• Contracts (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Family Law (1)
• Litigation (3)
• Malpractice (1)
• Municipal (3)
• Negligence & Intentional Tort (1)
• Personal Protection Orders (1)
• Real Property (2)
• Tax (3)
• Termination of Parental Rights (1)
• Wills & Trusts (1)

Contracts

 

This summary also appears under Litigation

 

Issues: Motion to vacate the arbitration award; Whether the trial court properly vacated the arbitration award on the ground that the arbitrator exceeded her powers by failing to apply the statute of limitations provided in MCL 600.5839(1); Detroit Auto Inter-Ins. Exch. v. Gavin; Donegan v. Michigan Mut. Ins. Co.; MCR 3.602(J)(2)(c); Miller-Davis Co. v. Ahrens Constr., Inc.; City of Ann Arbor v. AFSCME Local 369; Dohanyos v. Detrex Corp.; MCL 600.5855; Whether the trial court properly held that "it is simply not 'feasible' that the arbitrator's award could be 'explained' on" the basis of fraudulent concealment; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: James D. Compo, Inc. v. Trevis

e-Journal Number: 53383

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

 

The court held, inter alia, that the trial court erred in vacating the arbitration award on the ground that MCL 600.5839 barred defendants' claim. Thus, the court reversed the order granting plaintiff's motion to vacate the arbitration award and remanded for an entry of the arbitration award. Defendants argued that the trial court erred when it vacated the arbitration award on the ground that the arbitrator exceeded her powers by failing to apply the statute of limitations provided in MCL 600.5839(1). Specifically, defendants argued that the trial court erred because that particular statute of limitations was inapplicable to their breach of contract claim. The court agreed. After the arbitrator rejected plaintiff's claim that the six-year statute of limitations in MCL 600.5839(1)(a) barred defendants' claim, plaintiff brought this same argument to the trial court. However, the Supreme Court recently concluded "that MCL 600.5839(1) is limited to tort actions. It does not apply to breach of contract actions." Thus, because this dispute concerned "a breach of contract claim, not a tort claim, the arbitrator did not make a substantial legal error by finding that MCL 600.5839(1) did not bar defendants' claim." On appeal, plaintiff argued that there was an alternative ground for finding defendants' claim untimely because, although distinct from MCL 600.5839, the applicable statute of limitations for breach of contract found in MCL 600.5807(8) was six years also. However, no error was evident from the face of the arbitration award. There was no separate record indicating the arbitrator's findings of fact and law. Also, that six-year limitations period is not absolute because other statutory provisions allow for the tolling of that period. Thus, even if it was evident that defendants' claim was filed after six years from when any breach accrued, other facts could nonetheless make the claim timely. The trial court stated that it was "simply not 'feasible' that the arbitrator's award could be 'explained' on" the basis of fraudulent concealment. However, the "trial court delved into an analysis of whether the arbitrator's award was supported by substantial evidence, despite the fact that a reviewing court may not review an arbitrator's factual findings or decision on the merits."

 

Criminal Law

 

Issues: Prosecution for the manufacture of marijuana in violation of the Public Health Code (MCL 333.7401(1) and (2)(d)); Whether the defendant was entitled to immunity under § 4(b) of the Michigan Medical Marihuana Act (MMMA) (MCL 333.26424); MCL 333.26424(b); People v. Thomas; People v. Kolanek; Statutory interpretation; Klooster v. City of Charlevoix; Sun Valley Foods Co. v. Ward; People v. Cole; A trial court's factual findings; People v. Dawson; People v. Armstrong; MCL 333.26427(a); Whether § 4(b) entitled defendant to immunity as a registered primary caregiver; MCL 333.26424(b)(2); MCL 333.26424(d); "Possession"; MCL 333.26423(e) (defining "medical use"); MCL 8.3a; People v. Wolfe; "Enclosed, locked facility"; MCL 333.26423(c); Whether § 8 entitled defendant to dismissal of the charges; The Michigan Department of Community Health (MDCH)

Court: Michigan Supreme Court

Case Name: People v. Bylsma

e-Journal Number: 53570

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

 

The court held that the Court of Appeals correctly ruled that defendant was not entitled to immunity under § 4(b) of the MMMA because § 4 does not provide a registered primary caregiver with immunity when growing marijuana collectively with other registered primary caregivers and registered qualifying patients. The Court of Appeals correctly determined that defendant exercised dominion and control over a quantity of marijuana plants in excess of that allowed pursuant to § 4(b). However, the court reversed the judgment of the Court of Appeals to the extent that it held, contrary to Kolanek, that defendant was necessarily precluded from asserting an affirmative defense pursuant to § 8, solely because he failed to satisfy the elements of § 4 immunity. "Rather, § 8 contains independent elements that do not turn on the requirements of § 4 immunity." Because defendant had not yet asserted the § 8 affirmative defense in a motion to dismiss, as Kolanek requires, the court held that it was premature for it to decide whether he was entitled to the defense, and remanded the case to the trial court. Pursuant to § 6, a qualifying patient and his primary caregiver, if any, can apply to the MDCH for a registry identification card. Defendant did so and, at all relevant times, was registered with the MDCH as the primary caregiver for two registered qualifying medical marijuana patients. He leased commercial warehouse space and equipped it both to grow marijuana for his two patients and to allow him to assist other qualifying patients and primary caregivers in growing marijuana. A single lock secured the warehouse space, which was divided into three separate booths. A city inspector forced entry into the warehouse space after he noticed illegal electrical lines running along water lines. The inspector notified police of the marijuana that was growing there. The police executed a search warrant and seized approximately 86 to 88 plants. Defendant claimed ownership of 24 of the seized plants and asserted that the others belonged to the other qualifying patients and registered caregivers whom he was assisting. He moved to dismiss the charges under the MMMA's grant of immunity in § 4, claiming that he possessed 24 of the seized plants, that other registered qualifying patients and registered primary caregivers owned the remaining plants, and that all of them used the warehouse space as a common enclosed, locked facility. He also reserved the right to raise the affirmative defense provided by § 8. The court held that defendant was not entitled to § 4's grant of immunity from arrest, prosecution, or penalty. In order to receive immunity under § 4, "a registered primary caregiver may not possess more than 12 marijuana plants for each qualifying patient to whom he is connected through the state's registration process." The court agreed with the Court of Appeals that defendant exercised dominion and control over all the plants in the warehouse space that he leased, not only the plants in which he claimed an ownership interest. "Section 4 does not allow the collective action that defendant has undertaken because only one of two people may possess marijuana plants pursuant to §§ 4(a) and 4(b): a registered qualifying patient or the primary caregiver with whom the qualifying patient is connected through the registration process of" the MDCH. "Because defendant possessed more plants than § 4 allows and he possessed plants on behalf of patients with whom he was not connected through the MDCH's registration process," he was not entitled to § 4 immunity. The MMMA created a second protection for primary caregivers - an affirmative defense from prosecution under § 8. The Court of Appeals erred when it concluded that defendant was not entitled to assert the § 8 affirmative defense. In Kolanek, the court held that a defendant need not establish the elements of § 4 immunity in order to establish the elements of the § 8 defense. Thus, the court reversed the Court of Appeals' judgment to the extent that it conflicted with Kolanek. Affirmed in part, reversed in part, and remanded to the trial court.

 

Issues: CSC I conviction under MCL 750.520b(1)(b)(ii) (requiring that the defendant be related to the victim "by blood"); Statutory interpretation; People v. Koonce; People v. Morey; A relationship by "blood" defined; "Affinity" defined; Bliss v. Caille Bros. Co.; Whether the relationship element was met based on a civil presumption of legitimacy; Relevance of defendant's lack of standing to challenge his legitimacy under The Paternity Act (MCL 722.711 et seq.); CSC III under MCL 750.520d(1)(a)

Court: Michigan Supreme Court

Case Name: People v. Zajaczkowski

e-Journal Number: 53569

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

 

Since the undisputed evidence indicated that the defendant was not biologically related to the victim, the court concluded that the prosecution could not establish a blood relationship between them to support defendant's CSC I conviction under MCL 750.520b(1)(b)(ii). The court held that the civil presumption of legitimacy cannot be substituted for a blood relationship in order to establish this element of the charged crime. Thus, the court vacated defendant's CSC I conviction and remanded the case to the trial court for entry of a CSC III conviction pursuant to a plea agreement and for resentencing. Defendant had sexual intercourse with the victim, who was at least 13 but less than 16 years of age at the time of the incident. The prosecution asserted that defendant was related to the victim because he was born during his mother's marriage to the victim's biological father, W. Defendant's mother and W were divorced in 1979. While the divorce judgment identified defendant as their child, a DNA test later revealed that W is not defendant's biological father. In 1992, W fathered a child with another woman. That child was the victim in this case. The prosecution conceded that in light of the DNA test results, defendant was not biologically related to the victim. However, the prosecution argued that the relationship element was met based on a civil presumption of legitimacy. After the trial court denied defendant's motion to dismiss the CSC I charge or reduce it to CSC III, he agreed to plead guilty to CSC I on the condition that he would be allowed to appeal the issue of whether the facts established that he was only guilty of CSC III. The Court of Appeals affirmed his conviction in a published opinion. The court noted that a relationship by "blood" is defined as "a relationship between persons arising by descent from a common ancestor" or a relationship "by birth rather than by marriage." Further, as the Court of Appeals correctly noted, the context in which the term "by blood" is used in the statute indicates that it is meant as an alternative to the term "by affinity." (The prosecution conceded that there was no relationship by affinity in this case). "Under the statutory language, the third element of MCL 750.520b(1)(b)(ii) can only be met if defendant is related to the victim in one of two ways - by blood or by affinity." The conclusive DNA evidence showed that the victim's father was not defendant's biological father. "Defendant and the victim simply do not share a relationship arising by descent from a common ancestor, and they are not related by birth." Thus, he was not related to the victim by blood to the fourth degree. Interpreting the language of the statute in light of its ordinary meaning and the context in which it was used, the court concluded that the prosecution could not establish the relationship element of MCL 750.520b(1)(b)(ii). Nothing in the language of the statute indicates that a relationship by blood can be established through the civil presumption of legitimacy.

