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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Action seeking PIP benefits; Principle that the owner or registrant of an uninsured motorcycle involved in an accident is not entitled to PIP benefits; MCL 500.3113(b); “Owner” & “registrant”; MCL 500.3101(l)(i); Titan Ins Co v State Farm Mut Auto Ins; Constructive ownership; Ardt v Titan Ins Co; Attorney fees; MCL 500.3148(1); Penalty interest; MCL 500.3142(4); Unreasonable refusal to pay a claim; MCL 500.3142(2)
The court held that the trial erred by finding defendant-insurer had a reasonable basis for delaying payment of the benefits at issue in this case, and that plaintiff was not entitled to attorney fees under MCL 500.3148(1). Further, her entitlement to penalty interest remained an open issue. Plaintiff sued defendant on behalf of her sister, Tabroski, who was seriously injured and legally incapacitated in a motorcycle accident in which she was a passenger. The motorcycle was uninsured. Plaintiff alleged defendant unreasonably refused to pay or delayed paying Tabroski’s benefits, and requested penalty interest and attorney fees. The trial court initially granted the portion of defendant’s motion relating to unpaid balances, but denied the portion of the motion relating to guardianship expenses. However, on reconsideration, the trial court granted defendant’s motion and dismissed the case with prejudice. On appeal, the court agreed with plaintiff that the trial court erred by finding the delay in paying Tabroski’s PIP benefits was reasonable. “[D]efendant did not act diligently in investigating plaintiff’s claim. The fact that Tabroski was a passenger on the motorcycle was an insufficient reason to delay defendant’s coverage determination for nearly a full year.” The court also agreed with plaintiff that the trial court erred by dismissing her case with prejudice, in light of the issue of penalty interest on overdue benefits paid by defendant. “[T]he issue of penalty interest was not decided by the trial court’s” orders, and the penalty interest issue remained open, “such that the trial court erred by neither deciding it on a properly-supported motion for summary disposition nor submitting it to a jury for its determination, and by instead dismissing the entirety of plaintiff’s claim with prejudice.” Reversed and remanded.
Breach of contract; Whether the parties’ contract involved the sale of goods & was subject to the Uniform Commercial Code (UCC); “Predominant purpose” or “predominant factor” test; Insul-Mark Midwest, Inc v Modern Materials, Inc (IN)
The court concluded the trial court erred by holding the parties’ contract was predominately for the sale of goods and subject to the UCC. It “predominately concerned service, which is governed by the common law.” Thus, it reversed the portion of the order granting plaintiff-Challenge’s motion for summary disposition and remanded. Defendant-MetoKote asserted the trial court erred by holding that the contract “involved the sale of goods to which the UCC applies because MetoKote provides a service, making the UCC inapplicable.” MetoKote maintained “the application of the e-coat was a service to which the UCC was inapplicable.” To support its position, MetoKote relied on an Indiana Supreme Court case, Insul-Mark Midwest. The court held that “Challenge entered into an agreement with MetoKote for the e-coating of its plenums to increase the part’s resistance to corrosion or rust as required by GM.” It determined that this case was analogous to Insul-Mark Midwest. “Challenge was not concerned with the ingredients used in the coating or the coating process, as long as the coatings met GM’s specifications. Instead, Challenge was predominately concerned with price and location when it investigated a coating supplier.” The court concluded although “the e-coating material itself may be characterized as constituting a good, it was incidental to the larger service MetoKote supplied, its application. Like the coating process of screws in Insul-Mark Midwest, the court determined “MetoKote’s extensive application process, with its more than 20 distinct steps, was crucial to the transformation of the raw plenums to the coated plenums with their increased resistance to rust.”
