Issues: Whether the plaintiff-nursing home's claims for the defendant's delay in filling a prescription sounded in contract or tort; Local 1064, RWDSU AFL-CIO v. Ernst & Young; Mobil Oil Corp. v. Thorn

Court: Michigan Court of Appeals (Unpublished)

Case Name: Woodward Nursing Home, Inc. v. Medical Arts, Inc.

e-Journal Number: 43119

Judge(s): Per Curiam - Jansen, Hoekstra, and Markey

 

Concluding the cause of action the plaintiff-nursing home pleaded as a contract claim was not a contract claim, but rather it claimed damages sounding in tort, the court reversed the trial court's decision to allow the alleged contract claim to go forward and remanded the case to the trial court. Defendant, in an interlocutory appeal, challenged the trial court's order denying in part its motion for summary disposition. Plaintiff alleged defendant agreed in a written contract to provide prescription medications and supplies for plaintiff's nursing home residents. Plaintiff contended it sent defendant a prescription order, which defendant failed to process and deliver for more than 12 days. After its prior case against defendant was dismissed, plaintiff filed this case alleging, inter alia, breach of contract, breach of implied contract, breach of warranty, breach of implied warranty, misrepresentation, and negligent performance of a contract. Copies of the pharmacy consultant agreement, the vendor pharmacy agreement, and the nurse staffing agreement were attached to the complaint. The trial court dismissed all the claims except for breach of contract. The court noted plaintiff's contract claim asserted damages in the form of lost certification as a Medicaid provider, which in turn allegedly caused plaintiff to stop operating as a nursing home, the state's termination of plaintiff's provider agreement, and regulatory sanctions. There was no allegation "plaintiff suffered expenses in having to obtain the expected product or service elsewhere, and no demand for a refund of consideration tendered for products not delivered." Thus, the court held plaintiff claimed damages sounding in tort, not in contract. Further, because plaintiff's contract claim included no prayer for contract damages, the trial court erred in failing to dismiss it on this basis alone. Reversed and remanded.

 

Issues: "Other acts" evidence; MRE 404(b); Whether the trial court should have given a limiting instruction on the proper consideration of the other acts evidence; People v. Knox; People v. VanderVliet; Felonious assault jury instruction; People v. Avant; People v. Smith; People v. Bearss; People v. Mills; MCL 768.32(1); People v. Silver; People v. Cornell; People v. Norman; Second-degree murder; People v. Goecke; Lack of malice; People v. Mendoza

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Barajas-Enriquez

e-Journal Number: 43122

Judge(s): Per Curiam - Fitzgerald, Talbot, and Shapiro

 

The court held under the facts of the case it was not persuaded the lack of a limiting instruction as to the "other acts" evidence affected the defendant's substantial rights and affirmed his conviction of voluntary manslaughter and first-degree home invasion. The prosecutor only referred to the challenged evidence in an attempt to impeach a defense witness who, in support of a theory defendant acted out of passion induced by adequate cause, testified he had never seen defendant as angry or violent before. Thus, the evidence was not offered as part of the prosecutor's case-in-chief, but was offered for purposes of impeachment and was proper under MRE 405(a). The issue was whether the absence of the instruction affected a substantial right and the defendant "was actually innocent or the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of his innocence." This standard was not met here. Defendant did not dispute the fact he struck the victim with a golf club and the jury acquitted him of second-degree murder and instead convicted him of voluntary manslaughter. Clearly, the jury accepted the argument defendant acted under the influence of provocation. Further, the trial court did not err in refusing to instruct the jury on felonious assault because it is a cognate lesser offense of second-degree murder and MCL 768.32(1) does not permit consideration of cognate lesser offenses. Affirmed.

 

Issues: "Other acts" evidence (MRE 404(b)); People v. Johnigan; People v. Knox; Relevance (MRE 401); Whether the probative value of the evidence was substantially outweighed by the potential for unfair prejudice (MRE 403); People v. Magyar; Sufficiency of the evidence of defendant's identity as the shooter; People v. Avant; People v. Queenan; People v. Taylor; Elements of assault with intent to murder; People v. Lawton; Elements of felony-firearm; People v. Davis; Sentencing; Whether the sentence constituted "cruel and unusual punishment"; Effect of the fact the sentence was within the appropriate guidelines range; People v. Drohan

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Brown

e-Journal Number: 43082

Judge(s): Per Curiam - Jansen, Hoekstra, and Markey

 

