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Alternative Dispute Resolution (1) Full Text Opinion This summary also appears under Family Law e-Journal #: 76931 Case: Zalewski v. Homant Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, M.J. Kelly, and Shapiro Issues: Divorce; Motion to vacate an arbitration award; MCR 3.602(J); The Domestic Relations Arbitration Act; An arbitrator exceeding his or her powers; MCL 600.5801(2)(c); Washington v Washington; Broad authority under the arbitration agreement to decide “post judgment of divorce issues”; The arbitrator’s authority to divide the parties’ personal property, award an “offset,” award money for repairs, & award attorney fees; The trial court’s authority to award attorney fees; MCR 1.109(E) Summary: Concluding that the arbitrator did not exceed her authority, the court held that the trial court did not err in denying defendant-ex-husband’s motion to vacate the arbitration award. But it vacated the order awarding plaintiff-ex-wife attorney fees under MCR 1.109(E) because the trial court did not make findings supporting that the motion to vacate the “award was filed ‘for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.]’” Thus, it affirmed the order denying the motion to vacate the arbitration award, vacated the order granting attorney fees, and remanded “for appropriate findings or so that the trial court can reconsider its decision to sanction defendant if” it deems it necessary. He argued that the arbitrator lacked the authority to consider whether he “failed to disclose certain debts relating to the real property that was awarded to plaintiff in the property settlement.” But the arbitration agreement here “broadly granted the arbitrator the authority to decide the ‘post judgment of divorce issues’ that were pending before the trial court, i.e., the issues presented in the parties’ motions to enforce the consent judgment. Plaintiff argued in her motion” that defendant had failed to disclose debt on the real property she was awarded. The arbitrator clearly “indicated that ‘[t]he issues to be addressed [in arbitration] were the issues raised in prior post Judgment motions[.]’” Thus, the court found no merit in defendant’s claim that the arbitrator exceeded her authority by violating the terms of the arbitration agreement. As to personal property, because he raised the issue of the division of household items in his post-judgment motion, the arbitrator had authority to consider it. The same was true as to the award to plaintiff for the cost of repairs she made to marital home’s HVAC unit, which she requested in her post-judgment motion. As to the arbitrator’s award of attorney fees to plaintiff, the “arbitration agreement broadly provided the arbitrator with authority to decide ‘[a]ll issues’ concerning ‘attorney fees.’” Full Text Opinion

Attorneys (1) Full Text Opinion This summary also appears under Debtor/Creditor e-Journal #: 76963 Case: Atty v. Levenson Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Stephens and Cameron; Concurring in part, Dissenting in part – K.F. Kelly Issues: Action by creditors to collect from a judgment debtor based on a fraudulent transfer of property under MCL 566.34; Motion by the court-appointed receiver/attorney seeking fees & costs related to the sale of the property; Appellate jurisdiction; MCR 7.203; Standing; Allstate Ins Co v Hayes; Whether the receiver was an “aggrieved party”; Federated Ins Co v Oakland Cnty Rd Comm’n; Role of a court-appointed receiver; Ypsilanti Fire Marshal v Kircher (On Reconsideration); A receiver’s right to compensation for their services & expenses; Cohen v Cohen; Principle that a receiver need not be an attorney; Scope of a receiver’s duties; Kurrasch v Kunze Realty Co Summary: The court held that appellant-court-appointed receiver/attorney lacked standing to challenge the distribution of proceeds after the sale of property, and that the trial court did not abuse its discretion by reducing his hours and his hourly rate. Plaintiff, the creditor in the underlying action, requested that a property conveyance among defendants-debtor and transferees be set aside as a fraudulent transfer. The trial court agreed and appointed appellant as a receiver to sell the property. Upon selling the property, appellant requested a little more than $20,000 in fees and costs. Finding his hourly rate “not reasonable,” the trial court reduced it, along with a reduction in total hours. It eventually awarded him a little over $13,000. On appeal, the court first found appellant was not the proper party to challenge the full distribution. Because he “is charged with being neutral and does not represent the interests of the individual creditors, [he] does not have an interest in how the proceeds are distributed to” the other parties. His “only interest in the trial court’s order is the amount of his own compensation . . . .” As such, he lacked “standing to challenge whether the trial court’s order distributing the remaining proceeds accurately” reflected other interests or “equitable or proportionate shares of the remaining proceeds.” The court next rejected appellant’s claim that