• Constitutional Law (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Litigation (1)
• Municipal (2)
• Negligence & Intentional Tort (2)
• Real Property (1)
• Termination of Parental Rights (1)
• Wills & Trusts (1)

Constitutional Law

 

Issues: 42 USC § 1983 action alleging a Fourth Amendment violation; "Qualified immunity"; Harlow v. Fitzgerald; Pearson v. Callahan; Holzemer v. City of Memphis; Feathers v. Aey; Anderson v. Creighton; "Clearly established right"; Saucier v. Katz; Ohio Civil Serv. Employees Ass'n v. Seiter; Hughes v. City of N. Olmsted; Masters v. Crouch; "Warrantless" searches and seizures inside a home; United States v. United States Dist. Ct.; Groh v. Ramirez; Brigham City v. Stuart; "Consent exception" to the warrant requirement; Schneckloth v. Bustamonte; United States v. Canipe; United States v. Worley; Bumper v. North Carolina; Tarter v. Raybuck; "Exigent circumstances"; Ingram v. City of Columbus; United States v. Saari; De minimis exception; United States v. Jacobsen; Illinois v. McArthur; Payton v. New York; Steagald v. United States; Whether a Fourth Amendment right was clearly established; Cummings v. City of Akron; United States v. Chambers; O'Brien v. City of Grand Rapids; Gossman v. Allen; "Reaonsableness"; United States v. Morgan; Whether the Fourth Amendment applies to social workers; Jordan v. Murphy (Unpub. 6th Cir.); New Jersey v. T.L.O; Calabretta v. Floyd (9th Cir.); Good v. Dauphin Cnty. Soc. Servs. (3rd Cir.); Wyman v. James; Gates v. Texas Dep't of Protective & Regulatory Servs. (5th Cir.); Roska v. Peterson (10th Cir.); Wildauer v. Frederick Cnty. (4th Cir.); Hardesty v. Hamburg Twp.; Crocket v. Cumberland Coll.; Investigations regarding child welfare; Camreta v. Greene; Social worker "exception"; Dubbs v. Head Start, Inc. (10th Cir.); Doe v. Heck (7th Cir.); Walsh v. Erie Cnty. Dep't of Job & Family Servs. (ND OH); Bills v. Aseltine

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Andrews v. Hickman Cnty, TN

e-Journal Number: 53370

Judge(s): Gibbons, Adams, and Sutton (except as to Part IV); Concurring in part and in the judgment - Sutton

 

In an issue of first impression, the court held that social workers' actions in entering a home are governed by the Fourth Amendment, and that no social worker exception applies. However, under the circumstances of the case, the court concluded that the defendants-state social workers were entitled to qualified immunity. The court also held that the district court properly found that defendant-Wade, a police officer, was not entitled to qualified immunity. Plaintiffs sued defendants alleging that defendants violated their Fourth and Fourteenth Amendment rights when they showed up unannounced and did a walk-through of plaintiffs' home after receiving a referral about alleged abuse of plaintiffs' children. The district court denied defendants' motions for summary judgment and found that they were not entitled to qualified immunity. On appeal, the court first rejected Wade's argument that the district court improperly found that a constitutional violation had occurred. It concluded that Wade did not have consent, a reasonable jury could find that there were no exigent circumstances, and the intrusion was not de minimis. Thus, the court held that there was a violation of plaintiffs' Fourth Amendment rights when Wade carried out a warrantless, non-consensual entry into the home. The court also found that it would not have been objectively reasonable for an officer faced with the same circumstances to conclude that the warrantless entry was excused by consent, the de minimis nature of the intrusion, or exigent circumstances. Accordingly, it held that the district court properly denied Wade's motion for summary judgment on the grounds of qualified immunity. However, the court agreed with the state defendants that the district court erred in denying them qualified immunity. The court held that the Fourth Amendment applies to social workers, and that the state defendants did not allege a valid exception to the prohibition against warrantless searches. However, although the court declined to carve out a social worker exception to the Fourth Amendment, it did hold that when "social workers rely in good faith on information from police officers which suggests they can enter a home under an exception to the warrant requirement, or can reasonably infer that an exception applies from their actions, they are entitled to rely on that information." Thus, the court concluded that in this case, the state defendants were entitled to qualified immunity because a reasonable social worker faced with the same circumstances would not have known whether her conduct violated a clearly established federal right. Affirmed in part and reversed in part.

 

Criminal Law

 

Issues: Habeas corpus; Antiterrorism and Effective Death Penalty Act; 28 USC § 2254; Murphy v. Ohio; Black v. Bell; Harrington v. Richter; Right to counsel; U.S. Const. amend V & XIV; McKinney v. Ludwick; Miranda v. Arizona; Edwards v. Arizona; Whether petitioner invoked his right to counsel; Abela v. Martin; Davis v. United States; Waiver of right to counsel; Berghuis v. Thompkins; North Carolina v. Butler; Moran v. Burbine; J.D.B. v. North Carolina; Colorado v. Connelly; "Substantial and injurious effect" standard; Brecht v. Abrahamson; Tolliver v. Sheets; O'Neal v. McAninch; Fleming v. Metrish; Impact of confessions on a jury; Arizona v. Fulminante; Significance of a confession; Kyger v. Carlton

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Moore v. Berghuis

e-Journal Number: 53368

Judge(s): Martin and Keith; Dissent - Boggs

 