The trial court properly ruled evidence defendant stole a gun from a hotel room at his place of employment was admissible under MRE 404(b) because theft of the gun showed opportunity, the evidence was relevant, and its probative value was not substantially outweighed by the potential for unfair prejudice. Defendant was convicted of assault with intent to commit murder and felony-firearm. The evidence showed three days before the shooting, a woman staying in room 233 at a hotel where defendant was employed owned a nine-millimeter handgun she believed was loaded with Luger ammunition. She testified, inter alia, she left the gun in a bottom drawer when she left her room for the day. When she returned, there was a roll-a-away bed in her room she had not requested and her gun was missing. Defendant was a maintenance worker at the hotel and had a keycard allowing him access to all the rooms. Records showed his keycard accessed room 233 twice on the day the gun came up missing, and the room was accessed a third time with a different employee's keycard. Another employee testified she saw defendant take a roll-a-way bed into room 233 that day. The employee whose keycard accessed the room the third time testified defendant asked to borrow her keycard the same day, and she did not enter room 233 or loan her keycard to anyone else that day. Police recovered two spent shell casings and one bullet from the scene of the shooting. The shell casings indicated they were from nine-millimeter Luger bullets. The evidence defendant might have stolen the gun was offered to show he had access to the same caliber of handgun used in the shooting and to show the stolen gun was loaded with the same ammunition found at the scene. Further, since he contended he did not have a gun, evidence offered to show he stole a gun from his workplace tended to show he did have a gun, making the evidence relevant. The court also concluded the probative value of the evidence he had access to the same caliber of gun used in the shooting, which was loaded with the same brand of ammunition discovered at the scene, substantially outweighed any prejudicial effect tending to show he was a thief. His convictions and sentences were affirmed.

 

Issues: Sentencing; Defendant's challenge to his sentence of 10 to 15 years' imprisonment for his jury trial conviction of CSC II (MCL 750.520c); Whether the trial court properly scored OV 11 at 50 points; People v. Hornsby; People v. Smith; People v. Johnson; People v. Mutchie; OV 13 (MCL 777.43); People v. Harper

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hicks

e-Journal Number: 43115

Judge(s): Per Curiam - Hoekstra and Markey; Dissent - Jansen

 

In this case where the defendant was convicted by a jury of CSC II and was sentenced by the trial court to 10 to 15 years' imprisonment, the court vacated his sentence and remanded for resentencing because the trial court erred in scoring OV 11 at 50 points and should have scored OV 13 at 25 points, making the minimum sentence range 19 to 38 months instead of 29 to 57 months. Defendant was charged with several counts of CSC I and II based allegations his daughter made against him (she was 13 at the time of trial). The jury convicted him of one count of CSC II. The trial court sentenced him to 10 to 15 years. He appealed and the court held the trial court was within its rights to deviate from the guidelines based on its conclusion OV 10 did not adequately take into account defendant's exploitation of his daughter's vulnerabilities. He was assessed 15 points under OV 10 because of the predatory nature of the offense. The court previously remanded for resentencing because it "was unclear whether the trial court would have departed to the same extent on the basis of the inadequate weight given to OV 10 alone." At resentencing the trial court again sentenced him to 10 to 15 years' imprisonment. Based on the sentencing transcript, it was clear even if OVs 11 and 13 had been correctly scored below, the trial court would have still imposed the same sentence. Because the court could not determine why the trial court believed a minimum sentence exceeding the highest maximum-minimum sentence for a class C crime was proportionate, the court vacated the sentence and remanded for resentencing before a different judge.

 

Issues: Ineffective assistance of counsel; Failure to move to suppress the defendant's police statements; People v. Riley (After Remand); People v. Jordan; People v. Matuszak; Whether defendant was unlawfully arrested in his home; People v. Reese; People v. Tierney; "Exigent circumstances"; People v. Love; Suppression of a confession after an unlawful arrest; People v. Kelly; Whether defendant's statements were coerced and his Miranda waiver was not knowingly or voluntarily made; People v. Cipriano; Sentencing; Scoring of PRV-2; People v. Reyna; 25-year minimum sentence mandated by MCL 750.520b(2)(b)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Patino

e-Journal Number: 43077

Judge(s): Per Curiam - Borrello, Meter, and Stephens

 

Holding "exigent circumstances" existed justifying defendant's warrantless arrest  and a motion to suppress his police statements on the basis of his allegedly unlawful arrest would have been futile, the court rejected his claim defense counsel was ineffective for failing to move to suppress. Defendant was convicted of CSC I involving penetration and two counts of CSC II. He argued because the police unlawfully arrested him in his home, his later police statements should have been excluded as the "fruit" of his unlawful arrest. The police arrived at his home in response to a 911 call placed by his oldest step-daughter. Defendant's then-wife (the victim's mother) met the officers outside and told them the six-year old victim told her defendant "had been touching her in bad ways," and the victim rubbed her vaginal area when asked to show what defendant had done. The mother testified a confrontation had ensued between her, defendant, and the victim, in which defendant called the victim a liar, the victim insisted she was not lying, and defendant told the mother the victim was the one who had touched him inappropriately. The court concluded the information the officers received from the victim and her mother, which gave them sufficient knowledge defendant could be a threat to the victim and other children in the household pending the issuance of an arrest warrant, justified his warrantless arrest. The officers were also aware he could have destroyed valuable DNA evidence or fled the scene. Further, the record showed defense counsel expressly stated during a brief recess at trial he was not seeking a Walker hearing about defendant's police statements as a matter of trial strategy. The court held defense counsel's performance "did not fall below an objective standard of reasonableness because his decision to forego a prospectively unsuccessful Walker hearing constituted sound trial strategy." Defense counsel stated he assessed the probability of success on a motion to suppress the statements, determining it probably would not have been successful, and he sought to persuade the jury defendant was coerced into making his statements instead of arguing a meritless motion to suppress. Defendant's convictions and sentences were affirmed.

