• Contracts (1)
• Criminal Law (5)
• Family Law (1)
• Freedom of Information Act (1)
• Insurance (2)
• Litigation (3)
• Malpractice (1)
• Municipal (1)
• Negligence & Intentional Tort (2)
• Privacy Law (1)
• Real Property (1)
• Termination of Parental Rights (2)

Contracts

 

Issues: Whether the defendant's permanent shutdown of its Michigan plant was within the scope of ¶ 14.1 of the parties' contract as interpreted under Ohio law; Motion for summary disposition under MCR 2.116(C)(8); Begin v. Michigan Bell Tel. Co.; Whether defendant's motion was untimely; "Extrinsic" evidence; "Abandoned" arguments; PIC Maint., Inc. v. Department of Treasury

Court: Michigan Court of Appeals (Unpublished)

Case Name: Linde, LLC v. Owens-Brockway Glass Container, Inc.

e-Journal Number: 53311

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

 

Holding that ¶ 14.1 of the parties' contract clearly and unambiguously allowed the defendant to terminate the contract in its entirety when it decided to permanently shut down its Charlotte, Michigan plant, the court affirmed the trial court's order granting defendant summary disposition. Plaintiff is a Delaware LLC and supplier of industrial gasses. Defendant is a Delaware corporation and industrial glass manufacturer operating several plants across the country. In 1999, the parties entered into an "On-Site Product Supply Agreement" (the contract). Plaintiff agreed to construct, at its own expense, an oxygen supply facility located at defendant's glass manufacturing plant in Charlotte. Plaintiff spent over $5 million in building, and later upgrading, the oxygen supply facility. In turn, defendant agreed to exclusively purchase oxygen for the Charlotte plant from plaintiff for 15 years - from 2/00 to 2/15. Plaintiff began supplying oxygen to defendant's Charlotte plant in 2/00, and service continued until defendant notified plaintiff on 2/11/10 of its intent to terminate the contract in order to permanently shut down all operations at the Charlotte plant. Plaintiff refused to accept defendant's termination, arguing that defendant could not invoke the cited termination provision, ¶ 14.1, because that provision did not apply if defendant decided to permanently shut down its operations at the Charlotte plant. Plaintiff reasoned that defendant could only invoke ¶ 14.1 if it found an alternative method of glass manufacturing that rendered the use of oxygen product obsolete. The court held that there was no ambiguity on the face of the contract, "and the words are clear and are not subject to more than one reasonable interpretation. Defendant's interpretation of ¶ 14.1 is reasonable, gives full effect to all the operative language, and is consistent with both ¶ 14.1 and the Agreement as a whole." Paragraph 14.1 provided in part - "If [defendant] establishes that it no longer requires Oxygen Product in connection with the then and continuing future operations of [defendant's] plant, [defendant] shall have the right to terminate this Agreement, in its entirety . . . ." The court concluded that viewed in context, the language "then and continuing future operations" plainly referred to the types of defendant's operations that were subject to the termination provision. The language prevented defendant from being able to terminate the contract in its entirety for a temporary shutdown. Thus, the "then and continuing future operations" language effectively excluded defendant's ability to invoke ¶ 14.1 in the event it no longer requires oxygen product in connection with past or solely present operations, such as a temporary shutdown. "However, in the event of a permanent shutdown, defendant would no longer require oxygen product for its ‘then and continuing future operations,' as all operations would have expired." With no requirements for oxygen product, defendant was clearly permitted to invoke ¶ 14.1 to terminate the contract "in its entirety." While plaintiff's reading injected an implied condition precedent into ¶ 14.1 (requiring that defendant could "only" invoke the provision if it had ongoing operations at the plant but no longer required the oxygen product for them), the court concluded that "the intent to impose this implied restriction is not apparent anywhere on the face of" the contract.

 

Criminal Law

 

Issues: Whether MCL 768.27b infringes on the court's authority to establish rules of "practice and procedure" under the Michigan Constitution; Const. 1963, art. 6, § 5; MRE 403; MRE 404(b)(1); People v. Watkins; "Other acts" evidence

Court: Michigan Supreme Court

Case Name: People v. Mack

e-Journal Number: 53473

Judge(s): Young, Jr., Markman, M.B. Kelly, and Zahra; Dissent - M. Kelly, Cavanagh, and Hathaway

 

In a memorandum opinion, the court concluded that the reasoning of Watkins fully controlled this case and held that MCL 768.27b does not infringe on the court's authority to establish rules of "practice and procedure" under the Const. 1963. art. 6, § 5. In lieu of granting the defendant's application for leave to appeal, the court affirmed the judgment of the Court of Appeals. MCL 768.27b addresses the admissibility of evidence in domestic violence cases that a defendant has committed other acts of domestic violence. Thus, in certain cases the statute expands the admissibility of domestic violence other acts evidence beyond the scope permitted by MRE 404(b)(1). In Watkins, the court addressed an issue very similar to the issue here. The statute at issue in Watkins, MCL 768.27a, addresses the admissibility of evidence that a defendant accused of certain sexual offenses against a minor has committed other sexual offenses against a minor. Though that statute also in certain circumstances expanded the admissibility of such evidence beyond the scope permitted by MRE 404(b)(1), the court determined that it did not infringe on the court's authority under Const. 1963, art. 6, § 5. The court held that the reasoning of Watkins controlled here. Also, the dissent's arguments here were the same as those advanced by the dissent in Watkins and were unpersuasive for the reasons articulated by the court in Watkins.

 

The dissenting justices disagreed with the majority based on Justice M. Kelly's dissent in Watkins, and would hold that Watkins was wrongly decided. The justices concluded the statute infringes on the court's authority to regulate practice and procedure and the majority relied on the "flawed reasoning" of McDougall v. Schanz, which "effectively neutered" the court's authority to regulate rules of practice and procedure. The Legislature overstepped its constitutional authority when enacting MCL 768.27b. Thus, the statute is unconstitutional and violates the separation of powers. The justices would grant defendant's application for leave to appeal in order to reconsider Watkins.

 

Issues: Sufficiency of the evidence to support the defendant's assault with intent to murder (AWIM) conviction; People v. Beard; People v. Hampton; "Intent" element; People v. McRunels; Prosecutorial misconduct; People v. Stanaway; People v. Bahoda; People v. Dobek; Unsubstantiated statement made during opening statements; People v. Wolverton; Alleged "civic duty" argument; People v. Wright; Presumption that jurors follow their instructions; People v. Graves; "Transferred intent"; People v. Lawton; Sentencing; Whether defendant's CCW sentence should be served concurrently with his sentences for AWIM and carrying a dangerous weapon with unlawful intent; Scoring of OVs 4, 6, 9, and 12; People v. Drohan; Ineffective assistance of counsel; People v. Pickens; People v. LaVearn; Failure to raise meritless objections; People v. Harmon

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Dickerson

e-Journal Number: 53308

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

 

