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• Attorneys (2)

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  This summary also appears under Tax

  e-Journal #: 73101

  Case: Honigman Miller Schwartz & Cohn, LLP v. City of Detroit

  Court: Michigan Supreme Court ( Opinion )

  Judges: Markman, Zahra, Bernstein, and Cavanagh; Concurrence – Viviano, McCormack, and Clement

  Issues:

  Whether the phrase “services rendered in the city” in MCL 141.623 of the Uniform City Income Tax Ordinance (UCITO) (MCL 141.601 et seq.) encompasses legal services performed within the city but delivered to clients situated outside it; Taxation of a business’s “net profit” for business activities that are not “exclusively” conducted within the city; MCL 141.618; The “business allocation percentage method”; MCL 141.620-24; Apportionment of receipts from the sale of services; MCL 205.553(b)(1)(C)(2) & (3); MCL 205.553(c)(3)(b); MCL 206.123; MCL 206.665(2)(a); International Bus. Machs. Corp. v. Department of Treasury; “Rendered”; Defining terms undefined by statute; Oakland Cnty. Bd. of Comm’rs Rd. Comm’rs v. Michigan Prop. & Cas. Guar. Ass’n; “Services rendered”; MCL 141.612(b); MCL 141.613(b); MCL 141.614; Statutory interpretation; G C Timmis & Co. v. Guardian Alarm Co.; U.S. Fid. & Guar. Co. v. Michigan Catastrophic Claims Ass’n (On Rehearing); Bauserman v. Unemployment Ins. Agency; Tax Tribunal (TT)

  Summary:

  Holding that § 23 of the UCITO “encompasses all legal services performed, i.e., done or carried out within the city without regard to where” they are delivered, the court reversed the judgment of the Court of Appeals and remanded to the TT for entry of an order granting partial summary disposition for respondent-city. In determining petitioner-law firm’s tax liability, respondent calculated its revenue factor for services performed within the city (including those on behalf of out-of-city clients) as approximately 50% of petitioner’s gross revenue. The TT agreed with respondent’s position, concluding that, under § 23 of the UCITO, "services rendered in the city” encompasses all legal services performed within the city regardless of where those services are delivered. However, the Court of Appeals reversed, finding the pertinent consideration under § 23 is where the services are delivered to the client. In the present appeal, the court agreed with the TT that, “‘rendered’ means, as set forth by [respondent], ‘to do (a service) for another,' and not, as set forth by [petitioner], ‘to transmit to another: DELIVER.’” Thus, it found that “the Legislature adopted an ‘origin test,’ rather than a destination or market-based test, for the calculation of revenue from ‘services’ under the revenue factor. Section 23 encompasses all legal services performed, i.e., done or carried out, within the city without regard to where those services are delivered.” In so holding, the court acknowledged that “the terms ‘performed’ and ‘rendered’ generally have similar meanings and are effectively equivalent in their relative purposes within the statute. However, the distinctive contexts in which these terms appear accounts for the use of different words despite their similar meanings.” It concluded that respondent’s interpretation, rather than petitioner’s, set forth “the most reasonable understanding of the revenue factor” and the one that is “most harmonious with the statutory framework as a whole.” Accordingly, it concluded that “the Court of Appeals erred when it held that the determinative consideration under § 23 is where, in the end, the services are delivered to the client.” 

   

  Justice Viviano, joined by Chief Justice McCormack and Justice Clement, concurred in the majority’s holding that “MCL 141.623 encompasses all legal services done or carried out in” the city, and “with much of the analysis leading to that holding, in particular the historical discussion and comparative analysis of the [UCITO] and Michigan’s analogous state-taxation statutes.” However, they parted ways with the majority over Part III(D) of the opinion, “which confusingly endeavors to create ever-so-slight daylight between the terms ‘render’ and ‘perform,’ characterizing them as ‘similar’ but not the same.”  

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  This summary also appears under Malpractice

  e-Journal #: 72971

  Case: Ashen v. Holmstrom

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Jansen, and Boonstra

  Issues:

  Legal malpractice; Estate of Mitchell v. Dougherty; Negligence; Simko v. Blake; Collateral estoppel; Keywell & Rosenfeld v. Bithell; Proximate causation; Charles Reinhart Co. v. Winiemko; Kloian v. Schwartz; Conclusory allegations; State ex rel Gurganus v. CVS Caremark Corp.; Summary disposition under MCR 2.116(C)(10); Quinto v. Cross & Peters Co.; Due process; Cummings v. Wayne Cnty.; Vicencio v. Ramirez; Notice of a summary disposition hearing; Effect of having actual notice; MCR 2.613(A); Judicial bias claim; MCR 2.003(C)(1)(a); In re Susser Estate; In re Contempt of Henry; Effect of involvement in a prior trial or other proceeding; People v. Upshaw; FMB-First Nat’l Bank v. Bailey

  Summary:

  Holding that, as a matter of law, most of plaintiff’s allegations failed to state a claim for legal malpractice, and that he did not offer any evidence supporting his allegations of collusion, deliberate deception, and fraud, the court affirmed summary disposition for defendant-attorney. Further, he was not entitled to any relief on his claim he was denied due process because he did not receive notice of a summary disposition hearing given that he had actual notice and appeared at the hearing. Finally, the court rejected his judicial bias claim, which was based only on the facts that the judge in this case also presided over the underlying property case and ruled against him in that suit. Plaintiff contended that defendant should have done more in responding to the summary disposition motion brought by defendants (the As) in the property case. But the court found that defendant’s decisions in responding to the As’ summary disposition motion, “including what arguments to make and what evidence to present, were tactical.” There was no indication he made those “tactical decisions with less than the knowledge, skill, and ability of an average attorney.” The fact that he was unsuccessful in defeating the motion did not give rise to a malpractice claim as he “did not have a duty to ensure a favorable outcome.” Plaintiff also challenged his handling of procedural matters. But these allegations also did not support a malpractice claim. They were “conclusory in nature, failing to set forth the basis on which [defendant] could have, or should have, objected to the reassignment, the scheduling order, or the denial of a stay. Further,” in an appeal in the property case the court had found that the trial court judge “had the authority to modify the scheduling order, that he did not abuse his discretion by removing the matter from case evaluation, and that [plaintiff] had no right to be heard at the status conference.” He was precluded from relitigating these issues by collateral estoppel. As to his contention that defendant did not “keep him adequately informed of proceedings in the property litigation, such as the status conference, or” otherwise acted unreasonably as to the procedural issues he raised on appeal, he could not establish proximate cause. He offered nothing indicating that these matters affected the outcome of the property case, in which construction liens were found dispositive.

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• Civil Rights (1)

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  This summary also appears under School Law

  e-Journal #: 73100

  Case: Foster v. The Bd. of Regents of the Univ. of MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Cole, Moore, Clay, Gibbons, Sutton, Griffin, Kethledge, White, Stranch, Donald, Thapar, Bush, Larsen, and Nalbandian; Not participating – Readler and Murphy

  Issues:

  Deliberate-indifference claim under Title IX of the Education Amendments (20 USC §§ 1681–1688) related to sexual harassment; Davis v. Monroe Cnty. Bd. of Educ.; Vance v. Spencer Cnty. Pub. Sch. Dist.; Patterson v. Hudson Area Schs.; Theno v. Tonganoxie Unified Sch. Dist. No. 464 (D KS); McPherson v. Kelsey; Kollaritsch v. Michigan State Univ. Bd. of Trs.; Whether the defendant-University had “actual knowledge” of the harassment; Whether the University’s course of action was unreasonable; Kelly v. Yale Univ. (Unpub. D CT); Whether there was an “admission of inadequacy” by the University; Pahssen v. Merrill Cmty. Sch. Dist.; Whether the University’s actions “caused” plaintiff to be harassed or made her more vulnerable; Williams v. Board of Regents of Univ. Sys. of GA (11th Cir.); Hartsel v. Keys; Bailey v. Floyd Cnty. Bd. of Educ. By & Through Towler; Soper v. Hoben; Stiles ex rel. D.S. v. Grainger Cnty.

  Summary:

  [This appeal was from the ED-MI.] In an en banc order, the court vacated its prior opinion (see e-Journal #72568 in the 3/13/2020 edition for that opinion), which had reversed summary judgment for defendant-University on plaintiff-Foster’s claim that the University was “deliberately indifferent” to the sexual harassment she suffered from a fellow student (respondent). The court voted for rehearing en banc and restored the case to the docket as a pending appeal.

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• Criminal Law (4)

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  e-Journal #: 72969

  Case: People v. Casey

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Jansen, and Boonstra

  Issues:

  Sufficiency of the evidence; People v. Oros; CSC I; MCL 750.520b(1)(f) & (g); People v. Nickens; Sentencing; Scoring of 50 points for OV 7; People v. Wellman; People v. McChester; A preponderance of the evidence; People v. Cross; MCL 777.37(1)(a); People v. Hardy; People v. Rosa; Motion for a new trial; People v. Johnson; MCL 770.1; MCR 6.431(B); Great weight of the evidence; People v. Unger; People v. Lacalamita; People v. Lemmon; Credibility; People v. Wolfe

  Summary:

  Holding that sufficient evidence was presented to support defendant’s CSC I conviction, and that the trial court did not err by assessing 50 points for OV 7 or by denying his motion for a new trial, the court affirmed his conviction and sentence. He was convicted of CSC I, and was sentenced as a fourth-offense habitual offender to 35 to 60 years. Defendant did “not challenge any particular element, but instead cursorily identifies several inconsistencies in the victim’s testimony, and argues that because the victim was not a credible witness, the evidence supporting defendant’s conviction” was insufficient. However, “the victim’s testimony was not patently incredible, and regardless, the credibility of the victim’s testimony is an issue solely for the jury.” In addition, a review of the record supported “the conclusion that the prosecution presented sufficient evidence to satisfy all elements of” CSC I. Trial testimony established that he “physically injured the victim by striking her in the head with a large, hard object at least twice. Defendant did engage in sexual penetration of the victim, and used force to accomplish the act.” Specifically, he hit her “in the back of the head with an object, tied her up, and drove her to a secluded area where he penetrated her orally, anally, and vaginally.” Also, there was some testimony that he “may have drugged the victim in order to overpower her and accomplish his crime.” The court also disagreed with his claim that the jury’s verdict was against the great weight of the trial evidence. The jury credited the victim’s testimony, and given that resolving credibility issues is the jury’s province, defendant was not entitled to a new trial.

