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Thursday, June 28, 2001

Cases affecting the following practice areas are summarized in today's e-Journal:

Special Note: Today's e-Journal includes summaries of one Michigan Supreme Court opinion and one Sixth Circuit Court of Appeals opinion in the following practice area: Negligence & Intentional Tort.

Case Summaries

Civil Rights

This summary also appears under Employment & Labor Law

Issues: Directed verdict on retaliation claim under the Elliott-Larsen Civil Rights Act; Law of the case doctrine; Claim for unpaid commissions; Unjust enrichment; Wage and Fringe Benefits Act; In limine rulings regarding evidence of other acts of sexual harassment, calling defendant's chief executive officer as a witness, and quashing subpoenas
Court: Michigan Court of Appeals (Unpublished)
Case Name: Stann v. Compuware, Inc.
e-Journal Number: 10686
Judge(s): Per Curiam—Cavanagh, Cooper, and Kelly

The directed verdict in favor of defendant-former employer was reversed because the trial court did not follow the appropriate standard and based its ruling on its assessment of the credibility of witnesses and the inferences to be drawn from the facts. Several issues of material fact remained on which reasonable minds could have differed. There was a factual dispute concerning the timing of the decision to take a major account away from plaintiff. There was also evidence that plaintiff was a high producer and that defendants' criticisms did not begin in earnest until after her sexual harassment complaint. It was not unreasonable to believe that a juror could find that plaintiff was terminated in retaliation for her sexual harassment claim. The trial court's grant of partial summary disposition to defendant on the issue of commissions and the trial court's in limine rulings were affirmed. The case was remanded for further proceedings.

Full Text Opinion


Consumer Rights

Issues: 3(a) of the Lemon Law (same serious defect has undergone at least four unsuccessful service attempts); Denial of initial motion for partial summary disposition
Court: Michigan Court of Appeals (Unpublished)
Case Name: Telly's, Inc. v. Land Rover N. Am., Inc.
e-Journal Number: 10681
Judge(s): Per Curiam—Zahra, Smolenski, and Gage

The circuit court properly found that there were genuine issues of fact whether four-time repairs substantially impaired the vehicle's value to plaintiff and correctly denied partial summary disposition on the Lemon Law claim. Plaintiff was not entitled to judgment as a matter of law that he could revoke his acceptance of the vehicle because the court could not conclude as a matter of law that the asserted noises and cigarette lighter malfunctions substantially impaired the value or use of the vehicle to plaintiff. Many of the complaints were vague, and there was record evidence that in many instances no observable problem was found when the complaints were investigated for repair. Although the vehicle was allegedly in for repair for a total of 81 days, plaintiff drove it more than 42,000 miles in approximately two and a half years. The district court's grant of plaintiff's second motion for partial summary disposition was reversed and the case remanded to circuit court.

Full Text Opinion


Contracts

This summary also appears under Litigation

Issues: Trial court's scope of review of arbitration decision; Whether notice provision was a condition precedent in regard to right of election in partnership agreement
Court: Michigan Court of Appeals (Unpublished)
Case Name: Pelc v. Petoskey
e-Journal Number: 10688
Judge(s): Per Curiam—Kelly, O'Connell, and Cooper

While the trial court erred to the extent that it attempted to expand its scope of review of the arbitration decision beyond that permitted by law, this error was harmless since the trial court properly found that the notice provision in the partnership agreement was not a condition precedent. The arbitrator properly concluded that the introductory language of the provision at issue did not compel the conclusion that the notice requirement was a condition precedent to the surviving partner's right of election. The pertinent language provided that notice was not required until after the election was made. Therefore, the notice provision did not restrict or limit the surviving partner's right to make an election. The circuit court's decision approving the arbitrator's award, which provided that defendant would pay $1 to plaintiff for the decedent partner's partnership interest, was affirmed.

Full Text Opinion


Criminal Law

Issues: Deviation from sentencing guidelines; Prosecutorial misconduct; Ineffective assistance of counsel
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Buhl
e-Journal Number: 10703
Judge(s): Per Curiam—Kelly, O'Connell, and Cooper

The trial court erred by holding that the defendant's "remorse" and the fact that he brought the victim back to the scene of the kidnapping and assault were substantial and compelling reasons to depart from the statutory sentence guidelines. The trial court did not articulate any other reasons for the departure. While on bond for the domestic violence charge involving the victim, defendant appeared at the victim's employment, confronted her with a large knife, cut her on the stomach, and kidnapped her. Defendant returned the victim to a place within one block of her employment after cutting her with a knife and keeping her in a van for an hour. The convictions were affirmed, but the sentences were vacated and remanded for resentencing.