Holding, inter alia, that there was sufficient circumstantial evidence of the defendant's intent at the time of the shooting, the court rejected his claim that there was insufficient evidence to support his AWIM conviction. He was also convicted of carrying a dangerous weapon with unlawful intent, CCW, and two counts of felony-firearm. The court noted that the prosecution did not present any direct evidence of a specific intent to kill on defendant's part, and he testified that his intent was only to scare the inhabitants of the house. However, the prosecution showed that defendant was in a fight with M earlier in the day and that he and his brothers followed M to FO's house, where defendant retrieved a gun from a nearby friend and fired nine shots at and into the occupied home. "Defendant did not fire the shots into the air, or into the ground, but rather fired them directly into the home," where one of the bullets struck JO in the chest. While defendant correctly asserted that a willful and malicious disregard for the natural tendency of an action to cause death is insufficient to establish AWIM, the court concluded that "the circumstances here were sufficient to justify the conclusion that defendant was not acting with mere willful and malicious disregard for the consequences of his actions, but rather was acting with a premeditated intent to exact revenge in the form of murder." While his testimony that he only meant to scare the inhabitants of the house was an attempt to counter this inference, as the finder of fact the jury was free to find his evidence was not credible in light of the circumstantial evidence. Thus, "the circumstantial evidence was sufficient to establish that a reasonable jury could conclude that defendant acted with the intent to kill when he went to" FO's home and fired nine shots into and around the house. Defendant also challenged his sentence, arguing, inter alia, that his CCW sentence should be served concurrently with his sentences for AWIM and carrying a dangerous weapon with unlawful intent. The court noted that under the felony-firearm statute, his felony-firearm sentences must run consecutive to all his other sentences, except his CCW sentence. "However, while defendant's felony-firearm sentences must be served consecutively to the remaining offenses, and concurrently to the CCW conviction, this does not mean that the CCW sentence can be served consecutively to the sentences for assault or for carrying with dangerous intent. These latter sentences begin to run after the felony-firearm sentence is served, even if time is left on a minimum sentence for CCW." The problem was technically academic, because the CCW minimum sentence was 24 months. However, the court remanded for ministerial correction of the judgment of sentence. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of failing to comply with the Sex Offender Registration Act (SORA)(MCL 28.729) based on his failure to register a change of residence within 10 days as required by MCL 28.725; People v. Nowack; People v. Wolfe; People v. Palmer; People v. Dowdy; People v. Lockett (On Rehearing); People v. Perry; Whether the jury improperly considered a hearsay statement; People v. Waclawski; People v. Rodgers

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Felton

e-Journal Number: 53318

Judge(s): Per Curiam - Sawyer, Saad, and Meter

 

The court held that the evidence presented, viewed in the light most favorable to the prosecution, was sufficient to permit a rational trier of fact to find that the essential elements of the crime (failure to register as a sex offender under SORA) were proved beyond a reasonable doubt. The defendant was arrested at his then-girlfriend's home at 18 V Street by police officer A, who had responded to a domestic violence call. When asked defendant told A that he lived at 18 V Street. The next day, Warrant Officer T, who was familiar with defendant, noticed that defendant's detainer listed 18 V Street as his address and that defendant indicated that he paid rent there. T checked the SORA database and saw that defendant's last registered address, from 11/10 was 47 K Drive. T went to the K Drive address and spoke with a resident. On 4/4/11, T received a call from defendant, who said that he continued to live at the K address, and had simply lied to the responding officers. At trial, defendant admitted telling the officers that he lived at 18 V Street, but tried to excuse the statement by claiming that he was drunk at the time and only told the officers that he lived there in the hope that they would not make him leave. It was undisputed that defendant was subject to SORA's registration requirements. Defendant's argument that there was insufficient evidence to prove that he did not live at 47 K Drive, and thus, insufficient evidence of a SORA violation, failed to necessitate reversal of his conviction. The prosecution only had to show that defendant had made 18 V Street his primary residence. Defendant admitted telling the responding officers that he lived at 18 V, and testified that he kept clothing and possibly a suitcase there, and regularly stayed there on weekends. A testified that defendant previously told her that he lived there on the night of his arrest. He also said that he intended to return there upon release. T testified that the detainer indicated that defendant had told the responding officers that he paid rent at 18 V Street. Thus, the jury could conclude that defendant had established a new primary residence at 18 V Street, triggering the statutory requirement that he register the address with the police, which he did not do by 4/2/11. This evidence along with his testimony that he and his then-girlfriend at 18 V, "got in a lot of fights, always on the weekends," also permitted a fact-finder to infer defendant "willfully" failed to register. The jury could conclude that defendant was aware of his obligation to notify the law enforcement agency but failed to do so, willfully violating the registration requirement. Affirmed.

 

Issues: Sufficiency of the evidence to support the defendant's convictions of felon in possession and felony-firearm; People v. Kanaan; People v. Carines; "Constructive" possession of a firearm; Aiding and abetting; MCL 767.39; People v. Moore; MCL 750.224f; People v. Perkins; Sentencing; Whether the trial court abused its discretion when it gave him a longer sentence than it gave S his codefendant (allegedly because defendant chose to go to trial instead of pleading guilty); People v. Sexton; People v. Horn

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Miller

e-Journal Number: 53293

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

 

The court held, inter alia, that the evidence was sufficient to convict the defendant of felony-firearm and felon in possession and that he was not entitled to resentencing. Thus, the court affirmed his bench trial convictions of two counts of armed robbery, two counts of felon in possession, one count of felony-firearm, and one count of felonious assault. Defendant contended on appeal that there was insufficient evidence to convict him of felony-firearm and felon in possession. The record showed that one of his felon in possession charges was based on his constructive possession of a firearm and the other charge was based on the theory that he aided and abetted his codefendant S in possessing a firearm. Defendant argued that the evidence failed to show beyond a reasonable doubt that (1) he possessed a firearm or (2) that he aided and abetted S in possessing a firearm. The court held that the evidence was sufficient to support defendant's felony-firearm conviction and his felon in possession convictions under an aiding and abetting theory. The court concluded that the prosecution presented sufficient evidence to convict defendant of two counts of felon in possession and one count of felony-firearm on aiding and abetting and constructive possession theories. Defendant did not argue that S did not possess a firearm or challenge whether S had previously been convicted of a felony and was ineligible to possess a firearm. Rather, he argued that he did not perform any acts that encouraged and assisted S's possession of the firearm. The record showed that defendant grabbed one victim's hair and removed money from her bra while S held a gun to her head. Defendant also struck another victim in the head and robbed that victim of his identification, money, and prescription medication while S held the gun to the victim's head. During the course of the robbery, defendant and S told everyone to get down on the floor, and S chased one victim up the stairs after stating that he was going to rape her. Also, after removing one victim's ID from his pocket, defendant said that now he knew the victim's name and would kill him if he went to the police. Thus, the evidence showed that defendant performed acts that assisted and encouraged S's possession of a firearm and that defendant intended the commission of the offenses or had the knowledge that S intended their commission. The evidence was sufficient to support defendant's felony-firearm conviction and his felon in possession convictions. Not only did he aid and abet S's possession of a firearm, but he also constructively possessed the firearm in violation of his own status as a felon in committing the charged crimes. The court also held that the other issues he raised on appeal had no merit and affirmed.

