Dog-bite action; The dog-bite statute; MCL 287.351; “Licensee” defined; Stitt v. Holland Abundant Life Fellowship; Trespass to land; Adams v. Cleveland-Cliffs Iron Co.

The court held that the trial court did not err by granting summary disposition for defendants-dog owners in plaintiff’s dog-bite action. Plaintiff sued defendants for injuries he sustained to his hand when he reached over defendants’ fence and was bitten by their dog. At the hearing on defendants’ motion for summary disposition, the trial court dismissed plaintiff’s negligence claim as abandoned, finding he failed to present any argument in opposition to defendants’ claims. It also dismissed his statutory claim because he was not lawfully on defendants’ property. On appeal, the court rejected his argument that his claim under the dog-bite statute was improperly dismissed because he was lawfully on his niece’s property when he was bitten by defendants’ dog and thus, they were strictly liable for the dog’s actions. “The dog actually bit plaintiff’s hand while—and because—plaintiff had his hand over the fence and protruding into defendants’ backyard. The dog did not jump over the fence and bite plaintiff while he was lawfully in his niece’s backyard; rather, in effect, plaintiff entered into defendants’ backyard and then was bitten.” Moreover, he admitted that he did not have actual permission to place his hand into their backyard and that before he was bitten “the dog had been running up and down the fence line growling and barking at” him. “Considering this behavior, no reasonable juror could infer that plaintiff was given permission to place his hand into defendants’ backyard at that time.” Thus, the dog bite “did not occur while plaintiff was lawfully on private property” but rather “when plaintiff, albeit only his hand, was on defendants’ private property.” There was no genuine issue of material fact that he “was a trespasser on defendants’ private property when he was bitten by their dog.” As such, his "claim under MCL 287.351 was properly dismissed.” Finally, the court noted that he did not challenge the dismissal of his negligence claim on appeal. Affirmed.

Action involving a charging lien against settlement proceeds; Equitable liens; Barnes v. Alexander; Warren Tool Co. v. Stephenson; Berke v. Murphy; Principle that an equitable lien cannot be imposed if the proponent has an adequate remedy at law; In re Estate of Moukalled; Yedinak v. Yedinak; Ashbaugh v. Sinclair; Effect of a party’s solvency on the other party’s remedy; Maclean v. Fitzsimons; Principle that equity grants a court broad power to fashion relief as the circumstances require; Madugula v. Taub

Holding that the trial court erred by finding that an equitable lien was authorized in this case, the court reversed that part of its order. Appellee-attorney represented plaintiffs in their underlying negligence action. He left appellant-law firm’s employ after the case was settled, but before the trial court entered the award. Claiming he had a fee-splitting arrangement with appellant, appellee asserted a charging lien over 25% of the funds appellant was to receive from the arbitration proceeds. The trial court granted in part and denied in part appellant’s motion to discharge the lien, ruling that appellee was not entitled to a charging lien because he did not have a direct attorney-client relationship with plaintiffs. However, it found he was entitled to an equitable lien. On appeal, the court agreed with appellant that the trial court erred by finding than an equitable lien was authorized, noting that appellee had an adequate remedy at law. “The trial court correctly recognized that appellee ‘may [have] a claim at law to enforce his employment contract.’” However, it “erred by concluding that an equitable lien would provide appellee with ‘a more complete remedy’ due to appellant’s ‘purported precarious financial condition.’” Because “appellant was solvent, there was no basis for the trial court to conclude that an equitable lien would provide appellee with ‘a more complete remedy’ than he would receive by prevailing on a breach of contract claim. If appellee is entitled to a portion of the attorney fees from the underlying case, then he would be able to recover the same amount in an action for breach of contract as he would from his asserted equitable lien.” Because appellee did not challenge the trial court’s ruling that he was not entitled to an attorney’s charging lien, the court did not address it.

Action for a lien on the proceeds of a lawsuit; Equitable lien; Johnson v. Bush Lumber Co.; Warren Tool Co. v. Stephenson; Principle that an equitable lien cannot be imposed if the proponent has an adequate remedy at law; In re Moukalled Estate; Yedinak v. Yedinak; Ashbaugh v. Sinclair; Failure to provide authority for a claim; Liggett Rest. Group, Inc. v. City of Pontiac; Effect of a party’s solvency on the other party’s remedy at law; Maclean v. Fitzsimons; Principle that equity grants a court broad power to fashion relief as the circumstances require; Madugula v. Taub; Collateral estoppel; Ditmore v. Michalik; Young v. Detroit City Clerk; Ford v. Woodward Tap, Inc. (Oakland County Circuit Court)

The court held that the trial court properly granted appellee-law firm’s motion to terminate appellant-attorney’s lien on settlement proceeds. Appellant represented plaintiff in the underlying wrongful death action. Before the action was settled, he left appellee’s employment, but asserted a lien on any settlement proceeds. He claimed that pursuant to an employment contract, he was to receive 40% of any contingency fees recovered from cases he brought to appellee. The trial court ruled that he was not entitled to an equitable lien because he had an adequate remedy at law, and was not entitled to a charging lien because he did not have a contract with plaintiff. On appeal, the court rejected his argument that the trial court erred by not finding that he was entitled to equitable lien, noting he has an adequate remedy at law. If he “were not granted an equitable lien, he could nonetheless collect the portion of the settlement proceeds that he is allegedly owed by bringing a cause of action against appellee for breach of contract.” It also rejected his claim that his remedy at law is “inadequate because he ‘would be forced to incur costly litigation and long delays to vindicate his legal claims.’” While “litigating a claim is certainly inconvenient, it may be necessary in this case in order for a court to determine whether appellant and appellee had a contract, what the terms of that contract were, and whether appellee violated those terms thereby entitling appellant to damages.” It further rejected his contention that his legal remedy was inadequate given appellee’s solvency issues. “While we understand appellant’s concern, there is nothing in the record before us to warrant the conclusion that appellant would be unable to collect in full any damages that may be awarded to him from a favorable judgment for breach of contract against appellee.” Finally, it rejected his argument, based on a circuit court case (Ford), that the trial court’s ruling was precluded by collateral estoppel because the parties fully litigated whether he “was entitled to an equitable lien before another court,” which decided that he was. “While Ford involved the same parties and issue, the underlying transaction in that case involved different plaintiffs and a different defendant.” As such, because the Ford decision arose from a different transaction, it lacked preclusive effect. Affirmed.