Full Text Opinion


Issues: Self-representation; People v. Anderson; Denial of request to suppress gun powder residue test results; Admissibility of victim's statements as excited utterances; Prosecutorial misconduct; Proportionality of sentence; Additional sentence credit
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Jackson
e-Journal Number: 10682
Judge(s): Per Curiam—Bandstra, White, and Collins

Since the record established that defendant's assertion of the right of self-representation was voluntary, knowing, and unequivocal in that his repeated colloquies with the various judges established that he was satisfied that the only way he would get the representation he desired was to represent himself, the court concluded that there was substantial compliance with the requirements of Anderson and the applicable court rule. The trial court did not err by allowing him to represent himself. Although the trial court failed to make a proper record and did not read the charges and maximum sentences for the charged crimes, these omissions did not require reversal because defendant was informed earlier of the charges and possible punishment by a prior judge. Affirmed, but remanded for modification of judgment of sentence.

Full Text Opinion


Issues: Sentencing
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Kitchen
e-Journal Number: 10708
Judge(s): Memorandum—Neff, Doctoroff, and Wilder

Since the evidence showed that defendant was unable to conform his conduct to the law and his minimum sentence of three years, six months was within the statutory guidelines for habitual offenders, his sentence was proportionate. The trial court properly acted within its discretion in giving defendant a higher than "average" sentence upon his conviction of delivery of less than 50 grams of heroin. Defendant was sentenced as a third felony offender and was on parole from his sentence for prison escape when he committed the offense in this case. Defendant had also been previously convicted of the crimes of receiving and concealing stolen property under $100, aggravated assault, grand larceny, breaking and entering an automobile, and manslaughter. Affirmed.

Full Text Opinion


Employment & Labor Law

This summary also appears under Civil Rights

Issues: Directed verdict on retaliation claim under the Elliott-Larsen Civil Rights Act; Law of the case doctrine; Claim for unpaid commissions; Unjust enrichment; Wage and Fringe Benefits Act; In limine rulings regarding evidence of other acts of sexual harassment, calling defendant's chief executive officer as a witness, and quashing subpoenas
Court: Michigan Court of Appeals (Unpublished)
Case Name: Stann v. Compuware, Inc.
e-Journal Number: 10686
Judge(s): Per Curiam—Cavanagh, Cooper, and Kelly

The directed verdict in favor of defendant-former employer was reversed because the trial court did not follow the appropriate standard and based its ruling on its assessment of the credibility of witnesses and the inferences to be drawn from the facts. Several issues of material fact remained on which reasonable minds could have differed. There was a factual dispute concerning the timing of the decision to take a major account away from plaintiff. There was also evidence that plaintiff was a high producer and that defendants' criticisms did not begin in earnest until after her sexual harassment complaint. It was not unreasonable to believe that a juror could find that plaintiff was terminated in retaliation for her sexual harassment claim. The trial court's grant of partial summary disposition to defendant on the issue of commissions and the trial court's in limine rulings were affirmed. The case was remanded for further proceedings.

Full Text Opinion


Family Law

Issues: Request for change in custody; Modification of parenting time; Standards to be used in modification of parenting time and change in custody
Court: Michigan Court of Appeals (Unpublished)
Case Name: Winokur v. Winokur
e-Journal Number: 10702
Judge(s): Per Curiam—McDonald, Murphy, and Meter

The trial court erroneously applied the standard for a modification of parenting time rather than a change of custody and plaintiff did not demonstrate sufficient changed circumstances related to her move from another state to Michigan, to support a change in custody. Because plaintiff's petition effectively requested a change in custodial environment, the trial court could not modify the previous custody order granting defendant sole physical custody, unless plaintiff presented clear and convincing evidence that a change in custody would be in the best interests of the children. The trial court should have determined whether the change in circumstances met the change in custody standard rather than the modification of parenting time standard. Reversed and remanded.

Full Text Opinion


Litigation

Issues: Whether the trial court comported with the requirements of MCR 2.602; Exclusion from settlement negotiations
Court: Michigan Court of Appeals (Unpublished)
Case Name: Heatherstone Square v. E & M Ventures, Ltd.
e-Journal Number: 10691
Judge(s): Per Curiam—Gage, Fitzgerald, and Markey

The trial court comported with the requirements of the applicable court rule by signing its order at the time it adopted the receiver's recommendation. Plaintiff argued that the trial court improperly disposed of plaintiff's claims for back rent and part of defendant DiLauro's assets in escrow in violation of MCR 2.602 when it failed to obtain plaintiff's approval of its April 12, 1999, order. However, a trial court is permitted to "sign the judgment or order at the time it grants the relief provided by the judgment or order." Affirmed.

