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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 74583
    Case: University of MI Regents v. Valentino
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Fort Hood, and Gleicher
    Issues:

    Common law & statutory conversion; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc; MCL 600.2919a; Placement of funds in an attorney’s IOLTA account; MCL 440.3110(4) (instrument payable to 2 or more persons alternatively); “And”; MRPC 1.15(c) & (d); A charging lien; Souden v Souden; Miller v Citizens Ins Co; Garcia v Butterworth Hosp

    Summary:

    Concluding that the trial court erred in dismissing plaintiff’s common-law and statutory conversion claims related to defendant-attorney’s deposit of a check into his IOLTA account, and in determining that a charging lien was authorized here, the court reversed and remanded. The trial court allowed defendant “to retain money as an attorney fee from no-fault insurance benefits paid on behalf of his client,” nonparty-R. R was treated at the University of Michigan hospital after being seriously injured in an auto accident. While the court disagreed with plaintiff that the trial court’s decision was inconsistent with a Supreme Court remand order, it agreed that the trial court erred in dismissing plaintiff’s conversion claims. As to statutory conversion, the court found the evidence supported that by placing a jointly-issued check “in his IOLTA account, defendant intended to gain an advantage over plaintiff. Another way of putting this is that plaintiff has created a fact question regarding whether defendant intended to use the money in the IOLTA account as leverage to gain a share for himself.” The court noted that it took “no position in this regard other than to find that a question for the jury exists." It further found that material issues of fact existed as to "whether defendant’s act of depositing the check itself into his IOLTA account constituted an act of common-law conversion.” As to a charging lien, the court determined that “the trial court’s reasoning for imposing the charging lien, including that defendant’s services spared plaintiff the expense of litigation, and that it would be unfair to allow medical providers to benefit from such legal services when necessary to secure proceeds, does not comport with the available record. That is, the record does not support the trial court’s conclusion that a charging lien attached to the funds at issue where the funds were payed voluntarily and independent of the services defendant offered.” A representative for the insurer (AAA) testified that R’s “claims were never disputed, that plaintiff submitted its bills and relevant medical records directly to AAA, and that AAA paid the no-fault benefits voluntarily without defendant’s involvement.”

    Full Text Opinion

  • Business Law (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 74586
    Case: Jackson v. Midwest Mem'l Group, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Beckering, and Gleicher
    Issues:

    Successor liability; Antiphon, Inc v LEP Transp, Inc; Confirmation of Rights letter; Equity; Lakeview Commons v Empower Yourself; Post-closing ratification of the Purchase & Sale Agreement; Negligence; Statutory conversion; MCL 600.2919a(1)(a); Michigan Consumer Protection Act; The Prepaid Funeral & Cemetery Sales Act; MCL 328.211; MCL 328.218(1); United Memorial Gardens Cemetery (UMGC)

    Summary:

    The court held that plaintiff failed to present any evidence of defendant’s wrongdoing, or that defendant expressly or impliedly assumed liabilities arising from its predecessor’s conduct. Plaintiff sued defendant-Midwest, the current owner of a cemetery, UMGC, after her mother Maxine’s death when it was discovered that someone else was buried in the burial plot intended for Maxine. Plaintiff argued that, “because defendant expressly and impliedly assumed its predecessors’ liabilities, the trial court erred” in holding that successor liability did not apply. Plaintiff contended that, pursuant to § 1.4(a)(ii) of the relevant “Agreement, defendant assumed ‘all liabilities relating to valid, reasonably documented contracts with consumers . . . .’” Plaintiff interpreted this to mean that, via the contract with Maxine’s sister (Bernice), and Bernice’s assignment to her, “defendant’s predecessor contracted to bury Maxine in the Garden of Gethsemane, plot 89E-4, and defendant expressly assumed the obligation to bury her in that specific spot.” On the other hand, defendant contended that “even before execution of the Third Amendment, it was clear from the Agreement that defendant ‘did not assume any liability of the type alleged in Plaintiff’s complaint,’ i.e., liabilities arising from instances where the conduct of its predecessors made precise fulfillment of a consumer contract unreasonable.” The court held that the Third Amendment was “fatal to plaintiff’s argument that defendant expressly assumed the obligation to bury Maxine in plot 89E-4” and, thus, that the trial court erred by not imposing successor liability. “Defendant took responsibility for the consumer burial contracts of its predecessors, but the Third Amendment limited defendant’s liability to fulfilling such contracts where reasonably possible, providing comparable goods and services when necessary, or providing refunds where comparable goods and services were unavailable or unsatisfactory. It also made clear that defendant did not assume liabilities arising from the conduct of its predecessors. Given” this, plaintiff’s argument that defendant expressly assumed the liabilities relevant to her claims failed. Summary disposition for defendant was affirmed.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 74576
    Case: Lancaster v. Cosmopolitan Homes, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, Servitto, and Letica
    Issues:

    Claims arising from the purchase of a home; Fraud; Innocent misrepresentation; Silent fraud; Violation of the Seller’s Disclosure Act (SDA) (MCL 565.951 et seq); MCL 565.957; Breach of contract; “As is” clause; Effect of a merger clause; Denial of an adjournment due to an unavailable witness; MCR 2.503(C); Judicial bias; Third-party beneficiary claim; MCL 600.1405; Seller disclosure statement (SDS)

    Summary:

    The court concluded that the trial court erred in denying plaintiff’s motion for a 2-day adjournment to allow a key witness (N), who was unavailable on the day scheduled, to testify. Further, had he testified “consistent with his pretrial affidavit, defendants would not have been entitled to a directed verdict” on plaintiffs’ fraud, silent fraud, innocent misrepresentation, and SDA violation claims. But his testimony did not affect their entitlement to a directed verdict on the breach of contract claim, and as plaintiff-Brianna Lancaster did not qualify as a third-party beneficiary of the home purchase contract, she was properly dismissed as a party. Thus, the court reversed in part, affirmed in part, and remanded. It noted that the trial court did not review the requirements of MCR 2.503(C) or articulate how its ruling comported with them. Further, “plaintiffs had not sought any prior adjournments to secure” N’s testimony, and he did not give their attorney any “prior indication that he would not appear to testify in accordance with the subpoena served on him. Finally, as the trial court acknowledged, [N’s] testimony was pivotal to plaintiffs’ claims of fraud and violation of the SDA. A principal issue at trial was whether defendants had knowledge of a history of water damage at the home before they sold” it to plaintiffs. He signed an affidavit directly concerning this issue. Defendants failed to provide “a persuasive reason for concluding that an adjournment was not warranted or for finding that they would have been unfairly prejudiced by a brief adjournment to allow” him to testify. Further, his testimony would have established a fact question on plaintiffs’ fraud, innocent misrepresentation, silent fraud, and SDA claims. However, because the purchase agreement provided that the home was being sold to plaintiffs-Douglas and Diana Lancaster “in an ‘AS-IS’ condition, and that they had examined the home and were satisfied with its condition, the record” did not support a finding that defendant-Cosmopolitan Homes breached the terms of the agreement. Further, the agreement’s clear terms refuted their claim that the SDS was merged into the agreement. The court rejected their judicial bias argument, and upheld the dismissal of Brianna (the granddaughter for whom Douglas and Diana bought the home) as a party plaintiff.

    Full Text Opinion

  • Criminal Law (2)

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    e-Journal #: 74541
    Case: People v. Hernandez
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter and Riordan; Dissent - Shapiro
    Issues:

    Sentencing of a juvenile to life without parole (LWOP); MCL 769.25a(4)(a) & (b); MCL 769.25(3), (4), (6), & (7); Miller v Alabama; Montgomery v Louisiana; People v Skinner (Skinner I)

    Summary:

    The court held that the trial court’s decision to resentence defendant (convicted of first-degree premeditated murder for a crime committed when she was 16 years old) to LWOP did not violate the principle of proportionality and did not fall outside the range of reasonable outcomes. She was convicted in 1991 of first-degree premeditated murder and armed robbery. The trial court sentenced her to LWOP for the former and life imprisonment with parole eligibility for the latter. She was later resentenced under MCL 769.25 and Miller, and was again sentenced to LWOP for the murder conviction. On appeal, the court first found that the trial court did not err by declining to assign the prosecution the burden of proof at the Miller hearing. “Although Skinner I did not address allocating the burden of proof, its rejection of a presumption against LWOP sentences and conclusion that the trial court is not required to find additional facts at a Miller hearing establishe[d] that a burden of proof should not be imposed on either party.” It next found that the trial court did not err in its consideration of the Miller factors during resentencing. “The trial court reviewed extensive evidence concerning defendant’s background, [the] murder, and defendant’s record and progress while incarcerated. It is clear from the record that the trial court took each of the factors outlined in Miller into consideration, and . . . explained the reasons underlying its decision to resentence defendant to LWOP, thereby satisfying the requirements of MCL 769.25(6) and (7) and Miller’s demand for individualized sentencing. And despite the trial court’s misplaced criticism of defendant’s reentry plan, the balance of its rationale sufficiently demonstrated why it believed LWOP was the most appropriate sentence.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 74580
    Case: People v. Kucharski
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Beckering, and Gleicher
    Issues:

    Other acts evidence; MRE 404(b)(1); People v VanderVliet; Sentencing; Mootness; Habitual-offender notice; People v Head; Ineffective assistance of counsel; Failure to object to the testimony about defendant’s use of pain medication & to the trial court’s order that the bailiff sit behind defendant in response to an outburst on defendant’s part; Failure to challenge the scoring of OVs 4 & 19 at sentencing

    Summary:

    The court held that defendant’s other acts argument was unpersuasive, but that his challenge to his sentences was not moot because he continued to be subject to collateral legal consequences. Further, counsel was ineffective for failing to object to the scoring of the OVs, and counsel’s failure to object prejudiced defendant. Thus, the court affirmed his convictions of breaking and entering with the intent to commit a larceny and larceny in a building, but vacated his sentences and remanded for resentencing. He argued that “irrelevant and prejudicial evidence, combined with the trial court’s order that a bailiff sit near defendant after defendant reacted to some unfavorable testimony, amounted to” other acts evidence that was improperly used to prove his character. But nothing of which he complained could possibly “prove the character of a person in order to show action in conformity therewith.” None of it implicated his “propensity for breaking and entering, larceny, or any other illegal act.” The testimony that he “was taking prescription pain medication because he had injured his neck in an accident proved nothing whatever about defendant’s character; taking prescribed pain pills for an injury is something that persons of good character do every day, and for good reason. The testimony that his dwelling contained dog feces might have reflected poorly on defendant’s character for cleanliness, but it suggested no propensity to trespass or steal. And asking the bailiff to sit near defendant in response to defendant’s improper reaction to adverse testimony might have suggested something about defendant’s ability to keep composed, but nothing relating to any propensity to commit the charged offenses. Without testimony of a particular crime, wrong, or act from which to draw an inference that” he acted the same way here, MRE 404 was not implicated. However, the record contained no explanation of “the trial court’s rationale for scoring OVs 4 and 19” and there was nothing in the record supporting the assessment of 10 points for either OV.

    Full Text Opinion

  • Debtor/Creditor (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 74550
    Case: Navient Credit Fin. Corp. v. Newton
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Markey, and Borrello
    Issues:

    Foundation; Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc; Hearsay; MRE 801(c); MRE 802; Business records exception; MRE 803(6); Solomon v Shuell; Lay testimony; MRE 701; Limitations period for a breach of contract claim; MCL 600.5807(9); Accrual; Cordova Chem Co v Department of Natural Res; Standing; Pontiac Police & Fire Retiree Prefunded Group Health & Ins Trust Bd v City of Pontiac

    Summary:

    The court held that the trial court properly considered the documents attached to plaintiff-creditor’s motion, and that its action was not time barred. Plaintiff sued defendant-debtor alleging she defaulted on her loan. The trial court granted summary disposition for plaintiff. On appeal, the court rejected defendant’s argument that plaintiff failed to lay proper foundation showing the documents it attached regarding assignment fell within the business-records hearsay exception, noting plaintiff did not have to lay the foundation for the trial court to consider them on a motion for summary disposition as long as there was a plausible basis for their admission. It also rejected her claim that the trial court should not have considered the assignment documents because they lacked dates and were created in anticipation of litigation, noting that although the evidence was not in admissible form, there was “a plausible basis upon which the content or substance of the evidence would be admissible.” The court further rejected her contention that the trial court should not have reviewed any of the documents plaintiff attached to its motion for summary disposition, again noting there was a plausible basis for their admission. Similarly, the trial court “properly considered the registry of payments because the content of the document was admissible pursuant to the business-records exception, and there is no proof that it is untrustworthy or unreliable.” As such, the registry established that “plaintiff sued within the relevant statutory period of limitations.” Finally, the court found that the documents plaintiff produced in support of its motion for summary disposition “were sufficient to establish a chain of title from the loan originator.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 74560
    Case: Brown v. Brown
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Jansen, and Shapiro
    Issues:

    Custody; Finding of proper cause or a change of circumstances warranting a change of custody before referring the matter to the referee; The Child Custody Act (MCL 722.21 et seq); MCL 722.27(1)(c); Vodvarka v Grasmeyer; Bowling v McCarrick; Whether there was an established custodial environment with both parents; Riemer v Johnson; Berger v Berger

    Summary:

    The court reversed the trial court’s order granting joint physical and legal custody of the parties’ children to defendant-father, concluding that the trial court improperly conflated his motion to change custody with plaintiff-mother’s motion to change domicile, and clearly erred by effectively placing the burden of proof on her for both motions. That she was seeking a change of domicile for her children did not relieve the “father of his burden to prove by a preponderance of the evidence that granting him joint legal custody was in the children’s best interests. Like the referee, the trial court conflated the motions, and reasoned that unless mother could show by clear and convincing evidence that moving to Texas was in the children’s best interests then father was entitled to joint custody.” However, her proposed move and his “motion for joint custody were separate issues and should have been treated as such. While this may have involved duplicate efforts as to the best-interest factors, we cannot overlook the trial court granting a parent’s motion for joint custody by erroneously placing the evidentiary burden on the other parent.” Addressing the question in this fashion was “inconsistent with the procedure established by statute and caselaw for changing a custody arrangement.” The court instructed the trial court on remand to evaluate the “father’s motion for change of custody under a preponderance of the evidence standard with” him having the burden of proof, and then to separately address the mother’s motion to change domicile.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Debtor/Creditor

    e-Journal #: 74550
    Case: Navient Credit Fin. Corp. v. Newton
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Markey, and Borrello
    Issues:

    Foundation; Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc; Hearsay; MRE 801(c); MRE 802; Business records exception; MRE 803(6); Solomon v Shuell; Lay testimony; MRE 701; Limitations period for a breach of contract claim; MCL 600.5807(9); Accrual; Cordova Chem Co v Department of Natural Res; Standing; Pontiac Police & Fire Retiree Prefunded Group Health & Ins Trust Bd v City of Pontiac

    Summary:

    The court held that the trial court properly considered the documents attached to plaintiff-creditor’s motion, and that its action was not time barred. Plaintiff sued defendant-debtor alleging she defaulted on her loan. The trial court granted summary disposition for plaintiff. On appeal, the court rejected defendant’s argument that plaintiff failed to lay proper foundation showing the documents it attached regarding assignment fell within the business-records hearsay exception, noting plaintiff did not have to lay the foundation for the trial court to consider them on a motion for summary disposition as long as there was a plausible basis for their admission. It also rejected her claim that the trial court should not have considered the assignment documents because they lacked dates and were created in anticipation of litigation, noting that although the evidence was not in admissible form, there was “a plausible basis upon which the content or substance of the evidence would be admissible.” The court further rejected her contention that the trial court should not have reviewed any of the documents plaintiff attached to its motion for summary disposition, again noting there was a plausible basis for their admission. Similarly, the trial court “properly considered the registry of payments because the content of the document was admissible pursuant to the business-records exception, and there is no proof that it is untrustworthy or unreliable.” As such, the registry established that “plaintiff sued within the relevant statutory period of limitations.” Finally, the court found that the documents plaintiff produced in support of its motion for summary disposition “were sufficient to establish a chain of title from the loan originator.” Affirmed.

