• Attorneys (1)
• Contracts (3)
• Criminal Law (6)
• Litigation (2)
• Malpractice (1)
• Real Property (1)
• Termination of Parental Rights (1)

Attorneys

 

This summary also appears under Malpractice

 

Issues: Legal malpractice; Estate of Mitchell v. Dougherty; "Proximate causation"; Charles Reinhart Co. v. Winiemko; Whether the defendant committed malpractice by failing to enter a qualified domestic relations order (QDRO) at the time the divorce judgment was entered; The trial court's consideration of the testimony of the plaintiffs' proffered expert (C); MRE 702; Consideration of C's factual testimony; Richardson v. Ryder Truck Rental, Inc.; Effect of plaintiffs' failure to secure an expert witness; Beattie v. Firnschild; Waiver; Caldwell v. Chapman; Whether the trial court should have given plaintiffs more time to secure an alternative expert witness; Tisbury v. Armstrong; The withdrawal of plaintiffs' attorney; In re Withdrawal of Attorney; MRPC 1.16(b)(A)(3) & (5)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mansharamani v. Demopoulos

e-Journal Number: 50251

Judge(s): Per Curiam – Murphy, Beckering, and Ronayne Krause

 

Concluding that the plaintiffs could not prove the second or third elements of a legal malpractice claim, and it was "dubious" whether they could prove the first or fourth, the court affirmed the trial court's order granting the defendant-attorney summary disposition. The case arose from defendant's representation of plaintiffs (who are siblings) in plaintiff-Mansharamani's divorce from his now ex-wife. The only malpractice issue on appeal was whether defendant committed malpractice by failing to enter a QDRO at the time the divorce judgment was entered. "‘In order to establish a claim of legal malpractice, a plaintiff must prove (1) the existence of an attorney-client relationship, (2) negligence in the legal representation of the plaintiff, (3) that the negligence was the proximate cause of an injury, and (4) the fact and extent of the injury alleged.'" The court concluded that the evidence showed "plaintiffs were responsible for delaying the entry of the judgment by refusing to sign it because they did not like the result, irrespective of the fact that they achieved part of their desired outcome and the remainder of their wishes were utterly devoid of legal merit." They retained new counsel (H) and explicitly directed defendant not to agree to any divorce judgment. While they indicated defendant and H were to be "co-counsel," H directed defendant "to do nothing until he had reviewed the record, personally appeared on behalf of plaintiffs and opposed the judgment," and in response to defendant attempting to suggest a QDRO to Mansharamani, explicitly told defendant to have no further contact with "his clients." While there did not appear to have been a formal termination of defendant's attorney-client relationship with plaintiffs before the entry of the judgment, "termination can be implied by the clients' actions." Thus, the court concluded that it was dubious whether defendant even still had an attorney-client relationship with plaintiffs after they retained H. "Presuming the tenuous relationship still existed, the evidence shows that QDROs are typically not entered simultaneously with judgments of divorce." Further, defendant "acted - or refrained from acting - at the direction of his clients, who clearly insisted on pursuing legally meritless courses of conduct despite" his urgings and advice. "The specific facts of this particular case do not in any way indicate that the standard of care called for" defendant "to prepare a QDRO at all. If anything," he "went above and beyond the call of duty to nevertheless prepare and enter one." The court also concluded that the evidence showed "no likelihood that any harm plaintiffs suffered was because the QDRO was not entered along with the judgment." Further, summary disposition was independently proper because they failed to secure an expert witness.

 

Contracts

 

Issues: Breach of contract; Hess v. Cannon Twp.; Whether plaintiff-Citibank support its motion for summary disposition with admissible evidence; Barnard Mfg. Co. v. Gates Performance Eng'g, Inc.; MRE 803(6); "Standing"; Abandonment; Hamade v. Sunoco, Inc. (R & M)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Citibank, NA v. Muldrow

e-Journal Number: 50228

Judge(s): Per Curiam - M.J. Kelly, Saad, and O’Connell

 

