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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

Includes summaries of one Michigan Supreme Court order under Criminal Law and three Michigan Court of Appeals published opinions under Family Law and Insurance.


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under School Law

    e-Journal #: 72851
    Case: Gary B. v. Whitmer
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay and Stranch; Dissent – Murphy
    Issues:

    42 USC § 1983; Substantive due process: Whether there is a fundamental right to a basic minimum education; Washington v. Glucksberg; Palko v. Connecticut; Collins v. City of Harker Heights; Meyer v. Nebraska; Planned Parenthood of Se. PA v. Casey; Obergefell v. Hodges; San Antonio Indep. Sch. Dist. v. Rodriguez; Brown v. Board of Educ.; Plyer v. Doe; School Dist. v. Schempp; Papasan v. Allain; DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.; Whether the defendant-State of Michigan was the proper party when it had returned control of the schools to local officials; Ex parte Young; Russell v. Lundergan-Grimes; League of Women Voters of OH v. Brunner; Doe v. DeWine; Const. 1963, art. VIII, § 3; Council of Orgs. & Others for Educ. About Parochiaid, Inc. v. Engler (MI); Ammex, Inc. v. Cox; Whether the State violated plaintiffs’ right to equal protection by failing to provide the same access to literacy they give to other Michigan students; Zobel v. Williams; City of Cleburne v. Cleburne Living Ctr.; Jolivette v. Husted; Center for Bio-Ethical Reform, Inc. v. Napolitano; Leave to amend; Fed.R.Civ.P. 15(a)(2); Benzon v. Morgan Stanley Distribs., Inc.; Compulsory attendance; Youngberg v. Romeo; Cruzan ex rel. Cruzan v. Director, MO Dep’t of Health; United States v. Salerno; Foucha v. Louisiana; Reno v. Flores; Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression, the court held that plaintiffs-Detroit school children have a fundamental right to a basic minimum education, one that can provide them with a foundational level of literacy. Plaintiffs are students in Detroit’s worst-performing public schools. They sued defendant-State of Michigan under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, arguing that Michigan deprived them of the right to a basic education where “the conditions in their schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that those schools fail to provide access to literacy.” The district court dismissed the case on the merits. The court first considered the State’s claim that it was not a proper party to the case because it no longer controls Detroit schools. It held that under the Michigan Constitution and statutes, the State retains the ultimate control over its schools, and that “‘[a] defendant’s “voluntary cessation of a challenged practice” does not moot a case.’” It noted that “‘the State has directly controlled [the Detroit school system] for most of the past fifteen years through variations of an emergency manager system[,]’” and it “retains significant authority over Detroit’s public schools.” Thus, the court held that it was a proper defendant under Ex parte Young. The critical issue in this case was whether there is a fundamental right to a basic education, one that provides “access to literacy.” The Supreme Court has not ruled definitively on this issue, but using the reasoning of its cases, the court “recognize[d] that the Constitution provides a fundamental right to a basic minimum education. . . . Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’ . . . Under the Supreme Court’s substantive due process cases, this suggests it should be recognized as a fundamental right.” The court held that, at this stage of the litigation, plaintiffs plausibly alleged that their schools cannot provide access to literacy. But the court affirmed the dismissal of their equal-protection claim where they failed to identify a governmental action or policy that subjected them to discrimination. It rejected the argument that the district court should have granted leave to amend as to this claim but noted the possibility that leave could be granted on remand. Finally, plaintiffs also failed to adequately plead their compulsory attendance claim. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    e-Journal #: 72795
    Case: Dan's Excavating, Inc. v. Department of Transp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer, Letica, and Redford
    Issues:

    Breach of contract claims; Contract interpretation; McCoig Materials, LLC v. Galui Constr., Inc.; Wilkie v. Auto-Owners Ins. Co.; Enforcement of unambiguous contract terms; Greenville Lafayette, LLC v. Elgin State Bank; Waiver; Cadle v. City of Kentwood; Mutuality; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Unjust enrichment; Karaus v. Bank of NY Mellon; Reply briefs; Kinder Morgan MI, LLC v. City of Jackson; Principle that review is limited to the trial court record; Sherman v. Sea Ray Boats, Inc.

