Dispute over a condominium project’s imposition of a yearly flat fee for co-owners’ use of its adjacent recreational facilities; MCL 559.234; MI Admin Code, R 559.111(b); Disclosure statement; MCL 559.184a; Action for relief; MCL 559.215; Whether a rule was validly promulgated; Conlin v Upton; Discovery sanctions; Attorney fees; MCR 2.313(A)(5) & (B)(2); Frivolous filing; MCR 1.109(E); MCR 2.625(A)(2); MCL 600.2591; Yee v Shiawassee Cnty Bd of Comm’rs; Civil contempt; In re Contempt of Calcutt

The court held that the trial court did not err by granting plaintiff-condominium co-owner summary disposition of his claim alleging defendant-condominium developer violated rules and bylaws by imposing a recreational use fee on condominium co-owners, or by granting plaintiff sanctions. Plaintiff sued defendant claiming he should not be required to pay a yearly flat fee to use defendant’s recreational facilities adjacent to the condominium project. The trial court found defendant “violated administrative rules by imposing the fees and awarded a reimbursement of fees paid by plaintiff.” It also found defendant “violated the condominium bylaws by imposing a flat fee because the bylaws allowed only for a fee covering maintenance and repair of the facilities.” On appeal, the court rejected defendant’s argument that the trial court erred by granting summary disposition for plaintiff on three counts of his complaint seeking a declaratory judgment and damages related to the usage fees and asserting his right to inspect the books and records of the recreational facilities. It rejected defendant’s attempt “to create a ‘loophole’ whereby if a condominium co-owner is directly billed by a facility, that facility need not comply with condominium statutes and rules.” In addition, “the recreational facilities at issue are not owned by the co-owners collectively; instead, they are owned solely by” defendant, who was “a ‘third party’ in its role as the owner of the facilities.” The trial court, in finding a violation of “R 559.111(b), did not err by focusing on” defendant’s role as the developer. Given the rule violations, “the fee provision was not ‘validly promulgated[.]’” The court also upheld the trial court’s grant of attorney fees and costs to plaintiff in connection with granting motions to compel discovery, noting that in light of the evidence “and the deferential standard of review, . . . the trial court’s decision to award sanctions was not outside the range of reasonable and principled outcomes.” However, the trial court did err and abuse its discretion by including $695 in the award for three particular days of legal work. Finally, the court rejected plaintiff’s contentions that the trial court should have granted him sanctions because defendant advanced frivolous defenses to two of the counts in his complaint, and should have sanctioned defendant for violating trial court rulings. It was “not left with a firm and definite conviction that the trial court made a mistake in concluding that [defendant] did not act frivolously in defending against” the two counts, and there was no basis for finding error as to the alleged violations. Affirmed, but remanded for a recalculation of costs and fees.

Negligence claim against a bank related to a failed loan transaction; Duty; Ulrich v Federal Land Bank of St Paul; Smith v First Nat’l Bank & Trust; Hills of Lone Pine Assoc v Texel Land Co; Promissory estoppel; MCL 566.132(2); Crown Tech Park v D&N Bank, FSB; Tortious interference

The court held that plaintiffs’ negligence claim failed because defendant-bank did not owe a duty of care to a loan applicant. Further, given that they did not provide any “written ‘promise or commitment to lend money, grant or extend credit, or make any other financial accommodation,’” MCL 566.132(2) barred their promissory estoppel claim. Finally, they did not allege that defendant-Adams (the bank’s Vice President of Lending) did anything rising to the level of tortious interference. Thus, the court affirmed summary disposition for defendants. Plaintiff-Montijo acted as broker for plaintiffs-Thomas and Kokkatt in trying to obtain a commercial loan. Adams handled the matter for the bank. The court noted that plaintiffs did not explain why it should not apply Ulrich here. The essence of their case was the claim that “Thomas and Kokkatt applied for a commercial loan, and that the bank committed to funding that loan but subsequently failed to deliver on its promise, causing financial injury to plaintiffs.” While they relied on Smith and Hills of Lone Pine, those cases were “inapposite, as the present case does not involve an alleged breach of the terms of an escrow agreement. The trial court properly relied on this Court’s holding in Ulrich to rule that defendants in this case owed plaintiffs no duty of care, and that plaintiffs’ negligence claim failed as a matter of law.” As to their promissory estoppel claim, the only document they relied on was a letter from Adams to Montijo. That document clearly stated “that it was not a commitment to lend, but was a ‘presentation for discussion purposes only.’” As to the tortious interference claims, “plaintiffs alleged that Adams contacted Montijo’s clients and dealt with those clients directly regarding their banking business, cutting Montijo out of the role of broker. The trial court held that defendants were entitled to summary disposition on” these claims because there was no allegation “that defendants’ conduct was illegal, unethical, or fraudulent.” The court agreed that summary disposition on these claims was proper.

