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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 four Michigan Court of Appeals published opinions under Criminal Law, Family Law, and Insurance, and one Michigan Court of Appeals published-after-release opinion under Attorneys/Malpractice.


Cases appear under the following practice areas:

    • Alternative Dispute Resolution (1)

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      This summary also appears under Litigation

      e-Journal #: 59928
      Case: Bidasaria v. Central MI Univ.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Jansen, Meter, and Beckering
      Issues: Action to vacate an arbitration award; Limitations period; MCR 3.602(J)(1) & (3); MCL 600.5807 (statute of limitations for general contract actions); Applicability of City of Ann Arbor v. American Fed’n of State, Cnty., & Mun. Employees (AFSCME) Local 369; The revised Michigan Uniform Arbitration Act (MUAA) (MCL 691.1681 et seq.); MCL 691.1683(1) & (2); Knoke v. East Jackson Pub. Sch. Dist.; Presumption that the Legislature acts with knowledge of the state appellate courts’ statutory interpretations; Gordon Sel-way, Inc. v. Spence Bros., Inc.; People v. Henderson; A “frivolous” claim; MCL 600.2591(1) & (3); MCR 2.114(F); Kitchen v. Kitchen; Jerico Constr., Inc. v. Quadrants, Inc.; Legal position “devoid of arguable legal merit”; MCL 600.2591(3)(a)(iii); Taylor v. Lenawee Cnty. Bd. of Rd. Comm’rs
      Summary: The court held that the trial court properly granted the defendant summary disposition because the plaintiff’s action to vacate an arbitration award was time-barred by MCR 3.602(J)(1). However, the trial court clearly erred in finding that plaintiff’s claims were not frivolous. Thus, the court affirmed in part, reversed in part, and remanded for a determination of the proper amount of defendant’s costs and fees. Plaintiff was a tenured professor on defendant’s faculty until he was terminated in 2009. Plaintiff filed a grievance with his union and appealed his discharge to final and binding arbitration. In 2010, “the arbitrator denied the grievance, concluding that defendant acted reasonably and had just cause to terminate plaintiff.” Plaintiff then sued in federal court. The federal district court granted defendant summary judgment on plaintiff’s Title VII claim, finding that he failed to establish a prima facie case of discrimination. It also ordered that defendant was entitled to sanctions for the costs and fees incurred in filing its supplemental brief. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s judgment, found that “plaintiff’s appeal was frivolous and ordered him to pay $5,000 in sanctions to defendant.” Plaintiff sued defendant in state court in 2012, alleging the same discrimination and retaliation claims. Defendant was granted summary disposition. Plaintiff filed this action in 2013. While he relied on City of Ann Arbor in arguing that the time limits in MCR 3.602(J) did not apply to his claims, the court concluded that “City of Ann Arbor has no application to the revised MUAA, and plaintiff’s reliance on that case is misplaced.” Further, the grievance procedure at issue “specifically stated that ‘[t]he decision of the arbitrator shall be final and binding on the parties.’ After submitting to binding arbitration, an individual cannot pursue a breach of contract claim against an employer unless that person is first successful in showing a breach of the duty of fair representation.” Plaintiff made no such claim. In finding that he filed a frivolous claim, the court concluded that he “had no reasonable basis to believe that the facts underlying his legal position were in fact true pursuant to MCL 600.2591(3)(a)(ii)” and that his “legal position was devoid of arguable legal merit under MCL 600.2591(3)(a)(iii).”

    • Attorneys (2)

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      This summary also appears under Malpractice

