• Banking (2)
• Business Law (1)
• Constitutional Law (2)
• Contracts (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Family Law (1)
• Insurance (1)
• Litigation (2)
• Municipal (1)
• Negligence & Intentional Tort (1)
• Real Property (1)
• Tax (1)
• Termination of Parental Rights (1)

Banking

 

This summary also appears under Litigation

 

Issues: Appeal by the intervening party/appellant-bank; "Garnishment"; Whether the trial court properly held that plaintiff-Asher was entitled to rent proceeds after the service of his writs of garnishment; Asset Acceptance Corp. v. Hughes; Court rules governing garnishment; MCR 3.101 et seq.; Garnishment statute; MCL 600.4001 et seq.; Ward v. Detroit Auto Inter-Ins. Exch.; "Setoffs"; Sears, Roebuck & Co. v. A T & G Co.; Berar Enters., Inc. v. Harmon; Applicability of the Assignment of Rents statute providing notice to tennants; MCL 554.231 & .232; Department of Transp. v. Tomkins; Priority of writs; MCL 600.4012; Whether the garnishee process can "affect the contract rights of mortgagees"; Daggett, Bassett & Hills Co. v. McClintock; Whether in the absence of fraud the contract and assignment took priority over plaintiff's writs of garnishment over rental proceeds; Blow v. Blow; Mihajlovski v. Elfakir

Court: Michigan Court of Appeals (Unpublished)

Case Name: Asher v. Shiawassee Invs., LLC

e-Journal Number: 53294

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

 

The court held that the trial court erred in determining that plaintiff-Asher's service of the writs of garnishment took priority over the interest held by the intervening bank (Citizens) because in 12/07, the bank and the corporate defendant (Shiawassee Investments) executed a mortgage and assignment of rents and recorded the documents. Thus, plaintiff should have been on notice since 12/07 of the bank's entitlement to rental payments in the event of the corporate defendant's default. In the absence of fraud, the contractual agreement and assignment took priority over plaintiff's writs of garnishment over the rental proceeds. Reversed and remanded for further proceedings. Plaintiff obtained a money judgment against defendants. He sent a writ of garnishment to Citizens seeking to garnish defendants' accounts. In response, Citizens advised plaintiff that the individual defendants (Beales) did not have any accounts and the account of the corporate defendant was claimed by Citizens as a set off for a delinquent loan. Thus, plaintiff sought to obtain rental proceeds from the defendants' property tenants through writs of garnishment. Citizens filed a motion to intervene in the case and objections to the writs of garnishment. The bank alleged that it entered into a mortgage and assignment of rents with the corporate defendant in 12/07. However, this defendant defaulted, causing the bank to accelerate the unpaid balance of the note by letter on 2/22/11. The bank alleged that it was entitled to the rental proceeds as a result of the default, and its interest took priority over any claim by plaintiff. Plaintiff contended that the writs of garnishment were served by the sheriff on 5/26/11. Thus, plaintiff perfected his interest on that date. He claimed that the bank realized that it failed to protect its interest by filing a notice of default with the county clerk and serving the tenants as required by statute. The bank rushed to perfect its interest, but that did not occur until 5/31/11. Plaintiff argued that his interest was perfected before any interest held by the bank. The trial court adopted plaintiff's argument and ruled that he acquired his interest in the rental payments first. The court noted that "the garnishee process cannot affect the contract rights of mortgagees." "Where a principal defendant has made an assignment of a claim or a transfer of property prior to the service of a writ of garnishment, the claim or property cannot be reached by garnishment in the absence of fraud in the assignment or transfer." Further, "garnishment proceedings cannot be sustained against a judgment debtor where it appears that the judgment prior to the institution of the suit, had been assigned by the principal defendant to a third party unless it is established that assignment was fraudulently made." Here, the bank's claim had priority over the plaintiff's claim as to the property being garnished.

 

This summary also appears under Real Property

 

Issues: "Fiduciary duty"; Teadt v. Lutheran Church MO Synod; Fiduciary duty between mortgagor and mortgagee; In re Sallee; Breach of an "implied covenant of good faith and fair dealing"; Belle Isle Grill Corp. v. City of Detroit; Negligence; Brown v. United States; Case v. Consumers Power Co.; Fraud; Bennett v. MIS Corp.; Cummins v. Robinson Twp.; Whether 16 CFR § 433.2 applies to mortgages; Johnson v. Long Beach Mtg. Loan Trust (D DC); Statute of limitations on negligence claims; MCL 600.5805; Truth in Lending Act (TILA) (15 USC § 1601 et seq.); United States v. Petroff-Kline; TILA statute of limitations; 15 USC § 1640; 15 USC § 1640(e); MacDermid v. Discover Fin. Servs.; Whether an individual can have a lien on his own property; Gould v. Day; Whether the magistrate was qualified; 28 USC § 631(c); "Newly discovered" evidence; Fed.R.Civ.P. 60(b)(2); Dean v. City of Bay City, MI

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Coyer v. HSBC Mtg. Servs., Inc.

e-Journal Number: 53369

Judge(s): Per Curiam – Merritt, Martin, and Gilman

 

In an opinion that was originally issued as an unpublished decision but was now designated for publication, the court held that the district court properly dismissed plaintiffs' claims against their mortgagee. Pro se plaintiffs sued defendant for allegedly conspiring to induce them into a predatory loan agreement. The district court denied plaintiffs' motion for a temporary restraining order, preventing the sale of their home, and subsequently denied their motion for reconsideration. The district court later granted defendant a judgment on the pleadings. The court first rejected plaintiffs' argument that defendant breached its fiduciary duty, noting that defendant purchased and serviced the mortgage, but plaintiffs failed to show that any special circumstances existed to avoid the general rule that such a relationship does not involve fiduciary duties. The court also held that the district court properly dismissed plaintiffs' claim for breach of an implied covenant of good faith and fair dealing, noting that Michigan does not recognize such a claim. The court next found that the district court properly dismissed plaintiffs' negligence and fraud claims, noting that, although plaintiffs argued that defendant was liable for the misrepresentations and failures to disclose information made by the previous mortgagee, Option One, they presented no persuasive authority to support this contention, and they filed their negligence claim beyond the statute of limitations. The court further held that the district court properly dismissed plaintiffs' TILA claims, finding that plaintiffs' allegations that they were induced to enter into a predatory loan agreement via misrepresentation and fraud related back to the time they entered their mortgage with Option One, and defendant was not a party to that transaction. Moreover, it held that the TILA claim was barred by the applicable one-year statute of limitations. The court also concluded that plaintiffs could not place a lien on their own property, that the issues raised about the magistrate and judge were meritless, and that the district court properly scrutinized defendant's claims. Finally, the court found that the district court properly denied plaintiffs' Rule 60(b) motion, noting that a motion for reconsideration under Rule 60(b) was not the proper vehicle for asserting new claims. Affirmed.

 

Business Law

 

This summary also appears under Litigation

 

Issues: Choice of law; Hudson v. Mathers; Chrysler Corp. v. Skyline Indus. Servs., Inc.; Whether the defense of usury is available to corporations under Illinois law; Jones & Brown, Inc. v. W E Erickson Constr. Co. (IL App.); Martino v. Cottman Transmission Sys., Inc.; Minthorn v. Haines; Allan v. M&S Mtg. Co.; Whether the trial court properly held that defendant-TTOD had a valid security interest in the collateral; MCL 440.9310; Michigan Tractor & Mach. Co. v. Elsey; Ann Arbor Tenants Union v. Ann Arbor YMCA; TTOD's claim that plaintiff-Midwest was collaterally estopped from contesting TTOD's security interest in the debtor's collateral; VanVorous v. Burmeister; Monat v. State Farm Ins. Co.; Whether Midwest was entitled to judgment as a matter of law pursuant to MCR 2.116(I)(2); Common law conversion; Department of Agric. v. Appletree Mktg., LLC; Statutory conversion; MCL 600.2919a(1); Whether the trial court prematurely granted summary disposition before discovery was complete; Anzaldua v. Neogen Corp.; Review; Shay v. Aldrich; Coblentz v. Novi

Court: Michigan Court of Appeals (Unpublished)

Case Name: Midwest Bus. Credit, LLC v. TTOD Liquidation, Inc.

e-Journal Number: 53291

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

 