 

Issues: Docket Nos. 299829 & 299830 - Sufficiency of the evidence to support both defendants' CSC III convictions; People v. Riley; People v. Nowack; People v. Eisen; Aiding and abetting jury instruction; People v. Bartlett; People v. Rodriguez; People v. Knapp; Docket No. 299829 - Defendant-Bennett - Claim that the prosecutor's failure to charge defendant before trial as an aider and abettor deprived him of due process; People v. Clark; Both defendants - Whether the evidence supported the trial court's decision to instruct the juries concerning each defendant's aiding and abetting of his codefendant; MCL 767.39; People v. Robinson; People v. Carines; People v. Vaughn; People v. Moore; Bennett - Supplemental jury instruction; People v. Carter; Ineffective assistance of counsel; People v. LeBlanc; Strickland v. Washington; People v. Solmonson; People v. Odom; People v. France; Evidence of prior allegations of sexual abuse by the victim; People v. Dinardo; People v. Hackett; People v. Schumacher; Great weight of the trial evidence; People v. McCray; People v. Lemmon; Prosecutorial misconduct; People v. Watson; People v. Callon; People v. Manser; Cumulative effect of errors; Scoring of OV 8; People v. Cannon; People v. Osantowski; Defendant-Setty - Right of confrontation; MRE 801(c); U.S. Const., Am VI; People v. Lonsby; Photographic lineup; People v. Kurylczyk; People v. Hornsby; People v. Schutte

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Bennett

e-Journal Number: 53403

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

 

The court held, inter alia, that there was sufficient evidence to support both defendants' CSC III convictions. Ample evidence supported the jury's finding that defendant-Bennett committed four counts of CSC III, two involving penetration of the victim's vagina and two premised on fellatio with the victim. She testified that Bennett physically forced her to perform fellatio on at least five occasions, and forced her to have sexual intercourse with him on at least five occasions. The victim's testimony describing the forced penetrations, together with her description of consistent acts of physical abuse by Bennett during the entirety of her approximately five-week residency in the cabin, permitted a rational jury to find beyond a reasonable doubt that he penetrated her by "overcom[ing] the victim through the actual application of physical force." Further, in light of her description of repeated oral and vaginal penetrations by Bennett during the several weeks she resided in the cabin, his repeated threats to kill or harm her or her family members, and her belief in the threats, a rational jury also could have found beyond a reasonable doubt that Bennett penetrated the victim by coercion, in violation of MCL 750.520b(1)(f)(ii). Also, the evidence was sufficient to establish beyond a reasonable doubt that Bennett committed at least four acts of CSC III in violation of MCL 750.520d(1)(c) and MCL 750.520a(i), given (1) the victim's testimony as to Bennett's multiple penetrations of her, (2) testimony by a deputy sheriff that Bennett conceded to knowing that the victim "was mentally challenged," and (3) the testimony of several witnesses. Ample evidence also established that defendant-Setty committed four counts of CSC III, two instances of "sexual intercourse" with the victim and two instances of fellatio by her. She testified that he placed his penis inside her vagina against her will "[m]ore than five times[,]" and forced her to perform oral sex "[m]ore than five times[.]" This testimony was sufficient to allow a rational jury to find beyond a reasonable doubt that Setty penetrated the victim at least four times by applying physical force. Also, in light of the victim's description of repeated oral and vaginal penetrations by Setty during the several weeks she resided in Bennett's cabin, Setty's repeated threats to kill or harm the victim or her family members, and her belief in the threats, a rational jury also could have found beyond a reasonable doubt that Setty penetrated the victim by coercion, in violation of MCL 750.520b(1)(f)(ii) and MCL 750.520d(1)(b). Further, the evidence was sufficient to establish beyond a reasonable doubt that Setty also committed at least four acts of CSC III in violation of MCL 750.520d(1)(c) and MCL 750.520a(i). Affirmed.

 

Issues: Motion to withdraw "no contest" pleas; "Dwelling" or "dwelling house" for purposes of second-degree home invasion; MCL 750.110a(1)(a) & (3); People v. Powell; Burning a dwelling house (MCL 750.72); People v. Reeves; State v. Williams (VT); Effect of the fact the house was being renovated and was "uninhabitable" under the Stille-DeRossett-Hall Single State Construction Code Act (the Construction Code) (MCL 125.1501 et seq.); Sentencing; Scoring of OV 9 at 10 points; People v. McLaughlin; People v. Hornsby; A "victim" under MCL 777.39 (MCL 777.39(2)(a)); People v. McGraw; Waiver; People v. Carter

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. England

e-Journal Number: 53388

Judge(s): Per Curiam – Wilder, O’Connell, and K.F. Kelly

 

Holding that the fact the house was temporarily unoccupied did not prevent a finding that it was a dwelling within the meaning of MCL 750.110a(3), and that the structure was a dwelling house under Reeves for purposes of MCL 750.72, the court concluded that the trial court did not abuse its discretion in denying the defendant's motion to withdraw his no contest pleas. The court also held that the trial court did not abuse its discretion in scoring OV 9 at 10 points. Thus, the court affirmed defendant's convictions and sentences. He pleaded no contest to burning of a dwelling house and second-degree home invasion. He was sentenced to 3-1/2 to 20 years in prison for burning of a dwelling house and 3-1/2 to 15 years for second-degree home invasion. He argued on appeal that he could not be guilty of second-degree home invasion or burning of a dwelling house because the structure he burned was not a "dwelling" or a "dwelling house." Pursuant to MCL 750.110a(1)(a), a "dwelling" means "a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter." Defendant contended that "the definition's requirement that the structure or shelter 'is used' places the focus on the nature of a structure at the time of the incident." However, in Powell, the court "looked beyond a structure's use at the immediate time of the incident in concluding that a structure that is temporarily vacant nonetheless remains a dwelling as long as the inhabitant intends to return." R purchased the house here as a foreclosure for approximately $25,000 and spent another $20,000 in renovating it. Also, before defendant burned the house, R had a land contract purchaser "lined up." Thus, like Powell, R's house was only temporarily vacant until the renovations were completed. There is no statutory definition of "dwelling house" for purposes of MCL 750.72, but the Michigan Supreme Court defined the term in Reeves as "any house intended to be occupied as a residence, and would include any such residence, even though not occupied by the complaining witness at the time of the burning." The Reeves court cited Williams as "an example of a structure that was merely unoccupied, and thus a dwelling house, at the time of its burning." The structure in Williams was not occupied for 1-1/2 years before the fire, but the owner was actively renovating it, desired to keep it, and visited it every day while it was vacant. The court concluded that this case was "analogous to Williams because the structure here was being renovated, and the structure was going to be habitable in the very near future." Defendant's claim that the house was legally uninhabitable under the Construction Code did not control this case. The court also rejected his argument that OV 9 was improperly scored because the firefighters arrived at the scene of the fire 9-1/2 hours after he set it.

 

Issues: Whether the defendant's right to counsel was violated because he did not effectively waive it when he sought to act in part as his own attorney; People v. Hicks; "Hybrid representation"; People v. Dennany; People v. Cromer; People v. Strickland; United States v. Mosely; Whether the Sixth Amendment implicitly guarantees the right of self-representation; Faretta v. California;  Const. 1963, art. 1. §§ 13 & 20; MCL 763.1; People v. Anderson; People v. Russell; People v. Williams; MCR 6.005(D); Whether defendant's waiver of counsel was "equivocal" because he lacked access to a law library; People v. Willing; MCL 769.26

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hudson

e-Journal Number: 53341

Judge(s): Per Curiam - Markey, Shapiro, and Ronayne Krause

 

The court held, inter alia, that the record showed that the trial court's decision to permit hybrid representation was within the range of reasonable and principled outcomes and was not an abuse of discretion. The court also concluded that any error of the trial court as to MCR 6.005(D)(1) did not merit reversal because it was harmless - the result was not "inconsistent with substantial justice," and it did not appear "after an examination of the entire cause . . . that the error complained of has resulted in a miscarriage of justice." After a jury trial, defendant was convicted of OUIL, third offense, malicious destruction of property, resisting and obstructing a police officer. On appeal, he argued that his right to counsel was violated because he did not effectively waive it when he sought to act, in part, as his own attorney. Although defendant had no constitutional right to a "hybrid" representation, the trial court's decision to allow him to act as co-counsel was reviewed for an abuse of discretion. "Whether to allow a defendant to participate in his own defense along with counsel in a ‘hybrid representation' is a matter committed to the sound discretion of the trial court." Because the assertion of the right to self-representation necessarily requires the abandonment of the right to counsel, trial courts must ensure that the accused does so knowingly and intelligently, and only after being informed of the dangers of self-representation. The right to self-representation and the right to counsel are mutually exclusive - "a defendant must elect to conduct his own defense voluntarily and intelligently, and must be made aware of the dangers and disadvantages of self-representation in order to proceed pro se." Due to the tension between these constitutional rights, the trial court must make certain findings before it permits a defendant to represent himself, which encompasses a waiver of the right to counsel. The defendant's request must be unequivocal, the trial court must determine if the defendant is knowingly, intelligently, and voluntarily waiving his or her right to counsel. Finally, the trial court must determine that the defendant's self-representation will not disrupt, unduly inconvenience or burden the trial court or the administration of its business. The trial court must comply with MCR 6.005(D). On appeal, defendant argued that his waiver of counsel was equivocal because he voiced concern that he lacked access to a law library. However, this issue was distinct from the proceedings regarding waiver of counsel. Thus, the fact that he raised this issue did not prevent a finding that his waiver was unequivocal. The trial court found that "defendant unequivocally has waived his right to counsel in part," noting that the appointed attorney "will be present through the trial and take those duties which the defense and he agrees will be assigned to him." The trial court also determined that defendant's waiver of counsel was knowing, voluntary, and intelligent, and that his self-representation would not unduly disrupt or inconvenience the court. Affirmed.

