• Attorneys (1)
• Constitutional Law (2)
• Contracts (3)
• Corrections (1)
• Criminal Law (5)
• Family Law (3)
• Insurance (4)
• Litigation (2)
• Municipal (3)
• Real Property (1)
• Termination of Parental Rights (1)

Attorneys

 

This summary also appears under Family Law

 

Issues: Attorney fee dispute stemming from defendant-mother's motion to restrict plaintiff-father's parenting time and his motion for a change of custody; Whether the trial court properly granted the father's request for attorney fees and costs; Smith v. Smith; Reed v. Reed; Keinz v. Keinz; MCL 600.2591; MCL 600.2591(1); "Frivolous"; MCL 600.2591(3)(a)(i); "Prevailing party"; MCL 600.2591(3)(b); Hansen Family Trust v. FGH Indus.; Arguments as to the amount of attorney fees awarded; Abandonment; Ykimoff v. WA Foote Mem'l Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: O'Farrell v. O'Farrell

e-Journal Number: 53233

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

 

The court held that both the evidence of the circumstances of the defendant-mother's filing of the motion to restrict the plaintiff-father's parenting time and the circumstantial evidence of the mother's conduct before and after the motion demonstrated that the motion was part of an ongoing effort to harass the father and injure his relationship with the child. The court held that it was not left with a definite and firm conviction that the trial court mistakenly found that the mother's motion was frivolous. Thus, the trial court did not abuse its discretion when it decided to award attorney fees and costs to the father, the prevailing party on the frivolous motion. The parties divorced in 12/08. The judgment of divorce provided that they would have joint legal custody of their minor child, who was two years old at the time. The judgment of divorce granted the mother physical custody of the child until further order of the trial court and ordered an extensive, detailed parenting-time schedule. The trial court denied both the mother's parenting-time motion and the father's change-of-custody motion. The trial court also increased the father's parenting time. Thus, the father was the prevailing party for purposes of the mother's parenting-time motion. Under MCL 600.2591(3)(a)(i), the mother's motion was frivolous if her primary purpose in initiating the motion was to harass, embarrass, or injure the father. The trial court found that "the primary purpose of Mrs. O'Farrell's conduct in the legal proceedings was to harm and injure Mr. O'Farrell's relationship with his daughter. She has tried to harass and embarrass him through the sexual abuse allegations." The trial court appeared to have based this conclusion of frivolousness on the following factual findings - 1) the mother had continuously attempted to limit and interrupt the father's parenting time and relationship with the child; 2) numerous unsubstantiated DHS referrals were made by agents of the mother (family members, therapist, and doctors induced by the mother to make referrals) who the mother knew were mandatory reporters of suspected child abuse; 3) the severity of the allegations to DHS increased to claims that the father sexually abused the child; 4) the mother's testimony and a video she took of the child demonstrating that the father sexually abused the child were not believable; 5) the child did not display separation anxiety or detachment disorder; and 6) there was no evidence that the father physically or sexually abused the child. The trial court's factual findings, including its finding as to frivolousness, were not clearly erroneous. There was considerable record evidence supporting the trial court's findings, particularly that the mother's motion to restrict parenting time was part of an ongoing effort to harass the father and injure his relationship with the child. Evidence of the mother's conduct before and after she moved the trial court to restrict the father's parenting time was strong circumstantial evidence of her intent for filing the motion. Affirmed.

 

Constitutional Law

 

This summary also appears under Municipal

 

Issues: Whether the trial court correctly held that an ordinance (BCO § 18-59) on its face violated substantive due process; Review; Kuznar v. Raksha Corp.; Kyser v. Kasson Twp.; Kropf v. City of Sterling Heights; Hendee v. Putnam Twp.; Brighton Code of Ordinances (BCO); Substantive and procedural due process principles; Reed v. Reed; General Motors Corp. v. Department of Treasury; Mettler Walloon, LLC v. Melrose Twp.; Zinermon v. Burch; Schiller v. Strangis (D MA); People v. Sierb; Ypsilanti Charter Twp. v. Kircher; In re Brock; Mathews v. Eldridge; Washington v. City of Winchester (KY App.); Herrit v. Code Mgmt. Appeal Bd. of the City of Butler (PA Comm.); Commissioner of State Police v. Anderson; In re Rood

Court: Michigan Court of Appeals (Published)

Case Name: Bonner v. City of Brighton

e-Journal Number: 53374

Judge(s): Markey and Shapiro; Dissent - Murray

 

Concluding that demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even more costly ones than the present value of the structure and which the owner is willing and able to timely incur, the court held that zoning ordinance BCO § 18-59 violated substantive due process. By not providing a procedure to safeguard an owner's right to retain property by performing repairs that could be viewed as unreasonable, which safeguard would burden the defendant-City to a lesser extent than demolition, the City's ordinance also violated procedural due process. Thus, the court affirmed the trial court's order granting partial summary disposition for the plaintiffs. Plaintiffs own two residential properties located in downtown Brighton. There is a house on one parcel and a house with a garage or barn on the other parcel. According to the City, the three structures have been unoccupied, ignored, and unmaintained for over 30 years representing the "most egregious instances of residential blight in Brighton." A City building official told plaintiffs in a letter that the structures were unsafe under the BCO and public nuisances under Michigan common law. The building official cited a litany of alleged defects and code violations. Plaintiffs were also told that it was determined that it was unreasonable to repair the structures as defined in BCO § 18-59. They were ordered to demolish the structures with no option to repair within 60 days. Plaintiffs appealed the determination to the city council. In preparation for the meeting, they retained a structural engineer and various contractors to determine the necessary repairs to bring the structures into code compliance. They later filed affidavits signed by the retained engineer and contractors who opined that the structures were safe, structurally sound, and readily repairable. The city council initially tabled the appeal. The building official also denied plaintiffs the required permits to repair the buildings. The City later adopted the building official's findings and ordered plaintiffs to demolish the structures in 60 days. Plaintiffs did not take any steps toward demolition and sued the City alleging, inter alia, a violation of procedural and substantive due process. The trial court found that BCO § 18-59 violated substantive due process because it precluded property owners from having the opportunity to repair their property, which served no rational interest or purpose, was entirely arbitrary, and shocked the conscience. The court also held that BCO § 18-59 violated substantive due process and did not provide adequate procedural safeguards to satisfy the Due Process Clause. The court interpreted the ordinance as only allowing the exercise of an option to repair when a property owner overcomes or rebuts the presumption of unreasonableness by proving that it is economical to do so, regardless of whether the property owner is otherwise willing and able to make the necessary repairs. The court held that this standard was "arbitrary and unreasonable." Also, the court concluded that while police powers generally allow the demolition of unsafe structures to achieve the legitimate legislative goal of keeping citizens safe, the "ordinance's exclusion of a repair option when city officials deem repairs unreasonable on the basis of expense the owner is able and willing to incur bears no reasonable relationship to the legislative objective."

 

This summary also appears under Municipal

 

Issues: Alleged Fourth Amendment violation by the defendant-City's employees in investigating rental property for potential over-occupancy; Whether the plaintiff-landlord had "standing" to contest the alleged search of his tenants' mailboxes; People v. Lombardo; People v. Brown

Court: Michigan Court of Appeals (Unpublished)

Case Name: Doherty v. City of E. Lansing

e-Journal Number: 53219

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

 

Holding that the trial court properly ruled that the plaintiff-landlord lacked standing to contest the alleged search of his tenants' mailboxes, the court affirmed the trial court's order granting the defendant-City and the individual defendants-City employees summary disposition. Plaintiff owns and operates several rental properties in the City, two of which were at issue here. The two properties form a duplex. Plaintiff never resided at the duplex, but instead rents it to tenants. In the fall of 2008 two of the City's employees, defendants-Dutcher and Graham, investigated the duplex for potential over-occupancy. Dutcher reported that he and Graham "observed that there were four names on each mailbox" (one for each unit). The mailboxes are freestanding and located on the street. "Dutcher did not expressly report that he opened the mailboxes, and testified during his deposition that he does not remember if he did." However, plaintiff testified that his tenants wrote their names on the inside of the mailbox on the lid. As a result of the investigation, the City concluded that plaintiff was intentionally over-occupying both units of the duplex, and issued him approximately 85 civil infractions. The district court issued a consent judgment in which plaintiff admitted responsibility for 30 maximum occupancy violations and agreed to pay the City $7,800 in fines and costs. Plaintiff then sued the City and its employees, alleging that they committed an unconstitutional search by looking inside of the duplex's mailboxes during the City's investigation. In granting the defendants summary disposition, the trial court concluded that plaintiff lacked standing to sue because he did not have a legitimate expectation of privacy in the inside lids of the mailboxes. Plaintiff argued on appeal that he has a personal expectation of privacy in his tenants' mailboxes and that the fines and penalties he was subjected to "demonstrated a direct proprietary interest in the [P]roperty." The court concluded that assuming arguendo that the actions constituted a search, while the evidence supported that plaintiff had an ownership interest in the duplex, "such an interest alone does not establish that a personal expectation of privacy exists." Further, he has never resided in the duplex, or intentionally received mail there. He also stated that he does not believe he has a right to open the mailboxes, has never gone into the mailboxes to get mail, and would rely on his tenants to give him any of his mail that was delivered to them. Thus, the trial court properly found that that plaintiff lacked standing to sue.