The court held that the trial court properly granted the plaintiff-Citibank, NA's motion for summary disposition in this suit for breach of contract and counterclaim for fraud. Citibank sued defendant-Muldrow for breach of contract alleging that she entered into a credit card agreement with it, made purchases or cash advances on the account over a period of years, and ultimately failed to make her payments. It alleged that the total amount due was $34,208.91. Muldrow represented herself and submitted an answer denying that she had a contract with Citibank or that she owed it any money. She also filed a counter-claim alleging that Citibank committed fraud by preparing and submitting a "false document" to the trial court. Moving for summary disposition, Citibank argued that it had a credit card contract with Muldrow, that she breached that contract by failing to make the required payments, and that the amount due was $34,208.91. In support of its motion, Citibank submitted a copy of the terms and conditions of the contract, a copy of Muldrow's monthly statements from the start of the account, copies of some of the checks that she sent as payment, and an affidavit. Citibank also argued that Muldrow's fraud claim was not pleaded with the required particularity and should be dismissed. Muldrow argued that Citibank's documents were unsigned and unsupported and thus, could not be used to support its motion. The trial court granted Citibank's motion and entered a judgment for $34,524.45 in favor of Citibank. Muldrow argued on appeal that the trial court erred when it granted Citibank's summary disposition motion because, in relevant part, Citibank did not support its motion with admissible evidence. "Citibank submitted numerous documents that showed that it had lent money to Muldrow under a credit card agreement. Although Citibank arguably did not include an affidavit that would establish a proper foundation for the admission of the documents, the documents were nevertheless plausibly admissible as records of regularly conducted activity." Thus, the trial court could properly consider them. "Further, the records plainly established that Muldrow applied for a credit card," the application was approved, she transferred a substantial balance to the account, made several purchases on the account, made some payments, and breached the agreement by failing to make the required payments. "This evidence was minimally sufficient to establish a meeting of the minds as to the material terms of a lending agreement, Muldrow's breach of that agreement, and the amount of Citibank's damages." Because Citibank properly supported its summary disposition motion, Muldrow had to respond by presenting evidence that established a question of fact on at least one element of Citibank's claim, which she did not do. Affirmed.

 

This summary also appears under Litigation

 

Issues: Declaratory judgment action; Whether the circuit court had concurrent jurisdiction with the probate court over the case; MCL 700.1302(b); MCL 700.1303; MCL 700.7203; MCR 2.605(A)(1); MCR 2.605(F); Whether the plaintiffs had "standing" to pursue the case where no creditors on the contracts at issue were named parties; Lansing Sch. Educ. Ass'n, MEA/NEA v. Lansing Bd. of Educ.; An "actual controversy"; Citizens for Common Sense in Gov't v. Attorney Gen.; Shavers v. Attorney Gen.; Skiera v. National Indem. Co.; Limited time period to assert claims against the defendant-Trust; MCL 700.7610; Whether the claims were "ripe" for adjudication; Toll Northville Ltd. v. Northville Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate Builders, Inc. v. Kahrnoff

e-Journal Number: 50253

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

 

Holding, inter alia, that MCL 700.1303 applied, the circuit court had concurrent jurisdiction over the case with the probate court, and the plaintiffs had standing to pursue this declaratory judgment action, the court affirmed the judgment for plaintiffs as to three counts of the amended complaint. Defendant-Kahrnoff's father, R, apparently was in a construction business with plaintiff-Bronzetti and they created two business entities, plaintiffs-Estate Builders, Inc. and Estate Builders Development Company. To finance projects, R and Bronzetti entered into binding contracts with at least three banks. Before he died, R placed his assets in the defendant-Trust and Kahrnoff was named the successor trustee of the Trust. When R died, "outstanding financial obligations on at least three contracts existed." Plaintiffs filed this case against Kahrnoff and the Trust, seeking a declaration that the Trust would be liable for certain outstanding contractual financial obligations, if necessary, just as R would have been as a co-obligor and co-guarantor if he had not died. Count II of the complaint related to a revolving demand note in the amount of $300,000, Count VI related to an "Unlimited Continuing Guaranty" with another bank in the amount of $1,730,000, and Count VII related to an "Unconditional and Continuing Guaranty and Indemnity Agreement" with a third bank in the amount of $1,912,500. Defendants argued, inter alia, that the circuit court erred in concluding that it had concurrent jurisdiction over the case because the probate court has exclusive jurisdiction over claims arising from the administration and distribution of a trust pursuant to MCL 700.1302(b). The court disagreed, concluding that by the plain language of MCL 700.7203(1), MCL 700.1302 did not apply - MCL 700.1303 applied. "This is a contract proceeding against the Trust, through its successor trustee, regarding three contracts that the settlor" R "entered into as a co-obligor and co-guarantor before his death and was brought by plaintiffs for the purpose of securing a declaration that the Trust would be bound and liable on those contracts." The case did not challenge the "administration and distribution" of the Trust. Plaintiffs were not beneficiaries of the Trust - they simply sought a determination of the parties' contractual rights and obligations as to the outstanding contracts. The court also rejected defendants' claim that plaintiffs lacked standing to pursue the action because the creditors on the contracts were not named parties. "Clearly, plaintiffs were not seeking to enforce the debts on behalf of the creditors." The creditors were free to seek to collect from either Bronzetti or R - "they were not required to proceed against both of them." Thus, "Bronzetti, not the creditors, had a significant adverse interest to ensure that he, alone, would not be held liable for the debts they both assumed." The court noted that according to plaintiffs' appeal brief, Bronzetti was being garnished pursuant to a deficiency judgment already obtained by one of the banks. The time period to assert claims against the Trust was "very limited in duration." Plaintiffs "were required to preserve their legal rights by filing this timely declaratory judgment action even if actual losses had not already occurred."