    Summary:

    The court concluded that the Court of Claims relied on the unambiguous terms of the contract rather than any assertions in an affidavit submitted by defendant-MDOT about the amount of miscellaneous concrete. The Court of Claims also did not err in calculating the timing for filing a claim under the contract’s plain language. Further, plaintiff-Dan’s Excavating, Inc. (DEI), the contractor, failed to properly file a claim for extra compensation under the contract on behalf of plaintiff-Florence Cement Company, its subcontractor. In addition, plaintiffs did not offer any evidence of a mutually agreed-upon waiver of the requirement that DEI sign and submit the claim. Finally, plaintiffs' unjust enrichment claims also failed. This contract dispute arose from a road reconstruction project. Plaintiffs alleged that although “the contract mandated and Florence actually placed 17,559.99 square yards of miscellaneous concrete pavement and 35,332 square yards of mainline concrete pavement, MDOT only paid for 2,993 square yards and 49,899.06 square yards, respectively.” As a result, plaintiffs contended that DEI was underpaid by $212,771.70. The court determined that the computer-aided design (CAD) drawings on which plaintiffs relied were not part of the contract. It noted that “plaintiffs never actually asserted that the CAD drawings were part of the contract itself, even though they believed they should be able to rely on them because of their practicality and ease of use.” The contract’s plain language “called for 2,800 square yards of miscellaneous concrete. Instead of following the quantity plainly set forth in the contract, plaintiffs resorted to the CAD drawings to argue that a much larger amount of miscellaneous concrete was in order. Plaintiffs’ claim for compensation from MDOT for the difference was thus a ‘claim for extra compensation’ on the contract, which was governed by § 104.10.” Under the unambiguous contract language, at the latest DEI’s deadline for proper submission of a claim for “payment for the miscellaneous and mainline concrete pavement work was 60 days after” 12/14/16. Neither the Form 1953 nor the subsequent e-mail “met the 60-calendar day time requirement for filing under § 104.10.D.” The court affirmed summary disposition for defendants.

    Full Text Opinion

  • Criminal Law (6)

    Full Text Opinion

    e-Journal #: 72850
    Case: People v. Olney
    Court: Michigan Supreme Court ( Order )
    Judges: McCormack, Viviano, Markman, Zahra, Bernstein, Clement, and Cavanagh
    Issues:

    Applicability of MCL 768.27c to preliminary exams

    Summary:

    In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 70017 in the 3/18/19 edition for the published opinion), the court remanded the case to the Court of Appeals to consider defendant’s argument that MCL 768.27c does not apply to preliminary exams.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72787
    Case: People v. Boles
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Markey, and Swartzle
    Issues:

    Opinion testimony by lay witnesses; MRE 701; People v. Perkins; People v. Fomby; Relevance; MRE 401-402; Harmless error; MCL 769.26; People v. Lukity; Flight as evidence of consciousness of guilt; People v. Craft

    Summary:

    The court held that there was no abuse of discretion by the trial court in allowing the challenged testimony, but because defendant’s argument had some merit, it further concluded that if there were error, it was harmless. He was accused of stealing victim-W’s cell phone from her office at a hospital. Defendant was also charged with assaulting victim-R, head of security. He was convicted of larceny in a building and assault and battery. Defendant argued that the trial court erred when it allowed R and Officer H “to offer lay-opinion testimony that identified defendant as the suspect seen in the video footage.” First, R and H “did not directly and specifically opine or testify that defendant was guilty or that he was the person in the video footage. Second, the nature of their testimony only indirectly indicated that” he was the person in the video footage. It was for the jury to make its assessment on the matter. Third, he “generally fit the description of the person seen in the surveillance video.” Fourth, he fled when R and another security officer “approached him, which was circumstantial evidence of a consciousness of guilt,” and which entirely undermined his “claim that he innocently found the phone and sought to return it.” And finally, he was found in actual possession of the stolen phone. “Under this factual scenario, any assumed error was harmless, and no miscarriage of justice would occur by affirming the convictions.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72825
    Case: People v. Bonner
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cavanagh, Beckering, and Gleicher
    Issues:

    Expert testimony about child sexual abuse & the dynamics of child sexually abusive episodes; MRE 702; People v. Thorpe; Effect of defense attacks on the victim’s credibility; People v. Peterson; Harmless error; People v. Douglas; Right to a public trial; People v. Vaughn; Waller v. Georgia; Narrowly tailoring a courtroom closure so it is no broader than necessary; Press-Enter. Co. v. Superior Court CA, Riverside Cnty.; Consideration of alternative measures; Williams v. Burt (6th Cir.); Closing the courtroom during the child victim’s testimony; Globe Newspaper Co. v. Superior Court for Norfolk Cnty.; Structural errors; People v. Duncan; MCL 600.2163a; The trial court’s refusal to broadcast the testimony to another location in the courthouse; MCL 600.2163a(17)(a) & (19)(a); “Must” & “shall”; Fradco, Inc. v. Michigan Dep’t of Treasury

    Summary:

    Although the court concluded that an expert’s improper answer to a question constituted harmless error, it held that the trial court’s error in closing the courtroom during the child victim’s testimony while refusing to broadcast it to another location in the courthouse denied defendant his constitutional right to a public trial. Thus, the court reversed his convictions of CSC I, CSC II, and assault with intent to commit criminal sexual penetration, and remanded for a new trial. He first argued that the trial court abused its discretion in allowing the prosecution to elicit testimony from an expert (C) about the frequency with which children fabricate sexual abuse allegations. The court determined that it was proper for the prosecution “to present expert testimony to assist the jury in assessing the victim’s testimony because defendant’s main defense was to attack the victim’s credibility. The prosecution did not deliberately elicit the same problematic testimony from [C] in this case as it did in Thorpe. Rather, the prosecutor propounded an unobjectionable question: ‘Have you come across children who fabricate in your line of work?’ [C]’s answer, however, (‘It’s extremely rare, but, yes, I have’) crossed the line drawn in Thorpe.” While the court found it a close question, it held that this error was harmless under the circumstances – the prosecution did not invite the answer and “promptly pivoted,” leaving the improper testimony “limited and isolated.” Corroborating evidence was also presented here, unlike in Thorpe. But the trial court erred by closing “the courtroom while refusing to broadcast the victim’s testimony to another location in the courthouse.” At the time of the trial, under MCL 600.2163a(17)(a), it “did not have a choice; by closing the courtroom to the public, the court was required to broadcast the proceedings via closed-circuit television to another location in the courthouse. The record supports that trial court deliberately violated the statutory closed-circuit mandate over the objections of both the prosecutor and defense counsel.” Further, it did not “justify its decision to eliminate closed-circuit transmission of the testimony with findings supporting that its action was ‘essential to preserve higher values’ than the defendant’s right to a public trial.” Pursuant to Vaughn, the denial of this right constitutes a structural error requiring automatic reversal.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72786
    Case: People v. DeGroot
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cavanagh, Beckering, and Gleicher
    Issues:

    Sufficiency of the evidence; Torture; MCL 750.85; “Great bodily injury”; MCL 750.85(2)(c)(ii); “Cruel”; MCL 750.85(2)(a); “Custody or physical control”; MCL 750.85(2)(b); Jury instructions; Manslaughter as a lesser included offense of murder; People v. Mendoza; Adequate provocation; People v. Mitchell; People v. Pouncey; Sentencing; Scoring of OV 13; Consideration of dismissed charges; People v. Nix; Whether defendant was entitled to resentencing; MCL 777.62; People v. Francisco; Right to counsel; People v. Smielewski; Waiver; People v. Daoud; Montejo v. Louisiana; In re WC (IL); People v. Cheatham; Voluntariness; People v. Cipriano; Ineffective assistance of counsel; People v. Trakhtenberg; Failure to make a meritless motion; People v. Knapp

    Summary:

    The court held that the evidence was sufficient to support defendant’s torture conviction, and that he was not entitled to a jury instruction on manslaughter. It also held that, although the trial court erred by relying solely on the fact of criminal charges in scoring OV 13, the error was harmless. Finally, it held that his waivers of his rights to have counsel present when he made his statements to the police were valid, and that he was not denied the effective assistance of counsel. He was convicted of first-degree murder and torture in the death of his father-in-law. The trial court sentenced him as a second-offense habitual offender to life in prison for murder and 356 months to 60 years for torture. On appeal, the court rejected his argument that there was insufficient evidence to convict him of torture, finding that “the jury’s determination that defendant stabbed and cut the victim enough to support torture should not be disturbed; it is a reasonable inference drawn from the physical evidence and confessions.” It also rejected his claim that the jury should have been instructed on manslaughter, concluding a “rational view of the evidence does not support [it] where the murder was not committed with adequate provocation in the heat of passion.” The court next rejected his contention that he was entitled to resentencing based on the trial court’s error in relying solely on the fact of criminal charges in scoring OV 13, noting the error did not alter his guidelines range. It further rejected his argument that his waivers of his rights to have counsel present when he made his statements to police were invalid, finding he “presented no evidence that the detectives attempted to coerce him,” and that a review of his second confession showed he “had a reason for talking to the detectives.” Finally, the court rejected as meritless his claim that trial counsel provided constitutionally ineffective assistance. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72843
    Case: United States v. Vance
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Bush, Moore, and Kethledge
    Issues:

    Whether the district court made adequate findings of fact under Fed.R.Crim.P 23(c); Zack v. Commissioner; Grover Hill Grain Co. v. Baughman–Oster, Inc.; United States v. Fruehauf Corp.; Sufficiency of the evidence; United States v. Jabara; United States v. Caseer; United States v. Ellis; United States v. Vasquez; United States v. Wright; Access-device fraud; 18 USC § 1029(a)(5); Interstate-commerce element; United States v. Scartz; United States v. Drummond (Unpub. 6th Cir.); “Intent to defraud” element; United States v. Winkle; United States v. Yoon (7th Cir.); United States v. Gustafson; United States v. Warshak; United States v. Nixon; Witness credibility; Dunn Appraisal Co. v. Honeywell Info. Sys. Inc.; Aggravated identity theft; § 1028A(a)(1); Waiver; United States v. Brown; Bank-fraud statute; § 1344; Sentencing; Procedural reasonableness; Loss calculation; USSG § 2B1.1; United States v. Mickens; United States v. Carboni (2d Cir.); United States v. Catchings; § 2B1.1 cmt. n.3(C)