 

Issues: Denial of motion for mistrial as to a police officer's mention of defendant's post-Miranda silence; People v. Dennis; People v. Haywood; People v. Boyd; People v. Graves; "Other acts" evidence; MRE 404(b); People v. Crawford; People v. Engelman; People v. Sholl; People v. Hawkins; People v. Mills; Sentencing; People v. Carines; People v. Cortez; Predicate felony; MCL 750.227b

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Ringle

e-Journal Number: 43106

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

Since the prosecutor's single question to the police officer and the somewhat unresponsive answer did not rise to the level of an inadvertent inquiry into the defendant's post-Miranda silence, there was no irregularity in the trial prejudicing him or impairing his ability to get a fair trial, and the trial court did not abuse its discretion in denying his motion for mistrial. The victim, who owned a party store, was killed in May 2002. A Michigan State Trooper and expert in the area of firearms testified the victim was killed with a .357-caliber or .38-caliber handgun and a detective testified $203 was stolen from the store. Defendant's girlfriend testified she drove defendant and her two sons to the party store on the day of the murder. That morning she had seen defendant near the gun safe in their bedroom. He told her he wanted cigarettes and wanted go to the party store. When they got there, defendant went inside and came back out with a six-pack of beer and was nervous. Defendant said repeatedly "I f***ed up." When the girlfriend asked what he meant, he told her "to shut the f**k up." When they got home, the girlfriend saw defendant in the bedroom locking the gun safe. He eventually told her he had gotten money from the victim, he had shot the victim, and told her he would kill her, her children, and her family if she told anyone. Two of defendant's friends also testified at trial, one indicated he always carried a "Dirty Harry" type revolver, and the other testified he had purchased OxyContin from defendant on four or five occasions and defendant told him he had robbed the party store and "wasted a guy." The court also held the trial court properly admitted "other acts" evidence to show defendant's drug use and his financial difficulties because they were relevant and demonstrated his motive to commit the charged offenses. The court held none of the challenged evidence was aimed at proving defendant's propensity to commit the charged crimes, and the probative value of the evidence was not outweighed by the danger of unfair prejudice. The record did not indicate the jury gave this evidence undue or preemptive weight, or the evidence confused the jury. The court affirmed defendant's convictions of first-degree murder, felon in possession, CCW, and two counts of felony-firearm, but remanded for correction of his sentence as to the CCW conviction.

 

Issues: Whether the trial court should have given a voluntary manslaughter jury instruction; People v. Moore; People v. Smith; Voluntary manslaughter is a "necessarily included lesser offense" of murder; People v. Mendoza; People v. Sullivan; Adequate provocation; People v. Tierney; Premeditation and deliberation; People v. Abraham; People v. Cornell

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Schultz

e-Journal Number: 43109

Judge(s): Per Curiam - Zahra, Whitbeck, and M.J. Kelly

 

Since there was overwhelming evidence of premeditation, the evidence of adequate provocation was negligible, the trial court instructed the jury on both first- and second-degree murder, and defendant was convicted of the greater offense, the trial court did not abuse its discretion by refusing to give the voluntary manslaughter instruction and he was not entitled to a new trial. The evidence established defendant and his former girlfriend (the victim) had a violent and abusive relationship. Evidence showed the victim received a great deal of the abuse and often had bruises on her face and arms and red marks on her neck where defendant tried to choke her. Based on information the victim gave to various witnesses (friends, family, and police officers) defendant would sometimes beat her if she left the house, talked on the phone, and argued. He alleged there was sufficient evidence of adequate provocation testimony to provide a basis for the voluntary manslaughter instruction. There was testimony the defendant was angry days before the murder because the victim allegedly burned his clothes and a pair of glasses he needed for work and removed items from his home. However, the court could not conclude these actions would cause a reasonable person to lose control. Further, testimony from a friend indicated she removed the clothes from the home the day after defendant's arrest when he was released on bond, which was several weeks before the victim's disappearance was reported. The victim was also asked about burning his clothing at the preliminary examination, which also occurred before her death. Thus, these actions did not occur at the time of the killing, and there was sufficient time for a reasonable person's passions to cool. The court concluded regardless of any provocation, adequate or otherwise, there was "abundant" evidence defendant acted in a premeditated and deliberate manner, and not in the heat of passion. The victim told several witnesses she feared defendant and he threatened to kill her. Defendant also told three witnesses he wanted to kill her to prevent her from testifying in his domestic violence trial. The circumstances of the actual killing also suggested he stalked the victim before the killing and did not fly into an uncontrollable rage. Defendant's convictions of first-degree murder and aggravated stalking and his sentences were affirmed.