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly granted the defendant's motion for summary disposition because its claims were barred by res judicata; Plaintiff's claim in this case seeking a declaration that the defendant did "not have jurisdiction or authority to hear the arbitration"; MGSI Karas, Inc. v. American Arbitration Ass'n (Unpub.); Wills v. State Farm Ins. Co.; Interpretation of a contract; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Co.; Challenge to jurisdiction; Polkton Twp. v. Pellegram

Court: Michigan Court of Appeals (Unpublished)

Case Name: MGSI Karas, Inc. v. American Arbitration Ass'n, Inc.

e-Journal Number: 50361

Judge(s): Per Curiam - Markey, Saad, and Gleicher

 

The court held that res judicata precluded further review and required the court's previous ruling affirming the trial court's dismissal of defendant from a prior case to stand. Plaintiff entered into a contract with T, a dentist. The agreement provided for arbitration of any disputes arising under the contract. T filed a demand for arbitration with defendant, which appointed an arbitrator. Plaintiff claimed that defendant lacked "jurisdiction" over the arbitration and refused to participate. In a prior case, plaintiff sought to enjoin defendant from conducting the arbitration. The trial court held that plaintiff's motion to order defendant to cease the arbitration lacked merit and dismissed defendant from that case. The court affirmed. Plaintiff then filed this case seeking a declaration that defendant "does not have jurisdiction or authority to hear this arbitration" and requesting an injunction prohibiting defendant "from proceeding with the arbitration relating to the dispute" between plaintiff and T. The trial court held that the complaint was barred by res judicata, but even if the doctrine did not apply, plaintiff's claims were "substantively unavailing under the plain language of the parties' agreement." Thus, the trial court concluded that plaintiff's claims were unavailing on the basis of both res judicata and their lack of merit. Still, plaintiff asked the court to again review the same issues involving essentially the same parties and events. The court held that all of the requisites of res judicata that were addressed below and in the court's prior opinion were met. In fact, plaintiff did not deny that this was the case. Thus, res judicata obviated further judicial review. Affirmed. 

 

Criminal Law

 

Issues: Whether the trial court properly refused to hold an evidentiary hearing upon remand; People v. Unger; Schumacher v. Department of Natural Res.; Whether a trial court's strict adherence to an order from the Court of Appeals constitutes an abuse of discretion; People v. Sobczak-Obetts; Ineffective assistance of counsel; Strickland v. Washington; People v. Grant

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gaines

e-Journal Number: 50367

Judge(s): Per Curiam - O'Connell, Murray, and Donofrio

 

The court held that the trial court abused its discretion when it failed to make "findings of fact" on defendant's motion as it recognized the court's order required it to do so. Thus, the court remanded to the trial court for a decision on defendant's motion for a new trial. As background, the court explained that once defendant filed his claim of appeal, he timely moved for a remand to the trial court so that he could file a motion for new trial on the ground of ineffective assistance of counsel. He attached to his motion the affidavit of D, who was on the prosecution's witness list. D averred that defendant was with her in her apartment the entire time the crimes occurred. He argued that counsel was ineffective for not calling D as an alibi witness, and counsel separately gave him inadequate advice when advising him during plea negotiations of the potential sentences. The prosecution's response agreed that a remand for an evidentiary hearing was necessary. By order entered on 12/8/10, a motion docket panel granted the motion, providing in standard language that after defendant's motion was filed the trial court "is to hear" the motion and then "the trial court is to make findings of fact and a determination of the record." On remand, defendant filed a motion for a new trial based on the same grounds posed in the motion to remand, and at the hearing on the motion, the prosecution again agreed with defendant that an evidentiary hearing was necessary to further explore the potential testimony of D. The trial court disagreed and after obtaining both parties' concession that the court's order did not require an evidentiary hearing, ruled that defendant's motion contained "inconsistent" positions and was "disingenuous." The trial court denied defendant's motion. The court concluded that based on its remand order, the trial court theoretically did not abuse its discretion in denying defendant's request for an evidentiary hearing on both assertions of ineffective assistance of counsel, where the remand order did not explicitly require one. But, the court noted that the order at a minimum required "that the trial court analyze the issues and evidence and make findings of fact and a decision on the issues presented." Although the trial court "decided" the motion, its rationale was based exclusively on how the trial court viewed the allegations - as inconsistent and disingenuous. The trial court was required to make "findings of fact" on the issues presented by defendant, and having failed to do so, the court again remanded the issues back to the trial court for it "to make findings of fact and a determination on the record" on defendant's claim of ineffective assistance of counsel. The court remanded, retained jurisdiction, and entered an order with the opinion setting out a time frame for the parties and trial court.  