 

Issues: Ineffective assistance of defense counsel; People v. Johnson; People v. Armstrong; People v. Seals; People v. Payne; People v. Chapo; Whether counsel should have called an expert witness to testify as to forensic interviewing in child sex abuse cases; People v. Ackerman; Whether the trial court properly excluded on relevancy grounds testimony from one of defendant's former foster children; MRE 401, 404(a), and 405(b); People v. Watkins; People v. Harris; People v. Lukity

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. McKnight

e-Journal Number: 53346

Judge(s): Per Curiam - Murphy, O'Connell, and Whitbeck

 

The court held that based on the record defense counsel presented significant evidence that discredited the alleged victims' (defendant's adopted teenage daughters) testimony and suggested that the allegations against him were false. Also, it was clear that counsel's efforts at trial were at least partially successful, where defendant was acquitted of five of the six charges brought against him. "Considering the myriad evidence presented to the jury that advanced defense counsel's trial theory," the court could not conclude that defendant was deprived of a substantial defense simply because a psychological expert was not called to even further advance the defense theory. Defendant argued that he was denied the effective assistance of counsel, where his attorney failed to call to the stand a psychological expert in forensic interviewing techniques, patterns of disclosure, and typical behaviors associated with child sex abuse cases, which was needed to undermine the reliability of the victims' testimony. Defendant was accused of sexually abusing his two daughters. The charges consisted of multiple counts of both CSC I and II. At trial both victims testified that defendant had sexually abused them for several years. Defendant contended that they fabricated the allegations against him because they were angry at him for imposing strict rules as to cell phone use. The jury convicted him of committing one count of CSC II against the 14-year old victim. The court noted that defense counsel called four witnesses who impeached specific parts of the victims' testimony, and aggressively cross-examined the victims, highlighting inconsistencies in their testimony. Affirmed.

 

Issues: Whether the trial court properly denied defendant's request to introduce evidence that the victims were sexually abused by their father; Whether the Rape-Shield Act (the Act) (MCL 750.520j) applied; Right of confrontation; People v. Jones; People v. Breeding; People v. Arenda; People v. Morse; People v. Hackett; People v. Byrne; Ineffective assistance of counsel for failure to investigate and present certain exculpatory witness testimony and documents showing that (1) defendant was impotent and (2) his pubic hair was a different color than was testified to by one of the victims; People v. LeBlanc; Strickland v. Washington; People v. Carbin; Trial strategy; People v. Rockey; People v. Hoag; Whether the verdict was against the great weight of the evidence; People v. Stiller; People v. Lemmon; People v. Roper

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Shaver

e-Journal Number: 53377

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

The court held, inter alia, that the trial court properly ruled that evidence of the victims' father's conviction was inadmissible under the Act. Further, the court held that the trial court did not abuse its discretion by excluding evidence of the victims' father's sexual conduct as an explanation for their age-inappropriate sexual knowledge. The court also held that the defendant was not entitled to relief on the basis of a violation of his right of confrontation. A jury convicted defendant of two counts of CSC I (victim under 13, defendant 17 years or older) for sexually abusing his cousin's two children - JR and BR. Defendant argued that the trial court erroneously denied his request to introduce evidence that the victims were sexually abused by their father. He sought to present evidence that, about one month before the victims disclosed defendant's sexual conduct with them, the victims' father was convicted of CSC "similar" to these offenses. Defendant insisted that the Act did not apply to this evidence and that the exclusion of this evidence violated his right to confront the witnesses against him. The court held that the Act applied to the evidence. Further, the evidence did not fall into either of the exceptions for the admission of evidence of prior sexual conduct by the victims set forth in the Act. The prosecutor listed the victims' father as a witness but did not contest that the father had pleaded nolo contendere to one count of CSC I or defense counsel's representation that the father's conduct was similar to defendant's. The prosecutor specifically argued to the jury that the children's age-inappropriate sexual knowledge tended to establish defendant's guilt, inviting him to establish another source for that knowledge while knowing that the trial court had precluded him from doing so. "Exclusion of the evidence of the children's father's offenses against them violated defendant's right of confrontation if the father's acts were 'highly similar' to those underlying the charges against defendant here." During the evidentiary hearing on remand, no evidence was presented that the victim's father engaged in sexual conduct with JR. The trial court was presented with testimony that the father pleaded nolo contendere to a single count of CSC I for inserting his penis into BR's mouth. Defendant was charged with genital and anal penetration with BR and anal and oral penetration with JR. "On remand, the trial court found that the acts of oral penetration committed by the victims' father were not highly similar to defendant's sexual acts in this case." The court agreed. The father's oral penetration of BR was not highly similar to defendant's penetration of BR and JR. Rather, it was "relatively dissimilar sexual conduct," which was inadmissible as irrelevant.

 

Employment & Labor Law

 

This summary also appears under Real Property

 

Issues: Dispute over entitlement to a real estate sales commission; Order confirming an arbitration award; Saveski v. Tiseo Architects, Inc.; The Arbitration Act (MCL 600.5001 et seq.) and MCR 3.602; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; MCR 3.602(J)(2); DAIIE v. Gavin; Krist v. Krist; The "procuring cause doctrine"; Reed v. Kurdziel; Whether the trial court properly modified the arbitration award by changing the respondent from plaintiff-Wendy Sabo to Sabo & Associates; MCR 3.602(K)(2)(a); Dresselhouse v. Chrysler Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Wendy Sabo & Assocs., Inc. v. American Assocs., Inc.

e-Journal Number: 53386

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

 

Because, inter alia, there was nothing on the face of the arbitration award to indicate that the arbitrators did not apply the correct law, the court declined to vacate or otherwise modify the award. In this dispute over entitlement to a real estate sales commission, plaintiffs-Wendy Sabo & Associates, Inc., and Wendy Sabo, individually, appealed as of right from an order confirming an arbitration award of $18,900, in favor of defendants-American Associates, Inc., and Randall Haney. Plaintiffs argued that the arbitration award should have been vacated by the trial court under the authority of subsection (c), on the basis that the arbitrator exceeded his power or authority by acting in contravention of controlling principles of law. Plaintiffs claimed that it was legally impossible for someone else other than Sabo to have been the "procuring cause" in getting the property sold to the eventual buyers. The court disagreed with plaintiffs' characterization of the issue. Under the procuring cause doctrine an "agent is entitled to recover his commission whether or not he has personally concluded and completed the [real estate] sale, it being sufficient if his efforts were the procuring cause of the sale." While plaintiffs couched their impossibility argument as a legal error, at its essence, their claim was a challenge to the arbitrators' factual findings. In arguing that the evidence established that Sabo was the procuring cause and not defendants' agent, plaintiffs proffered precisely the type of factual challenge that was not permitted in a review of an arbitration award. Affirmed.

 

Family Law

 

This summary also appears under Personal Protection Orders

 

Issues: Whether the referee had the authority to conduct PPO hearings; The issue of the propriety of the initial PPO entry was not necessarily moot; Hayford v. Hayford; Mitcham v. Detroit; Extensions of the PPO; B P 7 v. Bureau of State Lottery; Statutory interpretation and construction of court rules; Ballard v. Ypsilanti Twp.; The Friend of the Court Act (MCL 552.501 et seq.); MCL 552.507; MCL 552.507(2)(a); "Domestic relations matter"; MCL 552.502(m); State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; The Domestic Violence Prevention and Treatment Act (MCL 400.1501 et seq.); MCL 750.81a(2); MCR 3.215 implements MCL 552.507; MCR 3.201(A); "Relate"; Michigan Mut. Ins. Co. v. Indiana Ins. Co.; MCR 3.706(C)(1); MCR 3.706(C)(3); MCR 3.201(A)(2); MCR 7.215(C)(1); People v. Green; Whether reliance on Baker v. Holloway (Unpub.) was misplaced; Whether the trial court unconstitutionally delegated its authority; Underwood v. McDuffee; Whether the trial court's failure to hold a hearing within 14 days of a motion to terminate the PPO should automatically result in dismissal of the PPO; MCL 600.2950(14); MCR 3.707(A)(2); In re Forfeiture of Bail Bond (On Remand); Whether the petition for an "ex parte" PPO was "facially invalid"; Pickering v. Pickering; Claim that the order granting the 1/27/10 PPO did not contain the reasons for the issuance of the order

