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The
e-Journal provides summaries of all opinions as they are released from
the Michigan Supreme Court, Michigan Court of Appeals (published
and unpublished), the U.S. Sixth Circuit Court of Appeals (published),
and selected U.S. District Courts. |
Thursday, December 6, 2007
Case Summaries Today’s e-Journal includes summaries of two Michigan Court of Appeals published opinions under Family Law and Municipal/Real Property and one Sixth Circuit Court of Appeals opinion under Constitutional Law/Municipal. Cases appear under the following practice areas: |
SBM Home, Copyright © 2007 State Bar of Michigan
Case Summaries
Administrative Law
skip to next practice areaThis summary also appears under Litigation
Issues: Whether MCR 7.105(K)(2) may be applied to dismiss an administrative appeal for failure to abide by a supplemental briefing schedule; Zantop Int’l Airlines, Inc. v. Eastern Airlines; Cranbrook Prof’l Bldg., LLC v. Pourcho; Maldonado v. Ford Motor Co.; Richards v. Tibaldi; Yudashkin v. Linzmeyer
Court: Michigan Court of Appeals (Unpublished)
Case Name: Bhama v. Civil Serv. Comm’n
e-Journal Number: 37752
Judge(s): Per Curiam - Donofrio, Hoekstra, and Markey
On remand from the Michigan Supreme Court for consideration as on leave granted, the court held MCR 7.105(K)(2) may not be applied to dismiss an administrative appeal for failure to abide by a supplemental briefing schedule. Petitioner argued the trial court erred in applying MCR 7.105(K)(2) to dismiss the appeals because the rule applied only to the initial appellate briefs required after she filed her appeals in these matters. Petitioner contended while the parties stipulated to the filing of supplemental briefs following remand, no supplemental briefs were necessary to comply with the court rule and the trial court abused its discretion in relying on the rule to dismiss the appeals. Reviewing the language employed in the subrule, it is plain the phrase “its brief,” as used in subsection (2), refers to the appeal and response briefs required of a petitioner and respondent under subsection (1). It is equally plain subsection (1), which sets a definitive and truncated time period for the filing of briefs “after the record is filed with the court,” governs only the initial briefing schedule following the filing of a petition for review. The briefing schedule at issue, however, concerned supplemental briefing stipulated to by the parties following remand to respondent and not required under MCR 7.105(K). Thus, while the court acknowledged supplemental briefs would likely have been helpful in deciding the appeals following remand, the court agreed with petitioner the trial court abused its discretion in dismissing the appeals under MCR 7.105(K)(2) because the stipulated briefs were not required under MCR 7.105(K)(1). Reversed and remanded.
Attorneys
skip to next practice areaThis summary also appears under Litigation
Issues: Dismissal based on lack of standing; Real party in interest; MCR 2.201(B); MOSES, Inc. v. Southeast MI Council of Gov’ts; Whether the trial court properly denied plaintiff-Grier’s motion for declaratory judgment quieting title to the disputed property; Associated Builders & Contractors v. Director of Consumer & Indus.; Whether plaintiffs’ complaint to quiet title met the requirements of MCR 3.411 for a complaint to quiet title; Remand to provide Grier with an opportunity to amend his complaint; Franchino v. Franchino; Whether amendment would be futile; PT Today, Inc. v. Commissioner of the Office of Fin. & Ins. Servs.; Allegations of the unauthorized practice of law; MCL 600.916(1); Dressel v. Ameribank
Court: Michigan Court of Appeals (Unpublished)
Case Name: Grier v. Sunshine Auto Collision, Inc.
e-Journal Number: 37696
Judge(s): Per Curiam – Servitto, Sawyer, and Murray
While holding the trial court did not err in dismissing plaintiff-Grier’s complaint based on lack of standing or in denying his motion for a declaratory judgment quieting title, the court concluded it would not be futile to allow him to amend his complaint and remanded the case to permit him the opportunity to do so. Plaintiffs, in pro per, filed a complaint seeking to quiet title to property, alleging, inter alia, trespass, tortious interference with a contract, and slander of title against the defendants. The trial court entered an order dismissing plaintiff-Isby with prejudice for her failure to appear at relevant proceedings. Defendants then successfully moved to dismiss Grier’s complaint, arguing he lacked standing because his only alleged interest in the property would have to stem from a finding Isby (who he alleged deeded him the property) had a valid deed, and she had been dismissed. The factual allegations in the complaint concerning plaintiffs’ request to quiet title, and Grier’s remaining claims of tortious interference with a contract, trespass, and slander of title only had a basis with respect to Isby’s alleged title to the property. The complaint did not allege Grier had any interest in the property when the alleged claims arose. Thus, he could not establish he suffered an injury in fact due to defendants’ alleged acts and since Isby was previously dismissed with prejudice and Grier was the only remaining plaintiff, the trial court did not err in granting defendants’ motion under MCR 2.116(C)(5) and (C)(8). However, Grier also argued the trial court should have allowed him to amend his complaint and motion for a declaratory judgment to quiet title to reflect his alleged newly acquired interest in the property. Since the proposed amendment would arguably establish he had an interest in the property, it would not be futile. Affirmed in part but remanded. The court also addressed, but left it to the trial court to consider on remand, “whether Grier’s actions constitute the unauthorized practice of law.”
