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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

    • Contracts (1)

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      This summary also appears under Real Property

      e-Journal #: 61621
      Case: Von Walthausen v. Von Walthausen
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, K.F. Kelly, and Fort Hood
      Issues: Breach of contract; Whether plaintiff submitted sufficient evidence of the existence of an agreement; Brauer v. Hobbs; Mutuality of agreement; Thomas v. Leja; Rood v. General Dynamics Corp.; Rowe v. Montgomery Ward & Co.; Calhoun Cnty. v. Blue Cross Blue Shield MI
      Summary: Holding that whether an agreement existed constituted a question of fact for the jury, and that the trial court erred in granting defendants’ motion for summary disposition on the plaintiff’s breach of contract claim, the court reversed and remanded. In 1987, plaintiff executed a quitclaim deed granting the cottage he owned to defendants (his parents). He testified that he did so because “he had lost his job and could no longer afford the mortgage payments.” They agreed to “assume the mortgage payments. According to plaintiff, the parties also reached an oral agreement that, if defendants chose at any point to sell the cottage, plaintiff would have the first opportunity to purchase the cottage on the same terms as a willing buyer.” He sued after defendants sold the cottage without allowing him the opportunity to exercise his contractual right of first refusal. The trial court granted defendants’ motion for summary disposition based on its conclusion that there was no evidence of mutuality of agreement. It ruled that the “evidence of the agreement lacked specificity, particularly given the fact that the alleged agreement occurred over 30 years ago, and concluded that no rational trier of fact could find a legally enforceable agreement.” While it was true that “plaintiff could recall little in terms of specificity surrounding the details of the alleged agreement, plaintiff unequivocally testified that the agreement existed.” He explained that the “agreement between the parties was prefaced by a lengthy and detailed discussion regarding his grandfather and the family history surrounding the cottage.” He claimed the “significance of the cottage to the family was weighed against the financial cost of maintaining the cottage.” He also claimed the “quit claim deed was not executed until after the agreement was made and discussions were complete. Since the agreement was made, plaintiff testified that he has continued to maintain the property.” In addition, he produced a “2008 letter from his mother which referenced plaintiff’s desire to eventually buy the cottage from defendants.” It also “referenced a revocable living trust, in which plaintiff was granted the right to purchase the cottage upon defendants’ deaths.” Finally, he testified as to a 2010 phone conversation with his mother, where she said, “Don’t worry. Even if we have to let the cottage go for money reasons, you still get a crack at it first.” Based on the evidence, the court held that there was sufficient evidence presented by plaintiff to establish a question of fact as to the existence of an oral agreement.

    • Criminal Law (5)

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      e-Journal #: 61585
      Case: People v. Beson
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, K.F. Kelly, and Fort Hood
      Issues: Ineffective assistance of counsel; People v. Nix; People v. Armstrong; Notice; MCR 6.201; Expert witness testimony; MRE 702; People v. Dobek; People v. Petri; Failure to raise a meritless argument or futile objection; People v. Ericksen; Waiver; People v. Gonzalez; Abandoned issue; People v. Payne; “Other acts” evidence; MRE 404(b); MRE 404(a)(1); People v. Vasher; Evidence of another offense of sexual abuse under MCL 768.27a; Whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice; MRE 403; People v. McGhee; Trial strategy; People v. Russell; People v. Stewart (On Remand); Terms of probation; The sentencing judge’s wide discretion in setting conditions of probation; MCL 771.2 & 3; People v. Miller; People v. Graber; A defendant’s fundamental constitutional right to parent his children; Troxel v. Granville; Principle that proper probationary restrictions related to a defendant’s rehabilitation do not violate this right; People v. Branson; No-contact condition; People v. Zujko
      Summary: The court held that the defendant was not denied effective assistance of counsel, and that the trial court did not err by allowing the admission of other acts evidence or abuse its discretion by imposing a no-contact condition on probation. He was convicted of CSC II and sentenced to 365 days in jail and 5 years’ probation, the conditions of which included restrictions on contact with his two adopted children and a child who was adopted by his former wife. His conviction arose out of his sexual assault of his niece. On appeal, the court rejected his argument that he was denied the effective assistance of counsel. It noted that he waived review of the issue of whether counsel failed to consult an expert witness by contributing to the error, and that there was no prejudice. It further found that counsel was not ineffective for failing to challenge the prosecution’s expert’s qualifications because objection would have been futile, and that counsel’s cross-examination was adequate. The court also rejected his argument that the trial court erred by admitting other acts evidence. It found that although it “incorrectly referenced MRE 404(b) when deciding to admit the evidence, it correctly performed the MRE 403” balancing test, that it “correctly determined that defendant placed his character in issue during his opening statement and during his direct” examination, and that he was not prejudiced. Finally, it rejected his contention that “the probation condition of no-contact with his adopted daughters and the son adopted by his former wife” violated his constitutional right to parent his children. The court held that “prohibiting contact with his adopted daughters for the five-year term bears a rational relationship to the defendant’s rehabilitation.” Affirmed.