the trial court erred by reducing his requested compensation rate and number of invoiced hours. He claimed the trial court erred because “the field of receivership is not listed as a field of practice in the 2017 Economics of Law Practice Attorney Income and Billing Rate Summary Report . . . ,” noting the rate of $195 an hour is not otherwise mentioned in the report. “Receivership is not, strictly speaking, the practice of law, and nonlegal professionals are frequently appointed by courts to serve as receivers. Therefore, the trial court did not abuse its discretion by determining that the rate charged in this case was not reasonable for receivership compensation, particularly where the receivership estate is not large, the receiver’s duties are not particularly complex, and the receiver’s primary duty is to sell a piece of real estate.” It also did not abuse its discretion by reducing his hours on the basis that some of the “services were excessive or duplicative and that some of the services were outside the scope of” his duties. Affirmed. Full Text Opinion

Criminal Law (3) Full Text Opinion e-Journal #: 76933 Case: People v. Hull Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cavanagh and Gadola; Concurrence - Shapiro Issues: Sufficiency of the evidence; Resisting & obstructing a police officer; Ineffective assistance of counsel; Failure to request a jury instruction as to the right to resist an unlawful arrest; Admission of allegedly irrelevant evidence; Questioning by the prosecutor Summary: The court held that there was sufficient evidence to convict both defendants of resisting and obstructing a police officer. Also, defendant-Brandi Hull was not denied the effective assistance of counsel by defense counsel’s failure to request a jury instruction as to the right to resist an unlawful arrest. Finally, defendant-Anthony Hull was not entitled to a new trial based on his claims the trial court abused its discretion. The case arose from the execution of an arrest warrant for Brandi. The court found that the evidence was sufficient for the jury to conclude that she engaged in conduct that hindered or obstructed Chief P from executing the arrest warrant and resisted P during his execution of the arrest warrant. Although she claimed that “she was not resisting or arguing with the police officers, but merely asking why she was being taken to jail, the police officers’ testimony established otherwise.” The court concluded it was apparent from the verdict that the jury believed she knowingly defied P’s “lawful execution of a valid arrest warrant by resisting and obstructing the arrest.” As to Anthony (Brandi’s husband), the evidence was sufficient that “he engaged in conduct that hindered or obstructed [P] in executing the arrest warrant.” Although he claimed he was merely defending Brandi from P’s “unlawful arrest, no such right was available during a lawful arrest.” The court found it was apparent from the verdict that the jury believed he “knowingly obstructed [P’s] lawful execution of a valid arrest warrant.” In addition, it rejected his claims that “the trial court abused its discretion by admitting irrelevant evidence, permitting the prosecutor to ask police officers for legal conclusions while precluding certain questions by his trial counsel, and permitting the prosecutor to pose argumentative questions.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 76928 Case: People v. Prince Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Markey, Shapiro, and Ronayne Krause Issues: Ineffective assistance of counsel; Failure to retain a computer forensic expert; Failure to impeach witnesses; MRE 609(a); Failure to call a witness; Failure to make futile objections; Admission of preliminary exam testimony; MRE 804(b)(1); “Unavailable” witness; MRE 804(a)(5); “Due diligence”; Right of confrontation; Similar motive to examine a witness at the prior proceeding; People v Farquharson; Admission of a preliminary hearing testimony transcript; People v Page; Prosecutorial misconduct; Vouching; Reference to a plea agreement Summary: The court rejected defendant’s ineffective assistance of counsel claims, concluding among other things that there was no indication testimony by a computer forensic expert would have aided the defense and that proposed impeachment of a witness would have been impermissible under MRE 609(a). It also held that the prosecution showed due diligence in trying to procure witness-W’s attendance at trial, and that admission of W’s preliminary exam testimony did not violate defendant’s right of confrontation. While the trial court erred in “failing to make a record of its ruling admitting” W’s preliminary exam testimony transcript into evidence, there was no error in providing it to the jury. Finally, defendant’s prosecutorial misconduct claims failed. He was convicted of first-degree felony murder and felony-firearm. He argued that an expert would have found “four corrupted and unplayable video files on [W’s] computer, and those files were crucial to the defense.” While he presented an affidavit from a forensic computer examiner, the court found that it clearly showed