Constitutional Law
skip to next practice areaThis summary also appears under Municipal
Issues: Claim the defendants-police officers used excessive force in arresting plaintiff violating his Fourth Amendment rights; Jurisdiction over the interlocutory appeal; Sheets v. Mullins; Phelps v. Coy; Whether qualified immunity should be granted to defendants if there was no violation of plaintiff’s Fourth Amendment rights; Whether the district court properly denied the officers qualified immunity on plaintiff’s § 1983 claim and governmental immunity on the state law claim of assault and battery; Use of videotape capturing the events; Scott v. Harris; Brosseau v. Haugen; Saucier v. Katz; Graham v. Connor; Solomon v. Auburn Hills Police Dep’t; Turek v. Saluga (Unpub.); Walton v. City of Southfield; State law claims of assault and battery; MCR 7.292(6)(a)(v); Anderson v. Antal; Tope v. Howe; People v. Hanna
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Marvin v. City of Taylor
e-Journal Number: 37780
Judge(s): Ackerman and Batchelder; Dissent – Daughtrey
Since the plaintiff failed to establish the deprivation of his Fourth Amendment rights, where in each discrete event, from the scene of the arrest, to the entrance at the police station, to the booking room, to the jail cell, to the blood draw at the clinic, he failed to demonstrate the officers acted in an objectively unreasonable manner, the defendants-officers were entitled to summary judgment on plaintiff’s § 1983 claim. Thus, the court did not need to inquire further as to whether defendants were entitled to qualified immunity. Further, because defendants’ actions were objectively reasonable, they could not be liable on the pendent state law assault and battery claims. Allegedly, the highly intoxicated (his BAC was 225 percent over the legal limit) 78-year old plaintiff rear-ended a vehicle stopped at an intersection. A commander in the City of Taylor Police Department owned the vehicle and the incident occurred as he and his family were returning from church. Plaintiff alleged the police used excessive force in arresting him and during their conduct involving him at the police station. The court concluded even construing the facts in the light most favorable to the plaintiff, the defendants did not violate his constitutional rights when they “forced a drunk suspect, who had just crashed his vehicle into another and was resisting arrest, into a submissive posture in order to handcuff him behind his back so as to immobilize his hands and arms.” The court found defendants did not violate plaintiff’s Fourth Amendment rights at the scene of his arrest because they acted in an objectively reasonable manner in light of his heavily intoxicated state, abusive language, and his resistance to arrest. The court reversed the district court’s denial of qualified immunity and governmental immunity on the grounds the defendants’ actions were objectively reasonable and did not violate plaintiff’s Fourth Amendment right to be free from unreasonable seizures.
Criminal Law
skip to next practice areaIssues: Admission of videotape; People v. Crear; People v. Ford; MRE 901(a); People v. Heading; Hearsay; MRE 801(a); Whether the admission of the videotape violated defendant’s right to confront the witnesses against him; Crawford v. Washington; Voir dire; Whether the trial court unfairly limited defendant’s questioning of potential jurors about possible racial bias; People v. Washington; People v. Tyburski; People v. Daniels; People v. Knight; Motion to disqualify the judge; Cain v. Department of Corr.; People v. Wells
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Frailley
e-Journal Number: 37762
Judge(s): Per Curiam - Saad, Jansen, and Beckering
The trial court did not abuse its discretion when it admitted a videotape into evidence because the testimony of the detective and the Special Agent properly authenticated the videotape. The trial court admitted an aerial video surveillance tape showing the events leading to defendant’s arrest. The detective testified he knew the police were conducting ground and aerial surveillance of defendant on the day of the crime. The detective participated in the ground surveillance, he remained in radio contact with the aerial surveillance team, and he was aware the aerial activities were videotaped. He verified the accuracy of the events shown on the videotape because he witnessed the events firsthand while conducting ground surveillance of the same activities. The prosecutor showed the Special Agent’s part of the videotape during his testimony and he also verified a portion of the videotape because he personally observed the events depicted on the tape. Just as a photograph is admissible if someone familiar with the scene testifies the photograph is an accurate representation, those who observed the same events shown on a videotape may testify regarding their accuracy, regardless whether the witness is the photographer or videographer. Affirmed.
Issues: Sentencing; PRV 5; Whether the defendant’s prior misdemeanor of failing to stop and identify after an accident was properly included in the scoring of PRV 5; Whether defendant’s objection to the scoring was sufficient to preserve the issue; Whether defendant was entitled to resentencing; Scoring of OV 11; People v. Johnson
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Glover
e-Journal Number: 37767
Judge(s): Per Curiam – Schuette, Borrello, and Gleicher
The court held defendant was entitled to resentencing because his misdemeanor conviction of failure to stop and identify after an accident was not an offense “against a person or property, a controlled substance offense, or a weapons offense,” and should not have been included in the scoring of PRV 5. Defendant was convicted of two counts of CSC III. The trial court scored PRV 5 at 10 points. His prior misdemeanor convictions were resisting and obstructing, OWI, and the failure to stop conviction. Finding defendant’s objection to the scoring was sufficient to preserve the issue, the court concluded to the extent damage to a vehicle must occur for the failure to stop misdemeanor to be committed, “the damage is complete before the failure to stop, and it is the failure to stop, not the damage,” which is prescribed by the statute. Thus, the failure to stop is not a crime against a person or property and defendant should have received a PRV 5 score of 5 points. If PRV 5 was correctly scored, defendant’s PRV level would have been C rather than D, and this would result in a minimum sentence range of 51 to 85 months, which was below the 10-year minimum sentence he received. Thus, defendant was entitled to resentencing. However, the court rejected his claim OV 11 was also incorrectly scored at 25 points. Defendant’s sentence was vacated, and the case was remanded for a corrected scoring of PRV 5 and resentencing.