    Summary:

    The court held that the district court made adequate factual findings after the bench trial to support defendant-Vance’s convictions for access-device fraud and aggravated identity theft, and that there was sufficient evidence to support those convictions. It also found his sentence procedurally reasonable. Vance’s convictions arose from fraud perpetrated on his great-grandparents. He argued that the district court did not comply with Rule 23(c) by making adequate factual findings after the bench trial. As to his conviction for access-device fraud, he did not challenge the fact that he knowingly used another person’s access device and that he obtained more than $1,000. What he challenged was whether there was sufficient proof and fact-finding that he “affected interstate or foreign commerce by using the access device.” Under the liberal standard of review set forth in Zack, the court held that this element was satisfied where the district court referred to testimony that the transaction moved through several banks in different states. The district court also did not err by ruling that there was substantial circumstantial evidence to support the intent to defraud element. It cited witness testimony that indicated intent, and noted Vance’s attempt to impersonate his great-grandfather. It also referred to his attempt to conduct his offenses online to avoid identification, and his “haste” in depleting the money. As for his conviction for aggravated identity theft, the district court noted that Vance “had an established history of conducting online transactions using his great-grandfather’s personal information (including a history of attempting to obtain loans in [his great-grandfather’s] name, using the latter’s personal information)." Also, he was found with several of his great-grandfather’s documents containing his great-grandfather’s social security number, and the IP address Vance used belonged to his mother. He challenged his 65-month sentence, arguing that it did not comport with the USSG loss provision, § 2B1.1. However, under § 2B1.1 cmt. n.3(C), “a sentencing court ‘need only make a reasonable estimate of the loss . . . based on available information.’” The court held that the district court “did not commit clear error in calculating that the loss amount attributed to Vance’s conduct was over $40,000,” and thus his sentence was procedurally reasonable. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72852
    Case: Winburn v. Nagy
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Sutton, Norris, and Bush
    Issues:

    Habeas corpus; 28 USC § 2241; Saulsberry v. Lee; Christian v. Wellington; Whether a state pretrial detainee must receive a certificate of appealability to appeal a denied § 2241 motion; § 2253(c)(1)(A); Davila v. Davis; Hoffler v. Bezio (2d Cir.); United States v. Cepero (3d Cir.); Stringer v. Williams (5th Cir.); Evans v. Circuit Court of Cook Cnty. (7th Cir.); Wilson v. Belleque (9th Cir.); Montez v. McKinna (10th Cir.); Gonzalez v. Justices of Mun. Court of Boston (1st Cir.); § 2253(c)(2); Slack v. McDaniel; Whether petitioner was entitled to a certificate of appealability on the issue of whether the state court erred by enjoining him from filing lawsuits or disciplinary complaints against his lawyer until after his trial; Lewis v. Casey; Fowler v. Benson; Aaron v. O’Connor; Hill v. Snyder; Whether he was entitled to a certificate of appealability on his double jeopardy claim; Klein v. Leis; MCR 7.105; People v. Janes (MI App.)

    Summary:

    [This appeal was from the ED-MI.] In an order, the court for the first time held that state pretrial detainees proceeding under § 2241 may not appeal without certificates of appealability. It granted a certificate on petitioner-Winburn’s habeas petition based on a state court’s issuance of an injunction, but denied a certificate on his double-jeopardy claim. Winburn is a pre-trial detainee awaiting his second trial for armed robbery, home invasion, and conspiracy to commit home invasion. He filed one habeas petition to halt his retrial on double jeopardy grounds, and another petition to undo an injunction issued by the Michigan trial judge. These petitions were filed under § 2241 because he was a state pre-trial detainee. The district court denied the petitions without issuing certificates of appealability. The court considered the differences in habeas review for state and federal prisoners, and concluded that “Congress chose to require certificates of appealability for state but not federal prisoners who invoke § 2241.” The court held that a certificate of appealability may only issue “‘if the applicant has made a substantial showing of the denial of a constitutional right.’” The court granted Winburn a certificate of appealability on the Michigan trial court’s issuance of an injunction prohibiting him from filing any lawsuits or disciplinary complaints against his lawyer until after his trial, because that issue had First Amendment implications and a “reasonable jurist could conclude that the trial judge’s unusual order was constitutionally infirm.” However, the court declined to issue a certificate for his double-jeopardy claim because the district court dismissed that petition for failure to exhaust state-court remedies where he failed to file a motion to dismiss the charges.