Statutes of limitations; Effect of Michigan Supreme Court’s administrative orders (AOs) as to court filing deadlines that excluded days during the COVID-19 state of emergency from the computation of time under MCR 1.108; AO 2020-3; AO 2020-18; Whether the Supreme Court has authority to modify or toll the statute of limitations
The court held that the statute of limitations (SOL) was tolled by the Michigan Supreme Court’s AO 2020-3 and the Supreme Court had constitutional authority to issue AO 2020-3. Thus, it reversed the trial court’s grant of summary disposition to defendant under MCR 2.116(C)(7) and remanded. The court concluded that “under AO 2020-3 and MCR 1.108(1), any day falling during the state of emergency does not count toward determining the last day of a statutory limitations period. Contrary to the trial court’s conclusion, the Supreme Court did not exclude only deadlines that fell during the state of emergency. Rather, it more broadly excluded any day within the state of emergency ‘for purposes of determining the deadline applicable to the commencement of all civil and probate case types under MCR 1.108(1).’” The court noted that its conclusion was supported “by AO 2020-18’s explanation of how to start counting days” after AO 2020-3’s rescission. It demonstrated that “all litigants whose limitations periods had not expired prior to the adoption of AO 2020-3 were entitled to the exclusion of days under AO 2020-3.” Thus, the trial court erred by concluding AO 2020-3 did not apply to this slip and fall case. And applying the AOs here, the court held that plaintiff’s complaint was timely filed. Defendant alternatively argued “AO 2020-3 is ineffective because the Supreme Court has no authority to modify or toll the” SOL. The court found that by “its own terms, AO 2020-3 was modifying the computation of days under MCR 1.108 for purposes of determining filing deadlines, which is plainly a procedural matter. Further, even the normal application of MCR 1.108(1) may result in more time than permitted by the” SOL. The court concluded the “law of counting time favors this approach, i.e., granting more rather than less than time to file than permitted by statute, to ensure that the parties receive the entire amount of time for filing that they are entitled to.” The court determined that “is precisely what the Supreme Court was trying to accomplish with AO 2020-3, which was issued when there were court closings because of the COVID-19 pandemic. Further, the Court was also clearly concerned with limiting in-person interactions and protecting court staff and the public from COVID-19.” The court noted that in “addition to its authority over procedural rules, the Supreme Court has superintending control over all state courts.” As a result, it had authority to manage the courts’ operations during a global pandemic.
Constitutionality of 2018 PA 368 (the Michigan One Fair Wage proposal) & 369 (the Michigan Time to Care proposal); The right of the people to initiate their own law (initiative) & to approve or reject a law enacted through the normal republican governmental process (referendum); Const 1963, art 2, § 9; Whether the Legislature enacting an initiative petition proposal may amend the law enacted at the same legislative session; Frey v Director of Dep’t of Soc Servs; Statutory interpretation; Principle that the Legislature is free to legislate as it deems appropriate unless specifically prohibited from doing so under the state or federal Constitutions; Southeastern MI Fair Budget Coal v Killeen
In this dispute over whether statutes the Legislature enacts under the initiative process “can be amended during the same legislative session in which they were enacted[,]” the court held that the Court of Claims’ conclusions that the Legislature is prohibited from doing so were not supported by either the text or intent of article 2, § 9. Thus, the court reversed its order and remanded for entry of an order granting defendant-State of Michigan’s summary disposition motion. Plaintiffs-voter groups and defendant-Attorney General claimed that article 2, § 9 does “not permit the Legislature to adopt a proposed initiative and amend it within the same legislative session” and as a result, PA 368 and PA 369 were unconstitutional. The Court of Claims agreed, finding the “substantive amendments to these voter-initiated acts effectively thwarted the intent of the people by denying them the opportunity to vote on whether they preferred the voter-initiated proposal or the Legislature’s modified proposal.” It concluded the Legislature was prohibited from doing so, and thus ruled PA 368 and 369 were unconstitutional and void. On appeal, the court rejected the Court of Claims’ reasoning. In article 2, § 9, “the people did preclude the Legislature from amending a law during the same legislative session, but only as to referendums.” The court found that to say there is “no significance to the people limiting legislative amendments during the same legislative session to referendums is to simply ignore the deliberate restrictions the people placed in” article 2, § 9. Further, allowing amendment of the public acts “during the same legislative session in which they were enacted does not interfere with the ability to seek a referendum on these original laws.” In addition, the “constitutional convention record squarely supports the conclusion that there was no intention to place a temporal limit on when the Legislature could amend initiated laws enacted by the Legislature.” Finally, to the extent the Court of Claims “focused on the perceived intent of the Legislature, it has been the law of this state for more than 100 years that the motivations in passing legislation are irrelevant.” The court found that “upholding the adopt and amend procedure does not diminish the initiative process,” and that its “holding does no damage to the right of referendum, as the original laws as enacted into public acts, or the public acts that contained the amendments, remain subject to a referendum as specified in” article 2, § 9.
