Monday,
December 27, 2004
Case Summaries
Including summaries of two Michigan Court of Appeals published opinions and one Michigan Court of Appeals published-after-release opinions in the following practice areas: Contracts, Litigation, Municipal, Negligence & Intentional Tort, and Real Property. |
Case Summaries
Civil Rights
skip to next practice areaThis summary also appears under School Law
Issues: Claims of hostile environment sexual harassment in the university setting under the Elliot Larsen Civil Rights Act (CRA) (MCL 37.2103(i)); Chambers v. Trettco; Respondeat superior; Whether defendant had actual or constructive notice of the alleged sexual harassment prior to November 1997; Whether defendant took appropriate remedial action to prevent future harassment of plaintiff; Denial of motion to compel discovery related to plaintiff’s claims of disparate treatment of sexual harassment complaints; Costs and attorney fees
Court: Michigan Court of Appeals (Unpublished)
Case Name: Johnson v. University of Michigan Regents
e-Journal Number: 25484
Judge(s): Per Curiam – Whitbeck, Jansen, and Bandstra
The court held the trial court erred in denying defendant’s motion for summary disposition regarding plaintiff’s hostile environment sexual harassment claim. Plaintiff, an oboist, entered the masters program at the university’s School of Music for the 1997-1998 school year. She auditioned and was placed in the University Philharmonic Orchestra (UPO). Professor Calabria was the conductor of the UPO. Around mid-November 1997, plaintiff went to her bassoon teacher and told him she was having problems with Calabria harassing her. She was taken to the dean of the School of Music. He referred her to the Associate Dean of Academic and Student Affairs and the Affirmative Action Officer for the School of Music, who asked plaintiff to write a formal complaint and to have other women come forward. Calabria was confronted with the women’s allegations and basically admitted to them, except most of plaintiff’s allegations. Calabria was warned and told either to resign or have a reprimand placed in his file, and he was told to modify his behavior. Calabria refused to resign. After reporting Calabria, plaintiff avoided him and never again had contact or further problems with him. The court concluded the trial court erred in denying defendant’s motion on plaintiff’s hostile environment sexual harassment claim because no genuine issue of material fact existed regarding whether defendant took appropriate remedial action upon receiving notice of the alleged sexual harassment. Further, plaintiff failed to establish respondeat superior because there was no showing defendant had notice (either actual or constructive) of Calabria’s conduct prior to November 1997 or failed to take appropriate remedial action upon finding out in November 1997. Reversed and remanded.
Contracts
skip to next practice areaThis summary also appears under Litigation
Issues: Action to enforce a judgment obtained in another state confirming an arbitration award; Motion to quash the judgment; Personal jurisdiction; Whether the trial court erred in examining the alleged agreement to determine whether a valid contract existed giving the other state court jurisdiction over the Michigan defendants; Uniform Enforcement of Foreign Judgments Act (UEFJA); Full Faith and Credit Clause; Whether the trial court erred in failing to recognize the existence of a valid contract; Parol evidence rule; Claim defendants were not entitled to rescind the arbitration agreement because even if the contract was procured by fraud they failed to take affirmative action to rescind the fraudulent contract; Whether defendants had sufficient minimum contacts with the other state independent of the loan agreement’s forum selection clause to establish personal jurisdiction in the other state
Court: Michigan Court of Appeals (Published)
Case Name: Blackburne & Brown Mortgage Co. v. Ziomek
e-Journal Number: 25602
Judge(s): Zahra, Kelly, and Gage
In this action to enforce a California judgment under the UEFJA, the trial court properly examined the parties’ alleged agreement to determine whether a valid contract existed giving the California court jurisdiction over the defendants and ruled a valid contract was never formed, with the consequence the California court lacked personal jurisdiction over defendants. Defendants sought to refinance commercial property located in Michigan. Plaintiff, a California mortgage broker, sent defendants a loan approval letter (the loan agreement) and a good-faith estimate of closing costs. The loan agreement indicated it was not valid unless defendants accepted it no later than July 31, 2001 and also included an addendum containing an arbitration agreement stating all disputes would be resolved in California by arbitrators applying California law. Defendants crossed out and reduced the amount of the mortgage broker’s commission on the good-faith estimate and initialed the change. The change was later crossed-out and the commission restored to its original amount. After defendant failed to refinance through plaintiff, plaintiff obtained an arbitration award for liquidated damages under the alleged agreement. While plaintiff argued the trial court erred in failing to recognize a valid contract, the court disagreed, concluding defendants, who returned the documents after plaintiff’s offer expired, did not accept the lapsed offer but at best, made a counteroffer and nothing suggested plaintiff manifested an acceptance of the counteroffer. Affirmed.
Full Text Opinion
Criminal Law
skip to next practice areaIssues: Whether the trial court erred in considering and convicting defendant of the cognate lesser offense of aggravated assault where she was charged with assault with intent to murder; People v. Cornell; Waiver; People v. Carter
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Brock
e-Journal Number: 25552
Judge(s): Per Curiam – Meter, Wilder, and Schuette
Since defendant, who was charged with assault with intent to murder, waived the issue of whether one offense is a lesser included offense of another by requesting the trial court to consider the lesser offenses of aggravated assault and assault and battery, the trial court did not err in considering and convicting defendant of the cognate lesser offense of aggravated assault. The court agreed aggravated assault is a cognate lesser offense of assault with intent to murder because it requires proof of two elements not required in the greater offense—absence of a weapon and actual inflicting of serious injury. Therefore, based on Cornell, the trial court could not normally consider the lesser offense of aggravated assault. However, defendant specifically requested the trial court to consider the lesser offenses. Thus, any error was waived. Reversible error must be that of the trial court, and not error to which the aggrieved party contributed by plan or negligence. A party cannot request a certain action of the trial court and then argue on appeal the resultant action was error. Affirmed.