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  e-Journal #: 72983

  Case: People v. Meshkin

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Markey, Jansen, and Boonstra

  Issues:

  Exclusion of evidence; Expert testimony; MRE 702; People v. Beckley; Exclusion under MRE 403; Commenting or opining on another person’s credibility; People v. Musser; Principle that the prosecution’s questions are not evidence; People v. Mesik (On Reconsideration); Relevance; MRE 401; Presumption jurors follow their instructions; People v. Petri; Denial of motion for a mistrial; People v. Dickinson; Unresponsive, volunteered answer to a proper question; People v. Haywood; Cumulative error; People v. Dobek; Sentencing; Effect of a within guidelines sentence; MCL 769.34(10); People v. Schrauben; Constitutional claims; People v. Conley; Eighth Amendment right to receive medical treatment; People v. Shafier; Johnson v. Wayne Cnty.; Abandoning an argument by failing to support it; People v. Kelly; People v. Solloway

  Summary:

  The court held that the trial court did not err in excluding defendant’s proffered expert testimony about the victim’s (A) reactive attachment disorder (RAD) diagnosis and post-traumatic experiences because the jury could have viewed the testimony as opining that A “was predisposed to lie and was not credible.” It also did not err in excluding other proffered testimony, or in denying his motion for a mistrial based on statements that were isolated, voluntary, and unresponsive to proper questions by the prosecutor. His cumulative error claim failed in light of the absence of any errors, and the court rejected his sentencing arguments. Defendant was convicted of CSC II; accosting, enticing, or soliciting a child for immoral purposes; and indecent exposure. The trial court concluded that the prejudicial nature of the expert’s (Dr. P) testimony would mislead the jury to believe that A “could not be believed. According to Dr. [P’s] letter, he was prepared to testify that the symptoms of a RAD diagnosis included ‘a propensity to lie, reduced conscious, and variable attachments to others.’” The court found that the trial court did not abuse its discretion. Further, to the extent P’s “testimony would not have commented on” A’s credibility, it would not have assisted “the jury in understanding evidence or determining an issue of fact,” but there was a substantial risk of prejudice. As to his motion for a mistrial, the trial court granted defendant’s objection as to witness-H’s testimony that she believed A, “struck the statement from the record, and instructed the jury to disregard” H’s testimony as to A’s credibility. Given that jurors are presumed to follow their instructions, any prejudice from H’s first challenged statement was probably cured by the trial court’s instruction. Further, defendant could have accepted the trial court’s offer to give an additional instruction after H made a second statement, “but did not. Any prejudice arising from the lack of an additional instruction” as to that statement was not attributable to the trial court. Finally, the court rejected defendant’s claims that his within guidelines CSC II sentences were disproportionate and that his sentences violated his constitutional right to receive medical treatment. Affirmed.

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  e-Journal #: 72974

  Case: People v. Yarbrough

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam - Murray, Ronayne Krause, and Tukel

  Issues:

  Sufficiency of the evidence; People v. Reese; People v. Nowack; Principle that in CSC cases a victim’s testimony may be sufficient to support a conviction & need not be corroborated; People v. Solloway; CSC I; MCL 750.520b(1)(c), (e), & (f); CSC as a general intent crime; People v. Nyx; People v. Henry; Kidnapping; MCL 750.349(1)(c); People v. Jaffray; Assault by strangulation (MCL 750.84) & with a dangerous weapon (MCL 750.82); People v. Starks; A dangerous weapon defined; People v. Bosca; Intent; People v. Johnson; Voir dire; People v. Tyburski; The right to a peremptory challenge; People v. Bell; MCR 2.511(G); Effect of a “pass”; MCR 2.511(E)(3)(b); People v. Schmitz; Harmless error; People v. Lukity; People v. Anthony; Judicial misconduct; People v. Stevens; Exercise of reasonable control over the mode & order of interrogating witnesses & presenting evidence; MRE 611(a); People v. Biddles

  Summary:

  The court held that there was sufficient evidence to support defendant’s convictions of CSC I, kidnapping, assault by strangulation, and assault with a deadly weapon. It agreed that the trial court abused its discretion in apparently using a voir dire practice under which parties were not allowed “to peremptorily challenge any seated juror on whom the party had already passed.” But the court concluded that the error was harmless. Finally, it rejected defendant’s judicial misconduct claims. The victim (SH) testified that defendant raped her several times. A forensic exam revealed that she had “28 distinct injuries all over her body, including her genitals. The examining nurse testified that SH’s injuries—'the most significant’ she had seen in over 600 forensic examinations—were ‘very consistent’ with SH’s account.” In addition, DNA analysis indicated “that male DNA found on SH’s torn labia minora were 21 octillion times more likely to have originated from defendant than from an unknown donor. SH testified that she never had consensual sex with defendant during the two or three months she had known him. She identified” a black-handled hammer recovered by police as the one he “hit her with while raping her. DNA analysis of that hammer yielded ‘very strong support’ that SH and defendant were donors.” The court held that in light of SH’s testimony, the forensic exam, and the DNA analyses, there was sufficient evidence to establish counts of CSC I under MCL 750.250b(1)(c), (e), and (f). SH’s testimony was also sufficient to support inferences that he knowingly restrained her and intended to engage in CSC. Thus, the evidence was “sufficient to establish the elements of kidnapping beyond a reasonable doubt.” It was likewise sufficient to show that he, “intentionally and without consent, touched SH in a harmful or offensive manner by applying pressure to her throat or neck and by employing a hammer as a dangerous weapon.” The trial court’s peremptory challenge restriction only allowing a party to use the challenges as to newly-seated potential jurors who replaced a dismissed juror “violated the plain language of MCR 2.511(E)(3)(b) and (G)[.]” But the error did not require automatic reversal, and it was harmless here. Affirmed.

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  e-Journal #: 73039

  Case: Stermer v. Warren

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Clay and Moore; Dissent – Sutton

  Issues:

  Habeas corpus; 28 USC § 2254(d); The Antiterrorism & Effective Death Penalty Act; Barker v. Yukins; Satterlee v. Wolfenbarger; Northrop v. Trippett; Jordan v. Warden, Lebanon Corr. Inst.; Yarborough v. Alvarado; Whether the district court properly granted petitioner a full evidentiary hearing; Harrington v. Richter; Cullen v. Pinholster; Keeling v. Warden, Lebanon Corr. Inst.; Brumfield v. Cain; Maples v. Stegall; Johnson v. Williams; Barton v. Warden, S. Ohio Corr. Facility; MCR 6.504(B) & (D); Guilmette v. Howe; Luberda v. Trippett; Coleman v. Thompson; Prosecutorial misconduct; Darden v. Wainwright; Parker v. Matthews; United States v. Young; Hodge v. Hurley; Berger v. United States; Washington v. Hofbauer; Donnelly v. DeChristoforo; Cauthern v. Colson; Standard of review for prosecutorial misconduct in a habeas petition; Bates v. Bell; Macias v. Makowski; United States v. Carter; United States v. Carroll; United States v. Francis; Cristini v. McKee; Ineffective assistance of counsel; Strickland v. Washington; Wiggins v. Smith; Williams v. Taylor; Woods v. Etherton; Lundgren v. Mitchell; Richey v. Bradshaw

  Summary:

  [This appeal was from the ED-MI.] Even though the district court improperly conducted an evidentiary hearing and applied an incorrect standard of review to petitioner-Stermer’s habeas petition, the court affirmed its order granting her a conditional writ of habeas corpus based on prosecutorial misconduct and ineffective assistance of counsel. She was convicted of first-degree murder in the death of her husband. The court first concluded that the district court erred by granting Stermer a full evidentiary hearing because, applying the Richter presumption, the state court adjudicated her claims on the merits. Thus, she was not entitled to introduce new evidence. The court then reviewed her prosecutorial misconduct claim and held that the district court applied the wrong test by assessing Stermer’s claim in the context of the Sixth Circuit’s framework. The question was whether the state court reasonably applied Supreme Court precedent. Even so, on de novo review, the court held that “the prosecutor’s comments regarding Stermer’s credibility were improper, and their frequency, their context, and the weight of the evidence against Stermer all show she was denied a fair trial.” The prosecutor’s statements were not “rooted in the evidence” and “were predominantly based on the prosecutor’s own assessment that Stermer’s version of events was not credible.” Turning to Stermer’s ineffective assistance of counsel claim, the court agreed with the district court that trial counsel’s failure to object to the prosecutor’s statements at closing argument “significantly undercut Stermer’s defense and could not have been part of a reasonable trial strategy.” Also, while due to procedural complications the court did not ultimately rule on the merits of the claim that counsel’s failure to call a fire expert to counter the government’s expert constituted ineffective assistance, it found that, absent these procedural issues, the record suggested “counsel was ineffective for failing to call such an expert, and this failure had a meaningful chance of affecting the outcome of Stermer’s trial.”

