Attorney fees & costs in an arbitration proceeding; Harmonizing Pransky v Falcon Group, Inc & Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co; Rule 47(d)(ii) of the American Arbitration Association (AAA) Rules for Commercial Litigation

The court held that the trial court did not abuse its discretion by denying defendants’ renewed motion to reopen the case and for attorney fees and costs following arbitration. Plaintiff sued defendant alleging a variety of claims and seeking the enforcement of the arbitration provision, as well as the trial court’s supervision of a private arbitration proceeding. The trial court entered a stipulated order for dismissal without prejudice, and ordered the parties to proceed in private arbitration. The arbitrator ruled for defendants. The trial court entered a stipulated order reopening the case for entry of a judgment consistent with the arbitrator’s award. “The stipulated order also stated that the parties agreed to proceed in private arbitration in order to determine whether defendants were entitled to recover attorney fees and costs and, if so, in what amount.” The arbitrator denied defendants attorney fees and costs. The trial court then denied their renewed motion “for lack of merit on the grounds presented.” On appeal, the court rejected defendants’ argument that the trial court abused its discretion in doing so. “[I]n order to obtain an award of attorney fees and costs as damages under the arbitration provision, defendants were required to sue to enforce the provision, as would be necessary for any other contractual term. There is no indication that defendants sought attorney fees and costs before the arbitrator issued an opinion and final award in” their favor. Further, although they “were not required to specifically plead attorney fees and costs as special damages, [they] did not sue to enforce the arbitration provision as part of a claim against plaintiff.” Because they did not request an award of attorney fees and costs “prior to entry of the final arbitration award, and the arbitrator did not award” them attorney fees and costs, their motion to reopen the case and for attorney fees and costs “amounted to a request to modify the final arbitration award. The arbitrator was not empowered to award defendants attorney fees and costs after the final arbitration award because defendants requested an award of attorney fees and costs under the arbitration provision in the contract, and the arbitrator had already addressed the merits of plaintiff’s breach of contract claims.” Thus, the AAA “Rules for Commercial Litigation precluded an award of attorney fees and costs after entry of the final arbitration award.” Affirmed.

Attorney fees & costs in an arbitration proceeding; Harmonizing Pransky v Falcon Group, Inc & Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co; Rule 47(d)(ii) of the American Arbitration Association (AAA) Rules for Commercial Litigation

The court held that the trial court did not abuse its discretion by denying defendants’ renewed motion to reopen the case and for attorney fees and costs following arbitration. Plaintiff sued defendant alleging a variety of claims and seeking the enforcement of the arbitration provision, as well as the trial court’s supervision of a private arbitration proceeding. The trial court entered a stipulated order for dismissal without prejudice, and ordered the parties to proceed in private arbitration. The arbitrator ruled for defendants. The trial court entered a stipulated order reopening the case for entry of a judgment consistent with the arbitrator’s award. “The stipulated order also stated that the parties agreed to proceed in private arbitration in order to determine whether defendants were entitled to recover attorney fees and costs and, if so, in what amount.” The arbitrator denied defendants attorney fees and costs. The trial court then denied their renewed motion “for lack of merit on the grounds presented.” On appeal, the court rejected defendants’ argument that the trial court abused its discretion in doing so. “[I]n order to obtain an award of attorney fees and costs as damages under the arbitration provision, defendants were required to sue to enforce the provision, as would be necessary for any other contractual term. There is no indication that defendants sought attorney fees and costs before the arbitrator issued an opinion and final award in” their favor. Further, although they “were not required to specifically plead attorney fees and costs as special damages, [they] did not sue to enforce the arbitration provision as part of a claim against plaintiff.” Because they did not request an award of attorney fees and costs “prior to entry of the final arbitration award, and the arbitrator did not award” them attorney fees and costs, their motion to reopen the case and for attorney fees and costs “amounted to a request to modify the final arbitration award. The arbitrator was not empowered to award defendants attorney fees and costs after the final arbitration award because defendants requested an award of attorney fees and costs under the arbitration provision in the contract, and the arbitrator had already addressed the merits of plaintiff’s breach of contract claims.” Thus, the AAA “Rules for Commercial Litigation precluded an award of attorney fees and costs after entry of the final arbitration award.” Affirmed.