    Full Text Opinion

  • Municipal (1)

    Full Text Opinion

    This summary also appears under Zoning

    e-Journal #: 74574
    Case: Charter Twp. of Ypsilanti v. Pontius
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Markey, and Letica
    Issues:

    Whether a zoning ordinance was preempted by the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq); DeRuiter v Byron Twp; The Michigan Zoning Enabling Act (MCL 125.3101 et seq); Ter Beek v City of Wyoming (Ter Beek II)

    Summary:

    On remand from the Supreme Court for reconsideration in light of DeRuiter, the court held that the “locational restriction” in plaintiff-township’s zoning ordinance (regulating where medical marijuana dispensaries and medical marijuana nurseries may be located) did not directly conflict with the MMMA. Thus, it reversed the trial court’s order that ruled the ordinance was preempted by the MMMA, and remanded. The court previously affirmed that order, concluding that it was bound by its earlier decision in DeRuiter. But the Supreme Court reversed its decision in DeRuiter, and later vacated its judgment in this case and remanded. After reviewing DeRuiter and Ter Beek II, the court concluded that the ordinance here was not preempted by the MMMA. “First, unlike the ordinance in Ter Beek II, plaintiff’s ordinance does not prohibit or penalize all cultivation of medical marijuana.” Rather, this ordinance simply limited “where a primary caregiver may operate a medical marijuana dispensary or medical marijuana nursery. Second, plaintiff did not impose regulations that are unreasonable and inconsistent with regulations established by state law.” Like the ordinance at issue “in DeRuiter, the ‘locational restriction’ in plaintiff’s ordinance adds to and complements the limitations imposed by the MMMA;” thus, it did not contradict the state statutory scheme. “While the zoning ordinance goes further in its regulation of the medical use of marijuana, it does not do so in a manner that is counter to the MMMA’s conditional allowance on the medical use of marijuana.”

    Full Text Opinion

  • Negligence & Intentional Tort (3)

    Full Text Opinion

    e-Journal #: 74579
    Case: Heintz v. Auto-Lab Howell, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – O’Brien and Redford; Concurring in part, Dissenting in part – M.J. Kelly
    Issues:

    Premises liability; Slip & fall on ice in a parking lot; Open & obvious dangers; Hoffner v Lanctoe; Specific wintry conditions constituting sufficient indicia that a hazardous condition exists; Special aspects; An effectively unavoidable condition

    Summary:

    Holding that the parking lot ice on which plaintiff-deliveryman slipped and fell was an open and obvious condition, and that the record did not support his argument that special aspects made it effectively unavoidable, the court affirmed summary disposition for defendant-auto repair shop. He was delivering brake shoes to the shop at the time of his fall. The court noted that his testimony showed “he knew of the weather conditions on the day of his fall including the below freezing temperature and the accumulation of snow on the ground because it snowed the night before. He testified that he saw snow accumulated on the ground at defendant’s business when he arrived on the area where he parked his car behind the building to make his parts delivery.” The court concluded that the trial court correctly determined “that an average person of ordinary intelligence under the same conditions, having the general knowledge of the weather conditions on the day of plaintiff’s fall and the specific knowledge of the actual conditions on site, would sufficiently enable the person to discover the danger and the risk presented by the condition upon casual inspection.” Thus, the condition was “open and obvious, relieving defendant of the duty to protect” him from it. The court further rejected his contention that it was effectively unavoidable, noting that he “had other available access points to defendant’s building. The record indicates that those might have been equally hazardous because the parking lot had not been plowed or salted. Nevertheless, plaintiff could have avoided the hazardous condition by simply refusing to deliver the brake shoes until defendant plowed or salted it. ‘The mere fact that a plaintiff’s employment might involve facing an open and obvious hazard does not make the open and obvious hazard effectively unavoidable.’”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Business Law

    e-Journal #: 74586
    Case: Jackson v. Midwest Mem'l Group, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Swartzle, Beckering, and Gleicher
    Issues:

    Successor liability; Antiphon, Inc v LEP Transp, Inc; Confirmation of Rights letter; Equity; Lakeview Commons v Empower Yourself; Post-closing ratification of the Purchase & Sale Agreement; Negligence; Statutory conversion; MCL 600.2919a(1)(a); Michigan Consumer Protection Act; The Prepaid Funeral & Cemetery Sales Act; MCL 328.211; MCL 328.218(1); United Memorial Gardens Cemetery (UMGC)

    Summary:

    The court held that plaintiff failed to present any evidence of defendant’s wrongdoing, or that defendant expressly or impliedly assumed liabilities arising from its predecessor’s conduct. Plaintiff sued defendant-Midwest, the current owner of a cemetery, UMGC, after her mother Maxine’s death when it was discovered that someone else was buried in the burial plot intended for Maxine. Plaintiff argued that, “because defendant expressly and impliedly assumed its predecessors’ liabilities, the trial court erred” in holding that successor liability did not apply. Plaintiff contended that, pursuant to § 1.4(a)(ii) of the relevant “Agreement, defendant assumed ‘all liabilities relating to valid, reasonably documented contracts with consumers . . . .’” Plaintiff interpreted this to mean that, via the contract with Maxine’s sister (Bernice), and Bernice’s assignment to her, “defendant’s predecessor contracted to bury Maxine in the Garden of Gethsemane, plot 89E-4, and defendant expressly assumed the obligation to bury her in that specific spot.” On the other hand, defendant contended that “even before execution of the Third Amendment, it was clear from the Agreement that defendant ‘did not assume any liability of the type alleged in Plaintiff’s complaint,’ i.e., liabilities arising from instances where the conduct of its predecessors made precise fulfillment of a consumer contract unreasonable.” The court held that the Third Amendment was “fatal to plaintiff’s argument that defendant expressly assumed the obligation to bury Maxine in plot 89E-4” and, thus, that the trial court erred by not imposing successor liability. “Defendant took responsibility for the consumer burial contracts of its predecessors, but the Third Amendment limited defendant’s liability to fulfilling such contracts where reasonably possible, providing comparable goods and services when necessary, or providing refunds where comparable goods and services were unavailable or unsatisfactory. It also made clear that defendant did not assume liabilities arising from the conduct of its predecessors. Given” this, plaintiff’s argument that defendant expressly assumed the liabilities relevant to her claims failed. Summary disposition for defendant was affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 74583
    Case: University of MI Regents v. Valentino
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Fort Hood, and Gleicher
    Issues:

    Common law & statutory conversion; Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc; MCL 600.2919a; Placement of funds in an attorney’s IOLTA account; MCL 440.3110(4) (instrument payable to 2 or more persons alternatively); “And”; MRPC 1.15(c) & (d); A charging lien; Souden v Souden; Miller v Citizens Ins Co; Garcia v Butterworth Hosp

    Summary:

    Concluding that the trial court erred in dismissing plaintiff’s common-law and statutory conversion claims related to defendant-attorney’s deposit of a check into his IOLTA account, and in determining that a charging lien was authorized here, the court reversed and remanded. The trial court allowed defendant “to retain money as an attorney fee from no-fault insurance benefits paid on behalf of his client,” nonparty-R. R was treated at the University of Michigan hospital after being seriously injured in an auto accident. While the court disagreed with plaintiff that the trial court’s decision was inconsistent with a Supreme Court remand order, it agreed that the trial court erred in dismissing plaintiff’s conversion claims. As to statutory conversion, the court found the evidence supported that by placing a jointly-issued check “in his IOLTA account, defendant intended to gain an advantage over plaintiff. Another way of putting this is that plaintiff has created a fact question regarding whether defendant intended to use the money in the IOLTA account as leverage to gain a share for himself.” The court noted that it took “no position in this regard other than to find that a question for the jury exists." It further found that material issues of fact existed as to "whether defendant’s act of depositing the check itself into his IOLTA account constituted an act of common-law conversion.” As to a charging lien, the court determined that “the trial court’s reasoning for imposing the charging lien, including that defendant’s services spared plaintiff the expense of litigation, and that it would be unfair to allow medical providers to benefit from such legal services when necessary to secure proceeds, does not comport with the available record. That is, the record does not support the trial court’s conclusion that a charging lien attached to the funds at issue where the funds were payed voluntarily and independent of the services defendant offered.” A representative for the insurer (AAA) testified that R’s “claims were never disputed, that plaintiff submitted its bills and relevant medical records directly to AAA, and that AAA paid the no-fault benefits voluntarily without defendant’s involvement.”