Attorneys’ liens; George v. Sandor M Gelman, PC; Principle that before an attorney is entitled to payment for services rendered, an attorney-client relationship must be established by contract; Plunkett & Cooney, PC v. Capitol Bancorp Ltd.; Principle that equity will not generally take jurisdiction of cases where a suitor has a full, complete, & adequate remedy at law; Madugula v. Taub; Principle that an attorney on a contingent fee arrangement who is wrongfully discharged, or who rightfully withdraws, is entitled to compensation for the reasonable value of his services based upon quantum meruit & not the contingent fee contract; Ambrose v. Detroit Edison Co.; Reynolds v. Polen; Principle that a claim in quantum meruit is equitable in nature; Morris Pumps v. Centerline Piping, Inc.

Holding that the trial court abused its discretion by extinguishing the appellant-law firm’s attorneys’ lien on any proceeds obtained in plaintiff’s underlying case, the court reversed the trial court’s order and remanded. Appellee-attorney, who was employed by appellant, represented plaintiff in the underlying employment action against defendant. During the case, plaintiff terminated his relationship with appellant and asked appellant to turn his file over to appellee, who left the firm shortly thereafter. Appellant then sought and received a lien on any proceeds obtained in the action. Before the case settled, the trial court granted appellee’s motion to extinguish the lien. On appeal, the court agreed with appellant that this was an abuse of discretion. It noted that because plaintiff “signed a contract with appellant” he “‘had the contractual obligation to pay [appellant] for services rendered.’” The trial court “incorrectly concluded that appellant’s separate civil suit with appellee could calculate the value of appellant’s lien in this case and provide appellant with its entitled remedy against plaintiff.” Because “only plaintiff, and not appellee, had an obligation to pay appellant for the services that appellant rendered in the underlying case, the trial court’s decision that appellant could receive its remedy in its separate civil suit with appellee was outside the range of reasonable and principled outcomes.” Further, “based on Ambrose, appellant’s remedy could not be based on its contingent-fee contract with plaintiff, but rather could only be based upon quatum meruit, and ‘a claim in quantum meruit is equitable in nature.’” As such, appellee’s argument that appellant had an adequate remedy at law was meritless. The court directed the trial court on remand to “determine the reasonable amount owed appellant for the services it rendered” in the underlying case and, if necessary, to “conduct an evidentiary hearing to determine the reasonable amount owed.”

Action under 42 USC § 1983 alleging a Fourth Amendment violation; Whether the defendant-police officer’s actions resulting in the plaintiff’s decedent’s death were reasonable; Qualified immunity; Saucier v. Katz, Pearson v. Callahan; Excessive force claim; Graham v. Connor; Mullins v. Cyranek; Use of deadly force to prevent a fleeing suspect’s escape; Tennessee v. Garner; Untalan v. City of Lorain; Deadly force claims involving vehicular flight; Cass v. City of Dayton; Smith v. Cupp; Scott v. Clay Cnty.; Smith v. Freland; Hermiz v. City of Southfield (Unpub. 6th Cir.); Godawa v. Byrd; Sigley v. City of Parma Heights; Whether the right to be free from deadly force under the circumstances was “clearly established” at the time of the violation; Mullenix v. Luna; Hagans v. Franklin Cnty. Sheriff’s Office; White v. Pauly; Violation of police department policies; Bell v. City of E. Cleveland

[This appeal was from the ED-MI.] The court held that the defendant-former police officer (Phillips) was entitled to qualified immunity in the shooting death of plaintiff’s decedent (Latits) because even though Phillips’s use of deadly force was objectively unreasonable, violating the Fourth Amendment, the right to be free from deadly force under the circumstances was not clearly established at the time of the violation. After a car chase, Phillips rammed Latits’s car and then shot him when he tried to flee. The police department fired him for violating police policy by “engag[ing] in vehicular pursuit as the third police car without permission, pass[ing] the secondary and primary vehicles in the pursuit, us[ing] a PIT [Pursuit Intervention Technique] maneuver in violation of a direct order, and [running] up to Latits’s car instead of taking a tactical position using his vehicle as cover.” Latits’s estate sued under § 1983. The district court granted Phillips summary judgment, ruling that the shooting was reasonable. The court disagreed, concluding that the shooting was unreasonable. However, it held that Phillips was still entitled to qualified immunity. It considered whether “Latits presented an imminent danger to officers or the public at the time” Phillips shot him. After reviewing dashboard camera video, the court concluded that “because Officer Phillips fired after Latits’s car had passed the point where it could harm him, Phillips had time to realize he was no longer in immediate danger[,]” and that he “could see that no other officers or other persons were in Latits’s path” when he fired. It also considered “the prior interactions between Latits and Phillips.” It noted the non-violent nature of Latits’s suspected wrongdoing (drug possession). Further, viewed in the light most favorable to plaintiff, Latits’s conduct before being shot “showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk.” However, although the court concluded that the use of deadly force here was unreasonable, it found that Phillips was entitled to qualified immunity because the right to be free from deadly force under the circumstances was not clearly established at the time of the violation. It considered whether “the ‘particular conduct’ [was] violative ‘in light of the specific context of the case[,]’” and determined that “controlling authority at the time of the events had not clearly established the rights” it identified here. It found that Sigley and Cupp were distinguishable. Affirmed.