 

Issues: Whether the trial court properly denied the defendant's motion for JNOV because he engaged in "consensual sexual activity" with the victim; People v. Hammons; People v. Duenaz; People v. Partridge; People v. Carines; People v. Passage; Whether defendant's identity as the perpetrator was established; People v. Oliphant; People v. Kern

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wilkins

e-Journal Number: 53292

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

 

The court held that because the evidence was sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the alleged offenses, the trial court properly denied his motion for JNOV. Thus, the court affirmed his jury trial convictions of kidnapping, AWIGBH, and three counts of CSC I. His convictions stemmed from his attack of the victim outside an after-hours club. Defendant argued that the trial court erred by denying his motion for JNOV because he engaged in consensual sexual activity with the victim inside the club before the attack, and the evidence was insufficient to show that he attacked her outside the club. Establishing identity is always an essential element in a criminal prosecution. The evidence showed that the victim first saw defendant in the bathroom of the club but was alone with him in the bathroom for only a few seconds before she walked out. Later, outside the club, defendant approached her and said "F*** me b****, F*** me." When she refused, he grabbed the sleeve of her jacket and pulled her around the corner, into an alley. He pulled down her pants and told her "to get on all fours," which she refused to do. Defendant punched her until she fell to her hands and knees and put his penis inside her mouth. Defendant stopped when he heard a car pass by and pushed the victim deeper into the alley, when he again told her to get on her hands and knees. He then engaged in vaginal-penile penetration with her. She screamed for help when she heard someone yell her nickname, but defendant punched her in the head and said, "Shut the f*** up, b****." He again moved her deeper into the alley, and penetrated her vagina a second time. He ejaculated inside her before he dumped out the contents of her purse that she carried and beat her with his fists until she passed out. A vaginal swab collected from the victim contained DNA evidence that matched a DNA sample taken from defendant. The week after the attack, the victim described the perpetrator to her sister, T. T found his photograph on Facebook and showed the victim the picture. The victim identified defendant as her attacker. She contacted the police, gave them defendant's name, and identified him in a photographic lineup. When viewed in the light most favorable to the prosecution, the victim's testimony along with the other evidence was sufficient to establish his identity as the perpetrator.

 

Family Law

 

This summary also appears under Insurance

 

Issues: Entitlement to the decedent's life insurance benefits; Effect of the waiver provision in the consent judgment of divorce ending the marriage of the decedent and the defendant; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Sweebe v. Sweebe; Reed Estate v. Reed; Whether defendant and the decedent through their deeds and words modified the consent judgment after their divorce; Laffin v. Laffin; Summary disposition under MCR 2.116(C)(10); West v. General Motors Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Partlow v. Person

e-Journal Number: 53315

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

 

Concluding that this case was nearly identical to Sweebe and compelled the same result, the court affirmed the trial court's order granting the plaintiff-PR (the decedent's daughter) summary disposition in this dispute over entitlement to the decedent's life insurance benefits. The defendant was the decedent's ex-wife. She and the decedent were married in 2000. During their marriage the decedent completed a beneficiary designation form designating defendant as the primary beneficiary of a life insurance policy. They divorced in 2003 pursuant to a consent judgment signed by both parties and entered in the trial court. The decedent died in 2010 without having changed the beneficiary designation on the life insurance policy. Both plaintiff and defendant made claims for the life insurance benefits. The insurer determined that the proceeds of the policy were payable to defendant because she was the last named beneficiary and disbursed the proceeds to her. Plaintiff filed this action against defendant alleging breach of contract and seeking a declaratory judgment ordering that the life insurance benefits were payable to the decedent's estate pursuant to a waiver provision in the consent judgment of divorce. The waiver provision stated that "any right either party has to the proceeds or other benefits of policies or cont[r]acts of life insurance . . . upon the life of the other as a named beneficiary . . . are extinguished unless provided for elsewhere in this judgment." The court concluded that as in Sweebe, "defendant clearly and unequivocally waived her right to the decedent's life insurance benefits when she signed the consent judgment of divorce containing the waiver provision." By executing the consent judgment, she acknowledged and agreed that any right she had to the benefits was "extinguished." Thus, pursuant to the language of the provision, she was not entitled to retain the life insurance proceeds. Defendant argued that she and the decedent, through their words and deeds, modified the consent judgment in the years after their divorce. The court held that her argument lacked merit. The court noted that a consent judgment is in the nature of a contract, and in general, they "are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage." There was no allegation of fraud, mistake, or unconscionable advantage. Further, as recognized in Laffin, the consent judgment was binding not only on the parties, but also on the trial court. If defendant and the decedent intended to modify the consent judgment, they could have sought a modification of the consent judgment in the trial court after their divorce. It was undisputed that they failed to do so. They also "failed to take any other concrete, post-divorce affirmative action to designate defendant as the beneficiary. For example, the decedent could have simply redesignated her as the beneficiary. Absent any proactive, affirmative action in this regard, the trial court properly enforced the waiver provision in the consent judgment of divorce."

 

Freedom of Information Act

 

This summary also appears under Municipal

 

Issues: Whether the trial court correctly granted the plaintiff-law firm summary disposition on its FOIA claims; Whether (1) questions of fact existed and (2) the trial court failed to make findings of fact distinguishing between the documents plaintiff sought by subpoena and its FOIA request; Bronson Methodist Hosp. v. Auto-Owners Ins. Co.; Corley v. Detroit Bd. of Educ.; Ykimoff v. W A Foote Mem'l Hosp.; Amerisure Ins. Co. v. Plumb; Attorney fees, costs, and disbursements; Nemeth v. Abonmarche Dev., Inc.; MCL 15.240(6); Meredith Corp. v. City of Flint; Whether the action was reasonably necessary to compel disclosure and the suit had the substantial causative effect on the delivery of the information to the plaintiff; Wilson v. Eaton Rapids; Whether FOIA provides for the award of punitive damages in a very limited context; MCL 15.235(3) and MCL 15.240(7); Local Area Watch v. Grand Rapids; Whether the trial court found that defendant acted "arbitrarily or capriciously"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nichols Law Firm, PLLC v. City of Lansing

e-Journal Number: 53272

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

 

In this FOIA case, the court held that the defendant-City did not establish that the trial court erroneously granted the plaintiff-law firm summary disposition. However, since plaintiff did not establish that it was the prevailing party, the trial court should not have granted attorney fees, costs, or disbursements, and the trial court "necessarily erred" when it awarded plaintiff punitive damages in the amount of $500. Thus, the court affirmed in part and reversed in part. Plaintiff submitted a FOIA request to defendant on 8/24/11, seeking documents and evidence related to the drunk-driving arrest of one of its clients. The letter specifically referenced the client's name, the date of the incident, and the ticket number. On 9/20/11, defendant sent a response letter stating that plaintiff's "request has been granted in part and denied in part in part for the reasons listed below." (The requests and responses were set out in their entirety in the opinion.) Later, plaintiff submitted several subpoenas as to its client's OUIL case. Plaintiff also submitted several other subpoenas with various requests. On 12/27/11, plaintiff sued alleging that defendant failed to comply with its FOIA request by improperly denying some of its requests. Plaintiff asked the trial court to order defendant to comply with the FOIA request, and also requested attorney fees, costs, disbursements, and punitive damages. After a hearing, the trial court granted plaintiff's motion for summary disposition brought under MCR 2.116(C)(10). The court held that the trial court should not have granted plaintiff's request for attorney fees because while the trial court found that defendant did not comply with FOIA, more is required to gain attorney fees, costs, and disbursements under § 10 of the Act. Further, the court held that the trial court also should not have granted plaintiff $500 in punitive damages where "the trial court never made a finding that defendant acted arbitrarily or capriciously."

