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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.

 

 

Case Summary

Includes summaries of five Michigan Court of Appeals published opinions under Constitutional Law/Personal Protection Orders, Family Law, Insurance, and Real Property.


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Personal Protection Orders

    e-Journal #: 78760
    Case: CNN v. SEB
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gleicher, Markey, and Rick
    Issues:

    Nondomestic PPO; MCL 600.2950a(1); “Stalking”; MCL 750.411h(1)(d); “Course of conduct”; MCL 750.411h(1)(a); “Harassment”; MCL 740.411h(1)(c); “Uncontested contact”; MCL 750.411h(1)(e); The First Amendment; TM v MZ; “True threats”; Virginia v Black

    Summary:

    Holding that while respondent-SEB’s statements were “ugly, rude, and insensitive,” they nonetheless “fell within the range of expression protected by the First Amendment,” the court vacated the trial court’s order granting petitioner-CNN a PPO, and remanded. The parties “are neighbors who share a driveway. For years, their families have feuded about the driveway’s use. The conflicts” have led to repeated requests for PPOs. The trial “court finally granted the PPO challenged here, citing SEB’s odious and racially charged comments.” CNN contended SEB’s conduct violated MCL 750.411h. The court concluded the trial court “misstated the legal requirement for securing a PPO by characterizing a ‘single incident’ as sufficient. But [it] did not misapply that provision of the law.” However, despite applying the correct standard as to past events between the parties, the trial court “erred in granting a PPO based solely on SEB’s statement, ‘[H]ere come your masser (sic).’” The court held that imposing “a PPO based on SEB’s single, nonthreatening comment violated the First Amendment.” It noted in TM that there “is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” It concluded here that by “stating, ‘[H]ere come your masser (sic),’ SEB did not threaten CNN, and the evidence does not support that she intended her words to generate violence. Rather, SEB boorishly expressed anger about a white neighbor interfering in her disagreement with CNN. Her words were racially charged, puerile, and ugly, but also were protected.” Further, the court noted that “although CNN reported being ‘nervous’ later in the” incident, the trial “court did not find and the evidence does not support that her nervousness derived from SEB’s comment. Rather, it was CNN’s reaction to SEB and her family yelling at her and [her husband] while they spoke to the police. As an afterthought at trial, CNN described being ‘fearful about what happened on that date.’ Even so, CNN did not clarify what made her fearful. CNN did testify that SEB made threatening motions toward her during this encounter. She described that SEB summoned her nephew, who arrived on the scene making threats. These allegations might have supported a finding of ‘harassment’ as defined by MCL 750.411h. But the” trial court’s ruling indicated it “did not consider these actions in entering the PPO. On remand, [it] may consider whether evidence other than SEB’s comment supports CNN’s petition.”

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 78717
    Case: People v. Bozile
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cameron, and Letica
    Issues:

    Jury instruction on the lesser included offense of assault & battery (MCL 750.81) where defendant was charged with AWIM (MCL 750.83); Ineffective assistance of counsel; Failure to make a futile request or a meritless challenge; Sentencing; Scoring of OVs 4, 6, & 10; MCL 777.34(1)(a); MCL 777.36(1)(b) & (2)(a); MCL 777.40(1)(c); “Exploit” (MCL 777.40(3)(b)); “Vulnerability” (MCL 777.40(3)(c)); MCL 777.40(2); Prosecutorial misconduct; Motion for a mistrial; Opening statement; Distinguishing People v Dalessandro; Statement of fact not supported by the evidence; Whether the prosecution’s witness list was timely filed; MCL 767.40a(3)

    Summary:

    Holding that a rational view of the evidence did not support a jury instruction on the lesser included offense of assault and battery, the court concluded defense counsel was not ineffective for failing to request one. It also rejected defendant-Bozile’s claims of ineffective assistance related to his sentencing and alleged prosecutorial misconduct. The court upheld the scoring of OVs 4, 6, and 10 at 10 points, 25 points, and 5 points, respectively. Further, it found that the trial court did not abuse its discretion in denying his motion for a mistrial based on prosecutorial misconduct, and rejected his claim as to the timeliness of the filing of the prosecution’s witness list. He was charged with and convicted of AWIM. The record showed “Bozile stabbed the victim multiple times, causing life-threatening injuries. A witness heard Bozile repeatedly ask during the violent attack, ‘Why didn’t you tell me you did that to the kids?’ Another witness overheard Bozile state, ‘They told me what you did.’” The court noted that given his “theory that he acted under the emotional excitement of learning that the victim might have sexually assaulted Bozile’s children and did not have the intent to murder, the jury was instructed on the lesser included offense of” AWIGBH. The court concluded that “a rational view of the evidence did not support an instruction on assault and battery,” and as a result, “the trial court would not have been obligated to give it even if defense counsel had requested it.” As to the scoring of OV 4, at “trial, the victim described a psychological injury that continued to plague him with inability to sleep at times, flashbacks to the incident that he was unable to shut out of his mind at times, and an inability to return to living at the motel where the incident occurred.” As to OV 6, given that defendant was convicted of AWIM, “which requires an actual intent to kill, . . . and the trial court found that the assault was not premeditated,” the court concluded that scoring “25 points was consistent with the jury’s verdict.” As to OV 10, there was “little doubt that the victim was intoxicated at the time of the assault, and Bozile knew the victim was intoxicated. Although that fact does not automatically render the victim vulnerable,” his intoxication likely made him “vulnerable because he was more susceptible ‘to injury[] [or] physical restraint’ since alcohol tends to impair a person’s judgment and motor skills.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 78706
    Case: People v. Kiesgen
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – M.J. Kelly, Murray, and Riordan
    Issues:

    Motion to quash a bindover on a charge of receiving or concealing stolen property over $20,000; People v Pratt; Inferring consciousness of guilt from evidence of lying or deception; Effect of taking steps to return the property; Distinguishing People v Fortuin

    Summary:

    The court held that the evidence presented at defendant-Kiesgen’s preliminary exam was sufficient to establish probable cause he “committed the crime of receiving or concealing stolen property valued over $20,000.” Thus, the district court did not abuse its discretion in binding him over on this charge, and the circuit court erred in “quashing the bindover and dismissing the charge.” In concluding that sufficient evidence supported the district court’s bindover decision, the court noted that the vehicle at issue “was listed for sale for $28,500. Kiesgen” bought it for $9,000 the same day it was reported stolen. He realized “the sale price was ‘too good to be true’ and based on his inspection of the vehicle, he located documents titled in” the vehicle’s owner’s (C) name. Both C and a police officer told him it was stolen. He “initially represented that he decided not to buy the vehicle. When confronted with surveillance footage disproving his representation, he eventually admitted to buying” it. The court noted that his “initial statements to the police” supported an inference of guilt. In addition, “even after being told that the vehicle was stolen and directed to turn it over to the police, Kiesgen did not do so. Instead, he continued to possess the stolen vehicle for several days. Indeed, it was not until the police obtained a search warrant and detained him that he asked one of his employees to take the police to the locked, off-site warehouse where the stolen vehicle was being stored. Based on this record, it is clear that for several days after being told that the vehicle was stolen and being ordered to return it, Kiesgen retained possession of it and concealed it inside a warehouse.” Citing Fortuin, he argued he should not have been bound over because he took steps to return it. But upon learning the vehicle was stolen, “Kiesgen did not immediately announce that he did not intend to continue possession of the stolen vehicle. He instead inquired about recovering the purchase price” and retained a lawyer. Then, instead of returning it “as directed, Kiesgen stopped communicating with law enforcement.” The court concluded that, based on his “behavior, there is, at a minimum, a question of fact as to whether he continued to willfully possess the stolen property despite being told that it was stolen and that it needed to be surrendered to law enforcement.” Reversed and remanded for reinstatement of the charge.

    Full Text Opinion

  • Employment & Labor Law (1)

    Full Text Opinion

    e-Journal #: 78736
    Case: Robinson v. City of Detroit
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, K.F. Kelly, and Garrett
    Issues:

    Whistleblowers’ Protection Act (WPA); Statute of limitations; MCL 15.363(1); Adverse employment action; Randazzo v Inkster (Unpub); Causal connection

    Summary:

    The court held that the trial court erred by finding a genuine issue of material fact that protected activity engaged in by plaintiff-Robinson was causally connected to the issuance of a suspension. Defendant asserted that “Robinson’s complaint was untimely, and that even if it were timely,” she could not establish the elements of a prima facie WPA claim. The court concluded her complaint was not barred by the 90-day limitations period. The 7/9/19 report informed her that “future charges would likely come from the Disciplinary Administration Unit, and it was the 10-day suspension issued by that unit that Robinson alleges was the retaliatory employment action under the WPA. When Robinson received notice of the 10-day suspension on [8/21/19], the 90-day clock to file her claim began to run. This Notice of Discipline was defendant’s action to implement its disciplinary decision against Robinson.” Because her complaint was filed within 90 days of 8/21/19, it was timely under MCL 15.363(1). As to defendant’s argument that Robinson did not face an adverse employment action, the court found Randazzo instructive. “Randazzo presents an example—just like this case—where the threat of disciplinary action sufficed to survive summary disposition on the adverse employment action question. Here, although Robinson never served a suspension, the issuance of a 10-day suspension is sufficient to constitute an adverse employment action. The WPA does not require Robinson to have actually served any suspension to present an actionable claim. Rather, the threat of a 10-day suspension is enough to establish a genuine issue of material fact regarding whether Robinson suffered an adverse employment action under the WPA.” Thus, the trial court did not err in finding “that the Notice of Discipline was a sufficient threat under the WPA.” Defendant finally argued that “the trial court erred by denying summary disposition because Robinson failed to establish a causal link between her 2017 complaints of misconduct and the 2019 suspension issued to her.” The court concluded there was no “genuine issue of material fact that the issuance of a suspension to Robinson was not motivated by retaliation for Robinson’s protected activities.” Therefore, the trial court erred in denying defendant’s summary disposition motion. Reversed and remanded.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 78761
    Case: Brendel v. Morris
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gleicher, K.F. Kelly, and Letica
    Issues:

    Whether courts “are permitted to modify child support orders whenever changed circumstances demand”; Procedural method employed to contest the $100,000 transfer provisions; Uniform Child Support Order (UCSO)

    Summary:

    The court held that courts “are permitted to modify child support orders whenever changed circumstances demand, even if the child support award was negotiated as part of a consent judgment of divorce.” Thus, the court affirmed. The “parties agreed to a one-time lump-sum child support payment [$100,000] in the consent judgment of divorce. Before the payment could be made, the recipient [defendant-Brian-ex-husband] stopped exercising most of his parenting time. This change of circumstances warranted review of the child support award. The circuit court agreed with this principle but cited other grounds for granting the relief requested.” Brian continued to argue “the one-time $100,000 transfer is part of the property settlement, not a child support award.” He claimed the consent judgment did “not make the $100,000 transfer contingent on his exercise of parenting time. However, the transfer requirement clearly was a child support award, and the consent judgment provided for equal parenting time of alternating weeks.” Brian contended the $100,000 award could not “be modified because the consent judgment and UCSO deviation addendum state that the transfer already occurred and child support orders cannot be modified retroactively absent very limited circumstances.” The court held that despite “the use of the past tense in the judgment and addendum, the referenced $100,000 transfer had not yet occurred when the parties’ penned their signatures, and they both knew it. The delay appears to be a result of the COVID-19 pandemic and was not the fault of either party. Both parties understood at signing that the transfer would occur in the future. And as a future child support payment, the award was modifiable.” Brian also challenged the procedural method plaintiff-Shana employed to contest the $100,000 transfer provisions. The court held that she established “circumstances had changed since entry of the consent judgment and UCSO deviation addendum. The parties had anticipated sharing equal parenting time, justifying an award of child support from Shana to Brian to ensure the children’s needs were met in his care. In reality, Brian exercised minimal parenting time. The existing child support order diverted funds away from the primary custodian that should be available for the children’s care. Modification was required to benefit the children following this change in circumstances.”

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    e-Journal #: 78762
    Case: Howard v. LM Gen. Ins. Co.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Shapiro, Rick, and Garrett
    Issues:

    First-party action for PIP benefits & underinsured motorist (UIM) benefits; Rescission as to an injured insured who did not participate in the fraud; Farm Bureau Gen Ins Co of MI v ACE Am Ins Co; Pioneer State Mut Ins Co v Wright; Whether a misrepresentation was material; Reliance; 21st Century Premier Ins Co v Zufelt

    Summary:

    As to plaintiff’s claim for PIP benefits, the court held that there was no evidence she participated in a coinsured’s alleged fraud and the factors adopted in Pioneer led to a balancing of the equities in her favor. As to her UIM claim, while the policy provided for rescission, this was “limited to ‘material’ misrepresentations” and the court concluded the misrepresentation at issue was not material to the vehicle she was driving at the time of the accident. Thus, it affirmed the denial of summary disposition to defendant-insurer (LM) in this first-party action. Plaintiff was driving a Mariner at the time of the accident. She and nonparty-B were listed as named insureds on the LM policy that covered the Mariner. The policy was originally issued in 2014 for other vehicles and the Mariner was later added. There were no allegations of fraud as to the 2014 purchase of the policy, its renewals, or the Mariner’s addition to it. It was misrepresentations about a Yukon that B had added to the policy a few weeks before the 2019 accident that caused LM to rescind the policy retroactive to the date the Yukon was added. As to PIP benefits, the court noted that LM was not injured “through reliance upon the misrepresented fact” because the coverage obtained by it (on the Yukon) was not at issue. Further, there was “no evidence that plaintiff made any false representations.” As she was an innocent third party to the misrepresentations, the court applied Farm Bureau’s five nonexclusive factors adopted in Pioneer in determining whether rescission as to plaintiff would be equitable. It found that the first four factors weighed in her favor, and the fifth one did not weigh for or against rescission here. The court additionally weighed “the fact that at the time of the accident plaintiff was not driving the Yukon—the vehicle as to which the allegations of fraud apply—and that she had held insurance with LM since 2014.” It concluded that rescission would not be equitable here. As to UIM benefits, the court determined that B’s misrepresentations, if material, would permit rescission under the policy’s antifraud provision. But LM failed to offer “any evidence that the misrepresentation was material to the coverage on the Mariner.” The court concluded that “a misrepresentation that is immaterial to the coverage in question should not be used as an excuse to deny or rescind that coverage.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 78724
    Case: LaPointe v. Rojo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – M.J. Kelly, Murray, and Riordan
    Issues:

    No-fault PIP benefits; McPherson v McPherson; Causation

    Summary:

    In this no-fault PIP case, the court reversed the denial of defendant-MemberSelect’s motion for summary disposition, and remanded. In 5/19, plaintiff was driving her leased vehicle “(insured by MemberSelect) when she was in a motor vehicle accident.” In 6/19, she “started suffering from dizziness and vertigo, which her doctors attributed to a postconcussion syndrome, which in turn was something she developed because of” the accident. In 11/19, she “walked out the front door of her condominium onto her front porch; she fell from her porch and fractured her ankle.” Plaintiff attributed this “to a dizzy spell, and she attribute[d] her dizzy spells to the car accident. Plaintiff had to have surgery on her ankle and incurred other medical expenses relating to her ankle injury. MemberSelect rejected plaintiff’s claim for medical expenses related to her fractured ankle.” The court held that in “both McPherson and this case, a second incident caused the relevant injury. Here, plaintiff did not injure her ankle in the motor vehicle accident; she suffered head trauma that arguably led to dizziness and vertigo, which then arguably led to a second incident (plaintiff falling off her porch), which in turn caused her ankle injury. Under McPherson, there is not a sufficient connection between the ankle injury and the motor vehicle accident.” The court concluded while “the trial court may have been correct in concluding that questions of fact remain regarding whether plaintiff’s dizziness and vertigo constituted a contributing factor in plaintiff falling off the porch and whether plaintiff’s dizziness and vertigo were caused by the car accident, these are not genuine issues of material fact. Even if plaintiff’s fall was caused by dizziness and vertigo, and dizziness and vertigo were caused by her car accident, her car accident would not be more than an incidental, fortuitous, or ‘but for’ cause of her ankle injury. Therefore, plaintiff’s ankle injury did not ‘arise out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle’ pursuant to MCL 500.3105(1).” She tried to distinguish McPherson by claiming “her fall was a direct symptom of the head injury she sustained in the car accident, stating that ‘[w]hereas the plaintiff in McPherson did not suffer an injury that would directly case [sic] motorcycle collisions, [plaintiff] did suffer an injury that would directly cause falls.’” The court was not convinced. “Much like how the motorcycle accident in McPherson would not have happened if the plaintiff had been lying in bed, plaintiff’s fall would not have happened if she had been sitting or lying down. Therefore, dizziness and vertigo, not falling, were the direct symptoms of” her head injury.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 78693
    Case: Wilmington Sav. Fund Soc'y v. Brookshire
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hood, Swartzle, and Redford
    Issues:

    Effect of foreclosure on a mortgage; Wilmington Sav Fund Soc’y, FSB v Clare; Deficiency; Bank of Am, NA v Fidelity Nat’l Title Ins Co; Claim on an installment contract; MCL 600.5836; Sparta State Bank v Covell; Limitations period for breach of contract; MCL 600.5807(9); Laches; Williamstown Twp v Sandalwood Ranch, LLC

    Summary:

    Holding that the trial court erred by finding the statute of limitations barred plaintiff’s claims, the court reversed and remanded for the trial court to proceed consistent with this opinion, including determining whether laches barred the claims instead. Plaintiff foreclosed on defendant’s property and took possession of the property after defendant failed to redeem it. Plaintiff then sued defendant for past due payments and principal balance. The trial court granted summary disposition for defendant, finding plaintiff’s claims were time-barred. On appeal, the court agreed with plaintiff that the trial court erred by granting summary disposition for defendant based on its finding that the note was accelerated by the foreclosure of the senior mortgage. “The foreclosure of the senior mortgage extinguished the junior mortgage, but the debt associated with the junior mortgage, and accrual of interest on that debt, continued. It simply continued without collateral.” As such, the trial court’s findings to the contrary were erroneous and plaintiff still had a claim under the note. It also agreed with plaintiff that the trial court erroneously found that the loan at issue was not an installment loan and, as a result, erroneously found its claims were barred by the statute of limitations. “Under the cross-default provision, [plaintiff] could have accelerated the notes once [defendant] defaulted, but there is no indication that it did (at least until the time of filing its complaint).” Thus, the “installment payments that became past due within the last six years before the filing of the complaint are not barred by the statute of limitations.” Finally, noting that the trial court did not address the issue of whether laches barred the claims, but indicated there may be a factual dispute, the court instructed the trial court to “address the laches issue in the first instance.”

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    This summary also appears under Privacy Law

    e-Journal #: 78716
    Case: Awad v. Reilly
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, K.F. Kelly, and Garrett
    Issues:

    Defamation; Hope-Jackson v Washington; Truth as an absolute defense; TM v MZ; Public disclosure of private facts; Doe v Henry Ford Health Sys; False-light invasion of privacy; Puetz v Spectrum Health Hosps; “Malice” & reckless disregard; Intentional infliction of emotional distress (IIED); Hayley v Allstate Ins Co; “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”; Doe v Mills; “Extreme & outrageous” conduct; Civil conspiracy; Swain v Morse; Underlying tortious conduct requirement; Alleged violations of MCL 28.214, 752.794, 752.795, & 752.796; Private cause of action to enforce a statutory right; Lane v KinderCare Learning Ctrs

    Summary:

    The court held in these consolidated appeals that the trial court did not err by granting defendants-Charles and Cynthia Reilly summary disposition of plaintiff’s claims. She sued Charles for defamation, public disclosure of private facts, false-light invasion of privacy, and IIED, and sued both Charles and Cynthia for civil conspiracy. Her claims arose out of a Facebook post that plaintiff alleged implied she was convicted of a felony. She had previously pled guilty to a misdemeanor, which was later set aside. The trial court granted summary disposition for defendants. On appeal, the court first found that as to plaintiff’s defamation claim, “Charles’s statements concerning plaintiff’s criminal charges and the length of imprisonment she faced if convicted are true.” And his reference to plaintiff as a criminal “is also true because plaintiff acknowledges she was convicted of a misdemeanor. While plaintiff notes her conviction was set aside and Charles does not dispute this assertion, the fact that the misdemeanor conviction was set aside does not change the fact that plaintiff was convicted of a crime.” Next, as to plaintiff’s public disclosure of private facts claim, the court found the undisputed evidence established that Charles “referenced ‘matters that [were] already of public record or otherwise open to the public.’” Further, as to plaintiff’s false-light invasion of privacy claim, it found “the undisputed evidence does not support that plaintiff was placed in a false light.” And as to her IIED claim, “the trial court properly concluded that Charles’s statements essentially amount to ‘mere insults, indignities, . . . annoyances, petty oppressions, or other trivialities,’ and such statements are not actionable.” Finally, plaintiff could not “rely on MCL 28.214, MCL 752.794, MCL 752.795, and MCL 752.796 to support her civil conspiracy claim because [she] does not have private causes of action under those statutes.” Affirmed.

    Full Text Opinion

  • Personal Protection Orders (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 78760
    Case: CNN v. SEB
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gleicher, Markey, and Rick
    Issues:

    Nondomestic PPO; MCL 600.2950a(1); “Stalking”; MCL 750.411h(1)(d); “Course of conduct”; MCL 750.411h(1)(a); “Harassment”; MCL 740.411h(1)(c); “Uncontested contact”; MCL 750.411h(1)(e); The First Amendment; TM v MZ; “True threats”; Virginia v Black

    Summary:

    Holding that while respondent-SEB’s statements were “ugly, rude, and insensitive,” they nonetheless “fell within the range of expression protected by the First Amendment,” the court vacated the trial court’s order granting petitioner-CNN a PPO, and remanded. The parties “are neighbors who share a driveway. For years, their families have feuded about the driveway’s use. The conflicts” have led to repeated requests for PPOs. The trial “court finally granted the PPO challenged here, citing SEB’s odious and racially charged comments.” CNN contended SEB’s conduct violated MCL 750.411h. The court concluded the trial court “misstated the legal requirement for securing a PPO by characterizing a ‘single incident’ as sufficient. But [it] did not misapply that provision of the law.” However, despite applying the correct standard as to past events between the parties, the trial court “erred in granting a PPO based solely on SEB’s statement, ‘[H]ere come your masser (sic).’” The court held that imposing “a PPO based on SEB’s single, nonthreatening comment violated the First Amendment.” It noted in TM that there “is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” It concluded here that by “stating, ‘[H]ere come your masser (sic),’ SEB did not threaten CNN, and the evidence does not support that she intended her words to generate violence. Rather, SEB boorishly expressed anger about a white neighbor interfering in her disagreement with CNN. Her words were racially charged, puerile, and ugly, but also were protected.” Further, the court noted that “although CNN reported being ‘nervous’ later in the” incident, the trial “court did not find and the evidence does not support that her nervousness derived from SEB’s comment. Rather, it was CNN’s reaction to SEB and her family yelling at her and [her husband] while they spoke to the police. As an afterthought at trial, CNN described being ‘fearful about what happened on that date.’ Even so, CNN did not clarify what made her fearful. CNN did testify that SEB made threatening motions toward her during this encounter. She described that SEB summoned her nephew, who arrived on the scene making threats. These allegations might have supported a finding of ‘harassment’ as defined by MCL 750.411h. But the” trial court’s ruling indicated it “did not consider these actions in entering the PPO. On remand, [it] may consider whether evidence other than SEB’s comment supports CNN’s petition.”

    Full Text Opinion

  • Privacy Law (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 78716
    Case: Awad v. Reilly
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, K.F. Kelly, and Garrett
    Issues:

    Defamation; Hope-Jackson v Washington; Truth as an absolute defense; TM v MZ; Public disclosure of private facts; Doe v Henry Ford Health Sys; False-light invasion of privacy; Puetz v Spectrum Health Hosps; “Malice” & reckless disregard; Intentional infliction of emotional distress (IIED); Hayley v Allstate Ins Co; “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”; Doe v Mills; “Extreme & outrageous” conduct; Civil conspiracy; Swain v Morse; Underlying tortious conduct requirement; Alleged violations of MCL 28.214, 752.794, 752.795, & 752.796; Private cause of action to enforce a statutory right; Lane v KinderCare Learning Ctrs

    Summary:

    The court held in these consolidated appeals that the trial court did not err by granting defendants-Charles and Cynthia Reilly summary disposition of plaintiff’s claims. She sued Charles for defamation, public disclosure of private facts, false-light invasion of privacy, and IIED, and sued both Charles and Cynthia for civil conspiracy. Her claims arose out of a Facebook post that plaintiff alleged implied she was convicted of a felony. She had previously pled guilty to a misdemeanor, which was later set aside. The trial court granted summary disposition for defendants. On appeal, the court first found that as to plaintiff’s defamation claim, “Charles’s statements concerning plaintiff’s criminal charges and the length of imprisonment she faced if convicted are true.” And his reference to plaintiff as a criminal “is also true because plaintiff acknowledges she was convicted of a misdemeanor. While plaintiff notes her conviction was set aside and Charles does not dispute this assertion, the fact that the misdemeanor conviction was set aside does not change the fact that plaintiff was convicted of a crime.” Next, as to plaintiff’s public disclosure of private facts claim, the court found the undisputed evidence established that Charles “referenced ‘matters that [were] already of public record or otherwise open to the public.’” Further, as to plaintiff’s false-light invasion of privacy claim, it found “the undisputed evidence does not support that plaintiff was placed in a false light.” And as to her IIED claim, “the trial court properly concluded that Charles’s statements essentially amount to ‘mere insults, indignities, . . . annoyances, petty oppressions, or other trivialities,’ and such statements are not actionable.” Finally, plaintiff could not “rely on MCL 28.214, MCL 752.794, MCL 752.795, and MCL 752.796 to support her civil conspiracy claim because [she] does not have private causes of action under those statutes.” Affirmed.

    Full Text Opinion

  • Real Property (4)

    Full Text Opinion

    e-Journal #: 78763
    Case: Aldrich v. Sugar Springs Prop. Owners Ass’n, Inc.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Gleicher, K.F. Kelly, and Letica
    Issues:

    Dispute over a restrictive covenant prohibiting short-term property rentals; Interpretation of restrictive covenants; O’Connor v Resort Custom Builders; Eager v Peasley; Commercial vs residential use

    Summary:

    The court held that the trial court erred by granting plaintiffs-property owners summary disposition of their claims against defendant-association, and by denying defendant’s counterclaim for summary disposition, in this dispute over short-term rentals. Plaintiffs sued defendants seeking a declaration that they were not prohibited from using the property as short-term residential rentals and that defendant could not prohibit or punish them for doing so. On appeal, the court agreed with defendant that the trial court erred in its application of caselaw to the covenant at issue because summary disposition was proper in its favor. It noted the covenant “expressly provided that the lots and condominiums were limited to ‘residential purposes only.’” It additionally “expressly provided for commercial property, and it was not included within the building of a single-family residence.” Further, plaintiffs “failed to identify a single-family residence that was given permission on the plat to engage in commercial activity; rather, commercial activity was limited to a specific designated area.” The trial court’s “reliance on the failure to expressly prohibit short-term rentals or commercial use did not examine the Covenant as a whole and the intent of the developer as expressed therein.” The court also rejected plaintiffs’ contention that O’Connor and Eager were factually distinguishable and that the trial court correctly determined the covenant did not contain any restriction or prohibition on short-term rentals or commercial use. “The Eager Court’s discussion and application of O’Connor demonstrates that, although it involved timeshare ownership—which is admittedly factually different from short-term rentals—the legal reasoning of O’Connor is directly applicable. The O’Connor Court adopted the trial court’s reasoning in which the focus was on a permanent presence and whether individuals at the property had the right to occupy it whenever they desired and to leave belongings at the property, and the Eager Court reached the same conclusion under the same rationale.” Reversed and remanded for entry of summary disposition for defendant.

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    e-Journal #: 78764
    Case: Kessler v. Longview Agric. Asset Mgmt.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam – Gleicher, K.F. Kelly, and Letica
    Issues:

    Foreclosure redemption action; MCL 600.3240; Redemption period; MCL 600.3240(11) & (12); Extension of the redemption period; MCL 600.3232; Effect of foreclosure by advertisement; Trademark Props of MI, LLC v Fannie Mae; Failure to redeem; Bryan v JPMorgan Chase Bank; Distinguishing Lilly v Gibbs & Mills v Jirasek; Register of Deeds (ROD)

    Summary:

    The court held that the trial court did not err by denying plaintiff summary disposition and granting partial summary disposition for defendant in this foreclosure redemption action. The original plaintiffs, the Kesslers, sued claiming they had until at least 9/14/21 to redeem their farm after foreclosure. Defendant claimed their redemption rights expired on 8/21/21. The Kesslers claimed they deposited $907,000 into escrow on 9/14/21, and thus, redeemed the farm by paying an amount greater than the redemption into escrow and were the farm owners. They sought a declaration as to title to the property, as well as an accounting, and an order quieting title in their name and extinguishing any interest of defendant as well as a calculation of the true and accurate redemption amount. Shortly after the complaint was filed, plaintiff alleged it acquired an ownership interest in the farm from the Kesslers on 9/14/21. It was granted the right to substitute as a plaintiff, also seeking declaratory relief as to title to the property and an accounting. The trial court found that “MCL 600.3240(12) expressly provided that the redemption period was one-year from the date of the sale.” It rejected plaintiff’s position that MCL 600.3232 extended the redemption period, noting the statute “merely required the deposit of the sheriff’s deed within 20 days of the sale.” On appeal, the court rejected plaintiff’s argument that the failure to timely record the deed from the sheriff’s sale extended the date to redeem. “[T]he plain language of MCL 600.3232 does not support plaintiff’s position that the submission of the deed and its recording by the ROD is the dispositive date for determining the commencement of the redemption period.” Further, the plain language of MCL 600.3240, which governs redemption periods, “does not provide it runs from the date of recording at the ROD.” The court distinguished Lilly and Mills. It then concluded that “MCL 600.3232 delineates the procedural obligations on the sheriff and the clerk at the ROD. There are no penalties for noncompliance contained within the statute.” Moreover, although “the sheriff is to write the date for redemption on the deed, there is no indication that it is binding. The statute does not hold that the recording date by the ROD commences the period. Rather, only MCL 600.3240 delineates the commencement for the period and states that it runs from ‘the date of the sale.’” MCL 600.3240 is the “specific statute and controls over the general procedure delineated in MCL 600.3232. The caselaw cited by plaintiff does not warrant a disposition contrary to the plain language of the statutes.” Affirmed.

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    e-Journal #: 78696
    Case: Apache Hills Prop. Owners Ass’n, Inc. v. Sears Nichols Cottages, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cameron, and Letica
    Issues:

    Dispute as to the application of restrictive covenants to a short-term rental property; Interpretation of restrictive covenants; O’Connor v Resort Custom Builders; Eager v Peasley; “Commercial purpose” & “commercial activity”; Declaratory relief under MCR 2.605; Attorney fees

    Summary:

    The court held that the trial court erred by granting defendant-property owner summary disposition of plaintiff-association’s claim that it was violating a restrictive covenant precluding short-term leases, and by denying summary disposition for plaintiff. Plaintiff sued defendant alleging defendant was violating a restrictive covenant precluding property owners from using their properties for short-term rentals. Defendant countersued, seeking a declaration that the lease of the property did not constitute a commercial purpose or that leasing the property was exempt from the commercial purposes prohibition, and seeking reasonable attorney fees and expenses. The trial court granted summary disposition for defendant and although it declined to find plaintiff’s complaint was frivolous, it determined defendant was entitled to attorney fees as provided for in the covenants to the prevailing party. On appeal, the court agreed with plaintiff that the trial court erred by granting defendant summary disposition because “the restrictive covenants, when read as a whole, require that leasing or renting comply with the single-family private residence and business restrictions and defendant’s short-term rentals violate those provisions.” It found that “[c]ontrary to the trial court’s conclusion, defendant did not require and enforce a single-family residence provision. Rather, it apprised its lessees that the rental property was limited to 16 people and that family members were included in the computation of 16 people. The lease did not seek to enforce the single-family private residence requirement of the restrictive covenants. There was no indication that lessees were required to identify and name their ‘single-family’ members or certify that single-family occupancy occurred.” The court then concluded that while “leasing of the premises was permitted, it did not allow a lot owner to deviate from using the premises as a single-family residential home. Advertising the property on the worldwide web for lease to up to 16 people on a year-round basis changed the character of the use from single-family residential into a business operation of the premises.” Further, the attempt “to consider parol evidence does not result in a deviation from the interpretation in accordance with the plain language.” In light of this conclusion, “defendant was not entitled to attorney fees and costs.” Reversed and remanded for entry of summary disposition for plaintiff.

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    This summary also appears under Litigation

    e-Journal #: 78693
    Case: Wilmington Sav. Fund Soc'y v. Brookshire
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hood, Swartzle, and Redford
    Issues:

    Effect of foreclosure on a mortgage; Wilmington Sav Fund Soc’y, FSB v Clare; Deficiency; Bank of Am, NA v Fidelity Nat’l Title Ins Co; Claim on an installment contract; MCL 600.5836; Sparta State Bank v Covell; Limitations period for breach of contract; MCL 600.5807(9); Laches; Williamstown Twp v Sandalwood Ranch, LLC

    Summary:

    Holding that the trial court erred by finding the statute of limitations barred plaintiff’s claims, the court reversed and remanded for the trial court to proceed consistent with this opinion, including determining whether laches barred the claims instead. Plaintiff foreclosed on defendant’s property and took possession of the property after defendant failed to redeem it. Plaintiff then sued defendant for past due payments and principal balance. The trial court granted summary disposition for defendant, finding plaintiff’s claims were time-barred. On appeal, the court agreed with plaintiff that the trial court erred by granting summary disposition for defendant based on its finding that the note was accelerated by the foreclosure of the senior mortgage. “The foreclosure of the senior mortgage extinguished the junior mortgage, but the debt associated with the junior mortgage, and accrual of interest on that debt, continued. It simply continued without collateral.” As such, the trial court’s findings to the contrary were erroneous and plaintiff still had a claim under the note. It also agreed with plaintiff that the trial court erroneously found that the loan at issue was not an installment loan and, as a result, erroneously found its claims were barred by the statute of limitations. “Under the cross-default provision, [plaintiff] could have accelerated the notes once [defendant] defaulted, but there is no indication that it did (at least until the time of filing its complaint).” Thus, the “installment payments that became past due within the last six years before the filing of the complaint are not barred by the statute of limitations.” Finally, noting that the trial court did not address the issue of whether laches barred the claims, but indicated there may be a factual dispute, the court instructed the trial court to “address the laches issue in the first instance.”

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  • Termination of Parental Rights (2)

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    e-Journal #: 78739
    Case: In re Drewior/Shipley
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – M.J. Kelly, Murray, and Riordan
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Children’s best interests; Parent agency agreement (PAA)

    Summary:

    Holding that §§ (c)(i), (g), and (j) existed and termination of respondents-parents’ parental rights was in the children’s best interests, the court affirmed. The “trial court did not err in finding that there was no reasonable likelihood that [respondent-mother’s] barriers to reunification would be rectified within a reasonable time, and” thus, termination was proper under § (c)(i). The record evidence showed that “more than 182 days elapsed between the issuance of the initial dispositional order and the termination of mother’s parental rights.” The record also clearly showed that “the conditions which brought the children within the court’s jurisdiction, such as mother’s substance abuse, were not rectified. Because mother chose to avoid participating in the majority of her weekly drug screenings, a record of her alleged progress is limited in this regard.” The court noted that she “had not acknowledged the severity of her addiction and the impact that the disease has had on her and her children’s lives. Mother repeatedly denied or justified her addiction to her caseworkers and the trial court, testifying that she did not need assistance with substance abuse therapy.” To the extent she argued she came into substantial compliance with her PAA “after the supplemental permanent custody petition was filed, she is mistaken. In fact, at no point in almost three years did mother come into ‘substantial’ compliance with the agreement, despite the trial court providing several opportunities to comply.” While the court acknowledged that she “completed the parenting classes, psychological evaluation, domestic violence and substance abuse therapy, the record otherwise establishes mother’s lack of benefit or appreciation of these services.” Although she “completed her domestic violence therapy, her therapist reported remaining concerns because mother continued to reside with her abuser, father, who did not complete his portion of therapy.” The court held that the evidence supporting the termination of her parental rights under § (c)(i) also supported termination under §§ (g) and (j). And the record included “indisputable evidence that [respondent-father’s] addiction was just as severe as mothers. That fact, coupled with the evidence of domestic violence in the home between mother and father, surmounts the clear and convincing evidence required to establish grounds for termination.”

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    e-Journal #: 78709
    Case: In re Terry
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Shapiro, Borrello, and Yates
    Issues:

    Termination under §§ 19b(3)(c)(i) & (g); Harmless error; Whether the trial court improperly focused on respondent’s marijuana use; Distinguishing In re Richardson; Credibility assessments; Child’s best interests; MCL 712A.19b(5); In re White; Effect of relative placement; MCL 712A.19a(6)(a); Family Engagement Therapy (FET)

    Summary:

    While the court found that the trial court erred in determining § (g) was established, it held that this error was harmless because § (c)(i) supported termination of respondent-mother’s parental rights to the child (W). It also concluded that terminating her parental rights was in W’s best interests. Thus, the court affirmed the termination order. Over 182 elapsed between the initial depositional order and the termination decision. “Respondent’s barriers at adjudication were identified as (1) substance abuse, (2) mental health, (3) parenting skills, (4) housing, and (5) employment. As of the termination hearing, while respondent’s substance-abuse barrier had been somewhat addressed, none of the other barriers had been resolved. Respondent continued to display emotional dysregulation through her interactions with her caseworkers and the trial court.” The court noted that her parenting time was twice suspended during the case due to “her failure to properly engage with children, and she regularly changed both jobs and housing throughout the” case. She also did not rectify the conditions that brought W “into care despite being given more than three years to do so and countless opportunities to participate in services. Respondent failed to meaningfully engage in services until late in the case, and, even at that point, did not show any initiative to seek help outside FET.” As a result, the court held that sufficient evidence was “presented that the conditions that led to adjudication would not be rectified in a reasonable amount of time given” W’s age. As to W’s “best interests, the trial court considered respondent’s poor bond with” him and her inability to understand his special needs. In addition, it considered her “failure to improve her parenting skills and [W’s] bond with his current placement providers, who were willing and able to adopt and care for him properly.” Although his caregivers were relatives, “this singular factor weighing against termination does not countermand the numerous factors weighing in favor of” it. The court noted “respondent’s longstanding history of not engaging in services during the case, along with the incredibly long period [W] was in care, which constituted the majority of his life, and the large number of moves between caregivers during that time.”

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