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      e-Journal #: 61609
      Case: People v. Cope
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Markey, Stephens, and Riordan
      Issues: Defendant-Cope – Sufficiency of the evidence to support his convictions of torture & unlawful imprisonment; MCL 750.85; “Cruel” & “custody or physical control” defined; MCL 750.85(2)(a) & (b); “Severe mental pain or suffering” defined; MCL 750.85(2); MCL 750.349b(1); People v. Bosca; Aiding & abetting; MCL 767.39; People v. Plunkett; “Duress” jury instruction; People v. Lemons; People v. Williams; People v. Carines; Joinder of trials; MCR 6.121; MCL 768.5; People v. Hana; People v. Harris; “Severance”; MCR 6.121(C); Inconsistent positions in the trial & appellate courts; Blazer Foods, Inc. v. Restaurant Props., Inc.; Ineffective assistance of counsel; Failure to object to the joint trial; Strickland v. Washington; People v. Grant; Trial strategy; Challenges to the exclusion of part of a victim’s testimony; People v. Dobek; MRE 602; MRE 701; Right to present a defense; People v. King; Defendant-Sadowski – Right to confrontation; People v. Fackelman; MCL 763.1; Bruton v. United States; People v. Banks; Richardson v. Marsh; Harmless error; People v. Dendel; Handgun evidence; MRE 401-403; People v. McGhee; MRE 404(b); People v. Mardlin; People v. VanderVliet
      Summary: The court held that there was sufficient evidence supporting defendant-Cope’s convictions and reversal was not warranted based on the jury instructions, the joinder of the two trials, or the exclusion of evidence. He also was not denied the effective assistance of counsel or entitled to a remand. The court reviewed all his remaining claims and found them to be without merit. However, it held that defendant-Sadowski’s confrontation rights were violated, and the violation was not harmless. Thus, he was entitled to a new trial. Further, upon retrial, evidence as to the handgun should not be admitted. Cope was convicted of two counts of torture and two counts of unlawful imprisonment. Sadowski was convicted of solicitation to commit murder, two counts of torture, two counts of unlawful imprisonment, and two counts of assault by strangulation. Cope highlighted “the events that occurred upstairs, with Sadowski initiating the violence and leading the victims downstairs at sword point.” He seemed “to ignore the fact that the prosecution advanced an aiding and abetting theory at trial.” Victims A and B gave detailed testimony as to “the frightful events that occurred in the basement of the gym.” According to A and B, “the minute they entered the basement, Cope immediately jumped to do Sadowski’s bidding. Cope either duct taped them to the poles or assisted Sadowski in doing so.” According to them, “the ensuing events were filled with repeated physical abuse and threats of murder.” Both testified that “Sadowski smashed their heads into the poles, threatened to kill them, choked them multiple times until they lost consciousness, and continually beat them throughout the night.” Cope focused on evidence that he “offered the victims Xanax, gave them food, helped them urinate, and acted in a somewhat kinder manner when Sadowski was not in the room. Simply because Cope was the nicer of the two captors did not negate the jury’s finding of guilt.” As to Sadowski, the court concluded that the testimony about Cope’s unredacted police statements “‘expressly implicated’” Sadowski and violated his confrontation rights. Further, the error was not harmless. This “was not a case with overwhelming evidence of guilt. It comes down to being a case of ‘he said, she said.’ There was significant exculpatory evidence.” Cope’s convictions were affirmed and Sadowski’s convictions were vacated.