Injunctive relief; MCR 3.310(A)(4); Davis v City of Detroit Fin Review Team; Preliminary injunction; Hammel v Speaker of House of Reps; Effect of a valid release of liability; Xu v Gay; Whether a release was fairly & knowingly made; Intent; “Hold harmless” & “indemnify”; Tortious interference with a business relationship or expectancy; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Negligence; Powell-Murphy v Revitalizing Auto Cmtys Envtl Response Trust; Defamation; Ghanam v Does; Privilege; Qualified privilege; Prysak v RL Polk Co; Declaratory relief; MCR 2.605(A)(1); “Actual controversy”; Irreparable harm; Balance of hardships; Public interest; Michigan Minority Supplier Development Council (MMSDC); Minority business enterprises (MBEs)

The court held that while most of plaintiffs’ claims will not likely succeed on the merits or may be barred by a hold-harmless provision, deference to the trial court’s decision to issue them a preliminary injunction was required. Defendant-MMSDC informed plaintiff-Johnson that although plaintiffs-Piston Companies were owned and controlled by a minority group member, none “were managed on a day-to-day basis by one or more minority group members” and thus, did not qualify for MBE certification. Plaintiffs sued for tortious interference with a business relationship, negligence, declaratory relief, and defamation. They “also sought a preliminary injunction reinstating each of the Piston Companies’ MBE certifications and overruling MMSDC’s decertification decision pending the outcome of the case.” The trial court granted their motion for a preliminary injunction. On appeal, the court first found that the hold-harmless provision in the applications for MBE certification “could greatly inhibit plaintiffs’ chances of establishing a substantial likelihood of success on the merits of their claims.” It next noted that “[b]ecause the evidence does not indicate one way or the other that defendants acted with the intent to cause a breach or termination of plaintiffs’ business relationships or expectancies, and nothing indicates that defendants did something illegal, unethical, or fraudulent, plaintiffs are unlikely to succeed on the merits of their tortious interference with a business relationship claim.” In addition, MMSDC did “not appear to have breached its duty to exercise due care in determining whether the Piston Companies qualified for MBE certification. Thus, plaintiffs are unlikely to succeed on the merits of their negligence claim.” Further, if it turns out “at the end of litigation that the assessment of who runs the day-to-day operations of the Piston Companies is Johnson, i.e., that MMSDC was incorrect, plaintiff will still need to prove that the denials were not implemented in good faith, and the record is not sufficiently developed to show a substantial likelihood of success in that regard.” Moreover, they did not show a substantial likelihood of success on the merits of their claim for declaratory relief. But the court found that certain factors, “and the reputation of the Piston Companies being held out as MBE certified for many years, were sufficient to support the conclusion that plaintiffs could suffer loss of goodwill” absent an injunction, and “the issuance of a preliminary injunction would not significantly harm the public interest.” Affirmed.

Jury instruction on self-defense; MCL 780.972; Pointing a loaded gun at another; “Deadly force” & “nondeadly force”; People v Pace; People v Dillard; Duty to retreat; Ineffective assistance of counsel; Failure to seek to correct the jury instructions; Reasonableness of counsel’s performance; Probability of a different outcome

Holding that the jury was improperly instructed on defendant’s claim of self-defense, and his trial counsel was ineffective for failing to seek to correct that error, the court reversed his felonious assault and felony-firearm convictions and remanded for a new trial. The core issue was whether his act of pointing a loaded gun at the victim “constituted the use of deadly force or the use of nondeadly force. Defendant’s trial counsel, the prosecution, and the trial court apparently assumed the act to constitute the use of deadly force, so they agreed the jury should be instructed regarding the use of deadly force in self-defense or in defense of others. The trial court read M Crim JI 7.15, 7.16, and 7.21, which correspond with MCL 780.792(1). [It] did not read M Crim JI 7.22, which corresponds to MCL 780.972(2). Consequently, the jury was instructed defendant could only successfully claim self-defense or defense of his son if he ‘honestly and reasonably believe[d] that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself [] or to’ his son.” It was also instructed that it could consider whether he could have safely retreated. He argued, and the court agreed, that “the instructions were erroneous because he merely threatened to use deadly force, and a threat of deadly force is not the use of deadly force.” The court concluded that, under the circumstances, he did not use deadly force. Thus, the jury instructions as to the use of deadly force were incorrect. “Instead, the jury should have been instructed on the law regarding the use of nondeadly force.” Defendant also argued that it was improperly instructed as to “his duty to retreat, or, more specifically, his lack of a duty to retreat.” The court agreed in part. The jury was instructed that he “would not be required to retreat if he ‘ha[d] an honest and reasonable belief that the use of deadly force [was] necessary to prevent eminent [sic] death, great bodily harm or a sexual assault.’ Thus, defendant was held to a higher standard than specified by MCL 780.972(2),” which only required him “to have anticipated ‘the imminent unlawful use of force.’ As a consequence, the instructions as given increased the burden upon the defense and lightened the burden upon the prosecution.” The court held that these errors were not harmless. Further, “it was objectively unreasonable for counsel to have refrained from objecting to the jury instructions and for failing to seek correct” them. In addition, there was “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”

