Robert J. Adams Helen Joan Brish Julie A. Cohen Margaret Erdeen Davis Judith Bach Dixon Michael L. Dobra Matthew Scott Essenburg John E. Gates Jr. Stephen A. Gatto Stephanie T. Goecke Clyde C. Goodwin Jr. William J. Hassett John R. Hayes Robert L. Hindelang Joseph J. Jerkins Donald L. Johnson David A. King Suzanne Marie Krohn John R. Marquis Michael E. Mccarty Donna Mckneelen William P. O’leary Cameron H. Piggott Margaret L. Pittman John G. Posa Nancy M. Rade Edmund J. Sikorski Jr. Anne L. Sruba Robert D. Stalker Mary Wickens Clayton E. Wittman
Robert S. Bick Andrew T. Blum Butzel Cloie Y. Chidiac Nancy Samir-Haddad Derleth Debra A. Geroux Charlie Goode Brandon J. Hayes Ingham County Bar Association Courtney A. Lavender Bushra A. Malik MDTC James J. Murray Courtney L. Nichols Shanika A. Owens Reginald A. Pacis Erin Pawlowski Adomas N. Rauckis Richard Warren
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Allegations of veterinary negligence under MCL 333.16221(a) & incompetence under MCL 333.16221(b)(i); Sillvery v. Board of Med.; Collateral estoppel; People v. Gates; Arim v. General Motors Corp.; Young v. Edwards; The law of the case doctrine; Bruce Twp. v. Gout; Ashker ex rel Estate of Ashker v. Ford Motor Co.; Revisions & modifications of an order; MI Admin Code, R 338.1630(4) & (5); Interpretation of administrative rules; Detroit Base Coal. for the Human Rights of the Handicapped v. Department of Soc. Servs.; Whether petitioner’s determination was supported by competent, material, & substantial evidence; Department of Cmty. Health v. Risch; Claim that petitioner did not give proper deference to the administrative law judge’s (ALJ) opportunity to hear the testimony & view the witnesses firsthand; Michigan Employment Relations Comm’n v. Detroit Symphony Orchestra, Inc.
The court held that petitioner-Board of Veterinary Medicine’s Disciplinary Subcommittee did not err by imposing professional probation with conditions on respondent-veterinarian based on negligence and failure to exercise due care. A viewer of respondent’s television program took issue with the manner in which he performed a procedure on a dog and filed an administrative complaint with petitioner. A horse’s owners also filed a complaint related to the treatment of their horse. The ALJ found “petitioner failed to prove by a preponderance of the evidence that respondent was negligent or incompetent in his care of the dog or the horse” and that he should not be subject to sanctions. Petitioner adopted in part and rejected in part the ALJ’s findings, determining there was adequate evidence that respondent violated MCL 333.16221(a) based on his “failure to intubate the dog during the procedure, failure to wear a surgical mask and gown during the procedure, and failure to clip the hair around the horse’s wound prior to suturing the wound[.]” It placed him on probation for “a minimum of one day, not to exceed one year” and directed him to pay all costs incurred in complying with the terms of its order and to comply with the Public Health Code. The court rejected his argument that petitioner erred by declining to give preclusive effect to the court’s conclusion in his previous case, noting that “what, if any, standard of care applies in relation to veterinary surgical attire is a question of law and” the two cases concerned different animals and surgical procedures. It also found that the law of the case doctrine barred it from considering his claim that petitioner denied him his right to constitutional due process by refusing to supplement the official record with transcripts of two meetings it held when deciding his case, noting its decision in a prior order “now stands as the law of the case[.]” It next rejected his contention that petitioner’s final order was deficient because it did not satisfy the requirements of MI Admin Code, R 338.1630(4) and (5), finding petitioner adequately specified its departures from the ALJ’s conclusions. The court further rejected his argument that petitioner’s final order was not supported by competent, material, and substantial evidence, finding “expert testimony presented at the hearing was sufficient to establish that there was an applicable standard of care that respondent breached.” Affirmed.
