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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary


Cases appear under the following practice areas:

  • Alternative Dispute Resolution (1)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 77065
    Case: TBI Sols., LLC v. Gall
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Murray, and Shapiro
    Issues:

    Confirmation of an arbitration award; Res judicata; Collateral estoppel; Scope of the trial court’s decision on the motion to stay proceedings; The Uniform Arbitration Act; MCL 691.1686; Attorney fees & costs

    Summary:

    Concluding that collateral estoppel, not res judicata, was relevant here, the court held that the arbitrator correctly determined collateral estoppel barred defendant from relitigating the issue of whether he was bound by the whole unsigned employment contract. The arbitrator further found in the final award that the evidence presented at the arbitration hearings supported that he was bound by it. Finally, even if the court were to agree with defendant, this would not provide a ground for modifying the award of attorney fees and costs, the only aspect of the arbitration award he challenged on appeal. After he resigned, plaintiff-former employer filed a demand for arbitration and defendant “brought an action to permanently stay the arbitration proceedings.” He asserted he could not be bound by the arbitration provision because he never signed the contract. But the trial court concluded that he “had assented to the terms of the employment agreement by his continued employment with plaintiff.” Thus, it held that they “had entered into a binding arbitration agreement and dismissed defendant’s action.” He argued in the arbitration proceedings that because he did not sign the “contract he could not be bound by the substantive terms that plaintiff asserted he violated.” The arbitrator rejected this argument and determined that res judicata and collateral estoppel barred him from relitigating the existence of an employment contract. The court noted that, “in a typical case, the trial court would have decided only whether an arbitration agreement existed, not whether the larger contract was enforceable.” But defendant argued in the trial court “that the contract, as a whole, was not enforceable because he did not sign” it or otherwise agree to its terms. Thus, his contention “there was not an agreement to arbitrate necessarily required the trial court to determine whether the contract, as a whole, was binding.” A ruling by the arbitrator that the employment contract “was not enforceable would have been inconsistent with the basis for the trial court’s ruling that the arbitration provision was enforceable.” The court also noted he did not argue that the trial court erred in ruling “there was an enforceable arbitration provision, which mandated an award of attorney fees and costs to the prevailing party.” Defendant failed to “explain why the arbitrator should not have applied the attorney fee provision.” Affirmed.

    Full Text Opinion

  • Attorneys (2)

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 77070
    Case: People v. Roath
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, M.J. Kelly, and Redford
    Issues:

    Motion to disqualify the Office of the Prosecuting Attorney (OPA); People v Mayhew; Conflict of interest rule; Necessary witness; People v Tesen; Inapplicability of Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, & 3.7(b); MCPC 3.7(a); Motion for reconsideration

    Summary:

    The court held that no conflict of interest existed and thus, the trial court should not have disqualified the entire OPA. The issue concerned whether the county’s elected prosecuting attorney (P), “who might be called to serve as a rebuttal witness, has a conflict of interest that requires disqualification of the entire OPA from” the case. The trial court “made no factual findings and did not apply any legal standards when it decided to disqualify the entire OPA. Instead, it relied on avoiding an appearance of impropriety or unfairness. In doing so, the trial court clearly erred and reached the wrong conclusion.” The court held that MRPC 1.7, 1.9, and 3.7(b) did not apply. This left “MCPC 3.7(a), which provides that, except in circumstances not found in this case, ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.’” To the extent that P “would be called as a witness at defendant’s trial, her testimony would only serve as rebuttal testimony in regard to a challenge to” Deputy C’s credibility. P was “not a necessary witness because two persons other than [P] were involved in the follow-up conversation with defendant’s mother. Either person could be called to testify” about the facts of that conversation, which confirmed an attorney for defendant “instructed her not to answer [Deputy C’s] questions which in turn confirmed [Deputy C’s] recitation of the facts of the interview” included in his supplemental report. Defendant did not argue that P “has special skills or special knowledge of the relevant potential rebuttal testimony that the other participants in the conversation” did not. Thus, P was “not a necessary witness because the substance of her testimony can be elicited from other witnesses.” As a result, defendant could not meet his burden to establish a ground for disqualifying P or the entire OPA, and the trial court erred when it did so. It “incorrectly decided the matter on the ground of an appearance of impropriety.” Close analysis revealed that the appearance of impropriety ethics standard appeared “to have been founded on the existence of a conflict of interest.” Defendant failed to establish that a conflict of interest existed for P, or an assistant prosecutor, “or any other OPA lawyers. Mayhew structures the crucial consideration as an ‘if-then’ proposition that requires first the determination that a conflict of interest exists for the prosecuting attorney with supervisory authority of the attorneys in the office before deciding that recusal of the entire office is necessary[.]” Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Alternative Dispute Resolution