Whether an independent insurance agent is still ordinarily an agent of the insured (not the insurer) after 2018 amendments to the Insurance Code; 2018 PA 449; MCL 500.1201(b) & (c) (defining “agent of the insured” & “agent of the insurer”); MCL 500.1211(2); Whether the common-law principle was modified by contract; Genesee Food Servs, Inc v Meadowbrook, Inc
The court held that the common-law principle that an independent insurance agent is ordinarily an agent of the insured, not the insurer, was not abrogated by 2018 amendments to the Insurance Code, except for a narrow exception that was not relevant to this or most insurance transactions. Further, the contract between the agent (defendant-Golden Insurance Agency) and the insurer (defendant-Hartford) here did not modify this common-law principle. Thus, the court concluded the trial court erred in ruling that Golden was Hartford’s agent and in denying Hartford summary disposition on that basis. Plaintiff obtained motor vehicle insurance from Hartford through Golden. After he was injured in an accident, Hartford rescinded the policy based on errors in the insurance application. Plaintiff asserted that Golden was Hartford’s agent and thus, “Golden’s purported failure to correct misinformation in the application had to be subscribed to Hartford.” He relied on the contract between those parties, and on changes made by 2018 PA 449, which added definitions of “agent of the insured” and “agent of the insurer” to Chapter 12 of the Insurance Code. But the court determined he read the “new statutory language too broadly.” The substantive changes involving the new definitions were found in MCL 500.1211(2). “A close reading confirms that the circumstance described in subsection (2) is a narrow, specific one—namely, where the consumer (insured) and insurance company (insurer) each have their own agent, and these two agents in turn have a written contractual relationship with each other.” The court noted that this circumstance “does not involve the mine-run of instances when a consumer works with an independent-insurance agent to compare various insurance policies and choose the one best for the consumer. In those mine-run of instances, there is only one agent—the independent-insurance agent.” Plaintiff sought insurance through an independent agent, Golden, “and not through an agent-to-agent transaction.” Thus, unless Hartford and Golden “somehow contracted around the common-law principle,” it applied here. And the court concluded they did not, finding their contract was “materially indistinguishable from the one” in Genesee Food. As a result, Golden was not acting as Hartford’s agent as to the insurance application it submitted on behalf of plaintiff’s business. Reversed and remanded.
Other acts evidence; MRE 404(b); Intent; Relevance; MRE 403; Unfair prejudice; Notice under MRE 404(b)(2); Sufficiency of the evidence; Felony murder; Sentencing; Accuracy of the PSIR
The court concluded the trial court did not abuse its discretion by admitting other acts evidence under MRE 404(b). Also, there was sufficient evidence to support defendant’s felony murder conviction. Thus, it affirmed his convictions and sentences, but remanded for the ministerial task of correcting his sentencing documentation. As to the other acts evidence, his intent as to the murder victim was “critical to determining whether the predicate-offense element of felony murder was satisfied.” The court held that “evidence of the alleged earlier robbery was highly probative of defendant’s intent to commit an armed robbery against the murder victim. The uncharged conduct took place less than an hour before the charged offense and showed that defendant was acting pursuant to a common plan or scheme.” In both instances, he “discussed the exchange of money for drugs. When defendant was expected to take out money, he instead took out a gun. Thus, the uncharged armed robbery and the charged offense were sufficiently similar such that the jury could infer that defendant planned to rob the murder victim.” Lastly, the court determined the other acts “evidence was not unfairly prejudicial to defendant, and any risk of an improper propensity inference was neutralized by the trial court’s limiting instruction that the jury could not consider the evidence for propensity purposes. Jurors are presumed to follow their instructions. Accordingly, the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.” Defendant also argued the prosecution failed to provide the notice required by MRE 404(b)(2). The court held that there “was good cause for the prosecution’s failure to provide pretrial notice of [PC’s] testimony regarding the alleged robbery. [PC] pleaded guilty on the Friday before the start of the trial on Monday. Accordingly, at the time that notice was due under MRE 404(b)(2), the prosecution did not anticipate calling [PC] as a witness given the pending charges against her.” The court concluded the other acts “evidence was substantively admissible under MRE 404(b). Further, defendant was aware of [PC’s] allegations regarding the uncharged robbery because a detective had testified about those allegations at the preliminary examination over defendant’s objection. And defendant does not explain how he would have conducted the trial differently had formal notice of the uncharged robbery been provided under MRE 404(b)(2).” As to the sufficiency of the evidence, the court held that the “evidence showed that earlier that evening defendant committed an armed robbery during which he pulled a gun on a drug dealer. Defendant followed a similar scheme with respect to the murder victim. When [C] and defendant met with the victim, defendant and the victim discussed an exchange of money for cocaine. Instead of pulling out money as expected, defendant pulled out a gun and shot the victim.” Thus, there was sufficient evidence he committed attempted armed robbery, the predicate offense for his felony murder conviction.