The 180-day rule (MCL 780.131); People v Hendershot; People v Lown; MCL 780.133; Delay due to the Supreme Court’s decision to suspend jury trials because of the COVID pandemic; People v Schinzel

The court held that the trial court abused its discretion in dismissing the charges against defendant for violation of the 180-day rule where “a significant amount of the delay in bringing” the case to trial was not the prosecution’s fault but rather was due to the Michigan Supreme Court’s decision to suspend jury trials early in the COVID pandemic. Thus, the court reversed the order dismissing the charges and remanded. The Supreme Court concluded in Hendershot that “the Legislature did not intend to require that a trial necessarily take place within 180 days. . . . Rather, if ‘apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met.’” Further, it explained in Lown that “the rule does not require that a trial be commenced or completed within 180 days of the date notice was delivered. . . . it is sufficient that the prosecutor proceed promptly and move the case to the point of readiness for trial within the 180-day period.” In this case, the pretrial hearing was adjourned several days because the prosecution failed to “file a writ for defendant’s appearance from prison. It was not until several days after the 180-day period had expired that” the prosecution responded to his discovery request. However, the prosecution “does not necessarily violate the 180-day rule solely because more diligence could have been employed.” Nothing in the record indicated the prosecution initially delayed proceedings “in a bad-faith attempt to delay trial.” It was significant that much of the delay in the scheduled jury trial resulted from the suspension of jury trials during the pandemic. The court found the delay here “somewhat analogous” to the one in Schinzel, which “was caused by a wholesale change in docketing systems approved by” the Supreme Court. The court held there “that the delay was excusable under the 180-day rule.” While that decision was not binding because it was issued before 11/1/90, the court found its analysis persuasive. Further, the record showed the prosecution “took necessary steps to get this case ready for trial within a practicable time-frame given the circumstances.”

Sentencing; Motion for a sentence reduction under § 404 of the First Step Act; Procedural reasonableness; Substantive reasonableness; 18 USC § 3553(a)

The court held that defendant-Johnson’s 300-month sentence was substantively unreasonable where the district court gave “undue weight” to two of the sentencing factors — (1) the nature of the offense and his criminal history and characteristics, and (2) the need for the sentence to deter future criminal conduct and protect the public. Thus, it reversed the district court’s order denying his motion for a sentence reduction under the First Step Act, vacated his sentence, and remanded. A jury convicted Johnson of conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, possession with intent to distribute cocaine base, FIP, and possessing a firearm in furtherance of drug trafficking. The district court sentenced him as a career offender to 360 months. This was later reduced to 300 months after remand for resentencing. In denying his subsequent motion for a sentence reduction under the First Step Act, the district court found that the § 3553(a) factors weighed against him. The court first held that Johnson’s sentence was procedurally reasonable where the district court followed the proper procedure and properly calculated his corrected guidelines range. But the court held that his sentence was substantively unreasonable, focusing on its length and concluding that it was “greater than necessary . . . .” It concluded that the district court “unduly weighed factor (a)(1), the nature of the offense and Johnson’s criminal history and characteristics, and factor (a)(2), the need for the sentence to deter future criminal conduct and protect the public from future crimes of the defendant.” The court agreed with Johnson that “‘the district court failed to adequately explain why a nearly ten-year upward variance [from the upper end of the applicable guidelines range] is necessary to protect the public.’” It noted that his risk of reoffending was already factored into the guidelines range. The court also held that the district court gave “too little weight to another § 3553(a) factor, namely, ‘the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct.’” It noted that the facts surrounding Johnson’s conviction placed “him within the landscape of ‘typical’ defendants whose sentences have nevertheless been reduced pursuant to the First Step Act.”