Issues: Motion to suppress; Collateral estoppel; People v. Gates; People v. Callon; Horn v. Department of Corr.; Ashe v. Swenson; Prosecutorial misconduct; People v. Wilson; People v. Paquette
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Horton
e-Journal Number: 37759
Judge(s): Per Curiam - Donofrio, Hoekstra, and Markey
The trial court did not err in denying the defendant’s motion to suppress. Defendant argued his armed robbery conviction should be reversed because the trial court erred in denying his motion to suppress. Defendant prepared his brief when his appeal was still pending in Docket No. 264604 because he incorporated his arguments in that case and asserted the court’s ruling in that case “will become the law of the case with respect to the claim raised in the instant case.” While defendant’s erroneous submission of this appeal implicated the law of the case doctrine, the court agreed the trial court’s determination in Docket No. 264604 was dispositive on this issue. Collateral estoppel barred defendant from litigating this issue again in this appeal. Defendant conceded the legal and factual issues were the same. Further, the same parties are involved in both cases. The court has already affirmed the trial court’s ruling denying defendant’s motion to suppress. Additionally, the Supreme Court denied leave to appeal, making the court’s decision in Docket No. 264604 a final adjudication. Thus, collateral estoppel precluded relitigation of the trial court’s denial of defendant’s suppression motion in this appeal between the same parties because the previous appeal “culminated in a valid, final judgment and the issue was (1) actually litigated, and (2) necessarily determined.” Affirmed.
Issues: Double jeopardy as to all three defendants’ convictions; People v. Clark; People v. Williams; People v. Farquharson; Challenges to out-of-court statements by defendants-King and Scarber; People v. Washington; People v. Poole; Crawford v. Washington; People v. Cipriano; People v. Conte; Sufficiency of the evidence to convict all three defendants; People v. Wolfe; People v. Dykhouse; People v. Milton; Reference to a polygraph test; People v. Coy; People v. Rocha; Jury instructions; People v. Leuth; Evidence about an alleged murder for hire; People v. Sholl; Prosecutorial misconduct; People v. Wolverton; Cross-examination of a jailhouse informant; MRE 608(B); People v. Vasher; People v. Lester
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. King
e-Journal Number: 37769
Judge(s): Per Curiam – Zahra, White, and O’Connell
Although defendant-King’s punishments for both second-degree and first-degree murder violated double jeopardy and his conviction for first-degree felony murder necessitated setting aside his conviction for kidnapping so as to not violate double jeopardy, the court left his armed robbery conviction and sentence intact because the conviction was separate, but factually interrelated. All three defendants appealed their convictions following their jury trial for the kidnapping and murder of a man. A jury found King guilty of second-degree murder, first-degree felony murder, armed robbery, kidnapping, and felony-firearm. The victim was sitting in the driver’s seat of his vehicle when defendant-Scarber and an unidentified man approached the vehicle and forced the victim at gunpoint farther into his vehicle. A neighbor ran home, retrieved a handgun, and opened fire on the vehicle. Scarber climbed into the driver’s seat while a second vehicle driven by King, rolled up and opened fire on the neighbor with an automatic rifle. The two vehicles sped off after the shots were fired. Later, King forced the victim to make a series of calls demanding ransom in return for his life. He was shot in the legs and bled to death. King argued his convictions for second-degree murder and first-degree felony murder violated double jeopardy. In situations where one first-degree murder conviction and one second-degree murder conviction stem from the death of one victim, the proper procedure is to set aside the second-degree murder conviction and sentence. King also argued retaining his conviction and sentence for first-degree felony murder necessitated the dismissal of his convictions and sentences for armed robbery and kidnapping because they were both predicate felonies supporting his felony murder conviction. The victim’s murder clearly occurred “in the perpetration of” his kidnapping. Thus, setting aside King’s kidnapping conviction and sentence prevented him from being punished twice and double jeopardy was satisfied. The court set aside King’s second-degree murder conviction and sentence and his conviction and sentence for kidnapping, but left his armed robbery conviction and sentence intact, and affirmed in all other respects.
Issues: Access to witnesses; Rebuttal testimony; People v. Losey; People v. Sutherland; People v. Figgures; MCR 6.201(H); Whether any error was outcome determinative; People v. Lukity; Motion to reopen proofs; People v. Moore; Surrebuttal testimony; Motion for an in camera review of the victim’s psychological records; People v. Stanaway; MCR 6.201(C)(2); People v. Adamski; Other acts evidence; MRE 404(b)(1); People v. Knox; People v. Crawford; People v. Sabin (After Remand); Whether the evidence was more prejudicial than probative; Limiting jury instructions; People v. Magyar
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Poynter
e-Journal Number: 37761
Judge(s): Per Curiam – Saad, Jansen, and Beckering
Concluding the record showed at most, the prosecutor permissibly advised the witnesses in question they were not obliged to talk to defense counsel or the defense investigator, the court held there was no evidence the prosecutor interfered with the witnesses’ decisions about whether to speak to them, the trial court did not abuse its discretion in denying defendant’s motion for a new trial, and the prosecutor did not commit misconduct denying him a fair and impartial trial. Defendant asserted the trial court should have granted him a new trial because the prosecutor actively discouraged the witnesses from speaking to defense counsel or the defense investigator. The investigator admitted in his affidavit when he appeared at the apartment of one witness, AR, and identified himself, AR became upset and asked him to leave. The investigator also admitted shortly after he left a message on the voicemail of the other witness (RJ), the prosecutor called him and informed him RJ did not want to speak to him. During trial, RJ testified she did not want to speak with the investigator because she felt defendant had destroyed her relationship with AR. Defense counsel admitted he and the prosecutor approached RJ in the hallway during trial, the prosecutor informed RJ she did not have to talk with defense counsel, and RJ responded negatively when asked if she wanted to speak to defense counsel. When the trial court inquired if RJ wished to speak to defense counsel, she also responded negatively. The court also rejected defendant’s claim a new trial was warranted because the prosecutor called RJ as a rebuttal witness rather than in the prosecution’s case-in-chief, concluding the trial court properly admitted the testimony, regardless of whether it could have been admitted in the prosecution’s case-in-chief, because the testimony was responsive to evidence defendant introduced. Defendant’s CSC I convictions were affirmed.