Arbitration terms of construction agreements; An agreement to arbitrate as a contract; Ferndale v. Florence Cement Co.; Beck v. Park W. Galleries, Inc.; Arbitrability; Huntington Woods v. Ajax Paving Indus., Inc.; Principle that when there are several agreements relating to the same subject matter, the intention of the parties must be gleaned from all the agreements; Omnicom of MI v. Giannetti Inv. Co.; Whether defendants waived their right to assert arbitration; Madison Dist. Pub. Sch. v. Myers; North W. MI Constr., Inc. v. Stroud
The court held that the trial court erred by denying defendants-builders’ motion for summary disposition because they were entitled to arbitration under the terms of the construction agreements entered into by the parties. Plaintiffs-homeowners sued defendants under theories of fraud and innocent misrepresentation, alleging defendants’ actions diminished the values of their properties and that defendants knew or should have known about the conservation easement. Defendants contended that plaintiffs’ claims were covered by the arbitration clause in the construction agreements, and filed a counterclaim alleging “plaintiffs breached the construction agreements by not proceeding to arbitration.” On appeal, the court agreed with defendants that the trial court erred by denying their motion for summary disposition because they were entitled to arbitration under the terms of the agreements. “The construction and purchase agreements in this case establish the parties’ intent to arbitrate because they are temporally and substantively integral to one another such that they must be construed together.” When they signed the construction agreements containing an arbitration clause, plaintiffs “agreed to arbitrate not only disputes regarding the construction of the homes, but also disputes regarding the purchase of the lots on which the homes were to be constructed.” The court rejected their argument that the arbitration clauses should not apply because they did not allege a violation of the construction agreements, finding their complaints “necessarily arose out of the construction agreements.” Finally, it determined that defendants did not waive their right to invoke the arbitration clause, concluding plaintiffs “failed to meet their heavy burden of demonstrating prejudice, in that they failed to raise this waiver issue” sooner, and defendants’ “delay in litigating their arbitration defense is less significant than previous cases in which” the court has found a waiver of arbitration. “Because the purpose of arbitration is to preserve the time and resources of the courts in the interests of judicial economy, the time frame and relatively efficient manner in which defendants have litigated this case disfavors a finding of waiver. Simply put, defendants have not taken action which clearly waives their arbitration claims.” Reversed and remanded.
Excessive force claim under U.S. Const. amend. IV; 42 USC § 1983; Qualified immunity; Harlow v. Fitzgerald; See v. City of Elyria; Campbell v. City of Springboro, OH; Saucier v. Katz; Goodwin v. City of Painesville; Jurisdiction; 28 USC § 1291; Mitchell v. Forsyth; Barry v. O’Grady; Phillips v. Roane Cnty., TN; Diluzio v. Village of Yorkville, OH; Livermore ex el Rohm v. Lubelan; Estate of Carter v. City of Detroit; “Deadly force”; Mullins v. Cyranek; Jefferson v. Lewis; Scott v. Henrich; Violation of a clearly established constitutional right; Berryman v. Rieger; Attempts to dispute plaintiffs’ facts; Phelps v. Coy; Beard v. Whitmore Lake Sch. Dist.; Claybrook v. Birchwell; McKenna v. City of Royal Oak; Hopper v. Phil Plummer
The court held that because defendant-deputy’s (Burns) appeal of the denial of qualified immunity in this excessive force case was premised on factual disputes and not on questions of law, it must be dismissed for lack of jurisdiction. Burns responded to a call that three “suspicious individuals” were walking down a country road, and he was concerned that one of them was possibly a man (T) wanted on a warrant for assaulting a police officer. When he questioned them, plaintiffs’ decedent, Edwards, ran. The circumstances that led to his handcuffed, bleeding body with multiple contusions and an autopsy verdict of homicide, were in dispute. Five individuals, including two deputies, were present at and around the time when Edwards was taken into custody, and their recollections varied. “Burns’s camera fell off his body[]” just after Edwards complained that he was going to pass out. The district court denied him qualified immunity, ruling that issues of fact precluded summary judgment. As to whether Burns used deadly force, a mixed issue of law and fact, the “underlying factual circumstances leading to Edwards’s injuries and the degree of force used” were disputed. The district court appropriately relied on the autopsy report at the summary judgment stage. Thus, Burns’s contention in this regard was “a prohibited fact-based challenge.” His arguments that he thought Edwards might have been T, “that there was a ‘struggle’ in the field,” and about the way he took down Edwards were “prohibited fact-based challenges that go to the heart of the legal issue: whether Burns’s conduct rises to excessive force in violation of the Fourth Amendment.” The court also agreed with the district court that there were “credibility concerns” as to the claim that Edwards attempted to flee a second time. Burns’s claim that he had not violated any “clearly established constitutional right” was unsuccessful where he failed “to concede the most favorable view of the facts to Plaintiffs and instead relies solely on his version of the facts . . . .”
