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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
The Persons With Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); Peden v. Detroit; “Disability” & “unrelated to the individual’s ability” defined; MCL 37.1103(d)(i)(A) & (l)(i); Retaliation; MCL 37.1602(a); Mitan v. Neiman Marcus; “Protected activity”; Bachman v. Swan Harbour Assocs.; Whether request for a transfer was a reasonable request for accommodation; Rourk v. Oakwood Hosp. Corp.; Whether requesting an accommodation is tantamount to opposing a violation of the PWDCRA; Federal case law under the Americans with Disabilities Act (ADA); AC ex rel JC v. Shelby Cnty. Bd. of Educ. (6th Cir.); Effect of analogous federal case precedent; Chmielewski v. Xermac, Inc.; Causation element; Aho v. Department of Corrs.
Noting that federal case law under the ADA was not binding, the court concluded that even if plaintiff engaged in protected activity under the PWDCRA when she requested a transfer as an accommodation, she failed to establish causation. Thus, it affirmed summary disposition for defendant-former employer on her PWDCRA retaliation claim. The trial court adopted defendant’s argument that the accommodation request was a protected activity if it was reasonable, and determined that plaintiff’s transfer request was not a reasonable request for accommodation under Rourk. However, the court found that “nothing in the PWDCRA suggests that requesting an accommodation for one’s disability is tantamount to opposing a violation of the PWDCRA, or initiating or participating in a proceeding under the PWDCRA within the meaning of § 602 of the act.” While federal case law “indicates that requesting an accommodation is a protected activity under the ADA, it does not necessarily mean” that it is a protected activity under the PWDCRA. The court noted that in Bachman, it found that “requesting an accommodation for a disability did not constitute opposition to a violation of the PWDCRA sufficient to establish a protected activity.” But even if plaintiff did engage in a protected activity by requesting an accommodation, the court held that she failed to show a causal connection between her request and her discharge. Defendant fired her “immediately upon her rejection of the settlement of the union grievance, in which defendant offered to return plaintiff to a job in a different unit or to permit her to establish through a doctor’s verification that she was unable to return to work. That she was fired immediately upon her rejection of the settlement lends credence to the argument that she was fired because she would not return to work rather than because she requested accommodation.” The court added that even if she sufficiently alleged causation, defendant articulated a legitimate business reason for firing her (her refusal to return to work), shifting the burden back to her to prove pretext, and nothing in the record supported that this reason “was a mere pretext.”
Limitations period for breach of contract; MCL 600.5807(1); MCL 600.5827; Cordova Chem. Co. v. Department of Natural Res.; Limitations period for claims under the Builders’ Trust Fund Act (BTFA) (MCL 570.151 et seq.); MCL 600.5813; DiPonio Constr. Co., Inc. v. Rosati Masonry Co., Inc.; BC Tile & Marble Co., Inc. v. Multi Bldg. Co., Inc.; Limitations period for fraud claims; Boyle v. General Motors Corp.; Particularity; MCR 2.112(B)(1); Cooper v. Auto Club Ins. Ass’n; Frank v. Linkner; Limitations period for negligent construction; MCL 600.5839(1)(a); Miller-Davis Co. v. Ahrens Constr., Inc.; Duty separate & distinct from that owed under the contract; Bailey v. Schaaf (On Remand); Negligent workmanship; Citizens Ins. Co. v. Scholz; Ostroth v. Warren Regency, GP, LLC (Ostroth I & II); Laches; Knight v. Northpointe Bank; Yankee Springs Twp. v. Fox; Eberhard v. Harper-Grace Hosps.; White v. Taylor Distrib. Co., Inc.; Claims under the Michigan Consumer Protection Act (MCPA); MCL 445.903(1); Exemption; MCL 445.904(1) & (4); Attorney Gen. v. Diamond Mtg. Co.; “Specifically authorized”; Liss v. Lewiston-Richards, Inc.; Piercing the corporate veil; Green v. Ziegelman; Gallagher v. Persha; Rymal v. Baergen; Breach of contract; Huntington Nat’l Bank v. Daniel J Aronoff Living Trust
The court held that the trial court erred by dismissing plaintiffs-homeowners’ breach of contract and warranty, BTFA, and fraud claims against defendants-construction company and builder as untimely. However, it did not err by dismissing their negligent construction claim. It also held that the trial court erred by applying laches to bar plaintiffs’ claims without first holding a trial or evidentiary hearing to resolve the factual disputes underlying the proper application of the doctrine. It further held that the trial court erred by dismissing their MCPA claims on the ground that the exemption stated under MCL 445.904(1)(a) applied to the facts as alleged in this case. Plaintiffs sued defendants in connection with defendants’ construction of an addition on