Action under 42 USC § 1983 alleging a Fourth Amendment violation; Whether the defendant-police officer’s actions resulting in the plaintiff’s decedent’s death were reasonable; Qualified immunity; Saucier v. Katz, Pearson v. Callahan; Excessive force claim; Graham v. Connor; Mullins v. Cyranek; Use of deadly force to prevent a fleeing suspect’s escape; Tennessee v. Garner; Untalan v. City of Lorain; Deadly force claims involving vehicular flight; Cass v. City of Dayton; Smith v. Cupp; Scott v. Clay Cnty.; Smith v. Freland; Hermiz v. City of Southfield (Unpub. 6th Cir.); Godawa v. Byrd; Sigley v. City of Parma Heights; Whether the right to be free from deadly force under the circumstances was “clearly established” at the time of the violation; Mullenix v. Luna; Hagans v. Franklin Cnty. Sheriff’s Office; White v. Pauly; Violation of police department policies; Bell v. City of E. Cleveland

[This appeal was from the ED-MI.] The court held that the defendant-former police officer (Phillips) was entitled to qualified immunity in the shooting death of plaintiff’s decedent (Latits) because even though Phillips’s use of deadly force was objectively unreasonable, violating the Fourth Amendment, the right to be free from deadly force under the circumstances was not clearly established at the time of the violation. After a car chase, Phillips rammed Latits’s car and then shot him when he tried to flee. The police department fired him for violating police policy by “engag[ing] in vehicular pursuit as the third police car without permission, pass[ing] the secondary and primary vehicles in the pursuit, us[ing] a PIT [Pursuit Intervention Technique] maneuver in violation of a direct order, and [running] up to Latits’s car instead of taking a tactical position using his vehicle as cover.” Latits’s estate sued under § 1983. The district court granted Phillips summary judgment, ruling that the shooting was reasonable. The court disagreed, concluding that the shooting was unreasonable. However, it held that Phillips was still entitled to qualified immunity. It considered whether “Latits presented an imminent danger to officers or the public at the time” Phillips shot him. After reviewing dashboard camera video, the court concluded that “because Officer Phillips fired after Latits’s car had passed the point where it could harm him, Phillips had time to realize he was no longer in immediate danger[,]” and that he “could see that no other officers or other persons were in Latits’s path” when he fired. It also considered “the prior interactions between Latits and Phillips.” It noted the non-violent nature of Latits’s suspected wrongdoing (drug possession). Further, viewed in the light most favorable to plaintiff, Latits’s conduct before being shot “showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk.” However, although the court concluded that the use of deadly force here was unreasonable, it found that Phillips was entitled to qualified immunity because the right to be free from deadly force under the circumstances was not clearly established at the time of the violation. It considered whether “the ‘particular conduct’ [was] violative ‘in light of the specific context of the case[,]’” and determined that “controlling authority at the time of the events had not clearly established the rights” it identified here. It found that Sigley and Cupp were distinguishable. Affirmed.

Whether a genuine issue of material fact remained as to whether mutual mistake warranted reformation of the insurance contract; Motion for summary disposition under MCR 2.116(C)(10); Lowrey v. LMPS & LMPJ, Inc.; Reforming a contract to effectuate the parties’ actual agreement; Casey v. Auto-Owners Ins. Co.; Mutual mistake; Kaftan v. Kaftan; Principle that listing a person as a driver on a no-fault policy does not make the person a “named insured”; Dobbelaere v. Auto-Owners Ins. Co.; Whether defendants were unilaterally mistaken; Whether the owner of the policy had a duty to review the policy for adequate coverage

Holding that the trial court erred by concluding that there was a genuine issue of material fact whether mutual mistake warranted reformation of the insurance contract, the court reversed the denial of plaintiff-Auto-Owners’s summary disposition motion, and remanded. Defendants contended “that both they and Auto-Owners mistakenly believed that Policy 42 provided coverage for all listed drivers for any vehicle they occupied,” including defendants (who were scheduled drivers on Policy 42). As evidence of each party’s mistaken belief, defendants cited the policy owner’s “testimony that he believed that Policy 42 insured all listed vehicles and drivers and Auto-Owners’s receipt of premium payments for PIP benefits on all seven vehicles listed in the policy.” The court held that the trial court erred by concluding that a genuine issue of material fact as to mutual mistake remained. On the contrary, the case reflected “defendants’ unilateral mistake regarding the terms of Policy 42. The policy clearly stated that PIP benefits were not available for out-of-state accidents unless the injured person was occupying the insured motor vehicle or the injured person was a named insured under the policy or a spouse or resident relative of a named insured. The rental vehicle was not an insured vehicle, and defendants were not named insureds or spouses or resident relatives of a named insured.” In response to Auto-Owners’s summary disposition motion, defendants submitted no evidence showing a genuine issue of material fact as to “whether Auto-Owners believed that the coverage available under Policy 42 was different than what was stated in the policy.”

Operating a vehicle with the presence of a controlled substance (marijuana) causing death; Challenges to the prosecution’s references to two medications (Flexeril & Valium) in defendant’s system & their clinical effects; People v. Feezel; People v. Schaefer; Ineffective assistance of counsel; Failure to file a motion in limine before trial to exclude evidence of Flexeril or Valium in his system or the effect of those drugs on his body; People v. Lane; Lay opinion regarding the cause of the collision; MRE 701 & 704; Miller v. Hensley; Sentencing; Upward departure; Reasonableness; People v. Lockridge; People v. Steanhouse; People v Dixon-Bey; People v. Solmonson

The court held that the evidence as to the presence of Flexeril and Valium in defendant-Kelty’s body did not affect his substantial rights. Also, he was not denied the effective assistance of counsel, and the trial court did not abuse its discretion by allowing a witness to offer a lay opinion about the cause of the accident. Finally, the trial court justified its upward departure sentence and the reasonableness of the 2½ year departure, so Kelty’s sentences did not violate the principle of proportionality. He was convicted of operating a motor vehicle while license suspended or revoked causing death, and operating a motor vehicle with the presence of a controlled substance [THC (marijuana)] causing death. On appeal, he challenged the prosecution’s references to two medications, Flexeril and Valium, in his system and their clinical effects. He argued that “the trial court erred by allowing the prosecution to comment during the opening statement that blood test results revealed that defendant had THC, Flexeril, and Valium in his system at the time of the accident, to comment on the effect of these drugs on the body, and to elicit testimony that blood test results showed the presence of Flexeril and Valium in his system at the time of the accident.” The court concluded that even assuming he could show plain error as to the prosecution’s opening statement and the admission of the evidence about the presence of Flexeril and Valium in his system, he did not demonstrate that the error affected his substantial rights. The question was whether his “operation of the vehicle proximately caused the motorcyclist’s death, not whether a reason explained how” he was operating his vehicle. The evidence overwhelmingly indicated that he was driving his vehicle southbound in the northbound lane of the road “when the motorcycle legally turned into the northbound lane” of the road and collided head-on with his vehicle, showing that his operation of his vehicle “directly and naturally caused the motorcyclist’s death.” Thus, the evidence about the presence of Flexeril and Valium in his body did not affect his substantial rights. Affirmed.