Dispute over ownership of a company; Admission under MCR 2.312(B)(1); Medbury v Walsh; Motion to withdraw or amend; MCR 2.312(D); Burden of proof for fraud; Groth v Singerman; Damages; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc

The court held that the trial court did not err by finding defendants had no ownership interest in plaintiffs’ company. Plaintiffs, the Iraqi owners of an oil supply company, and defendants, their American agents, disagreed as to whether defendants had an ownership interest in the company. The trial court found defendants had no ownership interest in the company and ordered them to repay plaintiffs for funds syphoned from the business. On appeal, the court rejected defendants’ argument that the trial court erred by finding plaintiffs purchased and owned the company. Defendant-Waleed claimed he never executed a purchase agreement under which he sold his interest in the company, claiming the signature was forged. “Waleed’s failure to respond to the request to admit acted as an admission to the request, and the trial court did not abuse its discretion by admitting the document at trial.” He also could have “moved to withdraw or amend his response to the requests for admissions, but did not avail himself of this option, either.” Further, even if the “purchase agreement had been forged, the trial court’s conclusion that Waleed had no interest in [the company] at the time of the conversion of funds . . . will not be disturbed on appeal because Waleed confirmed his intent to sell his interest in [the company] when he signed the global memorandum agreement.” Finally, plaintiffs established that Waleed exercised unlawful control over the company’s “money and appropriated that money to his own use.” Affirmed.

Dispute over ownership of a company; Admission under MCR 2.312(B)(1); Medbury v Walsh; Motion to withdraw or amend; MCR 2.312(D); Burden of proof for fraud; Groth v Singerman; Damages; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc

The court held that the trial court did not err by finding defendants had no ownership interest in plaintiffs’ company. Plaintiffs, the Iraqi owners of an oil supply company, and defendants, their American agents, disagreed as to whether defendants had an ownership interest in the company. The trial court found defendants had no ownership interest in the company and ordered them to repay plaintiffs for funds syphoned from the business. On appeal, the court rejected defendants’ argument that the trial court erred by finding plaintiffs purchased and owned the company. Defendant-Waleed claimed he never executed a purchase agreement under which he sold his interest in the company, claiming the signature was forged. “Waleed’s failure to respond to the request to admit acted as an admission to the request, and the trial court did not abuse its discretion by admitting the document at trial.” He also could have “moved to withdraw or amend his response to the requests for admissions, but did not avail himself of this option, either.” Further, even if the “purchase agreement had been forged, the trial court’s conclusion that Waleed had no interest in [the company] at the time of the conversion of funds . . . will not be disturbed on appeal because Waleed confirmed his intent to sell his interest in [the company] when he signed the global memorandum agreement.” Finally, plaintiffs established that Waleed exercised unlawful control over the company’s “money and appropriated that money to his own use.” Affirmed.

Jury instruction on a lesser included offense; AWIGBH (MCL 750.84(1)(a)); Assault & battery (A&B) (MCL 750.81(1)); People v Haynie; Whether a rational view of the evidence supported giving the instruction; People v Cornell; Whether an error was harmless

In an order in lieu of granting leave to appeal, the court reversed the part of the Court of Appeals judgment (see e-Journal # 73800 in the 9/17/20 edition) concerning defendant’s challenge to the trial court’s denial of his request for a jury instruction on A&B where he was charged with AWIGBH. Assuming without deciding that A&B is a lesser-included offense of AWIGBH, the court concluded that a rational view of the evidence supported the instruction, that the trial court erred in not giving it, and that the error was not harmless. The Court of Appeals held that A&B “is not a necessarily included lesser offense of AWIGBH but rather a cognate offense for which a trial court is not required to give jury instructions.” It noted that the Supreme Court in Haynie chose not to address whether A&B “is a necessarily included lesser included offense of AWIM and instead relied on the prosecution’s concession” in Haynie that this was so, while here, there was no such concession. However, it “failed to acknowledge the prosecution’s concession in the trial court” and that concession waived the prosecution’s appellate argument. Thus, the court assumed that A&B is a lesser-included offense here. It also found that a rational view of the evidence supported the instruction. “To the extent the prosecution relies on evidence of injury to argue otherwise,” the court repeated its “observation in Haynie that ‘[w]hile the severity of injury bears on intent, it is not necessarily dispositive[.]’” The court further found that defense counsel’s general denial that an assault occurred did “not lead to the conclusion that the intent element of AWIGBH was not disputed. A criminal defendant is generally permitted to present inconsistent defenses, and so long as there is sufficient evidence to support a proposed jury instruction, the instruction should be given. . . . Similarly, when a rational view of the evidence would support” an A&B conviction “for a defendant charged with AWIGBH, it is error to prevent the defendant from arguing that no assault occurred, but that if one did, the defendant did not act with the intent to cause great bodily harm.” The court remanded to the trial court for a new trial, but denied leave to appeal in all other respects as it was not persuaded it should review the remaining questions presented.