Issues: Other acts evidence; MRE 404(b)(1); Evidence the defendant previously stabbed two other individuals in a similar fashion; People v. Crawford; People v. VanderVliet; Whether the evidence was unfairly prejudicial; MRE 403; People v. Layher; People v. McGhee; People v. Ortiz; Whether the evidence was relevant; People v. Ackerman; Prosecutorial misconduct; People v. Watson; Plain error review; Ineffective assistance of counsel; People v. Henry; Futile objections; People v. Thomas
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Taylor
e-Journal Number: 37770
Judge(s): Per Curiam – Saad, Jansen, and Beckering
Concluding the evidence defendant previously stabbed two other individuals in a similar fashion was admitted for a proper purpose pursuant to MRE 404(b), it was relevant, and the evidence was not unfairly prejudicial, the court affirmed defendant’s second-degree murder conviction. The victim died due to a stab wound to the chest in May 2006. The prosecution produced evidence at defendant’s trial she had stabbed her supervisor in the chest in 1992, causing him to be hospitalized, and she had repeatedly stabbed her boyfriend in the chest in 1993, killing him. The prosecution presented the evidence to show intent, knowledge, and lack of accident or mistake. Defendant raised those issues by claiming she did not know she grabbed a knife before she stabbed the victim and she was not trying to hurt the victim. The fact she had previously stabbed two individuals in the chest, killing one of them, made it more likely she intended to stab the victim and she realized the potential consequences of her actions. The court further concluded the facts surrounding the prior stabbings were sufficiently similar to the facts in this case to show intent, knowledge, and the absence of accident or mistake. While the evidence might have been damaging to defendant’s position, it was highly probative since it was relevant to material issues at trial and there was no indication the jury gave it preemptive weight. Further, the trial court gave a limiting jury instruction stressing the evidence was not to be used for propensity purposes, thus effectively eliminating any unfair prejudice to defendant. Defendant’s conviction was affirmed.
Family Law
skip to next practice areaIssues: Custody; The court’s jurisdiction to address the plaintiff-father’s challenges to the trial court’s ex parte order; MCR 7.202(6)(a)(iii); Whether the ex parte order was a final order from which plaintiff failed to timely file a claim of appeal; Whether the trial court properly allowed one of the parties’ children to testify in open court regarding his allegations of abuse; Burghdoff v. Burghdoff; Breneman v. Breneman; Hilliard v. Schmidt; Molloy v. Molloy I and II; MCR 3.210(C)(5); Whether the trial court properly interviewed the child in court in light of the facts he had been diagnosed with bipolar disorder and oppositional defiant disorder and was taking medication and receiving psychological counseling; MRE 601; Expert testimony; MRE 702; King v. Taylor Chrysler-Plymouth, Inc.; Claim the expert overstated her qualifications
Court: Michigan Court of Appeals (Published)
Case Name: Surman v. Surman
e-Journal Number: 37782
Judge(s): Per Curiam – Whitbeck, Talbot, and Fort Hood
The court rejected the plaintiff-father’s argument the parties’ 12-year old son should not have been called to testify in court about his allegations of abuse, concluding pursuant to Breneman and Molloy II, when necessary to facilitate assessment of the child’s best interests, a trial court may call a child to testify in court about his or her allegations of abuse during a child custody proceeding, and the trial court did not abuse its discretion in allowing the child to testify in court concerning his allegations of abuse against plaintiff. Plaintiff was granted physical custody of the parties’ children following a trial in the parties’ divorce. However, after various motions by the parties and orders by the trial court, a four-day trial was conducted in November and December 2006, where the trial court determined based on the clear and convincing evidence, the defendant-mother should be awarded legal and physical custody of the children. The court noted Molloy II firmly established the subject matter of the in camera interview is strictly limited to determining the child’s preference and other case law, including Breneman, makes it clear a trial court must take testimony in open court on issues of abuse or mistreatment because to permit courts to discuss these matters during the in camera interview would constitute a due process violation. While the courts “should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to cross-examination, concerns over the child’s welfare are outweighed when balanced against the parent’s due process rights.” Testimony about a child’s allegations of abuse is relevant to the trial court’s custody decision, and when assessing testimony of abuse the trial court is called on to make credibility determinations, weigh the evidence, and resolve factual conflicts, which must be supported by the great weight of the evidence and is subject to the court’s review. The court affirmed the trial court’s order awarding defendant custody of the children.
Issues: Divorce; Whether the trial court could direct the parties to participate in a facilitative mediation to address the property division while a bankruptcy stay was in place; Lopez v. Lopez; Alleged violations of MCR 3.216(H)(8) and MCR 3.216(H)(7); Haliw v. City of Sterling Heights; In re KH; Whether the trial court properly enforced the settlement agreement even though it was not signed by the parties; Whether plaintiff failed to establish proper cause or a change of circumstances sufficient to revisit the prior custody and parenting time order; Fletcher v. Fletcher; Vodvarka v. Grasmeyer
Court: Michigan Court of Appeals (Unpublished)
Case Name: Meinke v. Meinke
e-Journal Number: 37771
Judge(s): Per Curiam - Jansen, Fitzgerald, and Markey
The trial court did not err in enforcing the property settlement agreement even though it was not signed by the parties and in entering judgment of divorce in conformity with the agreement following mediation and the parties’ later discharge from a bankruptcy proceeding. The plaintiff-wife moved to prohibit the mediator from signing an affidavit concerning the terms of the settlement agreement on the basis it would violate MCR 3.216(H)(8). The record revealed the mediator never signed such an affidavit. Thus, MCR 3.216(H)(8) was not violated. After the parties received their bankruptcy discharge, they concurred a settlement agreement had been put into writing following mediation, but disagreed about why they had not signed the agreement. The parties agreed to allow the trial court to contact the mediator to inquire whether the only reason the parties had not signed the settlement agreement was due to the pending bankruptcy. The mediator later informed the trial court the parties had reached a settlement. According to the mediator, the only reason the parties did not sign the written settlement at the time was because the bankruptcy matter was still pending. In light of this information, the trial court directed the parties to submit a divorce judgment in conformity with the settlement agreement. Plaintiff did not assert, let alone demonstrate, prejudice by the trial court’s decision to find a settlement was reached even though it was not signed by the parties. Further, the trial court noted the parties’ actions in the months following the settlement confirmed the fact they had in fact reached an agreement at the mediation session. Absent a showing of prejudice, any noncompliance with MCR 3.216(H)(7) was harmless. The agreement was reduced to writing. The trial court found the mediator credible when he asserted the agreement was not signed only because of the bankruptcy. But for the passage of time needed to resolve the bankruptcy, there would be no question of a binding settlement. Affirmed.