    e-Journal #: 77065
    Case: TBI Sols., LLC v. Gall
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Murray, and Shapiro
    Issues:

    Confirmation of an arbitration award; Res judicata; Collateral estoppel; Scope of the trial court’s decision on the motion to stay proceedings; The Uniform Arbitration Act; MCL 691.1686; Attorney fees & costs

    Summary:

    Concluding that collateral estoppel, not res judicata, was relevant here, the court held that the arbitrator correctly determined collateral estoppel barred defendant from relitigating the issue of whether he was bound by the whole unsigned employment contract. The arbitrator further found in the final award that the evidence presented at the arbitration hearings supported that he was bound by it. Finally, even if the court were to agree with defendant, this would not provide a ground for modifying the award of attorney fees and costs, the only aspect of the arbitration award he challenged on appeal. After he resigned, plaintiff-former employer filed a demand for arbitration and defendant “brought an action to permanently stay the arbitration proceedings.” He asserted he could not be bound by the arbitration provision because he never signed the contract. But the trial court concluded that he “had assented to the terms of the employment agreement by his continued employment with plaintiff.” Thus, it held that they “had entered into a binding arbitration agreement and dismissed defendant’s action.” He argued in the arbitration proceedings that because he did not sign the “contract he could not be bound by the substantive terms that plaintiff asserted he violated.” The arbitrator rejected this argument and determined that res judicata and collateral estoppel barred him from relitigating the existence of an employment contract. The court noted that, “in a typical case, the trial court would have decided only whether an arbitration agreement existed, not whether the larger contract was enforceable.” But defendant argued in the trial court “that the contract, as a whole, was not enforceable because he did not sign” it or otherwise agree to its terms. Thus, his contention “there was not an agreement to arbitrate necessarily required the trial court to determine whether the contract, as a whole, was binding.” A ruling by the arbitrator that the employment contract “was not enforceable would have been inconsistent with the basis for the trial court’s ruling that the arbitration provision was enforceable.” The court also noted he did not argue that the trial court erred in ruling “there was an enforceable arbitration provision, which mandated an award of attorney fees and costs to the prevailing party.” Defendant failed to “explain why the arbitrator should not have applied the attorney fee provision.” Affirmed.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 77055
    Case: Hooper Hathaway, PC v. Atlas Tech., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Servitto, and Letica
    Issues:

    Account stated; Breach of contract; Apparent authority of an agent to bind a principal; Whether conduct created an implied-in-fact contract; Whether witness immunity barred a counterclaim for accounting malpractice; Whether summary disposition was premature without further discovery; “Frivolous” counterclaim; Kohn Financial Consulting, LLC (KFC); Productivity Technologies Corporation (PTC)

    Summary:

    The court held that intervening plaintiff-KFC was properly granted summary disposition of its account stated claim. Also, defendant-Atlas’s Vice President of Finance (nonparty-N) had actual authority to bind defendants to the contract with KFC, and the trial court did not err by holding that the parties’ conduct created an implied-in-fact contract. Further, it did not err by dismissing defendants’ accounting malpractice counterclaim on the ground that KFC’s principal and his work product were subject to the protection of witness immunity. Summary disposition was not premature, and the trial court did not clearly err by ruling that defendants’ counterclaim against KFC was frivolous. The case arose from “defendants’ alleged failure to pay KFC for professional services rendered in relation to federal lawsuits filed by defendants against their former manager and director.” Atlas is the sole asset of defendant-PTC, a holding company. The court concluded that because “defendants received multiple invoices from KFC showing a balance owing, yet failed to object to any of them, defendants may be considered to have admitted the correctness of the amount owed, and KFC was justified in treating the balance owing as an account stated.” As to KFC’s breach of contract claim, evidence supported the trial court’s determination that N “had actual authority, or apparent authority at a minimum, to engage KFC on defendants’ behalf.” The court further held that “an implied-in-fact contract arose between defendants and KFC that obligated KFC to provide accounting services to defendants and defendants to pay for the services provided. KFC provided those services, as is evinced by its invoices, detailed time logs, and work product, and defendants paid for only part of the services received, causing KFC to suffer damages in the amount of the unpaid balance.” The court also concluded that defendants’ counterclaim rested “entirely on deficiencies in the expert report KFC created to prepare for its own expert testimony in the federal court. Witness immunity includes not just witness testimony, but ‘necessarily extends to any other materials or evidence prepared by the witness for the intended benefit of the court.’” Affirmed.

    Full Text Opinion

  • Criminal Law (1)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 77070
    Case: People v. Roath
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, M.J. Kelly, and Redford
    Issues:

    Motion to disqualify the Office of the Prosecuting Attorney (OPA); People v Mayhew; Conflict of interest rule; Necessary witness; People v Tesen; Inapplicability of Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, & 3.7(b); MCPC 3.7(a); Motion for reconsideration

    Summary:

    The court held that no conflict of interest existed and thus, the trial court should not have disqualified the entire OPA. The issue concerned whether the county’s elected prosecuting attorney (P), “who might be called to serve as a rebuttal witness, has a conflict of interest that requires disqualification of the entire OPA from” the case. The trial court “made no factual findings and did not apply any legal standards when it decided to disqualify the entire OPA. Instead, it relied on avoiding an appearance of impropriety or unfairness. In doing so, the trial court clearly erred and reached the wrong conclusion.” The court held that MRPC 1.7, 1.9, and 3.7(b) did not apply. This left “MCPC 3.7(a), which provides that, except in circumstances not found in this case, ‘[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.’” To the extent that P “would be called as a witness at defendant’s trial, her testimony would only serve as rebuttal testimony in regard to a challenge to” Deputy C’s credibility. P was “not a necessary witness because two persons other than [P] were involved in the follow-up conversation with defendant’s mother. Either person could be called to testify” about the facts of that conversation, which confirmed an attorney for defendant “instructed her not to answer [Deputy C’s] questions which in turn confirmed [Deputy C’s] recitation of the facts of the interview” included in his supplemental report. Defendant did not argue that P “has special skills or special knowledge of the relevant potential rebuttal testimony that the other participants in the conversation” did not. Thus, P was “not a necessary witness because the substance of her testimony can be elicited from other witnesses.” As a result, defendant could not meet his burden to establish a ground for disqualifying P or the entire OPA, and the trial court erred when it did so. It “incorrectly decided the matter on the ground of an appearance of impropriety.” Close analysis revealed that the appearance of impropriety ethics standard appeared “to have been founded on the existence of a conflict of interest.” Defendant failed to establish that a conflict of interest existed for P, or an assistant prosecutor, “or any other OPA lawyers. Mayhew structures the crucial consideration as an ‘if-then’ proposition that requires first the determination that a conflict of interest exists for the prosecuting attorney with supervisory authority of the attorneys in the office before deciding that recusal of the entire office is necessary[.]” Reversed and remanded.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 77071
    Case: Shamion v. Skalitsky
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Jansen, and Riordan
    Issues:

    Parenting time; Whether the parenting-time order modified the established custodial environment (ECE); Marik v Marik; Legal custody; Adequacy of the trial court’s factual findings

    Summary:

    Rejecting defendant-father’s claims that the parenting-time order modified the child’s (H) ECE and deprived him of legal custody, and concluding that the trial court’s factual findings were not against the great weight of the evidence and were adequate to support the order, the court affirmed. When the parties divorced, plaintiff-mother received primary physical custody of H and the parties had joint legal custody. There was no formal custody order. Defendant generally exercised two nights of parenting time a week. When H reached school age, “defendant filed a motion in the trial court seeking three weekends a month and week on, week off parenting time in the summer. The court ordered that defendant would have parenting time every other weekend from Friday night until Sunday night and the parties would split custody equally during the summer, and” it implemented a stipulated expanded holiday schedule. Reviewing his ECE modification argument for plain error, the court noted that before the custody order, H was with plaintiff apart from the two nights a week defendant had custody. “That, for the most part, continues to be the dynamic.” While he cited cases where “the parties initially had 50/50 custody,” he never had close to the amount of parenting time that plaintiff had. Their roles in H’s “life remain essentially the same, and there was not a significant reduction in the total amount of parenting time that defendant received” considering the holiday and summer schedule. As to legal custody, nothing in the record supported his claim he was “stripped in any way of decision-making authority” as to H. His assertion that the schedule gave him fewer opportunities to assist her in her education “conflated legal custody and physical custody.” Finally, the trial court “was not required to consider the custody factors because the order did not modify the” ECE, and its failure “to consider the parenting-time factors does not warrant reversal because ‘it was clear from the trial court’s statements on the record that’” it considered H’s best interests in modifying parenting time.

    Full Text Opinion

  • Freedom of Information Act (1)

    Full Text Opinion

    This summary also appears under School Law

    e-Journal #: 77072
    Case: Metcalf v. Grand Ledge Pub. Schs.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cavanagh, Jansen, and Riordan
    Issues:

    Action under the Freedom of Information Act (FOIA); MCL 15.231(2); Amberg v Dearborn; Timeliness of response; MCL 15.235(2); Fees; MCL 15.234(1); Buckmaster v Department of State; Notice of denial; MCL 15.235(5); Exemptions under MCL 15.235(5)(a) (the record was exempt from disclosure), MCL 15.235(5)(b) (the record did not exist), & MCL 15.235(5)(c) (certain information from the public record was separated or deleted); Costs; Good-faith deposit; MCL 15.234(8); Requirement of a deposit of up to 100% of the estimated fee before a full public record search; MCL 15.234(11); Disclosure of internal union communications; Howell Educ Ass’n, MEA/NEA v Howell Bd of Educ; Attorney fees; Prevailing party; MCL 15.240(6); Local Area Watch v Grand Rapids

    Summary:

    Holding that defendants-school district and board members violated FOIA as to some of plaintiff-former superintendent’s FOIA requests, and that plaintiff prevailed in part, the court affirmed in part, reversed in part, vacated in part, and remanded. In the underlying case, plaintiff was terminated from his position as superintendent of the district for a post he made on Facebook regarding the circumstances surrounding George Floyd’s death. In this case, he sued defendants for their handling of multiple FOIA requests he made in preparation for his disciplinary hearing. The trial court granted, in part, defendants’ motion for summary disposition. On appeal, the court agreed with plaintiff that the district’s response to “request 8” was insufficient, noting its FOIA coordinator “did not state that ‘the public record, or portion of that public record, [was] exempt from disclosure,’ that the public record did not exist, or that certain information from the public record was separated or deleted.” It also agreed with plaintiff that there was a genuine issue of material fact as to whether defendants’ estimates of 30 days and 35 days to fulfill some of his requests complied with MCL 15.234(8), and disagreed with defendants that the trial court erred by finding they violated MCL 15.234(11) by requiring plaintiff to pay the full costs of fulfilling the requests before releasing the responsive records. “[G]iven that the district estimated a total of 98 labor hours for the seven June 2020 requests, reasonable minds could differ as to whether 30 days was a ‘best efforts estimate’ for fulfilling the requests.” And defendants violated FOIA “by requiring plaintiff to pay the full amount of estimated fees rather than only a 50% deposit before releasing responsive records.” The court next agreed with plaintiff that the trial court should have ordered defendants to produce texts and e-mails sent between board members along with communications between local elected officials and the board or staff at the district concerning plaintiff, but disagreed with his remaining arguments regarding other, unproduced documents, including that the trial court should have ordered defendants to produce records pertaining to the vote of no confidence. Finally, it agreed with plaintiff that the trial court erred by concluding he was not a prevailing party for purposes of attorney fees. “Because the trial court should have concluded that plaintiff was entitled to receive some, but not all, of the remaining unproduced documents, plaintiff has prevailed in part.”