    Full Text Opinion

  • Family Law (2)

    Full Text Opinion

    e-Journal #: 72855
    Case: Bofysil v. Bofysil
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gleicher, Cavanagh, and Beckering
    Issues:

    Divorce; Custody; Established custodial environment (ECE); Berger v. Berger; Pierron v. Pierron; Statutory best interest factors; MCL 722.23; Fletcher v. Fletcher; Resolution of conflicting evidence; Sinicropi v. Mazurek; Legal custody; MCL 722.26a(1)(b); Fisher v. Fisher

    Summary:

    Holding that the trial court erred in discounting the role of the parent who worked outside the home in determining that the child (A) only had an ECE with the stay-at-home parent, and that this error affected the burden of proof and permeated its findings on the best interest factors, the court affirmed the divorce judgment in part but vacated the custody award and remanded. It concluded that the evidence preponderated against the trial court’s ECE determination. The parties agreed that from A’s birth in 1/16 until defendant-Sarah left the home with her in 6/18, they shared in A’s care. While plaintiff-Bridget “worked outside of the home, she arranged her schedule to maximize her time home during [A’s] waking hours.” It was clear that A “had a homelife in which both of her parents provided for her care and needs. Although [A] may have looked to her parents to fulfill different needs and likely understood at some level their distinct household roles, both provided her with ‘security, stability, and permanence.’” The trial court further “perpetuated its erroneous approach to the working parent throughout the judgment, faulting Bridget for her full-time employment outside the home by treating her as less than a full parent.” As to the best interest factors, it erred in weighing (a) in Sarah’s favor after finding she had “closer parental and emotional ties to” A due to “being able to spend significantly more time with her.” It also erred in weighing (b) in her favor on the basis she was “the primary caregiver and that her commitment to remain home with the child until she reaches school age, rather than place her in day care or the care of another, will enable her to be far better able to provide her with love, affection and guidance than” Bridget. The court found that the fact “the parties agreed before conceiving that one parent would stay at home to raise the child while the other would financially support the family does not equate with one parent loving the child more or having more affection for the child. Nor should that decision foreclose the result of a custodial disagreement if a relationship ends.” As to (c), the trial court declined to credit Bridget for financially supporting the family. While it did not consider her “relationship with a married woman before her divorce was finalized in analyzing factor (f) . . . it made those exact same judgments in analyzing factors (d) and (e). This was improper under any factor.” Further, it appeared that it “abused its discretion in awarding sole legal custody to Sarah.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 72853
    Case: In re Estate of Hermann A. Von Greiff
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gleicher and Markey; Dissent - M.J. Kelly
    Issues:

    Divorce; Whether respondent was “willfully absent” & thus not qualified as a surviving spouse; In re Estate of Erwin; Florence Cement Co. v. Vettraino; Whether MCL 700.2801(2)(e)(i) is applicable to the period of time consumed by divorce proceedings; MCL 700.2801(2)(e)(ii) & (iii); In re Quinn’s Estate (IA); Amendment to MCL 700.2801; MCL 700.2801(3); Christensen v. Harris Co.; Expressio unius est exclusio alterius defined; Pittsfield Charter Twp. v. Washtenaw Cnty.; MCL 700.2801(3)(b); MCL 700.2801(2)(e)

    Summary:

    Holding that MCL 700.2801(2)(e)(i) was inapplicable to the period of time consumed by divorce proceedings, the court reversed the probate court’s ruling that respondent-Anne Jones-Von Greiff did not qualify as Hermann Von Greiff’s surviving spouse because she was “willfully absent” from him for more than a year before his death. They were married for 15 years. Hermann died shortly before the divorce judgment was signed, slightly more than a year after they separated. His adult daughter, petitioner-Carla J. Von Greiff, brought this case seeking to dispossess Anne of her right to inherit as Hermann’s surviving spouse. “MCL 700.2801(e) generally stands for the proposition that when a spouse decides to informally dissolve a marriage by neglecting or deserting a partner or by withdrawing from that partner both physically and emotionally, that departing spouse loses the right to inherit from the spouse left behind. These provisions encapsulate readily understood equitable principles.” As highlighted in Erwin, “subsections (2)(e)(i), (ii) and (iii) illustrate intentional acts that destroy a marriage and leave one partner legally adrift.” The court held that an evidentiary hearing was unnecessary here and found “the probate court’s findings irrelevant, because MCL 700.2801(2)(e) does not apply as a matter of law. Anne did not ‘willfully absent’ herself from Hermann; she sought a divorce and, as many divorcing spouses do, elected to live separately while the matter made its way through the circuit court. Furthermore, Hermann formally stipulated to that living arrangement. Considering a combination of common sense, the common law, and a venerable canon of statutory construction:” expressio unius est exclusio alterius, the court held that it was clear the “Legislature did not intend to disinherit a spouse whose divorce was in progress but not yet finalized when the other spouse dies.” It also held that had “there been no error in the circuit court’s spousal support ruling, the parties would have been divorced within a year and Carla’s claim under MCL 700.2801(2)(e)(i) would have died aborning. The delay in getting to final judgment was no one’s fault. It is nonsensical to believe that the Legislature intended that pure serendipity could dictate whether Anne was disinherited.” Further, an amendment to MCL 700.2801 that took effect in 2017 provided further support. Also, in “MCL 700.2801(3), the Legislature carved out a new exception to the status of surviving spouse. A spouse who is a ‘party’ to a divorce proceeding at the time of the other spouse’s death may not have a say in the deceased’s funeral arrangements. That’s it—funeral arrangements. The Legislature did not identify ‘an individual who is a party to a divorce or annulment proceeding with the decedent at the time of the decedent’s death’ as otherwise excluded from the status of a surviving spouse.”