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      e-Journal #: 61593
      Case: People v. Joe
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – O’Connell and Wilder; Concurring in the result only – Shapiro
      Issues: Search & seizure; Motion to suppress cocaine evidence; Alleged illegal seizure in violation of the Fourth Amendment; People v. Henry (After Remand); People v. Chambers; “Plain view”; People v. Gonzalez
      Summary: Rejecting the defendant’s claim that the length of the traffic stop and the continued police questioning were unreasonable, the court affirmed the trial court’s denial of his motion to suppress the cocaine evidence. The court concluded that a deputy (N) “permissibly stopped the car in which defendant was a passenger for violating the law by traveling above the speed limit.” N also “permissibly asked questions about the occupants’ destination and travel plans. When the answers he received were suspicious,” he asked follow-up questions. “At that point, defendant consented to a search of the car.” The court found that N “was diligent in pursing his investigation. He immediately called for backup. When backup arrived, the officers permissibly detained defendant and his brother in the police vehicle. While searching the car, the officers found an item commonly used in the delivery of cocaine.” At that point, N “was ‘justified in extending the detention long enough to resolve the suspicion raised.’” The court noted that less than 50 minutes after another deputy arrived to assist N with the search, he called “for K-9 assistance. In response to the dog’s alert to the presence of cocaine on the passenger side of the vehicle, the officers questioned defendant further. Defendant indicated that he had possessed cocaine but had disposed of it. At that point, having found no evidence of any crime, the officers decided to end the stop.” N then discovered “cocaine in the police car where defendant had been sitting.” The court was “not definitely and firmly convinced that the trial court made a mistake when it found that the officers’ actions and the length of the detention were reasonable.” There was no indication that N “failed to diligently pursue his investigation. To the contrary, this case presents an evolving fact pattern of suspicion and investigation.” N promptly responded to each new suspicion. The court concluded “that the seizure continued to be valid throughout the course of the investigation.” As to defendant’s claim that the cocaine was the product of an illegal search, the court noted that “the cocaine was in plain view inside the police car.”

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      e-Journal #: 61617
      Case: People v. Mackins
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Sawyer, Beckering, and Boonstra
      Issues: Whether the victim was unavailable under MRE 804(a)(3); Admission of the victim’s preliminary examination (PE) testimony; People v. Duncan; The Confrontation Clause; “Plain error” review; People v. Carines; MRE 804(b)(1); People v. Garland; Crawford v. Washington; People v. Williams; MRE 804; People v. Meredith; Ohio v. Roberts; Self-defense jury instruction; People v. Heflin; MCL 780.972(2); People v. Hoskins; Right to present a defense; People v. Kurr; People v. Kowalski; Prosecutorial misconduct; Improperly shifting the burden of proof; People v. Fields; People v. McGhee; People v. Meissner; Right to remain silent; Abandoned issue; People v. Anderson; Assault with intent to do great bodily harm less than murder (AWIGBH)
      Summary: The court held that since the victim was unavailable, and because the defendant had “both the ‘opportunity’ and a ‘similar motive’ to develop” her testimony, her PE testimony was admissible under MRE 804. Also, the Confrontation Clause was not violated and defendant did not show plain error. Further, the trial court did not abuse its discretion in determining that the self-defense jury instruction was inapplicable to the facts. Finally, since the evidence did not support a self-defense theory, and because there was no “instructional error,” he was not denied the constitutional right to present a defense. Defendant was convicted of unlawful imprisonment and AWIGBH. The case arose out of a visit between him and the victim (who had a child together), where the victim ended up being stabbed. At the time of trial, she testified that “she had no recall of the events. Thus, the trial court deemed her unavailable to testify under MRE 804” and allowed the prosecution to admit as evidence and play for the jury a DVD of her PE testimony. Defendant argued that the trial court erred in finding that the victim was unavailable under MRE 804 and in admitting her PE testimony. The prosecutor, defense counsel, and the trial court questioned the victim and she “repeatedly maintained that she could not remember the incident or her previous testimony.” Further, she testified that “she stopped taking prescription medicine, which apparently caused her to not remember the events surrounding the incident” or the PE. The victim had “a lack of memory of the subject matter of the declarant’s statement,” which constitutes unavailability under MRE 804(a)(3). The court found defendant’s citation to Williams unpersuasive. “MRE 804 and binding caselaw do not require that the prosecutor try to refresh the witness’s memory with her previous testimony. The witness repeatedly maintained that she could not remember the events or her previous testimony.” Thus, she was unavailable under MRE 804(a)(3). Defendant had an opportunity to cross-examine her at his PE, and defense counsel did so. There was a similar motive to develop her testimony. Further, the Confrontation Clause was satisfied. The court found defendant’s argument premised on Roberts, which was overruled by Crawford, unpersuasive. Affirmed.