Search & seizure; Probable cause for a search warrant; People v. Franklin; People v. Stumpf; People v. Nunez; People v. Nguyen; People v. Waclawski; Sufficiency of the evidence; People v. Herndon; Whether it was proper to aggregate the separate amounts of cocaine in order to charge defendant with the greater charge of possession with intent to deliver 50 grams or more but less than 450 grams of cocaine rather than two lesser charges of possession with intent to deliver less than 50 grams of cocaine; People v. Crawford; People v. Marion; People v. Cortez; Actual or constructive possession; People v. Wolfe

The court held that the trial court did not err in denying defendant’s motion to quash and suppress the evidence because probable cause supported the search warrant. Also, there was sufficient evidence to establish that he had either actual or constructive possession of 50 or more grams, but less than 450 grams, of cocaine. Further, the evidence was sufficient to support his conviction, even though the cocaine was not all found at the same location. He was convicted of possession with intent to deliver 50 grams or more, but less than 450 grams, of cocaine. The court concluded that the affidavit provided probable cause to support the issuance of the search warrant. The affiant, Officer A, listed his experience and training in narcotics enforcement. He indicated that approximately 48 hours before the execution of the warrant, a confidential informant (CI) participated in a controlled purchase of cocaine from defendant. The CI was “searched before the controlled buy and did not have any drugs or money on his person or in his vehicle.” The CI was given marked funds by A, and other officers watched as defendant left 7597 K St. and met briefly with the CI. The affidavit stated that defendant returned to 7597 K St., and the CI met with A, turned over cocaine, and stated that he purchased the cocaine from defendant using the marked funds. The substance received by the CI was field-tested and the results were positive for cocaine. The affidavit also included information that the CI had assisted the police “seven times in the past, and that his assistance had led to the arrest of individuals who sold narcotics, as well as the recovery of narcotics, firearms, and proceeds from narcotic sales.” It further provided that police surveillance of 7597 K St. for the past week “established that defendant routinely slept there. According to the affidavit,” the address was not registered to him, but A “believed, based on social media searches, that defendant had a relationship with one of the two persons registered at the address.” Defendant argued that there was not probable cause because no drug transaction took place inside 7597 K St. However, “[p]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of criminal activity.” It could be inferred from the facts in the affidavit “that there was a probability or substantial chance that defendant stored cocaine in” 7597 K St. Affirmed.

Motion for reconsideration of an order granting the plaintiff-ex-husband’s motion to enforce a judgment of divorce & extinguishing the defendant-ex-wife’s equity in the marital home; The trial court’s equity powers; Draggoo v. Draggoo; Devillers v. Auto Club Ins. Ass’n; Consent judgments & property settlements as contracts; Massachusetts Indem. & Life Ins. Co. v. Thomas; Smith v. Smith; Modification; Marshall v. Marshall; A trial court’s inherent authority to enforce its directives; Walworth v. Wimmer; Weathervane Window, Inc. v. White Lake Constr. Co.

The court reversed the trial court order denying the defendant-ex-wife’s motion for reconsideration of an order granting the plaintiff-ex-husband’s motion to enforce a judgment of divorce and extinguishing her equity in the marital home. Defendant argued that the trial court erred by extinguishing her right to equity in the marital home because the order improperly modified the property settlement provisions of the divorce judgment. The court agreed. Plaintiff’s suggestion that “a trial court retains unfettered discretion to remedy perceived inequities” was directly contradicted by case law. The court has “made clear that property settlement agreements cannot be modified absent specific exceptions—none of which is applicable here. Neither party has alleged fraud, duress, or mutual mistake. Plaintiff sought an order enforcing the judgment of divorce after defendant repeatedly failed to abide by its terms. Finding that equity favored him, the trial court entered an order to ‘enforce’ the judgement of divorce that accomplished two things: (1) it ordered defendant to execute all documents necessary for the sale of the home, and (2) it extinguished defendant’s right to any equity in the home and directed [her] to surrender all rights to the home within 30 days. Although the order to execute sale papers fell squarely within the trial court’s broad power to enter orders necessary to enforce the terms of the divorce judgment, the order extinguishing defendant’s right to equity in the home clearly violated the prohibition against property settlement agreement modification.” The order was not simply one to enforce the divorce judgment. It “actually changed the rights to property accorded to the parties in the property settlement. The trial court’s frustration with defendant’s ‘repeated and blatant disregard for and violation of court orders,’” was understandable. But it could not “revisit the equities of the more than 10-year-old divorce judgment.” Instead of penalizing defendant for her failure to cooperate with the terms of the judgment, “the trial court impermissibly altered the property settlement agreement and changed the substantive rights of the parties.” This error required reversal. However, the court noted that the trial court was not precluded “from entering an appropriate order on remand offsetting defendant’s equity in the marital home consistent with the terms of the parties’ judgment of divorce.” Remanded.

Whether a genuine issue of material fact remained as to whether mutual mistake warranted reformation of the insurance contract; Motion for summary disposition under MCR 2.116(C)(10); Lowrey v. LMPS & LMPJ, Inc.; Reforming a contract to effectuate the parties’ actual agreement; Casey v. Auto-Owners Ins. Co.; Mutual mistake; Kaftan v. Kaftan; Principle that listing a person as a driver on a no-fault policy does not make the person a “named insured”; Dobbelaere v. Auto-Owners Ins. Co.; Whether defendants were unilaterally mistaken; Whether the owner of the policy had a duty to review the policy for adequate coverage