Litigation
skip to next practice areaThis summary also appears under Administrative Law
Issues: Whether MCR 7.105(K)(2) may be applied to dismiss an administrative appeal for failure to abide by a supplemental briefing schedule; Zantop Int’l Airlines, Inc. v. Eastern Airlines; Cranbrook Prof’l Bldg., LLC v. Pourcho; Maldonado v. Ford Motor Co.; Richards v. Tibaldi; Yudashkin v. Linzmeyer
Court: Michigan Court of Appeals (Unpublished)
Case Name: Bhama v. Civil Serv. Comm’n
e-Journal Number: 37752
Judge(s): Per Curiam - Donofrio, Hoekstra, and Markey
On remand from the Michigan Supreme Court for consideration as on leave granted, the court held MCR 7.105(K)(2) may not be applied to dismiss an administrative appeal for failure to abide by a supplemental briefing schedule. Petitioner argued the trial court erred in applying MCR 7.105(K)(2) to dismiss the appeals because the rule applied only to the initial appellate briefs required she filed her appeals in these matters. Petitioner contended while the parties stipulated to the filing of supplemental briefs following remand, no supplemental briefs were necessary to comply with the court rule and the trial court abused its discretion in relying on the rule to dismiss the appeals. Reviewing the language employed in the subrule, it is plain the phrase “its brief,” as used in subsection (2), refers to the appeal and response briefs required of a petitioner and respondent under subsection (1). It is equally plain subsection (1), which sets a definitive and truncated time period for the filing of briefs “after the record is filed with the court,” governs only the initial briefing schedule following the filing of a petition for review. The briefing schedule at issue, however, concerned supplemental briefing stipulated to by the parties following remand to respondent and not required under MCR 7.105(K). Thus, while the court acknowledged supplemental briefs would likely have been helpful in deciding the appeals following remand, the court agreed with petitioner the trial court abused its discretion in dismissing the appeals under MCR 7.105(K)(2) because the stipulated briefs were not required under MCR 7.105(K)(1). Reversed and remanded.
This summary also appears under Attorneys
Issues: Dismissal based on lack of standing; Real party in interest; MCR 2.201(B); MOSES, Inc. v. Southeast MI Council of Gov’ts; Whether the trial court properly denied plaintiff-Grier’s motion for declaratory judgment quieting title to the disputed property; Associated Builders & Contractors v. Director of Consumer & Indus.; Whether plaintiffs’ complaint to quiet title met the requirements of MCR 3.411 for a complaint to quiet title; Remand to provide Grier with an opportunity to amend his complaint; Franchino v. Franchino; Whether amendment would be futile; PT Today, Inc. v. Commissioner of the Office of Fin. & Ins. Servs.; Allegations of the unauthorized practice of law; MCL 600.916(1); Dressel v. Ameribank
Court: Michigan Court of Appeals (Unpublished)
Case Name: Grier v. Sunshine Auto Collision, Inc.
e-Journal Number: 37696
Judge(s): Per Curiam – Servitto, Sawyer, and Murray
While holding the trial court did not err in dismissing plaintiff-Grier’s complaint based on lack of standing or in denying his motion for a declaratory judgment quieting title, the court concluded it would not be futile to allow him to amend his complaint and remanded the case to permit him the opportunity to do so. Plaintiffs, in pro per, filed a complaint seeking to quiet title to property, alleging, inter alia, trespass, tortious interference with a contract, and slander of title against the defendants. The trial court entered an order dismissing plaintiff-Isby with prejudice for her failure to appear at relevant proceedings. Defendants then successfully moved to dismiss Grier’s complaint, arguing he lacked standing because his only alleged interest in the property would have to stem from a finding Isby (who he alleged deeded him the property) had a valid deed, and she had been dismissed. The factual allegations in the complaint concerning plaintiffs’ request to quiet title, and Grier’s remaining claims of tortious interference with a contract, trespass, and slander of title only had a basis with respect to Isby’s alleged title to the property. The complaint did not allege Grier had any interest in the property when the alleged claims arose. Thus, he could not establish he suffered an injury in fact due to defendants’ alleged acts and since Isby was previously dismissed with prejudice and Grier was the only remaining plaintiff, the trial court did not err in granting defendants’ motion under MCR 2.116(C)(5) and (C)(8). However, Grier also argued the trial court should have allowed him to amend his complaint and motion for a declaratory judgment to quiet title to reflect his alleged newly acquired interest in the property. Since the proposed amendment would arguably establish he had an interest in the property, it would not be futile. Affirmed in part but remanded. The court also addressed, but left it to the trial court to consider on remand, “whether Grier’s actions constitute the unauthorized practice of law.”