 

Issues: Sentencing; Whether the trial court had a substantial and compelling reason to sentence the defendant to prison following his guilty plea to violating probation; People v. Hegwood; MCL 769.34(3)(b); People v. Babcock; People v. Abramski; People v. Smith; Whether a trial court can consider a defendant's attitude toward his criminal behavior; People v Oliver; People v. Schaafsma; People v. Hansford

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Weber

e-Journal Number: 43128

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

 

Concluding the trial court's recognition of the defendant's continued history of probation violations justified a sentence outside the guidelines, the court held the trial court imposed a sentence which was proportionate under the circumstances and affirmed. Defendant pleaded guilty to violating probation and was sentenced to 16 to 24 months in prison. He argued the trial court erred in sentencing him to a prison term because the guidelines range of zero to six months should have resulted in the imposition of an intermediate sanction pursuant to MCL 769.34(4)(a). The trial court reasoned the defendant's continued history of probation violations justified a sentence outside the guidelines. This was objective and verifiable where his repeated probation violations were well documented in his PSIR. His history demonstrated repeated terms of probation, jail terms, and other alternative sentencing have had no positive effect on his behavior. A defendant's social and personal history, and his criminal history, including subsequent offenses, are properly considered when imposing a sentence. Defendant's history and repeated, utter disregard for any boundaries set by the trial court or probation department underscored his inability to conform his conduct to the rules of society, and supported the trial court's decision.

 

Issues: Whether the plaintiff-nursing home's claims for the defendant's delay in filling a prescription sounded in contract or tort; Local 1064, RWDSU AFL-CIO v. Ernst & Young; Mobil Oil Corp. v. Thorn

Court: Michigan Court of Appeals (Unpublished)

Case Name: Woodward Nursing Home, Inc. v. Medical Arts, Inc.

e-Journal Number: 43119

Judge(s): Per Curiam - Jansen, Hoekstra, and Markey

 

Concluding the cause of action the plaintiff-nursing home pleaded as a contract claim was not a contract claim, but rather it claimed damages sounding in tort, the court reversed the trial court's decision to allow the alleged contract claim to go forward and remanded the case to the trial court. Defendant, in an interlocutory appeal, challenged the trial court's order denying in part its motion for summary disposition. Plaintiff alleged defendant agreed in a written contract to provide prescription medications and supplies for plaintiff's nursing home residents. Plaintiff contended it sent defendant a prescription order, which defendant failed to process and deliver for more than 12 days. After its prior case against defendant was dismissed, plaintiff filed this case alleging, inter alia, breach of contract, breach of implied contract, breach of warranty, breach of implied warranty, misrepresentation, and negligent performance of a contract. Copies of the pharmacy consultant agreement, the vendor pharmacy agreement, and the nurse staffing agreement were attached to the complaint. The trial court dismissed all the claims except for breach of contract. The court noted plaintiff's contract claim asserted damages in the form of lost certification as a Medicaid provider, which in turn allegedly caused plaintiff to stop operating as a nursing home, the state's termination of plaintiff's provider agreement, and regulatory sanctions. There was no allegation "plaintiff suffered expenses in having to obtain the expected product or service elsewhere, and no demand for a refund of consideration tendered for products not delivered." Thus, the court held plaintiff claimed damages sounding in tort, not in contract. Further, because plaintiff's contract claim included no prayer for contract damages, the trial court erred in failing to dismiss it on this basis alone. Reversed and remanded.

 

Issues: Injunctive relief regarding an express utility easement; Higgins Lake Prop. Owners Ass'n v. Gerrish Twp.; Maldonado v. Ford Motor Co.; Woodard v. Custer; Kernen v. Homestead Dev. Co.; Thermatool Corp. v. Borzym; Department of Natural Res. v. Carmody-Lahti Real Estate, Inc.; The "equities of the case"; Prescriptive parking easement; Fast Air, Inc. v. Knight; Sutton v. Oak Park; Plymouth Canton Cmty. Crier, Inc. v. Prose; Maiden v. Rozwood

Court: Michigan Court of Appeals (Unpublished)

Case Name: Colucci v. Evangelista

e-Journal Number: 43117

Judge(s): Curiam - Borrello, Meter, and Stephens

 