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 74576
    Case: Lancaster v. Cosmopolitan Homes, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, Servitto, and Letica
    Issues:

    Claims arising from the purchase of a home; Fraud; Innocent misrepresentation; Silent fraud; Violation of the Seller’s Disclosure Act (SDA) (MCL 565.951 et seq); MCL 565.957; Breach of contract; “As is” clause; Effect of a merger clause; Denial of an adjournment due to an unavailable witness; MCR 2.503(C); Judicial bias; Third-party beneficiary claim; MCL 600.1405; Seller disclosure statement (SDS)

    Summary:

    The court concluded that the trial court erred in denying plaintiff’s motion for a 2-day adjournment to allow a key witness (N), who was unavailable on the day scheduled, to testify. Further, had he testified “consistent with his pretrial affidavit, defendants would not have been entitled to a directed verdict” on plaintiffs’ fraud, silent fraud, innocent misrepresentation, and SDA violation claims. But his testimony did not affect their entitlement to a directed verdict on the breach of contract claim, and as plaintiff-Brianna Lancaster did not qualify as a third-party beneficiary of the home purchase contract, she was properly dismissed as a party. Thus, the court reversed in part, affirmed in part, and remanded. It noted that the trial court did not review the requirements of MCR 2.503(C) or articulate how its ruling comported with them. Further, “plaintiffs had not sought any prior adjournments to secure” N’s testimony, and he did not give their attorney any “prior indication that he would not appear to testify in accordance with the subpoena served on him. Finally, as the trial court acknowledged, [N’s] testimony was pivotal to plaintiffs’ claims of fraud and violation of the SDA. A principal issue at trial was whether defendants had knowledge of a history of water damage at the home before they sold” it to plaintiffs. He signed an affidavit directly concerning this issue. Defendants failed to provide “a persuasive reason for concluding that an adjournment was not warranted or for finding that they would have been unfairly prejudiced by a brief adjournment to allow” him to testify. Further, his testimony would have established a fact question on plaintiffs’ fraud, innocent misrepresentation, silent fraud, and SDA claims. However, because the purchase agreement provided that the home was being sold to plaintiffs-Douglas and Diana Lancaster “in an ‘AS-IS’ condition, and that they had examined the home and were satisfied with its condition, the record” did not support a finding that defendant-Cosmopolitan Homes breached the terms of the agreement. Further, the agreement’s clear terms refuted their claim that the SDS was merged into the agreement. The court rejected their judicial bias argument, and upheld the dismissal of Brianna (the granddaughter for whom Douglas and Diana bought the home) as a party plaintiff.

    Full Text Opinion

  • Termination of Parental Rights (2)

    Full Text Opinion

    e-Journal #: 74565
    Case: In re Cage
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Swartzle, Beckering, and Gleicher
    Issues:

    Termination under § 19b(3)(j); Admission of testimony; Relevance; MRE 401; Harmless error; In re VanDalen; Motion for a mistrial; People v Alter; Jurisdiction under MCL 712A.2(b); MCR 3.972; In re Ferranti; Best interests of the children; In re Gonzales/Martinez; In re Olive/Metts Minors; In re White

    Summary:

    The court held that the trial court had jurisdiction, that it did not err by allowing certain testimony or by denying respondent-father’s motion for a mistrial, that § (j) was met, and that termination was in the children’s best interests. Thus, it affirmed termination of his parental rights. His parental rights were terminated based on the basis of his domestic violence against the children’s mother in front of the children, and his eventual incarceration for one incident. On appeal, the court rejected his argument that the trial court erred by allowing testimony about the mother’s view on domestic violence, her opinion on whether he suffered from mental illness, and the DHHS’s testimony that the children were in trauma counseling. It noted the testimony was relevant, and that even if any of it was admitted in error, the outcome of the trial would not have been different. It also rejected his claim that the trial court erred by denying his motion for a mistrial on the basis that a sheriff deputy allegedly commented on respondent’s incarceration within earshot of the jury. It noted that the jury “had already learned through the course of the trial that respondent had previously been incarcerated for” one domestic violence incident, and the petition indicated that “criminal charges had been filed against” him for another incident which he videotaped in part, “so learning of his incarceration on charges stemming from the event would not likely have a material impact beyond the evidence admitted at trial.” The court next rejected his contention that the trial court could not exercise jurisdiction, noting it was not an “impermissible inferential leap for the jury, after viewing and hearing the evidence of respondent’s current and historical abuse and violence in the presence of the children, to determine the children’s mental health and well-being was endangered. This evidence was amply sufficient and supported the trial court’s assumption of jurisdiction.” It further rejected his argument that the DHHS failed to prove a statutory ground for termination, noting his violent behavior put the children at risk of physical harm. Finally, as to the children’s best interests, the evidence showed he was “willing to be violent toward those with whom he has a relationship and to place his children in harm’s way while inflicting violence on someone they love.”