Issues: Whether defendant was sentenced in violation of the indeterminate sentencing statute; MCL 769.9(2); Remedy for a partially invalid sentence; People v. Thomas; Whether the statute of limitations ran on the breaking and entering charge where defendant was incarcerated in another state; MCL 767.24(5); Denial of motions for mistrial based on police testimony and identification of defendant through a DNA database listing “convicted offenders”; Comment on defendant’s silence; People v. Bobo
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Ebel
e-Journal Number: 25563
Judge(s): Per Curiam – Murphy, White, and Kelly
In light of the language of MCL 769.9(2), defendant’s sentence of 480 months to life for one of his CSC I convictions was plain error and invalid. Appellate counsel argued the sentence violated the statutory requirement not to impose a maximum term of life if the minimum term is set forth as a term of years. The case arose from an incident in May 1992. The victim was unable to identify an assailant, and the initial investigation ended without charges being filed. In 2001, the police took advantage of developments in DNA identification, analyzed DNA taken from the evidence in the case, and matched it to defendant, then incarcerated in another state. He was extradited to Michigan where he was convicted by a jury of two counts of CSC I and breaking and entering with intent to commit a larceny. Where a court imposes a partially invalid sentence, the Legislature has decreed the sentence is not to be wholly vacated, but is to be set aside only to the extent necessary to remedy the unlawful excess. The trial court had authority to sentence defendant to a 480-month minimum sentence on the CSC count, and independently, it had authority to sentence him to life on the CSC count, but those terms could not be part of the same sentence on that single count of CSC. Affirmed with respect to the convictions, but remanded for resentencing in accordance with MCL 769.9 and any other relevant sentencing statutes.
Issues: Whether the trial court erred in taking testimony without defendant’s presence at a motion where he sought a new trial or a Ginther hearing; Ineffective assistance of counsel; Whether the trial court erred in allowing the prosecutor to ask defendant how he would hide an assault rifle
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Griggs
e-Journal Number: 25544
Judge(s): Per Curiam – O’Connell, Bandstra, and Donofrio
Defendant was not denied his constitutional rights to confrontation and due process when the trial court asked defense counsel if he would answer a few questions on the record in order to assist the trial court with the determination regarding whether it should grant defendant’s motion for a new trial or for a Ginther hearing. The trial court clearly enunciated on the record it was not holding a Ginther hearing, but was rather entertaining testimony to aid in its decision to grant or deny defendant’s motion. Later, after the prosecutor began cross-examining defendant’s trial counsel, the trial court immediately stopped the prosecutor from beginning a line of questioning that would have required defendant’s presence because the substance would have been appropriate for a Ginther hearing. Clearly, a defendant has a right to be physically present at his trial. If this had been a Ginther hearing where testimony was taken on the merits of the issue of ineffective assistance, defendant’s presence would have been required. However, the court’s review of the record revealed that contrary to defendant’s characterization of the hearing as a de facto Ginther hearing, in actuality, the trial court merely took testimony to assist it with its determination whether to grant a Ginther hearing where the merits would then be reached. Thus, defendant’s rights were not violated and the trial court did not abuse its discretion. Affirmed.
Issues: Ineffective assistance of counsel; Scoring 50 points for OV 7 in calculating the sentencing guidelines for assault with intent to do great bodily harm less than murder; Claim defendant was entitled to resentencing because the facts supporting his sentence were not admitted by him or found by a jury beyond a reasonable doubt under Blakely v. Washington; Inapplicability of Blakely to Michigan’s indeterminate sentencing scheme
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Hunt
e-Journal Number: 25578
Judge(s): Per Curiam – O’Connell, Bandstra, and Donofrio
Defendant was not denied effective assistance of counsel when his attorney did not present expert testimony regarding the unreliability of eyewitness testimony and instead sought to undermine the credibility of the eyewitnesses’ identifications of defendant by pursuing several lines of questioning during cross-examination. Noting the decision whether to present an expert witness is presumed to be a strategic one for which it will not substitute its judgment, the court concluded defense counsel acted reasonably in extensively cross-examining the witnesses concerning the relevant circumstances surrounding their identifications. Defense counsel attacked one witness’s memory concerning what defendant was wearing at the time of the incident, and inquired about two of the witnesses’ ability to see defendant due to the lighting at the scene. Counsel also elicited testimony a third witness initially refused to talk with the police and talked to them only after a drug raid of her home, and testimony two of the witnesses had consumed alcohol and drugs on the night in question. Defendant’s conviction and sentence were affirmed.