    Full Text Opinion

  • Immigration (1)

    Full Text Opinion

    This summary also appears under Juvenile Law

    e-Journal #: 72800
    Case: In re TM
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer, Letica, and Redford
    Issues:

    Petition for special immigrant juvenile (SIJ) status; The Immigration & Nationality Act; In re LFOC; “Special immigrant”; 8 USC § 1101(a)(27)(J); 8 CFR § 204.11(c); Appointment of a guardian under MCL 700.5201 et seq. of the Estates & Protected Individuals Code (MCL 700.1101 et seq.); The Child Abuse & Neglect Prevention Act (MCL 722.601 et seq.); Child abuse defined; MCL 722.602(1)(b) & MCL 722.622(g) of Michigan’s Child Protection Law (MCL 722.621 et seq.); Neglect defined; MCL 722.602(d); Child neglect defined; MCL 722.622(k); Abandoned defined; MCL 722.1102(a) of the Michigan’s Uniform Child-Custody Jurisdiction & Enforcement Act (MCL 722.1101 et seq.)

    Summary:

    Holding that the probate court did not abuse its discretion by denying the petition for findings of fact to enable juvenile-T to apply for SIJ status, the court affirmed. T was born and reared in Bangladesh. Sometime after his father’s death, his mother, appellee-Begum, arranged with a third party for T to travel to the United States to live with appellant-Beauty, a distant relative who the probate court appointed as T’s guardian. Based on T’s testimony, the probate court did not clearly err by finding that he did not suffer abuse, neglect, or abandonment by Begum. The record evidence supported the probate court’s determination “that reunification with his mother in Bangladesh remained a viable option.” The record did not indicate that T “suffered from a lack of love or affection from his mother or had been deprived of food, clothing, or medical care while living at home with her in Bangladesh.” It did not reflect that T’s” home with his mother lacked stability or permanence. [T’s] testimony established that he had a good relationship with his family including his mother. No evidence established that domestic violence was directed at [T] or that he witnessed such conduct when in the care and custody of his mother in his home in Bangladesh.” Analysis of the record did “not indicate that the probate court overstepped its role in the two-tiered SIJ status process. [It] did not endeavor to make an immigration decision but focused on determining whether evidence supported making predicate factual findings that [T] suffered abuse, neglect, or abandonment. The record before the probate court did not warrant making predicate factual findings as requested in the petition.”

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    e-Journal #: 72854
    Case: Memberselect Ins. Co. v. Flesher
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Boonstra, Riordan, and Redford
    Issues:

    Declaratory action; Insurable interest; Morrison v. Secura Ins.; Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co.; Clevenger v. Allstate Ins. Co.; Crossman v. American Ins. Co.; Madar v. League Gen. Ins. Co.; Principle that an insurance policy is void if there is no insurable interest; Corwin v. DaimlerChrysler Ins. Co.; Principle that determining whether no-fault benefits are available to an injured person does not depend on “who” purchased, obtained, or otherwise procured no-fault insurance; Dye v. Esurance Prop. & Cas. Ins. Co.

    Summary:

    The court held that the trial court did not err by denying plaintiff-insurer’s motion seeking a declaratory judgment because its insured (defendant-Kelly Fetzer) had an insurable interest in the vehicle at issue. Plaintiff sought a declaration that Kelly had no insurable interest in her adult son’s vehicle (which allegedly struck defendant-Flesher’s motorcycle) and thus, that the policy was void. The trial court denied plaintiff’s motion, finding Kelly did have an insurable interest in the vehicle. On appeal, the court rejected plaintiff’s argument that the trial court’s decision was erroneous, holding that “Kelly had a sufficient interest in the well-being of her adult child that [it] should not void her insurance policy on public policy grounds.” It noted that “the interest of a parent in an adult child’s welfare, including such aspects as being covered for potential injury, being protected from financial ruin from injuring another, even the avoidance of civil infraction or other legal penalties for driving while uninsured, is sufficient to avoid temptations and social ills of ‘wager policies.’” The court further noted that, “in light of Clevenger and Allstate,” it could not “go so far as to say that the insurable interest requirement does not apply in the automobile liability insurance” context. Rather, it held that, “under the circumstances of this case Kelly had a sufficient insurable interest in [her son’s] well-being that [it] should not declare the policy void on public-policy grounds.” Finally, the court noted that it would “be delighted if our Supreme Court would take the opportunity in this or some other case to clarify the insurable interest requirement, its applicability in the context of automobile liability insurance, and the continued viability of Clevenger in that regard.” Affirmed.