The court held that because the plaintiff-Midwest's loan was not usurious under Illinois law and was not an unenforceable "illegal" contract, Midwest showed that it had an enforceable security interest in the debtor's (Dott Acquisition) collateral. While defendant-TTOD failed to properly establish its security interest in the collateral, the trial court improperly granted summary disposition to defendants before discovery was complete. Thus, the court also held that the trial court erroneously granted summary disposition to defendants on all claims but the statutory conversion claim. The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion. Midwest, a Nevada company with its principal place of business in Illinois, appealed from the trial court's order dismissing its remaining claims against the debtor. Midwest mainly contested the trial court's prior grant of summary disposition pursuant to MCR 2.116(C)(10) to TTOD and defendant-Lapeer Plating (both Michigan companies).The case primarily involved a dispute between two creditors, Midwest and TTOD over their respective rights in the debtor's collateral - inventory comprised of manufacturing materials for use in fabricating chrome-plated, plastic-molded car parts. The debtor, a bankrupt Michigan company who defaulted on its loan obligations to both Midwest and TTOD, was not a party to this appeal. The disputed collateral was comprised of the debtor's inventory and inventory records and insurance proceeds of the inventory, worth about $3 million. Midwest filed this suit to recover all the collateral in order to satisfy the outstanding balance on the Midwest loan, which was $684,986. Midwest sued TTOD for breach of the Intercreditor Agreement and both statutory and common law conversion. The outcome of the case depended on whether Michigan or Illinois law controlled the dispute. Midwest argued that, in refusing to honor the parties' choice of law provision contained in their contract, the trial court erroneously concluded that Midwest lacked an enforceable security interest in the collateral because the Midwest loan agreement was unenforceable under Michigan law, on the grounds that the charged interest rate constituted criminal usury. The court agreed. The court noted that under the facts, it was clear that the chosen state of Illinois had a substantial relationship with the parties and the transaction. Further, the parties traveled to Illinois to procure the loan. The court noted that Illinois law expressed as a matter of policy that defendants cannot assert a usury defense, because the defense of usury is personal and not available to corporations. The trial court should have honored the parties' choice of law provision and held that the Midwest loan did not violate Illinois' usury laws. The trial court committed error requiring reversal by finding that Midwest lacked an enforceable security interest in the collateral.

 

Constitutional Law

 

Issues: Michigan Container Act (Bottle Bill); MCL 445.571 et seq.; Challenges to MCL 445.572a(10) (Michigan's "unique mark" provision); Pike v. Bruce Church, Inc.; Brown-Forman Distillers Corp. v. New York State Liquor Auth.; Commerce Clause; U.S. Const., art. I, § 8, cl. 3; C & A Carbone, Inc., v. Town of Clarkstown, NY; Dormant Commerce Clause; Oregon Waste Sys., Inc. v. Department of Envtl. Quality of State of OR; Huish Detergents, Inc. v. Warren Cnty., KY; Department of Revenue of KY v. Davis; New Energy Co. of IN v. Limbach; Challenges based on the Dormant Commerce Clause; International Dairy Foods Ass'n v. Boggs; East KY Res. v. Fiscal Court of Magoffin Cnty. KY; Whether the law discriminates on its face against interstate commerce; United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth.; Chemical Waste Mgmt. Inc., v. Hunt; Discriminatory effect; Granholm v. Heald; Hunt v. Washington State Apple Adver. Comm'n; Whether the statute is extraterritorial; Healy v. Beer Inst. Inc.

Court: U.S. Court of Appeals Sixth Circuit

Case Name: American Beverage Ass'n v. Snyder

e-Journal Number: 53367

Judge(s): Clay and Sutton; Concurrence – Sutton; No opinion - Rice

 

The court held that Michigan's unique mark requirement for certain returnable bottles is not discriminatory, but because it forces manufacturers and distributors of beverage containers to adopt the state's unique labeling system, without the consideration of other less burdensome alternatives, the requirement has an impermissible extraterritorial effect. Plaintiff sued defendants, arguing that MCL 445.572a(10), which requires that certain returnable bottles and cans possess a unique-to-Michigan mark designation, violates the dormant Commerce Clause, regulates extraterritorially, and discriminates against interstate commerce. The district court granted summary judgment for defendants. On appeal, the court rejected plaintiff's argument that the law discriminated against interstate commerce in violation of the dormant Commerce Clause. The court noted that Michigan's unique-mark provision is not facially discriminatory against interstate commerce as it does not distinguish between in-state and out-of-state beverage manufacturers and requires all beverage containers to follow the unique-mark requirement. It further noted that there is no concrete evidence from the statutory language that the unique-mark requirement is purposefully discriminatory. It also concluded that the unique-mark requirement burdens in-state beverage manufacturers who meet the designated thresholds to the same extent it burdens out-of-state manufacturers who meet the designated thresholds. However, the court held that the Michigan statute is extraterritorial in violation of the dormant Commerce Clause because it impermissibly regulates interstate commerce by controlling conduct beyond the State of Michigan. It noted that plaintiff must comply with the statute now or face criminal sanctions, and that other states must react to it or also face legal consequences. Thus, the court concluded, "Michigan is forcing states to comply with its legislation in order to conduct business within its state, which creates an impermissible extraterritorial effect and is in violation of the Supreme Court's precedent stated in Brown-Forman and Healy." Affirmed in part, reversed in part, and remanded.

 

This summary also appears under Municipal

 

Issues: 42 USC § 1983; Qualified immunity; Mitchell v. Forsyth; Barker v. Goodrich; Saucier v. Katz; Parsons v. City of Pontiac; "Excessive force"; Bennett v. Krakowski; Graham v. Connor; "Clearly established" right; Wheeler v. City of Lansing; Anderson v. Creighton; St. John v. Hickey; Higgason v. Stephens; Excessive force as to police dogs; Robinette v. Barnes; Matthews v. Jones; White v. Harmon; Whether a district court's denial of qualified immunity is an appealable final decision under 28 USC § 1291; Kennedy v. City of Cincinnati; Berryman v. Rieger; Estate of Carter v. City of Detroit; Supervisor liability; Shehee v. Luttrell; Hays v. Jefferson Cnty.; Whether the defendant-city had grounds to seek an interlocutory appeal of the district court's denial of its summary judgment motion; Bomar v. City of Pontiac; Floyd v. City of Detroit

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Campbell v. City of Springboro, OH

e-Journal Number: 53334

Judge(s): Donald and Keith; Concurring in part, Dissenting in part – McKeague

 

The court held that the district court properly denied the defendant-officers' motions for summary judgment and properly dismissed the defendant-city's appeal for lack of jurisdiction. Plaintiffs sued defendants alleging excessive force, failure to supervise, and failure to properly train, as well as state-law assault and battery, after they were attacked by defendants' police dog. The district court denied defendants' motion for summary judgment. On appeal, the court concluded that a reasonable jury could have found that defendant-Officer Clark's actions were unreasonable. It held that there was "ample evidence" to suggest that the deployment of the dog against plaintiff-Campbell was itself irresponsible and therefore, unreasonable, owing to Clark's failure to adequately maintain the dog's training. The evidence also suggested a possible causal link between plaintiff-Gemperline's injury and the dog's inadequate training. The court held that there was "ample evidence to suggest that Clark acted contrary to clearly established law when he used an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing." The court also found that although defendant-Kruithoff, the police chief, was not actively involved in the incidents involving the dog, a causal connection between his acts and omissions and the alleged constitutional injuries was suggested by the record. Finally, the court concluded that it lacked jurisdiction to consider the city's appeal. Affirmed.

 

Contracts

 

This summary also appears under Employment & Labor Law

 

Issues: Docket No. 296368 (2006 action) - Breach of contract; Whether the express terms of the CBAs unambiguously did not require defendant to pay for Medicare Part B premiums (or more specifically to reimburse plaintiffs for the premiums that they pay for Medicare Part B coverage); DeFrain v. State Farm Mut. Auto Ins. Co.; The "doctrine of past practices"; Butler v. Wayne Cnty.; Maiden v. Rozwood; Allison v. AEW Capital Mgmt., LLP; AFSCME Council 25 v. Wayne Cnty.; SSC Assoc Ltd. P'ship v. General Ret. Sys. of the City of Detroit; Coates v. Bastian Bros, Inc.; Smith v. Smith; Use of the word "or"; Paris Meadows, LLC v. City of Kentwood; A "coordination of benefits" (COB) clause; John Morrell & Co. v. United Food & Commercial Workers Int'l Union (D SD); Moot arguments; B P 7 v. Bureau of State Lottery; Docket No. 300964 (2006 action) - Status quo order; Jurisdiction; City of Riverview v. Sibley Limestone; In re Leete Estate; State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; MCR 7.208; People v. Swafford; In re Contempt of Dudzinski; Internationsl Union, UAW v. Michigan; City of Ann Arbor v. Danish News Co.; Tiedman v. Tiedman; Docket No. 299214 (2008 action) - Whether a genuine issue of material fact existed as to the breach of contract claims; "Latent ambiguity"; Shay v. Aldrich; Proof of mutual acceptance; Port Huron Educ. Ass'n v. Port Huron

Court: Michigan Court of Appeals (Unpublished)

Case Name: Loose v. Dearborn Heights

e-Journal Number: 53338

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

 