Holding that the trial court erred by concluding that there was a genuine issue of material fact whether mutual mistake warranted reformation of the insurance contract, the court reversed the denial of plaintiff-Auto-Owners’s summary disposition motion, and remanded. Defendants contended “that both they and Auto-Owners mistakenly believed that Policy 42 provided coverage for all listed drivers for any vehicle they occupied,” including defendants (who were scheduled drivers on Policy 42). As evidence of each party’s mistaken belief, defendants cited the policy owner’s “testimony that he believed that Policy 42 insured all listed vehicles and drivers and Auto-Owners’s receipt of premium payments for PIP benefits on all seven vehicles listed in the policy.” The court held that the trial court erred by concluding that a genuine issue of material fact as to mutual mistake remained. On the contrary, the case reflected “defendants’ unilateral mistake regarding the terms of Policy 42. The policy clearly stated that PIP benefits were not available for out-of-state accidents unless the injured person was occupying the insured motor vehicle or the injured person was a named insured under the policy or a spouse or resident relative of a named insured. The rental vehicle was not an insured vehicle, and defendants were not named insureds or spouses or resident relatives of a named insured.” In response to Auto-Owners’s summary disposition motion, defendants submitted no evidence showing a genuine issue of material fact as to “whether Auto-Owners believed that the coverage available under Policy 42 was different than what was stated in the policy.”

Penalty interest for late payment of a claim under MCL 500.2006(4); Whether the claim arose under the commercial fire insurance policy at issue; Hearn v. Rickenbacker (MI); Richardson v. Allstate Inc. Co. (CA App.); McCarty v. First of GA Ins. Co. (10th Cir.); Hoskins v. Aetna Life Ins. Co. (OH); Picus v. Copus (WI App.); Oliver v. Perkins (MI); Florsheim v. Travelers Indem. Co. of IL (IL App.); Pleading requirements under MCL 500.2006(4); Hastings Mut. Ins. Co. v. Mosher Dolan Cataldo & Kelly, Inc. (Unpub. MI App.); Yaldo v. North Pointe Ins. Co. (MI); Federal-Mogul Corp. v. Insurance Co. of State of PA (ED MI); 1981-1982 MI Op. Att’y Gen. 326; Barker v. Underwriters at Lloyd’s, London (ED MI); Applicability of the six-year statute of limitations; MCL 600.5813; Department of Envtl. Quality v. Gomez (MI App.); MCL 600.5815; DiPonio Constr. Co. v. Rosati Masonry Co. (MI App.); Borden, Inc. v. State Dep’t of Treasury, Corp. Franchise Fee Div. (MI); MCL 600.5805

[This appeal was from the ED-MI.] In an issue of first impression, the court held that an action for penalty interest under Michigan law filed over four years after the loss in question was not governed by the commercial fire insurance policy’s two-year limitations provision. The court agreed with the plaintiff-insured (Palmer) that the claim was based on a Michigan statute, and because it did not arise under the policy, the policy’s contractual limitations provision did not apply. Rather, the six-year limitations period in MCL 600.5813 applied. The policy did not address any late payment issues, but the defendant-insurer (Scottsdale) argued that the penalty issue was “not ‘independent’ from the underlying contract claim for payment of the insured loss and thus derivatively arises under the Policy.” While Scottsdale relied on Hearn, the court found that case did not support Scottsdale’s position. Palmer was “not asserting a claim associated with nonpayment of a loss under the terms of the policy.” Rather, its claim was “associated with the payment of the claim.” It contended that Scottsdale “breached a separate statutory obligation to pay losses owed under the Policy in a timely manner.” Applying the principles of Hearn to the facts here, the court concluded that Palmer’s penalty-interest claim did “not arise from any legal duty created by the Policy.” Rather, it arose from an obligation created by MCL 500.2006(4). The court rejected Scottsdale’s argument that MCL 500.2006(4) linked the penalty-interest claim to the policy. There was no dispute that “Palmer was entitled to payment of its loss under the Policy, and Scottsdale has paid that loss. This leaves no doubt that Scottsdale had an obligation to timely make that payment under § 500.2006(4). Scottsdale failed to do so.” It also rejected Scottsdale’s claim that there is no independent cause of action under MCL 500.2006. Finally, it found that the district court erred by ruling that “Michigan’s catch-all, six-year period of limitations” in MCL 600.5813 did not apply. The court held that Palmer’s claim for penalty interest was a personal action governed by this statute of limitations. Reversed and remanded.

Action involving a charging lien against settlement proceeds; Equitable liens; Barnes v. Alexander; Warren Tool Co. v. Stephenson; Berke v. Murphy; Principle that an equitable lien cannot be imposed if the proponent has an adequate remedy at law; In re Estate of Moukalled; Yedinak v. Yedinak; Ashbaugh v. Sinclair; Effect of a party’s solvency on the other party’s remedy; Maclean v. Fitzsimons; Principle that equity grants a court broad power to fashion relief as the circumstances require; Madugula v. Taub

Holding that the trial court erred by finding that an equitable lien was authorized in this case, the court reversed that part of its order. Appellee-attorney represented plaintiffs in their underlying negligence action. He left appellant-law firm’s employ after the case was settled, but before the trial court entered the award. Claiming he had a fee-splitting arrangement with appellant, appellee asserted a charging lien over 25% of the funds appellant was to receive from the arbitration proceeds. The trial court granted in part and denied in part appellant’s motion to discharge the lien, ruling that appellee was not entitled to a charging lien because he did not have a direct attorney-client relationship with plaintiffs. However, it found he was entitled to an equitable lien. On appeal, the court agreed with appellant that the trial court erred by finding than an equitable lien was authorized, noting that appellee had an adequate remedy at law. “The trial court correctly recognized that appellee ‘may [have] a claim at law to enforce his employment contract.’” However, it “erred by concluding that an equitable lien would provide appellee with ‘a more complete remedy’ due to appellant’s ‘purported precarious financial condition.’” Because “appellant was solvent, there was no basis for the trial court to conclude that an equitable lien would provide appellee with ‘a more complete remedy’ than he would receive by prevailing on a breach of contract claim. If appellee is entitled to a portion of the attorney fees from the underlying case, then he would be able to recover the same amount in an action for breach of contract as he would from his asserted equitable lien.” Because appellee did not challenge the trial court’s ruling that he was not entitled to an attorney’s charging lien, the court did not address it.