Dissenting, Justice Zahra agreed that the prosecution waived its argument that A&B is not a lesser included offense of AWIGBH “by advancing a contrary position in the trial court.” But he disagreed with the “decision to grant defendant a new trial without plenary review of the record and the remaining issues regarding whether the trial court abused its discretion in denying defendant’s requested” A&B jury instruction. He would instead remand the case to the Court of Appeals for consideration of two issues.

Due process; Waived issue; Bindover on a human trafficking charge & the corresponding count of using a computer to commit a crime; Whether defendant benefited financially; MCL 750.462d(b); MCL 750.462f(1)(b); MCL 750.159f(a); The corpus delicti rule; People v Schumacher; People v Williams; Right to confrontation

The court held that the district court did not abuse its discretion by finding that the prosecution presented sufficient evidence to bind defendant over on a human trafficking charge and using a computer to commit a crime. His argument on appeal was that the prosecution did not present sufficient evidence showing that defendant benefited financially as required by MCL 750.462d(b). His wife testified that he “told her that he received money in exchange for posting the sex videos on the Internet. This evidence was sufficient to support a finding of probable cause” that he benefited financially. But he argued that the testimony by his wife as to the financial benefit he received was admitted in violation of the corpus delicti rule. His “wife testified that defendant told her that he received money for uploading the videos depicting sex acts.” Establishing that he “received money to upload the pornographic videos was not alone sufficient to prove that defendant was guilty of human trafficking—far from it.” The prosecution also relied on the videos and the “wife’s testimony that defendant pressured her to engage in sexual activity with other men and threatened to withhold financial support if she did not comply. Because additional evidence was required to establish probable cause that defendant committed the offense of human trafficking, the alleged statement by defendant about receiving a financial benefit constituted a mere admission and not a confession of guilt.” Thus, the corpus delicti rule was not violated. “Defendant’s admission related to only one element of the crime, and the corpus delicti rule does not require independent proof of every element.” Affirmed.

Whether defendant’s convictions & sentences should be vacated because the jury rendered inconsistent verdicts by finding him guilty of armed & unarmed robbery

The court held that because juries may reach inconsistent verdicts, defendant was not entitled to relief. “Moreover, the jury’s verdicts were not inherently inconsistent.” The jury could have convicted him of armed robbery as an aider and abettor, while convicting him of unarmed robbery as a principal. He also did not meet his burden to establish juror confusion. He was convicted of conspiracy to commit armed robbery, armed robbery, conspiracy to commit carjacking, carjacking, and felony-firearm. The trial court vacated convictions of unarmed robbery and conspiracy to commit unarmed robbery. Defendant argued that “all of his convictions and sentences should be vacated because the jury rendered inconsistent verdicts by finding him guilty of both armed and unarmed robbery.” The jury was polled after delivering its verdict. Contrary to his argument on appeal, the exchange between the court and juror-M did not establish juror confusion. Nor did the remaining claims. Specifically, at sentencing, defense counsel stated that when the verdict was read, M “was crying, and when polled, her response was halted. Then she said her answer was yes, ‘[b]ased on the facts.’ Defense counsel later asked her why she was crying, and [M] said it was irrelevant to the trial. However, defendant asserted that he met the boyfriend of [M] in jail, who said that [M] came home from defendant’s trial and cried for days because she felt pushed, bullied, and forced to convict defendant. Defense counsel requested that the sheriff’s deputy interview [M] and her boyfriend.” The trial court denied “counsel’s motion to adjourn sentencing, as well as the request for further inquiry into the juror issue.” This did not establish juror confusion, particularly because M told “counsel that she was crying during the verdicts because of something irrelevant to the trial. Regardless, defendant has not established a plain error affecting his substantial rights because” he could not establish prejudice. “After the jury delivered its verdicts, the trial court entered an order vacating the convictions of conspiracy to commit unarmed robbery and unarmed robbery.” Thus, the court held that he “suffered no prejudice as a result of the jury verdicts of guilty for both armed robbery and unarmed robbery because the unarmed robbery conviction was subsequently vacated.”

Sentencing; “Career offender”; USSG § 4B1.2(b); Whether a state felony offense qualified as a “controlled substance offense”; United States v. Cordero; United States v. Havis; Timeliness of as appeal; Fed.R.App.P. 4(b)(1)(A); United States v. Gaytan-Garza; Whether the government could withdraw its opposition to the appeal; Sua sponte dismissal of late appeals; Deloatch v. Sessoms-Deloatch; United States v. Mitchell (10th Cir.); Whether the district court had jurisdiction to grant a defendant leave to file a late notice of appeal; United States v. Carman; Four-level leader enhancement under § 3B1.1(a); Procedural waiver; United States v. Hall (Unpub. 6th Cir.)