 

Issues: Whether the trial court so limited defense counsel's cross-examination of witnesses that defendant was denied his due process right to present a defense; People v. Sexton; People v. Mardlin; People v. Unger; People v. Toma; People v. Yost; MRE 402 and 403; MRE 611(a)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Mason

e-Journal Number: 50373

Judge(s): Per Curiam - O'Connell, Murray, and Donofrio

 

The court held that the trial court did not deny the defendant his due process rights to present a defense and affirmed his convictions of assault with intent to commit murder, felony-firearm, and felon in possession. His convictions arose from a shooting that occurred outside a nightclub. Several witnesses testified that defendant, who was working as a bouncer at the club, shot S in the arm after a dispute involving defendant's refusal to admit S's companions into the nightclub without proper identification. Defendant's theory of defense at trial was that he was inside the club at the time of the shooting and was misidentified as the shooter. Defendant contended that the trial court unduly restricted cross-examination as to the police's failure to conduct a gunshot residue test, DNA testing of a blood sample, and fingerprint analysis of a shell casing. The court noted that while defendant has a constitutional right to present a defense, the right is not absolute, and may be limited by "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." The court held that the trial court did not abuse its discretion by restricting cross-examination about the police's failure to conduct a gunshot residue test. Sergeant J testified that he interviewed defendant about 23 hours after the shooting, and defendant did not request a gunshot residue test. A police investigator (B) testified that the test was not necessary because at least eight witnesses identified defendant as the shooter. The prosecution stipulated that the gunshot residue test could be conducted absent the defendant's request. The trial court properly exercised its discretion to preclude further inquiry into the police department's policy as to gunshot residue testing. The trial court also did not abuse its discretion by prohibiting questioning as to the DNA testing of a blood swab. B testified he had not received the test results. The case presented no issue as to the victim's identity. The trial court properly held that the DNA test results were irrelevant. Also, the trial court did not abuse its discretion by prohibiting further testimony about the fingerprint analysis of a shell casing found at the crime scene. B testified that the shell casing was sent to the MSP lab for testing, but he had not received the report as to the results. The trial court determined that the jury did not need to concern itself with whether there were fingerprints on the shell casing. The court held that the trial court's rulings on these issues did not fall outside the range of reasonable and principled outcomes.

 

Issues: Sufficiency of the evidence to support the defendant's convictions of second-degree home invasion and possession of burglar's tools; "Identity"; People v. Oliphant; People v. Davis; Circumstantial evidence; People v. Kern; People v. Wolfe; Sufficiency of the evidence showing an "aiding and abetting" connection between defendant and the codefendant; MCL 767.39; People v. Robinson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Simmons

e-Journal Number: 50229

Judge(s): Per Curiam – Murphy, Beckering, and Ronayne Krause

 

Noting, inter alia, that the responding officers identified the defendant as the person seen exiting the victim's home carrying a crowbar, and defendant was found hiding under a nearby car shortly after fleeing the crime scene, the court held that the trial court in his bench trial could find beyond a reasonable doubt that he was the perpetrator. Thus, the court concluded that there was sufficient evidence to support his second-degree home invasion and possession of burglar's tools convictions. Defendant contended on appeal that the two responding officers only saw him for a few seconds at the victim's home, they identified him as wearing a grey hooded jacket while he was wearing a black jacket when arrested, they were not involved in his arrest, and available fingerprint evidence was not produced. "Identity is an essential element of every criminal offense." A witness's positive identification of a defendant may be sufficient to support a conviction. One of the responding officers testified that she saw defendant in a police station cellblock right after his arrest and he was the same person she had just seen and confronted at the victim's home - he was the person carrying the crowbar. The other responding officer also identified defendant in court as the perpetrator seen exiting the victim's home with a crowbar. Identity can also be proven by circumstantial evidence. Defendant was arrested 15 minutes after fleeing from the scene when another officer saw him trying to hide under a car one or two blocks from the victim's home. "Issues concerning the brevity of the officers' encounter with defendant and the inconsistencies relative to the jacket pertain to the officers' credibility and the weight of the evidence, which are matters for the trier of fact" that the court will not resolve anew on appeal. As to fingerprinting, defendant did not cite any authority mandating the police to obtain prints and, for purposes of a sufficiency argument, the court's "focus is on the evidence actually presented, not speculative matters." Reversal was unwarranted. Affirmed.

 

Issues: Whether the defendant's felony-firearm conviction violated her right to bear arms under the Michigan and United States Constitutions; People v. Brown; People v. Graham; People v. Elowe; People v. Glenn; People v. Green; People v. Swint; District of Columbia v. Heller; Ineffective assistance of counsel as to trial witnesses; People v. Rodriguez; People v. Hoag; Whether the trial court ignored defendant's trial testimony as to self-defense; People v. Lanzo Constr. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Thurman

e-Journal Number: 50370

Judge(s): Per Curiam - O'Connell, Murray, and Donofrio

 