Ineffective assistance of counsel; People v Taylor; Trial strategy; People v Carbin; Prejudice; People v Jordan; Failure to challenge a juror; People v Unger; Failure to object to other acts evidence; MRE 404(b)(1); People v Wilder; Motion for a mistrial; People v Dickinson
The court held that defendant was not denied the effective assistance of counsel, and the trial court did not err by denying his motion for a mistrial. He was convicted of second-degree murder after police received an alert from a home-security system, found defendant inside the house with a tampered alarm system, a forcefully-opened storm door, and a hole in the side of the wall of the house. On appeal, the court rejected his argument that he was denied the effective assistance of counsel when defense counsel did not remove a specific juror during voir dire. “Defense counsel used all the preemptory challenges available to her, and she challenged a different juror for cause.” Defendant failed to show “defense counsel’s use of peremptory challenges on other jurors was not strategic.” He also failed to show “defense counsel was ineffective for choosing to use all peremptory challenges on other jurors.” Moreover, the trial court “instructed the jury several times that they were to presume that defendant was innocent until proven guilty beyond a reasonable doubt . . . .” The court also rejected his claim that he was provided ineffective assistance when defense counsel originally agreed to allow the prosecution to ask generally about his prior conviction. However, “defense counsel did in fact object to the prosecutor’s more specific questioning and also moved for a mistrial after the trial court sustained her objection.” Moreover, the original question “the trial court would have allowed from the prosecutor, regarding defendant’s prior convictions generally,” was permissible. The prosecutor “was not asking to use the defendant’s previous conviction to impeach defendant’s credibility in general or to show that he acted in conformity with a prior act. Instead, the prosecutor asked the trial court for permission to use defendant’s previous conviction to impeach defendant on his specific statement that he is not ‘some big thief.’” Finally, the court rejected his contention that the trial court erred by not granting a mistrial once the prosecutor asked about his prior conviction of armed robbery. Given all the “evidence submitted at trial, the prosecutor’s question and defendant’s partial answer were not so egregious that the prejudicial effect could only be removed by granting a mistrial.” Affirmed.