The court held, inter alia, that in Docket No. 296368 (2006 action), the defendant-City, rather than plaintiffs, was entitled to summary disposition under MCR 2.116(C)(10) because the express terms of the applicable CBAs were not ambiguous and they did not require the City to pay for Medicare Part B premiums. Thus, the burden rested with plaintiffs to establish that their respective unions had a meeting of the minds with the City, at the time of their respective retirements between 1982 and 1985, that the City would nonetheless pay Medicare Part B premiums. Plaintiffs were required to show that this practice was so widely acknowledged and mutually accepted that it amended the CBAs. Because it was undisputed that this practice did not occur, plaintiffs' claim that the City breached the CBAs could not succeed. These consolidated appeals arose from actions filed by retired former employees of the City to determine its liability for their healthcare costs and, in particular, Medicare Part B premiums beginning when plaintiffs reach age 65. In the 2006 action, the City appealed the trial court's judgment awarding money damages to the four plaintiffs and ordering that defendant "pay all of the premiums for the Plaintiffs' health and hospitalization insurance, including Medicare B, during their retirement." Addressing first the 1983-86 CBA for police supervisors that was applicable to plaintiff-Bennett's position when he retired in 1985, the CBA was silent as to whether the City must pay for a retiree's Medicare Part B premiums in its insurance provisions. The court held that the trial court erred in concluding that the City's obligation to pay for "Michigan Blue Cross and Blue Shield or equivalent hospitalization and medical insurance, M.V.F.-1 coverage," as set forth in § 3, established that the City must pay for Bennett's Medicare Part B premiums. Construing the insurance provisions as a whole and harmonizing each part as much as possible, the court held that the only reasonable conclusion was that the City was not required to pay for a retiree's Medicare Part B premiums under the terms of 1983-86 CBA applicable to Bennett. As a whole, the 1983-86 CBA did not treat Medicare Part B as an integral part of the City's obligation to provide insurance coverage, but rather a benefit received by the retiree that was subject to a COB. Thus, under the express terms of the 1983-86 CBA, the City had no contractual duty to reimburse a retiree for Medicare Part B premiums. While the 1983-86 CBA for police officers applicable to plaintiff-Eddolls was structured differently, it contained the same substantive provisions, except that the nonduplication provision preceding the healthcare provisions in Article A-11 was limited to an employment situation. Article A-11 subjected Medicare to a COB in § 7 in the same manner as the COB provision in the 1983-86 CBA for police supervisors. The 1983-86 CBA for firefighters applicable to plaintiff-McColl contained the same substantive provisions as the 1983-86 CBA for police officers. Because both CBAs treated Medicare as being subject to a COB and Medicare was not a benefit provided to the retiree by the City, the trial court erred in construing these CBAs as requiring the City to pay for the Medicare Part B premiums.  As to plaintiff-Loose, the parties agreed that the applicable CBA under his letter of understanding with the City was the CBA for police supervisors for the period 1980-83. According to the submitted evidence, this CBA does not contain the COB provision for Medicare that was contained in the 1983-86 CBA. However, because the 1980-83 CBA was unambiguous and did not entitle Loose to have the City pay for Medicare Part B premiums, the City was entitled to summary disposition. In the 2006 action, the court vacated the trial court's judgment and status quo order, and remanded for entry of an order of summary disposition for the City. In the 2008 action, the court reversed in part the trial court's order denying the City's motion for summary disposition as to plaintiffs' breach of contract claims, and remanded.

 

Criminal Law

 

Issues: Whether the trial court abused its discretion in denying the defendant's request for a DNA expert; People v. Lueth; People v. Carnicom; Due process; People v. Leonard; People v. Tanner

Court: Michigan Supreme Court

Case Name: People v. Webb

e-Journal Number: 53475

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

 

In an order in lieu of granting leave to appeal, the court reversed in part the Court of Appeals opinion (see e-Journal # 52473 in the 9/11/12 edition) to the extent that the Court of Appeals vacated the defendant's convictions. The court did not disturb the Court of Appeals determination that the lack of an expert deprived defendant of an opportunity to present a defense to the charges, or its ruling that he was entitled to funds to retain a DNA expert. "However, the error in denying funds may have been harmless and, at this point in the proceedings, it would be premature to vacate the defendant's convictions before the results of independent DNA testing are known." Thus, the court remanded the case to the trial court for further proceedings not inconsistent with the court's order. The court directed the trial court to provide funds sufficient to allow defendant to obtain independent DNA testing. The court specified that testing "shall proceed forthwith, and the results shall be provided to both parties as soon as reasonably possible. Within 56 days of receiving the test results, the defendant may seek further relief, if appropriate, in the trial court."

 

Issues: "Other acts" evidence; MCL 768.27b; People v. Schultz; MRE 404(b); People v. Railer; Whether MCL 768.27b unconstitutionally infringed on the Michigan Supreme Court's authority under Const. 1963, art. 6, § 5; People v. Watkins; McDougall v. Schanz; Whether the "probative value" of the evidence was substantially outweighed by the threat of "unfair prejudice"; MRE 403; People v. Meissner; People v. Cameron; People v. Vasher

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Horton

e-Journal Number: 53357

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

 

Holding, inter alia, that the challenged testimony was "highly probative of defendant's propensity for committing violence against women with whom he lived," and it was not unfairly prejudicial, the court concluded that the trial court did not abuse its discretion in admitting the evidence under MCL 768.27b. Defendant was convicted of assault and battery and two counts of interfering with electronic communications. His convictions arose from his violent behavior against his then-girlfriend with whom he lived. During the trial, the prosecutor admitted evidence related to defendant's prior domestic violence conviction. "The evidence was admitted pursuant to MCL 768.27b which specifically allows, in domestic violence cases, evidence of the defendant's commission of other acts of domestic violence." On appeal, defendant argued that MCL 768.27b conflicts with MRE 404(b) and "impermissibly usurps the Michigan Supreme Court's power to establish, modify, amend and simplify the practice and procedure in this state's courts." The court disagreed, noting that the Supreme Court recently considered and rejected in Watkins the same argument as to MCL 768.27a. Defendant also argued that the probative value of the evidence related to his prior domestic violence conviction was substantially outweighed by the threat of unfair prejudice and thus, it should have been excluded. The court again disagreed. Defendant had also lived with the former girlfriend. Her testimony included that, about two years before (1) he made accusations against her about other men, (2) a verbal argument became physical, with objects being used during the fight that caused the victim injuries, (3) when she tried to call police, defendant took her cell and home phones, and her car keys, (4) he removed the battery from the cell phone, hid the phones, and prevented her from seeking emergency assistance. The court noted that the allegations in this case were "strikingly similar" and included that (1) defendant made accusations against the victim about other men, (2) he yelled at her, called her names, and threatened her before the argument became physical, (3) he grabbed her laptop computer and threw it, (4) when she tried to call 911 on her cell phone, he "ripped it right out of" her hand and threw it across the room, causing it to break, and (5) when she tried to call 911 from her house phone, he grabbed her and was "throwing [her] around," and then took the phone from her and struck her twice in the face with it, knocking out three of her teeth. The court concluded that the former girlfriend's testimony "provided a more complete picture of defendant's history, shedding light on the likelihood that the crime was committed." The testimony was not graphic or shocking, and it was brief. Thus, it "did not divert the jury from rationally considering defendant's case." While the testimony was somewhat prejudicial to him, it did not have "'an undue tendency to move the tribunal to decide on an improper basis.'" Affirmed.

 

Issues: Right to a "speedy trial"; U.S. Const., Am VI; Const. 1963, art. 1, § 20; MCL 768.1; People v. Williams; People v. Cain; People v. Gilmore; People v. Waclawski; Whether the trial court properly excused a juror "for cause" on the fourth day of trial; People v. Tate; People v. Weatherspoon; MCL 768.18; People v. Harvey; People v. Clyburn; MCR 2.511(D)(2), (3), and (4); Ineffective assistance of counsel; United States v. Cronic; People v. Carbin; Strickland v. Washington; In re Ayres; People v. Davis; People v. Thomas; People v. Unger; Sentencing; Scoring of OVs 9, 12, and 19; People v. Lockett; People v. Callon; People v. McGraw; People v. Barbee; People v. Osantowski; People v. Francisco; Unlawfully driving away an automobile (UDAA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hubbert

e-Journal Number: 53340

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

 