plaintiffs’ home. On appeal, the court noted that plaintiffs filed their original complaint on 11/6/15, alleging acts or omissions that they asserted occurred after the parties orally agreed to the project and after construction began on 11/9/09. This meant “that—as alleged—their breach of contract and warranty claims were timely.” Further, because they “alleged that the two subcontractors provided services during the construction project, which they alleged to have begun on or after” 11/9/09, they “alleged a timely claim under the [BTFA] with regard to the failure to pay those two subcontractors.” Moreover, their “claims of fraud—while lacking in particularity with regard to the nature and timing of the harm actually suffered—nevertheless were timely to the extent that they involved misrepresentations that occurred during the construction project.” However, “[b]ecause any tort claim involving negligence during the construction of the improvement necessarily accrued before [defendants] stopped working on the property” in 4/10, and plaintiffs did not bring the claims until 11/15, “the claims stated under Count VII were untimely.” In addition, the court found that “there was a factual dispute on which reasonable minds may differ about whether the doctrine of laches should apply, and as such,” the issue could not be resolved on a motion for summary disposition. It also found that their claim that the trial court should disregard the company’s separate existence remained a viable remedy. But their claims against one of the individual defendants were properly dismissed for failure to state a claim. Affirmed in part, reversed in part, and remanded.
Breach of an implied covenant of good faith & fair dealing; In re Leix Estate; The Uniform Commercial Code (UCC); MCL 440.1304; MCL 440.1102; Belle Isle Grill Corp. v. Detroit; Breach of implied warranty; Nash v. Sears Roebuck & Co.; Co-Jo, Inc. v. Strand; Civil conspiracy; Prima facie case of negligence; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Duty; Beaudrie v. Henderson; In re Certified Question from the 14th Dist. Court of Appeals of TX; The Occupation Code (MCL 339.101 et seq.); Skilled trades; MCL 339.5101 et seq.; MCL 339.5737(1); MCL 339.601(4) & 602; Claire-Ann Co. v. Christenson & Christenson, Inc.; Good faith in bargaining & negotiating; Macomb Cnty. v AFSCME Council 25; Amendment of pleadings; PT Today, Inc. v. Commissioner of Office of Fin. & Ins. Servs.; Saffian v. Simmons; Amburgey v. Sauder; Futility; Wormsbacher v. Seaver Title Co.; Default judgment; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; MCR 2.603(D); Good cause; Brooks Williamson & Assoc., Inc. v. Mayflower Constr. Co.; Principle that a court speaks through its written orders; In re Contempt of Henry; Parties representing themselves; Baird v. Baird; Dismissal for failure to appear for trial; Zerillo v. Dyksterhouse; Attorney fees under the Michigan Construction Lien Act; MCL 570.1118(2); Sol Source, Inc. v. LPR Assoc. Ltd. P’ship
The court affirmed the grant of summary disposition for plaintiff-Meadowlark and the third-party defendants on defendant-Evans’ claims, but remanded the case to the trial court to articulate its reasons for denying Meadowlark’s motion for attorney fees under MCL 570.1118(2). Meadowlark, a licensed residential builder, filed a breach of contract and foreclosure of a construction lien action against Evans, claiming that she failed to pay it for home improvement materials and services it provided. Evans brought claims for, among other things, breach of an implied covenant of good faith and fair dealing that she alleged was imposed on the contract between her and Meadowlark. While she relied on the UCC, their contract was one for services and did “not fall under the auspices of the UCC.” The court also noted that it is “well-settled that, ‘[u]nlike some other jurisdictions, Michigan does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing.’” Therefore, where, as here, the claim “is for an implied covenant of good faith and fair dealing under the common law, rather than claim based upon the statutory directive in the UCC that ‘a contract or duty within this act imposes an obligation of good faith in its performance and enforcement,’ Michigan does not recognize such a claim.” Thus, the trial court properly dismissed this claim. She also raised a claim for breach of implied warranty, “indicating that in every service contract, there was an implied duty to perform the services ‘skillfully, carefully, diligently, and in a workmanlike manner.’” She contended that “Meadowlark and third-party defendants breached this implied warranty by employing an unlicensed electrician to perform services on her home and employed inexperienced insulation installers who did not perform the work properly and completely.” But because her contract with Meadowlark was one for services, she had “no actionable claim for breach of implied warranty for the alleged negligent performance of the service contract and the trial court properly dismissed this claim.”