Action for a lien on the proceeds of a lawsuit; Equitable lien; Johnson v. Bush Lumber Co.; Warren Tool Co. v. Stephenson; Principle that an equitable lien cannot be imposed if the proponent has an adequate remedy at law; In re Moukalled Estate; Yedinak v. Yedinak; Ashbaugh v. Sinclair; Failure to provide authority for a claim; Liggett Rest. Group, Inc. v. City of Pontiac; Effect of a party’s solvency on the other party’s remedy at law; Maclean v. Fitzsimons; Principle that equity grants a court broad power to fashion relief as the circumstances require; Madugula v. Taub; Collateral estoppel; Ditmore v. Michalik; Young v. Detroit City Clerk; Ford v. Woodward Tap, Inc. (Oakland County Circuit Court)

The court held that the trial court properly granted appellee-law firm’s motion to terminate appellant-attorney’s lien on settlement proceeds. Appellant represented plaintiff in the underlying wrongful death action. Before the action was settled, he left appellee’s employment, but asserted a lien on any settlement proceeds. He claimed that pursuant to an employment contract, he was to receive 40% of any contingency fees recovered from cases he brought to appellee. The trial court ruled that he was not entitled to an equitable lien because he had an adequate remedy at law, and was not entitled to a charging lien because he did not have a contract with plaintiff. On appeal, the court rejected his argument that the trial court erred by not finding that he was entitled to equitable lien, noting he has an adequate remedy at law. If he “were not granted an equitable lien, he could nonetheless collect the portion of the settlement proceeds that he is allegedly owed by bringing a cause of action against appellee for breach of contract.” It also rejected his claim that his remedy at law is “inadequate because he ‘would be forced to incur costly litigation and long delays to vindicate his legal claims.’” While “litigating a claim is certainly inconvenient, it may be necessary in this case in order for a court to determine whether appellant and appellee had a contract, what the terms of that contract were, and whether appellee violated those terms thereby entitling appellant to damages.” It further rejected his contention that his legal remedy was inadequate given appellee’s solvency issues. “While we understand appellant’s concern, there is nothing in the record before us to warrant the conclusion that appellant would be unable to collect in full any damages that may be awarded to him from a favorable judgment for breach of contract against appellee.” Finally, it rejected his argument, based on a circuit court case (Ford), that the trial court’s ruling was precluded by collateral estoppel because the parties fully litigated whether he “was entitled to an equitable lien before another court,” which decided that he was. “While Ford involved the same parties and issue, the underlying transaction in that case involved different plaintiffs and a different defendant.” As such, because the Ford decision arose from a different transaction, it lacked preclusive effect. Affirmed.

Attorneys’ liens; George v. Sandor M Gelman, PC; Principle that before an attorney is entitled to payment for services rendered, an attorney-client relationship must be established by contract; Plunkett & Cooney, PC v. Capitol Bancorp Ltd.; Principle that equity will not generally take jurisdiction of cases where a suitor has a full, complete, & adequate remedy at law; Madugula v. Taub; Principle that an attorney on a contingent fee arrangement who is wrongfully discharged, or who rightfully withdraws, is entitled to compensation for the reasonable value of his services based upon quantum meruit & not the contingent fee contract; Ambrose v. Detroit Edison Co.; Reynolds v. Polen; Principle that a claim in quantum meruit is equitable in nature; Morris Pumps v. Centerline Piping, Inc.

Holding that the trial court abused its discretion by extinguishing the appellant-law firm’s attorneys’ lien on any proceeds obtained in plaintiff’s underlying case, the court reversed the trial court’s order and remanded. Appellee-attorney, who was employed by appellant, represented plaintiff in the underlying employment action against defendant. During the case, plaintiff terminated his relationship with appellant and asked appellant to turn his file over to appellee, who left the firm shortly thereafter. Appellant then sought and received a lien on any proceeds obtained in the action. Before the case settled, the trial court granted appellee’s motion to extinguish the lien. On appeal, the court agreed with appellant that this was an abuse of discretion. It noted that because plaintiff “signed a contract with appellant” he “‘had the contractual obligation to pay [appellant] for services rendered.’” The trial court “incorrectly concluded that appellant’s separate civil suit with appellee could calculate the value of appellant’s lien in this case and provide appellant with its entitled remedy against plaintiff.” Because “only plaintiff, and not appellee, had an obligation to pay appellant for the services that appellant rendered in the underlying case, the trial court’s decision that appellant could receive its remedy in its separate civil suit with appellee was outside the range of reasonable and principled outcomes.” Further, “based on Ambrose, appellant’s remedy could not be based on its contingent-fee contract with plaintiff, but rather could only be based upon quatum meruit, and ‘a claim in quantum meruit is equitable in nature.’” As such, appellee’s argument that appellant had an adequate remedy at law was meritless. The court directed the trial court on remand to “determine the reasonable amount owed appellant for the services it rendered” in the underlying case and, if necessary, to “conduct an evidentiary hearing to determine the reasonable amount owed.”

Medical malpractice; Statute of limitations; Traditional medical malpractice claim; Taylor v. Kent Radiology, PC; Burden of proof; MCL 600.2912a(2); Accrual; MCL 600.5838a(1); Doctrine of informed consent; Wlosinski v. Cohn

Holding that plaintiff’s medical malpractice claim accrued before the surgery was performed when he was allegedly not informed of the risks of developing a retrograde ejaculation condition and becoming sterile, the court affirmed the trial court’s grant of summary disposition for defendants on the basis the claim was time-barred. Plaintiff filed suit on 10/9/15 arising from a transurethral resection of the prostate (TURP) surgery performed by the defendant-doctor on 4/1/13. After the surgery he experienced problems with ejaculation and, on 5/9/13, the doctor “advised him to wait eight months for improvement. But after eight months, plaintiff saw no improvement.” In 1/14, he “discussed the problem with his primary care physician who advised plaintiff that ejaculation problems are a known and common risk of TURP surgery. Plaintiff alleged in his complaint” that defendant never told him this. As the trial court noted, “plaintiff did not allege that he ‘suffered an injury that more probably than not was proximately caused’ by” the doctor’s “failure to diagnose his retrograde ejaculation condition and sterility” on 5/9/13. Considering his complaint as a whole, it was “clear that the basis for his medical malpractice claim” was the doctor’s alleged failure to inform him “before the surgery that he could develop a retrograde ejaculation condition and become sterile after the TURP surgery.” Thus, his claim accrued on 4/1/13.