      e-Journal #: 59953
      Case: Bowden v. Gannaway
      Court: Michigan Court of Appeals ( Published-After-Release Opinion )
      Judges: Per Curiam – Wilder, Servitto, and Stephens
      Issues: Attorney malpractice; Charles Reinhart Co. v. Winiemko; Whether defendants' alleged professional negligence was a proximate cause of plaintiffs' alleged injuries; Polania v. State Employees' Ret. Sys.; MCL 38.24 (governing the award of non-duty disability retirement benefits to state employees); Gordon v. City of Bloomfield Hills; Office of Retirement Services (ORS)
      Summary: [This opinion was previously released as an unpublished opinion on 3/24/15.] The court held that because plaintiffs could not establish that plaintiff-Janell Bowden would have prevailed had defendants filed a timely appeal of the initial denial of her application for benefits, plaintiffs could not show that defendants' alleged negligence was a proximate cause of their alleged damages and, thus, the trial court did not err in dismissing their claim. Plaintiff filed an application with Michigan's ORS for non-duty disability retirement benefits. The physician designated by the State to examine her application and medical records concluded that she was not totally and permanently disabled, and that she "should be able to return to her past job." In a letter, the ORS denied her application and informed her that she had 60 days from the date of the letter to appeal the decision. Plaintiff engaged codefendant-Gannaway to represent her on appeal. "However, the appeal was not filed timely." Plaintiffs filed a professional negligence case against defendants, based upon the failure to file a timely appeal of the ORS denial of the non-duty retirement. In order to prevail on their legal malpractice claim, plaintiffs had to show that, but for the failure to timely appeal the denial of Janell's application for non-duty disability retirement benefits, she would have been awarded the benefits. Plaintiffs argued that, before Polania, an appeal of the Retirement System's denial of Janell's application would have been governed by Gordon, which required a reviewing court to "consider all the evidence on the record, not just that supporting the agency's decision." Plaintiffs asserted that had defendants filed a timely appeal, "a review of the 'whole record' would have resulted in reversal of the denial because assessments from several independent physicians clearly established the disability." Contrary to plaintiffs' insistence, this matter did "not involve the question of the retroactive application of a new rule or principle." The court noted preliminarily that the statute interpreted by the Polania court was a predecessor statute. It was undisputed that the medical advisor had not certified Janell "as totally and permanently disabled, and that without such certification, she was ineligible for benefits under the plain language of MCL 38.24(1)(b)." Affirmed.

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      This summary also appears under Litigation

      e-Journal #: 59922
      Case: Smith v. Babbitt, Johnson, Osborne & Le Clainche, PA
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Beckering and Boonstra; Concurring in part, Dissenting in part – Jansen
      Issues: Attorney fee dispute related to a fee-sharing agreement; Whether the defendant-law firm was subject to general personal jurisdiction in Michigan; Electrolines, Inc. v. Prudential Assurance Co., Ltd.; MCL 600.711; MCL 600.745; Lease Acceptance Corp. v. Adams; Factors in determining whether a corporation carries on “a continuous and systematic part of its general business” in the state; Glenn v. TPI Petroleum, Inc.; Goodyear Dunlop Tires Operations, SA v. Brown; Kircos v. Lola Cars Ltd.; Whether the firm was subject to specific personal jurisdiction here; Yoost v; Caspari; MCL 600.715; Oberlies v. Searchmont Resort, Inc.; Due process; Starbrite Distrib., Inc. v. Excelda Mfg. Co.; Burger King Corp. v. Rudzewicz; Aaronson v. Lindsay & Hauer Int’l Ltd.
      Summary: While the court held that the defendant-law firm (Babbitt) was not subject to general personal jurisdiction in Michigan, it upheld the trial court’s conclusion that Babbitt was subject to specific personal jurisdiction under MCL 600.715(1). Further, it held that subjecting Babbitt to specific personal jurisdiction here comported “with notions of fair play and substantial justice,” and was permissible under the Due Process Clause. Thus, the court affirmed the trial court’s order denying Babbitt’s summary disposition motion in this attorney fee dispute. Plaintiff-Smith retained the plaintiff-law firm (Goodman) to represent her in pursuing claims related to an auto accident. Goodman entered into a fee-sharing agreement with Babbitt. The court concluded that the trial court erred in ruling that Babbitt consented to general personal jurisdiction in Michigan via the Michigan choice-of-law provision in the agreement, noting that “the contract did not contain a Michigan forum selection clause” and thus, “Babbitt did not explicitly agree or consent to the adjudication in a Michigan court of any dispute arising under the contract.” The trial court also erred in finding that “Babbitt carried on a continuous and systematic part of its general business” in Michigan. However, the court concluded that the trial court correctly ruled that Babbitt was subject to specific personal jurisdiction in Michigan. “Babbitt entered into the fee-sharing agreement with Goodman, including a Michigan choice-of-law provision. Although the underlying litigation proceeded in Florida, Goodman is a Michigan corporation, and Babbitt communicated with Goodman in Michigan on a consistent basis” during the litigation. “Further, Babbitt’s assent to the fee-sharing agreement meant that it agreed to a continuing contractual relationship with Goodman, a Michigan firm, with a Michigan choice-of-law provision, to litigate against a Michigan company” (defendant-Auto-Owners). The relationship lasted nearly five years. Babbitt’s employees traveled to Michigan to participate in taking depositions. Taken together, the court held that “the contacts were sufficient to constitute the transaction of business by Babbitt within Michigan.” Further, “Babbitt purposefully availed itself of the privileges of conducting activities” here, the cause of action arose from its activities here, and relevant “considerations of fairness” showed that Michigan was “a reasonable forum for the adjudication of the dispute between Babbitt and Goodman.”