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      e-Journal #: 61610
      Case: People v. Zacharko
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Owens, Murphy, and Hoekstra
      Issues: Limitations on the defense expert’s testimony in the defendant’s trial on CSC charges; MRE 702; Whether the expert’s testimony about forensic interviewing protocols & suggestibility would have been irrelevant & confused the jury; MRE 401-403; The Michigan Child Protection Law (MCL 722.621 et seq.); MCL 722.628(4) & (6); People v. Trakhtenberg; Whether an error affected the outcome of the proceedings; MCL 769.26; People v. Lukity; Challenges to the testimony of the prosecution’s expert; MCR 6.201(A)(3); Ineffective assistance of counsel; People v. Ackley; Factual predicate requirement; People v. Hoag; Failure to raise a futile objection; People v. Strickland; “Plain error” review; People v. Carines; Failure to obtain a fingerprint report & call a lab analyst as a witness; Claim that the defendant’s due process rights were violated because the verdict form was deficient; Right to a unanimous jury verdict; MCR 6.410(B); People v. Cooks; Presumption that jurors follow their instructions; People v. Mahone; “Other acts” evidence; MRE 404(b); People v. Jackson
      Summary: While the court concluded that the trial court erred in limiting the defense expert’s (O) testimony about forensic interviewing protocols and suggestibility, it held that reversal of the defendant’s CSC convictions was not warranted because the error did not affect the outcome. It also concluded that reversal was not warranted on the basis of his claims that counsel was ineffective, that his due process rights were violated by the verdict form, and that the trial court erred in admitting other acts evidence. Thus, it affirmed defendant’s convictions of 16 counts of CSC III. The court concluded that to “the extent that the victim’s interview by the investigating officer conceivably may have tainted her allegations of sexual acts committed by defendant, the admission of expert testimony regarding proper forensic interviewing protocols was relevant, as it would have ‘assist[ed] the trier of fact to understand the evidence or to determine’” a fact in issue. This was also “true in the context of ‘suggestibility’ arising out of the police interview and the interactions and communications between the victim and her mother about defendant, which at times, according to some of the evidence, was sexually graphic.” As to “the trial court’s conclusion that the excluded expert testimony would have confused the jury because the investigating officer was not required to follow any forensic interviewing protocols, MCL 722.628(4) and (6)” established “the error in that proposition.” However, O was “able to give some testimony that supported defendant’s theory of the case,” and that “could reasonably be viewed as undermining the victim’s credibility or the accuracy of her allegations.” O’s actual testimony wandered beyond the trial court’s “restriction at numerous points, touching on some of the very subjects that defendant wished to present to the jury.” Further, “the untainted evidence of an improper relationship between defendant and the victim, evidenced primarily by text messages, was strong and corroborated much of the victim’s testimony.” Defense counsel also “engaged in aggressive cross-examination of the victim in an effort to impeach her credibility, succeeding in part in light of the acquittals on seven counts.”