defendant’s argument was “speculative, and the corruption could be explained by a number of innocent misfortunes.” In addition, and importantly, there was “nothing to suggest any tampering of the videos actually played for the jury.” The court also noted there was “nothing to suggest that the corrupted videos might have been recoverable, nothing to suggest that any videos were deleted, and nothing to suggest that any potentially exonerating video evidence ever existed. Even if the corrupt videos had been edited, the editing was obviously unsuccessful, and it would not affect the reliability of the other surveillance videos that were admitted at trial, one of which showed defendant ransacking” the victim’s bedroom a short time after the murder. As to the admission of W’s preliminary exam testimony, the prosecution and police “engaged in extensive efforts to” procure W’s attendance at trial. Defendant essentially contended “they could have done more,” but this is not the standard. Further, apart from the fact defense counsel did not know about the corrupt video files at the time of the preliminary exam, counsel “had just as much interest in discrediting [W’s] reliability” at the preliminary exam as at trial. Nothing indicated those “files were of any significance, and [W] expressly denied altering the videos.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 76938 Case: United States v. Hall Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Gilman, Thapar, and Nalbandian Issues: Jury selection; Batson v Kentucky; Sentencing; Consideration of mitigating factors; United States v Johnson; Warrantless search of an automobile; California v Acevedo; Probable cause; United States v Brooks; Effect of a witness’s testimony as both an expert & a fact witness; Expert & lay opinion testimony; FRE 701 & 702; Comparing United States v Freeman & United States v Young; Testifying as to the ultimate issue; FRE 704; Authentication; FRE 901; Sufficiency of the evidence; Jackson v Virginia; FIP Summary: In an amended opinion (see e-Journal #76646 in the 1/04/2022 edition for the original opinion), the court again held that there were no errors requiring reversal and affirmed the convictions of defendants-Hall and Franklin. In the amended opinion, the court more completely explained its reasoning that there was sufficient evidence to convict Franklin of FIP. It held that a rational trier of fact could “find that Franklin possessed the firearm and ammunition. And because the firearm was loaded, illegally possessed, kept in the car’s console with the drugs, and retrievable by Franklin if necessary, a rational trier of fact could also find that the firearm was possessed in furtherance of the drug crime.” Full Text Opinion

Debtor/Creditor (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 76963 Case: Atty v. Levenson Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Stephens and Cameron; Concurring in part, Dissenting in part – K.F. Kelly Issues: Action by creditors to collect from a judgment debtor based on a fraudulent transfer of property under MCL 566.34; Motion by the court-appointed receiver/attorney seeking fees & costs related to the sale of the property; Appellate jurisdiction; MCR 7.203; Standing; Allstate Ins Co v Hayes; Whether the receiver was an “aggrieved party”; Federated Ins Co v Oakland Cnty Rd Comm’n; Role of a court-appointed receiver; Ypsilanti Fire Marshal v Kircher (On Reconsideration); A receiver’s right to compensation for their services & expenses; Cohen v Cohen; Principle that a receiver need not be an attorney; Scope of a receiver’s duties; Kurrasch v Kunze Realty Co Summary: The court held that appellant-court-appointed receiver/attorney lacked standing to challenge the distribution of proceeds after the sale of property, and that the trial court did not abuse its discretion by reducing his hours and his hourly rate. Plaintiff, the creditor in the underlying action, requested that a property conveyance among defendants-debtor and transferees be set aside as a fraudulent transfer. The trial court agreed and appointed appellant as a receiver to sell the property. Upon selling the property, appellant requested a little more than $20,000 in fees and costs. Finding his hourly rate “not reasonable,” the trial court reduced it, along with a reduction in total hours. It eventually awarded him a little over $13,000. On appeal, the court first found appellant was not the proper party to challenge the full distribution. Because he “is charged with being neutral and does not represent the interests of the individual creditors, [he] does not have an interest in how the proceeds are distributed to” the other parties. His “only interest in the trial court’s order is the amount of his own compensation . . . .” As such, he lacked “standing to challenge whether the trial court’s order distributing the remaining proceeds accurately” reflected other interests or “equitable or proportionate shares of the remaining proceeds.” The court next rejected appellant’s claim that the trial court erred by reducing his requested compensation rate and number of invoiced hours. He claimed the trial court erred