 

Contracts

 

This summary also appears under Real Property

 

Issues: Foreclosure; Breach of contract; Alan Custom Homes, Inc. v. Krol; Trial Period Plan (TPP) under the Home Affordable Modification Program; Wigod v. Wells Fargo Bank; Whether the defendant violated federal law on home foreclosure when it failed to provide the plaintiff with a permanent mortgage loan modification; Fraudulent misrepresentation; "Mere allegations of fraud"; MCR 2.116(G)(4); LaMothe v. Auto Club Ins. Ass'n; Alleged violation of the Mortgage Brokers, Lenders, & Servicers Licensing Act (MBLSLA)(MCL 445.1651 et seq.); MCL 445.1672; Applicability of MCL 600.3205a; Frank W. Lynch & Co. v. Flex Techs., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bonsu v. Ocwen Loan Servicing, LLC

e-Journal Number: 53216

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

 

Holding, inter alia, that there was no genuine issue of material fact that the defendant did not breach the contract by failing to offer the plaintiff a permanent mortgage loan modification, the court affirmed the trial court's order granting defendant summary disposition in this case arising from a home foreclosure. Plaintiff alleged that defendant breached a contract with him, made fraudulent misrepresentations to him, violated the MBLSLA, and failed to comply with statutory foreclosure requirements. As to his breach of contract claim, he alleged that he entered into a TPP with defendant and he was promised a final loan modification but, although he performed his obligations, defendant failed to provide a permanent modification and proceeded with foreclosure. The court disagreed. It was undisputed that plaintiff and a co-borrower secured a loan with the mortgage at issue in 12/06. The TPP contract had signature lines for plaintiff and the co-borrower and specified that the borrower agreed "all persons who signed the Loan Documents or their authorized representative(s) have signed this Plan, unless a borrower or co-borrower is deceased or the Lender has waived this requirement in writing." While plaintiff's signature appeared on the final page of the agreement, the co-borrower's signature was missing. Plaintiff offered no proof of the co-borrower's signature and presented no evidence that she had a representative sign for her, that she was deceased, or that defendant waived this signature requirement. Further, for legal purposes plaintiff admitted that he failed to provide the co-borrower's signature on the TPP based on his failure to respond to defendant's request for admissions. The court also concluded that the evidence supported defendant's related arguments that "plaintiff failed to make timely payments and to submit requested documentation in a timely manner pursuant to the TPP." The court also held that the trial court properly dismissed plaintiff's fraudulent misrepresentation claim because it was based on "mere speculation" and was not supported by the record. Further, there was no evidence supporting his clam that defendant violated the MBLSLA. While plaintiff also asserted that defendant violated MCL 600.3205a, the court held that the statute did not apply because it was not in effect when the foreclosure proceedings on his home began and the Legislature did not intend for it to be applied retroactively.

 

This summary also appears under Insurance

 

Issues: The third-party defendants-Torrices' claim that defendant-American Fellowship (AF)'s claims for "arson" and "unjust enrichment" were legally insufficient to be considered by the jury; Adam v. Sylvan Glynn Golf Course; "Plain error"; Kern v. Blethen-Coluni; Whether the jury's verdict finding the Torrices liable on the unjust enrichment claim was against the great weight of the evidence; Sweet Air Inv., Inc. v. Kenney; Martin v. East Lansing Sch. Dist.; Requested special jury instruction defining the terms "vacant" and "unoccupied"; Hardrick v. Auto Club Ins. Ass'n; Whether the jury's verdict on AF's fraud or misrepresentation claim against third-party defendant-Carey was against the great weight of the evidence; Allard v. State Farm Ins. Co.; Lawrence M. Clarke, Inc. v. Richco Constr., Inc.; Oade v. Jackson Nat'l Life Ins. Co.; Forge v. Smith; Whether the jury's finding of a "concert of action" to support a civil conspiracy was against the great weight of the evidence; Hilgendorf v. St. John Hosp. & Med. Ctr. Corp.; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Challenge to the trial court's instructions on the elements of civil conspiracy; Whether the trial court properly refused to permit third-party defendant-Michael to testify at trial because he earlier invoked his Fifth Amendment right against self-incrimination; People v. McDaniel; Huntington Nat'l Bank v. Ristich; Allen v. Michigan Basic Prop. Ins. Co.; Phillips v. Deihm; Traficant v. Commissioner of Internal Revenue Serv. (6th Cir.); Alleged improper conduct by AF's attorney; MRE 402; McDonald v. Stroh Brewery Co.; MRE 401; MRE 403; Haberkorn v. Chrysler Corp.; Estate of Barbara Johnson v. Kowalski,; Reetz v. Kinsman Marine Transit Co.; Hunt v. Freeman; Amerisure Ins. Co. v. Auto-Owners Ins Co.; Denial of the Torrices' motion for relief from judgment; Heugel v. Heugel

Court: Michigan Court of Appeals (Unpublished)

Case Name: EMC Mtg. Corp. v. American Fellowship Mut. Ins. Co.

e-Journal Number: 53229

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

 

Concluding, inter alia, that there was no merit to the third-party defendants-Torrices' argument that the "arson" instruction was improper, the court affirmed the trial court's judgment, entered after a jury trial, in favor of defendant-American Fellowship Mutual Insurance Company (AF). AF was awarded damages of $36,000, case evaluation sanctions of $18,000, taxable costs of $1,748.36, and interest of $6,002.77, for a total judgment of $61,751.13. AF was also awarded a judgment of no cause of action on third-party defendant-Carey Torrice's counterclaim against it. The action arose from a fire at a home that Carey owned. Carey obtained a homeowner's insurance policy for the home from AF. Later that month, the home was destroyed by a fire. AF determined that the fire was intentionally set by someone who had access to the home. It also determined that the home was vacant when Carey applied for insurance coverage and remained vacant at the time of the fire, contrary to Carey's representations in the insurance application. AF made a partial payment of $36,000 under the policy to plaintiff-EMC Mortgage Corporation (EMC), which held a mortgage on the property and was named as an additional insured. EMC later sued AF and a previous insurer, defendant-Allstate Insurance Company, to recover the mortgage balance. AF filed a third-party complaint against Carey and Michael Torrice. EMC later dismissed its claims against the two insurers. The case proceeded to trial only on AF's claims against the Torrices and Carey's counterclaim for breach of contract. The Torrices argued that AF's claims for "arson" and unjust enrichment were legally insufficient to be considered by the jury. However, AF's complaint did not contain any claim for "arson." Rather, count VIII asserted a claim against Michael for fraud, which was based on allegations that he intentionally started the fire at Carey's house and then falsely represented that he did not know how the fire started to induce AF to pay insurance benefits to Carey. AF also brought a claim for civil conspiracy, alleging that Carey and Michael acted in concert to defraud AF. Although the trial court instructed the jury on "arson," the instruction was attendant to the fraud and civil conspiracy claims. The court concluded that the Torrices' argument that the "arson" instruction was improper was based on the erroneous assumption that Carey was the only person who was harmed by the alleged arson. AF also sustained economic harm from the fire because, as the insurer of the property, it made payment to EMC. Further, it was AF's theory that Michael intentionally set the fire as part of a conspiracy with Carey, the homeowner, to recover under the policy. Also, AF brought a separate, alternative claim against Michael for negligence, in which it alleged that his negligent conduct was the cause of the fire. "One of the principal issues at trial was whether the fire resulted from a negligent act, an intentional act, or an accident." Thus, "it was appropriate for the trial court to distinguish between an intentional, negligent, or accidental cause of the fire, and more specifically what constituted arson, to enable the jury to properly evaluate the fraud claim against Michael," and the civil conspiracy claim.

 

This summary also appears under Insurance

 

Issues: Whether the trial court properly ruled that coverage was not available under defendant-Devine's homeowners policy with defendant-Michigan Millers (MM); Insurance policy interpretation; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Hastings Mut. Ins. Co. v. Safety King, Inc.; Farm Bureau Mut. Ins. Co. v. Nikkel; Hayley v. Allstate Ins Co.; Exclusionary clause; Century Sur. Co. v. Charron; Whether there was coverage under a commercial liability policy; Claim that the trial court focused on an issue that was not raised by the parties - whether the injured party was using the boat in the course of his employment duties with defendant-Transportation Station (TS) at the time of his injury; "Own," "owned," and "ownership"; Doe v. Citizens Ins Co.; Twichel v. MIC Gen. Ins. Corp.; Iqbal v. Bristol W. Ins. Group

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nenoff v. Transportation Station Auto Sales, LLC

e-Journal Number: 53230

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

 

The court held, inter alia, that because the boat was not described on the Watercraft Schedule and there was no genuine issue of material fact that the boat was available for defendant-Devine's regular use, the trial court properly ruled that coverage was not available under defendant-Michigan Millers (MM)'s policy. Thus, the trial court did not err in granting MM's motion for summary disposition. Devine is the sole owner of defendant-Transportation Station (TS), a used-car dealership. He purchased a 2004 powerboat for personal use. He used both personal funds and funds from TS to purchase the boat. Devine had the seller leave the name of the purchaser blank on the title - as Devine did with TS cars in his inventory - because he intended to treat the boat as being owned by TS for insurance and tax purposes. According to Devine's and plaintiff-Nenoff's (who worked for TS) deposition testimony, the title was kept at TS. Devine stored the boat at various times at the car lot, his house, and his cottage, and he kept the keys in the center console of his car. He never needed to get permission from anyone to use the boat, and when it was used, he was at least one of the people on the boat. Nenoff was injured while fishing on the boat with Devine. Nenoff brought a negligence action against TS and Devine, which resulted in a consent judgment that allowed Nenoff to recover up to $250,000 from any applicable insurance policy. MM, Devine's insurer under a homeowners policy, was named as a garnishee-defendant but denied liability for coverage under its policy. Plaintiff-Auto-Owners, the insurer for TS under a commercial liability policy, filed a separate declaratory-judgment action, seeking a determination that it was not liable for coverage under its policy. Nenoff argued that the trial court erred in ruling that coverage was not available under Devine's homeowners policy with MM. That policy contained an endorsement for "Personal Boat Liability Coverage." The definition of "insured property" referred to a boat described in the policy. Although the Watercraft Schedule for Devine's homeowners policy described a "1997 Four Winns Boat" that he also owned, it did not describe the 2004 Four Winns boat that was involved in this accident. Under the policy provisions, MM's homeowners policy provided coverage for liability arising out of either "insured property" or a "non-owned boat." For a boat to qualify as "insured property," it was required to be described in the policy. Since it was undisputed that the 2004 Four Winns boat was not described in the policy, it did not qualify as "insured property." Nenoff correctly asserted that coverage was also available under the homeowners policy for a boat that was not owned by Devine. While he argued that there was a question of fact as to ownership of the boat, coverage was still excluded for liability arising from the use of a boat not described in the policy that was furnished or available for the insured's regular use. "Viewing the record evidence in a light most favorable to Nenoff, reasonable minds could not disagree that the boat was available for Devine's regular use." As to the Auto-Owners policy, coverage was only available if, inter alia, the boat was not owned by TS, and the evidence clearly showed that TS also had an ownership claim to the boat.