    • Business Law (1)

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      e-Journal #: 59927
      Case: BBC Rest. LLC v. BDC Ltd. LLC
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Talbot, Cavanagh, and Meter
      Issues: Common law & statutory conversion claims arising from the sale of a business; Department of Agric. v. Appletree Mktg., LLC; Foremost Ins. Co. v. Allstate Ins. Co.; MCL 600.2919a; BBC Restaurant LLC (BBC); Coolidge Investments LLC (Coolidge); BDC Limited LLC (BDC)
      Summary: Under all the circumstances, the court held that the trial court did not err in granting defendant-Feldman summary disposition as to plaintiffs-BBC and Coolidge’s conversion claims against him. The case arose from the sale of a business. Feldman was the sole member of defendant-BDC, which purchased a restaurant and related assets from BBC. Coolidge owned the building and leased the premises to BDC. While the sale was pending, BDC and its agent, R, managed the restaurant. BDC defaulted on its payment obligations. The trial court issued an order that required BDC and R to return, within seven days, certain equipment that had been removed from the restaurant. The order was violated. R filed for bankruptcy. At the bankruptcy hearing, R testified that “he removed equipment from the restaurant pursuant to Feldman’s instructions. Feldman offered to arrange the return of at least some of the assets.” Based upon the allegedly improper removal of collateral, plaintiffs alleged both common law and statutory conversion against Feldman. As support for their position that a question of fact existed as to whether Feldman committed conversion, they pointed to the testimony provided by R in connection with his bankruptcy. Plaintiffs believed that the references to “BBC” provided evidence that R “removed BBC property at the direction of Feldman.” However, it was “patently apparent that these references to ‘BBC’ were either transcription errors or misspoken words.” Feldman was not a member “of the BBC” but the sole member of BDC. Further, the full name of BDC is “BDC Limited LLC” and the full name of BBC is “BBC Restaurant LLC,” and R was asked about “BBC Limited, L.L.C.” The only fair reading of the testimony indicated that what R “actually meant was that he removed equipment owned by BDC, not BBC, at Feldman’s direction.” This was consistent with Feldman’s testimony that he did not instruct R to remove collateral as defined in the financing statement. Thus, plaintiffs failed to point to sufficient evidence that Feldman directed R to remove collateral owned by plaintiffs. They also failed to establish any genuine issue of material fact as whether Feldman exercised dominion over collateral. Affirmed.

    • Contracts (1)

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      This summary also appears under Real Property

      e-Journal #: 59937
      Case: Great Lakes Shores Inc. v. Bartley
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Hoekstra, Sawyer, and Borrello
      Issues: Attorney fees related to an action for unpaid lot owner assessments on resort property; The Summer Resort Owners Corporation Act (SROCA) (MCL 455.201 et seq.); Contract provision as to attorney fees; Fleet Bus. Credit v. Krapohl Ford Lincoln Mercury Co.; A corporation’s bylaws as a contract between the corporation and its shareholders; Allied Supermarkets, Inc. v. Grocer’s Dairy Co.; Late fees
      Summary: Holding that the trial court should have awarded the plaintiff-nonprofit corporation attorney fees that it incurred to recover unpaid dues and assessments, the court reversed the trial court’s denial of attorney fees and remanded for further proceedings. Plaintiff, which is organized under the SROCA, is designated to administer a summer resort. “Lot owners are required to pay yearly dues and assessments, which are used to maintain the resort property and to pay for taxes and insurance.” Plaintiff alleged that “defendant paid her dues and assessments from 2004 through 2009, but that she thereafter failed to pay. According to plaintiff, the amount of dues and assessments owed was $400.” In 2012, plaintiff recorded a lien for the unpaid dues and assessments, and it later filed suit. In moving for summary disposition, plaintiff “sought $400 in unpaid dues and assessments, $40 in late fees, $574.40 in court costs, and $6,007.29 in attorney fees. In its motion, plaintiff did not seek to foreclose its lien, but it argued in its brief that it was entitled to seek foreclosure.” The trial court granted plaintiff summary disposition because defendant did not provide any evidentiary materials to contradict plaintiff’s evidence showing that she had received the invoices. However, it declined to award plaintiff attorney fees and later denied plaintiff’s motion for reconsideration. The court concluded that it was “clear that defendant, as a lot owner in the resort, was a shareholder” in the plaintiff. “The bylaws of a corporation constitute a contract between a corporation and its shareholders.” The bylaws at issue stated that all “annual dues and/or special assessments levied against any or all members not paid by August 31st each year shall become a lien upon the property of the delinquent member and such delinquencies may be enforced by Court action. All costs of such action shall be assessed to the member and become part of said lien, including by [sic] not limited to actual attorney fees.” While defendant argued below that attorney fees were only recoverable if plaintiff foreclosed its lien, the provision clearly contemplated “permitting both a lien and a separate action to collect delinquent dues.” Further, $40 in late fees were appropriate.