Concluding, inter alia, that the first three factors relevant to a speedy trial claim weighed minimally in favor of defendant, and the fourth factor weighed heavily against him, the court held that he was not denied his right to a speedy trial. Around 4:15 AM on 4/24/10, police initiated a traffic stop on a 2002 Chevrolet Trailblazer after seeing it traveling at a high rate of speed. As the officer approached the vehicle on foot, it sped away, leading police on a chase. Eventually, the vehicle occupants fled on foot. Defendant was arrested while attempting to hide from pursuing officers. Two stolen firearms were recovered in or near the vehicle. The vehicle was reported stolen. Laboratory analysis showed that glass fragments found on defendant's clothing were similar to glass from the broken windows of the vehicle. He denied being in the vehicle and claimed that he did not know the other two individuals arrested at the scene. However, recorded telephone calls made by defendant from jail indicated that he knew these individuals. Defendant argued that he was deprived of his right to a speedy trial. Here, the length of the delay was minimal. Defendant was arrested on 4/24/10 and arraigned on 4/28/10. His trial commenced on 11/30/10, a delay of approximately 7 months. The delay from the originally scheduled trial date of 8/5/10 was caused by the trial court's workload. Defendant argued that by stating that he was not asking for an adjournment on 8/5/10, he was asserting his right to a speedy trial. However, he did not in any way make a demand for a speedy trial. The only assertion of a speedy trial violation was on the first day of trial. Even if defendant's statement were considered a demand for a speedy trial, there was a gap of less than three months between the statement and the beginning of defendant's trial and so the assertion should be afforded only minimal weight in his favor. Finally, defendant conceded he failed to show prejudice, arguing "[i]t is difficult to determine actual prejudice in this case, however, the Supreme Court cautioned against placing undue emphasis on the need for the defense to show actual prejudice." Well-established case law, however, places the burden to establish prejudice on the defendant in cases where the trial delay is less than 18 months. Defendant did not meet this burden, proffering no colorable argument that he was somehow prejudiced as a result of any purported trial delay. The court affirmed defendant's convictions of UDAA and resisting a police officer, but remanded for resentencing.

 

Issues: Whether the trial court violated the defendant's right to due process when it admitted photographs of the deceased victim (S) taken at the burial site during the excavation process; People v. Wilder; People v. Gayheart; MRE 401; MRE 403; Whether the admission of the photographic evidence was unfairly prejudicial; People v. Crawford; People v. Unger; People v. Herndon; People v. Mesik (On Reconsideration); Whether the trial court properly admitted the recorded conversation between Jeffrey Julian and P as substantive evidence that denied defendant's Sixth Amendment right of confrontation; Whether defendant waived appellate review of the issue by acknowledging in that the trial court that if defense counsel called Jeffrey to testify and he was available for cross-examination the Confrontation Clause issue would become moot; "Waiver"; People v. Buie; Crawford v. Washington; Davis v. Washington; Melendez-Diaz v. Massachusetts; Whether the trial court abused its discretion by admitting the recorded conversation; MRE 803(24); People v. Babcock; People v. Katt; People v. Geno

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Julian

e-Journal Number: 53296

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

 

The court held that the trial court did not abuse its discretion in admitting photographs of S's body taken at the burial site during the excavation process. His convictions stemmed from the strangulation death of S, the girlfriend of defendant's brother, Jeffrey Julian. It was undisputed that Jeffrey killed S by strangling her. Before doing so, he told defendant that he "wanted to get rid of her." Jeffrey twice discussed killing S in the weeks before her death. They discussed different ways that Jeffrey could get rid of S, including sending her off to another state to live with an ex-boyfriend and killing her. Jeffrey decided that killing S was the best way to "get rid" of her and they discussed different ways that he could kill her. They decided that strangling her "would work." At one point, Jeffrey told defendant that he did not know if he would be able to kill S and said that defendant might have to do it. Defendant responded, "I gotcha man, I gotcha." Jeffrey decided that killing S was his responsibility and that having defendant do it "just wouldn't be right." Shortly before the murder, Jeffrey told defendant, "It's commin [sic]" and "be ready." In early morning hours of 8/21/10, Jeffrey and S went to a store and returned home to Jeffrey's grandmother's house where they were living. Jeffrey lured S outside to the backyard under the pretense of having sex with her. He then strangled her, and she lost consciousness and fell to the ground. Jeffrey got on top of her and continued to strangle her to ensure that she was dead. While still on top of her, he sent a text message to defendant stating, "I need you here now." Defendant arrived in a short time and Jeffrey asked him to check S's pulse. He did so and told Jeffrey that he still felt a pulse. After Jeffrey unsuccessfully tried to break S's neck, Jeffrey and defendant were satisfied that she was dead. They lifted her body over a fence and into the field behind the house. Jeffrey buried her body in a hole that they had dug in the field before the murder. P, Jeffrey's friend and co-worker, was present when they dug the hole. They told P that they intended to bury motor oil in the hole. Jeffrey filed a missing persons report and told the police that he and S had gotten into a fight after leaving the store and she was still missing. Months later Jeffrey admitted to P that he killed S. P told the police who outfitted him with a recording device. In a recorded conversation with P, Jeffrey revealed details involving the planning and commission of the murder, including some discussion of defendant's role. Jeffrey was then arrested and defendant was questioned as to his involvement in the murder. Defendant eventually admitted to his knowledge of the murder and confessed to helping Jeffrey move S's body. Before trial, defendant unsuccessfully moved to suppress the recorded conversation on the basis that its admission would violate his right of confrontation. At the time it was believed that Jeffrey would exercise his Fifth Amendment right not to testify and would thus, be unavailable during defendant's trial. Jeffrey waived that right and testified. The prosecution played the recorded conversation before the jury during trial. The court affirmed defendant's jury trial convictions of aiding and abetting first-degree murder and removing or carrying away a human body. Because he waived appellate review of his Confrontation Clause argument, which was moot in any event, the court affirmed.

 

Issues: Search and seizure; Motion to suppress evidence found during execution of a search warrant; Use of a drug detection dog; People v. Jones; Jardines v. State (FL); Effect of a judicial decision from a foreign jurisdiction; People v. Hanks; "Probable cause"; People v. Kazmierczak; People v. Hellstrom;"Reasonable expectation of privacy"; People v. Smith; People v. Custer (On Remand); People v. Parker; Whether there was any basis to invoke the "exclusionary rule"; The "good-faith" exception to the exclusionary rule; People v. Goldston; United States v. Leon; Davis v. United States; Effect of the Michigan Medical Marihuana Act (MMMA)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Lee

e-Journal Number: 53356

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

 

Noting that under Jones, an affidavit indicating that a properly trained narcotics dog alerted its handler to the presence of drugs is sufficient to establish probable cause that contraband is present, the court held that the trial court erred in granting the defendant's motion to suppress. He was charged with manufacturing marijuana and felony-firearm after contraband was found during the execution of a search warrant at a commercial building he used as a residence. According to the search warrant affidavit, the police received a citizen tip that there was a "drug trafficking operation" on defendant's property and that a strong odor of marijuana was coming from inside the building. During surveillance of the building, the police saw "high intensity lighting" in some of the windows and "surveillance cameras pointed at the front door and around the building." Accompanied by other officers, a police canine handler took a trained narcotics detection dog to the property. The handler and dog "conducted a narcotics sniff of the front door area of [the building], at which time [the dog] immediately gave a positive alert (scratching) for the presence of a controlled substance odor originating from the front door area of [the building]." The police then obtained and executed the search warrant. Relying on a Florida case, Jardines, the trial court ruled that "'where a home or residence is involved, some preceding evidence must show probable cause of wrongdoing before the police can take the drug detection dog to the door.'" The court noted that defendant did not argue that the dog was not legally present on his premises when it conducted the sniff and alerted police to the presence of drugs. Thus, under Jones, the use of the dog did not constitute a search and "contrary to the trial court's ruling, it was unnecessary to establish probable cause in support of, and prior to conducting, the dog sniff." Jardines was not binding precedent in Michigan and the trial court was required to follow the controlling precedent, Jones. Further, assuming that Jones is effectively overruled by the U.S. Supreme Court (which has granted certiorari in Jardines) or that it was wrongly decided, the court concluded that there was "no basis to invoke the exclusionary rule even with a constitutional violation." Noting that Michigan recognizes the good-faith exception to the exclusionary rule, the court held that there was no police misconduct in this case, where the police acted in conformity with Jones. "Even assuming that the police needed to contemplate the MMMA's effect on dog sniff matters, that Jones was wrongly decided, or that the MMMA actually negates some or all of the holding in Jones, the police conduct here, at worst, amounted to simple, isolated negligence, not deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights." Thus, "the police lacked the culpability required to justify the harsh sanction of exclusion." Reversed and remanded for reinstatement of the charges against defendant.