In an amended opinion (see e-Journal #74602 in the 1/15/21 edition for the original opinion), the court reversed defendant-Combs’s sentencing as a career-offender where intervening circuit precedent (Cordero) held that conspiracy to distribute no longer qualifies as a “controlled substance offense.” It again held that the government was free to withdraw its opposition to defendant-Jackson’s appeal where Rule 4(b) is simply a claims-processing rule, and the government withdrew its opposition before an order was entered.

Sentencing; First Step Act § 403(b); 18 USC § 924(c); Entitlement to resentencing under the Act; Whether a sentence was “imposed” before the Act was enacted; United States v. Richardson; United States v. Henry

The court vacated defendant-Jackson’s sentence and remanded for the district court to sentence him under the version of § 924(c) that pre-dates the First Step Act. A jury convicted him of carjacking and brandishing a firearm during a crime of violence. He had been sentenced and his appeal was pending when Congress enacted the First Step Act. The court later vacated one of his brandishing convictions and remanded for resentencing. The district court ruled that Jackson was eligible for consideration under the Act but still increased his sentence by 21 months. Jackson appealed the increase, and the government appealed the district court’s conclusion that he was eligible for sentencing under the Act. The court first noted that the Act provides that it applies to “a defendant on whom ‘a sentence for the offense has not been imposed as of’” 12/21/18. It then considered when a sentence is “imposed,” and concluded that it must consider his status on the 12/21 date. “On the relevant date for retroactivity, Jackson was . . . under sentence pending appeal.” The court held that just because it “later vacated his first sentence does not alter Jackson’s status on the day the First Step Act became law.” It rejected the argument that the “First Step Act’s amendments should apply to all resentencing hearings that occur after the date of enactment based on the general ‘principle that a court is to apply the law in effect at the time it renders its decision[,]’” holding that the general principle argument only applies “when there is no statutory directive to the contrary.”

Denial of request for a subscription to certain public documents under MCL 15.233(1); Civil fines & damages; MCL 15.240(7); Whether a public body’s director may delegate review of FOIA denial appeals; MCL 15.240; The Board of Mechanical Rules (BMR)

The court concluded that since plaintiff did not request anything other than a subscription to the BMR’s meeting packets under MCL 15.233(1), “defendant did not violate the FOIA by failing to produce documents not requested.” Further, because there was no court-ordered disclosure, he was not entitled to civil fines and damages under MCL 15.240(7). The record also supported the finding that defendant’s denial of his subscription request was not arbitrary and capricious. Finally, the trial court did not err in ruling that defendant did not violate the FOIA by allowing a designated Appeals Officer (S) to respond to his appeal instead of its director. The trial court held “that plaintiff requested a subscription to future issuances of board packets for” BMR meetings, and that defendant improperly denied his request on the ground that they were not regularly created. But he argued that it erred in concluding that “defendant did not also violate the FOIA by failing to disclose e-mails and board packets relevant to” a scheduled BMR meeting. However, as the trial court noted, plaintiff failed to request these items. As to civil fines and damages, while the trial court determined that his “subscription request was valid, and that defendant violated FOIA when it denied” his request for future packets, it did not order “the disclosure of any documents.” In addition, while defendant’s reason for denying his subscription request did not justify denying it, the court agreed “with the trial court’s observation that ‘the mere violation of FOIA does not amount to an arbitrary and capricious act, and there is nothing in the record to suggest that defendant’s decision to deny the request rose to the level of being “whimsical” or void of principles as would be required to support a finding of an arbitrary and capricious denial.’ Thus, the trial court did not err in summarily disposing of plaintiff’s claim for a civil fine and damages.” Lastly, as nothing in MCL 15.240 bars “‘the head of a public body from employing personnel to act on behalf and under the authority of the head of the public body[,]’” the director of a public body may “delegate the review of FOIA denial appeals to an agent within the public body,” and the trial court was correct “that defendant’s director did not violate the FOIA by delegating her appellate review authority to” S. Affirmed.