Trip & fall on a city sidewalk; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); The sidewalk exception; MCL 691.1402a; Robinson v. Lansing; Milot v. Department of Transp.; Whether plaintiff’s statutory notice complied with MCL 691.1404; Plunkett v. Department of Transp.; Requirements for lawful service on a public, municipal, quasi-municipal, or governmental corporation; MCR 2.105(G); McLean v. Dearborn; Whether the defendant-city’s law department was an authorized agent under MCR 2.105(H); Equitable estoppel claim based on defendant’s website & claim form; James v. Alberts; Casey v. Auto-Owners Ins. Co.; Rix v. O’Neil; Justifiable reliance; Adams v. Detroit; Principle that a municipal corporation does not have to plead defective notice as an affirmative defense; Fairley v. Department of Corrs.

Holding that plaintiff’s statutory notice was insufficient as a matter of law where it was served on the defendant-city’s law department, and rejecting her equitable estoppel claim, the court reversed the trial court’s order denying defendant summary disposition, and remanded for entry of summary disposition for defendant. Plaintiff alleged that she tripped and fell on a raised/unleveled portion of a city sidewalk. Through her attorney, she “sent a notice of injury and defect by certified mail to the ‘The City of Detroit c/o The City of Detroit Law Department.’” The return receipt indicated that the notice was received by an individual who was not “the mayor, city clerk, or city attorney.” Plaintiff suggested that “because MCL 691.1404(1) only requires notice on the governmental agency, the Legislature’s use of the permissive ‘may be served’ in MCL 691.1404(2) indicates only that service on a governmental agency might be accomplished by various means, including service on one of the specific individuals authorized to accept service under MCR 2.105(G).” However, this was directly contradicted by the holding in McLean. She also contended that defendant’s Code of Ordinances gave the Law Department written authorization to accept service of process on defendant’s behalf. However, the section on which she relied did not authorize it “to accept service of process on behalf of defendant or any of the individuals listed in MCL 2.105(G)(2).” Regardless, MCL 691.1404(2) “specifically restricts the authority of a municipal corporation to alter the statute’s service requirements,” and the Code did “nothing to relieve potential plaintiffs of their obligation to read and comply with the statutory notice requirements.” She also asserted that “because defendant’s website and claim form direct injured parties to submit notice of claims to the Law Department,” and because a Department employee mailed her “written acknowledgment of her claim, defendant should be estopped from raising the defense of improper statutory notice.” However, it was unreasonable for plaintiff (acting through her attorney) “to rely on defendant’s informal claims materials despite her ability to inform herself of the statutory notice requirement.”

Trip & fall on an allegedly defective city sidewalk; The Governmental Tort Liability Act (MCL 691.1401 et seq.); Rowland v. Washtenaw Cnty. Rd. Comm’n; Sidewalk exception; MCL 691.1402a; Notice; MCL 691.1404(2); Milot v. Department of Transp.; MCR 2.105(G)(2); Wigfall v. City of Detroit; Use of the word “may” in a statute; Walters v. Nadell; NL Ventures VI Farmington, LLC v. Livonia; “Substantial compliance”; Plunkett v. Department of Transp.; MCR 2.105(J)(3); Equitable estoppel; Trahey v. Inkster; Applicability to municipalities; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Principle that everyone dealing with a municipality & its agent is charged with knowledge of the provisions of lawfully adopted ordinances; Hughes v. Almena Twp.

The court held that plaintiff failed to comply with MCL 691.1404’s requirements, that her reliance on Plunkett’s substantial compliance rule and on MCR 2.105(J)(3) were misplaced, and that her failure to comply with the statutory requirements could not be excused by applying equitable estoppel. Thus, her claim arising from a trip and fall on an allegedly defective city sidewalk was barred as a matter of law. The trial court granted the defendant-city summary disposition after finding plaintiff’s notice was insufficient under MCL 691.1404 where she served the notice on the city’s Law Department. On appeal, she argued that MCL 691.1404(2)’s plain language “does not make the method of service of notice it outlines for municipalities mandatory.” The court disagreed. Although “the word ‘may’ typically denotes a permissive statutory provision,” her argument lacked merit because she read the statute “in isolation. When subsections (1) and (2) of MCL 691.1404 are read in conjunction with one another, it is evident that subsection (1) requires that the notice must contain specific information and must be provided within 120 days after the injury, and that subsection (2) provides that such notice must be served upon any individual, either personally or by certified mail, return receipt requested.” The city’s Law Department was not an “individual,” and thus, “not a being that ‘may be lawfully served with civil process against’ the city.” Her reliance on Plunkett was misplaced because its substantial compliance rule only applies “to the required content of the notice, not to the required service of the notice.” Her reliance on MCR 2.105(J)(3) was also misplaced, because her case involved “service of statutory notice, not service of process. The Legislature specifically delineated the appropriate method of statutory service in MCL 691.1404,” making MCR 2.105(J)(3) irrelevant. Finally, as to her equitable estoppel argument, her “claimed reliance on defendant’s informal claims materials, despite her ability to inform herself of the statutory notice requirement, was simply not reasonable.” Affirmed.

Trip & fall on a city sidewalk; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); The sidewalk exception; MCL 691.1402a; Robinson v. Lansing; Milot v. Department of Transp.; Whether plaintiff’s statutory notice complied with MCL 691.1404; Plunkett v. Department of Transp.; Requirements for lawful service on a public, municipal, quasi-municipal, or governmental corporation; MCR 2.105(G); McLean v. Dearborn; Whether the defendant-city’s law department was an authorized agent under MCR 2.105(H); Equitable estoppel claim based on defendant’s website & claim form; James v. Alberts; Casey v. Auto-Owners Ins. Co.; Rix v. O’Neil; Justifiable reliance; Adams v. Detroit; Principle that a municipal corporation does not have to plead defective notice as an affirmative defense; Fairley v. Department of Corrs.