Garnishment action against an insurer; Effect of an insured’s failure to comply with a policy contract requirement to give the insurer notice of a lawsuit; LeDuff v Auto Club Ins Ass’n; Koski v Allstate Ins Co; Prejudice; Applicability of MCL 257.520(f)(6); MCR 3.101; Decker v Trux R Us, Inc; Alyas v Illinois Employers Ins of Wausau; Laches
The court held that garnishee defendant-insurer (referred to as Maryland) did not show prejudice due to a failure by its insured (defendant-CCMI) to give it sufficient notice of the underlying lawsuit. It also rejected Maryland’s argument that the facts stated in its garnishee disclosure (its denial of liability) had to “be taken as true because plaintiff did not serve interrogatories or notice a deposition within the time allowed in MCR 3.101(L)(1).” Finally, it concluded that laches did not apply. After obtaining a default judgment against CCMI, plaintiff “filed a request and writ for garnishment, naming Maryland as garnishee under terms of the insurance policy Maryland had issued to CCMI.” Maryland argued on appeal that it was not liable on the judgment due to lack of notice and by operation of MCL 257.520(f)(6). The court found that Maryland failed to establish the statute applied. As to notice, assuming without deciding “that Maryland did not receive sufficient notice of the lawsuit, it is critical to the question of prejudice that Maryland simply disputed the amount of the coverage its policy would provide. And, in its lower court pleadings, [it] did not raise any issue” as to the claimed damages. “Maryland was notified of the accident and plaintiff submitted a demand for subrogation to Maryland. Maryland engaged in at least some investigation,” but then failed to “seek any other information concerning the accident, even when given the opportunity to do so, did not claim any defenses, admitted policy coverage, and paid part of the claim.” While it argued in response to plaintiff’s summary disposition motion that it lacked notice of the underlying suit and an opportunity to defend, it “identified no facts or defenses based on facts that it would have relied upon had it received notice of the lawsuit and participated in it. Until plaintiff moved for summary disposition in the garnishment action, there was no assertion or supported claim of prejudice due to the lack of actual notice of the underlying lawsuit.” As to its argument based on MCR 3.101, the court found no support for the position “a basic ‘check the box’ denial of indebtedness, without setting forth any reason for the denial, is a sufficient statement of fact that must be deemed as true when a garnishor does not serve interrogatories or a notice of deposition upon the garnishee within 14 days.” It affirmed summary disposition for plaintiff.
Order for continuing mental health treatment; Due process in civil commitment proceedings; In re Moriconi; Notice; MCL 330.1453(1); Sidun v Wayne Cnty Treasurer; A respondent’s right to be present at a civil commitment hearing; MCL 330.1453(2); Service of papers in civil commitment proceedings; MCR 5.734; Harmless error
Holding that respondent-patient’s due-process rights were violated because she was not given proper notice of the hearing where an order for her continuing mental health treatment was ordered, the court vacated the order and remanded. Petitioner sought an order for respondent’s continuing mental health treatment for schizophrenia. Respondent was personally served with the petition and notice of hearing. However, the hearing was repeatedly rescheduled and no proof of service was filed indicating respondent was provided notice of the eventual hearing. She was absent for the hearing where an order requiring another year of mental health treatment was entered. On appeal, the court agreed with respondent that she was denied her right to due process because she did not receive proper notice of the hearing at which the order was entered, noting it was “clear that the probate court did not comply with the notice and service requirements.” The record showed “that during the period of time when the hearing was repeatedly being rescheduled, respondent was served with notices of hearing by mail three times. At least two of these notices appear to have been returned as undeliverable. In any event, because personal service is required and because there is nothing in the record suggesting that respondent waived her right to personal service, these instances of attempted service by mail were in violation of MCR 5.734(A).” In addition, although the “probate register requested that respondent receive personal service of the notice of hearing at an upcoming” medical appointment, there “is simply nothing in the record to suggest that this occurred.” As such, there was “no record basis to conclude that respondent was personally served with notice of the . . . hearing as required by MCR 5.734(A), or that she was provided actual notice of the hearing.” The court concluded that there was “a wholesale failure by the probate court to comply with the notice and service requirements governing civil commitments, i.e., the procedural safeguards ensuring respondent’s rights to be present and heard. This was a significant error that cannot be deemed harmless.”