The court held the trial court's balancing of the equities (the benefit to plaintiff of an injunction against the inconvenience to defendants) in this case was reasonable and affirmed its order denying plaintiff's motion for summary disposition and request for an injunction prohibiting the defendants from interfering with an express utility easement burdening their property and instead ordering defendants to pay the cost of relocating plaintiff's utility services from their property to her property. The properties at issue were once owned by a common owner, who located the utilities for both properties on what is now defendants' property and serviced what is now plaintiff's property through utility service lines and meters located on defendants' property. Defendants intended to demolish the building housing at least one of the utility meters serving plaintiff's property and requested she remove her water meter from the property within 14 days. Plaintiff obtained a TRO and filed a complaint for a permanent injunction. On appeal, she argued the trial court erred in refusing to grant a permanent injunction to protect her utility easement. The court concluded the nature of the interest protected, plaintiff's utility easement, was not an interest that can only be protected by the issuance of an injunction. There was "a quantifiable measure of damages based on the cost of relocating the utilities to plaintiff's property." Thus, there was an adequate remedy at law and no irreparable harm to plaintiff. Her need for utility services was adequately protected by the trial court's order requiring defendants to relocate plaintiff's utility lines and meters onto her property at their expense. According to the testimony of a building and planning inspector for the city, plaintiff's utility easement was an unusual arrangement. Arguably, the value of plaintiff's property would be increased by relocating the utilities from defendants' property onto her property, and she would not bear the economic burden of relocating the utilities. "In short, this is simply not the sort of property interest that could only be preserved by the granting of an injunction." Further, the trial court also properly denied plaintiff's request for injunctive relief because of the hardship to defendants if an injunction were issued. They sought to demolish the building housing the utility lines and meters servicing plaintiff's property because the buildings on their property were dilapidated and abandoned, and they wanted to improve and redevelop the property. The trial court's ruling, which essentially terminated the easement, "was proper in light of the equities of the case." The granting of an injunction would have prevented defendants from improving and redeveloping their commercial property during a difficult economic time. The hardship to defendants if the trial court granted plaintiff an injunction would have been much greater than the hardship to plaintiff caused by denial of the injunction. Affirmed.

 

Issues: Zoning; Whether the defendant-Township properly filed its petition for rezoning during the moratorium; Whether the petition was defective because it sought to rezone multiple nonadjacent properties in a single petition; MCL 125.284; Equal protection; Burise v. City of Pontiac; Denial of waiver; "Rational basis" analysis; Dowerk v. Oxford Twp.; Due process; Rollingwood Homeowners Corp. v. Flint; Landon Holdings, Inc. v. Grattan Twp.; MCL 125.3845(2); Rezoning; Frericks v. Highland Twp.; Dorman v. Clinton Twp.; Greater Bible Way Temple v. City of Jackson; Yankee Springs Twp. v. Fox; Campbell v. Kovich; Pythagorean, Inc. v. Grand Rapids Twp.; "Taking"; K & K Constr. v. Department of Natural Res.; Tahoe-fSierra Preservation Council v. Tahoe Reg'l Planning Agency; "Categorical" taking; Bevan v. Brandon Twp.; Penn Cent. Transp. Co. v. New York City "balancing test"; K & K Constr., Inc. v. Department of Envt'l. Quality; Exclusionary zoning; Adams Outdoor Adver., Inc. v. City of Holland; Challenges to the Township's tree ordinance (Art. XXVII, § 27.12); Conlin v. Scio Twp.; Ripeness; Paragon Props. Co. v. City of Novi; Headlee Amendment; Whether the ordinance imposed a fee or a tax; Westlake Transp., Inc. v. Public Serv. Comm'n; Wheeler v. Charter Twp. of Shelby; 42 USC § 1983

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dan & Jan Clark, LLC v. Charter Twp. of Orion

e-Journal Number: 43114

Judge(s): Per Curiam - Fitzgerald, Talbot, and Shapiro

 

The court held there were no procedural defects with the defendant-Township's petition for rezoning and the trial court properly granted summary disposition to the Township. The case arose from a rezoning dispute for 6.64 acres (the Clark property). Plaintiff purchased the land in 1999, intending to develop it commercially pursuant to its then existing zoning classification of GB-2, General Business. Additional properties relevant to the appeal included - 1) the adjacent property to the south of the Clark property (Home Depot property), 2) the adjacent property to the north of the Clark property (Atchoo property), and 3) the property to the north of the Atchoo property (Bald Mountain property). The Township determined permitting new development or expansion and rezoning in the area would be "counter-productive" and imposed a 120-day moratorium on June 20, 2005, which was later extended for an additional 180 days. Ultimately, the Township Board concurred with the recommendations and reasoning of the Township Planning Commission and rezoned the Bald Mountain property from Rec-2 to SE, rezoned the Clark property from GB-2 to OP-1, and denied rezoning the Atchoo property, leaving it OP-1. Plaintiff appealed the decision to rezone the Clark property and requested a variance to permit the uses allowed under a GB-2 zoning designation, but its appeal was dismissed for lack of jurisdiction. Plaintiff sued alleging, inter alia, substantive due process violations, an unconstitutional "taking," and equal protection violations. On appeal, plaintiff claimed the Township improperly filed its petition for rezoning during the moratorium and its petition was defective because it sought to rezone multiple, nonadjacent properties in a single petition, contrary to MCL 125.284. The 180-day extension to the initial moratorium ran until April 16, 2006. The petition requesting rezoning was not filed until April 21, 2006. Thus, the petition was not filed during the moratorium. As to plaintiff's claim the Township's petition was defective because it sought to rezone multiple, nonadjacent properties, the court failed to see how MCL 125.284 supported plaintiff's position. Nothing in the statute related to how many properties, adjacent or otherwise, may be contained within a single petition for rezoning. It was simply a notice provision. The court also held, inter alia, the evidence showed there was clearly room for legitimate differences of opinion as to the zoning and use of the Clark property, and where there is room for a legitimate difference of opinion about an ordinance's reasonableness, there is no due process violation. Plaintiff also failed to prove an equal protection claim, and summary disposition was proper on its taking claims. Affirmed.

