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Attorneys (1) Full Text Opinion This summary also appears under Malpractice e-Journal #: 77125 Case: Rufo v. Rickard, Denney, Garno & Leichliter Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Jansen, Cameron, and Rick Issues: Legal malpractice; Coleman v Gurwin; Causation; Charles Reinhart Co v Winiemko; Speculation or conjecture; Pontiac Sch Dist v Miller, Canfield, Paddock & Stone; Cause in fact; Bowden v Gannaway Summary: The court held that the trial court properly granted defendants-attorney and law firm summary disposition of plaintiff’s legal malpractice claim. Plaintiff’s claim arose out of defendants’ handling of her divorce. The trial court granted summary disposition for defendants based on plaintiff’s failure to present any evidence related to causation. On appeal, the court rejected her argument that the trial court erred because there was a genuine issue of material fact as to causation. “[P]laintiff’s evidence about her misunderstanding of the terms of the consent judgment of divorce, along with defendants’ alleged failure to explain them to her, are entirely irrelevant as related to whether defendants’ alleged negligence caused her damages. Instead, defendants’ evidence was properly focused on the question of cause in fact, and supported that even if plaintiff had properly understood the terms of the consent judgment of divorce, she could not have done better by negotiating to keep her interest in the pension or going to trial to ensure it.” Although her failure to “provide evidence of her ability to negotiate a more favorable settlement that included her interest in the pension is not necessarily fatal to her claim, she also failed to present any evidence that she would have been more successful at trial.” The trial court “was left only with evidence from defendants regarding causation. That evidence showed that plaintiff could not have achieved a more favorable outcome via a more beneficial settlement or a trial. Plaintiff failed to rebut that evidence with anything other than conjecture,” which was insufficient to survive summary disposition. “[A]ll of plaintiff’s evidence related to whether defendants breached their duty to plaintiff by failing to properly advise her before she signed the consent judgment of divorce. Defendants, on the other hand, presented substantial evidence about causation[.]” Affirmed. Full Text Opinion

Criminal Law (1) Full Text Opinion e-Journal #: 77110 Case: People v. Cook Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Redford, Sawyer, and Murray Issues: Mootness; People v Rutherford Summary: Holding that the prosecution’s issue was moot, the court dismissed its appeal. Defendant pled guilty to domestic violence, third offense, and resisting or obstructing a police officer. The trial court sentenced him to 2 years’ probation and 300 days in jail for each conviction. The prosecution appealed his sentences by leave granted. During the pendency of the appeal, as both parties agreed at oral argument, defendant’s probation was revoked and he served his subsequent sentences. As such, the court declined to review the appeal. Full Text Opinion

Family Law (2) Full Text Opinion e-Journal #: 77130 Case: Abdrabboh v. Zeineh Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Sawyer, and Murray Issues: School enrollment; Child’s best interests; MCL 722.23; Parenting time modification to accommodate the child’s school attendance; Legal custody; Deciding whether joint custody is in a child’s best interests; MCL 722.26a(1)(b); Proper cause or a change in circumstances; Vodvarka v Grasmeyer Summary: The court held that proper cause existed to revisit the legal custody of the parties’ child, and that the trial court’s findings on the best-interest factors as to both the child’s school and legal custody were not against the great weight of the evidence. Thus, it affirmed the trial court’s orders in these consolidated appeals providing that the child attend school in the district where defendant-father lived and granting him sole legal custody. Plaintiff-mother first argued “that defendant’s enrollment of the child in his school district without plaintiff’s consent stripped the” trial court of decision-making authority on the issue. But she failed to “cite any legal authority to support her contention that one parent not agreeing to school enrollment, standing alone,” deprives the trial court of decision-making authority or results in it “abusing its discretion if it orders the child to continue attending that school.” And the court found no palpable abuse of discretion. It also rejected her argument that the trial court’s factual findings that certain best-interest factors favored defendant related to the school decision were against the great weight of the evidence. She failed to show “that the child’s attendance of school in defendant’s district did not serve the child’s best interests.” Further, the evidence did not clearly preponderate against the trial court’s finding after an evidentiary hearing in 3/21 that, following entry of its 12/20 order as to “the child’s school, the parties’ communication and cooperation regarding the child’s school and medical issues significantly deteriorated sufficient to warrant revisiting the” issue of legal custody. The court concluded that the record evidence supported its finding that her “unilateral actions impacted