    • Litigation (1)

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      This summary also appears under Wills & Trusts

      e-Journal #: 61588
      Case: In re Awad Estate
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, K.F. Kelly, and Fort Hood
      Issues: Attorney fees; Principle that fees-for-fees claims are not chargeable to an estate; In re Sloan Estate; Reasonableness of fees; MCR 5.313; MRPC 1.5(a); Augustine v. Allstate Ins. Co.; Smith v. Khouri; Failure to develop an argument for appeal; Houghton v. Keller; Right result reached for the wrong reason; Draws v. Levin; Principle that a mere claim cannot stand in the place of evidence and operate as proof; Michigan Aero Club v. Shelley; Principle that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case”; Reed Dairy Farm v. Consumers Power Co.; Catholic Family Services (CFS)
      Summary: The court held that the probate court did not err by issuing an order reducing a previous award of appellate attorney fees and awarding additional attorney fees to the appellee-CFS, the personal representative of the estate of the appellant’s father. This was the third appeal filed by appellant. The court previously found that CFS was permitted to collect its attorney fees and costs from appellant’s “nonprobate transfers because her actions caused the estate’s insolvency.” However, it remanded for “reassessment of the attorney fees chargeable to the estate because the probate court erroneously awarded CFS attorney fees associated with its defense of” attorney fees. On remand, CFS filed a civil action against appellant, seeking “a judgment for the amount she owed the estate out of her nonprobate transfers.” The probate court reduced the original attorney fees charged to appellant by $3,332, and granted CFS’s request to charge her $36,614.25 for the second appeal and $6,843.69 for costs and attorney fees incurred in the civil case. It also granted CFS’s motion for summary disposition in the civil case and awarded $11,657 against appellant for attorney fees relating to the first appeal, which reflected the $3,332 reduction. On appeal, the court rejected appellant’s argument that the trial court erred by denying her summary disposition, noting that although “CFS’s attorney stated that he did not have an itemized bill for each issue addressed, he presented his work product from the first and second appeals, which the probate court used to determine the relative amounts of time spent on the defense of attorney fees.” Thus, “CFS’s attorney did not concede that he had no evidence supporting” his properly charged fees. The court next rejected her claim that the probate court’s method for assessing reasonable attorney fees was improper. “CFS’s attorney fees incurred in the civil action were not barred by the fees-for-fees doctrine because the fees were not ‘brought in behalf of the attorney seeking the fees,’ which ‘clearly do not benefit the estate because they do not increase or preserve the estate’s assets.’” Finally, the court rejected her claim that the probate court violated MCR 2.302(B) by preventing further discovery on the attorney fee issue, finding that her “discovery requests were based on conjecture and allowing further discovery would have amounted to an impermissible fishing expedition.” Affirmed.

    • Negligence & Intentional Tort (1)

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      e-Journal #: 61578
      Case: Krupinski v. Nitkin
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Servitto, Wilder, and Boonstra
      Issues: Action for injuries arising when the plaintiff was pinched between two vehicles at a gas station; Negligent design; Cacevic v. Simplimatic Eng’g Co.; Product liability analysis; Lawrenchuk v. Riverside Arena, Inc.; Novotney v. Burger King Corp. (On Remand); Glittenberg v. Doughboy Recreational Indus. (On Rehearing); Prentis v. Yale Mfg. Co.; Gregory v. Cincinnati, Inc.; Principle that an expert’s opinion must be based on sufficient data or facts; Amorello v. Monsanto Corp.; MRE 702; Failure to warn; Laier v. Kitchen; The “open and obvious danger” doctrine; Lugo v. Ameritech Corp.; Relevance of information on prevailing industry standards; Marietta v. Cliff’s Ridge, Inc.; Whether the trial court should have considered a written summary of an expert’s opinion; MCR 2.119(B); Premises liability; Benton v. Dart Props., Inc.; Quinto v. Woodward Detroit CVS, LLC; Joyce v. Rubin; “Invitee” status; Stitt v. Holland Abundant Life Fellowship; Determining the gravamen of an action; Adams v. Adams (On Reconsideration); Whether an action sounds in premises liability or ordinary negligence; Buhalis v. Trinity Continuing Care Servs.; James v. Alberts; Jahnke v. Allen
      Summary: The court held that the plaintiff failed to establish a genuine issue of material fact that the defendant-Costco Wholesale’s gas station was negligently designed, and that the open and obvious danger doctrine barred plaintiff’s failure to warn claims. Further, that doctrine barred the remaining portions of his negligence claim, which sounded in premises liability, not ordinary negligence. Plaintiff sustained severe injuries that led to the amputation of both of his legs after he was pinched between two vehicles at defendant’s gas station, which “allowed customers to drive to and away from the gas pumps in one direction only.” As to his negligent design claim, the court noted that he had to prove, through his expert’s (B) testimony, “that the design of defendant’s gas station ‘constituted an unreasonable risk’ to the gas station’s customers.” The court agreed with defendant that B “failed to establish the magnitude of the risk he identified. He did not explain why the chain-reaction type of accident that injured plaintiff is more dangerous or more likely than any other type of pedestrian-vehicle accident in a self-service gas station or other area where pedestrians are in proximity to moving vehicles. He also did not explain why the queue and layout of the gas station create circumstances where a chain-reaction accident is more likely to occur than in any other circumstance involving a high occurrence of pedestrian-vehicle conflicts.” He did not provide any data or calculations about “the likelihood of a chain-reaction accident at the subject gas station.” Further, the court concluded that the trial court did not err in determining that plaintiff failed to show that any of B’s “proposed alternatives ‘would have been effective as a reasonable means of minimizing the foreseeable risk of danger’ by showing a positive trade-off between ‘additional utility as a safety measure and . . . the costs and effective use of the product.’” While plaintiff “identified a specific hazard associated with defendant’s innovative gas station design,” his expert “did not offer an opinion on the magnitude of the risk or provide a cost-benefit analysis for an alternative design to reduce the risk.” The court affirmed summary disposition for Costco.