 

Corrections

 

This summary also appears under Criminal Law

 

Issues: Whether the trial court properly denied plaintiff's complaint for a writ of habeas corpus; Whether the defendant-Parole Board's delay in holding the parole revocation hearing until the resolution of his criminal prosecution waived his parole violations; Jackson v. Department of Corr.; Moses v. Department of Corr.; MCL 791.240a; Jones v. Department of Corr.; Whether plaintiff's defense was prejudiced the delay in violation of his due process rights; In re Parole of Haeger; Brown v. Jansen (WD MI); Hinton v. Parole Bd.; "Prejudice"; People v. Passage; People v. Pickens; MCL 791.240a(9) (standard of proof); People v. McEntyre

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hill v. Parole Bd.

e-Journal Number: 53271

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

 

Since the appropriate remedy for a violation of MCL 791.240a is a complaint for an order of mandamus rather than a writ of habeas corpus, and the plaintiff has already received a parole violation hearing, making a complaint for mandamus moot, the court held, inter alia, that there was no relief it could grant plaintiff for the MCL 791.240a violation. Plaintiff was originally granted a 24-month period of parole on 5/22/07, following an extended incarceration for two counts of bank robbery. On 11/26/08, he was alleged to have been involved with a carjacking. As a result, his parole agent charged him with three parole violations. They were dismissed at a 6/26/09 violation hearing because the only witness to the carjacking was unwilling to testify. Plaintiff's parole was extended to expire on 5/22/10. On 11/15/09, he was involved in a home invasion and armed robbery. He was released on bail on 12/23/09 and was taken back into custody on 6/16/09, when his bail was revoked. He has been in custody since that time. As a result of his involvement in the 2009 home invasion and armed robbery, his parole agent charged him with six new parole violations. No parole revocation hearing was held because he pleaded guilty to one felony charge of armed robbery. On 5/13/11, he withdrew his guilty plea, but remained in custody pending trial on the armed robbery and home invasion charges. On 8/11/11, a parole violation warrant was issued for him. Also, his parole was extended to expire on 5/22/12. On 1/23/12, his armed robbery and home invasion charges were dismissed without prejudice. After that, he was in custody solely as a result of his alleged parole violations. Plaintiff filed a petition for a writ of habeas corpus on 2/1/12, arguing he should be released because the charges were dropped. While the petition was pending, a parole revocation hearing was held on 3/15/12. Plaintiff was found guilty of four of the six parole violations he was charged with and a continuance was ordered. His habeas petition was dismissed on 4/13/12. Plaintiff contended on appeal, among other things, that defendants' delay in holding the parole revocation hearing until the resolution of his criminal prosecution was a waiver of his parole violations. The Supreme Court has held that when the Parole Board fails to hold the fact-finding hearing within the 45-day statutory timeframe provided by MCL 791.240a(3), the board's "statutory authority to revoke parole" is not relinquished. Instead the appropriate remedy for a violation of the statute "is a complaint for an order of mandamus rather than a writ of habeas corpus." Affirmed.

 

Criminal Law

 

Issues: Whether the circuit court properly denied the defendant an opportunity for oral argument before deciding the appeal from the district court; MCR 7.101(K); In re Attorney Fees of Mulkoff; Whether the failure to provide oral argument required reversal or remand; In re Jackson; The "harmless error" test in MCR 2.613(A); Whether the police violated defendant's Fourth Amendment rights by remaining in his home after he revoked his consent; People v. Frohriep; Georgia v. Randolph; "Plain error" review; People v. Carines; People v. Pesquera; Applicability of People v. Moreno; Whether defendant presented/preserved for appeal a defense to the resisting arrest charge on the basis of police unlawful conduct; Limited retroactive application of Moreno; People v. Pasha; People v. Hampton; Reliance on People v. Ventura; Whether defendant was required to pay an additional filing fee for the second order being appealed under MCL 600.321(1)(a); The court's Internal Operating Procedure 7.205(B)(7)-1; MCR 7.205(A)(1), (A)(2), and (B)(2); Exclusion of evidence about the extent and nature of the injuries defendant sustained during his arrest; Exclusion of evidence as to the use of excessive force; Exclusion of evidence about the police department's policies and procedures when using force; People v. Feezel; MRE 402; "Relevant evidence" (MRE 401); People v. Crawford; People v. Solak; McCallum v. Department of Corrs.; Right to present a defense; People v. Likine; Exclusion of a transcript of an audio recording; People v. Lester

Court: Michigan Court of Appeals (Published)

Case Name: People of the City of Westland v. Kodlowski

e-Journal Number: 53373

Judge(s): Murray and Markey; Dissent – Shapiro

 

The court held, inter alia, that while the circuit court erred in denying the defendant an opportunity for oral argument before deciding the appeal from the district court, reversal or remand was not required because the failure to allow oral argument was not inconsistent with substantial justice. Applying Randolph, the court also held that defendant's withdrawal of consent to the officers' presence in his home was irrelevant to the Fourth Amendment analysis given that they were present to respond to a domestic dispute. Further, the court held that Moreno only applies where the defendant preserved the issue in the trial court and raised it before the court, or if the defendant can show plain error under Carines. The court concluded that defendant neither raised the issue before it nor preserved the issue in the trial court, and he could not show plain error. Thus, the court affirmed the circuit court's order affirming the district court's judgment convicting him of resisting arrest in violation of a city ordinance. The court first rejected defendant's argument that he should not be required to pay an additional filing fee for the second order being appealed under MCL 600.321(1)(a) (the second order denied his motion for reinstatement of oral argument). As to the oral argument issue, the court held that "the direct and plain language of MCR 7.101(K) requires the circuit court to provide a party with an opportunity to present an oral argument if it complies with MCR 7.101(K) by requesting oral argument when filing a brief on appeal." Since defendant complied with the court rule, the circuit court erred in denying his motion for reinstatement of oral argument. However, applying the harmless error test in MCR 2.613(A), the court noted that "the inability to present oral argument is not a significant detriment to success on appeal." The court and the Supreme Court routinely decide cases without oral argument, as do circuit courts when deciding motions. Briefs filed with the court or the circuit court should contain all of the arguments, issues, facts and law necessary for a proper resolution of the case, and should have relevant documentary evidence attached as exhibits. Also, defense counsel presented oral argument to the court on the same issues that he presented in writing to the circuit court, rendering any loss of oral argument to the circuit court harmless. As to defendant's Fourth Amendment argument, the court concluded that since "the officers were present to respond to a domestic dispute, they had an obligation to investigate potential domestic violence. They were not there to search for evidence." Thus, defendant's decision to revoke his consent did not render their presence unlawful. The court also held that defendant failed to raise the defense that he resisted an arrest that was unlawful because of excessive force used by the police, so the Moreno issue was not preserved. He testified, and argued to the jury, that he never resisted the officers. The court concluded that controlling Supreme Court precedent provides that Moreno should only have limited retroactive application, noting that prosecutors, defendants and trial courts across the state have relied on Ventura in making decisions about charging, trial strategy, and guilt or innocence.

 

This summary also appears under Corrections

 

Issues: Whether the trial court properly denied plaintiff's complaint for a writ of habeas corpus; Whether the defendant-Parole Board's delay in holding the parole revocation hearing until the resolution of his criminal prosecution waived his parole violations; Jackson v. Department of Corr.; Moses v. Department of Corr.; MCL 791.240a; Jones v. Department of Corr.; Whether plaintiff's defense was prejudiced the delay in violation of his due process rights; In re Parole of Haeger; Brown v. Jansen (WD MI); Hinton v. Parole Bd.; "Prejudice"; People v. Passage; People v. Pickens; MCL 791.240a(9) (standard of proof); People v. McEntyre

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hill v. Parole Bd.

e-Journal Number: 53271

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

 

Since the appropriate remedy for a violation of MCL 791.240a is a complaint for an order of mandamus rather than a writ of habeas corpus, and the plaintiff has already received a parole violation hearing, making a complaint for mandamus moot, the court held, inter alia, that there was no relief it could grant plaintiff for the MCL 791.240a violation. Plaintiff was originally granted a 24-month period of parole on 5/22/07, following an extended incarceration for two counts of bank robbery. On 11/26/08, he was alleged to have been involved with a carjacking. As a result, his parole agent charged him with three parole violations. They were dismissed at a 6/26/09 violation hearing because the only witness to the carjacking was unwilling to testify. Plaintiff's parole was extended to expire on 5/22/10. On 11/15/09, he was involved in a home invasion and armed robbery. He was released on bail on 12/23/09 and was taken back into custody on 6/16/09, when his bail was revoked. He has been in custody since that time. As a result of his involvement in the 2009 home invasion and armed robbery, his parole agent charged him with six new parole violations. No parole revocation hearing was held because he pleaded guilty to one felony charge of armed robbery. On 5/13/11, he withdrew his guilty plea, but remained in custody pending trial on the armed robbery and home invasion charges. On 8/11/11, a parole violation warrant was issued for him. Also, his parole was extended to expire on 5/22/12. On 1/23/12, his armed robbery and home invasion charges were dismissed without prejudice. After that, he was in custody solely as a result of his alleged parole violations. Plaintiff filed a petition for a writ of habeas corpus on 2/1/12, arguing he should be released because the charges were dropped. While the petition was pending, a parole revocation hearing was held on 3/15/12. Plaintiff was found guilty of four of the six parole violations he was charged with and a continuance was ordered. His habeas petition was dismissed on 4/13/12. Plaintiff contended on appeal, among other things, that defendants' delay in holding the parole revocation hearing until the resolution of his criminal prosecution was a waiver of his parole violations. The Supreme Court has held that when the Parole Board fails to hold the fact-finding hearing within the 45-day statutory timeframe provided by MCL 791.240a(3), the board's "statutory authority to revoke parole" is not relinquished. Instead the appropriate remedy for a violation of the statute "is a complaint for an order of mandamus rather than a writ of habeas corpus." Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's assault with intent to do great bodily harm less than murder (AWIGBH) conviction; People v. Brown; "Intent"; People v. Leach; People v. Kanaan; Conflicting testimony; People v. Nowack; The jury's role in considering the weight of the evidence and the witnesses' credibility; People v. Wolfe