Issues: Ineffective assistance of counsel; Whether the trial court erred in admitting hearsay testimony attributed to the murder victims and two other persons at trial; Prosecutorial misconduct
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Jackson
e-Journal Number: 25541
Judge(s): Per Curiam – Whitbeck, Saad, and Talbot
Since defendant failed to establish any matter for which confidence in the trial outcome was undermined by defense counsel’s failure to object, her claim of ineffective assistance of counsel had no merit. Defendant argued defense counsel’s failure to move for severance constituted deficient performance or caused prejudice. However, since defendant did not show severance was mandatory under MCR 6.121(C), and it was clear from the trial court’s findings at the Ginther hearing it would not have granted the motion for severance, relief was not warranted. Further, defense counsel’s failure to object to evidence of a witness’s testimony in the federal case, for purposes of impeaching her trial testimony, did not fall below an objective standard of reasonableness. Rather, the impeachment pertained to the substantive issue of defendant’s guilty knowledge. Although consciousness of guilt evidence is not direct evidence of a defendant’s guilt, it is circumstantial evidence. Facts are not collateral if they are directly relevant to the substantive issues in the case. Because defendant’s guilty knowledge was directly relevant to the substantive issue of whether she aided and abetted a murder and engaged in a conspiracy, the impeachment evidence was not collateral. Defense counsel’s failure to object did not constitute deficient performance. Affirmed.
Issues: Sufficiency of the evidence to convict of armed robbery, four counts of CSC I, and one court of CSC IV; Prosecutorial misconduct; Ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. King
e-Journal Number: 25549
Judge(s): Per Curiam – Meter, Wilder, and Schuette
Since the trial court in the bench trial gave a cogent and rational explanation for accepting the victim’s testimony, there was sufficient evidence to sustain defendant’s convictions of armed robbery, four counts of CSC I, and one count of CSC IV. Defendant did not dispute the prosecutor presented evidence from which a rational trier of fact could conclude each element of the crimes charged had been proved beyond a reasonable doubt. Rather, defendant contended the victim’s behavior during the incident was so irrational and her testimony so inconsistent that she was not a credible witness. Witness credibility is a matter of weight, not sufficiency, of the evidence. The trial court is in the best position to judge credibility. The trial court’s explanation for accepting the credibility of the victim’s testimony was based on the evidence introduced at trial and thus, was not clearly erroneous. The fact the trial court chose to believe the victim despite defense counsel’s attempts to impeach her did not constitute reversible error. Affirmed.
Issues: Scoring of sentencing guidelines OVs 1 and 3 following defendant’s conviction of felon in possession and felony-firearm; People v. Witherspoon; People v. Ratkov (After Remand)
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Norman
e-Journal Number: 25551
Judge(s): Per Curiam – Meter, Wilder, and Schuette
Since the evidence supported the trial court’s scoring decision, the trial court did not err in scoring OVs 1 and 3. The charges arose from an incident where three people attempted to repossess a vehicle owned by defendant’s wife. Two of the individuals went into defendant’s garage and were attempting to repossess the car when two shots were fired at them. Defendant then came out of the home and fired a shot at the third person, who was operating the truck needed for the repossession. One of the individuals was shot in the foot. Officers found a shotgun, rifle, and a revolver in the home. Defendant argued because he was acquitted of the charge of assault with intent to murder, the trial court was required to find there was insufficient evidence to show he fired a weapon or caused an injury. Scoring of the sentencing guidelines need not be consistent with a jury verdict where the jury is required to apply the reasonable doubt standard, and the sentencing court applies a preponderance of the evidence standard. Since defendant made an incriminating statement to the police, gunshot residue was found on his hands, one of the victims testified he saw defendant fire the weapon, and another victim was actually wounded, the trial court’s scoring of OVs 1 and 3 was supported by the record. Affirmed.
Issues: Sufficiency of evidence to convict of three counts of CSC II (victim under 13 years of age); Whether the trial court erred in admitting the testimony of the victim’s “unavailable” friend under MRE 804(b)(1) and (a)(5); Sentencing; Whether the sentences imposed under the judicial guideline scheme were proportionate to the offense and the offender
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Patrick
e-Journal Number: 25542
Judge(s): Per Curiam – Cavanagh, Jansen, and Fort Hood
There was sufficient evidence, including the victim’s testimony, to convict defendant of three counts of CSC II. Defendant argued the victim’s testimony was not credible because it was not detailed enough since she “could not remember the approximate dates the incidents occurred, and offered little more than generic details to support the three specific charges.” Defendant also claimed the testimony was uncorroborated since “there were no other witnesses nor evidence to support this incident and [defendant] denied ever touching her inappropriately.” Both claims merely challenged the weight and credibility of the victim’s testimony, and since these issues are left to the trier of fact in the absence of exceptional circumstances, none of which were present, they were without merit. Affirmed.
Issues: Sufficient evidence to support first-degree murder and felony-firearm convictions; Claim the testimony of certain witnesses was biased and not credible; Identity; Absence of blood evidence or DNA; Effect of the fact defendant had an alibi; Prosecutorial misconduct; Other acts evidence; People v. Sholl; People v. Benon; Admission of a detective’s testimony a witness’s first police statement was false; Admission of a taped conversation involving defendant; Denial of a motion for a mistrial; MRE 901(a) and (b); Whether defendant was entitled to a new trial on the basis of ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Reitz
e-Journal Number: 25573
Judge(s): Per Curiam – Hoekstra, Griffin, and Borrello
While defendant argued there was insufficient evidence for the jury to find him guilty beyond a reasonable doubt because the testimony of three witnesses was biased and not credible, the jury obviously found the testimony was credible and it was the jury’s role to make this determination. Defendant also contended there was insufficient evidence because there was no blood evidence or DNA. The police did not find the gun used in the murder and there was no direct physical evidence linking him to the crime. However, circumstantial evidence and reasonable inferences arising from it may be sufficient. The court held the testimony of two witnesses, viewed in a light most favorable to the prosecution, established defendant intentionally killed the victim and the crime was premeditated. One of the witnesses testified he drove defendant to the victim’s house on the night in question, and when he later returned, defendant stepped out of a cornfield, got in the car, and told him to “shut up and drive.” He subsequently saw defendant holding a gun and defendant told him he had shot the victim several times, once in the head. The other witness, the victim’s neighbor, testified she heard what she thought were firecrackers on the night of the shooting (“boom, boom, boom, boom”) and after 15 minutes, she heard two more “booms.” Affirmed.