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• Litigation (2)

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  This summary also appears under Negligence & Intentional Tort

  e-Journal #: 72963

  Case: Estate of Brogan-Genta v. Genta

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, O’Brien, and Cameron

  Issues:

  Motion for change of venue in a wrongful death action; MCL 600.1629; Karpinsky v. Saint John Hosp-Macomb Ctr. Corp.; MCL 600.1629(1)(a)-(c); Massey v. Mandell; “Resides”; “Domicile”; “Residence”; Grange Ins. Co. of MI v. Lawrence; Curry v. Jackson Circuit Court; Coleman v. Gurwin; Schultz v. Silver Lake Transp., Inc.; Hills & Dales Gen. Hosp. v. Pantig

  Summary:

  Holding that the trial court clearly erred by denying defendant’s motion to change venue because venue was proper in Gladwin County and improper in Genesee County under MCL 600.1629(1)(a)(i), the court reversed and remanded. Plaintiff filed this wrongful-death case against defendant, the decedent’s husband. The complaint alleged that the motor vehicle accident occurred in Gladwin County. “Plaintiff relied on MCL 600.1629(1)(c) to justify the choice of venue in Genesee County.” Neither party argued that MCL 600.1629(1)(a)(ii) or (1)(b) applied. Thus, the court only examined MCL 600.1629(1)(a)(i) to determine whether, as defendant argued, this provision indicated that Gladwin County was the proper venue and that Genesee County was an improper venue. “Relevant to the appeal, venue is proper under MCL 600.1629(1)(a)(i) in the county where the original injury occurred if ‘[t]he defendant resides . . . in that county’ as well.” The dispute here centered “on whether defendant ‘resides’ in Gladwin County and the meaning of that term in the statute. The statute does not define the term ‘resides.’” The parties did not dispute that defendant owned homes in both counties. Plaintiff only submitted “evidence purporting to show that defendant’s primary residence, was in Genesee County. Moreover, plaintiff explicitly conceded that defendant owned the homes in each county.” In the trial court, the parties essentially argued about which one of his two homes was the pertinent one to consider for purposes of determining venue. The court concluded that they “misconstrued the meaning of the term ‘resides’ in MCL 600.1629(1)(a)(i), treating this term as if it were synonymous with the concept of domicile.” Also, the trial court “erred by basing its ruling on the same misconception . . . .” Nothing in the language of MCL 600.1629(1)(a)(i) states “that the defendant is limited to a single residence, or that defendant’s ‘primary’ or ‘principal’ residence is relevant, for purposes of determining venue.” The court noted that when the issue is “whether the defendant ‘conducts business’ in the county, which is an alternative means of satisfying MCL 600.1629(1)(a)(i) other than showing residence, we have acknowledged that an entity may conduct business in multiple counties.” Here, the “evidence that defendant owns a home in Gladwin County and stays there—even if it is a second home and not his domicile—demonstrates sufficient contact with Gladwin County to show that he ‘resides’ in Gladwin County for purposes of determining venue under MCL 600.1629(1)(a)(i).”

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  This summary also appears under Malpractice

  e-Journal #: 72975

  Case: Russell v. Ear, Nose, Throat Consultants

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – M.J. Kelly, K.F. Kelly, and Servitto

  Issues:

  Medical malpractice; Motion to deem admissions admitted; MCR 2.302(G)(1) & (2); MCR 1.109(E)(2) & (3); Effect of pro se litigant status; Bachor v. City of Detroit; People v. Herrera; Allowing plaintiff’s lawyer to withdraw; Argument raised for the first time in a motion for reconsideration; Vushaj v. Farm Bureau Gen. Ins. Co. of MI; Claim that plaintiff’s former lawyer & the lawyer for defendants-Dr. Stone & Ear, Nose & Throat Consultants (ENT) colluded against her; Right to a jury trial; Right to equal protection; Waived issues; Walters v. Nadell

  Summary:

  The court reversed the trial court’s order deeming the requests for admission admitted and remanded with instructions to provide plaintiff-Russell “an adequate opportunity to sign her answers in accord with MCR 2.302(G)(2) and MCR 1.109((E)(3).” It also vacated the order granting defendants-Dr. Stone and ENT summary disposition because it relied on the admissions that were improperly deemed admitted. Finally, it vacated the order awarding them taxable costs under MCR 2.625 since they were no longer the prevailing parties. This medical malpractice case arose from a total thyroidectomy performed on Russell by Dr. Stone while he was employed by ENT. On appeal, Russell argued “that the trial court abused its discretion by deeming Dr. Stone and ENT’s requests for admission admitted.” In their motion, they claimed that “no person (neither the party nor an attorney) has signed the responses in violation of MCR 2.302(G) and 1.109(E).” Both provisions have signature requirements. Russell was a pro se litigant. The court concluded that, to the extent the trial court found that she “failed to promptly sign the answers after the omission was called to her attention, the [trial] court clearly erred. Russell’s notification of the missing signature came by way of the motion to deem her to have admitted everything she was asked to admit.” There was “no indication in the record that the trial court alerted Russell to the missing signature.” The hearing on the motion was held approximately a week after her receipt of it. During that week, she submitted “a signed ‘Response to Defendant’s Motion to Dismiss’ in which she contested the claim that she failed to provide answers on the ground that her nephew had submitted those answers to” counsel for Dr. Stone and ENT. Although the “response did not supply the missing signature, it was an attempt to correct the record and to indicate that she stood by her answers. In totality, these circumstances” suggested that she was given insufficient opportunity to correct the missing signature after it was brought to her attention. “Her actions were not so dilatory as to constitute an abuse the discovery process, and the missing signature caused no disadvantage to Dr. Stone or ENT. Despite the trial court’s awareness of its obligation to provide some leeway to a pro se litigant such as Russell, striking Russell’s response pursuant to MCR 2.302 or MCR 1.109 was a drastic sanction that resulted in treating her unsigned answers as admissions, which then formed the basis for dismissing her case on summary disposition.”