Holding that plaintiff’s statutory notice was insufficient as a matter of law where it was served on the defendant-city’s law department, and rejecting her equitable estoppel claim, the court reversed the trial court’s order denying defendant summary disposition, and remanded for entry of summary disposition for defendant. Plaintiff alleged that she tripped and fell on a raised/unleveled portion of a city sidewalk. Through her attorney, she “sent a notice of injury and defect by certified mail to the ‘The City of Detroit c/o The City of Detroit Law Department.’” The return receipt indicated that the notice was received by an individual who was not “the mayor, city clerk, or city attorney.” Plaintiff suggested that “because MCL 691.1404(1) only requires notice on the governmental agency, the Legislature’s use of the permissive ‘may be served’ in MCL 691.1404(2) indicates only that service on a governmental agency might be accomplished by various means, including service on one of the specific individuals authorized to accept service under MCR 2.105(G).” However, this was directly contradicted by the holding in McLean. She also contended that defendant’s Code of Ordinances gave the Law Department written authorization to accept service of process on defendant’s behalf. However, the section on which she relied did not authorize it “to accept service of process on behalf of defendant or any of the individuals listed in MCL 2.105(G)(2).” Regardless, MCL 691.1404(2) “specifically restricts the authority of a municipal corporation to alter the statute’s service requirements,” and the Code did “nothing to relieve potential plaintiffs of their obligation to read and comply with the statutory notice requirements.” She also asserted that “because defendant’s website and claim form direct injured parties to submit notice of claims to the Law Department,” and because a Department employee mailed her “written acknowledgment of her claim, defendant should be estopped from raising the defense of improper statutory notice.” However, it was unreasonable for plaintiff (acting through her attorney) “to rely on defendant’s informal claims materials despite her ability to inform herself of the statutory notice requirement.”

Dog-bite action; The dog-bite statute; MCL 287.351; “Licensee” defined; Stitt v. Holland Abundant Life Fellowship; Trespass to land; Adams v. Cleveland-Cliffs Iron Co.

The court held that the trial court did not err by granting summary disposition for defendants-dog owners in plaintiff’s dog-bite action. Plaintiff sued defendants for injuries he sustained to his hand when he reached over defendants’ fence and was bitten by their dog. At the hearing on defendants’ motion for summary disposition, the trial court dismissed plaintiff’s negligence claim as abandoned, finding he failed to present any argument in opposition to defendants’ claims. It also dismissed his statutory claim because he was not lawfully on defendants’ property. On appeal, the court rejected his argument that his claim under the dog-bite statute was improperly dismissed because he was lawfully on his niece’s property when he was bitten by defendants’ dog and thus, they were strictly liable for the dog’s actions. “The dog actually bit plaintiff’s hand while—and because—plaintiff had his hand over the fence and protruding into defendants’ backyard. The dog did not jump over the fence and bite plaintiff while he was lawfully in his niece’s backyard; rather, in effect, plaintiff entered into defendants’ backyard and then was bitten.” Moreover, he admitted that he did not have actual permission to place his hand into their backyard and that before he was bitten “the dog had been running up and down the fence line growling and barking at” him. “Considering this behavior, no reasonable juror could infer that plaintiff was given permission to place his hand into defendants’ backyard at that time.” Thus, the dog bite “did not occur while plaintiff was lawfully on private property” but rather “when plaintiff, albeit only his hand, was on defendants’ private property.” There was no genuine issue of material fact that he “was a trespasser on defendants’ private property when he was bitten by their dog.” As such, his "claim under MCL 287.351 was properly dismissed.” Finally, the court noted that he did not challenge the dismissal of his negligence claim on appeal. Affirmed.

Trip & fall on an allegedly defective city sidewalk; The Governmental Tort Liability Act (MCL 691.1401 et seq.); Rowland v. Washtenaw Cnty. Rd. Comm’n; Sidewalk exception; MCL 691.1402a; Notice; MCL 691.1404(2); Milot v. Department of Transp.; MCR 2.105(G)(2); Wigfall v. City of Detroit; Use of the word “may” in a statute; Walters v. Nadell; NL Ventures VI Farmington, LLC v. Livonia; “Substantial compliance”; Plunkett v. Department of Transp.; MCR 2.105(J)(3); Equitable estoppel; Trahey v. Inkster; Applicability to municipalities; Sau-Tuk Indus., Inc. v. Allegan Cnty.; Principle that everyone dealing with a municipality & its agent is charged with knowledge of the provisions of lawfully adopted ordinances; Hughes v. Almena Twp.

The court held that plaintiff failed to comply with MCL 691.1404’s requirements, that her reliance on Plunkett’s substantial compliance rule and on MCR 2.105(J)(3) were misplaced, and that her failure to comply with the statutory requirements could not be excused by applying equitable estoppel. Thus, her claim arising from a trip and fall on an allegedly defective city sidewalk was barred as a matter of law. The trial court granted the defendant-city summary disposition after finding plaintiff’s notice was insufficient under MCL 691.1404 where she served the notice on the city’s Law Department. On appeal, she argued that MCL 691.1404(2)’s plain language “does not make the method of service of notice it outlines for municipalities mandatory.” The court disagreed. Although “the word ‘may’ typically denotes a permissive statutory provision,” her argument lacked merit because she read the statute “in isolation. When subsections (1) and (2) of MCL 691.1404 are read in conjunction with one another, it is evident that subsection (1) requires that the notice must contain specific information and must be provided within 120 days after the injury, and that subsection (2) provides that such notice must be served upon any individual, either personally or by certified mail, return receipt requested.” The city’s Law Department was not an “individual,” and thus, “not a being that ‘may be lawfully served with civil process against’ the city.” Her reliance on Plunkett was misplaced because its substantial compliance rule only applies “to the required content of the notice, not to the required service of the notice.” Her reliance on MCR 2.105(J)(3) was also misplaced, because her case involved “service of statutory notice, not service of process. The Legislature specifically delineated the appropriate method of statutory service in MCL 691.1404,” making MCR 2.105(J)(3) irrelevant. Finally, as to her equitable estoppel argument, her “claimed reliance on defendant’s informal claims materials, despite her ability to inform herself of the statutory notice requirement, was simply not reasonable.” Affirmed.