 

Issues: "Other acts" evidence; Whether MCL 768.27a requires that the defendant must have been charged with and convicted of another "listed offense against a minor"; People v. Pattison; People v. Watkins; Whether the trial court was required to do a MRE 403 "balancing test" before admitting the other acts under MCL 768.27a; Whether the ‘temporal proximity factor" was too remote; Whether MCL 768.27a conflicts with MRE 404(b); People v. Carines; Ineffective assistance of counsel; People v. Frazier; People v. Malone; People v. Sholl; People v. Snider; People v. Bahoda; Whether counsel should have moved for a mistrial; People v. Haywood; People v. Lumsden; Whether counsel should have called an expert witness in child sexual abuse; People v. Dixon; People v. Chapo; Whether counsel should have requested an additional medical exam of the victim; Counsel's failure to communicate with defendant; People v. Rodgers; Counsel's alleged cumulative errors; People v. McLaughlin

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Quick

e-Journal Number: 53295

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

 

The defendant contended on appeal, inter alia, that he was denied a fair trial by the erroneous admission of "other acts" evidence pursuant to MCL 768.27a because the statute required that he must actually have been charged and convicted of another "listed offense against a minor" in order for the evidence to be admissible. However, in Pattison the court held, "When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows prosecutors to introduce evidence of a defendant's uncharged sexual offenses against minors without having to justify their admissibility under MRE 404(b)." Defendant's convictions stemmed from sexual acts against his nine-year old grandson who lived in the same household. His 40-year old stepdaughter was allowed to testify at trial as to uncharged sexual acts defendant committed against her from the age of 7 until she was 10 or 11 when the witness's mother ended her relationship with defendant. The court agreed with defendant that the trial court was required to do a MRE 403 balancing test before admitting the evidence. The court noted that under Watkins "when applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect." In Watkins, the Supreme Court held that "other acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference." Under this standard, and considering the intent of the statute, the court found that "the temporal proximity factor was not sufficiently remote to preclude admission." Weighing the similarity/dissimilarity evidence in favor of its probative value rather than its prejudicial effect, and given that the intent of the statute, the court further found that the dissimilarity between the charged offense and the other acts evidence - the gender of the victims - was outweighed by the facts that both victims were similar in age when the acts occurred and both were defendant's family members who were under his care and control. Thus, the trial court did not abuse its discretion when it permitted the other acts evidence under MCL 768.27a. The court affirmed the defendant's convictions and sentences.

 

Issues: Whether the trial court had the legal authority to enter the amended orders to remit prisoner funds; Whether the trial court violated defendant's right to due process when it did not provide him with an opportunity to be heard as to his ability to pay fees for his court-appointed attorney; People v. Dunbar; People v. Jackson; MCL 769.1k(1); Whether MCL 769.1l applied; People v. Aspy; Whether the application of MCL 769.1l violates ex post facto laws; People v. Earl

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Vance

e-Journal Number: 53343

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

 

The court held that the trial court had the authority to enforce defendant's obligation to pay for fees for his court-appointed attorney. Thus, the court affirmed the two amended orders to remit prisoner funds for fines, costs, and assessments. The appeal arose out of two lower court cases. In 2004, jury trials were held in both cases, and defendant was convicted of seven counts of CSC I and four counts of CSC II. He was sentenced to 15 to 50 years' imprisonment for each CSC I conviction and to 4 to 15 years' imprisonment for each CSC II conviction. Immediately after his sentencing, the trial court entered orders to remit prisoner funds for fines, costs, and assessments in both cases. These orders reflected the amounts he owed for the crime victim's rights fund and state minimum costs ordered at sentencing. Almost six years later, the trial court entered amended orders to remit prisoner funds for fines, costs, and assessments. The amended orders added the cost of attorney fees to the balance owed by defendant. He claimed that the trial court did not have the legal authority to enter the amended orders to remit prisoner funds and that the trial court violated his right to due process when it did not provide him with an opportunity to be heard as to his ability to pay fees for his court-appointed attorney. In 2003, the trial court ordered a court-appointed attorney for defendant, and defendant signed the order, which made him responsible for any fees associated with a court-appointed attorney. "While the trial court did wait nearly six years to enforce that order, there is no law that places a time limitation on the court's ability to collect costs for a court-appointed attorney." According to Jackson, the state's interest in reimbursement for attorney fees continues indefinitely. Also, based on MCL 769.1l, no hearing was necessary to determine defendant's ability to pay because the statute necessarily considers an imprisoned defendant's level of indigency. Defendant argued that MCL 769.1l should not be applied to him because MCL 769.1l was enacted after he was sentenced and thus, application of the statute to him violated ex post facto laws. "However, Jackson stated that a defendant's ability to pay is properly considered at the time an obligation is enforced, not the time when the obligation is imposed." Since the order to remit prisoner funds to include attorney fees was not enforced until after MCL 769.1l was enacted, the statute properly applied to defendant. Even assuming MCL 769.1l was applied to defendant retroactively, the court concluded that it would not qualify as a violation of ex post facto laws.

 

Employment & Labor Law

 

This summary also appears under Contracts

 

Issues: Docket No. 296368 (2006 action) - Breach of contract; Whether the express terms of the CBAs unambiguously did not require defendant to pay for Medicare Part B premiums (or more specifically to reimburse plaintiffs for the premiums that they pay for Medicare Part B coverage); DeFrain v. State Farm Mut. Auto Ins. Co.; The "doctrine of past practices"; Butler v. Wayne Cnty.; Maiden v. Rozwood; Allison v. AEW Capital Mgmt., LLP; AFSCME Council 25 v. Wayne Cnty.; SSC Assoc Ltd. P'ship v. General Ret. Sys. of the City of Detroit; Coates v. Bastian Bros, Inc.; Smith v. Smith; Use of the word "or"; Paris Meadows, LLC v. City of Kentwood; A "coordination of benefits" (COB) clause; John Morrell & Co. v. United Food & Commercial Workers Int'l Union (D SD); Moot arguments; B P 7 v. Bureau of State Lottery; Docket No. 300964 (2006 action) - Status quo order; Jurisdiction; City of Riverview v. Sibley Limestone; In re Leete Estate; State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; MCR 7.208; People v. Swafford; In re Contempt of Dudzinski; Internationsl Union, UAW v. Michigan; City of Ann Arbor v. Danish News Co.; Tiedman v. Tiedman; Docket No. 299214 (2008 action) - Whether a genuine issue of material fact existed as to the breach of contract claims; "Latent ambiguity"; Shay v. Aldrich; Proof of mutual acceptance; Port Huron Educ. Ass'n v. Port Huron

Court: Michigan Court of Appeals (Unpublished)

Case Name: Loose v. Dearborn Heights

e-Journal Number: 53338

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

 

The court held, inter alia, that in Docket No. 296368 (2006 action), the defendant-City, rather than plaintiffs, was entitled to summary disposition under MCR 2.116(C)(10) because the express terms of the applicable CBAs were not ambiguous and they did not require the City to pay for Medicare Part B premiums. Thus, the burden rested with plaintiffs to establish that their respective unions had a meeting of the minds with the City, at the time of their respective retirements between 1982 and 1985, that the City would nonetheless pay Medicare Part B premiums. Plaintiffs were required to show that this practice was so widely acknowledged and mutually accepted that it amended the CBAs. Because it was undisputed that this practice did not occur, plaintiffs' claim that the City breached the CBAs could not succeed. These consolidated appeals arose from actions filed by retired former employees of the City to determine its liability for their healthcare costs and, in particular, Medicare Part B premiums beginning when plaintiffs reach age 65. In the 2006 action, the City appealed the trial court's judgment awarding money damages to the four plaintiffs and ordering that defendant "pay all of the premiums for the Plaintiffs' health and hospitalization insurance, including Medicare B, during their retirement." Addressing first the 1983-86 CBA for police supervisors that was applicable to plaintiff-Bennett's position when he retired in 1985, the CBA was silent as to whether the City must pay for a retiree's Medicare Part B premiums in its insurance provisions. The court held that the trial court erred in concluding that the City's obligation to pay for "Michigan Blue Cross and Blue Shield or equivalent hospitalization and medical insurance, M.V.F.-1 coverage," as set forth in § 3, established that the City must pay for Bennett's Medicare Part B premiums. Construing the insurance provisions as a whole and harmonizing each part as much as possible, the court held that the only reasonable conclusion was that the City was not required to pay for a retiree's Medicare Part B premiums under the terms of 1983-86 CBA applicable to Bennett. As a whole, the 1983-86 CBA did not treat Medicare Part B as an integral part of the City's obligation to provide insurance coverage, but rather a benefit received by the retiree that was subject to a COB. Thus, under the express terms of the 1983-86 CBA, the City had no contractual duty to reimburse a retiree for Medicare Part B premiums. While the 1983-86 CBA for police officers applicable to plaintiff-Eddolls was structured differently, it contained the same substantive provisions, except that the nonduplication provision preceding the healthcare provisions in Article A-11 was limited to an employment situation. Article A-11 subjected Medicare to a COB in § 7 in the same manner as the COB provision in the 1983-86 CBA for police supervisors. The 1983-86 CBA for firefighters applicable to plaintiff-McColl contained the same substantive provisions as the 1983-86 CBA for police officers. Because both CBAs treated Medicare as being subject to a COB and Medicare was not a benefit provided to the retiree by the City, the trial court erred in construing these CBAs as requiring the City to pay for the Medicare Part B premiums.  As to plaintiff-Loose, the parties agreed that the applicable CBA under his letter of understanding with the City was the CBA for police supervisors for the period 1980-83. According to the submitted evidence, this CBA does not contain the COB provision for Medicare that was contained in the 1983-86 CBA. However, because the 1980-83 CBA was unambiguous and did not entitle Loose to have the City pay for Medicare Part B premiums, the City was entitled to summary disposition. In the 2006 action, the court vacated the trial court's judgment and status quo order, and remanded for entry of an order of summary disposition for the City. In the 2008 action, the court reversed in part the trial court's order denying the City's motion for summary disposition as to plaintiffs' breach of contract claims, and remanded.