Mitigating circumstances jury instruction (M Crim JI 17.4); MCR 2.512(D)(2); When a defendant charged with assault with intent to commit murder (AWIM) is entitled to the instruction; People v. Rosa; People v. Pouncey; Prosecutorial error; People v. Cooper; People v. Rodriguez; Inferring intent from the nature of the attack; People v. Brown; Sentencing; Scoring of OVs 1, 2, 5, & 10; MCL 777.31(1)(a) & (d); Cut defined; MCL 777.32(1)(d) & (e); MCL 777.35(1)(a) & (b); MCL 777.35(2); People v. Calloway; MCL 777.40(1)(b), (2), & (3); Vulnerability based on a domestic relationship with the perpetrator; People v. Huston; Reasonableness of a departure sentence; People v. Lockridge; Proportionality; People v. Milbourn; People v. Steanhouse; People v. Walden; Lack of remorse; People v. Houston; Adequate explanation of why the sentence was more proportionate than a different one within the guidelines would have been; People v. Dixon-Bey
Holding that the trial court did not abuse its discretion in denying defendant’s request for the mitigating circumstances jury instruction and that the prosecutor’s challenged remarks did not deny him a fair trial, the court affirmed his convictions. It also affirmed his departure sentence, finding no error in the scoring of the OVs, and concluding that the trial court did not abuse its discretion. He was convicted of AWIM, making a false statement to a peace officer about a criminal investigation, and making a false police report of a felony. He was sentenced to concurrent terms of 40 to 80 years for AWIM, and 32 to 48 months for each of the other convictions. He bludgeoned his wife (C) with an axe as she lay in bed, and then claimed to the police that an intruder had done it. As to his request for M Crim JI 17.4, he never stated that C “actually swung the axe at him. In addition, he admitted that he struck her while she was lying in bed. These facts are analogous to Pouncey in that defendant was never dealing with actual physical contact. This is not a situation in which a reasonable person would act out of passion instead of reason.” Rather, the two of them argued, C allegedly said “that she should go after defendant with an axe, and she lay back on the bed.” Regardless of whether she held the axe or not, defendant admitted that she “had never actually left the bed during the incident, but had only ‘sat up in the bed[.]’ The law does not ‘countenance’ a loss of control in such a situation.” The court also rejected his claim as to the prosecutor's comments during rebuttal closing argument about determining a defendant’s intent during an assault. It next concluded that OV 1, 2, 5, and 10 were properly scored at 25 points, 5 points, 15 points, and 10 points, respectively. Finally, as to the reasonableness of his departure sentence (the guidelines range for his AWIM sentence was 135 to 225 months), the court noted that the trial court mentioned several factors not accounted for by the guidelines, including the “extreme level of brutality[,]” the fact it was virtually incredible that C survived, that defendant left her “in a pool of blood for over half a day without checking whether she was dead[,]” and his lack of remorse. It also provided an adequate explanation of why “the sentence it imposed was ‘more proportionate than a different sentence within the guidelines would have been.’”