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Broom

e-Journal Number: 53258

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

 

Holding that the evidence supported that the defendant had the intent to commit great bodily harm less than murder, the court rejected his claim that the evidence failed to show that he had the required intent to support his AWIGBH conviction. He encountered the victim (W) on the top floor of a parking garage. Earlier that evening, defendant's former girlfriend, her sister, and her sister-in-law twice initiated an exchange of negative comments with him while he was rollerblading with a group of his friends through town. The sisters later joined W, who was drunk, and called defendant to learn where he was and announce that they would bring someone over to fight him. He told the sisters his location. Witnesses who were with defendant indicated that he became angry and one witness testified that he indicated that he wanted to kill W. Defendant also removed his rollerblades and the jewelry that he was wearing. Evidence was presented that when W arrived, he did not approach defendant or display any threatening behavior before the assault. Rather, defendant approached W and asked if he was there to fight him. W responded that he did not want to fight or was too drunk to fight. Defendant told W that he had "three seconds" and began counting. Multiple witnesses testified that W then began to move away from defendant. Before reaching three, defendant punched W in the face and W fell to the ground. Defendant then struck W between two and seven more times, before one of defendant's friends pulled him off of W. The evidence suggested that he again indicated that he wanted to kill W. As a result of the incident, W sustained "multiple facial injuries, including facial bone fractures, and had a lip laceration deep enough to potentially 'impair normal function of the mouth and lips.'" While there was some conflicting testimony, the court noted that when determining whether sufficient evidence was presented, any conflicts in that regard are resolved in the prosecution's favor. Further, the court will not interfere with the jury's role in considering the weight of the evidence and the witnesses' credibility. Concluding that reversal was not warranted, the court affirmed defendant's AWIGBH and aggravated assault convictions.

 

Issues: Sentencing; Whether the Michigan Legislature's amendment of the Crime Victim's Rights Act (CVRA)(MCL 780.905) increasing the crime victim's assessment violated the Ex Post Facto Clauses of the U.S. and Michigan Constitutions; People v. Callon; U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10; Weaver v. Graham; Carmell v. Texas; Whether the increased assessment is a "punishment"; People v. Earl; Stare decisis; WA Foote Hosp. v. City of Jackson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dunn

e-Journal Number: 53238

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

 

Rejecting defendant-Dunn's argument that the increased crime victim's assessment violates the Ex Post Facto Clauses of the U.S. and Michigan Constitutions because it is a punishment, the court held that the trial court did not err when it determined that the assessment is not an increased punishment, and that imposing the increased assessment did not violate ex post facto principles. On 7/3/10, a police officer observed Dunn placing a handgun inside of a vehicle. As a result of a prior conviction, he did not have the right to carry a handgun. On 7/3/10, the CVRA authorized trial courts to order persons convicted of felonies to pay a crime victim's assessment of $60. On 12/16/10, the Michigan Legislature amended the CVRA with immediate effect, increasing the assessment from $60 to $130. On 1/7/11, Dunn pleaded guilty to felony-firearm. On 1/21/11, the trial court sentenced him to serve two years' imprisonment and to pay a Crime Victim's Rights assessment of $130. Dunn moved the trial court to correct the sentence, arguing that the increased assessment violated the Ex Post Facto Clauses of the U.S. and Michigan Constitutions. On 7/27/11, the trial court denied Dunn's motion, ruling that the higher assessment did not violate the Ex Post Facto Clause because the higher assessment was not a punishment. The parties did not dispute that the increased assessment is retrospective. It was clear that the trial court applied the increased $130 assessment to Dunn when the law on 7/3/10 assessed only $60. The parties contested only whether the increased assessment disadvantaged Dunn by increasing his punishment. Dunn argued that the increased assessment is a part of the defendant's sentence and thus, a punishment. However, a recent panel of the court has squarely decided this issue. In Earl, the court determined that applying the crime victim's assessment increase from $60 to $130 to a defendant did not violate the Ex Post Facto Clause because the assessment is not a restitution or punishment. Principles of stare decisis require the court to reach the same result in a case that presents the same or substantially similar issues as in a case that another panel of the court has decided. Affirmed.

 

Issues: Sentencing; Scoring of OV 4; People v. Lockett; People v. Hicks; People v. Althoff; People v. Ratkov (After Remand); People v. Waclawski; People v. Apgar; Whether the trial court properly entered a judgment of sentence that listed defendant's offense as "CSC 1ST DEGREE UNDER 13"; MCR 6.427; People v. Martine

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hendricks

e-Journal Number: 53257

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

 

The court held that the record, including the fact that the CSC victim was seeing a psychologist, provided sufficient support for the trial court's finding that the victim suffered a serious psychological injury as the result of the defendant's abuse. Thus, the trial court did not err in scoring 10 points for OV 4. The defendant was convicted of CSC I after entering a no contest plea. His conviction arose from the allegations that when he was approximately 14 to 16 years old, he sexually abused his younger cousin. The cousin testified that when defendant babysat her, he would force her to perform fellatio. Also when the cousin was 7 years old to the age of 10, she estimated that he abused her 30 times. Although defendant testified that he had no recollection of abusing his cousin, he entered a no contest plea to the alleged sexual abuse. He argued on appeal that the trial court erred in scoring his offense variables and the errors warranted resentencing. Under OV 4, a sentencing court must score 10 points when the victim suffered a serious psychological injury that requires or may require professional treatment. The cousin stated that she remembered looking in the mirror after the first time defendant abused her. According to the PSIR, she remembered seeing herself cry and "look[ing] broken, scared, and hopeless." At the sentencing hearing, she cried as she related that it was hard growing up after the sexual abuse. She stated that as a result of the psychological effects of the abuse, she started seeing a psychologist. Thus, the record provided sufficient support for the trial court's finding that the victim suffered a serious psychological injury as the result of defendant's abuse. Affirmed.

 

Family Law

 

This summary also appears under Termination of Parental Rights

 

Issues: Termination of the respondent-father's parental rights pursuant to MCL 710.51(6); Petitioner-mother and her husband filed petitions for stepparent adoption of the minor children; Whether the trial court properly found that the Indian Child Welfare Act (ICWA)(25 USC § 1901 et seq.) did not apply to the children; In re Morris; In re ALZ; Whether the trial court correctly held that petitioners established the statutory grounds for termination under the relevant statute; In re Fried; In re Hill; Ewald v. Ewald; DeGeorge v. Warheit; The respondent's incarceration; Respondent's failure to pay the ordered child support; In re Caldwell; In re SMNE; The respondent's failure to communicate, contact, or visit the children; MCL 710.51(6)(b); Whether respondent was prevented from having an ability to contact the children

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re BMH

e-Journal Number: 53273

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

 

The court held, inter alia, that the trial court complied with the requirements of the ICWA, the petitioners clearly and convincingly established the statutory grounds for termination of the respondent-biological father's parental rights under MCL 710.51(6), and the trial court did not clearly err in finding by clear and convincing evidence that the father failed to substantially comply with the child support order for more than two years. Petitioners also proved by clear and convincing evidence that the father, "having the ability to visit, contact, or communicate with" the children, had regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. Thus, the court affirmed. The respondent and the child's mother were the biological parents of the minor children. The petitioner and her husband filed petitions for stepparent adoption of the children on 10/28/11, and later filed supplemental petitions seeking to terminate the respondent's parental rights to the children to allow for stepparent adoption. There were indications that the children might be Indian children and the trial court held an Indian heritage hearing to determine if the ICWA applied. Following an adjournment, the trial court continued the Indian heritage hearing and proceeded with termination the same day. At a later continued hearing, the trial court held that the petitioners established the statutory grounds for termination under MCL 710.51(6). The court held that the trial court complied with the ICWA's notice provision and did not err in finding that the ICWA did not apply to the case. The court also held that the trial court did not clearly err in finding clear and convincing evidence that the requirements for termination were established.

 

This summary also appears under Attorneys

 

Issues: Attorney fee dispute stemming from defendant-mother's motion to restrict plaintiff-father's parenting time and his motion for a change of custody; Whether the trial court properly granted the father's request for attorney fees and costs; Smith v. Smith; Reed v. Reed; Keinz v. Keinz; MCL 600.2591; MCL 600.2591(1); "Frivolous"; MCL 600.2591(3)(a)(i); "Prevailing party"; MCL 600.2591(3)(b); Hansen Family Trust v. FGH Indus.; Arguments as to the amount of attorney fees awarded; Abandonment; Ykimoff v. WA Foote Mem'l Hosp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: O'Farrell v. O'Farrell

e-Journal Number: 53233

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

 

The court held that both the evidence of the circumstances of the defendant-mother's filing of the motion to restrict the plaintiff-father's parenting time and the circumstantial evidence of the mother's conduct before and after the motion demonstrated that the motion was part of an ongoing effort to harass the father and injure his relationship with the child. The court held that it was not left with a definite and firm conviction that the trial court mistakenly found that the mother's motion was frivolous. Thus, the trial court did not abuse its discretion when it decided to award attorney fees and costs to the father, the prevailing party on the frivolous motion. The parties divorced in 12/08. The judgment of divorce provided that they would have joint legal custody of their minor child, who was two years old at the time. The judgment of divorce granted the mother physical custody of the child until further order of the trial court and ordered an extensive, detailed parenting-time schedule. The trial court denied both the mother's parenting-time motion and the father's change-of-custody motion. The trial court also increased the father's parenting time. Thus, the father was the prevailing party for purposes of the mother's parenting-time motion. Under MCL 600.2591(3)(a)(i), the mother's motion was frivolous if her primary purpose in initiating the motion was to harass, embarrass, or injure the father. The trial court found that "the primary purpose of Mrs. O'Farrell's conduct in the legal proceedings was to harm and injure Mr. O'Farrell's relationship with his daughter. She has tried to harass and embarrass him through the sexual abuse allegations." The trial court appeared to have based this conclusion of frivolousness on the following factual findings - 1) the mother had continuously attempted to limit and interrupt the father's parenting time and relationship with the child; 2) numerous unsubstantiated DHS referrals were made by agents of the mother (family members, therapist, and doctors induced by the mother to make referrals) who the mother knew were mandatory reporters of suspected child abuse; 3) the severity of the allegations to DHS increased to claims that the father sexually abused the child; 4) the mother's testimony and a video she took of the child demonstrating that the father sexually abused the child were not believable; 5) the child did not display separation anxiety or detachment disorder; and 6) there was no evidence that the father physically or sexually abused the child. The trial court's factual findings, including its finding as to frivolousness, were not clearly erroneous. There was considerable record evidence supporting the trial court's findings, particularly that the mother's motion to restrict parenting time was part of an ongoing effort to harass the father and injure his relationship with the child. Evidence of the mother's conduct before and after she moved the trial court to restrict the father's parenting time was strong circumstantial evidence of her intent for filing the motion. Affirmed.