2019 amendments increasing the minimum liability coverage required to be placed in auto policies issued or delivered on or after 7/2/20; MCL 500.3009; “Delivered or issued for delivery”
In an issue of first impression, the court held that it was clear from the plain language of MCL 500.3009 the Legislature did not intend for the increased minimums for auto insurance bodily injury coverage to automatically apply to policies delivered before the statutory changes took effect. Thus, in this declaratory judgment action it reversed the trial court’s order denying plaintiff-insurer’s summary disposition motion and ordering judgment as a matter of law in defendants’ favor, and remanded. The case arose from an auto accident in which defendants were injured. Plaintiff sought a declaration that it “was not obligated to provide liability coverage for any amount beyond the $20,000/$40,000 bodily injury limits contracted for in defendant Giddings’ policy.” The trial court ruled that the “policy must be reformed to reflect the changes to the statute, which came into effect during” the policy term. The issue before the court was whether 2019 “amendments to MCL 500.3009 automatically increased coverage limitations in policies issued before the statutory changes in coverage took effect but whose term extended beyond” 7/2/20. The court held the answer was no. Consulting dictionary definitions to determine “the Legislature’s intended meaning of the phrase ‘delivered or issued for delivery,’” the court concluded that “policies ‘delivered or issued for delivery’ before [7/2/20], were subject to coverage limits of $20,000/$40,000, and those after [7/1/20], were subject to limits of $250,000/$500,000. When the statute is read in its grammatical context, no ambiguity exists. Under subsections (1)(a) and (b), the minimum liability limits are fixed by the [7/1/20], and [7/2/20], dates. These subsections are clearly conditioned on when a policy was ‘delivered or issued for delivery’ under subsection (1). The fact that the statute distinguishes the liability limitations by the policy’s delivery date indicates that coverage options were intended to be allocated differently.” The court found that holding “the coverage limitations in preexisting policies automatically increased on [7/2/20], would ignore the statute’s plain language distinguishing coverage between dates.”
Governmental immunity; The highway exception (MCL 691.1402(1)); Knowledge of the defect; MCL 691.1403; Constructive knowledge; Distinguishing Davis v Kalamazoo (Unpub); Whether the roadway was reasonably safe for travel; Wilson v Alpena Cnty Rd Comm’n; The Governmental Tort Liability Act’s notice requirement; MCL 691.1404(1); Adequate notice of the pothole’s specific location; Plunkett v Department of Transp; Pavement surface evaluation & rating (PASER)
The court concluded there was a genuine issue of fact as to whether defendant-City of Ann Arbor had knowledge of the defect in question, and that a reasonable fact-finder could determine the area where the pothole was located “was not reasonably safe for public travel.” It also held that plaintiff-Christine Harris “substantially complied with the ‘exact location’ requirement” in MCL 691.1404(1). Thus, the court affirmed the trial court’s denial of Ann Arbor’s summary disposition motion. On 5/31/19, Harris was a passenger on a motorcycle when it hit a pothole and tipped sideways. She suffered severe injuries to her ankle and leg. Ann Arbor argued it did not have knowledge of the defect. It presented evidence “that its employees inspected the area, yet no repairs were made—suggesting no repairs were necessary.” But Harris presented evidence in response to the summary disposition motion that included a “PASER report, showing a progressive deterioration of the area around the pothole from [5/15/14 to 9/23/19]. She also attached her expert’s report indicating that ‘[r]ecords obtained from the City of Ann Arbor under FOIA prove that the City has know [sic] of the pothole, at least since 2014, and had it on their repair list for 7 years.’ This report noted ‘the hazard was known by the City of Ann Arbor, and only inadequate repair attempts were made, then recording the need for better repairs, and then letting it go for several more years.’” While Ann Arbor contended the court should reach the same conclusion here that it did in Davis, the court noted a distinct difference between the two cases – in addition to photos, the PASER report, and citizen complaints, Harris presented an expert’s opinion supporting her position. As to whether the roadway was reasonably safe for travel, while Ann Arbor’s evidence showed it might have been, “due to the pothole’s location and its shallowness, Christine’s evidence shows the opposite. That is, the nature of the intersection coupled with the deterioration of the roadway could pose a risk to public travel.” As to notice of the defect’s location, the notice Harris provided to Ann Arbor included a description of the area and what happened as well as “a Google map of the intersection where the accident occurred” and closeup photos of the pothole.