The court held that the district court erred in denying petitioner's petition for a writ of habeas corpus because the admission of a statement he made while in police custody, after requesting counsel, violated his constitutional right to counsel. The court also held that the error was not harmless because the court had "grave doubts" about whether its admission had a "substantial and injurious effect or influence in determining the jury's verdict" that petitioner was guilty of first-degree premeditated murder. Petitioner was convicted of first-degree premeditated murder, felon in possession of a firearm, and felony-firearm. He was sentenced to life imprisonment, three to five years imprisonment, and two years imprisonment for the charges, respectively. His convictions were affirmed on appeal, and the Michigan courts denied his post-conviction motion for relief from judgment. The district court denied his petition for a writ of habeas corpus. On appeal, the court held that petitioner invoked his right to counsel by requesting that the police officer call his attorney's phone number. It then rejected respondent's argument that petitioner waived his right to counsel, finding that respondent failed to show by a preponderance of the evidence that petitioner, and not the officer, initiated further conversation. The court noted that the hearing testimony from both witnesses indicated that the officer reinitiated communication with petitioner after his request for counsel, and that the officer explicitly asked petitioner to tell him about the shooting. The court held that the Michigan Court of Appeals unreasonably applied Edwards by finding a waiver absent a factual finding by the trial court, and despite testimonial evidence to the contrary, that petitioner, not the officer, reinitiated communications, and by not finding it to be error that the trial court effectively required that petitioner assert his right to counsel a second time in order to secure it. The court also held that this error was not harmless. It noted that the prosecution presented no direct evidence, only circumstantial evidence, linking petitioner to the scene of the crime, and there was no evidence, other than the custodial confession, indicating premeditation or deliberation. The court concluded that petitioner's custodial statement was "significant in establishing his guilt, his link to the crime scene, and his intent to commit murder," and that the confession was "probative and damaging," noting that the prosecution emphasized its importance in building its case of first-degree murder against petitioner. The court reversed and granted the petition.

 

Issues: Sufficiency of the evidence to convict defendant of operating a vehicle while license suspended causing death; People v. Wolfe; MCL 257.904(4); People v. Schaefer; People v. Derror; People v. McCay; Whether the trial court properly instructed the jury as to whether the defendant "caused" the victim's death; "Waiver"; People v. Matuszak; Whether counsel's approval of the jury instructions may waive claims of instructional error; People v. Kowalski; People v. Lueth; Ineffective assistance of trial counsel; People v. Toma; Matters of trial strategy; Testimony about a confrontation before the crash; People v. Aldrich; People v. Carines; Sentencing; Scoring of OVs 3, 8, and 18; People v. Kimble; People v. Hornsby; People v. Spanke; People v. Snider

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Allen

e-Journal Number: 53297

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

 

The court held, inter alia, that when viewed in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the evidence showed that an officer's speeding amounted to mere negligence that was reasonably foreseeable so that it did not break the causal link between defendant's conduct and the victim's death. Also, other evidence substantially supported that defendant's conduct was the proximate cause of the victim's death where there was evidence that he was driving and not paying attention, was intoxicated at the time of the crash, and he drove through a blinking red traffic light and stop sign before colliding with the police car. The evidence indicated that the police officer (B) was exceeding the 25 MPH speed limit before the crash occurred. But road conditions were clear and dry on the night of the accident and contrary to defendant's claim, traffic was not heavy. B's testimony also indicated that he was preparing to enter a highway ramp at the time of the crash. During the 8 seconds before the crash B sped up from 22 MPH (under the speed limit) to 44 MPH. As B approached the intersection located immediately before the highway on ramp, he had a flashing yellow light that did not require him to stop. B's speeding, "under the totality of the circumstances, did not show a wantonness or disregard of the possible consequences or an indifference to the rights of others." Thus, the jury could have found that B's conduct was mere negligence and did not break the chain of causation between the defendant's conduct and the victim's death and defendant was a proximate cause of the death. The court also held that the other issues defendant raised on appeal had no merit and affirmed his conviction and sentence.

 

Issues: Sufficiency of the evidence to support the defendant's manufacture of marijuana and felony-firearm convictions; "Identity"; People v. Oliphant; Circumstantial evidence and reasonable inferences; People v. Nelson; Whether the verdict was against the great weight of the evidence; People v. Cameron; "Plain error" review; People v. Musser; Admission of alleged "hearsay" statements; Whether defendant's substantial rights were affected; People v. McLaughlin; People v. Malone; Prosecutorial misconduct; People v. Unger; People v. Brown; People v. Haywood; People v. Dobek; Ineffective assistance of counsel; Strickland v. Washington; Trial strategy; People v. Odom

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Davis

e-Journal Number: 53382

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

 

Holding, inter alia, that there was sufficient evidence of the defendant's identity as the perpetrator of the marijuana grow operation, the court affirmed his manufacture of marijuana and felony-firearm convictions. He argued that he was not present when the operation was discovered, his fingerprints were not found on any of the evidence, and he could not be placed in the home within two months before the discovery of the operation. He also argued that the proof of his residency at the home was based on hearsay and circumstantial evidence, which was insufficient to identify him as the perpetrator. However, the court concluded that the record contained sufficient evidence to support a finding that defendant was the individual who committed the charged offenses. The evidence found at the grow site when it was discovered by officers responding to a burglary report included - defendant's driver's license, mail addressed to him, and his CCW registration. Months later he made statements to the police claiming sole possession of the home and his life-long residency. Further, his cousin, C, testified that defendant lived in the home for the last 30 years and that she met him at the home in 8/10 to deliver car registration documentation. Despite his speculation on appeal that someone else might have lived in the home or was otherwise responsible for running the grow operation, there was no record evidence of another person's residency. As to defendant's other arguments on appeal, the court agreed that two statements that were admitted constituted inadmissible hearsay. However, the court held that he failed to show that his substantial rights were affected. The first statement was offered by Officer J, who testified that at approximately 3:00 AM on 10/27/10, he spoke with an unidentified neighbor who was walking his dog. This neighbor stated that defendant lived in the home. The second statement was offered by Detective K, who testified that he learned from colleagues that approximately 1% of fingerprints on firearms are recoverable. "Both statements challenged as hearsay related to defendant's identification and were inadmissible as substantive evidence. As established in Malone, the unidentified neighbor and the lab personnel were not testifying witnesses and defendant was not afforded any opportunity to cross-examine them. The prosecution offered no exceptions that would provide for the admission of either statement." Thus, their admission was plain error. However, it could not be shown that their admission was outcome determinative. There was "ample evidence that the defendant was the sole occupant of the home at the time of the discovery of the weapon and had been the sole occupant for several months prior, to support the conviction on the weapons charge. Even if these hearsay statements were excluded, the properly admitted evidence was sufficient to support the convictions." His other claims on appeal also failed.