Court: Michigan Court of Appeals (Published)

Case Name: Visser v. Visser

e-Journal Number: 53528

Judge(s): Ronayne Krause and Markey; Dissent - Shapiro

 

The court held, inter alia, that the issue of the propriety of the initial PPO entry was not necessarily moot, a referee is authorized to conduct a PPO hearing, and the original PPO was properly issued. The petitioner-wife filed a petition for a "domestic relationship" PPO against the respondent-husband on 1/27/10. The petition was granted, and orders extending the PPO were later entered on 7/15/10 and 1/18/11. The PPO expired on 7/19/11. Respondent filed motions to terminate each order. His first motion was denied after a hearing. The latter motions were denied without hearings. The court held that "an issue that will continue to have collateral consequences is not moot, and this Court has previously held that an expired PPO may, in fact, have such collateral consequences." The court noted that respondent did not actually articulate what collateral consequences are likely to occur. Ordinarily, the court did not believe it was its duty to contemplate potential collateral consequences for a party. But the court did not doubt that having a PPO on one's record may have some adverse consequences. Any of the challenges respondent made to the extensions of the PPO, as distinct from its initial entry, were moot. The last extension of the PPO expired, and the court was unable to conceive of any possible collateral consequences that respondent might suffer arising solely out of the duration of the PPO. Thus, there was no relief the court could provide to respondent arising out of any possible impropriety in the extensions. Because they were moot, the court declined to consider any of respondent's arguments pertaining to the extensions. The court held that "it is clear, bordering on axiomatic, that PPO proceedings between individuals who have a minor child in common 'have reference or relation' to custody or visitation proceedings." The court further held that MCR 3.700 "plainly references the custody of minor children and appears to recognize that a PPO may relate to an already entered custody or parenting time order. This interpretation is further reinforced by MCR 3.706(C)(2)." "Further, MCR 3.706(C)(3) provides that a PPO 'takes precedence over any existing custody or parenting time order until' the PPO expires or until 'the court having jurisdiction over the custody or parenting time order modifies the custody or parenting time order to accommodate the conditions of the personal protection order.'" The court held that the "foregoing language appears to establish that a PPO proceeding may relate to a matter involving custody or visitation." Affirmed.

 

Litigation

 

This summary also appears under Municipal

 

Issues: Res judicata; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; County Rd. Ass'n of MI v. Governor; Odom v. Wayne Cnty.; Herman v. Detroit; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; Adair v. Michigan; Whether defendants were immune from liability as to the federal law claims brought under 42 USC § 1983; Armstrong v. Ypsilanti Charter Twp.; Governmental immunity as to the state law claims; MCL 691.1407(5); Money damages; Jones v. Powell; Equitable relief; Duncan v. Michigan; Due process; "Takings" claim; Electro-Tech., Inc. v. H F Campbell Co.; State mandamus; Mercer v. Lansing; Inadequate briefing; Grahovac v. Munising Twp.; Waiver; Mudge v. Macomb Cnty.; Whether defendants were acting within the scope of their authority in calling for demolition absent an option to repair and in authorizing the commencement of a lawsuit against plaintiffs; Ross v. Consumers Power Co. (On Rehearing); Whether the city council members were acting within their legislative authority relative to the challenged conduct or were instead acting jointly as a board of appeals; Brighton Code of Ordinances (BCO); Intentional infliction of emotional distress (IIED)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bonner v. Rowell

e-Journal Number: 53380

Judge(s): Per Curiam – Markey and Shapiro; Concurring in part, Dissenting in part - Murray

 

The court, inter alia, vacated the trial court's order granting the defendants summary disposition based on res judicata as to the federal law claims, including the conspiracy count in the complaint as it related to the allegations that defendants conspired to commit inverse condemnation or a regulatory taking in violation of the Fifth Amendment. The case stemmed from an ongoing dispute between plaintiffs and the city of Brighton as to the city's efforts to demolish certain structures plaintiffs owned that defendant-Rowell, the city's building and code enforcement official, found to be "unsafe" under the BCO. This appeal pertained to a an action plaintiffs filed against various individuals, including Rowell, the city manager, city council members, and the city's mayor, who was also a member of the council. Plaintiffs went beyond the earlier suits that involved only themselves and the city, initiating this case directly against city personnel who actually engaged in the conduct and decision-making that plaintiffs deemed unlawful. Plaintiffs alleged various state and federal constitutional violations in their complaint, along with additional state law claims. On defendants' motion for summary disposition, the trial court ruled that they were protected by governmental immunity under MCL 691.1407(5) as to all of plaintiffs' state law claims and that the federal law claims were barred by the doctrine of res judicata arising out of a judgment in the earlier litigation that was based on acceptance of case evaluation. Plaintiffs argued that the trial court, when it invoked the doctrine of res judicata, relied on a judgment that was entered after the parties accepted case evaluation in the earlier-filed litigation. However, the trial court later vacated that judgment and thus, the doctrine was inapplicable. The court noted that plaintiffs moved to set aside the summary disposition order after the appeal was filed in light of the events that transpired, but the trial court declined to entertain the motion on jurisdictional grounds given that the case was pending in the court. There was "no dispute that, because of extensive confusion, misunderstandings, mistakes, and legal errors relative to the case evaluation and the award," the trial court later vacated the case evaluation proceedings and award in the consolidated actions, along with the judgment that was based on acceptance of case evaluation. Thus, there was no decision on the merits and the prior judgment could no longer support the application of res judicata principles. The court affirmed the trial court's order granting defendants summary disposition on plaintiffs' gross negligence, IIED, tortious interference with a business expectancy, and procedural and substantive due process claims under the Michigan Constitution to the extent money damages were requested. The court also vacated the trial court's order granting defendants summary disposition as to plaintiffs' mandamus count, their procedural and substantive due process claims under the Michigan Constitution to the extent equitable relief was requested, and their conspiracy claim as it related to a taking under the Michigan Constitution. Affirmed in part, vacated in part, and remanded.

 

This summary also appears under Malpractice

 

Issues: Medical malpractice; Motions for directed verdict and JNOV; Sufficiency of the "causation" evidence to connect the injured plaintiff's medical expenses to the defendant-Advantage Health Physicians' negligence; MCL 600.2912a(2); "Proximate cause"; Skinner v. Square D Co.; Craig ex rel Craig v. Oakwood Hosp.; Damages in a medical malpractice case; Taylor v. Kent Radiology; Thorn v. Mercy Mem'l Hosp. Corp.; MCL 600.2945c; "Economic losses"; Plaintiff's medical expenses from her hospitalization at another hospital; Whether the jury's questions to the trial court during deliberations showed a lack of evidence as to economic damages; Whether the jury's award should have been set off by the amount negotiated as a discount by plaintiff's insurer; MCL 600.6303; Haberkorn v. Chrysler Corp. (Two Cases); Zdrojewski v. Murphy; Whether any amount awarded to plaintiff for medical expenses over the amount actually paid by her insurer (the amount "written off") was a "collateral source"; Bozeman v. State (LA); Statutory interpretation; Ligons v. Crittenton Hosp.; Rose Hill Ctr., Inc. v. Holly Twp.; Adult respiratory distress syndrome (ARDS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Detary v. Advantage Health Physicians, PC

e-Journal Number: 53360

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

 

The court held that there was sufficient evidence that the injured plaintiff was at the second hospital (PHH) solely due to defendant-Advantage Health Physicians' "failure to diagnose and treat her stomach prolapse." The court concluded that a reasonable jury could find that any and all expenses incurred at PHH "were attributable to defendant's negligence." The court also rejected defendant's argument that the amount written off by plaintiff's healthcare providers was a "collateral source" and that the jury's verdict should be set off by this amount. Plaintiff went to the first hospital's (SMH) ER on 4/1/06 due to vomiting and severe abdominal pain. She described a sharp, burning pain that increased when she ate, and stated that she had a surgical history of a lap band procedure. She vomited blood and blood clots while in the ER, was admitted as a patient, and evaluated by doctors employed by defendant over the next few days. They came up with several potential diagnoses, none of which included a potential complication of her lap band. One of plaintiff's family members contacted the doctor who performed her lap band surgery, B, and he requested that plaintiff be transferred to PHH so that he could assume her care. Upon her arrival, B performed an abdominal x-ray, which showed a prolapse of her stomach and a change in orientation of the lap band. Part of her stomach suffered from necrosis due to the prolapse and lack of blood flow to the area. Plaintiff underwent surgery to remove a portion of her stomach and, post operatively, developed septic shock, ARDS, and hypotension. She remained hospitalized for 48 days and continued to suffer from ARDS. Defendant argued on appeal that the trial court erred in denying its motions for directed verdict and JNOV because plaintiff presented insufficient evidence connecting her medical expenses to defendant's negligence. The court disagreed, concluding that based on the medical experts' testimony, "but for defendant's failure to diagnose plaintiff's prolapsed stomach, caused by her misplaced lap band, plaintiff would not have suffered ischemia and later necrosis of her stomach." All of the medical experts who gave an opinion as to when the prolapse occurred agreed that plaintiff presented at SMH with a prolapse. All who gave opinions also agreed that her "symptoms were consistent with a prolapse and that when a patient provides a history of lap band surgery and presents with vomiting blood and severe abdominal pain, the doctor must consider a lap band complication as a part of the differential diagnosis." The majority of the experts also agreed that ischemia is a gradual process that was progressing over the 2 days that plaintiff was in defendant's care and while they were not considering her lap band or a prolapse as a potential diagnosis, and that the necrosis likely began late on 4/2/06 to early on 4/3/06. B testified that had plaintiff been in his care 24 to 36 hours before 4/3/06, he "quite possibly" could have prevented the necrosis and her later ARDS. Dr. S "similarly testified that if defendant's employees had initially considered prolapse as a potential source of plaintiff's problems, it would not have progressed to the necrosis and that both the necrosis and later infectious complications were preventable within a reasonable probability." The court affirmed the jury's verdict for plaintiff.