 

Family Law

 

Issues: Custody; Whether the trial court properly determined that there was an established custodial environment (ECE) with only defendant; Berger v. Berger; Kessler v. Kessler; Claim that the trial court erred by not making the "proper cause or change in circumstances" determination as required by MCL 722.27(1)(c) before moving on with the custody determination; Waiver; Sherry v. East Suburban Football League; City of Plymouth v. McIntosh; Whether the trial court's findings for three of the best-interest factors (b, c, and d) were against the great weight of the evidence; Pierron v. Pierron; The Child Custody Act (MCL 722.21 et seq.); Harvey v. Harvey; Fletcher v. Fletcher

Court: Michigan Court of Appeals (Unpublished)

Case Name: Howard v. Dohring

e-Journal Number: 53365

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

 

The court held, inter alia, that based on its review of the record, the trial court's determination of an ECE with only the defendant-mother was accurate and its findings were thoroughly supported by the evidence presented. Thus, the court affirmed the order granting primary full physical custody to defendant. The plaintiff-father argued that the trial court erred in determining that there was an ECE with only defendant. The trial court offered a very detailed explanation of its determination that there was no ECE with plaintiff at the time it made its decision. The trial court explained that although plaintiff may have had an ECE at one time, his actions eroded that environment. The trial court also determined that "[r]egardless of how much [plaintiff] was present, . . . when he was present, others were providing the overwhelming amount of care for the minor child." There was evidence presented that plaintiff was not the individual providing care for the child and that plaintiff missed parenting time. The trial court was in a better position to determine the credibility of the witnesses, and the evidence presented supported its decision that plaintiff was not the parent that over "an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort."

 

Insurance

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; The No-Fault Act (MCL 5003101 et seq.); Whether the plaintiff's injury met the "serious impairment of body function" requirement; MCL 500.3135; McCormick v. Carrier; MCL 500.3135(7); Whether the injury affected plaintiff's general ability to lead her normal life

Court: Michigan Court of Appeals (Unpublished)

Case Name: Moore v. Trepkowski

e-Journal Number: 53359

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

 

Holding that the plaintiff showed that her pre-accident manner of living was affected by the injury she suffered in the auto accident, the court reversed the trial court's order granting the defendants summary disposition and remanded the case for further proceedings. On 5/2/06, plaintiff was driving through an intersection when defendant-Nicholas Trepkowski, who was driving in cross traffic, turned right at a red light and struck plaintiff's vehicle, causing it to spin into oncoming traffic and be struck again by another car. Plaintiff was hospitalized. The treating doctor found that she sustained two fractures to her right wrist. Plaintiff reported that at her shoe sales job she was using her "left wrist for the most part due to right wrist pain." Still reporting pain in her wrist, she went to a different doctor, who recommended surgery. Surgery was performed, a bone fragment was removed, and chondral fraying was debrided. Plaintiff returned to her doctor complaining of persistent pain and swelling, but the exam found no actual swelling. By 7/07, her doctor reported that maximum healing had occurred and that plaintiff was at risk for permanent pain. In her deposition, plaintiff stated that, during her recuperation period through 4/07, she was unable to work and that her mother provided care for her, including grooming and cleaning. Plaintiff claimed that continued pain impaired her ability to do things she did before her injury, such as style her relatives' hair and proficiently use a computer. As a result, she stated that her job prospects were diminished. However, she admitted that she sometimes groomed her own hair now and that, in 10/07, she joined the National Guard, completing some seven months of physical training, exercise, and other activities such as firearms' training. She did not see a doctor for her wrist during her National Guard training. Plaintiff reported that she was currently not under any medical restrictions and was employed caring for a disabled child. This was the second time the case was before the court, which previously remanded it to the trial court to apply the McCormick standards. On remand, the trial court did so and granted defendants summary disposition. Defendants conceded that plaintiff's broken wrist was an objectively manifested impairment of an important body function, but they argued that the injury did not affect her general ability to lead her normal life. The court concluded that plaintiff "was unable to do many normal things while in her cast," and her mother nursed her during the recoveries from her two surgeries. "Plaintiff missed work and presented unrefuted testimony that her ability to groom her hair and use the computer was affected by her injury." Because the injury and a sufficient amount of the resulting effects on plaintiff's general ability to live her life were not in dispute, the court held that the trial court erred in ruling as a matter of law that she did not suffer a serious impairment of a body function. While the duration of her injury's effects was in dispute, "because there is ‘no quantitative minimum' aside from a ‘momentary impairment' under McCormick," she was entitled to present her tort claim to the trier of fact.

 

Litigation

 

This summary also appears under Banking

 

Issues: Appeal by the intervening party/appellant-bank; "Garnishment"; Whether the trial court properly held that plaintiff-Asher was entitled to rent proceeds after the service of his writs of garnishment; Asset Acceptance Corp. v. Hughes; Court rules governing garnishment; MCR 3.101 et seq.; Garnishment statute; MCL 600.4001 et seq.; Ward v. Detroit Auto Inter-Ins. Exch.; "Setoffs"; Sears, Roebuck & Co. v. A T & G Co.; Berar Enters., Inc. v. Harmon; Applicability of the Assignment of Rents statute providing notice to tennants; MCL 554.231 & .232; Department of Transp. v. Tomkins; Priority of writs; MCL 600.4012; Whether the garnishee process can "affect the contract rights of mortgagees"; Daggett, Bassett & Hills Co. v. McClintock; Whether in the absence of fraud the contract and assignment took priority over plaintiff's writs of garnishment over rental proceeds; Blow v. Blow; Mihajlovski v. Elfakir

Court: Michigan Court of Appeals (Unpublished)

Case Name: Asher v. Shiawassee Invs., LLC

e-Journal Number: 53294

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

 

The court held that the trial court erred in determining that plaintiff-Asher's service of the writs of garnishment took priority over the interest held by the intervening bank (Citizens) because in 12/07, the bank and the corporate defendant (Shiawassee Investments) executed a mortgage and assignment of rents and recorded the documents. Thus, plaintiff should have been on notice since 12/07 of the bank's entitlement to rental payments in the event of the corporate defendant's default. In the absence of fraud, the contractual agreement and assignment took priority over plaintiff's writs of garnishment over the rental proceeds. Reversed and remanded for further proceedings. Plaintiff obtained a money judgment against defendants. He sent a writ of garnishment to Citizens seeking to garnish defendants' accounts. In response, Citizens advised plaintiff that the individual defendants (Beales) did not have any accounts and the account of the corporate defendant was claimed by Citizens as a set off for a delinquent loan. Thus, plaintiff sought to obtain rental proceeds from the defendants' property tenants through writs of garnishment. Citizens filed a motion to intervene in the case and objections to the writs of garnishment. The bank alleged that it entered into a mortgage and assignment of rents with the corporate defendant in 12/07. However, this defendant defaulted, causing the bank to accelerate the unpaid balance of the note by letter on 2/22/11. The bank alleged that it was entitled to the rental proceeds as a result of the default, and its interest took priority over any claim by plaintiff. Plaintiff contended that the writs of garnishment were served by the sheriff on 5/26/11. Thus, plaintiff perfected his interest on that date. He claimed that the bank realized that it failed to protect its interest by filing a notice of default with the county clerk and serving the tenants as required by statute. The bank rushed to perfect its interest, but that did not occur until 5/31/11. Plaintiff argued that his interest was perfected before any interest held by the bank. The trial court adopted plaintiff's argument and ruled that he acquired his interest in the rental payments first. The court noted that "the garnishee process cannot affect the contract rights of mortgagees." "Where a principal defendant has made an assignment of a claim or a transfer of property prior to the service of a writ of garnishment, the claim or property cannot be reached by garnishment in the absence of fraud in the assignment or transfer." Further, "garnishment proceedings cannot be sustained against a judgment debtor where it appears that the judgment prior to the institution of the suit, had been assigned by the principal defendant to a third party unless it is established that assignment was fraudulently made." Here, the bank's claim had priority over the plaintiff's claim as to the property being garnished.