Private nuisance; Proposed amendment to add a count of aggravated stalking; Other acts evidence; MRE 404(b)(1); MRE 403; Choice of law as to a defamation claim; Absolute privilege; Personal protection orders (PPOs)

The court held that the trial court properly granted defendant-Guinan, Sr., summary disposition on the claim of private nuisance. Also, the trial court did not abuse its discretion by disallowing the proposed amendment to add a count of aggravated stalking, or by ruling that certain evidence would be excluded under MRE 403. Finally, the presumption for applying the law of the forum state (i.e., Michigan) was not overcome. Plaintiffs-Brovins and Oehmke obtained ex parte PPOs against defendant-Guinan, Jr., in 10/17, and in 3/18 they filed this suit, raising various theories against Guinan, Jr., and Guinan, Sr. It was not disputed that in 10/18, “Guinan, Jr., used the Internet to provide a tip to” the FBI about Oehmke. The trial court allowed plaintiffs to amend their complaint to add a count of defamation. They contended on appeal that it erred by finding no genuine issue of material fact as to whether Guinan, Sr., maintained a private nuisance by allowing Guinan, Jr., to sometimes stay at Guinan, Sr.’s Michigan home, which in the same neighborhood as Brovins’s Michigan home. They asserted that Guinan, Jr., “stalked plaintiffs from the home and was thereby a nuisance.” They alleged that eight incidents, viewed together, created a question of fact as to “whether Guinan, Sr., maintained a private nuisance:” three incidents along the road, an alleged incident where Guinan, Jr. was walking his dog near their driveway with a baseball bat, a “pickup truck incident, the alleged depositing of garbage, the alleged unlatching of Brovins’s gate, and the Internet FBI tip. As for the pickup truck incident, during which a green pickup truck allegedly entered Brovins’s driveway, Oehmke admitted that he could not see who was driving the truck. Even the operative complaint itself states that ‘no positive [identification] of the driver could be made.’ Oehmke also admitted that he did not know if Guinan, Jr., had unlatched the gate on Brovins’s deck; instead he was conjecturing that Guinan, Jr., had done so.” And it was not shown who had placed the food containers in the trash can. The reference to the Internet tip was similarly not supportive of their nuisance claim. There was no evidence that the “tip resulted from Guinan, Sr.’s harboring of Guinan, Jr., in his Michigan home, and the tip clearly involved no invasion by Guinan, Sr., or Guinan, Jr., into plaintiffs’ property interests.” As to the incidents along the road, “plaintiffs failed to establish a genuine issue of material fact regarding an interference with any ‘property rights’ in the public road.”

Negligence claim against a bank related to a failed loan transaction; Duty; Ulrich v Federal Land Bank of St Paul; Smith v First Nat’l Bank & Trust; Hills of Lone Pine Assoc v Texel Land Co; Promissory estoppel; MCL 566.132(2); Crown Tech Park v D&N Bank, FSB; Tortious interference

The court held that plaintiffs’ negligence claim failed because defendant-bank did not owe a duty of care to a loan applicant. Further, given that they did not provide any “written ‘promise or commitment to lend money, grant or extend credit, or make any other financial accommodation,’” MCL 566.132(2) barred their promissory estoppel claim. Finally, they did not allege that defendant-Adams (the bank’s Vice President of Lending) did anything rising to the level of tortious interference. Thus, the court affirmed summary disposition for defendants. Plaintiff-Montijo acted as broker for plaintiffs-Thomas and Kokkatt in trying to obtain a commercial loan. Adams handled the matter for the bank. The court noted that plaintiffs did not explain why it should not apply Ulrich here. The essence of their case was the claim that “Thomas and Kokkatt applied for a commercial loan, and that the bank committed to funding that loan but subsequently failed to deliver on its promise, causing financial injury to plaintiffs.” While they relied on Smith and Hills of Lone Pine, those cases were “inapposite, as the present case does not involve an alleged breach of the terms of an escrow agreement. The trial court properly relied on this Court’s holding in Ulrich to rule that defendants in this case owed plaintiffs no duty of care, and that plaintiffs’ negligence claim failed as a matter of law.” As to their promissory estoppel claim, the only document they relied on was a letter from Adams to Montijo. That document clearly stated “that it was not a commitment to lend, but was a ‘presentation for discussion purposes only.’” As to the tortious interference claims, “plaintiffs alleged that Adams contacted Montijo’s clients and dealt with those clients directly regarding their banking business, cutting Montijo out of the role of broker. The trial court held that defendants were entitled to summary disposition on” these claims because there was no allegation “that defendants’ conduct was illegal, unethical, or fraudulent.” The court agreed that summary disposition on these claims was proper.