Medical malpractice; Elher v. Misra; Standard of care; MCL 600.2912a; Principle that podiatrists are general practitioners & subject to the local community standard of care; Jalaba v. Borovoy; Expert testimony; MRE 702; MCL 600.2169; MCL 600.2955; MRE 104(a); Turbin v. Graesser; Bahr v. HarperGrace Hosps.; Decker v. Rochowiak; The two-year statute of limitations for medical malpractice actions; MCL 600.5805(8); Trowell v. Providence Hosp. & Med. Ctrs., Inc.; Tolling; MCL 600.2912b(1); MCL 600.5856(c); Kirkaldy v. Rim; Ligons v. Crittenton Hosp.; Tyra v. Organ Procurement Agency of MI; Principle that a plaintiff’s failure to support his or her medical malpractice claim with a qualified expert is grounds for dismissal with prejudice; Woodard v. Custer
The court held that the trial court did not err by granting summary disposition for defendants-podiatrist (Seiler) and his practice on plaintiff’s medical malpractice claim. Plaintiff sued defendants claiming Seiler’s failure to diagnose his osteomyelitis was malpractice that resulted in the amputation of his right leg below the knee. The trial court struck plaintiff’s expert witness and dismissed his claim. On appeal, the court rejected plaintiff’s argument that a national standard of care should have applied, noting the cases he cited do not have any precedential authority, and “podiatrists have long been subject to only the local standard of care because they are general practitioners.” As such, “the local standard of care for a podiatrist” applied in this case. It also rejected his claim that his expert should have been qualified as an expert witness because he knew the local standard of care. The trial court was not satisfied that the expert was familiar with the local area and thus found he was not qualified to be an expert in this case. While the court was inclined to disagree with the trial court’s conclusion, it did not believe the trial court made an error of law or that its decision was outside the range of principled outcomes. Finally, it rejected his contention that the trial court erred by dismissing his claim with prejudice. “[T]he trial court granted summary disposition to defendants because plaintiff failed to support his claim with a qualified expert.” Affirmed.
Action by an assigned-claims insurer; Auto-Owners Ins. Co. v. Michigan Mut. Ins. Co.; “Third parties”; MCL 500.3175; Spencer v. Citizens Ins. Co.; Priority for payment of personal protection insurance (PIP) benefits; MCL 500.3115; Rescission; Enriquez v. Rios-Carranza (Unpub.); Nonbinding authority; MCR 7.215(C)(1); Paris Meadows, LLC v. City of Kentwood; Whether domicile was relevant; Grange Ins. Co. of MI v. Lawrence; Equitable estoppel; Morales v. Auto-Owners Ins. Co.; Waiver; Walters v. Nadell
Defendant-Auto Club was properly denied summary disposition because a genuine issue of material fact existed as to whether it properly rescinded its insured’s (H) no-fault policy. A pedestrian was injured when he was struck by a vehicle driven by H. An application was submitted to the Michigan Assigned Claims Facility, which assigned the claim to plaintiff-Allstate. The court determined that if H “—the operator, owner, and registrant of the motor vehicle involved in the accident—had a valid no-fault policy issued by Auto Club at the time of the accident, then Auto Club would be a higher priority insurer than Allstate, the assigned-claims insurer. And, as a result, it would be obligated to reimburse Allstate under MCL 500.3175.” Auto Club asserted that H’s policy was rescinded by mutual consent. It relied on Enriquez, which the court found instructive and persuasive, even though nonbinding, and adopted its reasoning as its own. Applying Enriquez, to establish rescission by mutual consent, Auto Club had to show that (1) it sent H “unequivocal notice that it was rescinding her policy, (2) it sent [H] a refund of her premium, and (3) [H] accepted the offer of rescission by cashing the refund check.” It sent her notice of the rescission on 11/10/03, and it presented evidence showing that it sent her a premium refund check 10 days later. Although Auto Club did not have a copy of the check, one of its accountants confirmed that it “had not been returned or escheated. The accountant added that a check that escheated to the state would be a check that was not cashed.” Auto Club contended that “the only reasonable inference was that because the check was not returned or escheated, it must have been cashed. However, despite [H’s] general testimony that she did not recall receiving the rescission notice, she also firmly stated that she ‘never got it.’” She also testified that she changed insurers after the crash due to “a cheaper rate.” Her testimony permitted “a reasonable inference that she did not receive notice of the rescission.” Further, there was no documentary evidence indicating that the check had to be either returned, escheated, or cashed. Reasonable minds could differ on whether H “received unequivocal notice of the rescission and then cashed a premium refund check.” There was also a question of fact as to the applicability of the policy’s fraud-exclusion clause related to where she was living when she applied for the policy.