Admission of evidence that defendant committed uncharged acts of sexual assault against the victim pursuant to MCL 768.27a; MCL 768.27a(1); People v. Buie (On Remand); People v. Duenaz; People v. Watkins; Admission of testimony from defendant’s estranged wife as to sexual behaviors exhibited by him during consensual sexual encounters; Relevance; MRE 402; People v. Roper; People v. Urban; People v. Yost; People v. King; Probative value; MRE 403; People v. Schaw; People v. Sharpe; Ineffective assistance of counsel; People v. Petri; Calling the victim’s school principal as a witness; People v. Trakhtenberg; People v. Vaughn; People v. Jackson (On Reconsideration); Trial strategy; People v. Davis; Eliciting testimony as to the victim’s character for truthfulness
The court held that the trial court did not abuse its discretion in allowing the prosecution to admit evidence that defendant committed uncharged acts of sexual assault against the victim pursuant to MCL 768.27a. It likewise held that the trial court did not abuse its discretion by admitting testimony from his estranged wife as to sexual behaviors exhibited by him during consensual sexual encounters. Also, he was not denied the effective assistance of counsel. He was convicted of two counts of CSC I. He challenged two of the trial court’s evidentiary decisions: (1) to allow the prosecution to introduce evidence as to other acts of sexual assault and (2) to allow evidence indicating that the minor victim had knowledge about defendant’s sexual habits. The trial court allowed the prosecution to introduce evidence of defendant’s other acts of CSC against the victim, including her testimony that he “sexually assaulted her via anal penetration ‘almost every day.’” Defendant argued that the trial court abused its discretion because the testimony was a narrative of sexual assaults for which he was never charged, and the trial court made no effort to weigh each incident individually. The testimony suggested that he “sexually assaulted the victim via anal penetration on a regular basis, and allowed the jury to ‘view the case’s facts in the larger context that the defendant’s background affords.’” Further, the evidence was relevant, pursuant to MCL 768.27a, because it directly addressed his propensity to commit CSC I against the victim. Applying the Watkins factors, it was “clear that the alleged uncharged acts were similar in nature to the charged acts, occurred within close temporal proximity to each other, and happened frequently.” Affirmed.
Motion to withdraw a plea; Requirement that a nolo contendere plea be voluntary & knowing; People v. Cole; MCR 6.302(A); Requirement that a defendant seeking to withdraw a plea after sentencing must show a defect in the plea-taking process; People v. Brown; Whether the plea bargain was illusory; People v. Williams; Whether it was tainted because defendant was led to believe a recording would be admitted at trial when the conversation was protected by attorney-client privilege; Necessity of an “element of confidentiality”; People v. Compeau; Waiver where defendant spoke to his attorney over a jail phone line he knew was monitored & recorded; Bassett v. State (IN); McWatters v. State (FL); United States v. Friedman (2d Cir.); Accuracy of the plea; Elements of armed robbery; Claim that the plea was based on an incorrectly calculated minimum guidelines range; People v. Smith; Effect of understandingly & voluntarily entering into a plea agreement to accept that specific sentence; People v. Wiley; Ineffective assistance of counsel; In re Oakland Cnty. Prosecutor; People v. Douglas; Factual predicate; People v. Putman; Claim that defendant was entitled to resentencing; People v. Billings
In an order, the court granted defendant’s motion for reconsideration and vacated its original opinion (see e-Journal # 69062 in the 11/29/18 edition). As in the original opinion, it held that the plea agreement was not illusory and that defendant did not identify any defect in the plea-taking process entitling him to withdraw his plea. It also found that he waived appellate review of his sentence, despite any errors in calculating the guidelines, because he agreed to the sentence imposed as part of the plea deal, and that he failed to show that his attorney was ineffective. It rejected his claim that he was entitled to resentencing because his sentence was not proportionate, as well as his additional claims as to coercion and accuracy related to his plea. He pled nolo contendere to armed robbery and felony-firearm. He was sentenced to 6 to 20 years for the armed robbery and a consecutive 2-year term for the felony-firearm. He argued that the trial court erred in denying his motion to withdraw his plea. As to his claim that his plea bargain was illusory, the court noted that in exchange for his plea, “the prosecution dismissed two of the charges against him, dismissed the habitual offender sentencing enhancement, and agreed that [he] would be sentenced to 6 to 20 years for the armed robbery conviction.” There also was no defect in the plea-taking process. “He testified that, before he signed the settlement offer, he discussed the terms of the agreement with his lawyer, that he understood the terms of the agreement, he was satisfied with his lawyer’s representation, and he understood the rights he was giving up by pleading.” In addition, he stated that he understood that he would serve 2 years for felony-firearm and 6 to 20 years for armed robbery. Thus, it was clear that his plea was knowing and voluntary. Further, the plea hearing testimony showed that he was not coerced, and the court held that there was sufficient evidence to establish the elements of armed robbery. He also claimed that “his plea bargain was tainted because he was led to believe that the recording of the phone call between him and his lawyer would be admitted at trial when” their conversations were protected by attorney-client privilege. The court held that he waived any claim of confidentiality where he “spoke to his lawyer over a jail phone line that he knew was monitored and recorded . . . .” Also, his attorney was not deficient for failing to discover the alleged illusory nature of the plea bargain where it was not illusory, or for failing to advise him that the recordings were inadmissible where “the conversations were not privileged.” Affirmed.