Dispute over the reformation of a trust; Limited powers of appointment (LPAs); MCL 556.112(c); Exercising LPAs in favor of IRC § 501(c)(3) religious, scientific, charitable, or education organizations; Laches; Prejudice; Yankee Springs Twp v Fox

The court held that the probate court erred by granting summary disposition for respondent-trustee/attorney on the basis of laches. Petitioners sought reformation of their mother’s trust after being informed by respondent that they had been disinherited when their father, before his death, exercised his LPAs to appoint all the money over which he had such power to interested party St. Joseph Mercy Oakland. They alleged that their mother never intended respondent to draft the trust in a way that would provide their father with the ability to disinherit them, and unsuccessfully asked the probate court to determine that the LPA was “the product of a mistake of fact and/or law” and to reform it. On appeal, the court agreed with them that the probate court erred by granting summary disposition for respondent based on laches because questions of fact remained as to “whether petitioners unreasonably and inexcusably delayed” their petition for reformation and whether granting it would result in prejudice to their father and overthrow his estate plan. “[R]easonable minds could disagree regarding whether petitioners were dilatory by failing to scrutinize the [trust] and to discover the alleged drafting error.” In addition, “reasonable minds might differ regarding whether [their father’s] restatement of his living trust triggered a due-diligence requirement to examine the” trust. Further, the “alleged deterioration of their relationship with [their father] might be grounds for concern about their status in his will and trust, but in light of” a trust flowchart provided by respondent, as well as his assurances that their mother “had taken care of them in her trust,” and their father’s earlier “conforming exercise of the LPAs,” one might reasonably conclude that petitioners’ relationship with their father “did not trigger a due-diligence requirement to examine the actual terms of the” trust. The evidence upon which the probate court relied to grant respondent summary disposition based on laches created genuine issues of material fact as to “whether and when due diligence required petitioners to examine the [trust] for themselves and what they knew about the scope of the LPAs.” Likewise, the record was “insufficient to conclude that a change in circumstances caused by petitioners’ alleged delay would make it inequitable to reform the” trust. Reversed and remanded.

Easement rights; Whether a walkway easement was separate & distinct from a maintenance easement; Ownership of party walls between buildings

The court held that the walkway easement, on which plaintiff-Landmark Port Huron relied, “was separate and distinct from” a maintenance easement. It “stood on its own and could be used for purposes of ingress and egress generally.” Further, as to the dispute over ownership of party walls between the parties’ buildings, defendant-Pellerito’s “ownership rights did not extend beyond the inside faces of the walls of his building[.]” Thus, the trial court did not err in granting Landmark summary disposition as to its claims regarding trespass and declaratory relief as to the walkway easement and the party walls. The parties’ buildings were previously owned by a partnership, Home Town Investments. In 1997, it sold a portion of the property to Pellerito via land contract, which “reserve[ed] an easement for ingress and egress across the Easterly 3.75 feet of” the conveyed parcel. At the same time, a separate document titled MAINTENANCE EASEMENT was executed. In 2011, Home Town conveyed the rest of its property to Landmark by warranty deed. Landmark alleged that Pellerito took various actions that prevented access to, and use of, the walkway easement. The trial court ultimately determined that “the land contract and subsequent deed reserved a walkway easement, that the walkway easement was separate and distinct from the maintenance easement, that the walkway easement was an easement appurtenant to the property Home Town (dominant tenement) retained, that this easement was necessarily conveyed to Landmark along with the building by warranty deed, and that Landmark had the right to utilize the walkway easement for general ingress and egress purposes.” The court noted that the walkway easement did not “make any reference to the maintenance agreement or easement, nor did the language in the maintenance agreement indicate that it was incorporating in any fashion the walkway easement” in the land contract. The court rejected “Pellerito’s argument that the walkway easement was extinguished because the need for rooftop maintenance” ceased to exist, and to the extent he argued Landmark’s warranty deed “did not convey the walkway easement because no easement was mentioned,” this failed because “the walkway easement was plainly appurtenant to the property sold to Landmark and ran with the land, making it unnecessary to mention” it in the deed. Affirmed.

Dispute over a condominium project’s imposition of a yearly flat fee for co-owners’ use of its adjacent recreational facilities; MCL 559.234; MI Admin Code, R 559.111(b); Disclosure statement; MCL 559.184a; Action for relief; MCL 559.215; Whether a rule was validly promulgated; Conlin v Upton; Discovery sanctions; Attorney fees; MCR 2.313(A)(5) & (B)(2); Frivolous filing; MCR 1.109(E); MCR 2.625(A)(2); MCL 600.2591; Yee v Shiawassee Cnty Bd of Comm’rs; Civil contempt; In re Contempt of Calcutt