Automobile insurance coverage; Whether plaintiff was entitled to have an out-of-state policy reformed to comply with the requirements of Michigan’s No-Fault Act (NFA) under MCL 500.3012 (governing the issuance of a noncomplying insurance policy); Distinguishing Farm Bureau Ins Co v Allstate Ins Co

The court concluded that because there was no evidence that defendant-insurer “knew or should have known that it was issuing a policy to a Michigan resident, neither MCL 500.3012” nor the court’s opinion in Farm Bureau supported that plaintiff-insured was entitled to relief. The case arose from a 11/17 motor vehicle accident and subsequent dispute as to plaintiff’s automobile insurance coverage. Plaintiff claimed that “she had informed defendant that she had moved to Michigan before the motor vehicle accident and that she believed that her Maryland policy was a Michigan no-fault policy at the time of the accident.” She argued that she was entitled to have the Maryland policy reformed to comply with the requirements of the NFA under MCL 500.3012. “The question in Farm Bureau was whether the insurer knew or had reason to know that it was ‘dealing with a Michigan resident’ at the time the policy was issued. If an insurer had such knowledge but nevertheless issued an out-of-state policy to a Michigan resident, we construed MCL 500.3012 to permit a trial court to reform the out-of-state policy to include the missing Michigan PIP benefits.” The issue here was very different from the issue resolved by Farm Bureau. Here, there was “no dispute that defendant properly issued a Maryland policy to plaintiff, who was a Maryland resident at the time the time policy was issued.” Plaintiff’s argument on appeal was that “she informed defendant during the policy year that she was moving to Michigan and that she believed that the information she had provided converted her out-of-state policy to a Michigan policy. Although plaintiff presented an affidavit to support that she moved to Michigan ‘on or about October 2, 2017’ and that she informed defendant ‘[a]round that same time’ that she ‘was moving to Michigan,’ there is no evidence that defendant issued another policy that purported to be a Michigan policy. Indeed, plaintiff provided the Maryland insurance policy to law enforcement after” the accident. Affirmed.

First-party no-fault action; “Taken unlawfully”; MCL 500.3113(a); Spectrum Health Hosps v Farm Bureau Mut Ins of MI; The “joyriding” statutes (MCL 750.413 & 750.414); The “knew or should have known” standard

Holding that the motorcycle he was riding at the time of the accident “was taken unlawfully by plaintiff,” and he knew it, the court concluded there was no genuine issue of material fact for the jury to consider and that the trial court erred in denying defendant-insurer summary disposition. Plaintiff’s girlfriend, D, owned the motorcycle. Defendant contended that plaintiff’s admission he did not have her permission to use the motorcycle the day of the accident barred him from collecting no-fault benefits, under MCL 500.3113(a). It asserted that he “took the motorcycle unlawfully under the terms of the ‘joyriding’ statutes[.]” The court noted there was “no genuine issue of material fact that plaintiff’s use of the motorcycle was ‘unauthorized’ because he did not receive” D’s permission to use it. He testified he knew she “would not allow him to ride the motorcycle, even if he asked.” Although he asserted he did not intend to steal it and D did not report it “to the police as missing, this argument is based on an incorrect understanding of the term ‘unlawful’ in this context.” The court next turned to the issue of “whether he ‘knew or should have known’ that he did not have authority to use the motorcycle[.]” He primarily argued that because D never expressly told him he was not permitted to use it, he could not be barred from recovery under MCL 500.3113(a). The court found that while this contention “may have had merit under the previous version of the statute, it fails under the current ‘knew or should have known’ standard.” Under the applicable version, the evidence showed “no genuine issue of material fact that plaintiff at least should have known he did not have authority to use the motorcycle. Plaintiff and [D] testified plaintiff’s poor health precluded him from driving the motorcycle” and he had not used it for many years. He admitted he lacked permission to use it, and D confirmed this. Thus, the court concluded that the “undisputed material facts presented to the trial court, considered in the light most favorable to plaintiff, show plaintiff knew or should have known he was operating the motorcycle unlawfully.” As a result, it erred in determining a genuine issue of material fact existed. Reversed and remanded for entry of an order granting defendant’s summary disposition motion.