Family Law
skip to next practice areaIssues: Termination of parental rights pursuant to § 19b(3)(j); Harmless error; Claim the trial court’s finding of a statutory ground for termination was based on legally inadmissible evidence; MCR 3.977(E)(3); Effect of the trial court’s inability to identify the perpetrator of child’s physical abuse; Child’s best interests; Ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Aguirre
e-Journal Number: 25588
Judge(s): Per Curiam – O’Connell, Bandstra, and Donofrio
While the trial court erred to the extent it relied on subsections (b)(i), (k)(iii), and (k)(v) since it stated it was unable to determine who physically abused the child, the error was harmless because subsection (j) was sufficiently established, regardless of whether the respondent-father directly caused the child’s injuries. The trial court did not clearly err in finding, based on respondent’s conduct or capacity, there was a reasonable likelihood the child would be exposed to a physically abusive environment if returned to him. Further, the evidence did not demonstrate termination of respondent’s parental rights was clearly not in the child’s best interests. Affirmed.
This summary also appears under Native American Law
Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i) and (g); Whether the petitioner-FIA’s burden under the Indian Child Welfare Act (ICWA) was satisfied; 25 USC §§ 1912(d) and (f)
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Berkel
e-Journal Number: 25584
Judge(s): Per Curiam – Hoekstra, Griffin, and Borrello
The trial court did not clearly err in finding the evidence was sufficient to terminate the respondent-father’s parental rights under subsection (g), the respondent-mother’s parental rights under both subsections (g) and (c)(i), and the FIA satisfied its burden to support termination under the ICWA. Even if subsection (c)(i) was inapplicable to the father, he was unable to provide proper care and custody because he was incarcerated, he had a severe alcohol problem and an extensive criminal record, and had committed an assault on a family member and his third OUIL while the case was pending. The mother lived in more than a dozen places while the case was pending, was usually unemployed, failed to regularly visit the child, and did almost nothing on her parent-agency agreement until after the termination petition was filed. In addition, testimony of Native American expert witnesses also proved beyond a reasonable doubt serious emotional or physical harm would result if the child were returned to either respondent’s custody. Affirmed.
Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i), (g), and (j); Determination of a reasonable time for purposes of § 19b(3)(c)(i); Children’s best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Shemwell
e-Journal Number: 25581
Judge(s): Per Curiam – Kelly, Gage, and Zahra
The trial court did not clearly err in finding §§ 19b(3)(c)(i), (g), and (j) were established by clear and convincing evidence and in terminating the respondent-mother’s parental rights. The main conditions leading to adjudication were respondent’s ongoing substance abuse and failure to provide stable or suitable housing. While the evidence revealed at the time of the termination trial respondent had maintained suitable and stable housing, the testimony demonstrated she had not rectified her substance abuse even though she had complied with many aspects of her treatment plan. A witness testified respondent had smoked crack cocaine and drunk alcohol with him shortly after the children were returned to her care, and his testimony was corroborated by police testimony. The court found no error in the trial court’s determination one year was not a reasonable time for the children to wait for respondent to deal with her substance abuse problem, and further held termination was also appropriate under §§ 19b(3)(g) and (j). Affirmed.
Issues: Termination of parental rights pursuant to § 19b(3)(g); Claim the trial court improperly denied respondent-father parenting time with the child while respondent was in prison during the proceedings; Interpretation of the statute; In re Newman; In re CR; Harmless error; Child’s best interests
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Smith
e-Journal Number: 25582
Judge(s): Per Curiam – O’Connell, Bandstra, and Donofrio
While the respondent-father was correct the trial court erred in interpreting § 19b(3)(g) to require findings based on the circumstances existing when the petition was filed rather than at the time of the termination hearing, the error was harmless. The court held the correct interpretation requires the trial court to address the circumstances existing at trial when it orders termination. However, clear and convincing evidence showed respondent was also unable to provide proper care and custody at the time of trial. Further, the trial court found, using the far range of respondent’s own opinion as to how long it would take him to provide proper care and custody, it would be about a year and a half from the time the petition was filed before he could do so. The court concluded this was effectively no different from using respondent’s own estimate and saying it would be approximately a year from the time of the trial, and agreed with the trial court it was not a reasonable amount of time in light of the child’s need for permanence and stability. Termination of respondent’s parental rights was affirmed.
Insurance
skip to next practice areaIssues: Whether the trial court properly dismissed plaintiff’s action with prejudice; Alleged failure to comply with terms of the insurance policy; Whether plaintiff’s noncompliance with the policy requirements was “willful”; Thomson v. State Farm Ins. Co.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Cortright v. Fire Ins. Exch.
e-Journal Number: 25558
Judge(s): Per Curiam – Markey, Fitzgerald, and Owens
Since plaintiff did not establish the trial court erred by granting summary disposition in favor of defendant based on defendant’s allegation plaintiff failed to comply with the conditions of the policy, the court affirmed the dismissal. However, the court concluded the trial court’s order should be modified to reflect the dismissal was without prejudice. An insured’s noncompliance with conditions precedent in a policy before commencing an action is a basis for dismissal of the action, but dismissal with prejudice is appropriate only when the noncompliance was “willful.” Defendant did not address the need to show willful noncompliance. Further, the submitted evidence did not show there was no genuine issue of material fact as to this issue. Defendant presented two letters from defendant’s adjuster to plaintiff’s counsel requesting two estimates for rebuilding plaintiff’s house as it was before the loss. Plaintiff testified he obtained two estimates, but agreed he had not submitted estimates for replacement of an identical structure. His understanding of his conversations with the adjuster was the adjuster “asked me to supply quotes to replace a new home.” He was not aware of the adjuster’s request to his attorney for two estimates to rebuild the house with the same features. This evidence did not establish plaintiff’s action was part of “a deliberate effort to withhold material information” or “a pattern of noncooperation with the insurer.” Accordingly, defendant was not entitled to dismissal with prejudice. The court modified the trial court’s order to reflect the dismissal was without prejudice.