    • Criminal Law (5)

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      e-Journal #: 59949
      Case: People v. Lyon
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – Gleicher, K.F. Kelly, and Servitto
      Issues: Whether the defendant’s electric scooter was a “vehicle” under the Michigan Vehicle Code (MVC) (MCL 257.1 et seq.); Statutory construction; People v. Zajaczkowski; People v. Cole; McAuley v. General Motors Corp.; MCL 257.625(1); MCL 257.624a; “Motor vehicle” & “vehicle” defined; “Electric personal assistive mobility device” defined; MCL 257.13c; Claim that the scooter is a “low-speed vehicle” subject to different rules of operation; MCL 257.25b; 49 CFR §§ 571.3 & 571.500; People v. Rogers; MCL 257.19a(c)(ii); MCL 257.612; Operating a vehicle while intoxicated, third offense (OWI)
      Summary: Holding that the defendant was using the scooter as a vehicle on a public highway and thus, was subject to the rules of the road, the court concluded that the trial court committed clear legal error and abused its discretion in dismissing the charges. The district court bound defendant, who is disabled, over for trial on charges of OWI and possessing an open container of alcohol in a vehicle “for driving his personal electric scooter on a public highway while intoxicated and drinking a can of beer.” He did not challenge that he was intoxicated and in possession of an open container of alcohol. He did not contest that he was travelling “upon the highway.” Rather, he convinced the trial court that his scooter did not qualify as a “vehicle.” The trial court found that the scooter was “an electric personal assistive mobility device” exempt from the definition of “motor vehicle.” MCL 257.13c defines an “electric personal assistive mobility device” as “a self-balancing nontandem 2-wheeled device, designed to transport only 1 person at a time . . . .” As noted by the prosecution, “such devices are generally called ‘Segways.’” The court concluded that the trial court clearly erred in characterizing the scooter under this definition. It is a four-wheel device. This fact also disqualified the scooter from being a “low-speed vehicle.” Further, “even if defendant’s scooter qualified as an electric personal assistive mobility device, low-speed vehicle, or moped, his conduct would not be exempt from prosecution.” The scooter “was a device upon which a person was transported upon a highway.” The court concluded that just as “the MVC applied to the Rogers defendant’s snowmobile when used as a ‘vehicle’ ‘upon a highway,’ the MVC governed the current defendant’s conduct when he used his scooter as a vehicle upon a highway.” Reversed and remanded.

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      This summary also appears under Juvenile Law

      e-Journal #: 59904
      Case: In re Ali
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Riordan, Jansen, and Fort Hood
      Issues: Sufficiency of the evidence; People v. Meshell; Attempted second-degree home invasion; MCL 750.110a(3); People v. Nutt; “Attempt”; People v. Jones; People v. Adams; Intent; People v. Lugo; Circumstantial evidence; People v. Carines; The fact-finder’s role of determining the weight of evidence or the credibility of witnesses; People v. Eisen; Findings of fact; MCR 2.517(A)(1); Principle that a trial court’s failure to find every element does not necessarily render its findings insufficient; People v. Jackson; People v. Lanzo Constr. Co.; Principle that a judge in a bench trial must arrive at a decision based upon the evidence in the case; People v. Simon; Right to confront witnesses; People v. Ramsey
      Summary: The court held that there was sufficient evidence to support the respondent-juvenile’s adjudication of responsibility for attempted second-degree home invasion. The trial court ordered that he be placed in the home of his parents and imposed 182 days of probation. On appeal, the court rejected his argument that there was insufficient evidence to establish the elements of attempted second-degree home invasion. “Because of the circumstances and facts surrounding the incident, a rational trier of fact could infer respondent had the intent to enter [the victim’s] dwelling, by breaking or without permission, and to commit a larceny or felony inside the dwelling.” Further, he “acted in furtherance of his intent to enter [the] dwelling, by breaking or without permission, and to commit a larceny or felony” inside the dwelling. “When viewed in the light most favorable to the prosecution, sufficient evidence was presented to establish that [he] attempted to enter [the] dwelling, by breaking or without permission, with the intent to commit a felony or a larceny in the dwelling.” The court also rejected his argument that the trial court did not make adequate findings of fact and relied on improper evidence when it reached its verdict. Because the trial court was aware of the issues in the case and correctly applied the law to the facts,” its findings were sufficient. Finally, it rejected his argument that the trial court relied on improper evidence when reaching its verdict. Because a fact-finder "should use his or her own common sense and everyday experience in evaluating evidence, the trial court did not rely on improper evidence.” Affirmed.