 

This summary also appears under Litigation

 

Issues: Divorce; Award of attorney fees as a sanction for an improperly signed subpoena; MCR 2.114; Guerrero v. Smith; "Clerical error"; The signature requirement of MCR 2.114(C)(1); Hoffman v. Monroe Pub. Schs.; MCR 2.612(A)(1); MCR 2.613(A); Whether sanctions are mandated only when a document is filed for an "improper or frivolous purpose"; "Shall"; Lamkin v. Engram; MCR 2.114(E); Grievance Adm'r v. Underwood

Court: Michigan Court of Appeals (Unpublished)

Case Name: Thorne v. Thorne

e-Journal Number: 53222

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

 

Holding that the trial court did not clearly err in finding that the signature of an attorney (K) who was not an attorney of record was not a clerical error, the court affirmed the trial court's order awarding the plaintiff-husband $585 in attorney fees as a sanction against the defendant-wife for an improperly signed subpoena. The parties filed competing complaints for divorce, and throughout the case, defendant served several subpoenas on third parties including plaintiff's employer, telephone service provider, bank, and alleged girlfriend. The scheduling order stated, "Discovery shall be completed by the date of the Pre-Trial. No additional discovery shall be permitted after that date except upon motion for good cause shown." However, defendant served without challenge several subpoenas after the pretrial hearing on 6/22/11. On 9/21/11, she served plaintiff's employer a subpoena for his work schedule information from 8/22/11 to the date of the subpoena. The subpoena was requested in the name of defendant's attorney, A, but it was signed by K at A's request. Nothing on the subpoena indicated that the signature was made for A or with A's permission. Defendant did not dispute that K was not an attorney of record. Defendant argued on appeal that "the inadvertent omission of 'for' or 'with permission' from the signature on the subpoena was simply a clerical error by her attorney's staff and the signing attorney." She asserted that sanctions are only required by MCR 2.114(E) when there is a violation of the certification requirements of MCR 2.114(D), and because there was no improper purpose behind the subpoena, she should not have been sanctioned. The court disagreed, concluding that when viewed as an act of certifying the document by an attorney who was not an attorney of record, K's signature was "not a clerical error because she did not inadvertently or mistakenly sign the subpoena." Further, defendant cited no applicable authority to support her claim that the "clerical error" exception applies to the signature requirement of MCR 2.114(C)(1). The case she cited, Hoffman, did not apply. The court rules she cited also did not support her argument because they deal with correcting judgments and orders of the court. The court also rejected defendant's argument that sanctions are mandated only when a document is filed for an improper or frivolous purpose, concluding that use of the word "shall" in MCR 2.114(E) "mandates an appropriate sanction when the signature on a document violates the rule. MCR 2.114(E) does not limit sanctions to violations of subrule (D), but more broadly to any violations of 'this rule.' Thus, it sanctions violations of the verification requirement of (B), the signature requirement of (C), and the certification requirement of (D)."

 

Insurance

 

Issues: The No-Fault Act; Work loss benefits pursuant to MCL 500.3107(1)(b); Whether the profit generated by a subchapter S corporation is included in the work loss calculation for benefits payable under MCL 500.3107(1)(b); Defining "loss of income from work" using dictionary definitions; Stabley v. Huron-Clinton Metro. Park Auth.; Coates v. Michigan Mut. Ins. Co.; Moghis v. Citizens Ins. Co.; Kirksey v. Manitoba Pub. Ins. Corp.; Adams v. Auto Club Ins. Ass'n; Applicability of Ross v. Auto Club Group; Award of attorney fees; MCL 500.3148; University Rehab. Alliance, Inc. v. Farm Bureau Gen. Ins. Co. of MI; Moore v. Secura Ins.; Attard v. Citizens Ins. Co. of Am.

Court: Michigan Court of Appeals (Published)

Case Name: Brown v. Home Owners Ins. Co.

e-Journal Number: 53375

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

 

In an issue of first impression, the court held that the trial court did not err in concluding that the profit generated by a subchapter S corporation is included in the work loss calculation for benefits payable under MCL 500.3107(1)(b). However, the court agreed with the defendant-no-fault insurer that the trial court erred in awarding plaintiff attorney fees pursuant to MCL 500.3148(1) because a legitimate issue of statutory interpretation existed. Thus, the court affirmed the trial court's order denying the defendant's summary disposition motion and granting plaintiff's summary disposition motion, but reversed the trial court's order awarding plaintiff attorney fees. Plaintiff slipped and fell on ice while exiting his vehicle. Before the incident, plaintiff, a lawyer, was an employee of a subchapter S corporation specializing in arbitrations. He wholly owned the corporation. Plaintiff has been unable to work since the incident. Defendant paid plaintiff work loss benefits based on the W-2 wages that he would have received if he had continued to be an employee of his S corporation. Plaintiff objected, contending that he was also entitled to work loss benefits based on the profit the subchapter S corporation would have generated during the period of disability. Noting that the term "loss of income from work," and in particular the term "income," was not defined in the statute, the court turned to dictionary definitions. Income is defined as "the monetary payment received for goods or services, or from other sources, such as rents or investments; revenue; receipts." The court concluded that under the term's plain meaning, it appeared that "'income' is not limited only to a person's wages. Rather, the term would appear to include gains or benefits that arise from other sources as well as a result of one's 'work,' or labor." Thus, MCL 500.3107(1)(b) did "not appear to limit the benefits that it provides to an injured person's lost wages, but rather includes other sources of income from work as well." The court noted that the Legislature chose the term "loss of income from work" rather than "loss of wages" as the measure of damages. While there was no case law directly on point involving a subchapter S corporation operating at a profit, the court cited cases considering related issues, finding their rulings instructive. Defendant argued that Ross settled the issue of whether distributions from a subchapter S corporation are income for purposes of MCL 500.3107(1)(b). However, the court found Ross distinguishable, concluding that the holding in Ross was "limited to those situations where the claimant's subchapter S corporation is operating at a loss." Plaintiff "presented evidence justifying the setting aside of the separate corporate existence of his business. Under the circumstances here where the subchapter S corporation was operating at a profit and where plaintiff was receiving and paying tax on flow through income from the corporation, to not treat all income as loss of income from work would have the result of placing plaintiff in a worse position than he would have been in had the accident not occurred."

 

This summary also appears under Litigation

 

Issues: Action to recover payments made under an insurance policy after a house fire; Service of process; MCR 2.105(D); Whether there was a complete failure to serve defendant-CFM; MCR 2.105(J); Hill v. Frawley; Bunner v. Blow-Rite Insulation Co.; MCR 2.105(I)(1); MCR 2.105(J)(3); Whether CFM had "actual notice"; Entry of default judgments; Denial of motions to have the default judgments set aside; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Whether CFM took action to "otherwise defend" against the plaintiff's suit; Abandoned claim; Chen v. Wayne State Univ.; MCR 2.603(D)(1); "Good cause" and a "meritorious defense" requirements; Whether defendant-XL Insurance was a proper party; MCL 500.3030

Court: Michigan Court of Appeals (Unpublished)

Case Name: Auto-Owners Ins. Co. v. XL Ins. Co.

e-Journal Number: 53207

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

 

The court held that the trial court did not err in denying defendant-CFM's motion to dismiss because the plaintiff served CFM's successor within the applicable limitations period and the service was sufficient to give CFM actual notice. Further, because CFM failed to show good cause for its failure to file an answer within the period set by MCR 2.108(C)(1), the court could not conclude that the trial court abused its discretion in denying CFM's motion to set aside the default judgment entered against it. The court also concluded that defendant-XL Insurance abandoned its claim that the trial court erred by entering a default against it, and the court could not find fault with the trial court for not sua sponte dismissing the claims against XL under MCL 500.3030. Plaintiff's insureds purchased a wood burning fireplace manufactured by CFM and had it installed by a non-party. In 1/08, the insureds' home caught fire and burned down. Plaintiff paid the insureds for their fire loss and then, as their subrogee, sought to recover over $260,000 in payments and expenses related to the fire from CFM because it believed that the fireplace manufactured by CFM was faulty and caused the fire. CFM did not dispute that plaintiff served its summons and complaint on the corporation that CFM's successor designated as its resident agent in Indiana within the applicable limitations period. Rather, CFM argued that there was no evidence that plaintiff served "any officer, director, trustee or person in charge of any Michigan-based" CFM office as required under MCR 2.105(D). It also argued that, because its lawyer represented to the trial court that he did not receive a copy of the summons and complaint until after the applicable limitations period and then only received a copy from XL's lawyer, that the trial court should have concluded that there was a complete failure to serve CFM. The court had to determine whether the trial court correctly found that CFM had actual notice. At the hearing on CFM's summary disposition motion, plaintiff's lawyer stated that his office contacted the corporation designated as CFM's successor's resident agent in Indiana and was told that he could serve CFM through the successor. He also noted that they were in contact with CFM's insurer, XL, through the past two years. There was also record evidence that plaintiff was in contact with CFM's bankruptcy lawyer and had appeared in CFM's bankruptcy. Plaintiff argued before the trial court that CFM had actual notice through these contacts. The trial court agreed that this was sufficient to give actual notice - "I think service is good under the circumstances. Counsel's representations are good with the Court. Service was made proper, in a manner that gave notice to the Defendant." Because the trial court was in the best position to judge the credibility of the parties' representations, the court deferred to its finding that plaintiff's lawyer's representations were credible. Thus, the court could not conclude that the trial court clearly erred when it found that plaintiff was told that it could serve CFM through CFM's successor's resident agent in Indiana. Further, the court could not conclude that the trial court clearly erred when it found that the service on the resident agent in Indiana gave CFM actual notice before the expiration of the applicable limitations period. "There were no errors warranting relief." Affirmed.