Full Text Opinion


This summary also appears under Contracts

Issues: Trial court's scope of review of arbitration decision; Whether notice provision was a condition precedent in regard to right of election in partnership agreement
Court: Michigan Court of Appeals (Unpublished)
Case Name: Pelc v. Petoskey
e-Journal Number: 10688
Judge(s): Per Curiam—Kelly, O'Connell, and Cooper

While the trial court erred to the extent that it attempted to expand its scope of review of the arbitration decision beyond that permitted by law, this error was harmless since the trial court properly found that the notice provision in the partnership agreement was not a condition precedent. The arbitrator properly concluded that the introductory language of the provision at issue did not compel the conclusion that the notice requirement was a condition precedent to the surviving partner's right of election. The pertinent language provided that notice was not required until after the election was made. Therefore, the notice provision did not restrict or limit the surviving partner's right to make an election. The circuit court's decision approving the arbitrator's award, which provided that defendant would pay $1 to plaintiff for the decedent partner's partnership interest, was affirmed.

Full Text Opinion


Issues: Dismissal for lack of subject matter jurisdiction; Jurisdictional amounts of the district and circuit courts; Whether the trial court improperly ruled on defendant's motion for summary disposition; Denial of motion for rehearing
Court: Michigan Court of Appeals (Unpublished)
Case Name: Vasilodimitrakis v. Kmart, Inc.
e-Journal Number: 10698
Judge(s): Per Curiam—Gage, Fitzgerald, and Markey

The trial court did not err in finding that it lacked subject matter jurisdiction and did not abuse its discretion in dismissing plaintiffs' case with prejudice. This case was the third time plaintiffs filed a complaint involving the same issues. The prior cases were dismissed because the amounts in controversy were less than the jurisdictional limits for circuit court. The court concluded that plaintiffs' third complaint could not be looked at in a vacuum. Plaintiffs' prior two complaints had to be considered to the extent that all three complaints made the same allegations and arose from the same transaction involving the same parties. Plaintiffs were obviously seeking to circumvent the limitation on damages available in the district court by filing a third claim alleging an amount of damages that would allow them into circuit court. Affirmed.

Full Text Opinion


This summary also appears under Real Property

Issues: Action to quiet title based on an arbitration award; McFerren v. B & B Inv Group
Court: Michigan Court of Appeals (Unpublished)
Case Name: Yatooma v. Yatooma
e-Journal Number: 10709
Judge(s): Memorandum—Bandstra, White, and Collins

The trial court improperly dismissed this action to quiet title based on an arbitration award. Arbitration was precluded because plaintiff's claim to the property was a claim to an estate in real estate. Although defendants asserted that plaintiff agreed to the terms of the arbitration award, the proceeding below was to enforce an arbitration award, not a settlement agreement. Reversed and remanded.

Full Text Opinion


Negligence & Intentional Tort

Issues: Premises liability; Duty of premises owners concerning criminal acts of third parties; Scope of merchants' duty to respond; No duty to provide security personnel; Mason v. Royal Dequindre
Court: Michigan Supreme Court
Case Name: MacDonald v. PKT, Inc.
e-Journal Number: 10707
Judge(s): Young Jr., Corrigan, Weaver, Taylor, and Markman; Dissent—Cavanagh and Kelly

The court held that the scope of premises owners' duty to respond concerning criminal acts of third parties is limited to reasonably expediting the involvement of the police, and reaffirmed that merchants are not required to provide security personnel or otherwise resort to self help to address such occurrences. Plaintiffs in these consolidated cases were injured when patrons threw sod at outdoor concerts held at Pine Knob. Clarifying the duty articulated in Mason, the court held that the duty is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee, and that only a present situation on the premises, not any past incidents, creates the duty to respond. The Court of Appeals erred in the MacDonald case by relying on incidents previous to the day in question as a basis for concluding that sod throwing was "foreseeable." Since in both cases defendants already had police at the concert, they fully discharged their duty to respond and were properly granted summary disposition by the trial courts in both cases. The Court of Appeals was reversed in MacDonald and affirmed in Lowry.

The dissent would have denied summary disposition so that a jury could determine whether (1) the sod throwing was foreseeable, (2) the plaintiffs were identifiable invitees, and (3) defendant took reasonable measures to protect its invitees from the harm.