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      e-Journal #: 59933
      Case: People v. Farrsiar
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Boonstra, Saad, and Murray
      Issues: Sufficiency of the evidence to support the defendant’s convictions related to manufacturing meth; People v. Gonzalez; People v. Meshell; Witness credibility; People v. Lemmon; People v. Avant; Double jeopardy; Claim that defendant’s conviction of violating MCL 333.7401c(2)(f) violated double jeopardy because it imposed a second punishment for the same offense underlying his convictions for violating MCL 333.7401c(2)(d); People v. Routley; People v. McGee; People v. Parker; The Blockburger v. United States “same elements” test; People v. Smith; Drug test report & expert testimony; MRE 702; People v. Dobek; People v. Yost; Constitutional right to present a defense; People v. Kowalski; Motion to suppress evidence found in defendant’s cell phone; People v. Unger; People v. Tuttle; Riley v. California; Ineffective assistance of counsel; Strickland v. Washington; People v Pickens; Abandoned issue; Mitcham v. Detroit
      Summary: Concluding that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the court held that the evidence was sufficient to convict him of three counts related to manufacturing meth. His primary argument was that the evidence was insufficient because K was not a credible witness. On cross-examination, K conceded that “she changed her story and implicated defendant immediately after pleading guilty pursuant to a plea bargain from the prosecutor’s office.” The jury also heard K testify that “she suffers from and is medicated for mental illness that affects her thought process.” On the other hand, K’s story was at least partially supported by “(1) video surveillance images that show her and defendant purchasing the household ingredients used to make meth, (2) pharmacy record logs indicating that defendant bought pseudoephedrine, and (3) instructions for making meth found on defendant’s phone.” Presumably, the jury found K “to be a credible witness and believed that she was telling the truth at trial.” Thus, both direct and circumstantial evidence supported the verdict. The court also held that, pursuant to Routley, defendant’s convictions under MCL 333.7401c(2)(f) and MCL 333.7401c(2)(d) did not violate double jeopardy principles. Affirmed.

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      e-Journal #: 59939
      Case: People v. Houthoofd
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Boonstra, Saad, and Murray
      Issues: Sentencing; Whether the trial court had jurisdiction when resentencing the defendant; MCR 7.302(C)(5); MCR 7.302(C)(4)(a); MCR 7.215(E)(1); MCR 7.215(F)(1)(a); People v. Swafford; People v. Clement; Judicial disqualification; MCR 2.003(D)(3)(a)(i); Sinicropi v. Mazurek; Welch v. District Court; People v. Danto; MCR 8.111(C)(1); Caperton v. Massey; Timeliness of resentencing; Applicability of MCL 771.1(2); Presentence investigation report; MCR 6.425; People v. Triplett; Scoring of 15 points for prior record variable 6; MCL 777.56; MCL 777.56(1)(b)
      Summary: As the prosecution conceded, the trial court lacked jurisdiction when resentencing the defendant. Thus, the court vacated his sentence and remanded for resentencing. Defendant argued that his sentence must be vacated because the trial court did not have jurisdiction to resentence him while his timely leave application to the Supreme Court was pending. The prosecution agreed that “defendant’s application for leave to appeal was timely and should have stayed the proceedings on remand.” MCR 7.302(C)(5) provides, in part, that if “a party appeals a decision which remands for further proceedings as provided in subrule (C)(4)(a), the following provisions apply: (a) If the Court of Appeals decision is a judgment under MCR 7.215(E)(1), an application for leave to appeal stays proceedings on remand unless the Court of Appeals or the Supreme Court orders otherwise.” MCR 7.215(F)(1)(a) “provides that ‘the Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.’” In Swafford, the Supreme Court noted that the defendant’s timely application for leave to appeal the court’s judgment “stayed the proceedings on remand and divested the trial court of jurisdiction during the pendency of the appeal” to the Supreme Court. “‘When a court is without jurisdiction of the subject matter, its acts and proceedings are of no force and validity; they are a mere nullity and are void.’”

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      e-Journal #: 59916
      Case: People v. McKee
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Boonstra, Saad, and Murray
      Issues: Severance & joinder; MCR 6.120(B) & (C); People v. Williams; Carrying a concealed weapon (CCW)
      Summary: The court held that the trial court did not err by denying the defendant’s motions to reconsider its order consolidating two criminal cases against him, or in the alternative to sever the charges for separate trials. He was charged with arson and CCW in separate cases. The trial court granted the prosecution’s motion to consolidate the cases, over defendant’s objection. On appeal, the court rejected his argument that the charged arson and CCW offenses were not “related” under MCR 6.120(B)(1), noting that the two charges “shared some of the same facts and circumstances and, according to the prosecution’s representations, contained areas of overlapping proof.” Thus, the trial court’s decision to consolidate the cases was not outside the range of principled outcomes. Although defendant took issue with the prosecution’s failure to identify what evidence from his arrest "would be introduced at trial, we do not find that the prosecution’s lack of specificity renders the trial court’s decision an abuse of discretion.” Affirmed.