 

This summary also appears under Contracts

 

Issues: The third-party defendants-Torrices' claim that defendant-American Fellowship (AF)'s claims for "arson" and "unjust enrichment" were legally insufficient to be considered by the jury; Adam v. Sylvan Glynn Golf Course; "Plain error"; Kern v. Blethen-Coluni; Whether the jury's verdict finding the Torrices liable on the unjust enrichment claim was against the great weight of the evidence; Sweet Air Inv., Inc. v. Kenney; Martin v. East Lansing Sch. Dist.; Requested special jury instruction defining the terms "vacant" and "unoccupied"; Hardrick v. Auto Club Ins. Ass'n; Whether the jury's verdict on AF's fraud or misrepresentation claim against third-party defendant-Carey was against the great weight of the evidence; Allard v. State Farm Ins. Co.; Lawrence M. Clarke, Inc. v. Richco Constr., Inc.; Oade v. Jackson Nat'l Life Ins. Co.; Forge v. Smith; Whether the jury's finding of a "concert of action" to support a civil conspiracy was against the great weight of the evidence; Hilgendorf v. St. John Hosp. & Med. Ctr. Corp.; Mable Cleary Trust v. Edward-Marlah Muzyl Trust; Challenge to the trial court's instructions on the elements of civil conspiracy; Whether the trial court properly refused to permit third-party defendant-Michael to testify at trial because he earlier invoked his Fifth Amendment right against self-incrimination; People v. McDaniel; Huntington Nat'l Bank v. Ristich; Allen v. Michigan Basic Prop. Ins. Co.; Phillips v. Deihm; Traficant v. Commissioner of Internal Revenue Serv. (6th Cir.); Alleged improper conduct by AF's attorney; MRE 402; McDonald v. Stroh Brewery Co.; MRE 401; MRE 403; Haberkorn v. Chrysler Corp.; Estate of Barbara Johnson v. Kowalski,; Reetz v. Kinsman Marine Transit Co.; Hunt v. Freeman; Amerisure Ins. Co. v. Auto-Owners Ins Co.; Denial of the Torrices' motion for relief from judgment; Heugel v. Heugel

Court: Michigan Court of Appeals (Unpublished)

Case Name: EMC Mtg. Corp. v. American Fellowship Mut. Ins. Co.

e-Journal Number: 53229

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

 

Concluding, inter alia, that there was no merit to the third-party defendants-Torrices' argument that the "arson" instruction was improper, the court affirmed the trial court's judgment, entered after a jury trial, in favor of defendant-American Fellowship Mutual Insurance Company (AF). AF was awarded damages of $36,000, case evaluation sanctions of $18,000, taxable costs of $1,748.36, and interest of $6,002.77, for a total judgment of $61,751.13. AF was also awarded a judgment of no cause of action on third-party defendant-Carey Torrice's counterclaim against it. The action arose from a fire at a home that Carey owned. Carey obtained a homeowner's insurance policy for the home from AF. Later that month, the home was destroyed by a fire. AF determined that the fire was intentionally set by someone who had access to the home. It also determined that the home was vacant when Carey applied for insurance coverage and remained vacant at the time of the fire, contrary to Carey's representations in the insurance application. AF made a partial payment of $36,000 under the policy to plaintiff-EMC Mortgage Corporation (EMC), which held a mortgage on the property and was named as an additional insured. EMC later sued AF and a previous insurer, defendant-Allstate Insurance Company, to recover the mortgage balance. AF filed a third-party complaint against Carey and Michael Torrice. EMC later dismissed its claims against the two insurers. The case proceeded to trial only on AF's claims against the Torrices and Carey's counterclaim for breach of contract. The Torrices argued that AF's claims for "arson" and unjust enrichment were legally insufficient to be considered by the jury. However, AF's complaint did not contain any claim for "arson." Rather, count VIII asserted a claim against Michael for fraud, which was based on allegations that he intentionally started the fire at Carey's house and then falsely represented that he did not know how the fire started to induce AF to pay insurance benefits to Carey. AF also brought a claim for civil conspiracy, alleging that Carey and Michael acted in concert to defraud AF. Although the trial court instructed the jury on "arson," the instruction was attendant to the fraud and civil conspiracy claims. The court concluded that the Torrices' argument that the "arson" instruction was improper was based on the erroneous assumption that Carey was the only person who was harmed by the alleged arson. AF also sustained economic harm from the fire because, as the insurer of the property, it made payment to EMC. Further, it was AF's theory that Michael intentionally set the fire as part of a conspiracy with Carey, the homeowner, to recover under the policy. Also, AF brought a separate, alternative claim against Michael for negligence, in which it alleged that his negligent conduct was the cause of the fire. "One of the principal issues at trial was whether the fire resulted from a negligent act, an intentional act, or an accident." Thus, "it was appropriate for the trial court to distinguish between an intentional, negligent, or accidental cause of the fire, and more specifically what constituted arson, to enable the jury to properly evaluate the fraud claim against Michael," and the civil conspiracy claim.

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly ruled that coverage was not available under defendant-Devine's homeowners policy with defendant-Michigan Millers (MM); Insurance policy interpretation; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Hastings Mut. Ins. Co. v. Safety King, Inc.; Farm Bureau Mut. Ins. Co. v. Nikkel; Hayley v. Allstate Ins Co.; Exclusionary clause; Century Sur. Co. v. Charron; Whether there was coverage under a commercial liability policy; Claim that the trial court focused on an issue that was not raised by the parties - whether the injured party was using the boat in the course of his employment duties with defendant-Transportation Station (TS) at the time of his injury; "Own," "owned," and "ownership"; Doe v. Citizens Ins Co.; Twichel v. MIC Gen. Ins. Corp.; Iqbal v. Bristol W. Ins. Group

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nenoff v. Transportation Station Auto Sales, LLC

e-Journal Number: 53230

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

 

The court held, inter alia, that because the boat was not described on the Watercraft Schedule and there was no genuine issue of material fact that the boat was available for defendant-Devine's regular use, the trial court properly ruled that coverage was not available under defendant-Michigan Millers (MM)'s policy. Thus, the trial court did not err in granting MM's motion for summary disposition. Devine is the sole owner of defendant-Transportation Station (TS), a used-car dealership. He purchased a 2004 powerboat for personal use. He used both personal funds and funds from TS to purchase the boat. Devine had the seller leave the name of the purchaser blank on the title - as Devine did with TS cars in his inventory - because he intended to treat the boat as being owned by TS for insurance and tax purposes. According to Devine's and plaintiff-Nenoff's (who worked for TS) deposition testimony, the title was kept at TS. Devine stored the boat at various times at the car lot, his house, and his cottage, and he kept the keys in the center console of his car. He never needed to get permission from anyone to use the boat, and when it was used, he was at least one of the people on the boat. Nenoff was injured while fishing on the boat with Devine. Nenoff brought a negligence action against TS and Devine, which resulted in a consent judgment that allowed Nenoff to recover up to $250,000 from any applicable insurance policy. MM, Devine's insurer under a homeowners policy, was named as a garnishee-defendant but denied liability for coverage under its policy. Plaintiff-Auto-Owners, the insurer for TS under a commercial liability policy, filed a separate declaratory-judgment action, seeking a determination that it was not liable for coverage under its policy. Nenoff argued that the trial court erred in ruling that coverage was not available under Devine's homeowners policy with MM. That policy contained an endorsement for "Personal Boat Liability Coverage." The definition of "insured property" referred to a boat described in the policy. Although the Watercraft Schedule for Devine's homeowners policy described a "1997 Four Winns Boat" that he also owned, it did not describe the 2004 Four Winns boat that was involved in this accident. Under the policy provisions, MM's homeowners policy provided coverage for liability arising out of either "insured property" or a "non-owned boat." For a boat to qualify as "insured property," it was required to be described in the policy. Since it was undisputed that the 2004 Four Winns boat was not described in the policy, it did not qualify as "insured property." Nenoff correctly asserted that coverage was also available under the homeowners policy for a boat that was not owned by Devine. While he argued that there was a question of fact as to ownership of the boat, coverage was still excluded for liability arising from the use of a boat not described in the policy that was furnished or available for the insured's regular use. "Viewing the record evidence in a light most favorable to Nenoff, reasonable minds could not disagree that the boat was available for Devine's regular use." As to the Auto-Owners policy, coverage was only available if, inter alia, the boat was not owned by TS, and the evidence clearly showed that TS also had an ownership claim to the boat.