 

Insurance

 

This summary also appears under Family Law

 

Issues: Entitlement to the decedent's life insurance benefits; Effect of the waiver provision in the consent judgment of divorce ending the marriage of the decedent and the defendant; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Sweebe v. Sweebe; Reed Estate v. Reed; Whether defendant and the decedent through their deeds and words modified the consent judgment after their divorce; Laffin v. Laffin; Summary disposition under MCR 2.116(C)(10); West v. General Motors Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Partlow v. Person

e-Journal Number: 53315

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

 

Concluding that this case was nearly identical to Sweebe and compelled the same result, the court affirmed the trial court's order granting the plaintiff-PR (the decedent's daughter) summary disposition in this dispute over entitlement to the decedent's life insurance benefits. The defendant was the decedent's ex-wife. She and the decedent were married in 2000. During their marriage the decedent completed a beneficiary designation form designating defendant as the primary beneficiary of a life insurance policy. They divorced in 2003 pursuant to a consent judgment signed by both parties and entered in the trial court. The decedent died in 2010 without having changed the beneficiary designation on the life insurance policy. Both plaintiff and defendant made claims for the life insurance benefits. The insurer determined that the proceeds of the policy were payable to defendant because she was the last named beneficiary and disbursed the proceeds to her. Plaintiff filed this action against defendant alleging breach of contract and seeking a declaratory judgment ordering that the life insurance benefits were payable to the decedent's estate pursuant to a waiver provision in the consent judgment of divorce. The waiver provision stated that "any right either party has to the proceeds or other benefits of policies or cont[r]acts of life insurance . . . upon the life of the other as a named beneficiary . . . are extinguished unless provided for elsewhere in this judgment." The court concluded that as in Sweebe, "defendant clearly and unequivocally waived her right to the decedent's life insurance benefits when she signed the consent judgment of divorce containing the waiver provision." By executing the consent judgment, she acknowledged and agreed that any right she had to the benefits was "extinguished." Thus, pursuant to the language of the provision, she was not entitled to retain the life insurance proceeds. Defendant argued that she and the decedent, through their words and deeds, modified the consent judgment in the years after their divorce. The court held that her argument lacked merit. The court noted that a consent judgment is in the nature of a contract, and in general, they "are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage." There was no allegation of fraud, mistake, or unconscionable advantage. Further, as recognized in Laffin, the consent judgment was binding not only on the parties, but also on the trial court. If defendant and the decedent intended to modify the consent judgment, they could have sought a modification of the consent judgment in the trial court after their divorce. It was undisputed that they failed to do so. They also "failed to take any other concrete, post-divorce affirmative action to designate defendant as the beneficiary. For example, the decedent could have simply redesignated her as the beneficiary. Absent any proactive, affirmative action in this regard, the trial court properly enforced the waiver provision in the consent judgment of divorce."

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Action to recover first-party no-fault benefits for medical transportation costs; Spiek v. Department of Transp.; In re Geror; Johnson v. Recca; MCL 500.3105(1); MCL 500.3107(1); Griffith v. State Farm Mut. Auto. Ins. Co.; "Allowable expense"; Douglas v. Allstate Ins. Co.; "Care," "recovery," and "rehabilitation"; Hamilton v. AAA MI; "Reasonably necessary" expense; Krohn v. Home-Owners Ins. Co.; Expense "incurred"; Proudfoot v. State Farm Mut. Ins. Co.; Burris v. Allstate Ins. Co.; Moghis v. Citizens Ins. Co. of Am.; Davis v. Citizens Ins. Co. of Am.; Manley v. Detroit Auto Inter-Ins. Exch.

Court: Michigan Court of Appeals (Unpublished)

Case Name: ZCD Transp., Inc. v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53285

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

 

The court held that the trial court properly concluded that defendant was entitled to judgment to the extent plaintiff sought payment for mileage beyond that actually traveled by the injured person (Grinblatt). However, the reasonableness of the charges for the pick-up and wait time aspect of the transportation service remained an issue of fact to be determined. Grinblatt was injured in an automobile accident in 2001. Before the accident, he was unable to walk and got around using a personal mobility vehicle. He was able to drive using a van fitted with a lift and hand controls. After the accident, Grinblatt was too weak to move himself from the Amigo scooter to the driver's seat of the van and vice-versa. Thus, he hired plaintiff to provide transportation services, both for medical appointments and for personal trips unrelated to medical treatment. Plaintiff charged $3 a mile, but every client was charged a minimum of 10 miles for a one-way trip and 20 miles for a round trip, regardless of the number of miles actually driven. Plaintiff acknowledged that a majority of Grinblatt's trips involved distances less than the mileage minimum. Defendant objected to paying for medical transportation costs to the extent plaintiff sought compensation for times when Grinblatt was not actually in the vehicle being transported and to paying for personal trips. The court agreed with defendant that transportation expenses unrelated to medical treatment were not recoverable even if prescribed by a doctor as being "necessary for the patient's care, recovery, and rehabilitation." Those transportation services, "which were not directly related to Grinblatt's medical treatment but were solely to maintain his pre-injury quality of life, constituted replacement services, not allowable expenses, because Grinblatt did his own pleasure driving before the accident and, but for the injuries sustained in the accident, would have continued to do so." Also, plaintiff admitted that it provided the service to Grinblatt as a courtesy and did not expect him to pay for it. On the other hand, the cost of transportation and mileage to and from medical appointments are allowable expenses. "The expense was incurred to some extent because plaintiff provided the service to Grinblatt and apparently would have turned to him for payment if defendant were not liable. However, plaintiff's charges clearly included a fee for medical transportation even when Grinblatt was not in the vehicle and being transported." The record showed that plaintiff billed for picking him up from his home to transport him to a doctor's office and for either waiting for him to obtain his treatment or coming back to get him after his treatment so it could take him home. The court held that it stood to reason that plaintiff would have to charge for such services even though Grinblatt is not in the vehicle because it cannot transport him to and from medical appointments unless it first picks him up at home and then waits for him or comes back to get him to take him back home again. Because the pick-up and wait-time aspect of the service was actually rendered and the fees were incurred, the issue was whether those charges were reasonable. Neither party addressed that issue or provided any evidence for gauging the reasonableness of the charges. However, the record also showed that plaintiff charged a separate mileage fee for actually transporting Grinblatt and often charged for more miles than he actually traveled. To that extent, plaintiff sought payment for transportation services not actually rendered. Affirmed in part, reversed in part, and remanded.