Putative class action as to tax-foreclosure sale procedures; The General Property Tax Act (GPTA) (MCL 211.1 et seq.); In re Wayne Cnty. Treasurer Petition; MCL 211.78h(1); MCL 211.78k(5) & (6); MCL 211.78k(7) & MCL 211.78l(1); Gillie v. Genesee Cnty. Treasurer; In re Tuscola Cnty. Treasurer Petition; Procedural due process; Al-Maliki v. LaGrant; Bonner v. City of Brighton; Res judicata; Adair v. Michigan; Washington v. Sinai Hosp. of Greater Detroit; Substantive due process; Mettler Walloon, LLC v. Melrose Twp.; U.S. Const. amend. XIV, § 1; Sanctions; Whether plaintiffs’ lawsuit was frivolous; MCR 2.114(E), MCR 2.625(A)(2), & MCL 600.2591(1); Meisner Law Group PC v. Weston Downs Condo Ass’n; Kelsey v. Lint; DC Mex Holdings, LLC v. Affordable Land, LLC
The court held that plaintiffs were not denied procedural due process, but not for the reasons articulated by the trial court. It also disagreed that res judicata barred plaintiffs’ claims. However, because the trial court reached the correct result, albeit for the wrong reasons, reversal was not warranted, and the court affirmed summary disposition for defendants. Summary disposition was also properly granted on the substantive due process claim. But defendants were not entitled to sanctions. It was “undisputed that plaintiffs were delinquent in their property tax payments, received notice as prescribed by the GPTA before foreclosure took place, did not timely redeem the properties, and did not timely appeal the judgment of foreclosure. Thus, under the terms of the GPTA, the trial court was divested of jurisdiction and plaintiffs’ interest in the property had been extinguished, resulting in a loss of standing. However, a narrow exception to the general rule exists.” Plaintiffs argued that they fell “into that category of property owners who were denied their constitutional rights to procedural due process.” The court disagreed. The treasury defendants asserted “that they complied with procedural due process requirements by citing the fact that they fulfilled all of the preforeclosure notice requirements of the GPTA.” But plaintiffs argued that they were denied adequate notice after the judgment of foreclosure was entered, “when they had entered into payment plans for redemption of their properties . . . .” They alleged in their complaint “that after entering those payment plans, they did not receive any further notice from the treasury defendants.” But under the GPTA, no further notice was required. The county treasurer, “having complied with all notice requirements, did not deprive plaintiffs of their right to due process. Moreover, the payment plans themselves were clear that failure to comply with terms of the agreement would result in a loss of property.” The court found that these “warnings were clear that plaintiffs were required to make consistent and timely payments to avoid losing their properties.”
Termination under § 19b(3)(c)(i); In re White; Principle that only one statutory ground must be established; In re Ellis; In re Foster; Child’s best interests; In re Olive/Metts Minors; In re Moss Minors; Abandoning an issue by failing to properly address its merits; Woods v. SLB Prop. Mgmt., LLC
Holding that § (c)(i) existed and that termination was in the child’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The conditions leading to the adjudication were allegations of sexual abuse committed against the child. “Respondent admitted that she voluntarily released her parental rights to another child years before under similar circumstances.” She continued to have the same issues. In both cases, she “did not accept any responsibility for her actions and denied wrongdoing with either child. The trial court specifically noted that while respondent went through the motions of attending services offered to her, she failed to benefit from the services provided and continued to state that she did not believe she needed them. Respondent also stated that she did not understand why she was being told to participate in the services offered to her.” Further, the child showed “sexually charged inappropriate behavior towards” her throughout the investigation. The trial court found that it was learned from respondent given that, although the child was 11 years old, “he functions at an 8-year-old level. When confronted about the situation, respondent would become agitated and try to justify the behavior.” The court noted that her behavior and interactions with the child “did improve after she began participating in services, but [the child] continued to act inappropriately towards respondent . . . .” The trial court specifically determined that “barriers to reunification—inadequate parenting skills, sexual abuse, and emotional stability—continued to exist and there was no reasonable expectation that these issues would be rectified within a reasonable time, taking into consideration the child’s age.” The court was “not definitely and firmly convinced” it erred in this finding. As respondent failed to develop her argument as to the child’s best interests, the court deemed it abandoned.