 

Issues: Zoning; Whether the defendant-Township properly filed its petition for rezoning during the moratorium; Whether the petition was defective because it sought to rezone multiple nonadjacent properties in a single petition; MCL 125.284; Equal protection; Burise v. City of Pontiac; Denial of waiver; "Rational basis" analysis; Dowerk v. Oxford Twp.; Due process; Rollingwood Homeowners Corp. v. Flint; Landon Holdings, Inc. v. Grattan Twp.; MCL 125.3845(2); Rezoning; Frericks v. Highland Twp.; Dorman v. Clinton Twp.; Greater Bible Way Temple v. City of Jackson; Yankee Springs Twp. v. Fox; Campbell v. Kovich; Pythagorean, Inc. v. Grand Rapids Twp.; "Taking"; K & K Constr. v. Department of Natural Res.; Tahoe-fSierra Preservation Council v. Tahoe Reg'l Planning Agency; "Categorical" taking; Bevan v. Brandon Twp.; Penn Cent. Transp. Co. v. New York City "balancing test"; K & K Constr., Inc. v. Department of Envt'l. Quality; Exclusionary zoning; Adams Outdoor Adver., Inc. v. City of Holland; Challenges to the Township's tree ordinance (Art. XXVII, § 27.12); Conlin v. Scio Twp.; Ripeness; Paragon Props. Co. v. City of Novi; Headlee Amendment; Whether the ordinance imposed a fee or a tax; Westlake Transp., Inc. v. Public Serv. Comm'n; Wheeler v. Charter Twp. of Shelby; 42 USC § 1983

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dan & Jan Clark, LLC v. Charter Twp. of Orion

e-Journal Number: 43114

Judge(s): Per Curiam - Fitzgerald, Talbot, and Shapiro

 

The court held there were no procedural defects with the defendant-Township's petition for rezoning and the trial court properly granted summary disposition to the Township. The case arose from a rezoning dispute for 6.64 acres (the Clark property). Plaintiff purchased the land in 1999, intending to develop it commercially pursuant to its then existing zoning classification of GB-2, General Business. Additional properties relevant to the appeal included - 1) the adjacent property to the south of the Clark property (Home Depot property), 2) the adjacent property to the north of the Clark property (Atchoo property), and 3) the property to the north of the Atchoo property (Bald Mountain property). The Township determined permitting new development or expansion and rezoning in the area would be "counter-productive" and imposed a 120-day moratorium on June 20, 2005, which was later extended for an additional 180 days. Ultimately, the Township Board concurred with the recommendations and reasoning of the Township Planning Commission and rezoned the Bald Mountain property from Rec-2 to SE, rezoned the Clark property from GB-2 to OP-1, and denied rezoning the Atchoo property, leaving it OP-1. Plaintiff appealed the decision to rezone the Clark property and requested a variance to permit the uses allowed under a GB-2 zoning designation, but its appeal was dismissed for lack of jurisdiction. Plaintiff sued alleging, inter alia, substantive due process violations, an unconstitutional "taking," and equal protection violations. On appeal, plaintiff claimed the Township improperly filed its petition for rezoning during the moratorium and its petition was defective because it sought to rezone multiple, nonadjacent properties in a single petition, contrary to MCL 125.284. The 180-day extension to the initial moratorium ran until April 16, 2006. The petition requesting rezoning was not filed until April 21, 2006. Thus, the petition was not filed during the moratorium. As to plaintiff's claim the Township's petition was defective because it sought to rezone multiple, nonadjacent properties, the court failed to see how MCL 125.284 supported plaintiff's position. Nothing in the statute related to how many properties, adjacent or otherwise, may be contained within a single petition for rezoning. It was simply a notice provision. The court also held, inter alia, the evidence showed there was clearly room for legitimate differences of opinion as to the zoning and use of the Clark property, and where there is room for a legitimate difference of opinion about an ordinance's reasonableness, there is no due process violation. Plaintiff also failed to prove an equal protection claim, and summary disposition was proper on its taking claims. Affirmed.