Injunctive relief; MCR 3.310(A)(4); Davis v City of Detroit Fin Review Team; Preliminary injunction; Hammel v Speaker of House of Reps; Effect of a valid release of liability; Xu v Gay; Whether a release was fairly & knowingly made; Intent; “Hold harmless” & “indemnify”; Tortious interference with a business relationship or expectancy; Health Call of Detroit v Atrium Home & Health Care Servs, Inc; Negligence; Powell-Murphy v Revitalizing Auto Cmtys Envtl Response Trust; Defamation; Ghanam v Does; Privilege; Qualified privilege; Prysak v RL Polk Co; Declaratory relief; MCR 2.605(A)(1); “Actual controversy”; Irreparable harm; Balance of hardships; Public interest; Michigan Minority Supplier Development Council (MMSDC); Minority business enterprises (MBEs)

The court held that while most of plaintiffs’ claims will not likely succeed on the merits or may be barred by a hold-harmless provision, deference to the trial court’s decision to issue them a preliminary injunction was required. Defendant-MMSDC informed plaintiff-Johnson that although plaintiffs-Piston Companies were owned and controlled by a minority group member, none “were managed on a day-to-day basis by one or more minority group members” and thus, did not qualify for MBE certification. Plaintiffs sued for tortious interference with a business relationship, negligence, declaratory relief, and defamation. They “also sought a preliminary injunction reinstating each of the Piston Companies’ MBE certifications and overruling MMSDC’s decertification decision pending the outcome of the case.” The trial court granted their motion for a preliminary injunction. On appeal, the court first found that the hold-harmless provision in the applications for MBE certification “could greatly inhibit plaintiffs’ chances of establishing a substantial likelihood of success on the merits of their claims.” It next noted that “[b]ecause the evidence does not indicate one way or the other that defendants acted with the intent to cause a breach or termination of plaintiffs’ business relationships or expectancies, and nothing indicates that defendants did something illegal, unethical, or fraudulent, plaintiffs are unlikely to succeed on the merits of their tortious interference with a business relationship claim.” In addition, MMSDC did “not appear to have breached its duty to exercise due care in determining whether the Piston Companies qualified for MBE certification. Thus, plaintiffs are unlikely to succeed on the merits of their negligence claim.” Further, if it turns out “at the end of litigation that the assessment of who runs the day-to-day operations of the Piston Companies is Johnson, i.e., that MMSDC was incorrect, plaintiff will still need to prove that the denials were not implemented in good faith, and the record is not sufficiently developed to show a substantial likelihood of success in that regard.” Moreover, they did not show a substantial likelihood of success on the merits of their claim for declaratory relief. But the court found that certain factors, “and the reputation of the Piston Companies being held out as MBE certified for many years, were sufficient to support the conclusion that plaintiffs could suffer loss of goodwill” absent an injunction, and “the issuance of a preliminary injunction would not significantly harm the public interest.” Affirmed.

Premises liability; Open & obvious danger; The special-aspects exception

The court held that the trial court did not err by determining that the “allegedly dangerous condition was open and obvious and no special aspects existed.” PVC pipes were stored vertically on shelves, with vertical guards separating them. When plaintiff grabbed one of the pipes, “another slid down the display and fell on his toe.” He argued that the trial court erred in concluding “the vertically stacked PVC pipes posed an open and obvious danger and the special-aspects exception to the open and obvious doctrine did not apply.” However, the trial court did not err by holding that “the open and obvious doctrine applied and that no special aspects existed. An average person with ordinary intelligence would have discovered upon casual inspection the allegedly dangerous condition at issue here, i.e., that removing one PVC pipe out of the elevated, open-bin shelving unit containing several vertically stacked unsecured PVC pipes could result in another pipe sliding and falling out of the display. Further, there was nothing about the display that presented a substantial risk of severe harm or death.” Thus, the trial court did not err by holding that “the ‘racking system’ was a typical open and obvious danger rather than a danger that was unreasonably dangerous.” And although plaintiff did not claim that “the alleged danger was effectively unavoidable, such an argument would fail. Plaintiff chose to enter the self-service lumberyard area and load the pipes into his vehicle on his own without seeking assistance.” Affirmed.