Termination under §§ 19b(3)(c)(i) & (g); In re White; In re Ellis; Principle that only one statutory ground need be established by clear & convincing evidence to terminate a respondent’s parental rights; Child’s best interests; In re Olive/Metts Minors; In re Moss Minors; In re Schadler; In re LE; In re Trejo Minors; In re Gonzales/Martinez; Placement with relatives; In re Mason; Relative defined; MCL 712A.13a(1)(j)
Holding that § (c)(i) was established by clear and convincing evidence, and that termination of respondents-parents’ parental rights was in the child’s (A) best interests, the court affirmed termination of their parental rights. Throughout the proceedings, respondent-mother missed numerous drug screens, and she relapsed in 11/18. She “also missed visitation appointments, even though her attendance did improve at some point during proceedings.” Near the end of the proceedings, the mother “did improve her willingness to avail herself of the services provided to her and achieved a sustained period of sobriety. However, the stability of her recent sobriety remained unpredictable given her recent relapse and long history of substance abuse.” Further, the mother obtained housing, but it was obtained through and paid for by Lutheran Social Services. She remained unemployed at the final termination hearing, and it was unclear how the mother could provide long-term housing for A without a source of income. Respondent-father frequently missed visitations with A. “Some of the missed visits were caused by incarceration, but many were not caused by incarceration.” The father also struggled heavily with substance abuse and experienced a recent relapse in 11/18. He “previously failed to fully avail himself of any of the services offered to rectify his barriers; however, toward the end of the proceedings, respondent-father engaged with his peer recovery coach and made efforts to continue his sobriety.” The father “achieved a sustained period of sobriety shortly before the termination of his parental rights.” But given the father’s “long history of substance abuse, these attempts to achieve and maintain sobriety remained fragile and unpredictable.” Further, he “was unemployed and maintained that he wished to seek only part-time employment. Both respondents resided in the same house, which presented the issue of how” the father could provide a long-term home to A within a reasonable time absent steady employment.
Termination under § 19b(3)(j); In re Trejo Minors; Child’s best interests; In re Gonzales/Martinez; In re White; Claim that the DHHS obtained termination of children’s guardianships to create a statutory ground for jurisdiction over them; Due process; In re Beck; A parent’s significant interest in the companionship, care, custody, & management of their children; In re JK; Substantive due process; Mettler Walloon, LLC v. Melrose Twp.; Distinguishing In re B & J; Assertion of jurisdiction pursuant to MCL 712A.2(b)(1); Without proper custody or guardianship defined; MCL 712A.2(b)(1)(C)
The court concluded that the termination of respondent-mother’s parental rights to three of her children could not stand where the record did not refute or confirm her claim that the DHHS violated her due process rights by seeking termination of their guardianship to manufacture “the circumstances that enabled the trial court to exercise jurisdiction over” them. However, it affirmed termination of her parental rights to her fourth child under § (j), holding that the trial court did not err in finding that it was in the child’s best interests. Thus, the court affirmed as to the youngest child, reversed as to the three older children, and remanded for further proceedings as to those children. Respondent argued that the DHHS obtained termination of their guardianship in order to create a statutory ground for jurisdiction over them for the purpose of enabling the trial court to terminate her parental rights. The court agreed that her substantive due process rights may have been violated. “The DHHS did not adequately develop the record” to explain the guardianship’s termination. It did not offer the probate court file from the guardianship case into evidence. While respondent petitioned the probate court to terminate or modify the guardianship, it denied her motion. “At a minimum, the timing of the guardianship termination is suspicious as the respondent’s motion had already been denied and the guardianship termination occurred only five days after the circuit court initially refused to authorize the DHHS’s supplemental petition requesting jurisdiction and termination” at the initial disposition. Based on the record, the court could not “resolve the important procedural and substantive issues” respondent raised on appeal. The trial court asserted jurisdiction under MCR 712A.2(b)(1). However, there was no evidence that the children “lacked proper custody and guardianship with their guardian.” The DHHS on remand may augment the record with the probate court’s record of the guardianship proceeding “to prove that independent grounds existed to terminate the guardianship.” But it cannot support its termination petition and the trial “court may not take jurisdiction and terminate respondent’s parental rights by contriving the means to reach that result.”