 

Issues: Whether the trial court correctly determined that the child victim was not "unavailable" pursuant to MRE 804(a)(4) and properly denied the prosecution's request to admit the victim's preliminary examination testimony pursuant to MRE 804(b)(1); Abuse of discretion standard of review; People v. Malone; People v. Ackerman; "Unavailability as a witness"; MRE 804(a); People v. Edgar; MRE 804(a)(3); MRE 601; People v. Karelse; Claim that the list of scenarios that constitute unavailability found in MRE 804(a) is not exhaustive; People v. Meredith; People v. Watkins

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Duncan

e-Journal Number: 53366

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

 

The court affirmed the trial court's order finding the child victim in these cases was not competent to testify under MRE 601 and was not unavailable under MRE 804(a)(4) for purposes of admitting her preliminary examination testimony pursuant to MRE 804(b)(1). Defendant-Stanley was charged with five counts of CSC I and four counts of CSC II, involving multiple victims under the age of 13. Defendant-Vita was charged with aiding and abetting two counts of CSC I and two counts of CSC II. All four of her felony charges arose from Stanley's alleged conduct with one victim. The prosecution primarily argued that the victim was unavailable pursuant to MRE 804(a)(4), as she was properly described as having a mental illness or infirmity. The court could not agree. The prosecution relied on Karelse and Edgar. In both of those cases, the victims "were declared unavailable to testify because they met the criteria of one of the delineated situations in MRE 804(a)." That they were also declared incompetent was of no consequence to the unavailability analysis. "Contrary to the prosecution's argument, incompetence and unavailability are two distinct concepts under the Michigan Rules of Evidence." Had the drafters "intended to classify every witness who was incompetent pursuant to MRE 601 as unavailable, MRE 804(a) would have explicitly stated so. Rather, MRE 601 permits a trial court to declare a witness incompetent to testify when 'the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably.' MRE 804(a)(4) does not address mental capacity or sense of obligation, it addresses mental illness or infirmity." The court assumed that the use of distinctly different terms by the rules of evidence was conscious and intentional. Even if the court were to conclude that deficient mental capacity under MRE 601 was akin to mental illness or infirmity under MRE 804(a)(4), its result would be no different, as the prosecution did not show that this witness was unable to testify as a result of a problem with capacity, as opposed to a lack of a sense of obligation. The prosecution presented no evidence that the victim suffered from an ascertainable mental illness or infirmity. Rather, it appeared that the young child was simply unable to provide the trial court with assurances that she understood the concept of truth and was capable and willing to testify truthfully. Absent those assurances, the trial court was unable to conclude that she met the legal requirements of MRE 601. "Without some demonstration that her inability to meet the requirements of MRE 601 is attributable to a mental illness or infirmity," the court was unable to conclude that the trial court abused its discretion in refraining from declaring her unavailable to testify. Further, in reviewing the trial court's interpretation of MRE 804(a) de novo, the court could not conclude that the trial court committed any error in ascertaining the meaning of the rule. Rather, the trial court applied the unambiguous language of the rule "to the facts of this case and made a ruling that was proper in light of its direct observations and the parties' arguments."

 

Issues: Sentencing; Whether the trial court abused its discretion when it departed from the sentencing guidelines range and sentenced defendant to a minimum sentence of one day for his armed robbery conviction; People v. Babcock; People v. Young; Michigan's Sentencing Guidelines Act (MCL 769.31 et seq.); MCL 769.34(2); People v. Buehler; MCL 769.34(3); People v. Smith; MCL 769.34(3)(b); MCL 777.54(1)(e)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Edwards

e-Journal Number: 53389

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that the trial court abused its discretion when it departed from the sentencing guidelines range and sentenced defendant to a minimum sentence of one day for his armed robbery conviction, the court reversed and remanded to the trial judge to resentence him on the armed robbery conviction. Defendant was convicted of armed robbery and felony-firearm. After scoring his offense and PRVs, his minimum sentencing guidelines range was calculated to be 51 to 85 months for his armed robbery conviction. In sentencing defendant to serve a minimum of one day on this conviction, the trial court departed from the guidelines. The trial judge articulated two reasons for his downward departure from the guidelines range. First, the trial judge explained that he was departing from the sentencing guidelines because defendant did not discharge the gun during the course of the robbery, and the gun was only used to "clunk [the robbery victim] in the head, so it was not used in the normal fashion that a handgun was used." This fact is "objective and verifiable" because it is capable of being confirmed. No one at trial testified that defendant ever discharged the gun. However, the trial court abused its discretion when it relied on this factor for its departure because this reason is not "substantial and compelling enough to justify departure." Second, the trial judge articulated that he departed from the sentencing guidelines because defendant had no prior criminal history. Pursuant to MCL 769.34(3)(b), "[t]he court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight." Here, the trial court scored defendant two points on PRV 4 pursuant to MCL 777.54(1)(e) because he had "[one] prior low severity juvenile adjudication." Thus, because defendant's criminal history was already taken into account in determining the appropriate sentence range, the trial court erred when it relied on this history without finding that it was somehow given disproportionate weight. The trial court gave no explanation for the extent of the departure, going from a minimum sentencing guidelines range of 51 to 85 months to a minimum sentence of 1 day. The connection between the reasons for the departure and "the sheer magnitude of the departure" was "completely unclear." Further, the trial court did not articulate substantial and compelling reasons for the departure.

 

Issues: Whether the trial court properly admitted "impeachment" evidence pertaining to defendant and another defense witness; MRE 609; People v. Katt; People v. Waterstone; MRE 609(a)(2)(B); MRE 609(b); MRE 609(j); People v. Lukity; People v. Chapo; People v. Layher; People v. Jones; People v. Matuszak; Review of the trial court's decision to proceed in the absence of defense counsel (who was late for court); Iowa v. Tovar; United States v. Cronic; United States v. Wade; Bell v. Cone; People v. Donaldson; Rushen v. Spain; French v. Jones (6th Cir.); Hudson v. Jones (6th Cir.); People v. France; Ineffective assistance of counsel claim for failure to move the trial court to suppress the firearm that defendant was convicted of possessing based on an unconstitutional search; People v. LeBlanc; People v. Davis; Strickland v. Washington; People v. Carbin; Const. 1963, art. 1, § 11; People v. Collins; California v. Ciraolo; Katz v. United States; United States v. U.S. Dist. Court for E. Dist. of MI, S. Div.; People v. Bolduc; United States v. Dunn; Dow Chem. Co. v. United States; Hardesty v. Hamburg Twp.; The "exclusionary rule"; Segura v. United States; People v. Frazier; Herring v. United States