The court held that the trial court did not err by granting plaintiff-condominium co-owner summary disposition of his claim alleging defendant-condominium developer violated rules and bylaws by imposing a recreational use fee on condominium co-owners, or by granting plaintiff sanctions. Plaintiff sued defendant claiming he should not be required to pay a yearly flat fee to use defendant’s recreational facilities adjacent to the condominium project. The trial court found defendant “violated administrative rules by imposing the fees and awarded a reimbursement of fees paid by plaintiff.” It also found defendant “violated the condominium bylaws by imposing a flat fee because the bylaws allowed only for a fee covering maintenance and repair of the facilities.” On appeal, the court rejected defendant’s argument that the trial court erred by granting summary disposition for plaintiff on three counts of his complaint seeking a declaratory judgment and damages related to the usage fees and asserting his right to inspect the books and records of the recreational facilities. It rejected defendant’s attempt “to create a ‘loophole’ whereby if a condominium co-owner is directly billed by a facility, that facility need not comply with condominium statutes and rules.” In addition, “the recreational facilities at issue are not owned by the co-owners collectively; instead, they are owned solely by” defendant, who was “a ‘third party’ in its role as the owner of the facilities.” The trial court, in finding a violation of “R 559.111(b), did not err by focusing on” defendant’s role as the developer. Given the rule violations, “the fee provision was not ‘validly promulgated[.]’” The court also upheld the trial court’s grant of attorney fees and costs to plaintiff in connection with granting motions to compel discovery, noting that in light of the evidence “and the deferential standard of review, . . . the trial court’s decision to award sanctions was not outside the range of reasonable and principled outcomes.” However, the trial court did err and abuse its discretion by including $695 in the award for three particular days of legal work. Finally, the court rejected plaintiff’s contentions that the trial court should have granted him sanctions because defendant advanced frivolous defenses to two of the counts in his complaint, and should have sanctioned defendant for violating trial court rulings. It was “not left with a firm and definite conviction that the trial court made a mistake in concluding that [defendant] did not act frivolously in defending against” the two counts, and there was no basis for finding error as to the alleged violations. Affirmed, but remanded for a recalculation of costs and fees.

Quiet title; The General Property Tax Act (GPTA); The proper categorization of what defendant referred to as its “right of reverter” & whether the property interest is synonymous with a “private deed restriction”; "Restrictive covenant"

The court affirmed the trial court’s order granting summary disposition under MCR 2.116(I)(2) in favor of plaintiff in this quiet title claim. The appeal arose from a dispute over ownership of a vacant lot in defendant-city. The parties agreed that MCL 211.78k(5)(e) precluded “defendant from obtaining the property if the language in the 2004 quit claim deed bestowed on defendant a right of reverter and not a private deed restriction.” Thus, defendant argued the trial court erred by holding that its “retention of an interest in the land constituted a right of reverter but did not create a private deed restriction.” At issue was the proper categorization of what defendant referred to as its “right of reverter” and whether the property interest is synonymous with a private deed restriction. By reviewing the definitions of a right of entry and a private deed restriction it became clear that they are two separate and distinct types of property interests. If the court “were to adopt defendant’s definition of a private deed restriction, we would effectively nullify MCL 211.78k(5)(b).” Reading the "phrase ‘private deed restriction’ in MCL 211.78k(5)(e) to refer to a right of entry would be inconsistent with the phrase’s plain meaning as reading it this way would nullify MCL 211.78k(5)(b) and would impede the object of the GPTA.” Thus, the trial court properly granted plaintiff’s motion for summary disposition and denied defendant’s motion. After the Oakland County Treasurer obtained a judgment of foreclosure against the vacant lot, “fee simple title to the property vest[ed] absolutely in” the Oakland County Treasurer. At that point “all existing recorded and unrecorded interests in that property [were] extinguished,” including defendant’s right of entry. Thus, when the Oakland County Treasurer sold the lot to plaintiff in 10/07, fee simple absolute title passed to plaintiff.

Choice between protesting to the board of review & appealing directly to the TT; MCL 205.735a(3), (4), & (6); Effect of an untimely filing; WA Foote Mem’l Hosp v City of Jackson; Summary disposition under MCR 2.116(C)(6); Untimely motion for reconsideration; MI Admin Code, R 792.10257(1) & 792.10219(5); The court’s jurisdiction; Failure to timely file an appeal from the TT’s order of dismissal; MCR 7.204(A)(1)(a); Treating the appeal as one on application for leave to appeal; The non-profit charitable institution exemption (MCL 211.7o)