The court held that the defendant's claim that her felony-firearm conviction violated her right to bear arms under the Michigan and U.S. Constitutions failed based on the relevant state and federal case law. Her convictions arose from an encounter with R, whose van struck defendant's parked car. R and defendant were the primary witnesses at trial. Their testimony was consistent to the extent that defendant did not see R's van strike her car, but that a short while later R saw defendant near her car, approached her, and admitted his responsibility for striking her car. However, their testimony diverged as to the subsequent events. R testified that he gave defendant all of his insurance information, but she insisted that he could not leave the scene, which caused him to swear at her and he suggested she call the police. R recalled that he turned to go back to his van, she began swearing at him, drew a black handgun, and pointed it at him. She eventually fired the gun three times before R drove away. R stated that after he drove a block or two away, he stopped in a parking lot to call 911, defendant pulled into the lot and twice pointed the gun at him, but did not fire again. Defendant testified that R cursed at her, approached her, pushed her, and reached inside his clothing as if for a weapon, placing her in fear for her safety, and prompting her to fire shots in R's direction. The court noted that consistent with the recognition in Graham that the felony-firearm statute does not infringe on a defendant's right to bear arms, the court has subsequently recognized the limited nature of the right to bear arms in the Michigan Constitution. Given the Graham, Green, and Swint decisions, defendant could not establish an error to support her claim under the Michigan Constitution. Defendant's claim under the U.S. Constitution also failed, and the court held that she did not show any error, plain or otherwise, as to her claim that the felony-firearm conviction violated her right to bear arms contained in the U.S. Constitution. The court affirmed her felonious assault and felony-firearm convictions.

 

Issues: Sentencing; Whether escape from "nonsecure custody" is a "violent felony" for sentencing purposes; Chambers v. United States

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Oaks

e-Journal Number: 50412

Judge(s): Martin and Kennedy; Dissent – Hood

 

The court held that escape from "nonsecure custody" is not a "violent felony" for sentencing purposes. Thus, the defendant's escape from a courtroom that was not a secure facility was not a violent felony for sentencing purposes. The court remanded for resentencing. Defendant pleaded guilty to being a felon in possession of a firearm and the district court sentenced him to 120 months of incarceration and 5 years of supervised release. He appealed his sentence, challenging, in part, the district court's use of his prior conviction for felony escape to support his sentence under the Armed Career Criminal Act. Oral argument was waived and the court affirmed the sentencing court's judgment. The Supreme Court granted defendant's application for a writ of certiorari, vacated the court's judgment, and remanded for reconsideration in light of its decision in Chambers. The court remanded the case "to the district court for a determination of the type of facility and level of security involved in the" custody of the county sheriff's department at the time of defendant's escape. The facts showed that he escaped custody from a courtroom, and that the courtroom was not a secure facility. Thus, he escaped from "nonsecure custody." He received a year of incarceration for his escape. The court's task was to determine whether escape from "nonsecure custody" is a "violent felony" for sentencing purposes. Here, as in Chambers, to determine whether a felony is a violent felony, "[t]he question is whether . . . an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a 'serious potential risk of physical injury.'" Here, as in Chambers, "a United States Sentencing Commission report helps provide a conclusive, negative answer." As indicated in an appendix to Chambers, the act of escape from "nonsecure custody" is rarely violent. "Further, a felony is not necessarily a 'violent felony' even if historical data show past commissions of that felony involved violence." The Supreme Court in Chambers determined that "failing to report" is not a "violent felony," yet past commissions of "failing to report" involved violence in at least three instances. The court held that while some courtrooms may be secure facilities such that an escape from them would be an escape from "secure custody," the courtroom from which defendant escaped was not secure.

 

Issues: Whether the district court properly denied the defendant's motion to withdraw his plea; United States v. Benton; Fed.R.Crim.P. 11(d); United States v. Alexander; Ineffective assistance of counsel; United States v. Gardner; United States v. Williams; United States v. Fortson; Strickland v. Washington; Rompilla v. Beard; Short v. United States; Johnson v. Duckworth (7th Cir.); Griffin v. United States; Pough v. United States; United States v. Moon

Court: U.S. Court of Appeals Sixth Circuit

Case Name: United States v. Wynn

e-Journal Number: 50410

Judge(s): Martin, Suhrheinrich, and Cole

 

The court held that the district court properly denied the defendant's motion to withdraw his plea where he failed to demonstrate a "fair and just" reason for it to do so. Thus, the district court's judgment of conviction and sentence were affirmed. Defendant pleaded guilty to conspiracy to launder monetary instruments. The district court denied his motion to withdraw his guilty plea and sentenced him to 63 months in prison. As to the first factor to be considered in assessing whether defendant showed a "fair and just" reason for withdrawing a plea, he did not attempt to withdraw his plea until eight months after it was entered, a far longer delay than other plea withdrawals the court has declined to allow. Even assuming, as defendant asserted, that he did not learn of the option to withdraw his plea until 1/30/10, over two more months passed before he made an attempt to withdraw it. Also, he attempted to withdraw his plea only after he did not receive the consideration that he hoped to obtain from the prosecution in exchange for his cooperation. Thus, the court held that the first, second, and fourth factors weighed heavily against defendant. He did not consistently maintain his innocence in his meetings with the prosecution following his guilty plea, which weighed against him in the analysis of the third factor. Further, he was familiar with the criminal justice system and plea process because he previously pleaded guilty to charges of money laundering and distribution of cocaine, which weighed against him in the analysis of the fifth and sixth factors. Finally, as to the seventh factor, "the government is not required to establish prejudice that would result from a plea withdrawal, unless and until the defendant advances and establishes a fair and just reason for allowing the withdrawal." Here, because all preceding factors weighed against defendant, the government was not required to show that it would be prejudiced by withdrawal of the plea.