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• Malpractice (2)

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  This summary also appears under Attorneys

  e-Journal #: 72971

  Case: Ashen v. Holmstrom

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Markey, Jansen, and Boonstra

  Issues:

  Legal malpractice; Estate of Mitchell v. Dougherty; Negligence; Simko v. Blake; Collateral estoppel; Keywell & Rosenfeld v. Bithell; Proximate causation; Charles Reinhart Co. v. Winiemko; Kloian v. Schwartz; Conclusory allegations; State ex rel Gurganus v. CVS Caremark Corp.; Summary disposition under MCR 2.116(C)(10); Quinto v. Cross & Peters Co.; Due process; Cummings v. Wayne Cnty.; Vicencio v. Ramirez; Notice of a summary disposition hearing; Effect of having actual notice; MCR 2.613(A); Judicial bias claim; MCR 2.003(C)(1)(a); In re Susser Estate; In re Contempt of Henry; Effect of involvement in a prior trial or other proceeding; People v. Upshaw; FMB-First Nat’l Bank v. Bailey

  Summary:

  Holding that, as a matter of law, most of plaintiff’s allegations failed to state a claim for legal malpractice, and that he did not offer any evidence supporting his allegations of collusion, deliberate deception, and fraud, the court affirmed summary disposition for defendant-attorney. Further, he was not entitled to any relief on his claim he was denied due process because he did not receive notice of a summary disposition hearing given that he had actual notice and appeared at the hearing. Finally, the court rejected his judicial bias claim, which was based only on the facts that the judge in this case also presided over the underlying property case and ruled against him in that suit. Plaintiff contended that defendant should have done more in responding to the summary disposition motion brought by defendants (the As) in the property case. But the court found that defendant’s decisions in responding to the As’ summary disposition motion, “including what arguments to make and what evidence to present, were tactical.” There was no indication he made those “tactical decisions with less than the knowledge, skill, and ability of an average attorney.” The fact that he was unsuccessful in defeating the motion did not give rise to a malpractice claim as he “did not have a duty to ensure a favorable outcome.” Plaintiff also challenged his handling of procedural matters. But these allegations also did not support a malpractice claim. They were “conclusory in nature, failing to set forth the basis on which [defendant] could have, or should have, objected to the reassignment, the scheduling order, or the denial of a stay. Further,” in an appeal in the property case the court had found that the trial court judge “had the authority to modify the scheduling order, that he did not abuse his discretion by removing the matter from case evaluation, and that [plaintiff] had no right to be heard at the status conference.” He was precluded from relitigating these issues by collateral estoppel. As to his contention that defendant did not “keep him adequately informed of proceedings in the property litigation, such as the status conference, or” otherwise acted unreasonably as to the procedural issues he raised on appeal, he could not establish proximate cause. He offered nothing indicating that these matters affected the outcome of the property case, in which construction liens were found dispositive.

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  This summary also appears under Litigation

  e-Journal #: 72975

  Case: Russell v. Ear, Nose, Throat Consultants

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – M.J. Kelly, K.F. Kelly, and Servitto

  Issues:

  Medical malpractice; Motion to deem admissions admitted; MCR 2.302(G)(1) & (2); MCR 1.109(E)(2) & (3); Effect of pro se litigant status; Bachor v. City of Detroit; People v. Herrera; Allowing plaintiff’s lawyer to withdraw; Argument raised for the first time in a motion for reconsideration; Vushaj v. Farm Bureau Gen. Ins. Co. of MI; Claim that plaintiff’s former lawyer & the lawyer for defendants-Dr. Stone & Ear, Nose & Throat Consultants (ENT) colluded against her; Right to a jury trial; Right to equal protection; Waived issues; Walters v. Nadell

  Summary:

  The court reversed the trial court’s order deeming the requests for admission admitted and remanded with instructions to provide plaintiff-Russell “an adequate opportunity to sign her answers in accord with MCR 2.302(G)(2) and MCR 1.109((E)(3).” It also vacated the order granting defendants-Dr. Stone and ENT summary disposition because it relied on the admissions that were improperly deemed admitted. Finally, it vacated the order awarding them taxable costs under MCR 2.625 since they were no longer the prevailing parties. This medical malpractice case arose from a total thyroidectomy performed on Russell by Dr. Stone while he was employed by ENT. On appeal, Russell argued “that the trial court abused its discretion by deeming Dr. Stone and ENT’s requests for admission admitted.” In their motion, they claimed that “no person (neither the party nor an attorney) has signed the responses in violation of MCR 2.302(G) and 1.109(E).” Both provisions have signature requirements. Russell was a pro se litigant. The court concluded that, to the extent the trial court found that she “failed to promptly sign the answers after the omission was called to her attention, the [trial] court clearly erred. Russell’s notification of the missing signature came by way of the motion to deem her to have admitted everything she was asked to admit.” There was “no indication in the record that the trial court alerted Russell to the missing signature.” The hearing on the motion was held approximately a week after her receipt of it. During that week, she submitted “a signed ‘Response to Defendant’s Motion to Dismiss’ in which she contested the claim that she failed to provide answers on the ground that her nephew had submitted those answers to” counsel for Dr. Stone and ENT. Although the “response did not supply the missing signature, it was an attempt to correct the record and to indicate that she stood by her answers. In totality, these circumstances” suggested that she was given insufficient opportunity to correct the missing signature after it was brought to her attention. “Her actions were not so dilatory as to constitute an abuse the discovery process, and the missing signature caused no disadvantage to Dr. Stone or ENT. Despite the trial court’s awareness of its obligation to provide some leeway to a pro se litigant such as Russell, striking Russell’s response pursuant to MCR 2.302 or MCR 1.109 was a drastic sanction that resulted in treating her unsigned answers as admissions, which then formed the basis for dismissing her case on summary disposition.”

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• Negligence & Intentional Tort (1)

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  This summary also appears under Litigation

  e-Journal #: 72963

  Case: Estate of Brogan-Genta v. Genta

  Court: Michigan Court of Appeals ( Unpublished Opinion )

  Judges: Per Curiam – Borrello, O’Brien, and Cameron

  Issues:

  Motion for change of venue in a wrongful death action; MCL 600.1629; Karpinsky v. Saint John Hosp-Macomb Ctr. Corp.; MCL 600.1629(1)(a)-(c); Massey v. Mandell; “Resides”; “Domicile”; “Residence”; Grange Ins. Co. of MI v. Lawrence; Curry v. Jackson Circuit Court; Coleman v. Gurwin; Schultz v. Silver Lake Transp., Inc.; Hills & Dales Gen. Hosp. v. Pantig

  Summary:

  Holding that the trial court clearly erred by denying defendant’s motion to change venue because venue was proper in Gladwin County and improper in Genesee County under MCL 600.1629(1)(a)(i), the court reversed and remanded. Plaintiff filed this wrongful-death case against defendant, the decedent’s husband. The complaint alleged that the motor vehicle accident occurred in Gladwin County. “Plaintiff relied on MCL 600.1629(1)(c) to justify the choice of venue in Genesee County.” Neither party argued that MCL 600.1629(1)(a)(ii) or (1)(b) applied. Thus, the court only examined MCL 600.1629(1)(a)(i) to determine whether, as defendant argued, this provision indicated that Gladwin County was the proper venue and that Genesee County was an improper venue. “Relevant to the appeal, venue is proper under MCL 600.1629(1)(a)(i) in the county where the original injury occurred if ‘[t]he defendant resides . . . in that county’ as well.” The dispute here centered “on whether defendant ‘resides’ in Gladwin County and the meaning of that term in the statute. The statute does not define the term ‘resides.’” The parties did not dispute that defendant owned homes in both counties. Plaintiff only submitted “evidence purporting to show that defendant’s primary residence, was in Genesee County. Moreover, plaintiff explicitly conceded that defendant owned the homes in each county.” In the trial court, the parties essentially argued about which one of his two homes was the pertinent one to consider for purposes of determining venue. The court concluded that they “misconstrued the meaning of the term ‘resides’ in MCL 600.1629(1)(a)(i), treating this term as if it were synonymous with the concept of domicile.” Also, the trial court “erred by basing its ruling on the same misconception . . . .” Nothing in the language of MCL 600.1629(1)(a)(i) states “that the defendant is limited to a single residence, or that defendant’s ‘primary’ or ‘principal’ residence is relevant, for purposes of determining venue.” The court noted that when the issue is “whether the defendant ‘conducts business’ in the county, which is an alternative means of satisfying MCL 600.1629(1)(a)(i) other than showing residence, we have acknowledged that an entity may conduct business in multiple counties.” Here, the “evidence that defendant owns a home in Gladwin County and stays there—even if it is a second home and not his domicile—demonstrates sufficient contact with Gladwin County to show that he ‘resides’ in Gladwin County for purposes of determining venue under MCL 600.1629(1)(a)(i).”