 

Litigation

 

This summary also appears under Insurance

 

Issues: Action to recover payments made under an insurance policy after a house fire; Service of process; MCR 2.105(D); Whether there was a complete failure to serve defendant-CFM; MCR 2.105(J); Hill v. Frawley; Bunner v. Blow-Rite Insulation Co.; MCR 2.105(I)(1); MCR 2.105(J)(3); Whether CFM had "actual notice"; Entry of default judgments; Denial of motions to have the default judgments set aside; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Whether CFM took action to "otherwise defend" against the plaintiff's suit; Abandoned claim; Chen v. Wayne State Univ.; MCR 2.603(D)(1); "Good cause" and a "meritorious defense" requirements; Whether defendant-XL Insurance was a proper party; MCL 500.3030

Court: Michigan Court of Appeals (Unpublished)

Case Name: Auto-Owners Ins. Co. v. XL Ins. Co.

e-Journal Number: 53207

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

 

The court held that the trial court did not err in denying defendant-CFM's motion to dismiss because the plaintiff served CFM's successor within the applicable limitations period and the service was sufficient to give CFM actual notice. Further, because CFM failed to show good cause for its failure to file an answer within the period set by MCR 2.108(C)(1), the court could not conclude that the trial court abused its discretion in denying CFM's motion to set aside the default judgment entered against it. The court also concluded that defendant-XL Insurance abandoned its claim that the trial court erred by entering a default against it, and the court could not find fault with the trial court for not sua sponte dismissing the claims against XL under MCL 500.3030. Plaintiff's insureds purchased a wood burning fireplace manufactured by CFM and had it installed by a non-party. In 1/08, the insureds' home caught fire and burned down. Plaintiff paid the insureds for their fire loss and then, as their subrogee, sought to recover over $260,000 in payments and expenses related to the fire from CFM because it believed that the fireplace manufactured by CFM was faulty and caused the fire. CFM did not dispute that plaintiff served its summons and complaint on the corporation that CFM's successor designated as its resident agent in Indiana within the applicable limitations period. Rather, CFM argued that there was no evidence that plaintiff served "any officer, director, trustee or person in charge of any Michigan-based" CFM office as required under MCR 2.105(D). It also argued that, because its lawyer represented to the trial court that he did not receive a copy of the summons and complaint until after the applicable limitations period and then only received a copy from XL's lawyer, that the trial court should have concluded that there was a complete failure to serve CFM. The court had to determine whether the trial court correctly found that CFM had actual notice. At the hearing on CFM's summary disposition motion, plaintiff's lawyer stated that his office contacted the corporation designated as CFM's successor's resident agent in Indiana and was told that he could serve CFM through the successor. He also noted that they were in contact with CFM's insurer, XL, through the past two years. There was also record evidence that plaintiff was in contact with CFM's bankruptcy lawyer and had appeared in CFM's bankruptcy. Plaintiff argued before the trial court that CFM had actual notice through these contacts. The trial court agreed that this was sufficient to give actual notice - "I think service is good under the circumstances. Counsel's representations are good with the Court. Service was made proper, in a manner that gave notice to the Defendant." Because the trial court was in the best position to judge the credibility of the parties' representations, the court deferred to its finding that plaintiff's lawyer's representations were credible. Thus, the court could not conclude that the trial court clearly erred when it found that plaintiff was told that it could serve CFM through CFM's successor's resident agent in Indiana. Further, the court could not conclude that the trial court clearly erred when it found that the service on the resident agent in Indiana gave CFM actual notice before the expiration of the applicable limitations period. "There were no errors warranting relief." Affirmed.

 

This summary also appears under Family Law

 

Issues: Divorce; Award of attorney fees as a sanction for an improperly signed subpoena; MCR 2.114; Guerrero v. Smith; "Clerical error"; The signature requirement of MCR 2.114(C)(1); Hoffman v. Monroe Pub. Schs.; MCR 2.612(A)(1); MCR 2.613(A); Whether sanctions are mandated only when a document is filed for an "improper or frivolous purpose"; "Shall"; Lamkin v. Engram; MCR 2.114(E); Grievance Adm'r v. Underwood

Court: Michigan Court of Appeals (Unpublished)

Case Name: Thorne v. Thorne

e-Journal Number: 53222

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

 

Holding that the trial court did not clearly err in finding that the signature of an attorney (K) who was not an attorney of record was not a clerical error, the court affirmed the trial court's order awarding the plaintiff-husband $585 in attorney fees as a sanction against the defendant-wife for an improperly signed subpoena. The parties filed competing complaints for divorce, and throughout the case, defendant served several subpoenas on third parties including plaintiff's employer, telephone service provider, bank, and alleged girlfriend. The scheduling order stated, "Discovery shall be completed by the date of the Pre-Trial. No additional discovery shall be permitted after that date except upon motion for good cause shown." However, defendant served without challenge several subpoenas after the pretrial hearing on 6/22/11. On 9/21/11, she served plaintiff's employer a subpoena for his work schedule information from 8/22/11 to the date of the subpoena. The subpoena was requested in the name of defendant's attorney, A, but it was signed by K at A's request. Nothing on the subpoena indicated that the signature was made for A or with A's permission. Defendant did not dispute that K was not an attorney of record. Defendant argued on appeal that "the inadvertent omission of 'for' or 'with permission' from the signature on the subpoena was simply a clerical error by her attorney's staff and the signing attorney." She asserted that sanctions are only required by MCR 2.114(E) when there is a violation of the certification requirements of MCR 2.114(D), and because there was no improper purpose behind the subpoena, she should not have been sanctioned. The court disagreed, concluding that when viewed as an act of certifying the document by an attorney who was not an attorney of record, K's signature was "not a clerical error because she did not inadvertently or mistakenly sign the subpoena." Further, defendant cited no applicable authority to support her claim that the "clerical error" exception applies to the signature requirement of MCR 2.114(C)(1). The case she cited, Hoffman, did not apply. The court rules she cited also did not support her argument because they deal with correcting judgments and orders of the court. The court also rejected defendant's argument that sanctions are mandated only when a document is filed for an improper or frivolous purpose, concluding that use of the word "shall" in MCR 2.114(E) "mandates an appropriate sanction when the signature on a document violates the rule. MCR 2.114(E) does not limit sanctions to violations of subrule (D), but more broadly to any violations of 'this rule.' Thus, it sanctions violations of the verification requirement of (B), the signature requirement of (C), and the certification requirement of (D)."

 

Municipal

 

This summary also appears under Constitutional Law

 

Issues: Whether the trial court correctly held that an ordinance (BCO § 18-59) on its face violated substantive due process; Review; Kuznar v. Raksha Corp.; Kyser v. Kasson Twp.; Kropf v. City of Sterling Heights; Hendee v. Putnam Twp.; Brighton Code of Ordinances (BCO); Substantive and procedural due process principles; Reed v. Reed; General Motors Corp. v. Department of Treasury; Mettler Walloon, LLC v. Melrose Twp.; Zinermon v. Burch; Schiller v. Strangis (D MA); People v. Sierb; Ypsilanti Charter Twp. v. Kircher; In re Brock; Mathews v. Eldridge; Washington v. City of Winchester (KY App.); Herrit v. Code Mgmt. Appeal Bd. of the City of Butler (PA Comm.); Commissioner of State Police v. Anderson; In re Rood

Court: Michigan Court of Appeals (Published)

Case Name: Bonner v. City of Brighton

e-Journal Number: 53374

Judge(s): Markey and Shapiro; Dissent - Murray

 

Concluding that demolition does not advance the objective of abating nuisances and protecting citizens to a greater degree than repairs, even more costly ones than the present value of the structure and which the owner is willing and able to timely incur, the court held that zoning ordinance BCO § 18-59 violated substantive due process. By not providing a procedure to safeguard an owner's right to retain property by performing repairs that could be viewed as unreasonable, which safeguard would burden the defendant-City to a lesser extent than demolition, the City's ordinance also violated procedural due process. Thus, the court affirmed the trial court's order granting partial summary disposition for the plaintiffs. Plaintiffs own two residential properties located in downtown Brighton. There is a house on one parcel and a house with a garage or barn on the other parcel. According to the City, the three structures have been unoccupied, ignored, and unmaintained for over 30 years representing the "most egregious instances of residential blight in Brighton." A City building official told plaintiffs in a letter that the structures were unsafe under the BCO and public nuisances under Michigan common law. The building official cited a litany of alleged defects and code violations. Plaintiffs were also told that it was determined that it was unreasonable to repair the structures as defined in BCO § 18-59. They were ordered to demolish the structures with no option to repair within 60 days. Plaintiffs appealed the determination to the city council. In preparation for the meeting, they retained a structural engineer and various contractors to determine the necessary repairs to bring the structures into code compliance. They later filed affidavits signed by the retained engineer and contractors who opined that the structures were safe, structurally sound, and readily repairable. The city council initially tabled the appeal. The building official also denied plaintiffs the required permits to repair the buildings. The City later adopted the building official's findings and ordered plaintiffs to demolish the structures in 60 days. Plaintiffs did not take any steps toward demolition and sued the City alleging, inter alia, a violation of procedural and substantive due process. The trial court found that BCO § 18-59 violated substantive due process because it precluded property owners from having the opportunity to repair their property, which served no rational interest or purpose, was entirely arbitrary, and shocked the conscience. The court also held that BCO § 18-59 violated substantive due process and did not provide adequate procedural safeguards to satisfy the Due Process Clause. The court interpreted the ordinance as only allowing the exercise of an option to repair when a property owner overcomes or rebuts the presumption of unreasonableness by proving that it is economical to do so, regardless of whether the property owner is otherwise willing and able to make the necessary repairs. The court held that this standard was "arbitrary and unreasonable." Also, the court concluded that while police powers generally allow the demolition of unsafe structures to achieve the legitimate legislative goal of keeping citizens safe, the "ordinance's exclusion of a repair option when city officials deem repairs unreasonable on the basis of expense the owner is able and willing to incur bears no reasonable relationship to the legislative objective."