 

Issues: Premises liability; Slip and fall on black ice; Whether the trial court properly denied the defendant's motion for summary disposition; Whether defendant had a duty to protect the plaintiff from an open and obvious condition; Bertrand v. Alan Ford, Inc.; Lugo v. Ameritech Corp.; Joyce v. Rubin; Ververis v. Hartfield Lanes; Slaughter v. Blarney Oil Castle Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Garrison v. St. Paul Fabric Servs., Inc.

e-Journal Number: 43100

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

 

The trial court did not err in rejecting the defendant's argument it did not have a duty to act when the entirety of the parking lot was clear except for the ice patch upon which the injured plaintiff slipped, particularly since the danger (ice patch) was in the handicapped parking area of the lot. Thus, there was a question of fact as to whether defendant breached its duty to the plaintiff and the trial court properly denied defendant's motion for summary disposition, based on Slaughter. On January 8, 2002, plaintiff slipped and fell on black ice in a parking lot by defendant's store. The day was overcast, plaintiff thought the temperature was in the 30s, and no snow had fallen for a day or so. She claimed the asphalt lot was clear and she saw no snow remaining in the parking lot, except for a "very small amount" to the far side of the row of buildings. Her husband drove their vehicle to the handicapped spot in front of the store. Plaintiff (who is disabled due to an unrelated condition) said she looked down before she stepped out of the truck. The area looked clear, both where she was about to step, and all of the surrounding asphalt. Plaintiff put her left foot on the ground. Her leg immediately went out from under her, and she fell on her left knee. She landed on her hands and her shoulder jammed against the truck. She realized she had slipped on ice when she felt the ice under her hands. She did not see the ice before she fell. Plaintiff said the store manager stated the ice was supposed to have been taken care of that morning. In Slaughter, the court held in order to find black ice to be open and obvious, some evidence must exist either to show the black ice at issue would have been visible on casual inspection prior to the fall, or there were other signs which could place an individual on notice of a potentially hazardous condition. The court concluded this case presented a more compelling case for finding the condition was not open and obvious than Slaughter. The court held the trial court did not err in finding a question of fact existed as to whether defendant breached its duty to plaintiff. Affirmed.

 

Issues: Injunctive relief regarding an express utility easement; Higgins Lake Prop. Owners Ass'n v. Gerrish Twp.; Maldonado v. Ford Motor Co.; Woodard v. Custer; Kernen v. Homestead Dev. Co.; Thermatool Corp. v. Borzym; Department of Natural Res. v. Carmody-Lahti Real Estate, Inc.; The "equities of the case"; Prescriptive parking easement; Fast Air, Inc. v. Knight; Sutton v. Oak Park; Plymouth Canton Cmty. Crier, Inc. v. Prose; Maiden v. Rozwood

Court: Michigan Court of Appeals (Unpublished)

Case Name: Colucci v. Evangelista

e-Journal Number: 43117

Judge(s): Curiam - Borrello, Meter, and Stephens

 

The court held the trial court's balancing of the equities (the benefit to plaintiff of an injunction against the inconvenience to defendants) in this case was reasonable and affirmed its order denying plaintiff's motion for summary disposition and request for an injunction prohibiting the defendants from interfering with an express utility easement burdening their property and instead ordering defendants to pay the cost of relocating plaintiff's utility services from their property to her property. The properties at issue were once owned by a common owner, who located the utilities for both properties on what is now defendants' property and serviced what is now plaintiff's property through utility service lines and meters located on defendants' property. Defendants intended to demolish the building housing at least one of the utility meters serving plaintiff's property and requested she remove her water meter from the property within 14 days. Plaintiff obtained a TRO and filed a complaint for a permanent injunction. On appeal, she argued the trial court erred in refusing to grant a permanent injunction to protect her utility easement. The court concluded the nature of the interest protected, plaintiff's utility easement, was not an interest that can only be protected by the issuance of an injunction. There was "a quantifiable measure of damages based on the cost of relocating the utilities to plaintiff's property." Thus, there was an adequate remedy at law and no irreparable harm to plaintiff. Her need for utility services was adequately protected by the trial court's order requiring defendants to relocate plaintiff's utility lines and meters onto her property at their expense. According to the testimony of a building and planning inspector for the city, plaintiff's utility easement was an unusual arrangement. Arguably, the value of plaintiff's property would be increased by relocating the utilities from defendants' property onto her property, and she would not bear the economic burden of relocating the utilities. "In short, this is simply not the sort of property interest that could only be preserved by the granting of an injunction." Further, the trial court also properly denied plaintiff's request for injunctive relief because of the hardship to defendants if an injunction were issued. They sought to demolish the building housing the utility lines and meters servicing plaintiff's property because the buildings on their property were dilapidated and abandoned, and they wanted to improve and redevelop the property. The trial court's ruling, which essentially terminated the easement, "was proper in light of the equities of the case." The granting of an injunction would have prevented defendants from improving and redeveloping their commercial property during a difficult economic time. The hardship to defendants if the trial court granted plaintiff an injunction would have been much greater than the hardship to plaintiff caused by denial of the injunction. Affirmed.

 

Issues: Termination of parental rights under §§ 19b(3)(b)(i), (g), and (j); Children's best interests; MCL 712A.19b(5); In re Trejo Minors; Ineffective assistance of counsel; People v. Davis; Badiee v. Brighton Area Schs.