 

This summary also appears under Business Law

 

Issues: Choice of law; Hudson v. Mathers; Chrysler Corp. v. Skyline Indus. Servs., Inc.; Whether the defense of usury is available to corporations under Illinois law; Jones & Brown, Inc. v. W E Erickson Constr. Co. (IL App.); Martino v. Cottman Transmission Sys., Inc.; Minthorn v. Haines; Allan v. M&S Mtg. Co.; Whether the trial court properly held that defendant-TTOD had a valid security interest in the collateral; MCL 440.9310; Michigan Tractor & Mach. Co. v. Elsey; Ann Arbor Tenants Union v. Ann Arbor YMCA; TTOD's claim that plaintiff-Midwest was collaterally estopped from contesting TTOD's security interest in the debtor's collateral; VanVorous v. Burmeister; Monat v. State Farm Ins. Co.; Whether Midwest was entitled to judgment as a matter of law pursuant to MCR 2.116(I)(2); Common law conversion; Department of Agric. v. Appletree Mktg., LLC; Statutory conversion; MCL 600.2919a(1); Whether the trial court prematurely granted summary disposition before discovery was complete; Anzaldua v. Neogen Corp.; Review; Shay v. Aldrich; Coblentz v. Novi

Court: Michigan Court of Appeals (Unpublished)

Case Name: Midwest Bus. Credit, LLC v. TTOD Liquidation, Inc.

e-Journal Number: 53291

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

 

The court held that because the plaintiff-Midwest's loan was not usurious under Illinois law and was not an unenforceable "illegal" contract, Midwest showed that it had an enforceable security interest in the debtor's (Dott Acquisition) collateral. While defendant-TTOD failed to properly establish its security interest in the collateral, the trial court improperly granted summary disposition to defendants before discovery was complete. Thus, the court also held that the trial court erroneously granted summary disposition to defendants on all claims but the statutory conversion claim. The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion. Midwest, a Nevada company with its principal place of business in Illinois, appealed from the trial court's order dismissing its remaining claims against the debtor. Midwest mainly contested the trial court's prior grant of summary disposition pursuant to MCR 2.116(C)(10) to TTOD and defendant-Lapeer Plating (both Michigan companies).The case primarily involved a dispute between two creditors, Midwest and TTOD over their respective rights in the debtor's collateral - inventory comprised of manufacturing materials for use in fabricating chrome-plated, plastic-molded car parts. The debtor, a bankrupt Michigan company who defaulted on its loan obligations to both Midwest and TTOD, was not a party to this appeal. The disputed collateral was comprised of the debtor's inventory and inventory records and insurance proceeds of the inventory, worth about $3 million. Midwest filed this suit to recover all the collateral in order to satisfy the outstanding balance on the Midwest loan, which was $684,986. Midwest sued TTOD for breach of the Intercreditor Agreement and both statutory and common law conversion. The outcome of the case depended on whether Michigan or Illinois law controlled the dispute. Midwest argued that, in refusing to honor the parties' choice of law provision contained in their contract, the trial court erroneously concluded that Midwest lacked an enforceable security interest in the collateral because the Midwest loan agreement was unenforceable under Michigan law, on the grounds that the charged interest rate constituted criminal usury. The court agreed. The court noted that under the facts, it was clear that the chosen state of Illinois had a substantial relationship with the parties and the transaction. Further, the parties traveled to Illinois to procure the loan. The court noted that Illinois law expressed as a matter of policy that defendants cannot assert a usury defense, because the defense of usury is personal and not available to corporations. The trial court should have honored the parties' choice of law provision and held that the Midwest loan did not violate Illinois' usury laws. The trial court committed error requiring reversal by finding that Midwest lacked an enforceable security interest in the collateral.

 

Municipal

 

This summary also appears under Constitutional Law

 

Issues: 42 USC § 1983; Qualified immunity; Mitchell v. Forsyth; Barker v. Goodrich; Saucier v. Katz; Parsons v. City of Pontiac; "Excessive force"; Bennett v. Krakowski; Graham v. Connor; "Clearly established" right; Wheeler v. City of Lansing; Anderson v. Creighton; St. John v. Hickey; Higgason v. Stephens; Excessive force as to police dogs; Robinette v. Barnes; Matthews v. Jones; White v. Harmon; Whether a district court's denial of qualified immunity is an appealable final decision under 28 USC § 1291; Kennedy v. City of Cincinnati; Berryman v. Rieger; Estate of Carter v. City of Detroit; Supervisor liability; Shehee v. Luttrell; Hays v. Jefferson Cnty.; Whether the defendant-city had grounds to seek an interlocutory appeal of the district court's denial of its summary judgment motion; Bomar v. City of Pontiac; Floyd v. City of Detroit

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Campbell v. City of Springboro, OH

e-Journal Number: 53334

Judge(s): Donald and Keith; Concurring in part, Dissenting in part – McKeague

 

The court held that the district court properly denied the defendant-officers' motions for summary judgment and properly dismissed the defendant-city's appeal for lack of jurisdiction. Plaintiffs sued defendants alleging excessive force, failure to supervise, and failure to properly train, as well as state-law assault and battery, after they were attacked by defendants' police dog. The district court denied defendants' motion for summary judgment. On appeal, the court concluded that a reasonable jury could have found that defendant-Officer Clark's actions were unreasonable. It held that there was "ample evidence" to suggest that the deployment of the dog against plaintiff-Campbell was itself irresponsible and therefore, unreasonable, owing to Clark's failure to adequately maintain the dog's training. The evidence also suggested a possible causal link between plaintiff-Gemperline's injury and the dog's inadequate training. The court held that there was "ample evidence to suggest that Clark acted contrary to clearly established law when he used an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing." The court also found that although defendant-Kruithoff, the police chief, was not actively involved in the incidents involving the dog, a causal connection between his acts and omissions and the alleged constitutional injuries was suggested by the record. Finally, the court concluded that it lacked jurisdiction to consider the city's appeal. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Insurance

 

Issues: Automobile negligence; The No-Fault Act (MCL 5003101 et seq.); Whether the plaintiff's injury met the "serious impairment of body function" requirement; MCL 500.3135; McCormick v. Carrier; MCL 500.3135(7); Whether the injury affected plaintiff's general ability to lead her normal life

Court: Michigan Court of Appeals (Unpublished)

Case Name: Moore v. Trepkowski

e-Journal Number: 53359

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

 

Holding that the plaintiff showed that her pre-accident manner of living was affected by the injury she suffered in the auto accident, the court reversed the trial court's order granting the defendants summary disposition and remanded the case for further proceedings. On 5/2/06, plaintiff was driving through an intersection when defendant-Nicholas Trepkowski, who was driving in cross traffic, turned right at a red light and struck plaintiff's vehicle, causing it to spin into oncoming traffic and be struck again by another car. Plaintiff was hospitalized. The treating doctor found that she sustained two fractures to her right wrist. Plaintiff reported that at her shoe sales job she was using her "left wrist for the most part due to right wrist pain." Still reporting pain in her wrist, she went to a different doctor, who recommended surgery. Surgery was performed, a bone fragment was removed, and chondral fraying was debrided. Plaintiff returned to her doctor complaining of persistent pain and swelling, but the exam found no actual swelling. By 7/07, her doctor reported that maximum healing had occurred and that plaintiff was at risk for permanent pain. In her deposition, plaintiff stated that, during her recuperation period through 4/07, she was unable to work and that her mother provided care for her, including grooming and cleaning. Plaintiff claimed that continued pain impaired her ability to do things she did before her injury, such as style her relatives' hair and proficiently use a computer. As a result, she stated that her job prospects were diminished. However, she admitted that she sometimes groomed her own hair now and that, in 10/07, she joined the National Guard, completing some seven months of physical training, exercise, and other activities such as firearms' training. She did not see a doctor for her wrist during her National Guard training. Plaintiff reported that she was currently not under any medical restrictions and was employed caring for a disabled child. This was the second time the case was before the court, which previously remanded it to the trial court to apply the McCormick standards. On remand, the trial court did so and granted defendants summary disposition. Defendants conceded that plaintiff's broken wrist was an objectively manifested impairment of an important body function, but they argued that the injury did not affect her general ability to lead her normal life. The court concluded that plaintiff "was unable to do many normal things while in her cast," and her mother nursed her during the recoveries from her two surgeries. "Plaintiff missed work and presented unrefuted testimony that her ability to groom her hair and use the computer was affected by her injury." Because the injury and a sufficient amount of the resulting effects on plaintiff's general ability to live her life were not in dispute, the court held that the trial court erred in ruling as a matter of law that she did not suffer a serious impairment of a body function. While the duration of her injury's effects was in dispute, "because there is ‘no quantitative minimum' aside from a ‘momentary impairment' under McCormick," she was entitled to present her tort claim to the trier of fact.