Full Text Opinion


Issues: Wrongful death; Recovery of compensatory and punitive damages; Discretionary function exemption from tort liability
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Edwards v. Tennessee Valley Auth.
e-Journal Number: 10706
Judge(s): Gilman, Jones, and Siler

The district court properly dismissed plaintiff's claim for the recovery of compensatory and punitive damages for the drowning death of her 17-year-old son Farner because the actions of defendant-TVA fell within the discretionary function exception to tort liability, and despite the tragic accident that took Farner's life, the court found no basis to hold TVA responsible. Farner drowned when he slipped from the rocky shoreline and fell into the Tennessee River, near a dam that was maintained and operated by TVA. TVA contended that it was exempt from liability because it was acting within its discretion as a governmental entity in determining appropriate safety measures regarding the public's access to the waters around the dam. The evidence demonstrated that TVA had not adopted any requirement mandating that it maintain the area around the shoreline in a specific manner, and the challenged conduct was of the kind that the discretionary function exception was designed to shield. Affirmed.

Full Text Opinion


Issues: Premises liability; Landlord/cooperative duty owed to tenants and invitees to protect against the criminal acts of third persons; Public nuisance
Court: Michigan Court of Appeals (Unpublished)
Case Name: Smith v. Robert's Balfour Co-operative, Inc.
e-Journal Number: 10687
Judge(s): Per Curiam—Bandstra, White, and Collins

Defendant, a cooperative association, did not owe plaintiff's decedent, a guest of Otlowski, a duty to prevent his shooting by another guest because the harm occurred inside Otlowski's privately owned cooperative unit. It was also questionable whether the shooting was proximately caused by the failure to evict Otlowski in the face of the suspicion of drug activity. Plaintiff argued that defendant owed a duty to its tenants and invitees to protect against the criminal acts of third persons, that Otlowski's co-operative unit was frequently used for the consumption and possible sale of illegal drugs, and that defendant should have expelled Otlowski from the co-operative before the shooting occurred. Affirmed.

Full Text Opinion


Probate

Issues: Petition to determine ownership of assets; Jurisdiction of probate court
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Estate of Foster
e-Journal Number: 10690
Judge(s): Per Curiam—Talbot, Sawyer, and Borchard

After vacating its earlier opinion affirming the trial court's dismissal of the petition to determine ownership of assets (see e-Journal #10019 in the April 25, 2001 edition,) the court reversed because it determined that the probate court did have jurisdiction to determine ownership of the debt at issue. The issue of title as between the estate and respondent was distinguishable from the question of jurisdiction to enforce the underlying contract. The probate court erred in ruling that it did not have jurisdiction and in dismissing the petition to determine ownership of assets. Reversed and remanded for further proceedings.

Full Text Opinion


Real Property

Issues: Request for entitlement to use of easement; Construction of easement language
Court: Michigan Court of Appeals (Unpublished)
Case Name: Collins v. Pasike
e-Journal Number: 10684
Judge(s): Per Curiam—Hood, Doctoroff, and Kelly

Since review of the plain language of the affidavit creating the easement revealed that plaintiff, the successive owner of parcel one, was not entitled to the use of the private road easement, the trial court erred in granting plaintiff's motion for summary disposition. Plaintiff filed the lawsuit seeking a determination that ingress and egress to the split of property she owned could be attained through the use of an easement created by the previous owner and developer. The language of the affidavit creating the easement expressly stated that it was required for "certain lots." Thus, the easement was intended to benefit some lots, not all, whose access for ingress and egress was needed and where utility maintenance was required. Review of the evidence established that parcel one, now owned by plaintiff, did not need an easement for ingress or egress because access was provided by another road. There also was no evidence that an easement was necessary for utility maintenance. Plaintiff's requested use of the easement would have expanded the scope of the easement beyond the express grant or reservation. Reversed and remanded for entry of an order granting defendants' motion for summary disposition.

Full Text Opinion


This summary also appears under Litigation

Issues: Action to quiet title based on an arbitration award; McFerren v. B & B Inv Group
Court: Michigan Court of Appeals (Unpublished)
Case Name: Yatooma v. Yatooma
e-Journal Number: 10709
Judge(s): Memorandum—Bandstra, White, and Collins

The trial court improperly dismissed this action to quiet title based on an arbitration award. Arbitration was precluded because plaintiff's claim to the property was a claim to an estate in real estate. Although defendants asserted that plaintiff agreed to the terms of the arbitration award, the proceeding below was to enforce an arbitration award, not a settlement agreement. Reversed and remanded.

Full Text Opinion


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