Litigation
skip to next practice areaThis summary also appears under Contracts
Issues: Action to enforce a judgment obtained in another state confirming an arbitration award; Motion to quash the judgment; Personal jurisdiction; Whether the trial court erred in examining the alleged agreement to determine whether a valid contract existed giving the other state court jurisdiction over the Michigan defendants; Uniform Enforcement of Foreign Judgments Act (UEFJA); Full Faith and Credit Clause; Whether the trial court erred in failing to recognize the existence of a valid contract; Parol evidence rule; Claim defendants were not entitled to rescind the arbitration agreement because even if the contract was procured by fraud they failed to take affirmative action to rescind the fraudulent contract; Whether defendants had sufficient minimum contacts with the other state independent of the loan agreement’s forum selection clause to establish personal jurisdiction in the other state
Court: Michigan Court of Appeals (Published)
Case Name: Blackburne & Brown Mortgage Co. v. Ziomek
e-Journal Number: 25602
Judge(s): Zahra, Kelly, and Gage
In this action to enforce a California judgment under the UEFJA, the trial court properly examined the parties’ alleged agreement to determine whether a valid contract existed giving the California court jurisdiction over the defendants and ruled a valid contract was never formed, with the consequence the California court lacked personal jurisdiction over defendants. Defendants sought to refinance commercial property located in Michigan. Plaintiff, a California mortgage broker, sent defendants a loan approval letter (the loan agreement) and a good-faith estimate of closing costs. The loan agreement indicated it was not valid unless defendants accepted it no later than July 31, 2001 and also included an addendum containing an arbitration agreement stating all disputes would be resolved in California by arbitrators applying California law. Defendants crossed out and reduced the amount of the mortgage broker’s commission on the good-faith estimate and initialed the change. The change was later crossed-out and the commission restored to its original amount. After defendant failed to refinance through plaintiff, plaintiff obtained an arbitration award for liquidated damages under the alleged agreement. While plaintiff argued the trial court erred in failing to recognize a valid contract, the court disagreed, concluding defendants, who returned the documents after plaintiff’s offer expired, did not accept the lapsed offer but at best, made a counteroffer and nothing suggested plaintiff manifested an acceptance of the counteroffer. Affirmed.
Issues: Whether the trial court properly dismissed this product liability case based on forum non conveniens; Cray v. General Motors Corp.; Application of the Cray factors; Sutherland v. Kennington Truck Servs.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Radeljak v. DaimlerChrysler Corp.
e-Journal Number: 25483
Judge(s): Per Curiam – Cavanagh, Jansen, and Fort Hood
Since the trial court did not make the necessary findings to dismiss the product liability case based on forum non conveniens where it did not make a finding Wayne County was a seriously inconvenient forum, the court reversed and remanded. The case stemmed from an automobile accident, which occurred in the Republic of Croatia. Plaintiff filed the product liability claim in Wayne County against defendant regarding the Jeep involved in the accident. Defendant moved to dismiss arguing Croatia was a more appropriate forum. After analyzing the Cray factors to determine whether Croatia was a more appropriate forum and whether Wayne County was a seriously inconvenient forum, the court concluded the trial court gave very little deference to plaintiff’s choice of forum. The Cray factors did not strongly favor Croatia as a forum. Therefore, the trial court abused its discretion in refusing jurisdiction. The trial court also failed to determine which law must govern the case. The trial court should have definitively evaluated and answered this question before proceeding to balance the Cray factors. Further, in deciding whether Michigan is a seriously inconvenient forum, the trial court still may not resist jurisdiction unless its own forum is seriously inconvenient. Given that the Cray factors were so evenly balanced between the two fora, the court concluded Michigan is not a seriously inconvenient forum.
Malpractice
skip to next practice areaIssues: Medical malpractice; Affidavit of merit; Whether plaintiff’s counsel had a reasonable belief the doctor signing the affidavit of merit met the requirements of MCL 600.2912; Geralds v. Munson Healthcare; Sufficient evidence on breach of the standard of care and causation; Testimony concerning whether the defendant-physician should have performed a CA-125 blood test; Testimony concerning whether plaintiff’s cancer was discernible in April 1998; Jury instructions on causation and damages; Trial court’s refusal to give special instructions requested by defendants; Wickens v. Oakwood Health Care Sys.; Costs in connection with loss of consortium claim; Remittitur; Palenkas v. Beaumont Hosp.