 

This summary also appears under Constitutional Law

 

Issues: Alleged Fourth Amendment violation by the defendant-City's employees in investigating rental property for potential over-occupancy; Whether the plaintiff-landlord had "standing" to contest the alleged search of his tenants' mailboxes; People v. Lombardo; People v. Brown

Court: Michigan Court of Appeals (Unpublished)

Case Name: Doherty v. City of E. Lansing

e-Journal Number: 53219

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

 

Holding that the trial court properly ruled that the plaintiff-landlord lacked standing to contest the alleged search of his tenants' mailboxes, the court affirmed the trial court's order granting the defendant-City and the individual defendants-City employees summary disposition. Plaintiff owns and operates several rental properties in the City, two of which were at issue here. The two properties form a duplex. Plaintiff never resided at the duplex, but instead rents it to tenants. In the fall of 2008 two of the City's employees, defendants-Dutcher and Graham, investigated the duplex for potential over-occupancy. Dutcher reported that he and Graham "observed that there were four names on each mailbox" (one for each unit). The mailboxes are freestanding and located on the street. "Dutcher did not expressly report that he opened the mailboxes, and testified during his deposition that he does not remember if he did." However, plaintiff testified that his tenants wrote their names on the inside of the mailbox on the lid. As a result of the investigation, the City concluded that plaintiff was intentionally over-occupying both units of the duplex, and issued him approximately 85 civil infractions. The district court issued a consent judgment in which plaintiff admitted responsibility for 30 maximum occupancy violations and agreed to pay the City $7,800 in fines and costs. Plaintiff then sued the City and its employees, alleging that they committed an unconstitutional search by looking inside of the duplex's mailboxes during the City's investigation. In granting the defendants summary disposition, the trial court concluded that plaintiff lacked standing to sue because he did not have a legitimate expectation of privacy in the inside lids of the mailboxes. Plaintiff argued on appeal that he has a personal expectation of privacy in his tenants' mailboxes and that the fines and penalties he was subjected to "demonstrated a direct proprietary interest in the [P]roperty." The court concluded that assuming arguendo that the actions constituted a search, while the evidence supported that plaintiff had an ownership interest in the duplex, "such an interest alone does not establish that a personal expectation of privacy exists." Further, he has never resided in the duplex, or intentionally received mail there. He also stated that he does not believe he has a right to open the mailboxes, has never gone into the mailboxes to get mail, and would rely on his tenants to give him any of his mail that was delivered to them. Thus, the trial court properly found that that plaintiff lacked standing to sue.

 

Issues: Case involving zoning and nuisance; Whether the trial court properly granted a judgment for the plaintiff-township where it sued for injunctive relief arising from the defendants' use of the property in violation of local zoning and nuisance ordinances; Whether the trial court correctly held that recreational use of the property for riding motorcycles and off-road vehicles was not a permissible "accessory use" to the permitted use of the property as a single family dwelling under the ordinance (§ 3.02 PERMITTED USES); Soupal v. Shady View, Inc.; Yankee Springs Twp. v. Fox; Goldstone v. Bloomfield Twp. Pub. Library; Lerner v. Bloomfield Twp.; Township of Groveland v. Jennings; Applicability of Thomas v. New Baltimore; Whether the trial court properly concluded that the defendants' violation of the ordinance constituted a nuisance per se under MCL 125.3407; Whether the trial court properly admitted aerial photographs; Barnett v. Hidalgo; MRE 402; Craig v. Oakwood Hosp.; Whether the aerial photographs were properly authenticated; Hilgendorf v. St. John Hosp. & Med. Ctr. Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Milton Twp. v. Kaminsky

e-Journal Number: 53217

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

 

The court held, inter alia, that the trial court did not clearly err in determining that defendants' use of the property for riding off-road vehicles on a defined track constructed for that purpose failed to constitute a permissible use of the property under the plaintiff-township's zoning ordinance. The riding activities were the predominant, and not a factually subordinate or ancillary, use of the property. Thus, those activities could not constitute a permissible "accessory" use of the property. The trial court also properly held that defendants' use of the property violated the township's zoning ordinance and that it constituted a nuisance per se under MCL 125.3407. Thus, the trial court did not abuse its discretion in ordering defendants to abate the nuisance as mandated by that statutory provision. The only buildings on the property are a barn/out building and smaller shed-type structure. There is no residence on the property. Defendant-Kaminsky purchased the property in 2007, and he and his family used it for recreational purposes, consisting primarily of the riding of off-road motorcycles and other vehicles on a track that he defined and improved for that purpose. After receiving numerous complaints about this use of the property, particularly about the noise and dust, plaintiff notified defendants that this use of the property violated the township's zoning and nuisance abatement ordinances. Defendants continued using the property for riding off-road vehicles. The township sued seeking injunctive relief prohibiting them from this use of the property. The trial court concluded that their use of the property violated the zoning ordinance, and constituted a nuisance as defined by its nuisance abatement ordinance. The trial court ordered defendants to cease the offending use of the property and return it to its historical condition. The issue was whether the riding activities constituted an "accessory use" within the meaning of the township's zoning ordinances. The evidence established that "the only use of the property made by defendants was recreational use, dominated by the riding of off-road vehicles on the defined course or track established for that purpose." Defendants made no residential use of the property. Thus, their use of the property for riding activities was not factually subordinate, ancillary, or auxiliary to any residential use, but instead was the predominate, primary use of the property within the context of the zoning ordinance. It could not be said that their use of the property enhanced or furthered the use of the property as a residence. Thus, the trial court did not err by concluding defendants' use of the property did not constitute a permissible "accessory use" under the township's zoning ordinance. Affirmed.

 

Real Property

 

This summary also appears under Contracts

 

Issues: Foreclosure; Breach of contract; Alan Custom Homes, Inc. v. Krol; Trial Period Plan (TPP) under the Home Affordable Modification Program; Wigod v. Wells Fargo Bank; Whether the defendant violated federal law on home foreclosure when it failed to provide the plaintiff with a permanent mortgage loan modification; Fraudulent misrepresentation; "Mere allegations of fraud"; MCR 2.116(G)(4); LaMothe v. Auto Club Ins. Ass'n; Alleged violation of the Mortgage Brokers, Lenders, & Servicers Licensing Act (MBLSLA)(MCL 445.1651 et seq.); MCL 445.1672; Applicability of MCL 600.3205a; Frank W. Lynch & Co. v. Flex Techs., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bonsu v. Ocwen Loan Servicing, LLC

e-Journal Number: 53216

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

 

Holding, inter alia, that there was no genuine issue of material fact that the defendant did not breach the contract by failing to offer the plaintiff a permanent mortgage loan modification, the court affirmed the trial court's order granting defendant summary disposition in this case arising from a home foreclosure. Plaintiff alleged that defendant breached a contract with him, made fraudulent misrepresentations to him, violated the MBLSLA, and failed to comply with statutory foreclosure requirements. As to his breach of contract claim, he alleged that he entered into a TPP with defendant and he was promised a final loan modification but, although he performed his obligations, defendant failed to provide a permanent modification and proceeded with foreclosure. The court disagreed. It was undisputed that plaintiff and a co-borrower secured a loan with the mortgage at issue in 12/06. The TPP contract had signature lines for plaintiff and the co-borrower and specified that the borrower agreed "all persons who signed the Loan Documents or their authorized representative(s) have signed this Plan, unless a borrower or co-borrower is deceased or the Lender has waived this requirement in writing." While plaintiff's signature appeared on the final page of the agreement, the co-borrower's signature was missing. Plaintiff offered no proof of the co-borrower's signature and presented no evidence that she had a representative sign for her, that she was deceased, or that defendant waived this signature requirement. Further, for legal purposes plaintiff admitted that he failed to provide the co-borrower's signature on the TPP based on his failure to respond to defendant's request for admissions. The court also concluded that the evidence supported defendant's related arguments that "plaintiff failed to make timely payments and to submit requested documentation in a timely manner pursuant to the TPP." The court also held that the trial court properly dismissed plaintiff's fraudulent misrepresentation claim because it was based on "mere speculation" and was not supported by the record. Further, there was no evidence supporting his clam that defendant violated the MBLSLA. While plaintiff also asserted that defendant violated MCL 600.3205a, the court held that the statute did not apply because it was not in effect when the foreclosure proceedings on his home began and the Legislature did not intend for it to be applied retroactively.

 

Termination of Parental Rights

This summary also appears under Family Law

 

Issues: Termination of the respondent-father's parental rights pursuant to MCL 710.51(6); Petitioner-mother and her husband filed petitions for stepparent adoption of the minor children; Whether the trial court properly found that the Indian Child Welfare Act (ICWA)(25 USC § 1901 et seq.) did not apply to the children; In re Morris; In re ALZ; Whether the trial court correctly held that petitioners established the statutory grounds for termination under the relevant statute; In re Fried; In re Hill; Ewald v. Ewald; DeGeorge v. Warheit; The respondent's incarceration; Respondent's failure to pay the ordered child support; In re Caldwell; In re SMNE; The respondent's failure to communicate, contact, or visit the children; MCL 710.51(6)(b); Whether respondent was prevented from having an ability to contact the children

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re BMH

e-Journal Number: 53273

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

 

The court held, inter alia, that the trial court complied with the requirements of the ICWA, the petitioners clearly and convincingly established the statutory grounds for termination of the respondent-biological father's parental rights under MCL 710.51(6), and the trial court did not clearly err in finding by clear and convincing evidence that the father failed to substantially comply with the child support order for more than two years. Petitioners also proved by clear and convincing evidence that the father, "having the ability to visit, contact, or communicate with" the children, had regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. Thus, the court affirmed. The respondent and the child's mother were the biological parents of the minor children. The petitioner and her husband filed petitions for stepparent adoption of the children on 10/28/11, and later filed supplemental petitions seeking to terminate the respondent's parental rights to the children to allow for stepparent adoption. There were indications that the children might be Indian children and the trial court held an Indian heritage hearing to determine if the ICWA applied. Following an adjournment, the trial court continued the Indian heritage hearing and proceeded with termination the same day. At a later continued hearing, the trial court held that the petitioners established the statutory grounds for termination under MCL 710.51(6). The court held that the trial court complied with the ICWA's notice provision and did not err in finding that the ICWA did not apply to the case. The court also held that the trial court did not clearly err in finding clear and convincing evidence that the requirements for termination were established.

 

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