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hudson

e-Journal Number: 53342

Judge(s): Per Curiam - Donofrio and Beckering; Concurring in the result only - O’Connell

 

The court held that neither the trial court's erroneous admission of impeachment evidence under MRE 609 nor defense counsel's absence during the short period of trial in this case warranted reversal of defendant's convictions. The court further held that defendant did not establish his claim of ineffective assistance of counsel. On the basis of defendant's movements and demeanor, following a report of an assault, an officer performed a pat-down search on him. The officer immediately felt a handgun in defendant's "crotch area." The weapon was cocked and locked but did not have a bullet or magazine in it. Defendant argued that the trial court erroneously admitted impeachment evidence pertaining to him and another defense witness, J. The court agreed that the trial court erred when determining the admissibility of the impeachment evidence at issue however, the court held that the admission of the evidence was harmless. The trial court permitted the prosecutor to introduce evidence of (1) defendant's prior conviction for second-degree home invasion and (2) J's juvenile adjudication for second-degree home invasion. MRE 609(b) required the trial court to articulate its analysis of each factor on the record. The trial court, however, did not do so. Further, it did not correctly apply the balancing test provided in MRE 609 rather, it stated that it did not find that the "probative value was substantially outweighed by unfair prejudice," which is a reference to MRE 403. As to the evidence of J's juvenile adjudication, MRE 609(j) required the trial court to determine whether J's testimony about her prior conviction was "necessary for a fair determination of the case." The trial court did not analyze the introduction of J's conviction in this manner. However, the evidence against defendant was strong. The parties stipulated that he was a felon, and there was substantial testimony that he possessed the firearm. Defendant's theory of defense was that he was under duress when he possessed the firearm and that it was not his. Thus, his credibility and the witnesses supporting his theory of defense were important in the case. The evidence of defendant's and J's prior convictions was used solely for purposes of impeachment. During its instructions to the jury, the trial court instructed that it was to consider their past convictions only for the purpose of determining their credibility. Thus, the court presumed that the jury only considered this erroneously admitted evidence for purposes of impeachment. There was additional evidence attacking the credibility of defendant and J independent of the erroneously admitted impeachment evidence. As to J, the jury received evidence that she was currently in a romantic relationship with defendant, which was evidence of bias that was probative of J's credibility. As to defendant, the prosecution introduced evidence that he attempted to influence the testimony of other witnesses. Given this independent impeachment evidence admitted at trial, the erroneous admission of the evidence of defendant's and J's convictions, which the jury considered only for purposes of impeachment, was cumulative impeachment evidence. Defendant's convictions for possession of a firearm by a felon and felony-firearm were affirmed.

 

Issues: Whether the trial court properly denied the defendant's motion for appointment of new counsel; People v. Traylor; People v. Mack; People v. Bass; People v. Kelly; People v. Strickland; People v. Meyers (After Remand); "Other acts" evidence; People v. Coy; MRE 404(b); People v. Sholl; People v. Malone; People v. Delgado; Prosecutorial misconduct; People v. Unger; People v. Carines; People v. Dumas; People v. McRunnels; Sentencing; Whether defendant's sentence was "cruel and unusual punishment"; People v. Milbourn; People v. Babcock; People v. Powell; People v. Lee; Graham v. Florida; Miller v. Alabama; People v. Lemons; Scoring of OVs 3 and 6; Assault with intent to murder (AWIM)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Metzelburg

e-Journal Number: 53298

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

 

The court held, inter alia, that the trial court did not abuse its discretion in denying the defendant's motion for appointment of new counsel in this case where he was convicted of four counts of AWIM, felon in possession, and five counts of felony-firearm. He argued on appeal, among other things, that the trial court erred when it denied his motion for appointment of new counsel. "Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process." Good cause exists where a dispute between the defendant and defense counsel destroys their ability to communicate. A judge should investigate the truth of the allegations that the inability to communicate has led to a breakdown in the attorney-client relationship. Defendant argued that the trial court refused his request for new counsel without an adequate inquiry into the alleged breakdown of the attorney-client relationship. But the record showed that the trial court extensively investigated defendant's allegations as to the breakdown in communication between defense counsel and defendant. Defendant did not have any evidence that defense counsel was working together with the prosecutor, and defense counsel and the prosecutor denied the allegation. Defendant also claimed that his attorney failed to question witnesses and that defense counsel failed to file various motions and did not present substantial defenses. Defendant failed to identify any substantial defenses that defense counsel did not investigate. Further, general disagreements with counsel as to non-fundamental tactics such as the manner of questioning witnesses, or the presentation of the evidence do not warrant appointment of substitute counsel. Defendant failed to show good cause for the appointment of substitute counsel. Instead, the record showed that it was defendant who caused the breakdown with defense counsel by not communicating with him. "A defendant may not purposely break down the attorney-client relationship by refusing to cooperate with his assigned attorney and then argue there is good cause for a substitution of counsel." The court also held that the other issues he raised on appeal had no merit and affirmed his convictions and sentences.