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Brook

e-Journal Number: 43127

Judge(s): Per Curiam - Wilder, Meter, and Servitto

 

The court held the trial court properly found termination of the respondent-father's parental rights was not clearly contrary to the children's best interests and correctly terminated his parental rights to the two minor children where clear and convincing evidence established the statutory grounds for termination. He pleaded no contest to felony charges of child sexually abusive activity and CSC IV. The conviction for the former offense arose when 21 photographs were found in a photo album inside respondent's home. Some of these depicted a young girl in compromising poses, with his son K sleeping next to her. In one photograph, respondent's hand pulled aside the girl's underwear and revealed her vaginal area. The pictures were probably taken sometime in 1996 when K would have been six years old. The second conviction was the result of allegations respondent's cousin made against him for sexual molestations occurring in 2001 and 2002. On one occasion, respondent rubbed her stomach and unzipped her pants while she was sleeping. Another time, he placed his hand down her shirt and fondled her breasts. He argued before these criminal allegations, he was a model father, providing both financial and emotional support to his children. He claimed the children's mother was responsible for parental alienation, and the trial court clearly erred in finding termination was not clearly contrary to the children's best interests. It was clear the trial court was aware of the mother's behavior and took this into consideration when rendering its decision. The simple fact was respondent was a convicted child molester and owner of child pornography. He pleaded no contest to these criminal charges, and the termination trial was not the forum for re-litigating the underlying facts and allegations. Because respondent refused to accept any responsibility for his behavior, he was not amenable to treatment. Without treatment, he remained a threat to his children. Affirmed.

 

Issues: Termination of parental rights under §§ 19b(3)(c)(i), (g), and (j); Children's best interests; In re Trejo Minors; Ineffective assistance of counsel; In re Simon; Strickland v. Washington

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Hicks

e-Journal Number: 43130

Judge(s): Per Curiam - Wilder, Meter, and Servitto

 

The court held the trial court properly found termination of the respondent-father's parental rights was not clearly contrary to the children's best interests and correctly terminated his parental rights to the two minor children where clear and convincing evidence established the statutory grounds for termination. There was evidence the children had been assigned a DHS caseworker for four years and respondent was in and out of jail during that time. Further, there was very little compliance with the case-service plan. On the basis of the evidence of respondent's past behavior and lack of progress on the case service plan, the trial court had no reason to believe his behavior would change in the near future. Further, respondent failed to establish his counsel was ineffective. Affirmed.

 

Issues: Termination pursuant to §§ 19b(3)(c)(i), (g), and (j); In re McIntyre; Children's best interests

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Robbins

e-Journal Number: 43081

Judge(s): Per Curiam - Owens, Servitto, and Gleicher

 

The trial court did not clearly err in determining the respondent-mother did not provide proper care and custody for the two minor children, she would be unable to do so within a reasonable time, and there was a reasonable likelihood they would be harmed if returned to her home. Thus, the court affirmed the trial court's order terminating respondent's parental rights. The court concluded she had poor decision making skills, she did not know how to care for the children on her own, she was unable to maintain employment to support them, and she lacked suitable housing. Although she admitted the services she had been offered had not benefited her, she refused to accept an appropriate support system with the paternal grandmother so she could provide proper care and custody with adequate support. The paternal grandmother offered to assist with housing and support for respondent and the children on the condition respondent disassociate herself from the respondent-father, but respondent refused. Domestic violence between respondent and the father continued to be an issue, and she was unable to separate from this. The court also noted she was unable to determine appropriate discipline for the children, as shown by her trying to punish her younger child while he was still a baby by shaking him. Further, the trial court did not clearly err in its best interests determination. Respondent did not have an emotional bond or relationship with the children. The termination hearing began almost two and a half years after the trial court took jurisdiction over the older child, and when it ended three months later, the children were two and four years old. They had been in temporary care for a significant amount of time and were at an age where permanency was essential for their continued development and growth. Affirmed.

 

Issues: Termination of parental rights under §§ 19b(3)(b)(i) and (ii), and (j); In re Utrera; Children's best interests; In re Trejo Minors

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Ruiz-Zedejas

e-Journal Number: 43133

Judge(s): Per Curiam - Owens, Servitto, and Gleicher

 

In these consolidated appeals, the trial court properly terminated both respondents' parental rights to the four minor children where clear and convincing evidence established the statutory grounds for termination. The three older children became temporary court wards due to suspected child abuse. MG was treated for various injuries inconsistent with the respondent-mother's explanations. She was discovered to have multiple broken bones in various stages of healing which had gone untreated. After participating in services, respondents were deemed rehabilitated and the children were returned to their care. The following year, J was treated for a segmental fracture of the femur, and the mother's explanation for the injury, although possible, was not likely. Additional investigation revealed the child had sustained a broken clavicle four to six months earlier, which went untreated despite evidence he would have been in severe pain. The trial court also did not clearly err in finding termination of their parental rights was in the children's best interests. Affirmed.