 

Litigation

 

This summary also appears under Contracts

 

Issues: Declaratory judgment action; Whether the circuit court had concurrent jurisdiction with the probate court over the case; MCL 700.1302(b); MCL 700.1303; MCL 700.7203; MCR 2.605(A)(1); MCR 2.605(F); Whether the plaintiffs had "standing" to pursue the case where no creditors on the contracts at issue were named parties; Lansing Sch. Educ. Ass'n, MEA/NEA v. Lansing Bd. of Educ.; An "actual controversy"; Citizens for Common Sense in Gov't v. Attorney Gen.; Shavers v. Attorney Gen.; Skiera v. National Indem. Co.; Limited time period to assert claims against the defendant-Trust; MCL 700.7610; Whether the claims were "ripe" for adjudication; Toll Northville Ltd. v. Northville Twp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate Builders, Inc. v. Kahrnoff

e-Journal Number: 50253

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

 

Holding, inter alia, that MCL 700.1303 applied, the circuit court had concurrent jurisdiction over the case with the probate court, and the plaintiffs had standing to pursue this declaratory judgment action, the court affirmed the judgment for plaintiffs as to three counts of the amended complaint. Defendant-Kahrnoff's father, R, apparently was in a construction business with plaintiff-Bronzetti and they created two business entities, plaintiffs-Estate Builders, Inc. and Estate Builders Development Company. To finance projects, R and Bronzetti entered into binding contracts with at least three banks. Before he died, R placed his assets in the defendant-Trust and Kahrnoff was named the successor trustee of the Trust. When R died, "outstanding financial obligations on at least three contracts existed." Plaintiffs filed this case against Kahrnoff and the Trust, seeking a declaration that the Trust would be liable for certain outstanding contractual financial obligations, if necessary, just as R would have been as a co-obligor and co-guarantor if he had not died. Count II of the complaint related to a revolving demand note in the amount of $300,000, Count VI related to an "Unlimited Continuing Guaranty" with another bank in the amount of $1,730,000, and Count VII related to an "Unconditional and Continuing Guaranty and Indemnity Agreement" with a third bank in the amount of $1,912,500. Defendants argued, inter alia, that the circuit court erred in concluding that it had concurrent jurisdiction over the case because the probate court has exclusive jurisdiction over claims arising from the administration and distribution of a trust pursuant to MCL 700.1302(b). The court disagreed, concluding that by the plain language of MCL 700.7203(1), MCL 700.1302 did not apply - MCL 700.1303 applied. "This is a contract proceeding against the Trust, through its successor trustee, regarding three contracts that the settlor" R "entered into as a co-obligor and co-guarantor before his death and was brought by plaintiffs for the purpose of securing a declaration that the Trust would be bound and liable on those contracts." The case did not challenge the "administration and distribution" of the Trust. Plaintiffs were not beneficiaries of the Trust - they simply sought a determination of the parties' contractual rights and obligations as to the outstanding contracts. The court also rejected defendants' claim that plaintiffs lacked standing to pursue the action because the creditors on the contracts were not named parties. "Clearly, plaintiffs were not seeking to enforce the debts on behalf of the creditors." The creditors were free to seek to collect from either Bronzetti or R - "they were not required to proceed against both of them." Thus, "Bronzetti, not the creditors, had a significant adverse interest to ensure that he, alone, would not be held liable for the debts they both assumed." The court noted that according to plaintiffs' appeal brief, Bronzetti was being garnished pursuant to a deficiency judgment already obtained by one of the banks. The time period to assert claims against the Trust was "very limited in duration." Plaintiffs "were required to preserve their legal rights by filing this timely declaratory judgment action even if actual losses had not already occurred."