Issues: Motion for reconsideration; Law of the case doctrine; Schumacher v. Department of Natural Res.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Michigan Tooling Ass’n Workers’ Comp. Fund v. Farmington Ins. Agency, LLC
e-Journal Number: 37756
Judge(s): Memorandum - Wilder, Cavanagh, and Fort Hood
The court affirmed the trial court’s entry of judgment in favor of the defendant-Farmington Insurance after remand. In this appeal after remand, plaintiff appealed the trial court’s decision to allow defendant to amend its pleadings near the end of trial. Defendant argued, inter alia, the law of the case prevented reconsideration of the trial court’s ruling on the motion to amend. The court did not need to reiterate the facts of the case in this second appeal, other than to note the appeal sought to reopen a factual question decided by the trial court and addressed by the Supreme Court. In a motion for reconsideration, plaintiff argued defendant’s initial admissions were critical to the case and the Supreme Court should remand the case for consideration of the trial court’s ruling allowing defendant to withdraw those admissions. The Supreme Court denied plaintiff’s motion for reconsideration. The denial indicated the Supreme Court considered plaintiff’s challenge to the trial court’s ruling, and determined the argument did not alter the outcome of the case. Thus, the Supreme Court’s decision was the law of the case and the court was barred from reconsidering the issue. Affirmed.
Municipal
skip to next practice areaThis summary also appears under Real Property
Issues: Whether MCL 691.1417 provides a cause of action; Whether plaintiffs stated a valid claim under MCL 691.1417(3); Willett v. Waterford Twp.; “Defect” defined; MCL 691.1416(e); “Appropriate governmental agency” defined; MCL 691.1416(b); “Sewage disposal system event” defined; MCL 691.1416(k); “Sewage disposal system” defined; MCL 691.1416(j); “Substantial proximate cause” defined; MCL 691.1416(l); Pohutski v. City of Allen Park; The Michigan Drain Code (MCL 280.1 et seq.); MCL 280.191; MCL 280.72; MCL 280.151; The “tributary offsite acreage” (TOA)
Court: Michigan Court of Appeals (Published)
Case Name: Bosanic v. Motz Dev., Inc.
e-Journal Number: 37781
Judge(s): Bandstra, Owens, and Davis
The trial court erred in failing to grant summary disposition to the defendant-drain commissioner because plaintiffs failed to state a valid claim the requirement of MCL 691.1417(3)(d) was satisfied. Plaintiffs sought compensation from defendant because of flooding, which damaged their homes following an extraordinarily severe rainfall in May 2004. Their primary claim was the drain system in their subdivision was seriously undersized, and this resulted primarily from a failure, during the design process in the late 1990s, to appropriately measure the acreage near the subdivision from which water would flow into the system (the TOA). Defendant contended summary disposition was warranted because the statute providing an exception to immunity, MCL 691.1417, does not itself provide a cause of action, and plaintiffs did not allege any separate cause of action. Defendant also argued plaintiffs failed to state a valid claim as to the elements required under the statute (if it provides a cause of action). The court held defendant was wrong on the first issue (the immunity exception statute provides for a potential cause of action) but was correct with respect to the second issue (the statute’s requirements were not satisfied under the facts alleged by plaintiffs). Defendant’s claim it was without “the legal authority to . . . repair, correct, or remedy the defect” at or before “the time of the event” had merit. Prior to the “event” (the May 2004 flood), no petition had been filed and no board of determination decision directing defendant to “repair, correct or remedy” the problem in the drain system had been made. In the absence of those prerequisite actions, defendant had no authority to address the defect in the drain system. Although a petition for repair was ultimately filed by some of the plaintiffs and others after, and as a result of, the flood, it certainly did nothing to empower defendant to take prior corrective action to prevent the flood. Reversed and remanded for entry of an order granting the drain commissioner summary disposition.
This summary also appears under Real Property
Issues: Suit to enforce a restrictive covenant; Whether the plaintiff-City lacked standing to enforce the owner-occupancy requirement; Terrien v. Zwit; Indian Village Ass’n v. Barton; Hill v. Rabinowitch; Tabern v. Gates; Whether the trial court properly refused to apply the less restrictive owner-occupancy requirement applicable to later phases of the subdivision to Eley Acres; Webb v. Smith (After Second Remand); Whether plaintiff was entitled to attorney fees on the ground the appeal was vexatious or as provided in the declaration of restrictions; MCR 7.216(C)(1)(a); Zeeland Farm Servs., Inc. v. JBL Enters., Inc.; Whether compliance with an injunction renders a challenge to the propriety of the injunction moot; Affeldt v. Dudley Paper Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: City of Otsego v. Walters
e-Journal Number: 37698
Judge(s): Per Curiam – Murphy, Smolenski, and Meter
Since the plaintiff-City had standing to enforce the restrictive covenant and the covenant could properly be enforced, the trial court correctly granted summary disposition in favor of plaintiff. Prior to 1978, plaintiff bought a tract of farmland from the Eley family to develop a single-family residential community. It developed the farmland in six phases platting the first phase in 1978, and the sixth/last phase in 2002. The six phases contained a series of restrictive covenants intended to insure the lots were used only for single-family residential purposes. Plaintiff altered the owner-occupancy required in all phases after the first two. In 1981, plaintiff conveyed lot #5 by warranty deed to Otsego Public Schools, subject to the conditions, restrictions, limitations, and easements of record. The schools conveyed lot #5 to defendant-Walters’ mother, subject to the same conditions. In 1983, the mother quitclaimed her interest to herself and Walters as joint tenants with rights of survivorship. The mother left the home in November 2002. In December 2002, Walters leased the home to a tenant. Plaintiff sent a letter informing her leasing the property violated the owner-occupancy requirement. Her attorney responded, saying the lease was temporary and Walters intended to sell. She was unable to find a buyer. The mother died in 2005 and Walters again leased the property. Plaintiff notified Walters the lease violated the owner-occupancy requirement and gave her 30 days to sell. Walters then conveyed her interest by quitclaim deed to herself and her business partner, defendant-Bolger. They conveyed the property to defendant-J & J Windigo, LLC. Walters and Bolger were the sole members of the business. In April 2006, plaintiff sued defendants asking the trial court to declare by renting the property, defendants violated the requirement the property be owner occupied and asking the trial court to permanently enjoin defendants from violating the restrictions applicable to the property. The trial court agreed and granted plaintiff’s motion for summary disposition. Affirmed.