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    e-Journal #: 74585
    Case: In re Palomo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Markey, and Borrello
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; MCL 712A.19a(8)(a) & (b); Child’s best interests

    Summary:

    Holding that termination was supported by §§ (c)(i), (g), and (j), and that he was given sufficient time to engage in the extensive services he was offered, the court affirmed the order terminating respondent-father’s parental rights. He did not clearly challenge the trial court’s factual findings on the grounds for termination, but rather focused on “the unusual procedures in this matter and the delay in formally adjudicating him as” the child’s (K) father and as a respondent. Nonetheless, the court noted that K was removed from his care due to respondent’s abuse of meth, and that he “proved himself incapable of ceasing to use” it. Over 182 days had elapsed since the adjudication, and his persistent use of meth “clearly showed that the conditions that led to adjudication continued to exist and would continue to do so, there was no reasonable likelihood he could provide proper care and custody, and it was highly likely” K would be harmed if returned to respondent’s care. He contended that termination “was premature given the delay in formally involving him in this matter.” But the court noted that his argument implicitly hinged “on elevating formality over substance: that none of the extensive array of services he was offered before his formal adjudication as a parent ‘count.’” The court disagreed. He was always treated as K’s father and “was offered the entire panoply of services that could be offered from the outset of the proceedings. The only practical, rather than strictly technical, difference that his adjudication as a father made was that he could—if he chose—have an individual treatment plan instead of a joint treatment plan with” K’s mother. He did not choose to do so “until long after he was formally adjudicated as a parent.” Further, he elected not to take advantage “of many of the services he was offered, and he simply failed to benefit from most of the remaining services.” He did not address the primary concern – “whether he would be capable of being a safe and appropriate parent on an ongoing basis, for more than a few scheduled and supervised hours a week.” The court noted that K “had been in care for most of her life and needed stability and finality.”

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  • Zoning (1)

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    This summary also appears under Municipal

    e-Journal #: 74574
    Case: Charter Twp. of Ypsilanti v. Pontius
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Markey, and Letica
    Issues:

    Whether a zoning ordinance was preempted by the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq); DeRuiter v Byron Twp; The Michigan Zoning Enabling Act (MCL 125.3101 et seq); Ter Beek v City of Wyoming (Ter Beek II)

    Summary:

    On remand from the Supreme Court for reconsideration in light of DeRuiter, the court held that the “locational restriction” in plaintiff-township’s zoning ordinance (regulating where medical marijuana dispensaries and medical marijuana nurseries may be located) did not directly conflict with the MMMA. Thus, it reversed the trial court’s order that ruled the ordinance was preempted by the MMMA, and remanded. The court previously affirmed that order, concluding that it was bound by its earlier decision in DeRuiter. But the Supreme Court reversed its decision in DeRuiter, and later vacated its judgment in this case and remanded. After reviewing DeRuiter and Ter Beek II, the court concluded that the ordinance here was not preempted by the MMMA. “First, unlike the ordinance in Ter Beek II, plaintiff’s ordinance does not prohibit or penalize all cultivation of medical marijuana.” Rather, this ordinance simply limited “where a primary caregiver may operate a medical marijuana dispensary or medical marijuana nursery. Second, plaintiff did not impose regulations that are unreasonable and inconsistent with regulations established by state law.” Like the ordinance at issue “in DeRuiter, the ‘locational restriction’ in plaintiff’s ordinance adds to and complements the limitations imposed by the MMMA;” thus, it did not contradict the state statutory scheme. “While the zoning ordinance goes further in its regulation of the medical use of marijuana, it does not do so in a manner that is counter to the MMMA’s conditional allowance on the medical use of marijuana.”

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