Children’s best interests; In re Jones; In re Schadler; In re Olive/Metts Minors; Failure to benefit from a service plan; In re White; Doctrine of anticipatory neglect; In re LaFrance Minors; Effect of relative placement; In re Mason; Parent/agency plan (PAP)
Holding that the trial court did not clearly err in determining that termination was in the children’s best interests, despite their placement with relatives, the court affirmed the order terminating respondent-mother’s parental rights. She did not challenge the trial court’s findings as to the existence of a statutory ground for termination, but rather argued that it was not in the children’s best interests because she made significant progress on her PAP and due to her bond with them. While six children were involved in the case, she contended that the termination decision was especially erroneous as to the oldest child (JDH) and the youngest (JDSH). The court disagreed. Although she was generally compliant with her services and completed those she was enrolled in, the completion of services was not dispositive. “Even after years of services and counseling, the evidence established that respondent continued to struggle managing all six children at once, and on at least two occasions, even when there were only one or two children in her care, the children were injured or abused. She left one of the children at home alone, and while respondent was able to maintain housing for a period of time, it took her many, many years and the absence of her children to support and care for in order for her to progress at all.” Before they were removed, they lived “in squalor, with their basic cleanliness needs not being met.” Further, at least one child was being tested for a learning disability and several “were in therapy and/or needed to be in therapy. These issues would require substantial attention and time and respondent” had shown she had difficulty parenting all of them at once even before these issues. “The evidence established that termination was in the children’s best interests.” While the evidence supported her assertion that she had a bond with JDH, this bond did not outweigh the other evidence that it was “in JDH’s best interest to be removed from respondent.” The child had a great need for finality, permanency, and stability. As to JDSH, the doctrine of anticipatory neglect applied, and there was no reason to believe that the same issues that had persisted as to “respondent’s parenting ability with her other five children would discontinue and not impact JDSH.” Further, this child could potentially be placed in her father’s care in the future.
Undue influence; In re Monier Khalil Living Trust; In re Mardigian Estate; Taylor v. Klahm; In re Erickson Estate; In re Hannan’s Estate; In re Sprenger’s Estate; Fiduciary relationship; The Estates & Protected Individuals Code (MCL 700.1101 et seq.); Law Offices of Jeffrey Sherbow, PC v. Fieger & Fieger, PC; First Nat’l Bank & Trust Co. of Marquette v. Albert; Van’t Hof v. Jemison; In re Jennings’ Estate; In re Karmey Estate; Notice pleading; MCR 2.111(B)(1); Johnson v. QFD, Inc.; Tomasik v. Michigan; Principle that text messages, as electronically stored information, qualify as documents for purposes of discovery; MCR 2.302(B)(1); MCR 2.310(B)(1)(a); Johnson v. State
The court held that the probate court did not err by setting aside the decedent’s testamentary documents based on a presumption of undue influence. Shortly before her death, the decedent changed her estate plan to leave only nominal gifts to her children (appellees) and grandchildren and the bulk of her estate to her boyfriend. Appellees sought to invalidate the trust, claiming the boyfriend exerted undue influence over the decedent. The boyfriend and the trustee (appellants) unsuccessfully sought summary dismissal of the challenge, and the probate court set aside the testamentary documents based on a presumption of undue influence. On appeal, the court first found that, “[e]ven if the pleadings were insufficient to state a claim, the [probate] court could have granted [appellees] an opportunity to amend the complaint based on ‘the evidence then before the court.’” Because “[s]ufficient facts created a triable issue,” dismissal of their petition would not have been warranted. In addition, appellees “presented evidence that [the boyfriend] did more than merely assist [the decedent] with various matters.” In addition, “appellants did not rebut the presumption of undue influence by” the boyfriend. Finally, “[b]ecause appellants could have obtained” the investigator’s report “without undue hardship, they were not entitled to discovery of” it. Affirmed.