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  • Juvenile Law (1)

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    This summary also appears under Immigration

    e-Journal #: 72800
    Case: In re TM
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer, Letica, and Redford
    Issues:

    Petition for special immigrant juvenile (SIJ) status; The Immigration & Nationality Act; In re LFOC; “Special immigrant”; 8 USC § 1101(a)(27)(J); 8 CFR § 204.11(c); Appointment of a guardian under MCL 700.5201 et seq. of the Estates & Protected Individuals Code (MCL 700.1101 et seq.); The Child Abuse & Neglect Prevention Act (MCL 722.601 et seq.); Child abuse defined; MCL 722.602(1)(b) & MCL 722.622(g) of Michigan’s Child Protection Law (MCL 722.621 et seq.); Neglect defined; MCL 722.602(d); Child neglect defined; MCL 722.622(k); Abandoned defined; MCL 722.1102(a) of the Michigan’s Uniform Child-Custody Jurisdiction & Enforcement Act (MCL 722.1101 et seq.)

    Summary:

    Holding that the probate court did not abuse its discretion by denying the petition for findings of fact to enable juvenile-T to apply for SIJ status, the court affirmed. T was born and reared in Bangladesh. Sometime after his father’s death, his mother, appellee-Begum, arranged with a third party for T to travel to the United States to live with appellant-Beauty, a distant relative who the probate court appointed as T’s guardian. Based on T’s testimony, the probate court did not clearly err by finding that he did not suffer abuse, neglect, or abandonment by Begum. The record evidence supported the probate court’s determination “that reunification with his mother in Bangladesh remained a viable option.” The record did not indicate that T “suffered from a lack of love or affection from his mother or had been deprived of food, clothing, or medical care while living at home with her in Bangladesh.” It did not reflect that T’s” home with his mother lacked stability or permanence. [T’s] testimony established that he had a good relationship with his family including his mother. No evidence established that domestic violence was directed at [T] or that he witnessed such conduct when in the care and custody of his mother in his home in Bangladesh.” Analysis of the record did “not indicate that the probate court overstepped its role in the two-tiered SIJ status process. [It] did not endeavor to make an immigration decision but focused on determining whether evidence supported making predicate factual findings that [T] suffered abuse, neglect, or abandonment. The record before the probate court did not warrant making predicate factual findings as requested in the petition.”

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  • Negligence & Intentional Tort (1)

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    e-Journal #: 72822
    Case: Bishop v. Prime Healthcare Servs.-Garden City, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Sawyer, Letica, and Redford
    Issues:

    Defamation; Mitan v. Campbell; Heritage Optical Ctr., Inc. v. Levine; The substantial truth doctrine; Rouch v. Enquirer & News of Battle Creek; Interference with a business relationship or expectancy; Badiee v. Brighton Area Sch.; Intentional infliction of emotional distress (IIED); Dalley v. Dykema Gossett, PLLC; Sawabini v. Desenberg

    Summary:

    Concluding that there was no genuine issue of material fact and defendants’ statements were substantially true, the court held that plaintiff failed to state a claim for defamation or to prove defamation per se. As to his interference with a business relationship or expectancy claim, the court found that the evidence did “not support an inference of improper motive or interference” and that he could not show resultant damages. Finally, his IIED claim failed due to the absence of evidence of outrageous or extreme conduct, or of intent to cause distress. Thus, the court affirmed summary disposition for defendants. “Plaintiff is an instructor with the American Heart Association (AHA), certified to teach” basic life support, advanced cardiac life support, cardiopulmonary resuscitation, pediatric advanced life support (PALS), automated external defibrillator, and first aid. The case arose after he taught a PALS class for nurses at defendant-Garden City Hospital. The court concluded that the statements about which he complained met “the test for application of the substantial truth doctrine.” The evidence indicated “that the literal truth of plaintiff’s actions in connection with the . . . PALS class would produce the same, or possibly a worse, effect on a person receiving the information than did defendants’ slightly inaccurate statements. Defendants’ statements were inaccurate insofar as they asserted that none of plaintiff’s class certifications would be accepted by the AHA, and that the AHA was calling other area hospitals to so inform them.” The literal truth was that this one class at issue “was the only one the AHA invalidated, and the AHA was not calling area hospitals to investigate plaintiff.” But the evidence indicated, among other things, that he “in fact accepted payment for a PALS class for which he failed to provide the required number of instructors or proper equipment and engaged the students for less than half the time required. Plaintiff then falsified AHA forms he submitted to his AHA sponsor by claiming that two additional instructors completed the complement of instructors, where both testified that they were not present and knew nothing of the matter. The literal truth also includes that the AHA officially invalidated the class . . . .”