 

Litigation

 

Issues: Review of the trial court's decision to decline to entertain motions and briefs filed after the deadlines set in applicable court rules; Maldonado v. Ford Motor Co.; Summary disposition under MCR 2.116(C)(10); Abbott v. John E Green Co.; MCR 2.116(G)(1)(a)(ii); MCR 2.107(G); Biafore v. Baker; EDI Holdings, Inc. v. Lear Corp.; MCL 440.3301; Whether the trial court properly dispensed with oral arguments; Fisher v. Belcher; MCR 2.119(E)(3); Motion for reconsideration; MCR 2.119(F)(3)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citibank, NA v. Renner

e-Journal Number: 53320

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

 

The court held, inter alia, that defendants were entitled to judgment as a matter of law, and summary disposition was proper because defendants' undisputed documentary evidence established that plaintiff did not have the right to enforce the note. Since plaintiff did not respond to defendants' motion, plaintiff did not raise any genuine issue of material fact. Thus, the trial court's grant of defendants' motion for summary disposition was affirmed. Plaintiff filed a complaint against defendants to enforce a promissory note. Plaintiff attached a copy of the promissory note, which listed the mortgagee as Home Loan Center, Inc. Defendants responded and moved for summary disposition on the basis that plaintiff did not have standing because it was not a party in interest. The trial court scheduled oral arguments for the motion for 12/22/11. Two days before the motion hearing, the trial court had not received plaintiff's response. Plaintiff maintained it mailed the response on 12/16/11, and attached to it was paperwork showing plaintiff purchased defendants' mortgage and note and thus, had standing to bring suit. On 12/22/11, the trial court granted defendants' motion for summary disposition and cancelled oral arguments on the motion. Plaintiff then filed a motion for reconsideration, asking the trial court to consider the documents showing plaintiff, in fact, had standing to bring suit. The trial court denied the motion for reconsideration. The court held that plaintiff plainly did not comply with the rule requiring responses be filed at least seven days before the hearing. Thus, the trial court acted within its discretion in refusing to consider plaintiff's untimely response. "MCR 2.116(G)(4) specifically requires a nonmovant to support its position with documentary evidence instead of resting on the allegations and denials in its pleadings."

 

This summary also appears under Malpractice

 

Issues: Medical malpractice; Summary disposition based on failure to comply with MCL 600.6431(3); MCL 600.5838a(1); McKiney v. Clayman; Whether MCL 600.6431's notice provision conflicts with the medical malpractice notice provision (MCL 600.2912b); Whether the defendant had to show "actual prejudice"; McCahan v. Brennan

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Marquardt

e-Journal Number: 53313

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

 

The court held that summary disposition for the defendant-University of Michigan Board of Regents in this medical malpractice case was proper on the basis that the plaintiff failed to comply with the notice provision of MCL 600.6431(3). The plaintiff-PR's decedent (Marquardt) underwent mitral valve replacement surgery at the University of Michigan Hospital and Health Center on 7/20/07. The complaint alleged that during the surgery the hospital negligently administered the drug Trasylol. Marquardt died on 1/27/10, allegedly as a result of complications resulting from administration of the Trasylol. On 7/20/09, plaintiff's counsel sent a notice of intent to file a medical malpractice claim pursuant to MCL 600.2912b to defendant and three doctors who performed the surgery. On 1/19/10, Marquardt filed the medical malpractice complaint in the Court of Claims (the trial court). After Marquardt's death, plaintiff was appointed PR of Marquardt's estate and the estate was substituted as plaintiff in this action. Noting that a medical malpractice claim accrues at the time of the act or omission that is the basis for the claim, the court concluded that "the 'happening of the event giving rise to the cause of action' in this case was the allegedly negligent administration of Trasylol during Marquardt's surgery" on 7/20/07. In order to pursue her claim against defendant, Marquardt was required to file "a notice of intention to file a claim or the claim itself" in the Court of Claims within 6 months of 7/20/07. However, the claim was not filed until 1/19/10. Plaintiff argued that MCL 600.6431's notice provision did not apply because it conflicts with the medical malpractice notice provision of MCL 600.2912b. "The two statutory notice provisions do not conflict and both can be met by a medical malpractice plaintiff." MCL 600.6431(3) requires that notice of intent to file a claim must be filed with the Court of Claims clerk within 6 months after the conduct giving rise to the claim. The notice must state "the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained." MCL 600.2912b(1) requires that notice of the claim be provided to the medical malpractice defendant not less than 182 days before the action is commenced. That notice must state the "factual basis for the claim," the "applicable standard of practice or care," the manner in which the defendant breached the standard of care, how the defendant could have avoided the breach, how the breach caused the plaintiff's injury, and the "names of all health professionals and health facilities" being notified. The court concluded that nothing prevents a plaintiff from complying with both statutory notice provisions. "There simply is no conflict entitling the estate to avoid strict compliance." While plaintiff also argued that the trial court should not have dismissed the case without a showing by defendant of actual prejudice, the court noted that this argument was rejected in McCahan. Affirmed.

 

This summary also appears under Privacy Law

 

Issues: Res judicata; Richards v. Tibaldi; Dart v. Dart; Baraga Cnty. v. State Tax Comm'n; Roberts v. City of Troy; Whether the plaintiff's claim of public disclosure of embarrassing private facts could have been resolved in the prior case; Effect of plaintiff's filing a claim of appeal in the prior case before moving to amend her complaint; Vallance v. Brewbaker

Court: Michigan Court of Appeals (Unpublished)

Case Name: Lynch v. Curcio

e-Journal Number: 53312

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

 

Holding that all four elements of res judicata were satisfied, the court affirmed the trial court's order granting the defendant summary disposition in this case alleging public disclosure of embarrassing private facts, the third lawsuit filed by the plaintiff against defendant arising from the same facts. Plaintiff was investigated for perjury and agreed to take a polygraph exam in 2006, which she failed. She alleged that defendant disseminated the results of the polygraph at township meetings and to the county board of commissioners, which he flatly denied. Plaintiff alleged that she was approached by several people who knew the results of her polygraph, and that she lost her reelection bid for county commissioner following disclosure of the polygraph results. She sued defendant and others in federal district court, bringing § 1983 claims and tort claims under Michigan law. The federal court dismissed her § 1983 claims with prejudice and declined to exercise pendent jurisdiction over the state law claims. Plaintiff then sued defendant and others in the trial court in 2009, alleging various torts and a violation of public policy pursuant to the Forensic Polygraph Examiner's Act. The defendants in that case successfully moved for summary disposition. Plaintiff appealed. While her appeal was pending, the trial court denied her motion to amend her complaint to add a claim of public disclosure of embarrassing private facts. While the appeal in that case was still pending, plaintiff filed this action. The court noted that the first element of res judicata was satisfied because the 2009 case was decided by the trial court's grant of summary disposition for defendant, and summary disposition is considered a determination on the merits. "The order granting summary disposition was also a final decision." It resolved all claims in defendant's favor, and plaintiff appealed as of right to the court, which affirmed. There was no dispute that the 2009 case was resolved through final order on the merits. The court also held that plaintiff's claim in this case could have been resolved in the prior action. This element represented "the greatest point of contention." Plaintiff argued that the trial court's denial of her motion to amend her complaint resulted in her inability to resolve her claim in the prior action. However, the court concluded that "plaintiff's own actions were the root cause of the problem." She could have moved earlier to amend the complaint, or moved for reconsideration before appealing, but chose not to do so. Thus, she divested the trial court of jurisdiction before moving to amend her complaint. She had an opportunity to resolve this case in the prior action, but ended that opportunity through her own action in appealing the order to the court. She also chose not to seek leave to appeal the trial court's decision not to allow her to amend the earlier complaint, but instead filed a separate action. Plaintiff also presented no argument as to why she failed to include a public disclosure of embarrassing private facts claim in her 2009 complaint. "The underlying factual scenario was identical, and plaintiff certainly could have included the claim in the 2009 complaint." As to the fourth element, there was no dispute that both parties were involved in both the 2009 case and this case.