because “the field of receivership is not listed as a field of practice in the 2017 Economics of Law Practice Attorney Income and Billing Rate Summary Report . . . ,” noting the rate of $195 an hour is not otherwise mentioned in the report. “Receivership is not, strictly speaking, the practice of law, and nonlegal professionals are frequently appointed by courts to serve as receivers. Therefore, the trial court did not abuse its discretion by determining that the rate charged in this case was not reasonable for receivership compensation, particularly where the receivership estate is not large, the receiver’s duties are not particularly complex, and the receiver’s primary duty is to sell a piece of real estate.” It also did not abuse its discretion by reducing his hours on the basis that some of the “services were excessive or duplicative and that some of the services were outside the scope of” his duties. Affirmed. Full Text Opinion

Family Law (1) Full Text Opinion This summary also appears under Alternative Dispute Resolution e-Journal #: 76931 Case: Zalewski v. Homant Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, M.J. Kelly, and Shapiro Issues: Divorce; Motion to vacate an arbitration award; MCR 3.602(J); The Domestic Relations Arbitration Act; An arbitrator exceeding his or her powers; MCL 600.5801(2)(c); Washington v Washington; Broad authority under the arbitration agreement to decide “post judgment of divorce issues”; The arbitrator’s authority to divide the parties’ personal property, award an “offset,” award money for repairs, & award attorney fees; The trial court’s authority to award attorney fees; MCR 1.109(E) Summary: Concluding that the arbitrator did not exceed her authority, the court held that the trial court did not err in denying defendant-ex-husband’s motion to vacate the arbitration award. But it vacated the order awarding plaintiff-ex-wife attorney fees under MCR 1.109(E) because the trial court did not make findings supporting that the motion to vacate the “award was filed ‘for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.]’” Thus, it affirmed the order denying the motion to vacate the arbitration award, vacated the order granting attorney fees, and remanded “for appropriate findings or so that the trial court can reconsider its decision to sanction defendant if” it deems it necessary. He argued that the arbitrator lacked the authority to consider whether he “failed to disclose certain debts relating to the real property that was awarded to plaintiff in the property settlement.” But the arbitration agreement here “broadly granted the arbitrator the authority to decide the ‘post judgment of divorce issues’ that were pending before the trial court, i.e., the issues presented in the parties’ motions to enforce the consent judgment. Plaintiff argued in her motion” that defendant had failed to disclose debt on the real property she was awarded. The arbitrator clearly “indicated that ‘[t]he issues to be addressed [in arbitration] were the issues raised in prior post Judgment motions[.]’” Thus, the court found no merit in defendant’s claim that the arbitrator exceeded her authority by violating the terms of the arbitration agreement. As to personal property, because he raised the issue of the division of household items in his post-judgment motion, the arbitrator had authority to consider it. The same was true as to the award to plaintiff for the cost of repairs she made to marital home’s HVAC unit, which she requested in her post-judgment motion. As to the arbitrator’s award of attorney fees to plaintiff, the “arbitration agreement broadly provided the arbitrator with authority to decide ‘[a]ll issues’ concerning ‘attorney fees.’” Full Text Opinion

Negligence & Intentional Tort (2) Full Text Opinion e-Journal #: 76936 Case: Lloyd v. Millbrook Apts. LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Swartzle, and Cameron Issues: Action by a tenant for a slip & fall on black ice on an apartment complex sidewalk; MCL 554.139(1)(a) & (b); Whether the sidewalk was fit for its intended use & was in reasonable repair; Premises liability; Open & obvious doctrine; “Special aspect” Summary: The court held that the evidence indicated the patch of black ice upon which plaintiff-tenant “slipped created only an inconvenience of access to the sidewalk but did not render the sidewalk unfit for its intended purpose.” Also, the duty to repair “premises” under MCL 554.139(1)(b) did not apply to the sidewalk. Finally, because there was no genuine issue of material fact as to whether the black ice was open or obvious, the trial court did not err by granting defendants summary disposition of her premises liability claim. She argued that “on the day she fell, defendants did not keep the sidewalk fit for its intended purpose because they failed to salt it, resulting in plaintiff falling on black ice.” The record supported “the trial court’s finding that the sidewalk was a common area under MCL 554.139(1)(a), and that the intended use of the sidewalk was to walk on it to access other areas.” Thus, defendants “had a duty to ensure that the sidewalk was fit for that intended