This summary also appears under Constitutional Law
Issues: Claim the defendants-police officers used excessive force in arresting plaintiff violating his Fourth Amendment rights; Jurisdiction over the interlocutory appeal; Sheets v. Mullins; Phelps v. Coy; Whether qualified immunity should be granted to defendants if there was no violation of plaintiff’s Fourth Amendment rights; Whether the district court properly denied the officers qualified immunity on plaintiff’s § 1983 claim and governmental immunity on the state law claim of assault and battery; Use of videotape capturing the events; Scott v. Harris; Brosseau v. Haugen; Saucier v. Katz; Graham v. Connor; Solomon v. Auburn Hills Police Dep’t; Turek v. Saluga (Unpub.); Walton v. City of Southfield; State law claims of assault and battery; MCR 7.292(6)(a)(v); Anderson v. Antal; Tope v. Howe; People v. Hanna
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Marvin v. City of Taylor
e-Journal Number: 37780
Judge(s): Ackerman and Batchelder; Dissent – Daughtrey
Since the plaintiff failed to establish the deprivation of his Fourth Amendment rights, where in each discrete event, from the scene of the arrest, to the entrance at the police station, to the booking room, to the jail cell, to the blood draw at the clinic, he failed to demonstrate the officers acted in an objectively unreasonable manner, the defendants-officers were entitled to summary judgment on plaintiff’s § 1983 claim. Thus, the court did not need to inquire further as to whether defendants were entitled to qualified immunity. Further, because defendants’ actions were objectively reasonable, they could not be liable on the pendent state law assault and battery claims. Allegedly, the highly intoxicated (his BAC was 225 percent over the legal limit) 78-year old plaintiff rear-ended a vehicle stopped at an intersection. A commander in the City of Taylor Police Department owned the vehicle and the incident occurred as he and his family were returning from church. Plaintiff alleged the police used excessive force in arresting him and during their conduct involving him at the police station. The court concluded even construing the facts in the light most favorable to the plaintiff, the defendants did not violate his constitutional rights when they “forced a drunk suspect, who had just crashed his vehicle into another and was resisting arrest, into a submissive posture in order to handcuff him behind his back so as to immobilize his hands and arms.” The court found defendants did not violate plaintiff’s Fourth Amendment rights at the scene of his arrest because they acted in an objectively reasonable manner in light of his heavily intoxicated state, abusive language, and his resistance to arrest. The court reversed the district court’s denial of qualified immunity and governmental immunity on the grounds the defendants’ actions were objectively reasonable and did not violate plaintiff’s Fourth Amendment right to be free from unreasonable seizures.
Real Property
skip to next practice areaThis summary also appears under Municipal
Issues: Whether MCL 691.1417 provides a cause of action; Whether plaintiffs stated a valid claim under MCL 691.1417(3); Willett v. Waterford Twp.; “Defect” defined; MCL 691.1416(e); “Appropriate governmental agency” defined; MCL 691.1416(b); “Sewage disposal system event” defined; MCL 691.1416(k); “Sewage disposal system” defined; MCL 691.1416(j); “Substantial proximate cause” defined; MCL 691.1416(l); Pohutski v. City of Allen Park; The Michigan Drain Code (MCL 280.1 et seq.); MCL 280.191; MCL 280.72; MCL 280.151; The “tributary offsite acreage” (TOA)
Court: Michigan Court of Appeals (Published)
Case Name: Bosanic v. Motz Dev., Inc.
e-Journal Number: 37781
Judge(s): Bandstra, Owens, and Davis
The trial court erred in failing to grant summary disposition to the defendant-drain commissioner because plaintiffs failed to state a valid claim the requirement of MCL 691.1417(3)(d) was satisfied. Plaintiffs sought compensation from defendant because of flooding, which damaged their homes following an extraordinarily severe rainfall in May 2004. Their primary claim was the drain system in their subdivision was seriously undersized, and this resulted primarily from a failure, during the design process in the late1990s, to appropriately measure the acreage near the subdivision from which water would flow into the system (the TOA). Defendant contended summary disposition was warranted because the statute providing an exception to immunity, MCL 691.1417, does not itself provide a cause of action, and plaintiffs did not allege any separate cause of action. Defendant also argued plaintiffs failed to state a valid claim as to the elements required under the statute (if it provides a cause of action). The court held defendant was wrong on the first issue (the immunity exception statute provides for a potential cause of action) but was correct with respect to the second issue (the statute’s requirements were not satisfied under the facts alleged by plaintiffs). Defendant’s claim it was without “the legal authority to . . . repair, correct, or remedy the defect” at or before “the time of the event” had merit. Prior to the “event” (the May 2004 flood), no petition had been filed and no board of determination decision directing defendant to “repair, correct or remedy” the problem in the drain system had been made. In the absence of those prerequisite actions, defendant had no authority to address the defect in the drain system. Although a petition for repair was ultimately filed by some of the plaintiffs and others after, and as a result of, the flood, it certainly did nothing to empower defendant to take prior corrective action to prevent the flood. Reversed and remanded for entry of an order granting the drain commissioner summary disposition.