the child’s schooling and interfered with the school’s ability to assess his progress.” The evidence also showed she did not “inform defendant about the child’s medical issues and appointments.” After analyzing the best-interest factors to decide whether a legal custody change served the child’s best interests, the trial court based its “decision on plaintiff’s undisputed unilateral conduct of withdrawing the child from standardized testing, failure to properly assist the child’s completion of school work, unannounced removal of the child from school for two days, and failure to involve defendant in" important medical decisions. The evidence did not clearly preponderate against its findings. Full Text Opinion Full Text Opinion e-Journal #: 77117 Case: Rudzinski v. Rudzinski Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Redford, Sawyer, and Murray Issues: Divorce; Enforceability of a marriage settlement agreement; Lentz v Lentz; Consideration of equity; Factual findings; “Illusory” promises; Mastaw v Mastaw; Ambiguity; Impossibility; Duress; Clement v Buckley Mercantile Co Summary: The court held that the trial court erred in denying defendant-ex-wife’s (Delores) motion to enforce the parties’ marriage settlement agreement (the SA). It concluded that, considered in context, there was nothing in the trial court’s “comments on the Lentz footnote to support that [it] misunderstood or failed to apply the correct legal standards from Lentz.” Also, it did not appear that the trial court’s errors in its factual findings, “on their own, affected the outcome of the case[.]” But considering the provision as to the distribution of equity in a building owned by a trust created by the parties, the court held that the trial court’s determination of illusoriness was erroneous, and it erred by failing to enforce their SA based on “some unspecified ambiguity or the possibility that a dispute may arise in the future related to the execution of the” SA. It further erred by finding impossibility, and plaintiff-ex-husband (Thomas) failed to show duress. Thus, the court reversed the trial court’s interlocutory order denying Dolores’s motion to enforce the SA and remanded with instructions to enforce the SA. She contended that a remark by the trial court indicated that it violated Lentz by considering equity. This argument lacked merit. “When considered in context, the trial court’s commentary on the Lentz footnote was nothing more than an aside. The trial court articulated the correct standard from Lentz at length.” But the court found the trial court erred in holding that the SA term as to the sale of the dental-practice building was illusory. Given that the trust owned “the building, practically speaking, splitting the equity will require dissolution of the trust and a distribution of its assets. Upon dissolution, Dolores will receive 96% of the trust assets, and given the terms of the [SA], she will be obligated to pay Thomas his share of the equity from the building.” Notably, in their SA, they “did not endeavor to afford Thomas an interest in the trust or to resolve the rights of third parties, other than recognizing that fees, commissions, and liens would be paid before the parties split the equity.” Fairly considered, they reached a clear SA as to “their respective shares in the equity in the building following” its sale. The involvement of a trust did not invalidate their agreement. Further, while the trial court stated there were “several areas” of the SA that were ambiguous, “it failed to actually identify an ambiguous provision.” The trial court also erred by finding impossibility. It was baseless for Thomas to claim that his age or the possibility of his future retirement rendered it impossible for him to comply with the SA. Full Text Opinion

International Law (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 77147 Case: Instituto Mexicano Del Seguro Soc. v. Stryker Corp. Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Bush, Boggs, and Thapar Issues: Forum non conveniens; Whether the United Nations Convention against Corruption Article 53 foreclosed the application of the doctrine; Deference to a plaintiff’s choice of forum; Availability of an alternate forum; Whether plaintiff’s choice of forum was “unnecessarily burdensome”; Gulf Oil Corp v Gilbert Summary: [This appeal was from the WD-MI.] The court held that the United Nations Convention against Corruption (the Convention) did not foreclose application of forum non conveniens in this case, that plaintiff-Instituto Mexicano del Seguro Social’s (IMSS) choice of forum was entitled to little deference, that Mexican courts are available to hear the case, and that the public and private interest factors supported granting defendant-Stryker’s motion to dismiss. IMSS, the agency “responsible for government-run medical care for most Mexican citizens[,]” sued Stryker for allegedly bribing Mexican officials to facilitate the sale of its products in Mexico. Stryker moved to dismiss based on forum non conveniens. IMSS argued that application of the doctrine was foreclosed under the Convention, and that the district court abused its discretion in granting Stryker’s motion. The court first rejected IMSS’s claim that Article 53 of the Convention “generally prohibits federal courts from applying forum non conveniens when a foreign state sues alleging corruption.” It found no support for this position