Court: Michigan Court of Appeals (Unpublished)
Case Name: DiFalco v. Dock
e-Journal Number: 25576
Judge(s): Per Curiam – Cavanagh, Jansen, and Fort Hood
The trial court did not err in finding plaintiffs’ counsel had a reasonable belief the physician signing the affidavit of merit met the statutory requirements and was qualified to do so, and in denying defendants’ motion to strike plaintiffs’ affidavit. Plaintiffs’ counsel submitted the affidavit of his witness consultant, who assisted counsel in finding medical experts, stating he specifically inquired into the “credentials and present qualifications” of the physician who signed the affidavit of merit and was informed by the physician he continued practicing in the area of gynecology through 2000. The consultant further stated the physician’s resume indicated he continued in private practice, and he did not know the physician had discontinued his gynecology practice in 1996 until the physician’s deposition. The court held contrary to defendants’ argument, Geralds did not require only plaintiffs’ counsel ask the relevant questions of the physician giving the affidavit of merit. Geralds simply requires someone, be it counsel or someone acting on counsel’s behalf, actually ask the relevant questions of the physician rather than relying on assumptions or secondhand information. The consultant made a specific inquiry to the physician himself and what the physician told the consultant could only reasonably have been interpreted to mean he was practicing in gynecology in the necessary time frame. Affirmed.
Municipal
skip to next practice areaThis summary also appears under Real Property
Issues: Anti-funneling ordinance; Riparian lot use restrictions; Whether the plaintiff-township’s riparian ordinance applied to Gun Lake since the lake was not wholly within the township’s borders; Hess v. West Bloomfield Twp.; Township Rural Zoning Act; Whether the riparian lot use restrictions were void for vagueness; Whether the ordinance was unconstitutional because it violated defendant’s right to substantive due process; Laches; Constructive notice; Larzelere v. Starkweather
Court: Michigan Court of Appeals (Published After Release)
Case Name: Township of Yankee Springs v. Fox
e-Journal Number: 25604
Judge(s): Per Curiam – Fort Hood, Donofrio, and Borrello
[This opinion was previously released as an unpublished opinion on 10/12/04.] Since it is the location of the riparian land, not the location of the lake abutting it, that determined the plaintiff-township’s authority and jurisdiction, and the riparian lot in question was located within the township, the court rejected defendant’s contention the township’s riparian ordinance did not apply because Gun Lake was not wholly located within the township’s borders. Defendant, owner of an undivided one-eighth interest in a riparian lot on Gun Lake, appealed from the trial court’s order permanently enjoining defendant and several other lot owners from using the lot to access Gun Lake in violation of the township’s anti-funneling ordinance and riparian lot use regulations. The court concluded the township had authority to regulate defendant’s riparian rights because the riparian lot was located within the township’s boundaries and the township was authorized by the Township Rural Zoning Act to regulate riparian rights. The court also rejected defendant’s arguments the township’s riparian lot use regulations were void for vagueness and the ordinance was unconstitutional because it violated substantive due process. Affirmed.
This summary also appears under Negligence & Intentional Tort
Issues: Whether the trial court erred in granting the defendant’s motion for summary disposition based on governmental immunity; The highway exception to governmental immunity (MCL 691.1402(1)); Hatch v. Grand Haven Charter Twp.; Meeks v. Department of Transp.; Weaver v. Detroit; Weakley v. Dearborn Heights; Whether defendant acted to repair the defect within a reasonable time
Court: Michigan Court of Appeals (Unpublished)
Case Name: Bzdok v. City of Marquette
e-Journal Number: 25556
Judge(s): Per Curiam – Markey, Fitzgerald, and Owens
The trial court properly granted the defendant’s motion for summary disposition based on governmental immunity. In September 2001, defendant began to repair a portion of a road from which railroad tracks had been removed. Defendant placed gravel into the excavated area to prepare it for paving the next day. Before leaving the site, defendant placed barricades and warning signs around the area. At 1:00 am plaintiff rode his bicycle into the repair site, lost control of the bicycle when the front tire dropped into the excavated area, and fell to the ground, sustaining injuries. Plaintiff filed suit alleging defendant breached its duty to repair and maintain the road so that it was reasonably safe for public travel by failing to properly ramp the edges of the excavated area so traffic could cross it undisturbed, and failing to properly warn of the danger created by the excavated area. Plaintiff’s position was defendant was required both to repair and maintain the road, and to keep all portions of the road, including those under repair, accessible and reasonably safe for public travel at all times. The statute does not place such an unreasonable burden on a municipality. The trial court correctly found defendant met its statutory obligation to repair and maintain the road, and was entitled to governmental immunity. Affirmed.
Native American Law
skip to next practice areaThis summary also appears under Family Law
Issues: Termination of parental rights pursuant to §§ 19b(3)(c)(i) and (g); Whether the petitioner-FIA’s burden under the Indian Child Welfare Act (ICWA) was satisfied; 25 USC §§ 1912(d) and (f)
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Berkel
e-Journal Number: 25584
Judge(s): Per Curiam – Hoekstra, Griffin, and Borrello
The trial court did not clearly err in finding the evidence was sufficient to terminate the respondent-father’s parental rights under subsection (g), the respondent-mother’s parental rights under both subsections (g) and (c)(i), and the FIA satisfied its burden to support termination under the ICWA. Even if subsection (c)(i) was inapplicable to the father, he was unable to provide proper care and custody because he was incarcerated, he had a severe alcohol problem and an extensive criminal record, and had committed an assault on a family member and his third OUIL while the case was pending. The mother lived in more than a dozen places while the case was pending, was usually unemployed, failed to regularly visit the child, and did almost nothing on her parent-agency agreement until after the termination petition was filed. In addition, testimony of Native American expert witnesses also proved beyond a reasonable doubt serious emotional or physical harm would result if the child were returned to either respondent’s custody. Affirmed.