 

Employment & Labor Law

 

Issues: The Whistleblowers' Protection Act (WPA)(MCL 15.361 et seq.); MCL 15.262; A prima facie case under the WPA; Anzaldua v. Neogen Corp.; An "adverse employment action"; Pena v. Ingham Cnty. Rd. Comm'n; Chen v. Wayne State Univ.; Meyer v. Center Line; "Causation"; West v. General Motors Corp.; Absence of evidence that the decision-maker knew of the "protected activity" at the time of the adverse employment action; Kaufman & Payton, PC v. Nikkila; Motion for leave to amend the complaint; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; MCR 2.118(A)(2); Miller v. Chapman Contracting

Court: Michigan Court of Appeals (Unpublished)

Case Name: Truel v. City of Dearborn

e-Journal Number: 53385

Judge(s): Per Curiam – Owens, Talbot, and Wilder

 

Concluding that both of the plaintiff's new allegations failed to establish a prima facie case under the WPA, the court held that his proposed amended complaint was legally insufficient on its face and thus, the trial court did not abuse its discretion in denying his motion for leave to amend his complaint. Plaintiff, a police officer employed by the defendant-City, was dispatched on 2/15/04 to a bar fight. His investigation revealed that many other City police officers, including the police chief and Officer D, were involved in the fight. Plaintiff claimed that he was subjected to retaliation and harassment due to investigating the bar fight. He filed suit on 7/3/08. Defendants moved for summary disposition on the basis that his latest allegation of a possible WPA violation occurred on 3/12/08, more than 90 days before he filed his complaint. He responded by alleging that defendants retaliated against him within the 90-day period and that the retaliations continued after he filed suit. He moved for leave to amend his complaint. Plaintiff's proposed amended complaint included two new allegations of retaliation. He alleged that beginning on 6/3/08, D (now a Commander in the police department) "attempted to influence the payroll status of Plaintiff to force Plaintiff to use accumulated sick time," which would result in financial harm to him while he was disabled from the department. Plaintiff also alleged that on 11/29/08, while he was on sick leave, the City law department served him with a subpoena to appear in court for a criminal case he had handled as a police officer. He asserted that issuing a subpoena with the private address of an officer was against the City's policies. The court concluded that there was nothing in the first allegation "that would approach the materially adverse employment actions of the termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities." Also, plaintiff's payroll status was not actually changed and he received full pay without using any sick time. While it was "arguably possible to consider this allegation of discrimination as a continuation of a series of harassing acts against plaintiff which defendants failed to stop, fitting within Meyer's holding," the court concluded from the record and applicable precedent that D's alleged attempt to influence plaintiff's payroll status was "a mere inconvenience and that plaintiff's claim of discrimination was based on his subjective impressions regarding that act." Thus, the claim was insufficient to establish an adverse employment action. As to his second new allegation, nothing in the record supported that the attorneys in the City law department knew of plaintiff's cooperation in the investigations into the bar fight. "And where there is no evidence that the decision-maker knew of the protected activity at the time of the adverse employment action, the plaintiff fails to show causation." The court affirmed the trial court's order denying plaintiff's motion for leave to amend and granting the defendants summary disposition.

 

Litigation

 

This summary also appears under Real Property

 

Issues: Whether the plaintiff's claims were barred by the compulsory joinder rule (MCR 2.203(A)) and/or res judicata; Statutory interpretation; Lamkin v. Engram; Estate of Dale v. Robinson; Kloian v. Schwartz; Schwartz v. City of Flint; Res judicata; Adair v. State; Washington v. Sinai Hosp. of Greater Detroit; Peterson Novelties, Inc. v. City of Berkley; The "same evidence" test; The "same transaction" test; Interpretation of the Levit deed; Whether the trial court correctly held that the Service Drive/Access Easement terminated on 12/31/86; Woodbury v. Res-Care Premier, Inc.; In re Rudell Estate; Greenville Lafayette, LLC v. Elgin State Bank; Wayne Cnty. v. Wayne Cnty. Ret. Comm'n; Whether the proposed development would increase the size of the benefitted parcel (whether the adjacent parcel has a right to use the Service Drive/Access Easement or Parking Easement); Schadewald v. Brulé

Court: Michigan Court of Appeals (Unpublished)

Case Name: Grand/Sakwa Lincoln Park, L.L.C. v. Sears, Roebuck & Co.

e-Journal Number: 53319

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

 

In this case where the defendant argued, inter alia, that the prior owner of the Strip Mall Parcel and the Adjacent Parcel could have, but did not, raise the issues as to the Service Drive/Access Easement and the expansion of the benefitted parcel, and defendant contended that the plaintiff's claims were barred by the compulsory joinder rule and res judicata, the court held that the joinder rule did not apply, but agreed that res judicata applied and barred the claims. The case arose from plaintiff's lawsuit over three contiguous parcels of property - (1) the Sears Parcel, (2) the Strip Mall Parcel, and (3) the Adjacent Parcel. Defendant owns the Sears Parcel, and plaintiff owns the Strip Mall Parcel and the Adjacent Parcel. In 1955, defendant owned the tract of land consisting of the Sears Parcel and the Strip Mall Parcel. By deed dated 12/30/55 defendant sold the Strip Mall Parcel to Levit. The Levit deed contained provisions as to two easements, which were referred to as (1) the Service Drive Easement and (2) the Parking Easement. The Service Drive/Access Easement gave both defendant and Levit the right to use a service driveway on the other's property. The Parking Easement gave both defendant and Levit's customers the right to park on a designated portion of the other's property. Later, plaintiff's predecessor in title (Pool Two) acquired the Strip Mall Parcel and the Adjacent Parcel. In 1/08 Pool Two sued defendant as to the Parking Easement. Pool Two hoped to develop a large shopping center that included both the Strip Mall Parcel and the Adjacent Parcel. In order to develop the site as it wanted, Pool Two needed to ensure that the Parking Easement was perpetual. Count one of its complaint alleged that defendant refused to acknowledge that Pool Two had the right to park on and cross the parking area. Counts two and three alleged adverse possession and prescriptive easement. Defendant moved successfully for summary disposition and sanctions. The trial court noted that Pool Two's claim was meritless, in light of the parties' agreement extending the Parking Easement until 2019. Bank of America acquired both the Strip Mall Parcel and the Adjacent Parcel at a sheriff's sale after Pool Two defaulted on its loan. The bank conveyed the property to plaintiff on 10/21/10. Later, plaintiff sued defendant seeking termination of the Service Drive/Access Easement by abandonment, and by adverse possession. Plaintiff later sought equitable reformation of the Service Drive/Access Easement. Defendant counterclaimed. The court held, among other things, that res judicata applied to the case. Thus, the issues as to the continued viability of the Service Drive/Access Easement and increased burden on the Easement were barred by res judicata. The court reversed.