 

This summary also appears under Contracts

 

Issues: Motion to vacate the arbitration award; Whether the trial court properly vacated the arbitration award on the ground that the arbitrator exceeded her powers by failing to apply the statute of limitations provided in MCL 600.5839(1); Detroit Auto Inter-Ins. Exch. v. Gavin; Donegan v. Michigan Mut. Ins. Co.; MCR 3.602(J)(2)(c); Miller-Davis Co. v. Ahrens Constr., Inc.; City of Ann Arbor v. AFSCME Local 369; Dohanyos v. Detrex Corp.; MCL 600.5855; Whether the trial court properly held that "it is simply not 'feasible' that the arbitrator's award could be 'explained' on" the basis of fraudulent concealment; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: James D. Compo, Inc. v. Trevis

e-Journal Number: 53383

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

 

The court held, inter alia, that the trial court erred in vacating the arbitration award on the ground that MCL 600.5839 barred defendants' claim. Thus, the court reversed the order granting plaintiff's motion to vacate the arbitration award and remanded for an entry of the arbitration award. Defendants argued that the trial court erred when it vacated the arbitration award on the ground that the arbitrator exceeded her powers by failing to apply the statute of limitations provided in MCL 600.5839(1). Specifically, defendants argued that the trial court erred because that particular statute of limitations was inapplicable to their breach of contract claim. The court agreed. After the arbitrator rejected plaintiff's claim that the six-year statute of limitations in MCL 600.5839(1)(a) barred defendants' claim, plaintiff brought this same argument to the trial court. However, the Supreme Court recently concluded "that MCL 600.5839(1) is limited to tort actions. It does not apply to breach of contract actions." Thus, because this dispute concerned "a breach of contract claim, not a tort claim, the arbitrator did not make a substantial legal error by finding that MCL 600.5839(1) did not bar defendants' claim." On appeal, plaintiff argued that there was an alternative ground for finding defendants' claim untimely because, although distinct from MCL 600.5839, the applicable statute of limitations for breach of contract found in MCL 600.5807(8) was six years also. However, no error was evident from the face of the arbitration award. There was no separate record indicating the arbitrator's findings of fact and law. Also, that six-year limitations period is not absolute because other statutory provisions allow for the tolling of that period. Thus, even if it was evident that defendants' claim was filed after six years from when any breach accrued, other facts could nonetheless make the claim timely. The trial court stated that it was "simply not 'feasible' that the arbitrator's award could be 'explained' on" the basis of fraudulent concealment. However, the "trial court delved into an analysis of whether the arbitrator's award was supported by substantial evidence, despite the fact that a reviewing court may not review an arbitrator's factual findings or decision on the merits."

 

Malpractice

 

This summary also appears under Litigation

 

Issues: Medical malpractice; Motions for directed verdict and JNOV; Sufficiency of the "causation" evidence to connect the injured plaintiff's medical expenses to the defendant-Advantage Health Physicians' negligence; MCL 600.2912a(2); "Proximate cause"; Skinner v. Square D Co.; Craig ex rel Craig v. Oakwood Hosp.; Damages in a medical malpractice case; Taylor v. Kent Radiology; Thorn v. Mercy Mem'l Hosp. Corp.; MCL 600.2945c; "Economic losses"; Plaintiff's medical expenses from her hospitalization at another hospital; Whether the jury's questions to the trial court during deliberations showed a lack of evidence as to economic damages; Whether the jury's award should have been set off by the amount negotiated as a discount by plaintiff's insurer; MCL 600.6303; Haberkorn v. Chrysler Corp. (Two Cases); Zdrojewski v. Murphy; Whether any amount awarded to plaintiff for medical expenses over the amount actually paid by her insurer (the amount "written off") was a "collateral source"; Bozeman v. State (LA); Statutory interpretation; Ligons v. Crittenton Hosp.; Rose Hill Ctr., Inc. v. Holly Twp.; Adult respiratory distress syndrome (ARDS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Detary v. Advantage Health Physicians, PC

e-Journal Number: 53360

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

 

The court held that there was sufficient evidence that the injured plaintiff was at the second hospital (PHH) solely due to defendant-Advantage Health Physicians' "failure to diagnose and treat her stomach prolapse." The court concluded that a reasonable jury could find that any and all expenses incurred at PHH "were attributable to defendant's negligence." The court also rejected defendant's argument that the amount written off by plaintiff's healthcare providers was a "collateral source" and that the jury's verdict should be set off by this amount. Plaintiff went to the first hospital's (SMH) ER on 4/1/06 due to vomiting and severe abdominal pain. She described a sharp, burning pain that increased when she ate, and stated that she had a surgical history of a lap band procedure. She vomited blood and blood clots while in the ER, was admitted as a patient, and evaluated by doctors employed by defendant over the next few days. They came up with several potential diagnoses, none of which included a potential complication of her lap band. One of plaintiff's family members contacted the doctor who performed her lap band surgery, B, and he requested that plaintiff be transferred to PHH so that he could assume her care. Upon her arrival, B performed an abdominal x-ray, which showed a prolapse of her stomach and a change in orientation of the lap band. Part of her stomach suffered from necrosis due to the prolapse and lack of blood flow to the area. Plaintiff underwent surgery to remove a portion of her stomach and, post operatively, developed septic shock, ARDS, and hypotension. She remained hospitalized for 48 days and continued to suffer from ARDS. Defendant argued on appeal that the trial court erred in denying its motions for directed verdict and JNOV because plaintiff presented insufficient evidence connecting her medical expenses to defendant's negligence. The court disagreed, concluding that based on the medical experts' testimony, "but for defendant's failure to diagnose plaintiff's prolapsed stomach, caused by her misplaced lap band, plaintiff would not have suffered ischemia and later necrosis of her stomach." All of the medical experts who gave an opinion as to when the prolapse occurred agreed that plaintiff presented at SMH with a prolapse. All who gave opinions also agreed that her "symptoms were consistent with a prolapse and that when a patient provides a history of lap band surgery and presents with vomiting blood and severe abdominal pain, the doctor must consider a lap band complication as a part of the differential diagnosis." The majority of the experts also agreed that ischemia is a gradual process that was progressing over the 2 days that plaintiff was in defendant's care and while they were not considering her lap band or a prolapse as a potential diagnosis, and that the necrosis likely began late on 4/2/06 to early on 4/3/06. B testified that had plaintiff been in his care 24 to 36 hours before 4/3/06, he "quite possibly" could have prevented the necrosis and her later ARDS. Dr. S "similarly testified that if defendant's employees had initially considered prolapse as a potential source of plaintiff's problems, it would not have progressed to the necrosis and that both the necrosis and later infectious complications were preventable within a reasonable probability." The court affirmed the jury's verdict for plaintiff.

 

Municipal

 

This summary also appears under Real Property

 

Issues: Condemnation action under the Uniform Condemnation Procedures Act (UCPA)(MCL 213.51 et seq.); Whether plaintiff's taking of defendant-McDonald's property for the easement by eminent domain affected any compensable property interest retained by the intervening defendant-Milford Road East Development Associates, LLC (MRED); Adams Outdoor Adver. v. East Lansing; The related documents (the Master Deed and Bylaws); Rossow v. Brentwood Farms Dev., Inc.; Review; City of Novi v. Robert Adell Children's Funded Trust; Whether the Bylaws granted co-owners (individual unit owners like McDonald's) the exclusive right to compensation in eminent domain cases; MCL 559.233(3); Whether since MRED's interest in improvements and utilities was subject to plaintiff's approval the interest was not cognizable in an eminent domain case; Identification of the parcel at issue; MCL 213.51(g); A "parcel" under the UCPA contains 4 factors; The value of the property interest at issue; The Bald Mountain opinion - "loss of market advantage" and "outpositioning"; Board of Cnty. Rd. Comm'rs v. Bald Mountain W. (Unpub.)

Court: Michigan Supreme Court

Case Name: Charter Twp. of Lyon v. McDonald's USA, L.L.C.

e-Journal Number: 53526

Judge(s): Young, Jr.; Concurring in the result – Cavanagh, M. Kelly, and Hathaway; Dissent – Zahra, Markman, and M.B. Kelly

 

In an order, after granting leave to appeal and considering the parties' briefs and oral argument, the court vacated part II.B and the first sentence of part IV of the Court of Appeals majority opinion in a published case (see e-Journal # 48906 in the 5/26/11 edition), which were unnecessary to the decision in the case. The court denied the appellant-MRED's request for relief in all other respects.

The dissent would reverse the Court of Appeals majority decision and reinstate the trial court's award to MRED of just compensation under the UCPA in the amount of $1.5 million. The dissent found the court's order "troubling for several reasons."