Sentencing; Plain error review; United States v. Vonner; Procedural reasonableness; Whether the district court adequately explained why it ordered the sentences to run consecutively rather than concurrently; 18 USC §§ 3584(a) & (b); United States v. Johnson; USSG § 7B1.3(f); United States v. Hall; United States v. Berry; Failure to respond to a one-sentence argument in defendant’s sentencing memorandum; Rita v. United States; United States v. Madden
The court held that defendant-King’s sentences for drug convictions and violations of a term of supervised release were procedurally reasonable where the district court adequately explained its reasons for ordering that his sentences run consecutively rather than concurrently. Although the district court could have sentenced King to 61 months in prison, it instead sentenced him to 36 months in prison—30 months for his drug convictions and a consecutive 6-month term on his conviction for violating the terms of his supervised release. King argued that his sentence was procedurally unreasonable because the district court failed to adequately explain why it ordered his sentences to run consecutively rather than concurrently. He was given an opportunity to object to consecutive sentencing at the hearing but did not do so. The court first held that the district court was not required to make an “explicit reference” to the applicable policy statement, § 7B1.3(f), where the record showed that the district court judge considered it. The policy statement provides that sentences for violations of supervised release “‘shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving . . . .’” This provision is not binding, but “the district court ‘must consider § 7B1.3(f) when it is applicable . . . .’” The court also concluded that the record did not show any error by the district court in the adequacy of its explanation for imposing a consecutive sentence. The record indicated that the “judge’s discussion of the length of King’s aggregate sentence was, permissibly, ‘intertwined’ with the determination that the terms of imprisonment should run consecutively.” Further, the court held that the district court did not err by failing to respond to King’s one-sentence argument in his sentencing memorandum about criminal history points where the argument was “‘raised only in passing.’” Affirmed.
Custody; Modification of a custody award; Phillips v. Jordan; Proper cause or a change of circumstances; Mitchell v. Mitchell; Vodvarka v. Grasmeyer; Deliberate & repeated obstruction of parenting time; McRoberts v. Ferguson; Statutory best interest factors; MCL 722.23; Eldred v. Ziny; Factors (c), (d), (f), (h), (j), & (k); Demski v. Petlick
Holding that the trial court’s finding that proper cause existed to justify a review of custody, and its findings on the challenged statutory best interest factors were not against the great weight of the evidence, the court affirmed the order granting plaintiff-father sole legal custody and primary physical custody of the parties’ child. The trial court relied heavily on McRoberts in determining that “deliberate and repeated obstruction of parenting time constitutes proper cause and change of circumstances to revisit a custody order.” It found that defendant-mother had engaged in such deliberate and repeated obstruction by failing to follow court orders and to permit plaintiff his court-ordered parenting time. The record was full of plaintiff’s complaints that defendant “refused to allow him his court-ordered parenting time with the child.” He submitted his complaints to the Friend of the Court, which in turn filed motions with the trial court seeking to hold defendant in contempt of court. The trial court held her in contempt of court on three separate occasions “for failing to follow court orders.” The only explanation she offered “was that she wanted to keep the child for her birthday or activities” that she planned with her family. The trial court specifically found at one point that defendant “was purposefully scheduling activities for the child during father’s parenting time.” Defendant also challenged the trial court’s findings on best interest factors (c), (d), (f), (h), (j), and (k). However, the court concluded that its findings that these factors favored plaintiff were not against the great weight of the evidence. Thus, the trial court did not err in determining that awarding custody of the child to plaintiff was in the child’s best interests.