 

Malpractice

 

This summary also appears under Litigation

 

Issues: Medical malpractice; Summary disposition based on failure to comply with MCL 600.6431(3); MCL 600.5838a(1); McKiney v. Clayman; Whether MCL 600.6431's notice provision conflicts with the medical malpractice notice provision (MCL 600.2912b); Whether the defendant had to show "actual prejudice"; McCahan v. Brennan

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Marquardt

e-Journal Number: 53313

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

 

The court held that summary disposition for the defendant-University of Michigan Board of Regents in this medical malpractice case was proper on the basis that the plaintiff failed to comply with the notice provision of MCL 600.6431(3). The plaintiff-PR's decedent (Marquardt) underwent mitral valve replacement surgery at the University of Michigan Hospital and Health Center on 7/20/07. The complaint alleged that during the surgery the hospital negligently administered the drug Trasylol. Marquardt died on 1/27/10, allegedly as a result of complications resulting from administration of the Trasylol. On 7/20/09, plaintiff's counsel sent a notice of intent to file a medical malpractice claim pursuant to MCL 600.2912b to defendant and three doctors who performed the surgery. On 1/19/10, Marquardt filed the medical malpractice complaint in the Court of Claims (the trial court). After Marquardt's death, plaintiff was appointed PR of Marquardt's estate and the estate was substituted as plaintiff in this action. Noting that a medical malpractice claim accrues at the time of the act or omission that is the basis for the claim, the court concluded that "the 'happening of the event giving rise to the cause of action' in this case was the allegedly negligent administration of Trasylol during Marquardt's surgery" on 7/20/07. In order to pursue her claim against defendant, Marquardt was required to file "a notice of intention to file a claim or the claim itself" in the Court of Claims within 6 months of 7/20/07. However, the claim was not filed until 1/19/10. Plaintiff argued that MCL 600.6431's notice provision did not apply because it conflicts with the medical malpractice notice provision of MCL 600.2912b. "The two statutory notice provisions do not conflict and both can be met by a medical malpractice plaintiff." MCL 600.6431(3) requires that notice of intent to file a claim must be filed with the Court of Claims clerk within 6 months after the conduct giving rise to the claim. The notice must state "the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained." MCL 600.2912b(1) requires that notice of the claim be provided to the medical malpractice defendant not less than 182 days before the action is commenced. That notice must state the "factual basis for the claim," the "applicable standard of practice or care," the manner in which the defendant breached the standard of care, how the defendant could have avoided the breach, how the breach caused the plaintiff's injury, and the "names of all health professionals and health facilities" being notified. The court concluded that nothing prevents a plaintiff from complying with both statutory notice provisions. "There simply is no conflict entitling the estate to avoid strict compliance." While plaintiff also argued that the trial court should not have dismissed the case without a showing by defendant of actual prejudice, the court noted that this argument was rejected in McCahan. Affirmed.

 

Municipal

 

This summary also appears under Freedom of Information Act

 

Issues: Whether the trial court correctly granted the plaintiff-law firm summary disposition on its FOIA claims; Whether (1) questions of fact existed and (2) the trial court failed to make findings of fact distinguishing between the documents plaintiff sought by subpoena and its FOIA request; Bronson Methodist Hosp. v. Auto-Owners Ins. Co.; Corley v. Detroit Bd. of Educ.; Ykimoff v. W A Foote Mem'l Hosp.; Amerisure Ins. Co. v. Plumb; Attorney fees, costs, and disbursements; Nemeth v. Abonmarche Dev., Inc.; MCL 15.240(6); Meredith Corp. v. City of Flint; Whether the action was reasonably necessary to compel disclosure and the suit had the substantial causative effect on the delivery of the information to the plaintiff; Wilson v. Eaton Rapids; Whether FOIA provides for the award of punitive damages in a very limited context; MCL 15.235(3) and MCL 15.240(7); Local Area Watch v. Grand Rapids; Whether the trial court found that defendant acted "arbitrarily or capriciously"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Nichols Law Firm, PLLC v. City of Lansing

e-Journal Number: 53272

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

 

In this FOIA case, the court held that the defendant-City did not establish that the trial court erroneously granted the plaintiff-law firm summary disposition. However, since plaintiff did not establish that it was the prevailing party, the trial court should not have granted attorney fees, costs, or disbursements, and the trial court "necessarily erred" when it awarded plaintiff punitive damages in the amount of $500. Thus, the court affirmed in part and reversed in part. Plaintiff submitted a FOIA request to defendant on 8/24/11, seeking documents and evidence related to the drunk-driving arrest of one of its clients. The letter specifically referenced the client's name, the date of the incident, and the ticket number. On 9/20/11, defendant sent a response letter stating that plaintiff's "request has been granted in part and denied in part in part for the reasons listed below." (The requests and responses were set out in their entirety in the opinion.) Later, plaintiff submitted several subpoenas as to its client's OUIL case. Plaintiff also submitted several other subpoenas with various requests. On 12/27/11, plaintiff sued alleging that defendant failed to comply with its FOIA request by improperly denying some of its requests. Plaintiff asked the trial court to order defendant to comply with the FOIA request, and also requested attorney fees, costs, disbursements, and punitive damages. After a hearing, the trial court granted plaintiff's motion for summary disposition brought under MCR 2.116(C)(10). The court held that the trial court should not have granted plaintiff's request for attorney fees because while the trial court found that defendant did not comply with FOIA, more is required to gain attorney fees, costs, and disbursements under § 10 of the Act. Further, the court held that the trial court also should not have granted plaintiff $500 in punitive damages where "the trial court never made a finding that defendant acted arbitrarily or capriciously."

 

Negligence & Intentional Tort

 

Issues: Premises liability; Wrongful death; Fall after stepping into a water puddle near the customer entrance to a business; Whether the condition was "open and obvious"; Lugo v. Ameritech Corp.; Joyce v. Rubin; Whether there were "special aspects"; Hoffner v. Lanctoe; Whether the condition was effectively unavoidable; Denial of motion for reconsideration; Corporan v. Henton

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Estate of Hall

e-Journal Number: 53316

Judge(s): Per Curiam – Cavanagh and Hoekstra; Concurring in the result only – Shapiro

 

Holding that the water puddle near the customer entrance to the defendants' business premises was open and obvious, and that no special aspects were present, the court affirmed the trial court's order granting the defendants summary disposition. Plaintiffs filed this wrongful death case after the decedent (Nelson) fell and struck his head on a concrete sidewalk while entering defendants' business premises to deliver a car payment. He later died from his head injury. He fell after stepping in a puddle of water near the customer entrance to the business. While the plaintiffs did not explicitly dispute the trial court's finding that the condition was open and obvious, the court noted that the evidence, when viewed in a light most favorable to plaintiffs, showed that there was no genuine issue of material fact as to whether the condition that allegedly caused Nelson's fall was open and obvious. In her deposition testimony, Nelson's wife, plaintiff-Barbara Hall, who was present when Nelson fell, agreed that she could tell by looking at it that the area where Nelson fell was wet, and that to the extent there might have been some puddles somewhere, she could easily see those as well. Thus, the evidence showed that the condition was readily observable. Plaintiffs argued that the puddle was effectively unavoidable because it was in front of the only customer entrance to the business and Nelson had to enter the business to make a car payment. During her deposition, Barbara testified that the water was not right up against the door to the building, and that the puddle was "just outside" the doorway, located "where the sidewalk and asphalt meet." "The manager working at the business on the day of Nelson's fall testified during his deposition that the puddle was avoidable, and that it was two feet in diameter and located on the asphalt parking lot." The court concluded that this evidence, which was not rebutted by plaintiffs, supported the conclusion that the condition was not unavoidable, as it would have been possible for Nelson to enter the building without walking through the puddle. Further, he was not inescapably required to confront the puddle - "he could have decided not to enter the business. In light of Hoffner, the fact that Nelson had a business interest and a contractual obligation to render payment for his vehicle at defendants' business is not sufficient to demonstrate that he was unavoidably compelled to confront the dangerous condition." Thus, the court held that "the condition was not uniquely dangerous because it was avoidable." Further, "a puddle in a parking lot is arguably a common condition, such as a pothole, that is not uniquely dangerous even if unavoidable." Also, the condition "did not pose a uniquely high likelihood of harm." While Nelson sustained a severe head injury resulting in death, that fact was "immaterial to whether the puddle was unreasonably dangerous."