Negligence & Intentional Tort
skip to next practice areaIssues: Claims including intentional infliction of emotional distress and negligence (both ordinary and premises liability) arising from alleged sexual abuse by a priest; Whether plaintiff’s claims were barred by the applicable statutes of limitation; MCL 600.5805(1); Lemmerman v. Fealk; Tolling of the statutes of limitations while the plaintiff was under the age of majority; MCL 600.5851(1); Applicability of the discovery rule; The fraudulent concealment exception (MCL 600.5855); McClusky v. Womak; Teadt v. Lutheran Church Missouri Synod; Tonegatto v. Budak
Court: Michigan Court of Appeals (Published)
Case Name: Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit
e-Journal Number: 25603
Judge(s): Kelly and Cavanagh; Concurring in part, Dissenting in part – H. Hood
The court held as a matter of law, plaintiff failed to state a fraudulent concealment claim to avoid the applicable statutes of limitations related to plaintiff’s other claims in this case were he alleged he was sexually abused by a priest for four years while serving as an altar boy. Plaintiff’s claims against the defendant-archdiocese were time-barred and the trial court erred in denying defendant’s motion for summary judgment. Plaintiff alleged defendant’s fraudulent concealment regarding the priest tolled the statutes of limitation applicable to his other claims. In December 2002, plaintiff filed a complaint alleging the priest sexually abused him from 1972 to 1976. He alleged the priest used his position of religious authority to establish a relationship with plaintiff and his family, and subsequently sexually abused him approximately 50 times. Plaintiff also alleged defendant was aware the priest had previously abused other boys, but did nothing to prevent further abuse, and it was not until October 2002, he was able to discover or reasonably should have discovered the priest’s conduct was wrongful when he learned of similar cases. The court concluded plaintiff’s causes of action were not concealed from him—he knew or should have known all the essential elements of potential causes of action against defendant at the time of his injury. This was not so simply because plaintiff knew he was sexually abused by the priest, but because of the entire constellation of facts, which were known or should have been known to plaintiff at the time the abuse occurred. Further, the actions plaintiff alleged defendant took to conceal his causes of action did not constitute fraudulent concealment because they amounted to mere silence. Reversed and remanded for entry of summary judgment in favor of defendant.
This summary also appears under Municipal
Issues: Whether the trial court erred in granting the defendant’s motion for summary disposition based on governmental immunity; The highway exception to governmental immunity (MCL 691.1402(1)); Hatch v. Grand Haven Charter Twp.; Meeks v. Department of Transp.; Weaver v. Detroit; Weakley v. Dearborn Heights; Whether defendant acted to repair the defect within a reasonable time
Court: Michigan Court of Appeals (Unpublished)
Case Name: Bzdok v. City of Marquette
e-Journal Number: 25556
Judge(s): Per Curiam – Markey, Fitzgerald, and Owens
The trial court properly granted the defendant’s motion for summary disposition based on governmental immunity. In September 2001, defendant began to repair a portion of a road from which railroad tracks had been removed. Defendant placed gravel into the excavated area to prepare it for paving the next day. Before leaving the site, defendant placed barricades and warning signs around the area. At 1:00 am plaintiff rode his bicycle into the repair site, lost control of the bicycle when the front tire dropped into the excavated area, and fell to the ground, sustaining injuries. Plaintiff filed suit alleging defendant breached its duty to repair and maintain the road so that it was reasonably safe for public travel by failing to properly ramp the edges of the excavated area so traffic could cross it undisturbed, and failing to properly warn of the danger created by the excavated area. Plaintiff’s position was defendant was required both to repair and maintain the road, and to keep all portions of the road, including those under repair, accessible and reasonably safe for public travel at all times. The statute does not place such an unreasonable burden on a municipality. The trial court correctly found defendant met its statutory obligation to repair and maintain the road, and was entitled to governmental immunity. Affirmed.
Issues: Whether the trial court properly denied defendant’s motion for summary disposition based on governmental immunity; The highway exception to governmental immunity (MCL 691.1402(1)); Whether the road shoulder is part of the improved portion of a road designed for vehicular traffic; Gregg v. State Highway Dep’t; Nawrocki v. Macomb County Rd. Comm’n
Court: Michigan Court of Appeals (Unpublished)
Case Name: Grimes v. Department of Transp.
e-Journal Number: 25553
Judge(s): Per Curiam – Markey, Fitzgerald, and Owens
Since the court was bound by Gregg, which held the shoulder of a highway is part of the improved portion designed for vehicular traffic, it held the trial court properly denied defendant’s motion for summary disposition on the basis of governmental immunity. The case arose from a two-car accident on northbound I-75 where the shoulder is composed of asphalt and gravel. As Thisse was driving north on I-75, he lost control of his vehicle and went off onto the shoulder. When he attempted to reenter the roadway, he encountered a seven- to eight-inch drop where the paved portion of the shoulder meets the travel portion. The uneven drop allegedly caused Thisse to lose control of his vehicle and strike plaintiff’s car. Plaintiffs alleged, inter alia, the highway exception to governmental immunity applied because the shoulder is part of the highway designed for vehicular travel, and defendant failed to properly maintain and repair the gravel portion to make it level with the paved portion. Defendant argued plaintiffs’ claim was not cognizable under § 1402(1) because a shoulder is not part of the actual roadbed. Although defendant asserted Nawrocki, which held the statutory exceptions to governmental immunity are to be narrowly construed, effectively overruled Gregg, nothing in that case altered the Supreme Court’s earlier holding in Gregg regarding the shoulders. Affirmed.