Entry of a default PPO; Non-domestic PPO; MCL 600.2950a; “Stalking”; MCL 750.411h(1)(d); “Harassment”; MCL 750.411h(1)(c); “Unconsented contact”; MCL 750.411h(1)(e); Failure to allege respondent engaged in two or more separate noncontinuous acts; Intentional “course of conduct”; MCL 750.411h(1)(a); Burden of proof; Violation of the stalking statute; “Conduct that serves a legitimate purpose”; Denial of the presence of a key witness
Concluding the trial court did not abuse its discretion in granting petitioner-LW a non-domestic PPO against respondents-SCM and KJL, the court affirmed in both cases. KJL argued the trial court abused its discretion by entering a default PPO against him. The court held that “the trial court did not abuse its discretion by prohibiting KJL from appearing virtually while he had outstanding warrants. Further, because the default was not entered as a sanction and was instead entered based upon KJL’s failure to defend, the court was not required to discuss alternative, less drastic sanctions on the record before entering the default.” SCM argued “the trial court abused its discretion by granting petitioner’s request for a PPO against him.” SCM contended “the petition failed to allege that he engaged in two or more separate noncontinuous acts.” The petition alleged that “(1) SCM, while acting on behalf of his stepson KJL, delivered multiple subpoenas to petitioner, (2) that each time he was posing as a process server SCM video recorded details of petitioner’s current and prior residence, and (3) he provided the video footage to KJL to post online so that petitioner would be harassed and intimidated. During the hearing that followed, petitioner testified that there were four instances of such conduct on SCM’s part. Petitioner thus alleged an intentional course of conduct consisting of four separate noncontinuous events.” SCM next asserted “the trial court’s statement, ‘Absent any evidence to the contrary,’ implied that SCM had the burden to disprove the allegations in the petition.” However, viewed in context, it was clear the trial court’s “statement was only an indication that the evidence presented by petitioner in support of his claim was unrebutted. The court did not improperly shift the burden.” Next, SCM argued the trial court erred by holding that he violated the stalking statute “because harassment does not include ‘conduct that serves a legitimate purpose.’” But the court determined that “SCM’s videos captured more than service of process upon petitioner for appearances not actually required of him, and the videos were quickly relayed to KJL who published them online to further a campaign of harassment that had previously resulted in a PPO against KJL. This evidence supported the trial court’s conclusion that SCM’s service or subpoenas upon petitioner for KJL was pretextual and actually used to gain information about petitioner’s residence.”
A conservator’s authority to execute a Lady Bird deed without a court order; The Estates & Protected Individuals Code (EPIC); MCL 700.5401(3); MCL 700.5423; Whether execution of a Lady Bird deed is a disposal of property for purposes of MCL 700.5423(3); “Dispose”; Whether the conservator breached a fiduciary duty; Roslund Prestage & Company (RPC)
The court held that the conservator (RPC) “did not dispose of—i.e., transfer—the property when it executed” a second Lady Bird deed designating a trust as the remainderman. Thus, it rejected appellant-Lucas’s argument RPC did not have any legal right to execute that deed on behalf of the protected individual (Barbara Greer) without a court order. It also rejected Lucas’s claim that RPC breached fiduciary duties owed to her as an estate beneficiary. Thus, the court affirmed summary disposition for RPC. Barbara’s husband Dale had “executed a Lady Bird deed on behalf of himself and Barbara that provided for the transfer of the home to Lucas upon their deaths.” After Dale’s death and RPC’s appointment as Barbara’s conservator, RPC “executed a new Lady Bird deed that would pass the house to the Greers’ trust instead of Lucas.” On appeal, the parties disputed “whether the execution of a Lady Bird deed is a disposal of property for the purposes of MCL 700.5423(3).” Noting the EPIC does not define “dispose,” the court consulted dictionary definitions and determined the word “means ‘to transfer to the care or possession of another.’” It then concluded RPC did not dispose of the property through executing the second Lady Bird deed. “The first and second Lady Bird deeds did not alter Barbara’s interest in the property. She retained a life estate before and after the execution of both deeds. And the only change between the first and second Lady Bird deeds was the identity of the remainderman.” The court noted that “the grantor of a Lady Bird deed retains virtually all rights in the property, including the right to revoke the deed.” In addition, “the remainderman in the unique life estate created by a Lady Bird deed has no interest in the property until after the death of the grantor. Therefore, by revoking one Lady Bird deed through the execution of a subsequent Lady Bird deed, Barbara’s interest in the property never changed; she at all relevant times retained virtually all rights in the property. And any interest by Lucas did not vest unless and until Barbara died with Lucas identified as the remainderman.” The court further found that because “a contractual agreement between the Greers and Lucas was not prepared and in light of the revocable nature of this Lady Bird deed, there is no indication that RPC breached a fiduciary duty to Lucas.”
