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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Alleged “intentional breach” of the parties’ Unit Purchase Agreement (UPA); Contract interpretation; “Any”; Harrington v Inter-State Bus Men’s Accident Ass’n; Ambiguity; Kendzierski v Macomb Cnty
The court held that the trial court did not err by granting defendants partial summary disposition of plaintiff’s claims, concluding that plaintiff’s reading of the parties’ UPA was contrary to their intent and the UPA’s language. Plaintiff alleged intentional breach of the representations and warranties in Article II of the UPA, breach of the UPA, and fraud. The trial court found that any claim for breach of representations and warranties (intentional or otherwise) was within the scope of UPA § 8.5, which provided an 18-month limitations period. It granted summary disposition for defendants as to the breach claims but denied their motion as to the fraud claim. After plaintiff amended its complaint a second time, the parties stipulated to dismiss the case. On appeal, the court concluded that the “plain and ordinary language of the UPA establishes that the parties intended for claims of Intentional Breaches of the representations and warranties in Article II be brought under” § 8.1(a). In addition, plaintiff’s interpretation of § “8.1(a) to exclude claims of Intentional Breaches would render the carve outs in” §§ 8.6(a) and 8.6(b) meaningless, and plaintiff’s “interpretation of the phrase ‘agreement or other obligation’ to include representations and warranties of Article II” contradicted the language in § 8.1(a) and other parts of the UPA. Further, under § 8.5, “representations and warranties in Article II are terminated after 18 months after the Closing Date,” regardless of how they were breached, and “the reference to the termination of representations and warranties, and then the immediate reference to any claim of indemnity under Section 8.1(a) indicates that claims for breaches of representations and warranties must be brought under” § 8.1(a). Moreover, because the UPA “consistently refers to the representations and warranties in Article II as ‘representations and warranties,’ the parties presumably intended the term ‘representations and warranties’ to have a specific meaning.” In addition, § 8.6(k) “distinguishes representations and warranties from other obligations[.]” The court also rejected plaintiff’s claim that the parties’ conflicting interpretations of the UPA rendered it ambiguous. While plaintiff argued that the court “should apply a different interpretation of Section 8.1(a), which is contrary to its plain and ordinary language, plaintiff does not specifically identify any ambiguous language in the UPA. Plaintiff merely asserts that, because the parties could interpret the contract in different ways, it” was ambiguous. But plaintiff did not “establish that the UPA contains ambiguous terms.” Affirmed.
Motion to suppress evidence & statements; Probable cause; Confidential informant (CI)
Finding no errors warranting reversal, the court affirmed the trial court’s denial of defendant’s motion to suppress evidence and statements obtained by police where Detective M had probable cause to search the vehicle. Defendant argued that the CI’s tip “was insufficient to establish probable cause because it lacked detail and did not provide any predictive facts that officers could use to corroborate it.” Thus, because the CI’s “tip was about a potential future crime, and not a crime that had already been committed, defendant contends police officers did not know when this alleged crime would occur and, therefore, did not know at the time they stopped defendant’s vehicle whether he had picked up the cocaine by that time.” M testified that the CI “was someone with whom he had dealt with in the past and who had provided credible information on multiple occasions in the months leading up to this incident.” According to M, the CI’s “tip provided the following facts: a white man from the Grant area, driving a ‘new style’ maroon or red Chevrolet Silverado, would be in a certain area and would be picking up a large amount of cocaine. Police officers located a white man driving a newer model maroon or red Chevrolet Silverado” in that same area. "Police officers were also able to confirm that the vehicle was registered to defendant at an address in the Grant area.” All of the facts provided by the CI, “except the fact that defendant would be picking up a large amount of cocaine, were corroborated by police officers before the search of defendant’s vehicle was conducted. Although that fact was not corroborated by police officers before they searched defendant’s vehicle, police officers did observe defendant make two brief stops outside of residences which, on the basis of the officers’ training and experience, were consistent with drug trafficking behavior.” The court held that under “the totality of the circumstances, there was a fair probability that drugs would be found in defendant’s vehicle.” Thus, M “had probable cause to search defendant’s vehicle on the basis of the [CI’s] tip and subsequent corroboration of that tip.”