The court concluded that the TT did not err in dismissing petitioner-McLaren’s claim for the exemption under MCL 211.7o for the 2018 tax year, holding that “MCL 205.735a(4)(a) and (b) do not contemplate—much less permit—the course of action taken by McLaren” in seeking to challenge respondent-township’s decision as to 2018. Further, given that McLaren filed a petition as to the 2020 tax year after its 2019 petition and both actions involved “the same parties and the same claim in relation to the property’s 2019 status[,]” the TT did not err in dismissing the claim as to the 2019 tax year. Finally, it did not err in determining that McLaren’s motion for reconsideration was untimely. As an initial matter, the court concluded that it did not have jurisdiction to consider McLaren’s appeal as of right because McLaren failed to timely file its claim of appeal. But the court granted leave to appeal in the interest of judicial economy. It rejected McLaren’s claim that the TT erred in dismissing its claim as to the 2018 tax year because it “was not required to protest the 2018 decision before the board of review.” Respondent denied McLaren’s request for the exemption for the 2018 tax year on 2/14/18. McLaren did not seek to challenge that decision before the board of review. Rather, it filed the 2019 petition in the TT, as “it was permitted to do under MCL 205.735a(4)(a) and (b). Importantly, however, McLaren did not file the 2019 petition until 20 months after the [2/14/18] decision.” The TT dismissed the portion of the 2019 petition as to the 2018 tax year based on a lack of jurisdiction. Then McLaren protested the 2/14/ 2018 decision before the board of review, and when this failed, it filed the 2020 petition. The court concluded that there was “no indication that the Legislature intended for a party to be able to create subject-matter jurisdiction where it did not previously exist by protesting an assessment before the board of review after the party’s petition had already been dismissed by the Tribunal because of the party’s failure to comply with the requirements contained in MCL 205.735a(6).” McLaren filed its 2020 petition over 22 months after respondent’s 2/14/18 decision. Thus, the TT lacked jurisdiction over the claim as to the 2018 tax year, and it “did not err by dismissing that portion of the 2020 petition.” Affirmed.

Jurisdiction over the children under MCL 712A.2(b)(1) & (2); Failure to provide medical & other necessary care; “Substantial risk of harm to mental well-being”; An “unfit home environment”; Whether respondent’s mental-health issues created a risk of harm to the children justifying removal; Reasonable efforts to prevent removal

The court held that the trial court did not clearly err in finding statutory grounds to exercise jurisdiction under MCL 712A.2(b) by a preponderance of the evidence or clearly err in finding that respondent-mother’s mental health created a risk of harm to the children to the extent that it had to remove them from her care and custody. Finally, it did not clearly err in finding that the DHHS made reasonable efforts to prevent their removal. Respondent claimed that the trial court clearly erred in finding that statutory grounds to exercise jurisdiction under MCL 712A.2(b) were proven by a preponderance of the evidence. However, based on the record, the court concluded that there was a preponderance of the evidence she “had failed to provide medical and other necessary care for the health or morals of the children.” Also, her actions established by “a preponderance of the evidence that respondent created a substantial risk of harm” to their mental well-being. Most concerning was her “denial of any mental-health problems and her refusal to comply with services, treatment and medication, as well as the numerous false allegations involving her children. Her own testimony revealed her delusion that the youngest child’s father had placed cameras throughout her home and car and wherever she went in the community, and had created a Facebook page showing depraved sexual acts that included her and her children.” Further, the preponderance of the evidence showed that her home was an unfit environment for the children. Affirmed.

Dispute over the reformation of a trust; Limited powers of appointment (LPAs); MCL 556.112(c); Exercising LPAs in favor of IRC § 501(c)(3) religious, scientific, charitable, or education organizations; Laches; Prejudice; Yankee Springs Twp v Fox

The court held that the probate court erred by granting summary disposition for respondent-trustee/attorney on the basis of laches. Petitioners sought reformation of their mother’s trust after being informed by respondent that they had been disinherited when their father, before his death, exercised his LPAs to appoint all the money over which he had such power to interested party St. Joseph Mercy Oakland. They alleged that their mother never intended respondent to draft the trust in a way that would provide their father with the ability to disinherit them, and unsuccessfully asked the probate court to determine that the LPA was “the product of a mistake of fact and/or law” and to reform it. On appeal, the court agreed with them that the probate court erred by granting summary disposition for respondent based on laches because questions of fact remained as to “whether petitioners unreasonably and inexcusably delayed” their petition for reformation and whether granting it would result in prejudice to their father and overthrow his estate plan. “[R]easonable minds could disagree regarding whether petitioners were dilatory by failing to scrutinize the [trust] and to discover the alleged drafting error.” In addition, “reasonable minds might differ regarding whether [their father’s] restatement of his living trust triggered a due-diligence requirement to examine the” trust. Further, the “alleged deterioration of their relationship with [their father] might be grounds for concern about their status in his will and trust, but in light of” a trust flowchart provided by respondent, as well as his assurances that their mother “had taken care of them in her trust,” and their father’s earlier “conforming exercise of the LPAs,” one might reasonably conclude that petitioners’ relationship with their father “did not trigger a due-diligence requirement to examine the actual terms of the” trust. The evidence upon which the probate court relied to grant respondent summary disposition based on laches created genuine issues of material fact as to “whether and when due diligence required petitioners to examine the [trust] for themselves and what they knew about the scope of the LPAs.” Likewise, the record was “insufficient to conclude that a change in circumstances caused by petitioners’ alleged delay would make it inequitable to reform the” trust. Reversed and remanded.