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 77055
    Case: Hooper Hathaway, PC v. Atlas Tech., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Servitto, and Letica
    Issues:

    Account stated; Breach of contract; Apparent authority of an agent to bind a principal; Whether conduct created an implied-in-fact contract; Whether witness immunity barred a counterclaim for accounting malpractice; Whether summary disposition was premature without further discovery; “Frivolous” counterclaim; Kohn Financial Consulting, LLC (KFC); Productivity Technologies Corporation (PTC)

    Summary:

    The court held that intervening plaintiff-KFC was properly granted summary disposition of its account stated claim. Also, defendant-Atlas’s Vice President of Finance (nonparty-N) had actual authority to bind defendants to the contract with KFC, and the trial court did not err by holding that the parties’ conduct created an implied-in-fact contract. Further, it did not err by dismissing defendants’ accounting malpractice counterclaim on the ground that KFC’s principal and his work product were subject to the protection of witness immunity. Summary disposition was not premature, and the trial court did not clearly err by ruling that defendants’ counterclaim against KFC was frivolous. The case arose from “defendants’ alleged failure to pay KFC for professional services rendered in relation to federal lawsuits filed by defendants against their former manager and director.” Atlas is the sole asset of defendant-PTC, a holding company. The court concluded that because “defendants received multiple invoices from KFC showing a balance owing, yet failed to object to any of them, defendants may be considered to have admitted the correctness of the amount owed, and KFC was justified in treating the balance owing as an account stated.” As to KFC’s breach of contract claim, evidence supported the trial court’s determination that N “had actual authority, or apparent authority at a minimum, to engage KFC on defendants’ behalf.” The court further held that “an implied-in-fact contract arose between defendants and KFC that obligated KFC to provide accounting services to defendants and defendants to pay for the services provided. KFC provided those services, as is evinced by its invoices, detailed time logs, and work product, and defendants paid for only part of the services received, causing KFC to suffer damages in the amount of the unpaid balance.” The court also concluded that defendants’ counterclaim rested “entirely on deficiencies in the expert report KFC created to prepare for its own expert testimony in the federal court. Witness immunity includes not just witness testimony, but ‘necessarily extends to any other materials or evidence prepared by the witness for the intended benefit of the court.’” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 77054
    Case: WG Enters., LLC v. US Bank Trust, NA
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Boonstra, Ronayne Krause, and Cameron
    Issues:

    Quiet title action; Joinder of a party; MCL 600.2932; MCR 2.207; MCR 2.205(A); Distinguishing Hofmann v Auto Club Ins Ass’n; Effect of a quitclaim deed; Peters v Cartier; Reinstatement of a mortgage; Invalid discharge of a mortgage; Plasger v Leonard; Ferguson v Glassford; “Race-notice” recording of a mortgage; MCL 565.29; Bona fide purchaser; Foreclosure by advertisement; MCL 600.3204; Slander of title; MCL 565.108; Malice

    Summary:

    The court held that the trial court did not err by quieting title to the property at issue in favor of plaintiffs-previous owner (Gifford) and current owner (his company, WG Enterprises) and ordering that the assignment of the prior mortgage to defendant-bank, the rescission of the discharge of that mortgage, and the sheriff’s deed after foreclosure were to be rescinded and removed from the chain of title. But it found the trial court erred by granting plaintiffs summary disposition on their slander of title claim. Without plaintiffs’ knowledge, defendant foreclosed on the property and it was sold at a sheriff’s sale. Plaintiffs sued to quiet title and for slander of title. Defendant counterclaimed for declaratory relief. The trial court granted plaintiffs summary disposition, denied defendant summary disposition, and dismissed the counterclaim. It ordered that title to the property be quieted against defendant and in plaintiffs’ favor “in ‘fee simple absolute,’ and that the recorded ‘rescission of release of mortgage,’ the assignment of the mortgage, and the sheriff’s deed after foreclosure were all ‘rescinded and removed from the chain of title.’” It also awarded plaintiffs damages for slander of title. The court found that the trial court did not err by sua sponte deciding to add Gifford as a party, noting his addition “was intended to facilitate the court’s analysis and ultimate resolution of the competing property interests at stake.” As a practical matter, he “clearly had an interest in the property through” his company, even if that interest was legally indirect. The court also rejected defendant’s claim that the trial court erred by finding plaintiffs were bona fide purchasers for value, and thus, defendant “was not entitled to rescind the discharge of the mortgage from the previous property owner and thereby reinstate the prior mortgage interest in” the property. “Gifford was a bona fide purchaser and had valid title to convey, and therefore WG Enterprises acquired all of” his interest in the property, which was superior to defendant’s asserted interest. As to setting aside the foreclosure by advertisement, the mortgage “had been discharged and it could not be reinstated against Gifford, a bona fide purchaser for value.” Because defendant “did not hold a valid mortgage interest in the property, it could not foreclose on the mortgage by advertisement . . . .” But as to the slander of title claim, the evidence did not show defendant “acted with the intention or desire to injure WG Enterprises, or that the documents were knowingly filed with the intention to cause” it injury. Affirmed in part, reversed in part, vacated in part, and remanded.

    Full Text Opinion

  • Probate (1)

    Full Text Opinion

    This summary also appears under Wills & Trusts

    e-Journal #: 77060
    Case: In re Jaye Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Servitto, and Letica
    Issues:

    Termination of a trust under the Estates & Protected Individuals Code (EPIC); MCL 700.7412; Notice; MCL 700.7411(3); Removal of trustee; MCL 700.7706(1) & (2); Judicial disqualification; MCR 2.003(C)(1); Cain v Department of Corrs

    Summary:

    The court held that the probate court erred by dissolving the settlor’s (Elaine) trust because notice was lacking and it failed to further Elaine’s “plainly stated intent.” It also held that the probate court erred by removing the original court-appointed independent trustee (appellant-Gallagher). But it declined to disqualify the probate judge. Two of Elaine’s children engaged in extensive litigation involving the trust and attorney fees related to the management of trust property. After several years, the probate court dissolved the trust, removed Gallagher as trustee, and ordered all trust assets to a conservator/successor trustee for the purpose of winding up the trust, distributing funds as necessary for Elaine’s care, and maintaining the trust assets. The court found that the probate court’s “dissolution” of the trust violated EPIC’s plain language. It “provided no notice to any of the parties identified in MCL 700.7411(3) before terminating Elaine’s trust on its own motion.” In addition, it “failed to comply with MCL 700.7412(2)’s requirement that the trust’s termination ‘will further the settlor’s stated purpose, or if there is no stated purpose, the settlor’s probable intention.’” Elaine was left “intestate. She is not competent to execute a new will and her wishes cannot be effectuated.” The court next found that the probate court did not identify any viable basis for its decision to remove Gallagher as trustee. Instead, it “specifically indicated that it had not found that Gallagher acted improperly. [It] may have believed that Gallagher had been pushed around by the competing parties and that a change would serve Elaine’s best interests. However, [it] made no record finding to that effect.” As such, on remand, if it decides to relieve him “of his post, [it] must refer to MCL 700.7706(2) and support its ruling.” Finally, the court declined to disqualify the trial judge, noting it did not believe his comments “revealed an inability to fairly judge and control the proceedings on remand. With a bit of verbal caution, we are confident that [the judge’s] resolve will fairly and equitably direct this action to completion while protecting Elaine’s interests. Assigning a new judge at this late date would require expending even more attorney fees so that the parties could educate the bench on the lengthy history of this case and the issues remaining. That delay and expense would benefit no one.” Reversed and remanded.