    • Employment & Labor Law (1)

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      This summary also appears under Negligence & Intentional Tort

      e-Journal #: 59936
      Case: Watz v. Wal-Mart Stores E. LP
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Talbot, Cavanagh, and Meter
      Issues: The Persons With Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); “Hostile work environment” claim based on disability harassment; Radtke v. Everett; Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs; Corley v. Detroit Bd. of Educ.; Marsh v. Department of Civil Serv.; Claim that being called “dumb” and “stupid” was evidence of discrimination when viewed in light of the fact that plaintiff has cerebral palsy; Whether defendant-Walmart took prompt remedial action; Respondeat superior hostile work environment claim; Notice; Chambers v. Trettco, Inc.; Intentional infliction of emotional distress (IIED); Roberts v. Auto-Owners Ins. Co.
      Summary: The court reversed the trial court's order denying defendants-Ledbetter and Walmart’s motion for summary disposition in this employment-dispute case and remanded for entry of judgment in their favor. “Plaintiff has had cerebral palsy since birth. It affects his coordination, ability to write legibly, speech patterns, and gait.” The appeal concerned his claims against Ledbetter and against Walmart on a respondeat superior theory. He alleged a hostile work environment based on disability harassment contrary to the PWDCRA. He asserted that, because of his disability, “Ledbetter yelled at him and badgered him, refused to give him earned days off, prevented him from performing his job, and removed personnel from his department.” On appeal, defendants argued that plaintiff could not establish that “Ledbetter’s conduct or communications were based on his disability.” The evidence showed that “Ledbetter had a difficult management style and had received coachings” as to her management style because “employees other than plaintiff had complained about her." However, no evidence indicated that “Ledbetter’s treatment of plaintiff was based on his disability.” The court also concluded that plaintiff’s IIED claim against Ledbetter was not viable.

    • Family Law (3)

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      e-Journal #: 59952
      Case: Howard v. Howard
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – Talbot, Cavanagh, and Meter
      Issues: Custody; The Child Custody Act; Ruppel v. Lesner; Bowie v. Arder; Claim that the appellee (the brother of the now deceased plaintiff-mother) did not have standing; Effect of the fact the defendant-father initiated this case; The parental presumption owed to natural parents; MCL 722.25(1); Hunter v. Hunter; Award of children to a third-party custodian instead of a natural parent; Heltzel v. Heltzel; Whether the trial court properly conducted a best-interests hearing; Frowner v. Smith; The statutory best interest factors (MCL 722.23); Guardian ad litem (GAL)
      Summary: Noting that whether appellee-Blackburn had standing was not an issue given that it was the defendant-father who initiated this case by seeking judicial intervention after the plaintiff-mother died, the court held that the trial court properly conducted a best-interests hearing and focused on the children’s best interests. Blackburn was the plaintiff’s brother. When plaintiff and defendant divorced, plaintiff was granted primary physical custody. About four months before she passed away, plaintiff and the children moved in with Blackburn. Defendant later filed an emergency ex parte motion to enforce the judgment of divorce and return the children to him. The court noted that defendant, as a natural parent, “was entitled to a parental presumption over Blackburn in this dispute, even though the children had been living with Blackburn.” However, it did “not follow that Blackburn was precluded from contesting the return of the children to defendant; the parental presumption may be rebutted” and once defendant “filed this action, a ‘child custody dispute’ arose because Blackburn had physical custody” of the children. The trial court “had the right to award Blackburn custody of the children if certain circumstances existed.” The court also rejected defendant’s claim that the trial court ignored the parental presumption in conducting the best-interests hearing. “Blackburn was properly permitted to present evidence in an attempt to rebut the presumption that the children’s best interests required physical custody with defendant.” To the extent that defendant challenged the trial court’s obvious concerns as to his fitness, the court found this challenge “without merit.” The trial court “noted defendant’s obvious mental and physical deficits” (he has multiple sclerosis), as well as the fact that it was his “sister who was speaking for defendant" and pursuing the matter "rather than defendant. The GAL also indicated that defendant did not know the name of the school that his children attended, where they lived, or the day of the week that they came to visit him. Further, when asked how he would care for the children, defendant told the GAL that the children ‘were big, [and] they could take care of themselves.’” The court affirmed the trial court’s order awarding Blackburn custody.