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether plaintiff-Smith complied with the notice requirements of MCL 124.419; "Substantial compliance"; Plunkett v. Department of Transp.; Rowland v. Washtenaw County Rd. Comm'n; Nuculovoc v. Hill; "Waiver" of the statutory requirement; Lothian v. Detroit; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Dozier v. State Farm Mut. Auto. Ins. Co.; Whether plaintiff pleaded in avoidance of governmental immunity; Odom v. Wayne Cnty.; MCL 691.1405; Whether genuine issues of fact existed as to whether the defendant's bus driver was negligent; Quinto v. Cross & Peters Co.; Atkins v. SMART

Court: Michigan Supreme Court

Case Name: Smith v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 53520

Judge(s): Young, Jr., Cavanagh, Markman, M.B. Kelly, and Zahra; Voting to deny leave to appeal – M. Kelly; Not participating – Hathaway

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 47631 in the 1/18/11 edition) for the reasons stated in the Court of Appeals dissent, and reinstated the trial court's order granting the defendant summary disposition. The court cited its recent decision in Atkins.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Governmental immunity; Defendants-officers' claims of immunity against plaintiff's claims of excessive force and assault and battery under federal and state law; Odom v. Wayne Cnty.; Maiden v. Rozwood; Woodman v. Miesel Sysco Food Servs. Co.; Saucier v. Katz; Pearson v. Callahan; Graham v. Common; Anderson v. Creighton; Tackling a suspect who is not fleeing or resisting; Goodson v. City of Corpus Christi (5th Cir.); Marvin v. City of Taylor (6th Cir.); "Good-faith"; Ross v. Consumers Power Co. (On Rehearing); Latits v. Phillips; Oliver v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: Alexander v. Cassidy

e-Journal Number: 53339

Judge(s): Per Curiam – Murphy and Whitbeck; Dissent - O’Connell

 

On remand from the Supreme Court, the court held that the trial court improperly granted the defendants-officers' motion for summary disposition on plaintiff-RA's excessive force and assault and battery claims based on the officers' tackle. "A reasonable juror could find that the officers' actions were objectively unreasonable under federal law concerning the excessive force claim, and could find that the officers acted with malice under Michigan law concerning the assault and battery claim." Thus, because the court held that there were genuine issues of material fact on the officers' qualified immunity claims under state and federal law, it reversed and remanded. RA's claim under federal law was excessive force. Viewing the conflicting testimony in the light most favorable to RA, he tried to comply with police orders, he was not fleeing or resisting arrest, and he did not appear to pose a safety risk. Further, his crime was minor. The court held that reasonable jurors could find that the officers acted unreasonably when tackling RA and forcing him to the ground under these circumstances. RA's claim under Michigan law was that the officers assaulted and battered him. They argued that RA did not establish that they acted with malice. The court noted that this was not the proper burden of proof. When the plaintiff pleaded an intentional tort, "the proponent of individual immunity must establish that he acted without malice." The court held that the officers did not establish that they acted without malice when tackling RA. "If the defendant's action can be interpreted in numerous ways, some of which are not malicious, this may indicate that the defendants did not act with malice. But when an officer's conduct shows an intent to harm, that is indicative of willful and wanton misconduct, and thus a lack of good-faith." The court concluded that a reasonable juror could find that the officers' conduct showed an intent to harm RA, even before they beat him while he was on the ground. This was not a case in which an officer's laugh at a plaintiff's complaint could have "signified a vast array of emotions," and no other facts indicated malice. Nor was this a case in which a defendant's release of a police dog was against department policy, but occurred only after plaintiff did not comply with the officer's sirens, lights, and verbal commands, engaged in a high speed chase, and then tried to strike and kick the officers when stopped. The officers claimed that they acted in good faith and tried to effect the arrest by attempting to grab RA's wrists, at which point he pulled away and they were forced to take him to the ground. These facts were in controversy. Viewing the evidence in the light most favorable to RA, he complied with verbal commands, did not try to flee, and did not try to strike the officers. RA contended that, when they told him that he was under arrest, he put his arms to his sides and asked why he was under arrest. RA contended that, at that point, Officer H tried to punch him. A witness testified that nothing she saw warranted a punch. The officers' versions of the event did not include this punch. But if the jury believed RA's version of events, the officers provided no evidence that H intended something other than to harm RA. After the attempted punch, multiple officers tackled RA to the ground, where, according to RA, they continued to punch him. Thus, RA presented evidence that would allow a reasonable juror to find that the officers' conduct showed an intent to harm him even before he was taken to the ground. Qualified immunity did not bar his assault and battery claims.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Whether plaintiff-Smith complied with the notice requirements of MCL 124.419; "Substantial compliance"; Plunkett v. Department of Transp.; Rowland v. Washtenaw County Rd. Comm'n; Nuculovoc v. Hill; "Waiver" of the statutory requirement; Lothian v. Detroit; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Dozier v. State Farm Mut. Auto. Ins. Co.; Whether plaintiff pleaded in avoidance of governmental immunity; Odom v. Wayne Cnty.; MCL 691.1405; Whether genuine issues of fact existed as to whether the defendant's bus driver was negligent; Quinto v. Cross & Peters Co.; Atkins v. SMART

Court: Michigan Supreme Court

Case Name: Smith v. Suburban Mobility Auth. for Reg'l Transp.

e-Journal Number: 53520

Judge(s): Young, Jr., Cavanagh, Markman, M.B. Kelly, and Zahra; Voting to deny leave to appeal – M. Kelly; Not participating – Hathaway

 

In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 47631 in the 1/18/11 edition) for the reasons stated in the Court of Appeals dissent, and reinstated the trial court's order granting the defendant summary disposition. The court cited its recent decision in Atkins.