This summary also appears under Municipal
Issues: Suit to enforce a restrictive covenant; Whether the plaintiff-City lacked standing to enforce the owner-occupancy requirement; Terrien v. Zwit; Indian Village Ass’n v. Barton; Hill v. Rabinowitch; Tabern v. Gates; Whether the trial court properly refused to apply the less restrictive owner-occupancy requirement applicable to later phases of the subdivision to Eley Acres; Webb v. Smith (After Second Remand); Whether plaintiff was entitled to attorney fees on the ground the appeal was vexatious or as provided in the declaration of restrictions; MCR 7.216(C)(1)(a); Zeeland Farm Servs., Inc. v. JBL Enters., Inc.; Whether compliance with an injunction renders a challenge to the propriety of the injunction moot; Affeldt v. Dudley Paper Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: City of Otsego v. Walters
e-Journal Number: 37698
Judge(s): Per Curiam – Murphy, Smolenski, and Meter
Since the plaintiff-City had standing to enforce the restrictive covenant and the covenant could properly be enforced, the trial court correctly granted summary disposition in favor of plaintiff. Prior to 1978, plaintiff bought a tract of farmland from the Eley family to develop a single-family residential community. It developed the farmland in six phases platting the first phase in 1978, and the sixth/last phase in 2002. The six phases contained a series of restrictive covenants intended to insure the lots were used only for single-family residential purposes. Plaintiff altered the owner-occupancy required in all phases after the first two. In 1981, plaintiff conveyed lot #5 by warranty deed to Otsego Public Schools, subject to the conditions, restrictions, limitations, and easements of record. The schools conveyed lot #5 to defendant-Walters’ mother, subject to the same conditions. In 1983, the mother quitclaimed her interest to herself and Walters as joint tenants with rights of survivorship. The mother left the home in November 2002. In December 2002, Walters leased the home to a tenant. Plaintiff sent a letter informing her leasing the property violated the owner-occupancy requirement. Her attorney responded, saying the lease was temporary and Walters intended to sell. She was unable to find a buyer. The mother died in 2005 and Walters again leased the property. Plaintiff notified Walters the lease violated the owner-occupancy requirement and gave her 30 days to sell. Walters then conveyed her interest by quitclaim deed to herself and her business partner, defendant-Bolger. They conveyed the property to defendant-J & J Windigo, LLC. Walters and Bolger were the sole members of the business. In April 2006, plaintiff sued defendants asking the trial court to declare by renting the property, defendants violated the requirement the property be owner occupied and asking the trial court to permanently enjoin defendants from violating the restrictions applicable to the property. The trial court agreed and granted plaintiff’s motion for summary disposition. Affirmed.
Termination of Parental Rights
Issues: Termination pursuant to §§ 19b(3)(a)(i) and (ii), (c)(i), (g), and (j); In re Fried; In re Trejo Minors; Child’s best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Burciaga
e-Journal Number: 37773
Judge(s): Per Curiam – Schuette, Borrello, and Gleicher
Holding the trial court correctly terminated the respondent-father’s parental rights pursuant to §§ 19b(3)(a)(ii), (c)(i), (g), and (j), the court affirmed the trial court’s order terminating his parental rights. Respondent’s admission he did not call, visit, or make any effort to contact the child during the six months preceding the filing of the petition to terminate his rights constituted clear and convincing evidence he deserted the child for at least 91 days, pursuant to § 19b(3)(a)(ii). The record showed respondent did not know of the child’s existence until shortly before he stipulated to jurisdiction. The trial court placed the child with his maternal grandparents and offered respondent an opportunity to become part of his life. However, despite the availability of regular visitation during most of the following year, respondent’s absence from the child’s life continued – he did not visit him or provide him with any financial support. Thus, the record showed clear and convincing evidence established § 19b(3)(c)(i). As to § 19b(3)(g), respondent’s criminal conviction and incarceration made it impossible for him to support the child or to obtain suitable housing in the foreseeable future. The court also concluded the record clearly and convincingly showed respondent failed to comply with the case service plan, he had no employment or housing, and he was incarcerated for selling drugs. Thus, clear and convincing evidence supported the trial court’s finding of a reasonable likelihood the child would be harmed if placed in respondent’s custody. Further, the evidence did not support a finding terminating his parental rights was clearly contrary to the child’s best interests. Affirmed.
Issues: Termination pursuant to § 19b(3)(j); In re Fried; Children’s best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Long
e-Journal Number: 37776
Judge(s): Per Curiam – Schuette, Borrello, and Gleicher
The trial court did not clearly err in determining clear and convincing evidence established a reasonable likelihood the respondent-mother’s children would suffer harm if placed in her custody and in terminating her parental rights. Respondent gave birth to her daughter in January 2005, and took her to an ER in September 2005 because the child could not use her right arm. A physician determined the child had a healed rib fracture and a recent shoulder fracture. The police arrested respondent’s boyfriend and charged him with first-degree child abuse. The trial court placed the child in her maternal grandmother’s custody and ordered respondent to have no contact with the boyfriend. After respondent gave birth to the boyfriend’s child in March 2006, the trial court assumed jurisdiction over him. The trial court later allowed respondent to regain custody of the children in December 2006, under the petitioner-DHS’s supervision, and continued the no contact order. On April 18, 2007, DHS filed a permanent custody petition seeking termination of respondent’s parental rights two days after finding the boyfriend in her home. The court concluded the record clearly and convincingly established respondent allowed the boyfriend to remain in her home on April 16, 2007, in violation of the no contact order. Although he was allegedly yelling and very angry, she did not try to call the police and did not inform them of his presence when they came to the home. Apart from the events of April 16, 2007, the record showed respondent maintained a close relationship with the boyfriend for at least 9 months after he severely physically abused her daughter. The court concluded the trial court correctly observed respondent lacked the ability to understand and appreciate the danger he posed to her children. Affirmed.