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      e-Journal #: 59950
      Case: Lee v. Smith
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Gadola, Murphy, and Stephens
      Issues: Post-majority child support; Support & Parenting Time Enforcement Act (SPTEA) (MCL 552.601 et seq.) Whether MCL 552.605b(2) authorized the award of child support; Statutory interpretation; Driver v. Naini; Johnson v. Recca; People v. Likine; Lafarge Midwest, Inc. v. Detroit; Michigan’s divorce laws (MCL 552.1 et seq.); MCL 552.16; The Age of Majority Act (MCL 722.51 et seq.); Smith v. Smith; Holmes v. Holmes; MCL 552.16a. Rowley v. Garvin; MCL 552.605b; MCL 552.16(1) & (2)
      Summary: Holding that Subsection (5) did not apply to the circumstances here, and noting the defendant-father did not challenge the trial court’s determination that the requirements for post-majority child support in Subsection (2) were satisfied, the court affirmed the trial court’s support order. The order required him to pay child support of $580 a month from 8/7/13 to 5/31/14, while the parties’ son, who had attained the age of majority, attended high school. Defendant argued that the trial court erred in finding that MCL 552.605b(2), which is part of the SPTEA, authorized the award of child support. He contended that “Subsection (5) applies to, or otherwise precludes a court from imposing, a child support determination under Subsection (2) unless the parties have an agreement for post-majority child support.” The court rejected this reading of the statute. Subsection (2) “constitutes a continuation of the Legislature’s initial response to our Supreme Court’s decision in” Smith, which held that “a court has no jurisdiction to order post-majority child support absent an agreement by the parties, by establishing a court’s limited authority to order such support. Subsection (5) does not affect the authority granted in Subsection (2), but rather independently sets forth requirements for enforcing agreements for post-majority child support in a judgment or order, regardless of whether the agreement concerns a child who satisfies the requirements for support in Subsection (2).” Viewing Subsection (5) “as a limitation on Subsection (2) would prohibit courts from ordering any support for a child beyond the age of 18 absent the agreement of the parties. Such a reading would render Subsection (2) nugatory.” Further, the two subsections “have distinct and independent purposes. Subsection (2) permits courts, with certain conditions, to order support until a child reaches 19 years and 6 months of age, while Subsection (5) allows for orders extending beyond 19 years and 6 months, covering, for example, agreements to provide for college expenses.” Examining MCL 552.605b as a whole, the court held that defendant’s proposed interpretation would “contravene the Legislature’s clearly expressed intent to authorize courts to order support for a child between 18 and 19-1/2 years of age who is still attending high school as provided in Subsection (2).” Affirmed.

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      e-Journal #: 59946
      Case: Patterson v. Patterson
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Hoekstra, Sawyer, and Borrello
      Issues: Motion to change custody; Proposed move modifying the “established custodial environment” (ECE); MCL 722.27(1); Pierron v. Pierron; The statutory best interest factors (MCL 722.23); McIntosh v. McIntosh; Factors (d), (e), & (l); Ireland v. Smith
      Summary: The court held that the trial court’s conclusion that the plaintiff-mother’s proposed move would have modified the child’s ECE was not against the great weight of the evidence. Further, the trial court’s findings on MCL 722.23(d), (e), and (l) were not against the great weight of the evidence. Thus, the court affirmed the trial court’s order denying plaintiff’s motion to change custody of the parties’ child. It noted that the defendant-father “regularly exercised his parenting time,” and described himself as a “hands-on” parent. It was clear that “he took an active interest” in the child’s upbringing. He coached his t-ball team and was involved in his schooling. Defendant saw him “twice during the week, including an overnight visit, and every other weekend. This meant that defendant usually would not go more than four days without” seeing him. “If custody were changed, weekday visits, overnight or otherwise, would have been impractical” for a 5-year-old child given the 70-mile distance between the city where the parties currently lived and the township to which plaintiff sought to move. The court rejected plaintiff’s claim that “undue emphasis was given to” defendant’s and the child’s involvement in t-ball, concluding that defendant was actively involved in all aspects of the child’s life, and “plaintiff’s proposed move would have had a significant impact on that involvement.” Further, the trial court’s findings that the parties were equal on best interest factors (d) and (e) were not against the great weight of the evidence. “Contrary to plaintiff’s suggestion, there is nothing inherent in living with parents/grandparents that makes the home environment unstable. In any event, there is no indication in the record that either party’s parents had threatened or intended to evict them. The trial court apparently found that it was desirable to maintain the current environment.” It also “correctly found that it was speculative whether the move would benefit” the child due to increased earnings by plaintiff. The fact that she “might obtain independent housing at some point in the future” did not mean that he “will have a more stable family environment with her rather than defendant.” As to factor (l), the trial court found no other factors were relevant. Plaintiff did not present any evidence corroborating her assertion that the township schools were better than the schools in which the child was currently enrolled.