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  • School Law (1)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 72851
    Case: Gary B. v. Whitmer
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay and Stranch; Dissent – Murphy
    Issues:

    42 USC § 1983; Substantive due process: Whether there is a fundamental right to a basic minimum education; Washington v. Glucksberg; Palko v. Connecticut; Collins v. City of Harker Heights; Meyer v. Nebraska; Planned Parenthood of Se. PA v. Casey; Obergefell v. Hodges; San Antonio Indep. Sch. Dist. v. Rodriguez; Brown v. Board of Educ.; Plyer v. Doe; School Dist. v. Schempp; Papasan v. Allain; DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.; Whether the defendant-State of Michigan was the proper party when it had returned control of the schools to local officials; Ex parte Young; Russell v. Lundergan-Grimes; League of Women Voters of OH v. Brunner; Doe v. DeWine; Const. 1963, art. VIII, § 3; Council of Orgs. & Others for Educ. About Parochiaid, Inc. v. Engler (MI); Ammex, Inc. v. Cox; Whether the State violated plaintiffs’ right to equal protection by failing to provide the same access to literacy they give to other Michigan students; Zobel v. Williams; City of Cleburne v. Cleburne Living Ctr.; Jolivette v. Husted; Center for Bio-Ethical Reform, Inc. v. Napolitano; Leave to amend; Fed.R.Civ.P. 15(a)(2); Benzon v. Morgan Stanley Distribs., Inc.; Compulsory attendance; Youngberg v. Romeo; Cruzan ex rel. Cruzan v. Director, MO Dep’t of Health; United States v. Salerno; Foucha v. Louisiana; Reno v. Flores; Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary

    Summary:

    [This appeal was from the ED-MI.] In an issue of first impression, the court held that plaintiffs-Detroit school children have a fundamental right to a basic minimum education, one that can provide them with a foundational level of literacy. Plaintiffs are students in Detroit’s worst-performing public schools. They sued defendant-State of Michigan under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, arguing that Michigan deprived them of the right to a basic education where “the conditions in their schools are so bad—due to the absence of qualified teachers, crumbling facilities, and insufficient materials—that those schools fail to provide access to literacy.” The district court dismissed the case on the merits. The court first considered the State’s claim that it was not a proper party to the case because it no longer controls Detroit schools. It held that under the Michigan Constitution and statutes, the State retains the ultimate control over its schools, and that “‘[a] defendant’s “voluntary cessation of a challenged practice” does not moot a case.’” It noted that “‘the State has directly controlled [the Detroit school system] for most of the past fifteen years through variations of an emergency manager system[,]’” and it “retains significant authority over Detroit’s public schools.” Thus, the court held that it was a proper defendant under Ex parte Young. The critical issue in this case was whether there is a fundamental right to a basic education, one that provides “access to literacy.” The Supreme Court has not ruled definitively on this issue, but using the reasoning of its cases, the court “recognize[d] that the Constitution provides a fundamental right to a basic minimum education. . . . Access to a foundational level of literacy—provided through public education—has an extensive historical legacy and is so central to our political and social system as to be ‘implicit in the concept of ordered liberty.’ . . . Under the Supreme Court’s substantive due process cases, this suggests it should be recognized as a fundamental right.” The court held that, at this stage of the litigation, plaintiffs plausibly alleged that their schools cannot provide access to literacy. But the court affirmed the dismissal of their equal-protection claim where they failed to identify a governmental action or policy that subjected them to discrimination. It rejected the argument that the district court should have granted leave to amend as to this claim but noted the possibility that leave could be granted on remand. Finally, plaintiffs also failed to adequately plead their compulsory attendance claim. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Termination of Parental Rights (1)

    Full Text Opinion

    e-Journal #: 72796
    Case: In re Jackson
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Tukel, Markey, and Swartzle
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); In re White; In re Ellis; Reasonable reunification efforts; In re Smith; In re HRC; In re Frey; Children’s best interests; Cheesman v. Williams; Abandoned issue; Woods v. SLG Prop. Mgmt., LLC

    Summary:

    Holding that clear and convincing evidence supported termination under § (c)(i) and that the DHHS made more than reasonable efforts to reunify respondent-father with the children, the court affirmed termination of his parental rights. The conditions that led to adjudication were a lack of appropriate housing, the father’s inability to financially support the children, and substance abuse on the part of respondent-mother. “The trial court found that the parents had not made significant progress to resolve these issues.” The record supported the trial court’s findings. When the proceeding began, the father was living in a home that lacked basic utilities. He “never obtained suitable housing and only obtained a legal source of income after the trial court found statutory grounds to terminate his parental rights. Additionally, while it was substance abuse on the part of” the mother that led to adjudication against her, the father continued to have substance abuse issues of his own. Not only did the father miss “52 drug screenings, but when he did submit to testing, he tested positive for marijuana at every drug screen; tested positive for cocaine on one occasion; and regularly smelled of marijuana at visits with the children.”

    Full Text Opinion

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