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• School Law (1)

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  This summary also appears under Civil Rights

  e-Journal #: 73100

  Case: Foster v. The Bd. of Regents of the Univ. of MI

  Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )

  Judges: Cole, Moore, Clay, Gibbons, Sutton, Griffin, Kethledge, White, Stranch, Donald, Thapar, Bush, Larsen, and Nalbandian; Not participating – Readler and Murphy

  Issues:

  Deliberate-indifference claim under Title IX of the Education Amendments (20 USC §§ 1681–1688) related to sexual harassment; Davis v. Monroe Cnty. Bd. of Educ.; Vance v. Spencer Cnty. Pub. Sch. Dist.; Patterson v. Hudson Area Schs.; Theno v. Tonganoxie Unified Sch. Dist. No. 464 (D KS); McPherson v. Kelsey; Kollaritsch v. Michigan State Univ. Bd. of Trs.; Whether the defendant-University had “actual knowledge” of the harassment; Whether the University’s course of action was unreasonable; Kelly v. Yale Univ. (Unpub. D CT); Whether there was an “admission of inadequacy” by the University; Pahssen v. Merrill Cmty. Sch. Dist.; Whether the University’s actions “caused” plaintiff to be harassed or made her more vulnerable; Williams v. Board of Regents of Univ. Sys. of GA (11th Cir.); Hartsel v. Keys; Bailey v. Floyd Cnty. Bd. of Educ. By & Through Towler; Soper v. Hoben; Stiles ex rel. D.S. v. Grainger Cnty.

  Summary:

  [This appeal was from the ED-MI.] In an en banc order, the court vacated its prior opinion (see e-Journal #72568 in the 3/13/2020 edition for that opinion), which had reversed summary judgment for defendant-University on plaintiff-Foster’s claim that the University was “deliberately indifferent” to the sexual harassment she suffered from a fellow student (respondent). The court voted for rehearing en banc and restored the case to the docket as a pending appeal.

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• Tax (1)

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  This summary also appears under Attorneys

  e-Journal #: 73101

  Case: Honigman Miller Schwartz & Cohn, LLP v. City of Detroit

  Court: Michigan Supreme Court ( Opinion )

  Judges: Markman, Zahra, Bernstein, and Cavanagh; Concurrence – Viviano, McCormack, and Clement

  Issues:

  Whether the phrase “services rendered in the city” in MCL 141.623 of the Uniform City Income Tax Ordinance (UCITO) (MCL 141.601 et seq.) encompasses legal services performed within the city but delivered to clients situated outside it; Taxation of a business’s “net profit” for business activities that are not “exclusively” conducted within the city; MCL 141.618; The “business allocation percentage method”; MCL 141.620-24; Apportionment of receipts from the sale of services; MCL 205.553(b)(1)(C)(2) & (3); MCL 205.553(c)(3)(b); MCL 206.123; MCL 206.665(2)(a); International Bus. Machs. Corp. v. Department of Treasury; “Rendered”; Defining terms undefined by statute; Oakland Cnty. Bd. of Comm’rs Rd. Comm’rs v. Michigan Prop. & Cas. Guar. Ass’n; “Services rendered”; MCL 141.612(b); MCL 141.613(b); MCL 141.614; Statutory interpretation; G C Timmis & Co. v. Guardian Alarm Co.; U.S. Fid. & Guar. Co. v. Michigan Catastrophic Claims Ass’n (On Rehearing); Bauserman v. Unemployment Ins. Agency; Tax Tribunal (TT)

  Summary:

  Holding that § 23 of the UCITO “encompasses all legal services performed, i.e., done or carried out within the city without regard to where” they are delivered, the court reversed the judgment of the Court of Appeals and remanded to the TT for entry of an order granting partial summary disposition for respondent-city. In determining petitioner-law firm’s tax liability, respondent calculated its revenue factor for services performed within the city (including those on behalf of out-of-city clients) as approximately 50% of petitioner’s gross revenue. The TT agreed with respondent’s position, concluding that, under § 23 of the UCITO, "services rendered in the city” encompasses all legal services performed within the city regardless of where those services are delivered. However, the Court of Appeals reversed, finding the pertinent consideration under § 23 is where the services are delivered to the client. In the present appeal, the court agreed with the TT that, “‘rendered’ means, as set forth by [respondent], ‘to do (a service) for another,' and not, as set forth by [petitioner], ‘to transmit to another: DELIVER.’” Thus, it found that “the Legislature adopted an ‘origin test,’ rather than a destination or market-based test, for the calculation of revenue from ‘services’ under the revenue factor. Section 23 encompasses all legal services performed, i.e., done or carried out, within the city without regard to where those services are delivered.” In so holding, the court acknowledged that “the terms ‘performed’ and ‘rendered’ generally have similar meanings and are effectively equivalent in their relative purposes within the statute. However, the distinctive contexts in which these terms appear accounts for the use of different words despite their similar meanings.” It concluded that respondent’s interpretation, rather than petitioner’s, set forth “the most reasonable understanding of the revenue factor” and the one that is “most harmonious with the statutory framework as a whole.” Accordingly, it concluded that “the Court of Appeals erred when it held that the determinative consideration under § 23 is where, in the end, the services are delivered to the client.” 

   

  Justice Viviano, joined by Chief Justice McCormack and Justice Clement, concurred in the majority’s holding that “MCL 141.623 encompasses all legal services done or carried out in” the city, and “with much of the analysis leading to that holding, in particular the historical discussion and comparative analysis of the [UCITO] and Michigan’s analogous state-taxation statutes.” However, they parted ways with the majority over Part III(D) of the opinion, “which confusingly endeavors to create ever-so-slight daylight between the terms ‘render’ and ‘perform,’ characterizing them as ‘similar’ but not the same.”  

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