Termination under § 19b(3)(c)(i); Relative placement; Best interests of the children
Holding that § (c)(i) was established but the trial court clearly erred by finding termination of respondent-mother’s parental rights was in the children’s best interests without addressing relative placement, the court affirmed in part, vacated in part, and remanded. She “admitted that she did not provide proper care and custody to her children and reacted inappropriately. Based upon these admissions, the [trial] court found sufficient factual basis to assume jurisdiction.” The court noted that her “children were approximately three and one years old when they were removed from respondent’s care. JM assumed the care of the children as a relative placement. The children suffered from medical, dental, physical, and emotional issues.” When they “resided with respondent, they incurred physical abuse that left permanent scars.” Although she “engaged in visitation with the children, her visits and her behaviors during the visits were inconsistent. Respondent became emotional and objected to the mask policy in place. Respondent’s parenting time never advanced to unsupervised overnight visits, but rather, her visits with the children caused them to regress and experience trauma. Because of the adverse impact on the children, the parenting time ended.” Moreover, she “did not obtain suitable housing and demonstrate that she could provide a safe, drugfree environment for the children. Respondent’s recent negative drug screen did not demonstrate a successful commitment to sobriety.” To her “credit, she completed parenting and anger management classes, but she did not seem to benefit from them as her behavior remained erratic, emotional, and aggressive.” Additionally, she “never completed the court-ordered psychological examination or the recommended inpatient substance abuse treatment to address the cause of her adverse reactions and drug abuse and prevent their reoccurrence. Respondent’s behavior was harmful to her children, causing them grief and frustration.” The court held that she “had two years to correct her behavioral issues that led to her children being placed in harm’s way, but she failed to do so.” Nothing in the record indicated there was “a reasonable probability that respondent would rectify these issues within a reasonable amount of time.” But remand was required as to the children's best interests. The court retained jurisdiction.
Termination under §§ 19b(3)(c)(i) & (j); Ineffective assistance of counsel in child protective proceedings; In re Casto Minors; Trial strategy; Prejudice; Reasonable reunification efforts; MCL 712A.18f(3)(b) & (c); MCL 712A.19a(2); A parent’s responsibility to participate in the services that are offered; Failure to accommodate a mental health disability; In re Hicks/Brown; Best interests of the children; In re Olive/Metts Minors
The court held that respondent-father was not denied the effective assistance of counsel, that the DHHS made reasonable reunification efforts, that §§ (c)(i) and (j) were met, and that termination was in the children’s best interests. Thus, it affirmed termination of his parental rights. On appeal, the court rejected his argument that he was denied the effective assistance of counsel. First, he failed “to identify any evidence that counsel could have offered to demonstrate respondent’s commitment to his mental health treatment or potential to maintain mental stability.” In addition, he could not “overcome the presumption that counsel’s strategy of urging the [trial] court to allow [him] more time was a sound choice.” Further, there was no evidence to suggest “a more successful outcome would have been probable had visitation not been delayed.” Moreover, considering his “unwillingness to participate in the mental health services offered to him, he [did] not explain how these services could have been made more accessible and more accommodating of his mental illness.” The court also rejected his claim that the DHHS failed to make reasonable efforts to reunify him with his children, particularly by failing to offer services to accommodate his mental health disability. The DHHS “did offer mental health treatment services, which were the focus of respondent’s treatment plan, but it was respondent who was unwilling to cooperate with these services.” And he failed “to identify the additional services he believes should have been offered to accommodate his mental illness.” His significant mental health issues “prevented him from having unsupervised contact with the children.” As to a statutory ground for termination, he “had not only actively spurned certain efforts to improve his mental health, but his mental health conditions had arguably worsened.” As such, § (c)(i) was satisfied. In addition, because he “failed to rectify the severe mental health issues underlying his erratic behavior, there existed a reasonable likelihood that the children would be harmed if returned to his care.” Thus, § (j) was satisfied. Finally, as to the children’s best interests, the court noted he “suffered from mental health issues that contributed to his inability to focus on parenting skills or his children’s” welfare, he failed to “make any meaningful effort to address, or even acknowledge,” his mental health concerns, and the children were thriving in foster care.