Conversion of trees; MCL 600.2919; Requirement that damages be proved with reasonable certainty; Measure of damages; Schankin v Buskirk; Szymanski v Brown; Thiele v Detroit Edison Co

The court held that the trial court did not err in awarding plaintiffs damages for only one tree in this conversion case because they failed to prove additional damages with reasonable certainty as to others. It also did not err in ruling that the replacement value of the tree was the appropriate measure of damages. Thus, the court affirmed the judgment awarding plaintiffs $13,501.98 in damages for a hickory tree cut down by defendant-Chad Hart and denying defendants’ motion for involuntary dismissal. Plaintiffs sold defendant-Hart Brothers a parcel of land adjoining their property. “Chad, who worked for Hart Brothers, cleared an entire row of trees that stood on the border of the” properties, believing they were on Hart Brothers' property. Plaintiffs contended on appeal that the trial court did not “‘adequately compensate’ them ‘for their loss’” because trees in addition to the hickory tree were cut down. The trial court determined “that defendants had cut down one ‘big,’ ‘old hickory tree’ that belonged to plaintiffs and that defendants had also cut down ‘other trees’ that were located on plaintiffs’ property and/or the property line.” But it found that plaintiffs “failed to present evidence as to the number and type of ‘other trees’ that were cut down.” Apart from the testimony by one plaintiff about the hickory tree, there was no other evidence to support that “plaintiffs had an ownership interest in any of the other trees that were removed.” A surveyor (B) that they had hired “was only able to recall that the tree row ‘mostly straddled the line[,] meaning some of the tree row was on one side [of the property line], [and] some of the tree row was [on] the other side[.]’ When [B] was asked if he could ‘identify the number of trees that were on one side of the property line versus the other,’ [B] responded, ‘No.’ Although [B] recalled that there were ‘older, mature trees’ in the tree line, he was unable to recall where” they were, and he agreed that tree rows may “contain ‘all types of species of trees[.]’” As to defendants’ cross-appeal, the court found that like those “in Schankin, Szymanski, and Thiele, plaintiffs in this case presented evidence that the trees had a unique or aesthetic value. Because the trial court clearly found” their testimony credible, it did not err in its determination as to the measure of damages.

Negligence; Duty; Hill v Sears, Roebuck & Co; Due care; Clark v Dalman; Intentional infliction of emotional distress (IIED); Dalley v Dykema Gossett; Negligent infliction of emotional distress (NIED); Liability protection afforded to funeral establishments under MCL 700.3209(3); A surviving spouse’s statutory authority to make decisions as to the handling of the deceased spouse’s body; MCL 700.3206(1) & (3)(c)

The court held that defendant-funeral home owed plaintiff-surviving spouse (Wahl) a duty to accurately report when her husband’s autopsy was completed, and that discovery was needed to determine if a question of fact existed. It also found it was premature to rule on plaintiffs’ IIED claim, affirmed the denial of summary disposition for defendant as to the NIED claim, and concluded plaintiffs’ claims were not barred by MCL 700.3209(3). They alleged defendant breached its duties to determine the qualifications of the representative who performed the autopsy, supervise it, and ensure its success before proceeding with the cremation. The trial court denied defendant’s summary disposition motion. On appeal, the court found that although defendant did not owe some of the duties plaintiffs claimed it did, it did owe a duty to accurately report when the autopsy was completed, and that discovery was needed on this matter. Defendant’s “duties under the contract were only to provide a room in which the autopsy would occur, clean up afterward, return the body to cold storage, and later cremate the body” on Wahl’s approval. It “assumed no obligation relating to the performance of the autopsy itself.” However, a duty arose from its “contractual obligations to accurately inform Wahl when the autopsy had been completed. This is a limited duty commensurate with the parties’ limited contractual relationship.” Defendant could not have obtained her “approval to cremate the body without first informing her that the autopsy had been completed. [It] had a duty to use reasonable care in reaching that conclusion.” As such, discovery was needed to determine whether defendant misrepresented that the autopsy was completed, which caused Wahl to instruct it to go ahead with the cremation. Because the court remanded for discovery on the alleged misrepresentation, it was premature to decide to whether defendant was entitled to summary disposition of the IIED claim, but the court noted that mere negligence is not enough to sustain it. As defendant did not address the NIED claim, the court affirmed the denial of summary disposition as to this claim. As to MCL 700.3209(3), plaintiffs sought to hold defendant “liable for what its funeral director told Wahl before she instructed the director to proceed with the cremation.” The court noted that “while the statute grants immunity for a funeral establishment’s good-faith reliance on instructions regarding the decisions about the decedent’s body, it does not provide immunity for misrepresentations made by the funeral establishment.” Affirmed in part, reversed in part, and remanded.