 

This summary also appears under Litigation

 

Issues: Res judicata; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; County Rd. Ass'n of MI v. Governor; Odom v. Wayne Cnty.; Herman v. Detroit; Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc.; Adair v. Michigan; Whether defendants were immune from liability as to the federal law claims brought under 42 USC § 1983; Armstrong v. Ypsilanti Charter Twp.; Governmental immunity as to the state law claims; MCL 691.1407(5); Money damages; Jones v. Powell; Equitable relief; Duncan v. Michigan; Due process; "Takings" claim; Electro-Tech., Inc. v. H F Campbell Co.; State mandamus; Mercer v. Lansing; Inadequate briefing; Grahovac v. Munising Twp.; Waiver; Mudge v. Macomb Cnty.; Whether defendants were acting within the scope of their authority in calling for demolition absent an option to repair and in authorizing the commencement of a lawsuit against plaintiffs; Ross v. Consumers Power Co. (On Rehearing); Whether the city council members were acting within their legislative authority relative to the challenged conduct or were instead acting jointly as a board of appeals; Brighton Code of Ordinances (BCO); Intentional infliction of emotional distress (IIED)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bonner v. Rowell

e-Journal Number: 53380

Judge(s): Per Curiam – Markey and Shapiro; Concurring in part, Dissenting in part - Murray

 

The court, inter alia, vacated the trial court's order granting the defendants summary disposition based on res judicata as to the federal law claims, including the conspiracy count in the complaint as it related to the allegations that defendants conspired to commit inverse condemnation or a regulatory taking in violation of the Fifth Amendment. The case stemmed from an ongoing dispute between plaintiffs and the city of Brighton as to the city's efforts to demolish certain structures plaintiffs owned that defendant-Rowell, the city's building and code enforcement official, found to be "unsafe" under the BCO. This appeal pertained to a an action plaintiffs filed against various individuals, including Rowell, the city manager, city council members, and the city's mayor, who was also a member of the council. Plaintiffs went beyond the earlier suits that involved only themselves and the city, initiating this case directly against city personnel who actually engaged in the conduct and decision-making that plaintiffs deemed unlawful. Plaintiffs alleged various state and federal constitutional violations in their complaint, along with additional state law claims. On defendants' motion for summary disposition, the trial court ruled that they were protected by governmental immunity under MCL 691.1407(5) as to all of plaintiffs' state law claims and that the federal law claims were barred by the doctrine of res judicata arising out of a judgment in the earlier litigation that was based on acceptance of case evaluation. Plaintiffs argued that the trial court, when it invoked the doctrine of res judicata, relied on a judgment that was entered after the parties accepted case evaluation in the earlier-filed litigation. However, the trial court later vacated that judgment and thus, the doctrine was inapplicable. The court noted that plaintiffs moved to set aside the summary disposition order after the appeal was filed in light of the events that transpired, but the trial court declined to entertain the motion on jurisdictional grounds given that the case was pending in the court. There was "no dispute that, because of extensive confusion, misunderstandings, mistakes, and legal errors relative to the case evaluation and the award," the trial court later vacated the case evaluation proceedings and award in the consolidated actions, along with the judgment that was based on acceptance of case evaluation. Thus, there was no decision on the merits and the prior judgment could no longer support the application of res judicata principles. The court affirmed the trial court's order granting defendants summary disposition on plaintiffs' gross negligence, IIED, tortious interference with a business expectancy, and procedural and substantive due process claims under the Michigan Constitution to the extent money damages were requested. The court also vacated the trial court's order granting defendants summary disposition as to plaintiffs' mandamus count, their procedural and substantive due process claims under the Michigan Constitution to the extent equitable relief was requested, and their conspiracy claim as it related to a taking under the Michigan Constitution. Affirmed in part, vacated in part, and remanded.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Plaintiffs' claims alleging "defamation per se" based on the defendant's accusations of criminal conduct; Review; Maiden v. Rozwood; Kevorkian v. American Med. Ass'n; Burden v. Elias Bros. Big Boy Rest.; Ireland v. Edwards; Rouch v. Enquirer & News of Battle Creek MI; Whether the plaintiffs were "public officials" for purposes of the alleged defamatory statements; Mitan v. Campbell; Where the plaintiff is a public official or a public figure the defendant is entitled to a qualified privilege in the form of a heightened standard that must be met by the plaintiff; J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1; MCL 600.2911(6); New York Times v. Sullivan; Tomkiewicz v. Detroit News, Inc.; Peterfish v. Frantz; Rosenblatt v. Baer; Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc.; Whether plaintiffs' claims were devoid of legal merit; MCL 600.2591(3)(a); Lakeshore Cmty. Hosp., Inc. v. Perry; Whether "truth" is an absolute defense to any defamation claim; Porter v. Royal Oak

Court: Michigan Court of Appeals (Unpublished)

Case Name: Martz v. Bower

e-Journal Number: 53299

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

 

The court held that the trial court appropriately granted the defendant summary disposition, noting that appellate courts are responsible for ensuring that free speech rights are adequately protected. The court also held that the plaintiffs' actions were "devoid of any legal merit" and not only did the trial court properly grant defendant summary disposition, but it would have been well within its discretion to sanction plaintiffs for vexatious litigation where all of the conditions of MCL 600.2591 were met in this case. The plaintiffs' complaints sought to "chill citizen participation in matters concerning local governance." The court concluded that this "lawsuit and the behavior of the individuals involved was 'obnoxious,' 'outrageous,' 'ridiculous,' and 'shameful,'" noting that such terms are not actionable because they they expressions of opinion and "truth is an absolute defense to any defamation claim." Plaintiffs brought this action for slander based on statements defendant made at an 11/12/09 public meeting of the Township Board. During the meeting, defendant made comments about a former township building and zoning administrator, a former township attorney, and former police chief. The parties submitted cross-motions for summary disposition. Plaintiffs pointed out that defendant accused them of illegal conduct at the public meeting, but then later conceded in her deposition that she did not think they did anything "illegal." The trial court granted defendant's motion for summary disposition finding that at some point in time plaintiffs were "public officials" and "public figures" in the township. Also the trial court reasoned that they were required to prove actual malice by clear and convincing evidence and that their complaint did not include those allegations. Further, the trial court held that defendant's statements were protected by the First Amendment and were exaggerated language used to express opinions on a matter of public concern. The trial court entered an order denying plaintiffs' motion and granting defendant's counter-motion. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Municipal

 

Issues: Plaintiffs' claims alleging "defamation per se" based on the defendant's accusations of criminal conduct; Review; Maiden v. Rozwood; Kevorkian v. American Med. Ass'n; Burden v. Elias Bros. Big Boy Rest.; Ireland v. Edwards; Rouch v. Enquirer & News of Battle Creek MI; Whether the plaintiffs were "public officials" for purposes of the alleged defamatory statements; Mitan v. Campbell; Where the plaintiff is a public official or a public figure the defendant is entitled to a qualified privilege in the form of a heightened standard that must be met by the plaintiff; J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1; MCL 600.2911(6); New York Times v. Sullivan; Tomkiewicz v. Detroit News, Inc.; Peterfish v. Frantz; Rosenblatt v. Baer; Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc.; Whether plaintiffs' claims were devoid of legal merit; MCL 600.2591(3)(a); Lakeshore Cmty. Hosp., Inc. v. Perry; Whether "truth" is an absolute defense to any defamation claim; Porter v. Royal Oak

Court: Michigan Court of Appeals (Unpublished)

Case Name: Martz v. Bower

e-Journal Number: 53299

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

 

The court held that the trial court appropriately granted the defendant summary disposition, noting that appellate courts are responsible for ensuring that free speech rights are adequately protected. The court also held that the plaintiffs' actions were "devoid of any legal merit" and not only did the trial court properly grant defendant summary disposition, but it would have been well within its discretion to sanction plaintiffs for vexatious litigation where all of the conditions of MCL 600.2591 were met in this case. The plaintiffs' complaints sought to "chill citizen participation in matters concerning local governance." The court concluded that this "lawsuit and the behavior of the individuals involved was 'obnoxious,' 'outrageous,' 'ridiculous,' and 'shameful,'" noting that such terms are not actionable because they they expressions of opinion and "truth is an absolute defense to any defamation claim." Plaintiffs brought this action for slander based on statements defendant made at an 11/12/09 public meeting of the Township Board. During the meeting, defendant made comments about a former township building and zoning administrator, a former township attorney, and former police chief. The parties submitted cross-motions for summary disposition. Plaintiffs pointed out that defendant accused them of illegal conduct at the public meeting, but then later conceded in her deposition that she did not think they did anything "illegal." The trial court granted defendant's motion for summary disposition finding that at some point in time plaintiffs were "public officials" and "public figures" in the township. Also the trial court reasoned that they were required to prove actual malice by clear and convincing evidence and that their complaint did not include those allegations. Further, the trial court held that defendant's statements were protected by the First Amendment and were exaggerated language used to express opinions on a matter of public concern. The trial court entered an order denying plaintiffs' motion and granting defendant's counter-motion. Affirmed.