Claim for personal protection insurance (PIP) benefits under the No-Fault Act (MCL 500.3101 et seq.); Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co.; MCL 500.3105(1); Kemp v. Farm Bureau Gen. Ins. Co. of MI; Parked vehicle exclusion; MCL 500.3106(1); Stewart v. Michigan; “Alighting from”; MCL 500.3106(1)(c); Frazier v. Allstate Ins. Co.; Whether plaintiff’s injuries were “closely related to the transportational function” of defendant’s bus; McKenzie v. Auto Club Ins. Ass’n; Incidental involvement of a motor vehicle; Morosini v. Citizens Ins. Co. of Am.; Causal connection; University Rehab. Alliance, Inc. v. Farm Bureau Gen. Ins. Co. of MI
Holding that plaintiff’s alleged injuries were not closely related to the transportational function of defendant-city’s bus, the court affirmed summary disposition for defendant in this action for PIP benefits under the No-Fault Act. She alleged that she was injured when one of defendant’s bus drivers (G) removed her from the bus. She contended that “her injuries were incurred while ‘alighting from’ the parked bus,” and thus fell under MCL 500.3106(1)(c). While the record was not entirely clear, it indicated G “physically removed plaintiff from the bus after plaintiff sprayed him with pepper spray, resulting in plaintiff being deposited somewhere outside the bus.” Although she asserted in the trial court that G “pushed her off the bus, plaintiff’s version of events given during her medical evaluations was that [he] carried her out of the bus, then threw her into either a cement planter or against a wall. Accepting either scenario, it appears that plaintiff incurred her injuries after being ejected from the bus, and when she was no longer relying on” it to support her body. But the court noted that the trial court did not rely on this factor in granting summary disposition. Instead, it determined that plaintiff did not show that her injury arose out of the ownership, operation, maintenance, or use of the parked vehicle as a motor vehicle. The court agreed. While the encounter between plaintiff and G began when she tried to board the bus, her injuries arose from G’s “assault. Even though the assault may have been ‘motivated by closely antecedent events that involved the use of the motor vehicle as a motor vehicle,’ the assault in this case, as in Morosini, was a separate occurrence. Plaintiff was not injured by her attempt to board” the bus. Likewise, the fact that the events triggering the exchange between them began in the parked bus and ended near it was only “incidental, fortuitous, or ‘but for.’” Thus, while “the bus was the backdrop of the assault, the connection in this case between plaintiff’s alleged injuries and the use of the bus as a motor vehicle was insufficient to impose liability under” the No-Fault Act.
Dismissal for lack of progress; MCR 2.502(B)(1); Vicencio v. Ramirez
The court held that the trial court did not err by granting defendant-restaurant and bar’s motion to dismiss for lack of progress. Plaintiff sued defendant alleging she was severely injured when she slipped on a rug she claimed defendant negligently maintained in the restaurant. The trial court granted defendant’s motion to adjourn the case evaluation, and later granted its motion to dismiss for lack of progress. On appeal, the court rejected plaintiff’s argument that the trial court abused its discretion by failing to consider alternative sanctions on the record before dismissing this case. “[T]he trial court considered that plaintiff had failed to comply with the trial court’s scheduling order, had failed to respond to defendant’s discovery requests, had failed to respond to defendant’s communications, and had failed to move forward in any way after filing the complaint until the eve of the hearing on the motion to dismiss.” Although it “could have addressed the Vicencio factors more fully on the record, under these circumstances, the trial court did not abuse its discretion in dismissing plaintiff’s complaint with prejudice.” Affirmed.
Younger abstention, Younger v. Harris; Whether plaintiffs’ claims were moot; County of Los Angeles v. Davis; Powell v. McCormack; Lawrence v. Blackwell; Weinstein v. Bradford; Speer v. City of OR; Younger analysis; New Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI); Sprint Commc’ns, Inc. v. Jacobs; Juidice v. Vail; Huffman v. Pursue, Ltd.; Pennzoil Co. v. Texaco Inc.; Shafizadeh v. Bowles (Unpub. 6th Cir.); Bodell v. McDonald (Unpub. 6th Cir.); Strand v. Dawson (Unpub. 10th Cir.); Application of the Middlesex factors; Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n; Moore v. Sims; Judicial disqualification; Caperton v. A.T. Massey Coal Co.; Dismissal with prejudice; Chalupowski v. Berry (Unpub. 1st Cir.); Maymo-Melendez v. Alvarez-Ramirez (1st Cir.); Caldwell v. Camp (8th Cir.); Semtek Int’l Inc. v. Lockheed Martin Corp.