 

This summary also appears under Contracts

 

Issues: Whether the trial court properly granted the defendant's motion for summary disposition because its claims were barred by res judicata; Plaintiff's claim in this case seeking a declaration that the defendant did "not have jurisdiction or authority to hear the arbitration"; MGSI Karas, Inc. v. American Arbitration Ass'n (Unpub.); Wills v. State Farm Ins. Co.; Interpretation of a contract; DaimlerChrysler Corp. v. G-Tech Prof'l Staffing, Co.; Challenge to jurisdiction; Polkton Twp. v. Pellegram

Court: Michigan Court of Appeals (Unpublished)

Case Name: MGSI Karas, Inc. v. American Arbitration Ass'n, Inc.

e-Journal Number: 50361

Judge(s): Per Curiam - Markey, Saad, and Gleicher

 

The court held that res judicata precluded further review and required the court's previous ruling affirming the trial court's dismissal of defendant from a prior case to stand. Plaintiff entered into a contract with T, a dentist. The agreement provided for arbitration of any disputes arising under the contract. T filed a demand for arbitration with defendant, which appointed an arbitrator. Plaintiff claimed that defendant lacked "jurisdiction" over the arbitration and refused to participate. In a prior case, plaintiff sought to enjoin defendant from conducting the arbitration. The trial court held that plaintiff's motion to order defendant to cease the arbitration lacked merit and dismissed defendant from that case. The court affirmed. Plaintiff then filed this case seeking a declaration that defendant "does not have jurisdiction or authority to hear this arbitration" and requesting an injunction prohibiting defendant "from proceeding with the arbitration relating to the dispute" between plaintiff and T. The trial court held that the complaint was barred by res judicata, but even if the doctrine did not apply, plaintiff's claims were "substantively unavailing under the plain language of the parties' agreement." Thus, the trial court concluded that plaintiff's claims were unavailing on the basis of both res judicata and their lack of merit. Still, plaintiff asked the court to again review the same issues involving essentially the same parties and events. The court held that all of the requisites of res judicata that were addressed below and in the court's prior opinion were met. In fact, plaintiff did not deny that this was the case. Thus, res judicata obviated further judicial review. Affirmed. 

 

Malpractice

 

This summary also appears under Attorneys

 

Issues: Legal malpractice; Estate of Mitchell v. Dougherty; "Proximate causation"; Charles Reinhart Co. v. Winiemko; Whether the defendant committed malpractice by failing to enter a qualified domestic relations order (QDRO) at the time the divorce judgment was entered; The trial court's consideration of the testimony of the plaintiffs' proffered expert (C); MRE 702; Consideration of C's factual testimony; Richardson v. Ryder Truck Rental, Inc.; Effect of plaintiffs' failure to secure an expert witness; Beattie v. Firnschild; Waiver; Caldwell v. Chapman; Whether the trial court should have given plaintiffs more time to secure an alternative expert witness; Tisbury v. Armstrong; The withdrawal of plaintiffs' attorney; In re Withdrawal of Attorney; MRPC 1.16(b)(A)(3) & (5)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mansharamani v. Demopoulos

e-Journal Number: 50251

Judge(s): Per Curiam – Murphy, Beckering, and Ronayne Krause

 

Concluding that the plaintiffs could not prove the second or third elements of a legal malpractice claim, and it was "dubious" whether they could prove the first or fourth, the court affirmed the trial court's order granting the defendant-attorney summary disposition. The case arose from defendant's representation of plaintiffs (who are siblings) in plaintiff-Mansharamani's divorce from his now ex-wife. The only malpractice issue on appeal was whether defendant committed malpractice by failing to enter a QDRO at the time the divorce judgment was entered. "‘In order to establish a claim of legal malpractice, a plaintiff must prove (1) the existence of an attorney-client relationship, (2) negligence in the legal representation of the plaintiff, (3) that the negligence was the proximate cause of an injury, and (4) the fact and extent of the injury alleged.'" The court concluded that the evidence showed "plaintiffs were responsible for delaying the entry of the judgment by refusing to sign it because they did not like the result, irrespective of the fact that they achieved part of their desired outcome and the remainder of their wishes were utterly devoid of legal merit." They retained new counsel (H) and explicitly directed defendant not to agree to any divorce judgment. While they indicated defendant and H were to be "co-counsel," H directed defendant "to do nothing until he had reviewed the record, personally appeared on behalf of plaintiffs and opposed the judgment," and in response to defendant attempting to suggest a QDRO to Mansharamani, explicitly told defendant to have no further contact with "his clients." While there did not appear to have been a formal termination of defendant's attorney-client relationship with plaintiffs before the entry of the judgment, "termination can be implied by the clients' actions." Thus, the court concluded that it was dubious whether defendant even still had an attorney-client relationship with plaintiffs after they retained H. "Presuming the tenuous relationship still existed, the evidence shows that QDROs are typically not entered simultaneously with judgments of divorce." Further, defendant "acted - or refrained from acting - at the direction of his clients, who clearly insisted on pursuing legally meritless courses of conduct despite" his urgings and advice. "The specific facts of this particular case do not in any way indicate that the standard of care called for" defendant "to prepare a QDRO at all. If anything," he "went above and beyond the call of duty to nevertheless prepare and enter one." The court also concluded that the evidence showed "no likelihood that any harm plaintiffs suffered was because the QDRO was not entered along with the judgment." Further, summary disposition was independently proper because they failed to secure an expert witness.