in the wording of the Convention or in the legislative history. Additionally, IMSS “identified no implementing statute that turns the Convention into binding federal law.” Thus, its argument that the Convention foreclosed application of forum non conveniens failed. The court then considered the factors used to review a district court’s reasons for declining to exercise jurisdiction under forum non conveniens. It determined that IMSS’s choice of forum was not entitled to significant deference where “a foreign plaintiff like IMSS receives less deference to its choice of forum” and the forum’s convenience “‘cannot be presumed[.]’” It concluded that an alternative forum – Mexico – was available and adequate. The court then considered whether “‘plaintiff’s choice of forum is unnecessarily burdensome.’” The district court found that “the public interest factors favored dismissal because ‘[v]irtually all of the relevant acts—from allegedly paid bribes to IMSS officials, to alleged misconduct by a Mexican law firm—occurred in Mexico, and almost all of the alleged actors are in Mexico[.]’” The court determined that it did not abuse its discretion in this regard, or in balancing the private interests. Affirmed. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under International Law e-Journal #: 77147 Case: Instituto Mexicano Del Seguro Soc. v. Stryker Corp. Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Bush, Boggs, and Thapar Issues: Forum non conveniens; Whether the United Nations Convention against Corruption Article 53 foreclosed the application of the doctrine; Deference to a plaintiff’s choice of forum; Availability of an alternate forum; Whether plaintiff’s choice of forum was “unnecessarily burdensome”; Gulf Oil Corp v Gilbert Summary: [This appeal was from the WD-MI.] The court held that the United Nations Convention against Corruption (the Convention) did not foreclose application of forum non conveniens in this case, that plaintiff-Instituto Mexicano del Seguro Social’s (IMSS) choice of forum was entitled to little deference, that Mexican courts are available to hear the case, and that the public and private interest factors supported granting defendant-Stryker’s motion to dismiss. IMSS, the agency “responsible for government-run medical care for most Mexican citizens[,]” sued Stryker for allegedly bribing Mexican officials to facilitate the sale of its products in Mexico. Stryker moved to dismiss based on forum non conveniens. IMSS argued that application of the doctrine was foreclosed under the Convention, and that the district court abused its discretion in granting Stryker’s motion. The court first rejected IMSS’s claim that Article 53 of the Convention “generally prohibits federal courts from applying forum non conveniens when a foreign state sues alleging corruption.” It found no support for this position in the wording of the Convention or in the legislative history. Additionally, IMSS “identified no implementing statute that turns the Convention into binding federal law.” Thus, its argument that the Convention foreclosed application of forum non conveniens failed. The court then considered the factors used to review a district court’s reasons for declining to exercise jurisdiction under forum non conveniens. It determined that IMSS’s choice of forum was not entitled to significant deference where “a foreign plaintiff like IMSS receives less deference to its choice of forum” and the forum’s convenience “‘cannot be presumed[.]’” It concluded that an alternative forum – Mexico – was available and adequate. The court then considered whether “‘plaintiff’s choice of forum is unnecessarily burdensome.’” The district court found that “the public interest factors favored dismissal because ‘[v]irtually all of the relevant acts—from allegedly paid bribes to IMSS officials, to alleged misconduct by a Mexican law firm—occurred in Mexico, and almost all of the alleged actors are in Mexico[.]’” The court determined that it did not abuse its discretion in this regard, or in balancing the private interests. Affirmed. Full Text Opinion

Malpractice (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 77125 Case: Rufo v. Rickard, Denney, Garno & Leichliter Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Jansen, Cameron, and Rick Issues: Legal malpractice; Coleman v Gurwin; Causation; Charles Reinhart Co v Winiemko; Speculation or conjecture; Pontiac Sch Dist v Miller, Canfield, Paddock & Stone; Cause in fact; Bowden v Gannaway Summary: The court held that the trial court properly granted defendants-attorney and law firm summary disposition of plaintiff’s legal malpractice claim. Plaintiff’s claim arose out of defendants’ handling of her divorce. The trial court granted summary disposition for defendants based on plaintiff’s failure to present any evidence related to causation. On appeal, the court rejected her argument that the trial court erred because there was a genuine issue of material fact as to causation. “[P]laintiff’s evidence about her misunderstanding of the terms of the consent judgment of divorce, along with defendants’ alleged failure to explain them to her, are entirely irrelevant as related to whether defendants’ alleged negligence caused her damages. Instead, defendants’ evidence was properly focused on the question of cause in fact, and supported that even if plaintiff had properly understood the terms of the consent