purpose.” But the evidence did not establish a genuine issue of material fact as to whether it was fit for its intended purpose. The record indicated that “the sidewalk was not completely covered with ice, and in fact the photographs show little or no accumulation of ice or snow in the area where” she fell. She testified that “she was able to walk from the apartment exit down one sidewalk before turning down another sidewalk and that she never saw any ice or snow on the sidewalk before she fell. Defendants presented evidence that the sidewalk had been salted the morning that plaintiff fell and a photograph shows salt on the sidewalk near the area of the fall.” The court held that the trial court properly granted defendants summary disposition of plaintiff’s claim that they violated MCL 554.139(1)(a). Further, the term premises as used in MCL 554.139(1)(b) “does not include common areas, . . . and does not apply to keeping property free from snow and ice accumulation.” As to her premises liability claim, there were “significant indicia that imputed knowledge such that it is reasonable to expect that an average person in plaintiff’s position would have foreseen the danger, including plaintiff’s observation of snow on the grass, [her] substantial familiarity over 45 years with Michigan winters and black ice, [her] testimony that she walked carefully down the sidewalk that morning as a result of the icy conditions, and the apparent presence of salt in the area near where” she fell. Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 76932 Case: Ramic v. Bullock Enters., LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cavanagh and Gadola; Dissent - Shapiro Issues: Trip & fall on stairs; Claim under MCL 554.139; Whether defendant was a lessor; MCL 554.139(1); Allison v AEW Capital Mgmt, LLP; Distinguishing between negligence & premises liability; Buhalis v Trinity Continuing Care Servs; Common-law negligence; Composto v Albrecht; Premises liability; Goodwin v Northwest MI Fair Ass’n; Duty; Hoffner v Lanctoe; Invitee status; Stitt v Holland Abundant Life Fellowship; Breach; Lowrey v LMPS & LMPJ, Inc; Open & obvious danger; Lugo v Ameritech Corp, Inc; Special aspects; Estate of Trueblood v P&G Apts, LLC; Inadequate lighting; Singerman v Municipal Serv Bureau, Inc Summary: The court held that the trial court erred by denying defendant-condo association’s motion for summary disposition of plaintiff’s claim under MCL 554.139, as well as her premises liability claim. Plaintiff sued defendant for injuries she sustained when she tripped and fell on a dark stairway as she was retrieving her mail. On appeal, the court agreed with defendant that the trial court erred by denying its motion for summary disposition of plaintiff’s statutory claim, noting there was no evidence that defendant leased either the unit or the common areas to plaintiff. Because defendant “is not a lessor, MCL 554.139 does not impose any duty upon” it. The court also agreed with defendant that the trial court erred by denying its motion for summary disposition of plaintiff’s negligence claim. First, because plaintiff’s claim was based on defendant’s “duty as the possessor of the building in which she fell,” it was a claim of premises liability, not negligence. Second, because “an average person would perceive the potential danger of traversing a darkened stairway; that same average person, if concerned that a trespasser was lurking downstairs, would be unlikely to forgo a lighted stairway and instead venture down a darkened stairway at night for the purpose of retrieving one’s mail.” As such, the open and obvious condition was not unavoidable, and the trial court “erred by determining that an issue of fact existed regarding the open and obvious nature of the darkness.” Reversed and remanded for entry of summary disposition in defendant’s favor. Full Text Opinion

Termination of Parental Rights (1) Full Text Opinion e-Journal #: 76995 Case: In re Bourbeau Court: Michigan Supreme Court ( Order ) Judges: McCormack, Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch Issues: Ineffective assistance of counsel Summary: In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 76346 in the 10/22/21 edition) and remanded the case to the Court of Appeals for a new appeal. It held that the record showed respondent-father’s “counsel provided ineffective assistance by failing to cite to the record to support the claims being asserted, citing incorrect legal standards in support of those claims, and failing to raise potentially meritorious claims.” The Court of Appeals noted in its opinion that respondent’s brief “made numerous cursory assertions with no argument or citations to the record, and abandoned claims raised in the trial court. A right to counsel necessarily includes the right to competent counsel.” The court concluded that because “respondent did not receive competent appellate counsel” he was entitled to a new appeal. It instructed the Court of Appeals to remand the case to the trial court, while retaining jurisdiction, with directions to appoint a new attorney to represent respondent in the Court of Appeals. Full Text Opinion