 

Personal Protection Orders

 

This summary also appears under Family Law

 

Issues: Whether the referee had the authority to conduct PPO hearings; The issue of the propriety of the initial PPO entry was not necessarily moot; Hayford v. Hayford; Mitcham v. Detroit; Extensions of the PPO; B P 7 v. Bureau of State Lottery; Statutory interpretation and construction of court rules; Ballard v. Ypsilanti Twp.; The Friend of the Court Act (MCL 552.501 et seq.); MCL 552.507; MCL 552.507(2)(a); "Domestic relations matter"; MCL 552.502(m); State Farm Fire & Cas. Co. v. Old Republic Ins. Co.; The Domestic Violence Prevention and Treatment Act (MCL 400.1501 et seq.); MCL 750.81a(2); MCR 3.215 implements MCL 552.507; MCR 3.201(A); "Relate"; Michigan Mut. Ins. Co. v. Indiana Ins. Co.; MCR 3.706(C)(1); MCR 3.706(C)(3); MCR 3.201(A)(2); MCR 7.215(C)(1); People v. Green; Whether reliance on Baker v. Holloway (Unpub.) was misplaced; Whether the trial court unconstitutionally delegated its authority; Underwood v. McDuffee; Whether the trial court's failure to hold a hearing within 14 days of a motion to terminate the PPO should automatically result in dismissal of the PPO; MCL 600.2950(14); MCR 3.707(A)(2); In re Forfeiture of Bail Bond (On Remand); Whether the petition for an "ex parte" PPO was "facially invalid"; Pickering v. Pickering; Claim that the order granting the 1/27/10 PPO did not contain the reasons for the issuance of the order

Court: Michigan Court of Appeals (Published)

Case Name: Visser v. Visser

e-Journal Number: 53528

Judge(s): Ronayne Krause and Markey; Dissent - Shapiro

 

The court held, inter alia, that the issue of the propriety of the initial PPO entry was not necessarily moot, a referee is authorized to conduct a PPO hearing, and the original PPO was properly issued. The petitioner-wife filed a petition for a "domestic relationship" PPO against the respondent-husband on 1/27/10. The petition was granted, and orders extending the PPO were later entered on 7/15/10 and 1/18/11. The PPO expired on 7/19/11. Respondent filed motions to terminate each order. His first motion was denied after a hearing. The latter motions were denied without hearings. The court held that "an issue that will continue to have collateral consequences is not moot, and this Court has previously held that an expired PPO may, in fact, have such collateral consequences." The court noted that respondent did not actually articulate what collateral consequences are likely to occur. Ordinarily, the court did not believe it was its duty to contemplate potential collateral consequences for a party. But the court did not doubt that having a PPO on one's record may have some adverse consequences. Any of the challenges respondent made to the extensions of the PPO, as distinct from its initial entry, were moot. The last extension of the PPO expired, and the court was unable to conceive of any possible collateral consequences that respondent might suffer arising solely out of the duration of the PPO. Thus, there was no relief the court could provide to respondent arising out of any possible impropriety in the extensions. Because they were moot, the court declined to consider any of respondent's arguments pertaining to the extensions. The court held that "it is clear, bordering on axiomatic, that PPO proceedings between individuals who have a minor child in common 'have reference or relation' to custody or visitation proceedings." The court further held that MCR 3.700 "plainly references the custody of minor children and appears to recognize that a PPO may relate to an already entered custody or parenting time order. This interpretation is further reinforced by MCR 3.706(C)(2)." "Further, MCR 3.706(C)(3) provides that a PPO 'takes precedence over any existing custody or parenting time order until' the PPO expires or until 'the court having jurisdiction over the custody or parenting time order modifies the custody or parenting time order to accommodate the conditions of the personal protection order.'" The court held that the "foregoing language appears to establish that a PPO proceeding may relate to a matter involving custody or visitation." Affirmed.

 

Real Property

 

This summary also appears under Municipal

 

Issues: Condemnation action under the Uniform Condemnation Procedures Act (UCPA)(MCL 213.51 et seq.); Whether plaintiff's taking of defendant-McDonald's property for the easement by eminent domain affected any compensable property interest retained by the intervening defendant-Milford Road East Development Associates, LLC (MRED); Adams Outdoor Adver. v. East Lansing; The related documents (the Master Deed and Bylaws); Rossow v. Brentwood Farms Dev., Inc.; Review; City of Novi v. Robert Adell Children's Funded Trust; Whether the Bylaws granted co-owners (individual unit owners like McDonald's) the exclusive right to compensation in eminent domain cases; MCL 559.233(3); Whether since MRED's interest in improvements and utilities was subject to plaintiff's approval the interest was not cognizable in an eminent domain case; Identification of the parcel at issue; MCL 213.51(g); A "parcel" under the UCPA contains 4 factors; The value of the property interest at issue; The Bald Mountain opinion - "loss of market advantage" and "outpositioning"; Board of Cnty. Rd. Comm'rs v. Bald Mountain W. (Unpub.)

Court: Michigan Supreme Court

Case Name: Charter Twp. of Lyon v. McDonald's USA, L.L.C.

e-Journal Number: 53526

Judge(s): Young, Jr.; Concurring in the result – Cavanagh, M. Kelly, and Hathaway; Dissent – Zahra, Markman, and M.B. Kelly

 

In an order, after granting leave to appeal and considering the parties' briefs and oral argument, the court vacated part II.B and the first sentence of part IV of the Court of Appeals majority opinion in a published case (see e-Journal # 48906 in the 5/26/11 edition), which were unnecessary to the decision in the case. The court denied the appellant-MRED's request for relief in all other respects.

The dissent would reverse the Court of Appeals majority decision and reinstate the trial court's award to MRED of just compensation under the UCPA in the amount of $1.5 million. The dissent found the court's order "troubling for several reasons."

 

This summary also appears under Employment & Labor Law

 

Issues: Dispute over entitlement to a real estate sales commission; Order confirming an arbitration award; Saveski v. Tiseo Architects, Inc.; The Arbitration Act (MCL 600.5001 et seq.) and MCR 3.602; Port Huron Area Sch. Dist. v. Port Huron Educ. Ass'n; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; MCR 3.602(J)(2); DAIIE v. Gavin; Krist v. Krist; The "procuring cause doctrine"; Reed v. Kurdziel; Whether the trial court properly modified the arbitration award by changing the respondent from plaintiff-Wendy Sabo to Sabo & Associates; MCR 3.602(K)(2)(a); Dresselhouse v. Chrysler Corp.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Wendy Sabo & Assocs., Inc. v. American Assocs., Inc.

e-Journal Number: 53386

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

 

Because, inter alia, there was nothing on the face of the arbitration award to indicate that the arbitrators did not apply the correct law, the court declined to vacate or otherwise modify the award. In this dispute over entitlement to a real estate sales commission, plaintiffs-Wendy Sabo & Associates, Inc., and Wendy Sabo, individually, appealed as of right from an order confirming an arbitration award of $18,900, in favor of defendants-American Associates, Inc., and Randall Haney. Plaintiffs argued that the arbitration award should have been vacated by the trial court under the authority of subsection (c), on the basis that the arbitrator exceeded his power or authority by acting in contravention of controlling principles of law. Plaintiffs claimed that it was legally impossible for someone else other than Sabo to have been the "procuring cause" in getting the property sold to the eventual buyers. The court disagreed with plaintiffs' characterization of the issue. Under the procuring cause doctrine an "agent is entitled to recover his commission whether or not he has personally concluded and completed the [real estate] sale, it being sufficient if his efforts were the procuring cause of the sale." While plaintiffs couched their impossibility argument as a legal error, at its essence, their claim was a challenge to the arbitrators' factual findings. In arguing that the evidence established that Sabo was the procuring cause and not defendants' agent, plaintiffs proffered precisely the type of factual challenge that was not permitted in a review of an arbitration award. Affirmed.

 

Tax

 

Issues: Whether the Tax Tribunal (TT) had jurisdiction to hear the petitioner's appeal from its tax assessment; MCL 205.8; MCL 205.22; Review; Schultz v. Denton Twp.; Statutory interpretation; AERC of MI, LLC v. Grand Rapids; Walgreen Co. v. Macomb Twp.; Michigan Props., LLC v. Meridian Twp.; Whether the TT's decision invalidated 1999 AC, R 205.1011(5); Pontiac Sch. Dist. v. Pontiac Educ. Ass'n; MCL 205.28(1); Granger v. Naegele Adver. Cos.; Whether notice of a notice is itself "notice" contemplated by the statute (MCL 205.8); Whether the letter satisfied the requirements under MCL 205.8

Court: Michigan Court of Appeals (Published)

Case Name: Fradco, Inc. v. Department of Treasury

e-Journal Number: 53530

Judge(s): Ronayne Krause and Borrello; Voting to grant the motion for stay - Riordan

 

In an order, the court denied the motion for reconsideration and denied the motion for stay. The court also granted the motion for immediate consideration and the motion for clarification in part to correct the court's inadvertent reference to the TT rather than the Treasury. In all other respects, the motion for clarification was denied. The first sentence of the last paragraph on page 2 of the slip opinion (see e-Journal # 53121 in the 11/1/12 edition) was amended to read as follows: "The issue before us today is when the 35-day period under MCL 205.22 begins to run if the taxpayer has previously filed a written request with the Treasury to send copies of all letters and notices to the taxpayer's representatives."