 

Real Property

 

This summary also appears under Banking

 

Issues: "Fiduciary duty"; Teadt v. Lutheran Church MO Synod; Fiduciary duty between mortgagor and mortgagee; In re Sallee; Breach of an "implied covenant of good faith and fair dealing"; Belle Isle Grill Corp. v. City of Detroit; Negligence; Brown v. United States; Case v. Consumers Power Co.; Fraud; Bennett v. MIS Corp.; Cummins v. Robinson Twp.; Whether 16 CFR § 433.2 applies to mortgages; Johnson v. Long Beach Mtg. Loan Trust (D DC); Statute of limitations on negligence claims; MCL 600.5805; Truth in Lending Act (TILA) (15 USC § 1601 et seq.); United States v. Petroff-Kline; TILA statute of limitations; 15 USC § 1640; 15 USC § 1640(e); MacDermid v. Discover Fin. Servs.; Whether an individual can have a lien on his own property; Gould v. Day; Whether the magistrate was qualified; 28 USC § 631(c); "Newly discovered" evidence; Fed.R.Civ.P. 60(b)(2); Dean v. City of Bay City, MI

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Coyer v. HSBC Mtg. Servs., Inc.

e-Journal Number: 53369

Judge(s): Per Curiam – Merritt, Martin, and Gilman

 

In an opinion that was originally issued as an unpublished decision but was now designated for publication, the court held that the district court properly dismissed plaintiffs' claims against their mortgagee. Pro se plaintiffs sued defendant for allegedly conspiring to induce them into a predatory loan agreement. The district court denied plaintiffs' motion for a temporary restraining order, preventing the sale of their home, and subsequently denied their motion for reconsideration. The district court later granted defendant a judgment on the pleadings. The court first rejected plaintiffs' argument that defendant breached its fiduciary duty, noting that defendant purchased and serviced the mortgage, but plaintiffs failed to show that any special circumstances existed to avoid the general rule that such a relationship does not involve fiduciary duties. The court also held that the district court properly dismissed plaintiffs' claim for breach of an implied covenant of good faith and fair dealing, noting that Michigan does not recognize such a claim. The court next found that the district court properly dismissed plaintiffs' negligence and fraud claims, noting that, although plaintiffs argued that defendant was liable for the misrepresentations and failures to disclose information made by the previous mortgagee, Option One, they presented no persuasive authority to support this contention, and they filed their negligence claim beyond the statute of limitations. The court further held that the district court properly dismissed plaintiffs' TILA claims, finding that plaintiffs' allegations that they were induced to enter into a predatory loan agreement via misrepresentation and fraud related back to the time they entered their mortgage with Option One, and defendant was not a party to that transaction. Moreover, it held that the TILA claim was barred by the applicable one-year statute of limitations. The court also concluded that plaintiffs could not place a lien on their own property, that the issues raised about the magistrate and judge were meritless, and that the district court properly scrutinized defendant's claims. Finally, the court found that the district court properly denied plaintiffs' Rule 60(b) motion, noting that a motion for reconsideration under Rule 60(b) was not the proper vehicle for asserting new claims. Affirmed.

 

Tax

 

Issues: The Michigan Tax Tribunal's (MTT) jurisdiction; Failure to timely invoke the MTT's jurisdiction under MCL 205.735a(6); Whether a "clerical error" or a "mutual mistake of fact" within the meaning of MCL 211.53a occurred; Briggs Tax Serv., LLC v. Detroit Pub. Schs.; Ford Motor Co. v. City of Woodhaven; International Place Apts.-IV v. Ypsilanti Twp.; Claim that the assessments were invalid because MCL 211.24c(1) was not satisfied; Rochester Meadows Apts. v. City of Rochester; Walgreen Co. v. Macomb Twp.; Issue first raised in a motion for reconsideration; Vushaj v. Farm Bureau Gen. Ins. Co.; General Motors Corp. v. Department of Treasury; Effect of failure to address the basis for the MTT's decision; Roberts & Son Contracting, Inc. v. North Oakland Dev. Corp.; Whether the MTT decided a controversy that was rendered "moot" by the parties' stipulation; Michigan Chiropractic Council v. Commissioner of Ins.; City of Novi v. Robert Adell Children's Funded Trust; Powell v. McCormack; Whether the MTT was required to give effect to the stipulation; People v. Metamora Water Serv., Inc.; Signature Villas, LLC v. City of Ann Arbor

Court: Michigan Court of Appeals (Unpublished)

Case Name: Pirate Logistics, Inc. v. City of Romulus

e-Journal Number: 53354

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

 

The court held, inter alia, that the MTT did not err in determining that it had no jurisdiction over the petitioner's untimely assessment appeal because, despite the parties' stipulation, neither a clerical error nor a mutual mistake of fact within the meaning of MCL 211.53a occurred. Thus, the court affirmed the MTT's order denying the parties' stipulation for entry of a consent judgment and dismissing the case. There was no dispute that petitioner did not timely invoke the MTT's jurisdiction under MCL 205.735a(6). Petitioner instead relied on MCL 211.53a, which provides a three-year limitations period for a refund claim under specified circumstances. The court concluded that the parties' stipulation did not include any facts indicating a "mutual mistake of fact." The parties stipulated that the total cost of the office equipment at petitioner's leased premises was less than $2,000 and referred to an "incorrect assessment." They agreed that the assessments for tax years 2008 and 2009 should be reduced from $286,500 and $287,200, respectively, to $500 for both years. The parties also agreed that the notices named the wrong taxpayer and were mailed to the wrong address. The stipulation indicated that the assessments were in error, but it did not indicate a mistake of fact on the part of petitioner, much less a mutual mistake. The court concluded that the MTT did not make an error of law or adopt a wrong legal principle in determining that the facts did not show a mutual mistake of fact. Further, while the parties' stipulation provided facts showing that an error occurred, it lacked facts to show that it was a "clerical error." The stipulation indicated that the assessment figures were excessive. The stipulation also indicated that instead of the assessment notices being mailed to the petitioner's address of 28777 G Road, the notices were mailed to 28529 G Road. The parties stipulated that the notices named another entity, rather than petitioner, as the taxpayer. The facts suggested confusion about the ownership of the parcel and address of the owner. "The mistake may have been attributable to a 'clerical error' in linking the parcel number, the taxpayer, the property, and the address. However, the mistake may also have arisen for other reasons, such as petitioner's failure to provide notice of a transfer." In response to petitioner's motion for reconsideration, the MTT gave the parties the opportunity to present documentation and an explanation to support the request for relief under MCL 211.53a. The parties presented some of the requested documents, but did not provide an explanation of the circumstances that led to the assessment. Even on appeal, they did not explain how the assessments were the product of a clerical error. Under the circumstances, the court concluded that the MTT did not make an error of law or adopt a wrong principle in determining that the facts did not show a "clerical error."

 

Termination of Parental Rights

 

Issues: Termination pursuant to §§ 19b(3)(a)(ii) and (g); In re Utrera; In re Handorf; In re AMAC; In re AP; In re SLH, AJH, & VAH; In re AMB

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re CAH

e-Journal Number: 53324

Judge(s): Per Curiam - Servitto, Markey, and Murray

 

In this case where the petitioners were the children's maternal grandparents and guardians and petitioned for termination and adoption, the trial court terminated the respondent-mother's parental rights under the Juvenile Code. The trial court never held a trial to obtain jurisdiction over the children nor did it gain jurisdiction through any plea proceedings. The court held that the trial court was without jurisdiction resulting in plain error that affected the respondent's substantial rights. Thus, court vacated the orders terminating her parental rights, held that the children were no longer available for adoption, and vacated the trial court's orders making them wards of the court, approving the placement of the children in petitoners' home, and granting them authority to consent to the adoption of the children. On appeal the mother argued that the trial court erred in terminating her parental rights without holding a trial to obtain jurisdiction over the children. Because she did not raise this issue below it was unpreserved. The court reviewed the claim of error for plain error affecting substantial rights. A person desiring to adopt a child must file a petition with the court of the county in which the person resides or where the child is found. "But, the child must be available for adoption." A child may be adopted after the parental rights of the child's parents have been terminated under the Adoption Code or the Juvenile Code. Here, the trial court terminated respondent's rights under the Juvenile Code. A guardian may file a petition to terminate the parental rights of a child's parents. Petitioners failed to file such a petition here. Also, child protective proceedings are divided into two phases - the adjudicative phase and the dispositional phase. The child will not come under the trial court's jurisdiction and become a ward of the court until the trial court holds an adjudication on the merits of the allegations in the petition and finds by a preponderance of the evidence that there is factual support for permitting judicial intervention. The dispositional phase determines what action, if any, will be taken on behalf of the child. The trial court never held a trial to obtain jurisdiction over the children and did not gain jurisdiction through any plea proceedings. The trial court never made a determination that it had jurisdiction over the children. The court vacated the trial court's orders and remanded for further proceedings consistent with its opinion.

 

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