 

Real Property

 

Issues: Mortgage lien priority; Applicability of the doctrine of "equitable subrogation"; Michigan's race-recording statute (former MCL 565.25(1) & (4) - repealed by 2008 PA 357); Ameriquest Mtg. v. Alton; Devillers v. Auto Club Ins. Ass'n; Restatement of Property (Mortgages), 3d, § 7.3 ("the Restatement") and Comment b; The "doctrine of equitable mistake"; Schanhite v. Plymouth United Sav. Bank; Washington Mut. Bank v. ShoreBank Corp.; Lentz v. Stoflet; Applicability of the "mere volunteer" rule where the new mortgagee was also the original mortgagee; "Original mortgagee"; Federal Home Loan Mortgage Corporation (FHLMC); Mortgage Electronic Registration Systems, Inc. (MERS)

Court: Michigan Court of Appeals (Published)

Case Name: CitiMortgage, Inc. v. Mortgage Elec. Registration Sys., Inc.

e-Journal Number: 50415

Judge(s): Per Curiam – Murphy, Beckering, and Ronayne Krause

 

The court held that "equitable subrogation is available to place a new mortgage in the same priority as a discharged mortgage if the new mortgagee was the original mortgagee and the holders of any junior liens are not prejudiced" as a result. The court also concluded that the Restatement, limited to cases in which the senior mortgagee discharges its mortgage of record and contemporaneously takes a replacement mortgage (as often occurs in refinancing), was consistent with Michigan case law. Thus limited, the court adopted it. In this limited form, the Restatement provided "a reasonable and proper framework" for determining whether junior lienholders were prejudiced and whether the equities favor equitable subrogation. Since the trial court was the best forum for evaluating any prejudice and the competing equities (including making any relevant factual determinations), the court reversed the trial court's order denying the plaintiffs' summary disposition motion and granting defendants-MERS and GMAC Mortgage's summary disposition motion, and remanded the case for further proceedings. Plaintiffs were CitiMortgage and FHLMC. The defendants-homeowners (who were not part of the appeal) purchased property with a mortgage granted to ABN AMRO in 2000. They refinanced their loan in 2001, discharging the original mortgage in favor of a new mortgage also granted to ABN AMRO. They obtained a home equity loan from GMAC on 7/11/02, granting GMAC a second mortgage on the property. They refinanced their 2001 loan on 11/25/02, discharging the ABN AMRO 2001 mortgage in favor of another mortgage granted to ABN AMRO. There was no dispute that ABN AMRO was unaware of the GMAC mortgage when it took the new mortgage although GMAC's mortgage was recorded. The homeowners later filed for bankruptcy and the property was sold at a foreclosure sale to FHLMC. FHLMC and CitiMortgage, ABN AMRO's successor-in-interest, sued to quiet title. The issue was whether CitiMortgage could place its lien in first priority over defendants' lien via application of the doctrine of equitable subrogation. The trial court concluded that CitiMortgage could not do so. The court noted that since MCL 565.25(1) and (4) were repealed, "the bulk of Ameriquest Mortgage is no longer valid." The court concluded that the Michigan case law on point was consistent with the Restatement, particularly Comment b. Consistent with the Restatement in the limited form the court adopted it, "a refinanced mortgage maintains the priority position of the original mortgage" as long as any junior lienholder is not prejudiced as a result. However, the court cautioned "that the lending mortgagee seeking subrogation and priority over an intervening interest relative to its newly recorded mortgage must be the same lender that held the original mortgage before the intervening interest arose" and "any application of equitable subrogation is subject to a careful examination of the equities of all parties and potential prejudice to the intervening lienholder." The court clarified that "original mortgagee" means not only the originating mortgagee, but also any bona fide successor in interest. The court also held that the "mere volunteer" rule does not apply where the new mortgagee was also the original mortgagee.

 

Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(i), (g), and (j); In re Trejo Minors; In re BZ; Whether the respondent-mother was afforded inadequate services by petitioner-DHS because she was incarcerated; In re Mason; Whether the trial court properly allowed a witness to testify as a rebuttal witness despite the fact that the trial court's witness sequestration order was violated; People v. Meconi

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Rugg

e-Journal Number: 50337

Judge(s): Per Curiam – Shapiro, Wilder, and Murray

 

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 trial court acquired jurisdiction over the child in 10/09 based on respondent's inability to properly care for the child because of her drug use. The record contained evidence that this condition continued to exist at the time of the termination hearing in 12/10. There was evidence that respondent used drugs as recently as 11/10. Further, at the time of the termination hearing, she had not completed substance abuse treatment to resolve her serious and long-standing substance abuse problems. The evidence showed a pattern of respondent using drugs, becoming incarcerated, and relapsing upon her release. The court found no clear error in the trial court's finding that the conditions of the adjudication continued to exist at the time of the termination hearing and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time. Thus, the trial court did not clearly err in finding that the requirements of § 19b(3)(c)(i) were established. Affirmed.

 

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