Real Property
skip to next practice areaThis summary also appears under Municipal
Issues: Anti-funneling ordinance; Riparian lot use restrictions; Whether the plaintiff-township’s riparian ordinance applied to Gun Lake since the lake was not wholly within the township’s borders; Hess v. West Bloomfield Twp.; Township Rural Zoning Act; Whether the riparian lot use restrictions were void for vagueness; Whether the ordinance was unconstitutional because it violated defendant’s right to substantive due process; Laches; Constructive notice; Larzelere v. Starkweather
Court: Michigan Court of Appeals (Published After Release)
Case Name: Township of Yankee Springs v. Fox
e-Journal Number: 25604
Judge(s): Per Curiam – Fort Hood, Donofrio, and Borrello
[This opinion was previously released as an unpublished opinion on 10/12/04.] Since it is the location of the riparian land, not the location of the lake abutting it, that determined the plaintiff-township’s authority and jurisdiction, and the riparian lot in question was located within the township, the court rejected defendant’s contention the township’s riparian ordinance did not apply because Gun Lake was not wholly located within the township’s borders. Defendant, owner of an undivided one-eighth interest in a riparian lot on Gun Lake, appealed from the trial court’s order permanently enjoining defendant and several other lot owners from using the lot to access Gun Lake in violation of the township’s anti-funneling ordinance and riparian lot use regulations. The court concluded the township had authority to regulate defendant’s riparian rights because the riparian lot was located within the township’s boundaries and the township was authorized by the Township Rural Zoning Act to regulate riparian rights. The court also rejected defendant’s arguments the township’s riparian lot use regulations were void for vagueness and the ordinance was unconstitutional because it violated substantive due process. Affirmed.
Issues: Permanent injunctive relief and trespass damages in connection with an easement; Whether easement was an exclusive easement denying even the grantor and its successors and assigns from using the easement; Consideration of extrinsic evidence in interpreting the grant of easement; Interpretation of the term “exclusive”; Award of damages for trespass
Court: Michigan Court of Appeals (Unpublished)
Case Name: Proto-Cam Inc. v. 940 Monroe LLC
e-Journal Number: 25577
Judge(s): Per Curiam – Hoekstra, Griffin, and Borrello
Concluding the easement was ambiguous and the trial court did not abuse its discretion in considering extrinsic evidence in interpreting it, the court upheld the trial court’s ruling the easement was an exclusive easement denying even the grantor and its successors and assigns use. The trial court determined the word “exclusive,” as used in the easement, could have had three possible meanings and examined the relevant passages of the easement to decide which interpretation appeared most likely. Easement paragraph 2 provided usage of the parcel shall be exclusively reserved for the grantee for purposes of ingress, egress, and parking, the parcel shall not be used for any other purpose, neither the grantor nor grantee shall construct any buildings or other structures on it, and the grantor shall not interfere with grantee’s use for the purposes stated in the easement. The trial court determined paragraph 2 was most consistent with the third possible interpretation, advocated by plaintiffs – use for the stated purposes by anyone other than plaintiff, including the grantor, was excluded. The court concluded the language strongly supported plaintiffs’ argument, particularly viewed in light of extrinsic evidence of the conduct of the grantor’s secretary and treasurer, who signed the easement, and the circumstances leading to the grant of the easement. Affirmed.
School Law
This summary also appears under Civil Rights
Issues: Claims of hostile environment sexual harassment in the university setting under the Elliot Larsen Civil Rights Act (CRA) (MCL 37.2103(i)); Chambers v. Trettco; Respondeat superior; Whether defendant had actual or constructive notice of the alleged sexual harassment prior to November 1997; Whether defendant took appropriate remedial action to prevent future harassment of plaintiff; Denial of motion to compel discovery related to plaintiff’s claims of disparate treatment of sexual harassment complaints; Costs and attorney fees
Court: Michigan Court of Appeals (Unpublished)
Case Name: Johnson v. University of Michigan Regents
e-Journal Number: 25484
Judge(s): Per Curiam – Whitbeck, Jansen, and Bandstra
The court held the trial court erred in denying defendant’s motion for summary disposition regarding plaintiff’s hostile environment sexual harassment claim. Plaintiff, an oboist, entered the masters program at the university’s School of Music for the 1997-1998 school year. She auditioned and was placed in the University Philharmonic Orchestra (UPO). Professor Calabria was the conductor of the UPO. Around mid-November 1997, plaintiff went to her bassoon teacher and told him she was having problems with Calabria harassing her. She was taken to the dean of the School of Music. He referred her to the Associate Dean of Academic and Student Affairs and the Affirmative Action Officer for the School of Music, who asked plaintiff to write a formal complaint and to have other women come forward. Calabria was confronted with the women’s allegations and basically admitted to them, except most of plaintiff’s allegations. Calabria was warned and told either to resign or have a reprimand placed in his file, and he was told to modify his behavior. Calabria refused to resign. After reporting Calabria, plaintiff avoided him and never again had contact or further problems with him. The court concluded the trial court erred in denying defendant’s motion on plaintiff’s hostile environment sexual harassment claim because no genuine issue of material fact existed regarding whether defendant took appropriate remedial action upon receiving notice of the alleged sexual harassment. Further, plaintiff failed to establish respondeat superior because there was no showing defendant had notice (either actual or constructive) of Calabria’s conduct prior to November 1997 or failed to take appropriate remedial action upon finding out in November 1997. Reversed and remanded.