inc.

e-Journal Number: 53189

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

Full Text Opinion

This summary also appears under Litigation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estes v. Anderson

e-Journal Number: 53186

Judge(s): Per Curiam – Murray, Cavanagh, and Stephens

Full Text Opinion

Real Property

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This summary also appears under Banking

Court: Michigan Court of Appeals (Unpublished)

Case Name: Canvasser Heritage, LLC v. Fifth Third Bank

e-Journal Number: 53196

Judge(s): Per Curiam - Fort Hood, Meter, and Murray

Full Text Opinion

Issues: Statutory interpretation of foreclosure by advertisement statutes (MCL 600.3204 et seq.); In re Complaint of Rovas; Rose Hill Ctr., Inc. v. Holly Twp.; MCL 600.3204(1) and (4); MCL 600.3204(4)(a) and (b); Former MCL 600.3205a; "Shall"; Manuel v. Gill; MCL 600.3204(4)(c) and (d); MCL 600.3205b(1); MCL 600.3204(4)(e) and (f); MCL 600.3205c(1); Promissory estoppel; Crown Tech Park v. D & N Bank, FSB; Tkachik v. Mandeville; MCL 566.132(2)(b); Al-Shimmari v. Detroit Med. Ctr.; Contract modification; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; MCL 566.132(2); Equitable relief of setting aside the foreclosure sale or enjoining eviction; Detroit Trust Co. v. Agozzinio; Freeman v. Wozniak; The federal Home Affordable Modification Porgram; Miller v. Chase Home Fin., LLC (11th Cir.); Dismissal of negligence per se claim; Klanseck v. Anderson Sales & Serv., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Vasilakis v. Trott & Trott, PC

e-Journal Number: 53206

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

Concluding that plaintiffs-the Vasilakis failed to follow the clear procedures in the 2010 version of the foreclosure by advertisement statutes to trigger the statutory process to avoid foreclosure, the court held that the trial court properly determined that the foreclosure sale was valid and summarily dismissed their claims. Plaintiffs defaulted on their home mortgage loan. Defendant-Trott, who was handling the foreclosure process, notified plaintiffs that their mortgage loan was in default. Plaintiffs did not contact a housing counselor from the list provided by Trott to work out a modification of the mortgage loan to avoid foreclosure. Instead, plaintiff-Maria Vasilakis personally telephoned Trott on 4/21/10, to request a loan modification meeting. Plaintiffs then retained an attorney, and an employee of the law firm contacted Trott on 5/13. Despite these contacts, Trott notified plaintiffs of the upcoming foreclosure sale. The sale occurred as advertised on 6/18 and defendant-First Franklin entered the winning bid. Plaintiffs filed suit three days before the expiration of the statutory redemption period. In an amended complaint, they challenged the various defendants' actions under the foreclosure by advertisement statutes, MCL 600.3205a in particular. The foreclosure by advertisement statutes were amended in 2011. However, at the time of the 2010 proceedings, MCL 600.3204 provided the procedures for a lender or its agent to pursue foreclosure by advertisement. The conditions to proceed to foreclosure by advertisement were met in this case. "Plaintiffs had defaulted on their properly recorded mortgage loan that contained a power of sale and there was no pending action to recover the debt from plaintiffs." The conditions of MCL 600.3204(4) were also met. Trott notified plaintiffs as required by MCL 600.3204(4)(a). There was no dispute that the 4/19 notification included all the required information. Trott complied with MCL 600.3204(4)(b) by waiting 14 days to allow plaintiffs an opportunity to contact it through a housing counselor to request a modification meeting. They never requested a meeting as provided in former MCL 600.3205b(1). "According to the plain language of the statute, plaintiffs could not request a meeting personally, through a retained attorney or through a retained financial consultant. The request had to come from an authorized housing counselor. MCL 600.3204(4)(c) and (d) only precluded a lender from proceeding to foreclosure if the borrower requested a meeting through a housing counselor under MCL 600.3205b(1). As plaintiffs did not request a meeting through such a counselor, defendants were free under MCL 600.3204 to advertise the foreclosure and conduct the sale." Defendants did not violate the statutes by conducting the foreclosure sale. Affirmed.

Full Text Opinion

Termination of Parental Rights

Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i) and (g); In re Mason; In re Trejo Minors; Whether the respondent-father's due process rights were violated because he was "denied the opportunity to be heard at the termination trial"; In re Williams; In re Beck; In re Vasquez; MCR 5.973(A)(3)(b); Whether the trial court abused its discretion in denying respondent's motion for a new trial; Campbell v. Human Serv. Dep't; Ewald v. Ewald

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Tucker

e-Journal Number: 53265

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

The court held that the trial court properly terminated the respondent-father's parental rights to his minor child where the statutory bases for termination were established by clear and convincing evidence. The evidence showed that respondent did not involve himself in the proceedings, did not visit the child, even on his birthday, and did not participate in the petitioner's PAA or services for him, refused to provide verification of his employment and missed numerous drug screens. The minor child was born prematurely in 6/09 with cerebral palsy and other challenges. He was placed in foster care and eventually, the mother's parental rights were terminated. DNA tests confirmed that respondent was the child's father. A PAA and service plan were completed. Respondent was to participate in individual therapy, complete a psychological evaluation and parenting classes, and be involved with the child, including his medical care. By 8/10, respondent had visited the child twice. His caseworker indicated that respondent did not return any calls and noted that he did not attend the court hearings. The record revealed that, although there were several hearings conducted during the pendency of the case, most were attended only by respondent's attorney, not respondent. Throughout the proceedings, the PAA and service agreement were updated. Respondent was asked to provide documentation verifying legal employment and attend supervised parenting time. In 1/11, several services were offered to respondent, including random drug screens, a substance abuse evaluation, inter alia, which he failed to participate in. It was noted that he had not visited the child in over four months. Several hearings were scheduled, but his counsel asked that they be adjourned. Respondent did not attend them. The termination trial was scheduled for 11/10/11. However respondent did not appear. His attorney was present and requested an adjournment. The trial was rescheduled and the attorney again asked for an adjournment. Respondent did not appear. Significant evidence was admitted as well as the result of a psychological evaluation of respondent, testimony related to his history of domestic violence, and testimony as to his lack of contact with the child. The court held that the trial court did not clearly err in finding that the grounds for termination were established by clear and convincing evidence. Respondent also contended that he was denied due process because he was "denied the opportunity to be heard at his termination trial." The court disagreed where respondent chose not to exercise his right to be present. Affirmed.

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