    • Real Property (2)

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      e-Journal #: 61590
      Case: Talbot v. Davis
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Shapiro, O’Connell, and Wilder
      Issues: Quiet title action; Beulah Hoagland Appleton Qualified Pers. Residence Trust v. Emmet Cnty. Rd. Comm’n; Effect of the plaintiffs’ failure to redeem the property after foreclosure; Bryan v. JPMorgan Chase Bank
      Summary: Holding that the plaintiffs’ interest in the property at issue was extinguished when they failed to redeem it after foreclosure, the court affirmed the trial court’s order granting the defendant summary disposition in this quiet title action. The court noted that the plaintiffs had the burden of proof and had to make a prima facie case of title. Although the property was foreclosed on and the redemption period expired, they argued that they had “a continuing interest in the property, which is evidenced by a post-foreclosure assignment.” However, it was undisputed that they “fell behind in their payments, US Bank initiated foreclosure, US Bank purchased the property, US Bank was issued a sheriff’s deed, and plaintiffs failed to redeem the property.” Thus, their interest in it was extinguished and they could not make a prima facie showing of an interest in the property.

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      This summary also appears under Contracts

      e-Journal #: 61621
      Case: Von Walthausen v. Von Walthausen
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, K.F. Kelly, and Fort Hood
      Issues: Breach of contract; Whether plaintiff submitted sufficient evidence of the existence of an agreement; Brauer v. Hobbs; Mutuality of agreement; Thomas v. Leja; Rood v. General Dynamics Corp.; Rowe v. Montgomery Ward & Co.; Calhoun Cnty. v. Blue Cross Blue Shield MI
      Summary: Holding that whether an agreement existed constituted a question of fact for the jury, and that the trial court erred in granting defendants’ motion for summary disposition on the plaintiff’s breach of contract claim, the court reversed and remanded. In 1987, plaintiff executed a quitclaim deed granting the cottage he owned to defendants (his parents). He testified that he did so because “he had lost his job and could no longer afford the mortgage payments.” They agreed to “assume the mortgage payments. According to plaintiff, the parties also reached an oral agreement that, if defendants chose at any point to sell the cottage, plaintiff would have the first opportunity to purchase the cottage on the same terms as a willing buyer.” He sued after defendants sold the cottage without allowing him the opportunity to exercise his contractual right of first refusal. The trial court granted defendants’ motion for summary disposition based on its conclusion that there was no evidence of mutuality of agreement. It ruled that the “evidence of the agreement lacked specificity, particularly given the fact that the alleged agreement occurred over 30 years ago, and concluded that no rational trier of fact could find a legally enforceable agreement.” While it was true that “plaintiff could recall little in terms of specificity surrounding the details of the alleged agreement, plaintiff unequivocally testified that the agreement existed.” He explained that the “agreement between the parties was prefaced by a lengthy and detailed discussion regarding his grandfather and the family history surrounding the cottage.” He claimed the “significance of the cottage to the family was weighed against the financial cost of maintaining the cottage.” He also claimed the “quit claim deed was not executed until after the agreement was made and discussions were complete. Since the agreement was made, plaintiff testified that he has continued to maintain the property.” In addition, he produced a “2008 letter from his mother which referenced plaintiff’s desire to eventually buy the cottage from defendants.” It also “referenced a revocable living trust, in which plaintiff was granted the right to purchase the cottage upon defendants’ deaths.” Finally, he testified as to a 2010 phone conversation with his mother, where she said, “Don’t worry. Even if we have to let the cottage go for money reasons, you still get a crack at it first.” Based on the evidence, the court held that there was sufficient evidence presented by plaintiff to establish a question of fact as to the existence of an oral agreement.