judgment of divorce, she could not have done better by negotiating to keep her interest in the pension or going to trial to ensure it.” Although her failure to “provide evidence of her ability to negotiate a more favorable settlement that included her interest in the pension is not necessarily fatal to her claim, she also failed to present any evidence that she would have been more successful at trial.” The trial court “was left only with evidence from defendants regarding causation. That evidence showed that plaintiff could not have achieved a more favorable outcome via a more beneficial settlement or a trial. Plaintiff failed to rebut that evidence with anything other than conjecture,” which was insufficient to survive summary disposition. “[A]ll of plaintiff’s evidence related to whether defendants breached their duty to plaintiff by failing to properly advise her before she signed the consent judgment of divorce. Defendants, on the other hand, presented substantial evidence about causation[.]” Affirmed. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion e-Journal #: 77106 Case: Johnson v. Liberty Mut. Gen. Ins. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Borrello and Jansen; Concurrence – Boonstra Issues: Auto negligence; The sudden-emergency doctrine; White v Taylor Distrib Co, Inc; “Reasonable” care; Case v Consumers Power Co; Competent evidence; Reliance on an affidavit; MCR 2.116(G)(6) & 2.119(B)(1); MRE 602, 701, & 702; Threshold injury; MCL 500.3135(1); “Serious impairment of body function”; MCL 500.3135(5); McCormick v Carrier; Triggering symptoms of a pre-existing condition; Wilkinson v Lee; Effect of conflicting evidence; MCL 500.3135(2)(a) Summary: Holding that defendant-Aquilina was not entitled to summary disposition based on the sudden-emergency doctrine and that there was a genuine issue of material fact as to whether plaintiff suffered a threshold injury due to the accident, the court reversed summary disposition for Aquilina and remanded. It concluded that there was a fact question for “the jury whether defendant breached the standard of care under all the circumstances, even accepting as true his contention that he faced a sudden emergency when he suffered a seizure in the moments before the accident, having never before suffered” one. He contended, and the trial court apparently “accepted as true that experiencing a seizure while driving excuses him from any alleged negligence related to the accident. In this way, defendant and the trial court treated the sudden-emergency doctrine as an affirmative defense. However, the experience of a sudden emergency does not provide an affirmative defense to a negligence claim, . . . but is instead merely one of the factors to consider in determining whether a person was negligent by failing to act as a reasonably prudent person would have under” the circumstances. The court also found that he did not “support his sudden-emergency defense with competent evidence.” His statement in his affidavit that he suffered a seizure was “attributed to ‘information and belief.’ He did not claim to have personal knowledge that he suffered a seizure, or even explain what information led him to believe that he had” one. The court noted that “a first-time seizure is not a general condition that can be rationally based on the perception or self-diagnosis of the person suffering the seizure, especially where the occurrence of an alleged seizure is based on information and belief, rather than personal knowledge; therefore, defendant’s belief that he had one was not permissible lay opinion testimony under MRE 701. [He] did not submit an affidavit by a medical expert, or any other evidence explaining the basis for his information or belief that he actually” had a seizure. The court also concluded that “a jury could reasonably find from medical records submitted in this case that trauma from the accident caused exacerbated symptoms from plaintiff’s pre-existing conditions,” and that there was evidence creating a fact question as to the first and third McCormick prongs. Full Text Opinion

Termination of Parental Rights (1) Full Text Opinion e-Journal #: 77132 Case: In re Cornelius Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Borrello, and M.J. Kelly Issues: Termination under §§ 19b(3)(b)(i), (g), (j), & (k)(ii); Children’s best interests; Ineffective assistance of counsel; Failure to attempt to admit the video of a child’s forensic interviews, or statements from these interviews; Failure to cross-examine the child about alleged inconsistencies between her trial testimony & forensic interviews Summary: The court held that §§ (b)(i), (g), (j), and (k)(ii) existed, termination of respondent-father’s parental rights was in the children’s (A and M) best interests, and he was not denied the effective assistance of counsel. A “testified that respondent committed multiple acts of sexual abuse involving oral penetration against her over the course of several years.” She also testified that he “held a gun to her head, threatened to kill her, and physically beat her when she refused his orders to engage in sexual acts.” Based on the court’s review of the record, it discerned “no clear error in the trial court’s factual findings that respondent sexually abused” A and that both A and M “would be at significant risk of being sexually abused if returned to respondent’s care.” Affirmed. Full Text Opinion