 

This summary also appears under Insurance

 

Issues: Automobile negligence; Action to recover first-party no-fault benefits for medical transportation costs; Spiek v. Department of Transp.; In re Geror; Johnson v. Recca; MCL 500.3105(1); MCL 500.3107(1); Griffith v. State Farm Mut. Auto. Ins. Co.; "Allowable expense"; Douglas v. Allstate Ins. Co.; "Care," "recovery," and "rehabilitation"; Hamilton v. AAA MI; "Reasonably necessary" expense; Krohn v. Home-Owners Ins. Co.; Expense "incurred"; Proudfoot v. State Farm Mut. Ins. Co.; Burris v. Allstate Ins. Co.; Moghis v. Citizens Ins. Co. of Am.; Davis v. Citizens Ins. Co. of Am.; Manley v. Detroit Auto Inter-Ins. Exch.

Court: Michigan Court of Appeals (Unpublished)

Case Name: ZCD Transp., Inc. v. State Farm Mut. Auto. Ins. Co.

e-Journal Number: 53285

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

 

The court held that the trial court properly concluded that defendant was entitled to judgment to the extent plaintiff sought payment for mileage beyond that actually traveled by the injured person (Grinblatt). However, the reasonableness of the charges for the pick-up and wait time aspect of the transportation service remained an issue of fact to be determined. Grinblatt was injured in an automobile accident in 2001. Before the accident, he was unable to walk and got around using a personal mobility vehicle. He was able to drive using a van fitted with a lift and hand controls. After the accident, Grinblatt was too weak to move himself from the Amigo scooter to the driver's seat of the van and vice-versa. Thus, he hired plaintiff to provide transportation services, both for medical appointments and for personal trips unrelated to medical treatment. Plaintiff charged $3 a mile, but every client was charged a minimum of 10 miles for a one-way trip and 20 miles for a round trip, regardless of the number of miles actually driven. Plaintiff acknowledged that a majority of Grinblatt's trips involved distances less than the mileage minimum. Defendant objected to paying for medical transportation costs to the extent plaintiff sought compensation for times when Grinblatt was not actually in the vehicle being transported and to paying for personal trips. The court agreed with defendant that transportation expenses unrelated to medical treatment were not recoverable even if prescribed by a doctor as being "necessary for the patient's care, recovery, and rehabilitation." Those transportation services, "which were not directly related to Grinblatt's medical treatment but were solely to maintain his pre-injury quality of life, constituted replacement services, not allowable expenses, because Grinblatt did his own pleasure driving before the accident and, but for the injuries sustained in the accident, would have continued to do so." Also, plaintiff admitted that it provided the service to Grinblatt as a courtesy and did not expect him to pay for it. On the other hand, the cost of transportation and mileage to and from medical appointments are allowable expenses. "The expense was incurred to some extent because plaintiff provided the service to Grinblatt and apparently would have turned to him for payment if defendant were not liable. However, plaintiff's charges clearly included a fee for medical transportation even when Grinblatt was not in the vehicle and being transported." The record showed that plaintiff billed for picking him up from his home to transport him to a doctor's office and for either waiting for him to obtain his treatment or coming back to get him after his treatment so it could take him home. The court held that it stood to reason that plaintiff would have to charge for such services even though Grinblatt is not in the vehicle because it cannot transport him to and from medical appointments unless it first picks him up at home and then waits for him or comes back to get him to take him back home again. Because the pick-up and wait-time aspect of the service was actually rendered and the fees were incurred, the issue was whether those charges were reasonable. Neither party addressed that issue or provided any evidence for gauging the reasonableness of the charges. However, the record also showed that plaintiff charged a separate mileage fee for actually transporting Grinblatt and often charged for more miles than he actually traveled. To that extent, plaintiff sought payment for transportation services not actually rendered. Affirmed in part, reversed in part, and remanded.

 

Privacy Law

 

This summary also appears under Litigation

 

Issues: Res judicata; Richards v. Tibaldi; Dart v. Dart; Baraga Cnty. v. State Tax Comm'n; Roberts v. City of Troy; Whether the plaintiff's claim of public disclosure of embarrassing private facts could have been resolved in the prior case; Effect of plaintiff's filing a claim of appeal in the prior case before moving to amend her complaint; Vallance v. Brewbaker

Court: Michigan Court of Appeals (Unpublished)

Case Name: Lynch v. Curcio

e-Journal Number: 53312

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

 

Holding that all four elements of res judicata were satisfied, the court affirmed the trial court's order granting the defendant summary disposition in this case alleging public disclosure of embarrassing private facts, the third lawsuit filed by the plaintiff against defendant arising from the same facts. Plaintiff was investigated for perjury and agreed to take a polygraph exam in 2006, which she failed. She alleged that defendant disseminated the results of the polygraph at township meetings and to the county board of commissioners, which he flatly denied. Plaintiff alleged that she was approached by several people who knew the results of her polygraph, and that she lost her reelection bid for county commissioner following disclosure of the polygraph results. She sued defendant and others in federal district court, bringing § 1983 claims and tort claims under Michigan law. The federal court dismissed her § 1983 claims with prejudice and declined to exercise pendent jurisdiction over the state law claims. Plaintiff then sued defendant and others in the trial court in 2009, alleging various torts and a violation of public policy pursuant to the Forensic Polygraph Examiner's Act. The defendants in that case successfully moved for summary disposition. Plaintiff appealed. While her appeal was pending, the trial court denied her motion to amend her complaint to add a claim of public disclosure of embarrassing private facts. While the appeal in that case was still pending, plaintiff filed this action. The court noted that the first element of res judicata was satisfied because the 2009 case was decided by the trial court's grant of summary disposition for defendant, and summary disposition is considered a determination on the merits. "The order granting summary disposition was also a final decision." It resolved all claims in defendant's favor, and plaintiff appealed as of right to the court, which affirmed. There was no dispute that the 2009 case was resolved through final order on the merits. The court also held that plaintiff's claim in this case could have been resolved in the prior action. This element represented "the greatest point of contention." Plaintiff argued that the trial court's denial of her motion to amend her complaint resulted in her inability to resolve her claim in the prior action. However, the court concluded that "plaintiff's own actions were the root cause of the problem." She could have moved earlier to amend the complaint, or moved for reconsideration before appealing, but chose not to do so. Thus, she divested the trial court of jurisdiction before moving to amend her complaint. She had an opportunity to resolve this case in the prior action, but ended that opportunity through her own action in appealing the order to the court. She also chose not to seek leave to appeal the trial court's decision not to allow her to amend the earlier complaint, but instead filed a separate action. Plaintiff also presented no argument as to why she failed to include a public disclosure of embarrassing private facts claim in her 2009 complaint. "The underlying factual scenario was identical, and plaintiff certainly could have included the claim in the 2009 complaint." As to the fourth element, there was no dispute that both parties were involved in both the 2009 case and this case.