    • Termination of Parental Rights (2)

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      e-Journal #: 61625
      Case: In re Farris
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Sawyer, Beckering, and Boonstra
      Issues: Termination under §§ 19b(3)(b)(i) & (k)(ii); Claim that reversal was required because of the delay in trial; MCR 3.972(A); MCR 3.923(G); In re Jackson; In re Brown/Kindle/Muhammad; Waived issue; Lewis v. LeGrow; Holmes v. Holmes; "Good cause" for an adjournment; In re Utrera; Children’s best interests; In re White; In re Olive/Metts Minors; In re HRC
      Summary: The court held that the respondent-father waived the delay issue in his trial by agreeing to adjourn his trial until after his criminal case, that the trial court’s decision to adjourn the jurisdiction trial until after his criminal trial was not outside the range of principled outcomes, and that termination was in the children’s best interests. The initial petition involving the children was filed in 6/13, seeking court jurisdiction over them and termination of respondent’s parental rights based on his sexual abuse of the children’s half-sister. A pretrial was held in 8/13. “At that time, respondent had criminal charges pending stemming from the assault on his stepdaughter, and petitioner requested the criminal matter be resolved before proceeding on this case.” On appeal, respondent contended that reversal was required because of the delay in his trial. The trial court reasonably concluded that “protecting the victim’s emotional well-being constituted good cause for adjourning the matter until after respondent’s criminal case was resolved. The trial started shortly after the criminal proceedings were concluded, so the adjournment was for as short a period as necessary.” Although it “focused mostly on the best interests of the victim (who was not a subject of the petition in this case), rather than the two children at issue, respondent” did not allege, nor did any evidence indicate, that adjournment was contrary to these children’s best interests. “While this matter was pending, the children remained in their mother’s care and were doing well and thriving.” Affirmed.