 

This summary also appears under Municipal

 

Issues: Governmental immunity; Defendants-officers' claims of immunity against plaintiff's claims of excessive force and assault and battery under federal and state law; Odom v. Wayne Cnty.; Maiden v. Rozwood; Woodman v. Miesel Sysco Food Servs. Co.; Saucier v. Katz; Pearson v. Callahan; Graham v. Common; Anderson v. Creighton; Tackling a suspect who is not fleeing or resisting; Goodson v. City of Corpus Christi (5th Cir.); Marvin v. City of Taylor (6th Cir.); "Good-faith"; Ross v. Consumers Power Co. (On Rehearing); Latits v. Phillips; Oliver v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: Alexander v. Cassidy

e-Journal Number: 53339

Judge(s): Per Curiam – Murphy and Whitbeck; Dissent - O’Connell

 

On remand from the Supreme Court, the court held that the trial court improperly granted the defendants-officers' motion for summary disposition on plaintiff-RA's excessive force and assault and battery claims based on the officers' tackle. "A reasonable juror could find that the officers' actions were objectively unreasonable under federal law concerning the excessive force claim, and could find that the officers acted with malice under Michigan law concerning the assault and battery claim." Thus, because the court held that there were genuine issues of material fact on the officers' qualified immunity claims under state and federal law, it reversed and remanded. RA's claim under federal law was excessive force. Viewing the conflicting testimony in the light most favorable to RA, he tried to comply with police orders, he was not fleeing or resisting arrest, and he did not appear to pose a safety risk. Further, his crime was minor. The court held that reasonable jurors could find that the officers acted unreasonably when tackling RA and forcing him to the ground under these circumstances. RA's claim under Michigan law was that the officers assaulted and battered him. They argued that RA did not establish that they acted with malice. The court noted that this was not the proper burden of proof. When the plaintiff pleaded an intentional tort, "the proponent of individual immunity must establish that he acted without malice." The court held that the officers did not establish that they acted without malice when tackling RA. "If the defendant's action can be interpreted in numerous ways, some of which are not malicious, this may indicate that the defendants did not act with malice. But when an officer's conduct shows an intent to harm, that is indicative of willful and wanton misconduct, and thus a lack of good-faith." The court concluded that a reasonable juror could find that the officers' conduct showed an intent to harm RA, even before they beat him while he was on the ground. This was not a case in which an officer's laugh at a plaintiff's complaint could have "signified a vast array of emotions," and no other facts indicated malice. Nor was this a case in which a defendant's release of a police dog was against department policy, but occurred only after plaintiff did not comply with the officer's sirens, lights, and verbal commands, engaged in a high speed chase, and then tried to strike and kick the officers when stopped. The officers claimed that they acted in good faith and tried to effect the arrest by attempting to grab RA's wrists, at which point he pulled away and they were forced to take him to the ground. These facts were in controversy. Viewing the evidence in the light most favorable to RA, he complied with verbal commands, did not try to flee, and did not try to strike the officers. RA contended that, when they told him that he was under arrest, he put his arms to his sides and asked why he was under arrest. RA contended that, at that point, Officer H tried to punch him. A witness testified that nothing she saw warranted a punch. The officers' versions of the event did not include this punch. But if the jury believed RA's version of events, the officers provided no evidence that H intended something other than to harm RA. After the attempted punch, multiple officers tackled RA to the ground, where, according to RA, they continued to punch him. Thus, RA presented evidence that would allow a reasonable juror to find that the officers' conduct showed an intent to harm him even before he was taken to the ground. Qualified immunity did not bar his assault and battery claims.

 

Real Property

 

This summary also appears under Litigation

 

Issues: Whether the plaintiff's claims were barred by the compulsory joinder rule (MCR 2.203(A)) and/or res judicata; Statutory interpretation; Lamkin v. Engram; Estate of Dale v. Robinson; Kloian v. Schwartz; Schwartz v. City of Flint; Res judicata; Adair v. State; Washington v. Sinai Hosp. of Greater Detroit; Peterson Novelties, Inc. v. City of Berkley; The "same evidence" test; The "same transaction" test; Interpretation of the Levit deed; Whether the trial court correctly held that the Service Drive/Access Easement terminated on 12/31/86; Woodbury v. Res-Care Premier, Inc.; In re Rudell Estate; Greenville Lafayette, LLC v. Elgin State Bank; Wayne Cnty. v. Wayne Cnty. Ret. Comm'n; Whether the proposed development would increase the size of the benefitted parcel (whether the adjacent parcel has a right to use the Service Drive/Access Easement or Parking Easement); Schadewald v. Brulé

Court: Michigan Court of Appeals (Unpublished)

Case Name: Grand/Sakwa Lincoln Park, L.L.C. v. Sears, Roebuck & Co.

e-Journal Number: 53319

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

 

In this case where the defendant argued, inter alia, that the prior owner of the Strip Mall Parcel and the Adjacent Parcel could have, but did not, raise the issues as to the Service Drive/Access Easement and the expansion of the benefitted parcel, and defendant contended that the plaintiff's claims were barred by the compulsory joinder rule and res judicata, the court held that the joinder rule did not apply, but agreed that res judicata applied and barred the claims. The case arose from plaintiff's lawsuit over three contiguous parcels of property - (1) the Sears Parcel, (2) the Strip Mall Parcel, and (3) the Adjacent Parcel. Defendant owns the Sears Parcel, and plaintiff owns the Strip Mall Parcel and the Adjacent Parcel. In 1955, defendant owned the tract of land consisting of the Sears Parcel and the Strip Mall Parcel. By deed dated 12/30/55 defendant sold the Strip Mall Parcel to Levit. The Levit deed contained provisions as to two easements, which were referred to as (1) the Service Drive Easement and (2) the Parking Easement. The Service Drive/Access Easement gave both defendant and Levit the right to use a service driveway on the other's property. The Parking Easement gave both defendant and Levit's customers the right to park on a designated portion of the other's property. Later, plaintiff's predecessor in title (Pool Two) acquired the Strip Mall Parcel and the Adjacent Parcel. In 1/08 Pool Two sued defendant as to the Parking Easement. Pool Two hoped to develop a large shopping center that included both the Strip Mall Parcel and the Adjacent Parcel. In order to develop the site as it wanted, Pool Two needed to ensure that the Parking Easement was perpetual. Count one of its complaint alleged that defendant refused to acknowledge that Pool Two had the right to park on and cross the parking area. Counts two and three alleged adverse possession and prescriptive easement. Defendant moved successfully for summary disposition and sanctions. The trial court noted that Pool Two's claim was meritless, in light of the parties' agreement extending the Parking Easement until 2019. Bank of America acquired both the Strip Mall Parcel and the Adjacent Parcel at a sheriff's sale after Pool Two defaulted on its loan. The bank conveyed the property to plaintiff on 10/21/10. Later, plaintiff sued defendant seeking termination of the Service Drive/Access Easement by abandonment, and by adverse possession. Plaintiff later sought equitable reformation of the Service Drive/Access Easement. Defendant counterclaimed. The court held, among other things, that res judicata applied to the case. Thus, the issues as to the continued viability of the Service Drive/Access Easement and increased burden on the Easement were barred by res judicata. The court reversed.