Foreclosure; Deficiency judgment; Whether MCL 600.3280 provided a valid defense

The court concluded that because MCL 600.3280 was the only defense defendant asserted in opposing plaintiff’s motion for summary disposition, and because he failed to show a genuine issue of material fact as to the purchaser of the property at the sheriff’s sale, the trial court did not err in granting plaintiff summary disposition and denying defendant’s summary disposition motion in this action for a deficiency judgment. The undisputed record evidence established that “defendant executed a promissory note, which was secured by the mortgage. Defendant defaulted, which resulted in a foreclosure by advertisement. The property was sold to” a nonparty, T, “for $9,576.32. At the time of the sale, defendant owed $114,803.75 on the note. The note, which had a deficiency balance of $105,227.43, was then assigned to plaintiff. Defendant admitted during the lower court proceeding that he defaulted on a promissory note now owned by plaintiff and that plaintiff had properly calculated the amount due.” On appeal, he did not dispute that he breached the contract. Instead, he argued that the trial court erred by holding that MCL 600.3280 did not provide a valid defense here. For the statute to apply, “two conditions must be met: (1) ‘the mortgagee, payee or other holder of the obligation’ must ‘become . . . the purchaser’ or must take title to the real property ‘at [the] sale either directly or indirectly,’ and (2) the ‘mortgagee, payee or other holder of the secured obligation’ must have brought the action for recovery of a deficiency.” The sheriff’s deed signed after the foreclosure sale here showed that T “purchased the property for $9,576.32.” Nothing in the record suggested that T was “an agent of plaintiff or one of plaintiff’s assignors.” Since there was no evidence to support a finding that “plaintiff, the ‘payee or other holder of the obligation,’ became ‘the purchaser, . . . or has taken title [of the property. . . either directly or indirectly,’” MCL 600.3280 did not apply. Affirmed.

Conversion of trees; MCL 600.2919; Requirement that damages be proved with reasonable certainty; Measure of damages; Schankin v Buskirk; Szymanski v Brown; Thiele v Detroit Edison Co

The court held that the trial court did not err in awarding plaintiffs damages for only one tree in this conversion case because they failed to prove additional damages with reasonable certainty as to others. It also did not err in ruling that the replacement value of the tree was the appropriate measure of damages. Thus, the court affirmed the judgment awarding plaintiffs $13,501.98 in damages for a hickory tree cut down by defendant-Chad Hart and denying defendants’ motion for involuntary dismissal. Plaintiffs sold defendant-Hart Brothers a parcel of land adjoining their property. “Chad, who worked for Hart Brothers, cleared an entire row of trees that stood on the border of the” properties, believing they were on Hart Brothers' property. Plaintiffs contended on appeal that the trial court did not “‘adequately compensate’ them ‘for their loss’” because trees in addition to the hickory tree were cut down. The trial court determined “that defendants had cut down one ‘big,’ ‘old hickory tree’ that belonged to plaintiffs and that defendants had also cut down ‘other trees’ that were located on plaintiffs’ property and/or the property line.” But it found that plaintiffs “failed to present evidence as to the number and type of ‘other trees’ that were cut down.” Apart from the testimony by one plaintiff about the hickory tree, there was no other evidence to support that “plaintiffs had an ownership interest in any of the other trees that were removed.” A surveyor (B) that they had hired “was only able to recall that the tree row ‘mostly straddled the line[,] meaning some of the tree row was on one side [of the property line], [and] some of the tree row was [on] the other side[.]’ When [B] was asked if he could ‘identify the number of trees that were on one side of the property line versus the other,’ [B] responded, ‘No.’ Although [B] recalled that there were ‘older, mature trees’ in the tree line, he was unable to recall where” they were, and he agreed that tree rows may “contain ‘all types of species of trees[.]’” As to defendants’ cross-appeal, the court found that like those “in Schankin, Szymanski, and Thiele, plaintiffs in this case presented evidence that the trees had a unique or aesthetic value. Because the trial court clearly found” their testimony credible, it did not err in its determination as to the measure of damages.