 

Real Property

 

Issues: Quiet title action following a tax foreclosure sale; Summary disposition under MCR 2.116(C)(10); Ritchie-Gamester v. City of Berkley; Summary disposition under MCR 2.116(C)(9); Slater v. Ann Arbor Pub. Schs. Bd. of Educ.; Whether there was a genuine issue as to whether defendant paid his 2008 property taxes; MCL 211.78a(2); Whether there was a genuine issue of material fact as to whether defendant received sufficient notice; MCL 211.78i(2); MCL 211.78i(3)(a); MCL 211.78i(3)(d); Whether summary disposition was premature; Oliver v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: Anjen Global Commodities, LLC v. Haralambis Props., LLC

e-Journal Number: 53329

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

 

Because defendant-Haralambis did not plead a valid defense and there were no genuine issues of material fact, the court held that the trial court properly granted plaintiff-Anjen Global Commodities summary disposition and a judgment quieting title in the property, which plaintiff purchased at a tax foreclosure sale. Defendant argued first that there was a genuine issue regarding whether he paid his 2008 property taxes, because he provided in the trial court a copy of a 2/10 check to the City. However, defendant alleged in his trial court pleadings that this was payment of the 2010 property taxes. Based on the foreclosed property tax statement, the 2/10 payment was applied to the 2009 taxes, which were due at that time. Defendant never claimed that he informed the City he was attempting to pay the 2008 taxes, which were to be paid at the county treasurer after they became delinquent on 3/1/09. Defendant did not allege that he made any other efforts to pay any property taxes to the City or county treasurer. "Defendant did not sufficiently plead the defense that he had paid the 2008 taxes. Further, even the check alone did not create a genuine issue of material fact that defendant paid the 2008 taxes. If defendant became confused about which taxes he had paid, as a result of his repeated failure to pay his property taxes on time since 2005, the notice provisions were intended to protect him." Defendant did not argue that the county failed to send notice to any address on record, but instead that the address on record had the wrong city name. However, the acting postmaster asserted that the cities share a post office and the mail was delivered correctly. "Further, defendant offered no evidence contradicting documentation that his sister-in-law signed for the mail." Defendant also argued that the property was incorrectly identified as unoccupied. However, he conceded in the trial court that the tacking required by MCL 211.78i(3)(d) occurred and only suggested that the notice might have blown away. Thus, there was no genuine issue that the governmental unit representative complied with MCL 211.78i(3)(d). Affirmed.

 

Termination of Parental Rights

 

Issues: Termination under § 19b(3); In re JS & SM; The child's best interests; In re Trejo Minors; Reunification; MCL 712A.19a(2)(c); Ineffective assistance of counsel for failure to refer respondent for a psychological evaluation to determine if she had any limitations that would need to be accommodated in developing a service plan and providing her with reunification services; In re EP; People v. Rodriguez; People v. Horn, The Americans with Disabilities Act (42 USC § 12101 et seq.); In re Terry

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Miller-Williams

e-Journal Number: 53328

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

 

The court held, inter alia, that the trial court properly terminated the respondent-mother's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. The court also found no clear error in the trial court's determination that termination of respondent's parental rights was in the child's best interests. The petitioner-DHS sought termination of respondent's parental rights at the initial dispositional hearing under §§ 19b(3)(g), (i), (j), and (l). She pleaded no contest to the allegations against her, which indicated that her parental rights to three other children were previously terminated due primarily to a longstanding substance abuse problem. The trial court took judicial notice of the other cases to establish a factual basis for the plea. On appeal, respondent did not challenge the trial court's reliance on § 19b(3)(l) (the parent's rights to another child were previously terminated after the initiation of child protective proceedings) as a basis for termination. Where a respondent does not challenge the trial court's determination as to one or more of several statutory grounds, the court may assume that the trial court did not clearly err in finding that the unchallenged grounds were established by clear and convincing evidence. Also, the court held that the trial court did not clearly err in finding that termination of respondent's parental rights was in the child's best interests. Respondent acknowledged that she is a recovering drug addict and had used crack cocaine during her pregnancy, which left the child suffering from severe withdrawal symptoms. Although respondent did seek out and complete a substance abuse treatment program, she admitted that it did not sufficiently prepare her for maintaining sobriety in the community and that she required additional treatment. She thus, entered a six-month treatment program, but then dropped out after only three or four weeks and did not seek any further treatment. Respondent never obtained a high school degree, had not held a job in years, did not have a legal source of income, and was incarcerated for a charge of assault with intent to commit murder. Further, respondent had not seen the child since birth, so there was never an opportunity for the child to establish any bond with respondent. Affirmed.

 

Issues: Termination under §§ 19b(3)(b)(i), (g), (j), (k)(iii), and (k)(v); In re Rood; In re Trejo Minors; In re Ellis; The child's best interests; In re Olive/Metts; Claim that the trial court erred by denying the respondent-father's request for an adjournment pending his criminal trial because in doing so the trial court failed to protect his Fifth Amendment right against self-incrimination; In re Utrera; U.S. Const., Am V; Const. 1963, art. 1, § 17; Huntington Nat'l Bank v. Ristich; In re Stricklin; Whether the trial court abused its discretion when it admitted certain evidence over respondent's objections; "Hearsay"; MRE 801(c); MRE 802; MRE 803; MRE 803(4); Merrow v. Bofferding; People v. Meeboer; Right of confrontation; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Challenges to the admissibility of statements respondent made to an officer and the child's mother; Miranda warning; Birdsey v. Grand Blanc Cmty. Sch.; Challenges to the admissibility of a police report; MRE 803(8); In re DMK; MRE 801(d)(2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Sewejkis

e-Journal Number: 53330

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

 

The court held, inter alia, that that the trial court properly terminated the respondent-father's parental rights to the minor child where the statutory grounds for termination were established by clear and convincing evidence. The trial court also did not clearly err in finding that it was in the child's best interests to terminate respondent's parental rights. Because §§ 19b(3)(b)(i), (k)(iii), and k(v) all relate to abuse by a parent, they were considered together. The case arose from respondent's abuse of his infant son, H. On 12/7/011, respondent slammed the child's head into a floor, causing severe injury. Hours after the incident, respondent and H's mother, L, took the child to the hospital. H underwent emergency surgery and suffered extensive and permanent brain damage. Respondent was arrested, and charged with first-degree child abuse. Based on the facts, there was clear and convincing evidence that respondent physically injured and severely abused H, resulting in a life-threatening injury. Respondent not only admitted to slamming the four-month old's head into the floor, but the evidence established that H was the victim of abusive head trauma and that respondent was alone with H when the injuries were sustained. Based on respondent's abusive behavior, there was a reasonable likelihood that H would suffer from injury or abuse in the future if returned to respondent's home. Affirmed.

 

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