 

Issues: Whether the Tax Tribunal (TT) had jurisdiction to hear the petitioner's appeal from its tax assessment; MCL 205.8; MCL 205.22; Review; Schultz v. Denton Twp.; Statutory interpretation; AERC of MI, LLC v. Grand Rapids; Walgreen Co. v. Macomb Twp.; Michigan Props., LLC v. Meridian Twp.; Whether the TT's decision invalidated 1999 AC, R 205.1011(5); Pontiac Sch. Dist. v. Pontiac Educ. Ass'n; MCL 205.28(1); Granger v. Naegele Adver. Cos.; Whether notice of a notice is itself "notice" contemplated by the statute (MCL 205.8); Whether the letter satisfied the requirements under MCL 205.8

Court: Michigan Court of Appeals (Published)

Case Name: SMK, LLC v. Department of Treasury

e-Journal Number: 53529

Judge(s): Ronayne Krause and Borrello; Voting to grant motion for stay – Riordan

 

In an order (see e-Journal # 53122 in the 11/1/12 edition for the court's published opinion in this case), the court denied the motion for stay, granted the motion for immediate consideration, and granted the motion for clarification in part to correct its inadvertent reference to the TT rather than the Treasury in the last paragraph on page 2 of the slip opinion. In all other respects, the court denied the motion for clarification. The first sentence of the last paragraph on page 2 of the slip opinion was amended to read - "The issue before us today is when the 35-day period under MCL 205.22 begins to run if the taxpayer has previously filed a written request with the Treasury to send copies of all letters and notices to the taxpayer's representatives."

 

Issues: The Michigan Tax Tribunal's (MTT) jurisdiction; MCL 205.731; MCL 211.34d(1)(b)(viii); Toll Northville, Ltd. v. Northville Twp.; Michigan Props., LLC v. Meridian Twp.; McNeel v. Farm Bureau Gen. Ins. Co. of MI; Taxable value (TV); Board of Review (BOR)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Koetje Builders & Developers, L.L.C. v. Township of Georgetown

e-Journal Number: 53379

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

 

Applying the rule from Michigan Properties, the court held that the MTT committed clear legal error by ruling that it lacked jurisdiction over the petitioner's challenges. Contrary to the MTT's ruling, the MTT had jurisdiction to deduct the unconstitutional increase in the TV of petitioner's properties that was attributable to public service improvements for the years in which petitioner filed a timely challenge. Petitioner purchased the properties in 2004 and installed public service improvements on them in 2005. Respondent, relying on MCL 211.34d(1)(b)(viii), added the value of the improvements to the properties' 2006 TVs as "taxable additions." On 2/20/09, petitioner filed seven separate petitions with the 3/09 BOR alleging that the value of the public service improvements on their properties was unlawfully added to their TVs, and thus, the TVs should be reduced for the 2009 year and in the years to come. The BOR denied each petition. On 5/29/09, petitioner filed its appeals to the MTT, asserting that the value of the improvements was unlawfully added to the TVs and requesting correction of the 2009 TVs. The court noted that the Michigan Supreme Court's decision in Michigan Properties was a consolidation of two cases, Michigan Properties and Toll Northville, and that the facts and applicable rules of law in Toll Northville were nearly identical to those here. The court agreed with petitioner that the Supreme Court in Michigan Properties decided the precise issue of jurisdiction that was contested in this case - whether the MTT had jurisdiction to adjust previously entered erroneous TVs for purposes of bringing the current TVs into compliance with the decision in Toll Northville. The Supreme Court held that the MTT had jurisdiction over challenges to TVs such as the one raised by petitioner in this case. Similar to the petitioner here, Toll Northville timely challenged the TV of its properties in 2001 and in the following years. "Identical to petitioner in this case, while Toll Northville sought a readjustment" of the TVs "based on an error made in 2000, it did not seek a refund" of the erroneous TVs that it paid in 2000. The court noted that while the MTT characterized petitioner's request as a "refund," petitioner did not request a "refund" but rather, as in Toll Northville, petitioner sought a reduction in the TV of its properties. The Supreme Court held that Toll Northville could seek a recalculation of the TV of its properties in the years that it did timely appeal, and that the basis for seeking this recalculation could be an error made in the year before the challenge. The court concluded that the rule from Michigan Properties was intended to have at least limited retroactive effect. Petitioner raised the issue of the MTT's jurisdiction before the MTT and preserved it for appellate review. Thus, petitioner made a timely challenge to the TV of its properties and under Michigan Properties, the MTT had authority and jurisdiction to correct the TVs based on an erroneous and unconstitutional calculation of that value in 2006. Reversed and remanded.

 

Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to §§ 19b(3)(g), (h), (j), and (n)(i); In re Trejo Minors; In re Mason; In re Powers Minors; In re Mays

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Town

e-Journal Number: 53363

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

 

The court held that the trial court did not clearly err in finding that the statutory grounds for termination were established by clear and convincing evidence. As to subsection (j), the respondent-father was incarcerated for all but about a year of the seven-year old female child's life. He is serving a sentence for CSC II involving a 5-year old female and his earliest release date in 2018, when the child will be 12 years old. Although a criminal history alone does not justify termination, in this case termination was also justified by the lack of a bond between the respondent and the child, his current sentence for CSC II against a minor female child, and the risk of exposure of the minor child to his recidivist criminal behavior. The trial court did not clearly err when it determined that there was a reasonable likelihood of harm if the child was released to respondent at some point in the future. As to subsection (n)(i), respondent was previously convicted of CSC II, which is a listed offense under § 19b(3)(n). Also, continuing the parent-child relationship would be harmful to the child because respondent did not have a bond with the child. The trial court also terminated his parental rights pursuant to §§ 19b(3)(g) and (h). The court agreed that termination was improper under these grounds. There was no clear and convincing evidence that he failed to provide proper care and custody. He requested that the child be placed with his mother and her boyfriend, who had another minor relative placed with them under a guardianship. Similarly, although respondent's earliest release date is in 2018, and he would not be able to provide a normal home for more than two years, he requested placement with a relative and may have provided proper care and custody in this manner had that placement been considered. Thus, the trial court erred in finding that the statutory grounds of §§ (g) and (h) were established by clear and convincing evidence. However, because the trial court properly found termination was appropriate under §§ 19b(3)(j) and (n)(i), any error with respect to §§ (g) and (h) was harmless. Respondent also argued that the trial court erred in finding that termination was in the child's best interests because the trial court failed to consider that the child was placed with a relative when deciding it was in the child's best interests to terminate respondent's parental rights. The child was placed with a maternal great aunt. There was no evidence that the trial court considered the child's placement with a relative in determining whether termination of his parental rights was in the child's best interests. The court concluded that the factual record was inadequate for purposes of the best interests determination. The court remanded for reconsideration of the child's best interests in light of the fact the child is placed with a relative. Affirmed in part, vacated in part, and remanded. An order was issued concurrently with the court's opinion as to the remand, which provided instructions for the parties including that the remand was limited to the child's placement with relatives as it relates to the best interest issue.

 

Wills & Trusts

 

Issues: Whether handwritten notes constituted a valid amendment to the trust and a list governing the disposition of the settlor's personal property; The Estates & Protected Individuals Code (MCL 700.1101 et seq.); In re Temple Marital Trust; MCL 700.7602(3)(a); Whether the lack of a signature and absence of the word "amendment" were fatal to the settlor's attempt to alter the disposition of her estate; Whether a child adopted six days after the settlor's death was a grandchild beneficiary of the trust; Determining class membership at the death of the testator; In re Fitzpatrick Estate

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Gwendoline Louise Stillwell Trust

e-Journal Number: 53358

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

 

The court held that the settlor (Stillwell) substantially complied with the terms of the trust governing an amendment when she drafted the handwritten notes at issue and ensured that they were delivered to the successor trustee upon her incapacitation. The court also held that the estate vested and the class of beneficiaries closed at her death. Thus, the trial court did not err in ordering the trustee to distribute Stillwell's personal property pursuant to the directives in the notes, but erred in concluding that A, who was adopted six days after Stillwell's death, was entitled to a share of the estate via Stillwell's class gift to her grandchildren. The trust provided that "[t]he Grantor may by instrument in writing delivered to the Trustee . . . modify or alter this agreement in any manner . . . ." It did not require a signature. Further, there was no dispute that Stillwell had the mental capacity to amend the trust, no evidence of undue influence, and no dispute that the notes were in her handwriting. The issue was whether the lack of a signature and absence of the word "amendment" were fatal to her attempt to change the disposition of her estate. The court concluded that she clearly intended to create a list disposing of her personal property and to amend the trust. She placed the notes in a large envelope that had specific directions to the successor trustee about her entire estate, indicating that she intended the documents to constitute more than just a list disposing of her personal property. In particular, she referred to the notes as "a summary of my estate and instructions," and she summarized her entire estate on the outside of the envelope to include real property, gold, bank accounts and stocks. In the notes, she again referenced not only personal property, but also all of her assets. "Stillwell clearly evinced her intent that the contents of the notes constitute her final directive on the distribution of her entire estate." Further, she modified how her assets were to be distributed. In the trust, she directed that her assets (apart from specific instructions as to her real property) be divided evenly among the beneficiaries. However, in the notes she clearly indicated that the college tuition of two of her grandchildren was to be paid first before any other distribution of her assets. In the notes, Stillwell also indicated that she wanted petitioner, her son-in-law, to share in the distribution of her personal property. Thus, the court held that the trial court properly ruled that the notes constituted an amendment to the trust so that the tuition of the two grandchildren should be paid from the trust assets and the petitioner-trustee should participate in the personal property distribution. However, the court also held that the plain language of the trust showed "that Stillwell intended her estate to vest and the class of grandchildren-beneficiaries to close at her death." The Fourth Paragraph of the trust was entitled "Provisions Applicable Upon Death of Grantor." The paragraph identified beneficiaries of the trust in a clause that contained the header, "Beneficiaries Upon Death of Grantor." Since A was not her grandchild at the time of Stillwell's death, she was not a class member and was not entitled to a share of the estate.

 

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