Judicial disqualification motion; MCR 2.003(C); Appearance of impropriety; Caperton v AT Massey Coal Co, Inc; Sentencing; Term-of-years sentence under MCL769.25a; Life without parole (LWOP) sentencing for juvenile offenders; Miller v Alabama; Montgomery v Louisiana
The court held that the circuit court chief judge did not err by affirming the resentencing judge’s denial of defendant’s judicial disqualification motion. In 2002, when defendant was 16, the court affirmed his sentences of LWOP for first-degree felony murder, and 2 years for felony-firearm. In 2021, the parties entered a sentencing agreement providing for a sentence of 33 to 60 years with credit for time served and submitted it to the circuit court for consideration. The resentencing judge rejected the agreement, refused to impose an alternative sentence, and advised the parties that it intended to set the matter for a Miller hearing. Defendant moved to disqualify the resentencing judge. The resentencing judge denied the motion. The circuit court’s chief judge also denied the motion after a hearing. On appeal, the court rejected defendant’s argument that the resentencing judge must be disqualified because he predetermined the sentence and his conduct otherwise created the appearance of impropriety. “The record does not support defendant’s claim that the resentencing judge predetermined defendant’s sentence.” Defense counsel waived the right to claim the resentencing court erred by offering a preliminary analysis, defendant failed to show any due-process violation, “let alone one so ‘extreme’ as to require judicial disqualification,” and the resentencing judge’s statements during the hearing “neither indicated that the court predetermined a sentence, nor demonstrated that the court would not impose a sentence within the statutorily defined sentence range if the opportunity arose to do so.” In addition, defendant failed to prove any actual prejudice, and his “argument that he need not demonstrate actual prejudice because the resentencing judge acted as a ‘factfinder or initial decisionmaker’” was unpersuasive. As to the appearance of impropriety, the court noted that because the sentencing judge’s “brief offscreen moments do not indicate inattentiveness or any other impropriety during the proceeding, such do not create an appearance of impropriety.” Similarly, the court was “not persuaded that viewing the parties in the Zoom default active speaker view mode was improper or created an appearance of impropriety.” Further, the record “belies defendant’s claim that the resentencing judge lacked legal competency,” and his argument that the resentencing judge “misunderstood and was hostile toward the Miller factors also lacks merit.” Affirmed
Custody; Proper cause & a change of circumstances (COC); Best-interest factors
The court concluded that the trial court’s findings regarding proper cause and COC were not against the great weight of the evidence. Also, the trial court erred as to three best-interest factors, but the court concluded that the errors were harmless. Further, because several of the best-interest factors favored plaintiff-father and none favored defendant-mother, it was not an abuse of discretion to award him sole legal custody. Defendant first argued that the trial court erred by finding that plaintiff established proper cause and a COC for purposes of reconsidering the existing custody arrangement. Defendant mischaracterized the record by claiming that the trial court found proper cause and a COC solely on the basis of one of the children’s “absences from virtual classes at the beginning of the school year. While the schooling issue was certainly a significant concern for the trial court, it was troubled by the deep-rooted acrimony and constant bickering between the parties as well. Taking both of these issues into account, the trial court’s findings” as to proper cause and COC “were not against the great weight of the evidence.” Next, defendant challenged the trial court’s finding that nearly every statutory best-interest factor favored plaintiff. Although the court held that the trial court erred as to several factors, it was not persuaded that the errors required reversal here. Finally, defendant argued that “the trial court erred by granting plaintiff sole legal custody and ordering parenting time in a manner that effectively gave plaintiff primary physical custody.” The court concluded that because “several of the best-interest factors favored plaintiff and none favored defendant, it was not an abuse of discretion to award plaintiff sole legal custody.” Affirmed.
Request for injunctive relief under the Open Meetings Act (OMA); MCL 15.271; “Ongoing violation”; Motion to file a supplemental complaint; MCR 2.118(E); Amending pleadings; MCR 2.118(A); Effect of Citizens for a Better Algonac Cmty Sch v Algonac Cmty Sch (CBACS); Undue delay; Consideration of evidentiary hearing testimony; Motion under MCR 2.116(C)(10); Distinguishing Christopher v Nelson; Whether asserted defenses were affirmative defenses; Distinguishing Kelly-Nevils v Detroit Receiving Hosp
The court concluded that the trial court did not abuse its discretion in denying plaintiffs’ motion to supplement or amend their complaint, or by considering evidentiary hearing testimony in deciding a motion under MCR 2.116(C)(10). It also found that “defendant’s asserted defenses were not affirmative defenses, and thus” it did not waive them. Further, as there was no evidence of ongoing violations, plaintiffs failed to show a genuine issue of material fact as to whether they were entitled to an injunction under the OMA. In a prior appeal (Vermilya I), it affirmed summary disposition for plaintiffs “on their claim that defendant violated the OMA by going into closed session without disclosing the name of” a pending case to be discussed. The case was returned to the trial court and reassigned to another judge. When plaintiffs submitted a proposed closing order granting them injunctive relief, defendant objected on the basis “the trial court had never ordered an injunction.” An evidentiary hearing was conducted to determine if such relief was needed. Plaintiffs argued on appeal that the court’s decision in CBACS “was a new event that supported the filing of” their proposed supplemental complaint. But while CBACS was decided after they filed their original complaint, the supplemental complaint sought to allege “additional OMA violations that occurred before” they filed the original complaint. They sought to add these allegations “to establish grounds for an injunction consistent with the standards enunciated in CBACS. Therefore, the additional claims did not come within the standards of a supplemental pleading under MCR 2.118(E).” The court added that “CBACS did not announce a new standard” for injunctive relief under MCL 15.271(1). Further, the court concluded that as the evidence showed “there was no longer an ongoing violation, and that plaintiffs were not at risk of immediate and irreparable harm[,]” the trial court did not err in granting defendant summary disposition. The “evidence established a commitment to compliance and a clear break from defendant’s past pattern of concealing the names of specific cases to be discussed in closed session.” Its prior violations were due to a misunderstanding of the OMA’s requirements, which Vermilya I clarified. The court affirmed summary disposition for defendant as to plaintiffs’ request for injunctive relief under the OMA.