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 77054
    Case: WG Enters., LLC v. US Bank Trust, NA
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Boonstra, Ronayne Krause, and Cameron
    Issues:

    Quiet title action; Joinder of a party; MCL 600.2932; MCR 2.207; MCR 2.205(A); Distinguishing Hofmann v Auto Club Ins Ass’n; Effect of a quitclaim deed; Peters v Cartier; Reinstatement of a mortgage; Invalid discharge of a mortgage; Plasger v Leonard; Ferguson v Glassford; “Race-notice” recording of a mortgage; MCL 565.29; Bona fide purchaser; Foreclosure by advertisement; MCL 600.3204; Slander of title; MCL 565.108; Malice

    Summary:

    The court held that the trial court did not err by quieting title to the property at issue in favor of plaintiffs-previous owner (Gifford) and current owner (his company, WG Enterprises) and ordering that the assignment of the prior mortgage to defendant-bank, the rescission of the discharge of that mortgage, and the sheriff’s deed after foreclosure were to be rescinded and removed from the chain of title. But it found the trial court erred by granting plaintiffs summary disposition on their slander of title claim. Without plaintiffs’ knowledge, defendant foreclosed on the property and it was sold at a sheriff’s sale. Plaintiffs sued to quiet title and for slander of title. Defendant counterclaimed for declaratory relief. The trial court granted plaintiffs summary disposition, denied defendant summary disposition, and dismissed the counterclaim. It ordered that title to the property be quieted against defendant and in plaintiffs’ favor “in ‘fee simple absolute,’ and that the recorded ‘rescission of release of mortgage,’ the assignment of the mortgage, and the sheriff’s deed after foreclosure were all ‘rescinded and removed from the chain of title.’” It also awarded plaintiffs damages for slander of title. The court found that the trial court did not err by sua sponte deciding to add Gifford as a party, noting his addition “was intended to facilitate the court’s analysis and ultimate resolution of the competing property interests at stake.” As a practical matter, he “clearly had an interest in the property through” his company, even if that interest was legally indirect. The court also rejected defendant’s claim that the trial court erred by finding plaintiffs were bona fide purchasers for value, and thus, defendant “was not entitled to rescind the discharge of the mortgage from the previous property owner and thereby reinstate the prior mortgage interest in” the property. “Gifford was a bona fide purchaser and had valid title to convey, and therefore WG Enterprises acquired all of” his interest in the property, which was superior to defendant’s asserted interest. As to setting aside the foreclosure by advertisement, the mortgage “had been discharged and it could not be reinstated against Gifford, a bona fide purchaser for value.” Because defendant “did not hold a valid mortgage interest in the property, it could not foreclose on the mortgage by advertisement . . . .” But as to the slander of title claim, the evidence did not show defendant “acted with the intention or desire to injure WG Enterprises, or that the documents were knowingly filed with the intention to cause” it injury. Affirmed in part, reversed in part, vacated in part, and remanded.

    Full Text Opinion

  • School Law (1)

    Full Text Opinion

    This summary also appears under Freedom of Information Act

    e-Journal #: 77072
    Case: Metcalf v. Grand Ledge Pub. Schs.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cavanagh, Jansen, and Riordan
    Issues:

    Action under the Freedom of Information Act (FOIA); MCL 15.231(2); Amberg v Dearborn; Timeliness of response; MCL 15.235(2); Fees; MCL 15.234(1); Buckmaster v Department of State; Notice of denial; MCL 15.235(5); Exemptions under MCL 15.235(5)(a) (the record was exempt from disclosure), MCL 15.235(5)(b) (the record did not exist), & MCL 15.235(5)(c) (certain information from the public record was separated or deleted); Costs; Good-faith deposit; MCL 15.234(8); Requirement of a deposit of up to 100% of the estimated fee before a full public record search; MCL 15.234(11); Disclosure of internal union communications; Howell Educ Ass’n, MEA/NEA v Howell Bd of Educ; Attorney fees; Prevailing party; MCL 15.240(6); Local Area Watch v Grand Rapids

    Summary:

    Holding that defendants-school district and board members violated FOIA as to some of plaintiff-former superintendent’s FOIA requests, and that plaintiff prevailed in part, the court affirmed in part, reversed in part, vacated in part, and remanded. In the underlying case, plaintiff was terminated from his position as superintendent of the district for a post he made on Facebook regarding the circumstances surrounding George Floyd’s death. In this case, he sued defendants for their handling of multiple FOIA requests he made in preparation for his disciplinary hearing. The trial court granted, in part, defendants’ motion for summary disposition. On appeal, the court agreed with plaintiff that the district’s response to “request 8” was insufficient, noting its FOIA coordinator “did not state that ‘the public record, or portion of that public record, [was] exempt from disclosure,’ that the public record did not exist, or that certain information from the public record was separated or deleted.” It also agreed with plaintiff that there was a genuine issue of material fact as to whether defendants’ estimates of 30 days and 35 days to fulfill some of his requests complied with MCL 15.234(8), and disagreed with defendants that the trial court erred by finding they violated MCL 15.234(11) by requiring plaintiff to pay the full costs of fulfilling the requests before releasing the responsive records. “[G]iven that the district estimated a total of 98 labor hours for the seven June 2020 requests, reasonable minds could differ as to whether 30 days was a ‘best efforts estimate’ for fulfilling the requests.” And defendants violated FOIA “by requiring plaintiff to pay the full amount of estimated fees rather than only a 50% deposit before releasing responsive records.” The court next agreed with plaintiff that the trial court should have ordered defendants to produce texts and e-mails sent between board members along with communications between local elected officials and the board or staff at the district concerning plaintiff, but disagreed with his remaining arguments regarding other, unproduced documents, including that the trial court should have ordered defendants to produce records pertaining to the vote of no confidence. Finally, it agreed with plaintiff that the trial court erred by concluding he was not a prevailing party for purposes of attorney fees. “Because the trial court should have concluded that plaintiff was entitled to receive some, but not all, of the remaining unproduced documents, plaintiff has prevailed in part.”

    Full Text Opinion

  • Wills & Trusts (1)

    Full Text Opinion

    This summary also appears under Probate

    e-Journal #: 77060
    Case: In re Jaye Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Servitto, and Letica
    Issues:

    Termination of a trust under the Estates & Protected Individuals Code (EPIC); MCL 700.7412; Notice; MCL 700.7411(3); Removal of trustee; MCL 700.7706(1) & (2); Judicial disqualification; MCR 2.003(C)(1); Cain v Department of Corrs

    Summary:

    The court held that the probate court erred by dissolving the settlor’s (Elaine) trust because notice was lacking and it failed to further Elaine’s “plainly stated intent.” It also held that the probate court erred by removing the original court-appointed independent trustee (appellant-Gallagher). But it declined to disqualify the probate judge. Two of Elaine’s children engaged in extensive litigation involving the trust and attorney fees related to the management of trust property. After several years, the probate court dissolved the trust, removed Gallagher as trustee, and ordered all trust assets to a conservator/successor trustee for the purpose of winding up the trust, distributing funds as necessary for Elaine’s care, and maintaining the trust assets. The court found that the probate court’s “dissolution” of the trust violated EPIC’s plain language. It “provided no notice to any of the parties identified in MCL 700.7411(3) before terminating Elaine’s trust on its own motion.” In addition, it “failed to comply with MCL 700.7412(2)’s requirement that the trust’s termination ‘will further the settlor’s stated purpose, or if there is no stated purpose, the settlor’s probable intention.’” Elaine was left “intestate. She is not competent to execute a new will and her wishes cannot be effectuated.” The court next found that the probate court did not identify any viable basis for its decision to remove Gallagher as trustee. Instead, it “specifically indicated that it had not found that Gallagher acted improperly. [It] may have believed that Gallagher had been pushed around by the competing parties and that a change would serve Elaine’s best interests. However, [it] made no record finding to that effect.” As such, on remand, if it decides to relieve him “of his post, [it] must refer to MCL 700.7706(2) and support its ruling.” Finally, the court declined to disqualify the trial judge, noting it did not believe his comments “revealed an inability to fairly judge and control the proceedings on remand. With a bit of verbal caution, we are confident that [the judge’s] resolve will fairly and equitably direct this action to completion while protecting Elaine’s interests. Assigning a new judge at this late date would require expending even more attorney fees so that the parties could educate the bench on the lengthy history of this case and the issues remaining. That delay and expense would benefit no one.” Reversed and remanded.

    Full Text Opinion

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