 

Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(b)(i), (j), and (k)(ii); Hill v. City of Warren; In re Utrera; In re SLH; MCR 3.903(C)(10); Whether the mother's plea provided jurisdiction over the child; MCR 3.972(C); Whether the trial court properly held that the mother's no contest plea was voluntary, accurate, and established the trial court's jurisdiction under § 2(b)(1) and (2)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re VanSyckle

e-Journal Number: 53362

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

 

The court held that the trial court had jurisdiction over the respondent-father's daughter on the basis of the respondent-mother's plea agreement. Further, the court held that the trial court properly terminated the father's parental rights based on clear and convincing evidence satisfying the statutory bases for termination. Petitioner-CPS filed a petition requesting that the trial court take jurisdiction over TV and another of respondents' minor children (JS). The petition alleged that the father had sexually abused JS and that the mother had not protected her even though she knew about the assault. The trial court authorized the petition. Later, the mother pleaded no contest to the allegations in the petition. In return CPS agreed not to pursue termination of her parental rights. After entry of the plea, the trial court issued an order of adjudication, concluding that there were statutory grounds to exercise jurisdiction over the children. Then, the father filed a motion to rescind the trial court's order of adjudication, which the trial court denied. After the father filed an appeal in the court, CPS supplemented its petition seeking termination of the mother's parental rights based on violations of her plea agreement. Respondent argued that the plea was not accurate because the record was devoid of facts to establish jurisdiction and that "no evidence was presented that the mother failed to protect her child or that the home environment was not suitable." The court disagreed. The trial court found a sufficient factual basis for accepting the mother's plea of no contest based on the testimony of a CPS investigator (C). He testified that JS spontaneously disclosed that the father had sexually abused her. The mother's attorney then raised a hearsay objection, arguing that the evidence used to establish the factual basis of the plea needed to be legally admissible. After a conference, it was agreed that a written summary of C's interview of JS conducted earlier would be entered as an exhibit, and the parties stipulated the exhibit could be used to establish the factual basis for the plea. In the transcript of the interview, JS told C that "Mr. Rick showed me his privates." She also said that he "told me to suck his wee wee, but I didn't do it. He just . . . put his hand on my head and made me do it." She also told C that "when mom came home, she told him don't do it, but he didn't listen to mom." She repeated the assertion several times. JS also told C that what she said was the truth. The parties agreed that the factual basis for assuming jurisdiction was established. The trial court did not err in concluding that the mother's no contest plea was voluntary, accurate, and established jurisdiction under MCL 712A.2(B)(1) and (2). Affirmed.

 

Wills & Trusts

 

Issues: Trust provision interpretation; Whether the cottage needed to be sold in order to cover the funds owed to the grandchildren under Article 10(A) of the trust; "Abatement"; MCL 700.3902(1)(a)-(d); Whether the grant of $25,000 to each grandchild was a "general devise"; MCL 700.3902(2); Whether the grant of the cottage to the appellant-Cline and the grant of the condo to the appellee-Newsom were "specific devises"; MCL 700.3902(3); Right result reached for the wrong reason; Gleason v. Department of Transp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Lorraine C. Martens Trust

e-Journal Number: 53361

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

 

The court held that following the order of abatement in MCL 700.3902(1) was at odds with the intent expressed by the settlor, Martens, and thus, the result reached by the trial court was consistent with Martens' intent and also with MCL 700.3902(3). Further, because the plain language of the trust required the shares granted to appellant-Cline and appellee-Newsom to be equal, the trial court correctly ruled that Cline had to split the residual proceeds from the sale of the cottage equally with Newsom. Thus, while the trial court incorrectly characterized the devises, the court affirmed its result. Articles 10(A) and (B) of the trust were at issue. Article 10(A) provided that upon Martens' death, the Trustee shall first distribute outright $25,000 to each grandchild of Martens then living. Article 10(B) provided that after the specific distributions described in Article 10(A), the Trustee shall divide the then trust estate into equal shares, one each for Martens' then surviving daughters, Cline and Newsom - however, the Trustee was to allocate the cottage to the share for Cline's benefit, and to allocate the condo to the share for Newsom's benefit. At the time of Martens' death, the trust had been reduced to $50,717 in liquid assets, not counting the value of the cottage or the $50,000 in proceeds from the sale of the condo, which was sold with the consent of all interested parties. Martens' estate also had a cash value of approximately $15,000. Newsom filed a petition to have the trust document interpreted by the trial court. A hearing was held and the trial court concluded that grants to the grandchildren were specific devises, and that the grants to the daughters, including the condo and cottage, were residual devises. Thus, the trial court held that the funds from the condo sale had to be put toward the payment of the specific devises, and the cottage needed to be sold so that the funds from the sale could be put toward the payment of the specific devises. The trial court also found that Article 10(B) required the residual share given to each daughter to be equal and thus, that Cline and Newsom were required to evenly split any leftover proceeds from the sales of the condo and cottage. The court agreed with Cline that the trial court incorrectly classified the grants in Article 10(A) as specific devises, and that the grant of the cottage to Cline and the grant of the condo to Newsom were specific devises. However, the court agreed with the trial court that the devises set forth in Article 10(B) clearly were to be distributed "after the specific distributions described in" Article 10(A). Based on this finding, the court's conclusion was governed by the express language of MCL 700.3902(3). The court also rejected Cline's interpretation of Article 10(B), concluding that the trust language clearly specified "that the residual value of the estate is to be divided into equal shares," provided that Cline's share included the cottage and Newsom's share included the condo. Contrary to Cline's position, "the language following 'provided, however' is not an exception to the requirement" that Cline and Newsom receive equal shares, but rather a guide to how the real estate should be divided between those equal shares. Affirmed.

 

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