The court affirmed the district court’s decision to abstain from hearing plaintiffs’ action to enjoin certain state judges from ruling on their medical malpractice claims based on Younger abstention. Plaintiffs filed affidavits of disqualification and a motion to recuse in state court, and then sued in federal court to enjoin the Ohio Chief Justice from ruling on their motion to disqualify the trial judge and to enjoin the trial judge from taking any action on their case based on their contention that both judges were biased. The Chief Justice denied their disqualification motion shortly after the district court ruled that Younger abstention applied. The court first agreed with plaintiffs that their claims were not moot under the mootness exception that permits “judicial review when ‘the challenged activity is capable of repetition, yet evading review.’” But it held that Younger abstention was appropriate in this case because “the ability of the courts of the State of Ohio to determine when recusal of a judge or justice is appropriate and to administer the recusal decision process in accordance with state law operates ‘uniquely in furtherance of the state courts’ ability to perform their judicial functions.’” It agreed with defendants that the third NOPSI category should not be precluded from applying when the state court has yet to issue an order. The court then reviewed the three-factor test in Middlesex and held that all three factors applied here. Plaintiffs conceded that the first two factors were met, and the court concluded that the state-court proceedings would give them an “adequate opportunity to raise their constitutional arguments.” Because plaintiffs’ claims fell under the third NOPSI category and also satisfied the Middlesex factors, the court held that it had “complied with the Younger doctrine as limited by Sprint.” However, it agreed with plaintiffs that the district court erred by dismissing their case with prejudice because “‘[a] dismissal based on Younger is without prejudice.’” Thus, the court ordered the district court to amend its judgment to reflect that the dismissal was without prejudice.
Interpretation of a written easement; Wiggins v. City of Burton; Principle that an easement is strictly confined to the purposes for which it was granted or reserved; Blackhawk Dev. Corp. v. Village of Dexter; An appurtenant easement; Schadewald v. Brule; Improper modification or extension of an easement; Soergel v. Preston
Holding that the language of the agreement (the Maintenance Agreement) creating the easement at issue unambiguously precluded plaintiffs’ desired use of the easement, the court affirmed the trial court’s order granting defendants summary disposition and limiting plaintiffs’ use. Plaintiffs own a home on Hadley Road and acquired a nearby property on Eisenbeiser Drive. Defendants also own property on Eisenbeiser Drive. After purchasing the Eisenbeiser Drive property, plaintiffs used the easement to access it from their home, “until defendants began erecting barriers to obstruct that use.” Plaintiffs sued, and the trial court prohibited them from using the easement in this manner. The only issue on appeal was the proper interpretation of the Maintenance Agreement. The court held that the trial court properly prohibited “plaintiffs’ access to Eisenbeiser Drive from their Hadley Road property,” and granted defendants permission to install “a fence or landscaping ‘on their own property, within the easement boundaries along the boundary between’” their property and the Hadley Road property. The parties’ rights to use this appurtenant easement were “not personal in nature, and exist only by virtue of owning benefitted parcels.” Further, as the trial court reasoned (and plaintiffs acknowledged), “the Maintenance Agreement explicitly states those parcels served by the easement, and does not include plaintiffs’ Hadley Road property. Thus, plaintiffs’ use of the easement to and from their Hadley Road property, even to access their benefitted property on Eisenbeiser Drive, is not permitted by the unambiguous terms of the Agreement, and to conclude otherwise would constitute an improper modification and extension of the easement.” The absence of any language in the Maintenance Agreement indicating that the Hadley Road property was to be served by the easement over Eisenbeiser Drive showed “that the parties who created the easement never intended that it benefit the owners of the Hadley Road property." Thus, the trial court did not err in precluding such a use.
Children’s best interests; In re White; In re Jones
After remand, the court held that there was no clear error in the trial court’s conclusion that it was in each child’s best interests to terminate respondent-mother’s parental rights. The court affirmed the trial court’s prior finding that there was a statutory basis to terminate the mother’s parental rights as to each of the children. However, it remanded for the trial court to make findings as to the children’s best interests. “On remand, the trial court reviewed the evidence with care and explicitly considered appropriate best-interest factors, including the existence and nature of the bond between respondent and each child, respondent’s parenting ability, her compliance with the treatment plan, quality of visitation, and the children’s need for permanency.” Affirmed.