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      e-Journal #: 61626
      Case: In re Nicks
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Sawyer, Beckering, and Boonstra
      Issues: Termination under §§ 19b(3)(b), (c)(i), (c)(ii), (g), (j) & (k)(iii); Ineffective assistance of counsel; In re Simon; Failure to consult with, or seek funds to retain, a medical expert; Principle that only one statutory ground for termination need be proven; In re Ellis; Trial strategy; People v. Payne; Failure to object to inadmissible evidence proffered by the DHHS; Admission of respondent’s psychological evaluation; In re Gilliam; Child’s best interests; In re LaFrance Minors; In re Trejo Minors; Santosky v. Kramer; In re Moss Minors; The preponderance standard
      Summary: The respondent-mother could not show that she was prejudiced by her trial counsel’s alleged ineffective performance. Since there was clear and convincing evidence supporting termination under § (g), it was immaterial whether inadmissible evidence supported the other statutory grounds cited by the trial court. Further, she could not show any prejudice from her counsel’s apparent failure to consult an independent expert as to a child's injuries. Also, the trial court’s best interest determination was not clearly erroneous. A preponderance of the evidence supported its finding that termination was in JN’s best interests. Thus, the court affirmed the trial court’s order terminating her parental rights to JN. She argued that her counsel performed ineffectively by failing to object to the introduction of respondent’s psychological evaluation at trial, which she contended was inadmissible hearsay. In support, she cited Gilliam, for its holding that, “if termination is sought on the basis of one or more circumstances ‘new or different’ from those that led to the original assumption of jurisdiction, ‘[l]egally admissible evidence must be used to establish the factual basis of parental unfitness sufficient to warrant termination of parental rights.’” She contended that “the psychological evaluation was ‘new or different’ from the circumstances that led the trial court to initially assume jurisdiction.” She was correct. She pleaded no contest to the trial court’s assumption of jurisdiction. As the factual basis for the plea, the trial court took judicial notice of the contents of the 2013 supplemental termination petition, which contained “no allegations related to respondent’s mental health or her psychological evaluation. Thus, the psychological evaluation was both new and different from the circumstances that led to the initial assumption of jurisdiction.” However, she did not contest the trial court’s finding that clear and convincing evidence supported the six statutory grounds it cited, including § (g). “By her own testimony and admissions, it was established at trial that respondent failed, throughout the pendency of the child protective proceedings, to document a legal source of income (aside from $194 per month of ‘food assistance and [] Medicaid’) or to obtain suitable housing for her children. The psychological evaluation was unrelated to respondent’s failure—without regard to intent—to provide proper care or custody for JN.”

    • Wills & Trusts (1)

      View Text Opinion Full PDF Opinion

      This summary also appears under Litigation

      e-Journal #: 61588
      Case: In re Awad Estate
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Gadola, K.F. Kelly, and Fort Hood
      Issues: Attorney fees; Principle that fees-for-fees claims are not chargeable to an estate; In re Sloan Estate; Reasonableness of fees; MCR 5.313; MRPC 1.5(a); Augustine v. Allstate Ins. Co.; Smith v. Khouri; Failure to develop an argument for appeal; Houghton v. Keller; Right result reached for the wrong reason; Draws v. Levin; Principle that a mere claim cannot stand in the place of evidence and operate as proof; Michigan Aero Club v. Shelley; Principle that “Michigan follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending case”; Reed Dairy Farm v. Consumers Power Co.; Catholic Family Services (CFS)
      Summary: The court held that the probate court did not err by issuing an order reducing a previous award of appellate attorney fees and awarding additional attorney fees to the appellee-CFS, the personal representative of the estate of the appellant’s father. This was the third appeal filed by appellant. The court previously found that CFS was permitted to collect its attorney fees and costs from appellant’s “nonprobate transfers because her actions caused the estate’s insolvency.” However, it remanded for “reassessment of the attorney fees chargeable to the estate because the probate court erroneously awarded CFS attorney fees associated with its defense of” attorney fees. On remand, CFS filed a civil action against appellant, seeking “a judgment for the amount she owed the estate out of her nonprobate transfers.” The probate court reduced the original attorney fees charged to appellant by $3,332, and granted CFS’s request to charge her $36,614.25 for the second appeal and $6,843.69 for costs and attorney fees incurred in the civil case. It also granted CFS’s motion for summary disposition in the civil case and awarded $11,657 against appellant for attorney fees relating to the first appeal, which reflected the $3,332 reduction. On appeal, the court rejected appellant’s argument that the trial court erred by denying her summary disposition, noting that although “CFS’s attorney stated that he did not have an itemized bill for each issue addressed, he presented his work product from the first and second appeals, which the probate court used to determine the relative amounts of time spent on the defense of attorney fees.” Thus, “CFS’s attorney did not concede that he had no evidence supporting” his properly charged fees. The court next rejected her claim that the probate court’s method for assessing reasonable attorney fees was improper. “CFS’s attorney fees incurred in the civil action were not barred by the fees-for-fees doctrine because the fees were not ‘brought in behalf of the attorney seeking the fees,’ which ‘clearly do not benefit the estate because they do not increase or preserve the estate’s assets.’” Finally, the court rejected her claim that the probate court violated MCR 2.302(B) by preventing further discovery on the attorney fee issue, finding that her “discovery requests were based on conjecture and allowing further discovery would have amounted to an impermissible fishing expedition.” Affirmed.
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