Restrictive covenants as to unapproved exterior nonconforming alteration; Motion for reconsideration
In this dispute over the application of restrictive covenants, the court held that the trial court did not err in finding that plaintiff-Association proved defendants-the Merhis’s fence violated the Restrictions at issue. However, it did err when it originally denied the Association summary disposition as to the stone facade. It did not err in later granting the Association’s motion for reconsideration but erred in signing a proposed order that was too broad and did not comport with its “express or implied ruling.” The parties did not dispute the underlying facts as to the fence and stone facade. The Merhis asserted that “the Restrictions did not apply to them or their property because they did not have actual knowledge of the Restrictions.” However, accepting this “argument would turn on its head the essential principles of Michigan’s race-notice property law.” They also contended, for the first time on appeal, that “they did not need to get approval for their exterior improvements under Article II because the Association did not file suit to enjoin them from making the improvements before they contend that they may have completed the improvements.” However, the court noted that it was “undisputed the Merhis failed to submit any plans to the Association or its representative for approval. Therefore, neither exception to the approval requirement stated in Article II applies.” Because they failed to establish a genuine issue of fact regarding “whether they had to obtain the Association’s approval, the trial court did not err when it determined that the Association had shown that the Merhis breached the Restrictions by failing to submit plans for approval before commencing their renovations.” Had they submitted plans before they began “their work, the Association could have disapproved the plan and worked with the Merhis to help develop a plan in conformity and harmony with the existing design character of the structures in the subdivision. The Merhis’s failure to submit plans and unapproved exterior nonconforming alteration caused substantial injury and compelled the Association to enforce the Restrictions after the project had already been started and when any dispute would necessarily involve considerable expense.” Thus, the trial court did not err by refusing to excuse their “breaches of the Restrictions as a mere technical violation.” The court affirmed the trial court’s grant of the Association’s motions for reconsideration and summary disposition. However, it vacated the trial court’s order, and remanded for entry of a new order that comported with the trial court’s oral ruling.
Termination under §§ 19b(3)(c)(i), (g), & (j); Child’s best interests; MCL 712A.19b(5); Personal protection order (PPO)
Holding that §§ (c)(i), (g), and (j) were established, and that termination was in the child’s (G) best interests, the court affirmed the trial court’s order terminating respondent-father’s parental rights. G came into care due to physical and emotional abuse “by respondent. At the time of removal, respondent also struggled with his own mental health problems which affected his ability to properly care for” G. Evidence showed that he had issues with “ongoing anger and volatility. He mistreated two different therapists.” He threatened to kill one therapist, blaming her for the fact G did not sleep the night before, and “for failing to fix” G. He also displayed “threatening and violent behavior against his new therapist” only a few months later. That therapist obtained a PPO against him. In addition, he exhibited “similar threatening and violent behavior toward” G’s foster care worker during separate home visits, causing “her to conclude that it was no longer safe for her to be in respondent’s home. Testimonies of witnesses established respondent’s unwillingness and inability to change the conditions that led to” G’s removal. The court concluded that he did not “address his problematic behavior that led to” G’s removal, and that the trial court did not err in finding § (c)(i) supported termination. Further, “clear and convincing evidence established respondent’s failure to provide” G with proper care. He “continued to act abusively and emotionally unstable toward [G] and others around him, including, being physically rough and emotionally abusive to [G] in front of therapists and caseworkers.” He contended the trial court erred in terminating his “rights because he did everything DHHS asked by attending counseling and participating in visitation appropriately. Mere participation in his service plan, however, does not suffice.” As to § (j), the record indicated that G suffered “physical and emotional injury at the hands of respondent and his girlfriend. Caseworkers and therapists personally observed such behavior.” Finally, the record supported the trial court’s finding that termination was in G’s best interests. In addition to the apparent lack of a bond between them, the evidence indicated “that respondent lacked parenting ability and did not place the child’s interests before his own.”