    • Insurance (1)

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      e-Journal #: 59951
      Case: Agnone v. Home-Owners Ins. Co.
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – Wilder, Owens, and M.J. Kelly
      Issues: The No-Fault Act; First-party benefits; Work-loss benefits; MCL 500.3107(1)(b); MacDonald v. State Farm Mut. Ins. Co.; Popma v. Auto Club Ins. Ass’n; Snellenberger v. Celina Mut. Ins. Co.; Limitation on the benefit to work losses below a specified income level; Marquis v. Hartford Accident & Indem. (After Remand); Bak v. Citizens Ins. Co. of Am.; Featherly v. AAA Ins. Co.; Suing an at-fault driver for work losses in excess of the limits in MCL 500.3107(1)(b); MCL 500.3135(3)(c); Hannay v. Department of Transp.
      Summary: The court held that the trial court erred in concluding that the statutory maximum for work-loss benefits under MCL 500.3107(1)(b) applied to the difference between the plaintiff’s income before the accident and afterward. Rather, it “applies to the loss of income incurred in a single 30-day period plus the income that the injured person earned in that same period.” Since it was undisputed that plaintiff earned more than the applicable maximum, he was not entitled to work-loss benefits under MCL 500.3107(1)(b). Thus, the trial court should have granted the defendant-insurer’s motion for partial summary disposition. Plaintiff was injured when his car was rear-ended. He contended that defendant “should pay him a work-loss benefit equal to the difference between his average annual income in the preceding years and his actual annual income in the years after the accident. He claimed approximately $48,000 in lost income for 2011 and approximately $52,000 in lost income for 2012.” The court concluded that by stating that “the ‘benefits payable’ and ‘the income earned’ for the same period ‘together’ shall not exceed the maximum, the Legislature unambiguously provided that a no-fault insurer was obligated to compensate the injured person for the loss of income for work that he or she would have performed were it not for the accident, but only to the extent that the work-loss benefit, when added to the injured person’s income from work performed after the accident during the same period, does not exceed the statutory maximum.” While plaintiff argued that Snellenberger supported his claim, the court concluded that it arrived at the same result using the method applied in Snellenberger to calculate plaintiff’s work-loss benefit. In the years before his 2009 accident, he “made substantially more each month than the applicable statutory maximum of $4,878.” Thus, under the Snellenberger formulation, the statutory maximum was used as his base potential benefit, from which the income that he earned in the same 30-day period was subtracted “to derive his compensable work-loss benefit for that period.” As he continued to make more than $4,878 in every 30-day period even after his injury, his work-loss benefit was 0. The court noted that injured persons with high income “may sue an at-fault driver to recover their work losses in excess of the limits” in MCL 500.3107(1)(b). Reversed and remanded for entry of an order granting defendant partial summary disposition.

    • Juvenile Law (1)

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      This summary also appears under Criminal Law

      e-Journal #: 59904
      Case: In re Ali
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Riordan, Jansen, and Fort Hood
      Issues: Sufficiency of the evidence; People v. Meshell; Attempted second-degree home invasion; MCL 750.110a(3); People v. Nutt; “Attempt”; People v. Jones; People v. Adams; Intent; People v. Lugo; Circumstantial evidence; People v. Carines; The fact-finder’s role of determining the weight of evidence or the credibility of witnesses; People v. Eisen; Findings of fact; MCR 2.517(A)(1); Principle that a trial court’s failure to find every element does not necessarily render its findings insufficient; People v. Jackson; People v. Lanzo Constr. Co.; Principle that a judge in a bench trial must arrive at a decision based upon the evidence in the case; People v. Simon; Right to confront witnesses; People v. Ramsey
      Summary: The court held that there was sufficient evidence to support the respondent-juvenile’s adjudication of responsibility for attempted second-degree home invasion. The trial court ordered that he be placed in the home of his parents and imposed 182 days of probation. On appeal, the court rejected his argument that there was insufficient evidence to establish the elements of attempted second-degree home invasion. “Because of the circumstances and facts surrounding the incident, a rational trier of fact could infer respondent had the intent to enter [the victim’s] dwelling, by breaking or without permission, and to commit a larceny or felony inside the dwelling.” Further, he “acted in furtherance of his intent to enter [the] dwelling, by breaking or without permission, and to commit a larceny or felony” inside the dwelling. “When viewed in the light most favorable to the prosecution, sufficient evidence was presented to establish that [he] attempted to enter [the] dwelling, by breaking or without permission, with the intent to commit a felony or a larceny in the dwelling.” The court also rejected his argument that the trial court did not make adequate findings of fact and relied on improper evidence when it reached its verdict. Because the trial court was aware of the issues in the case and correctly applied the law to the facts,” its findings were sufficient. Finally, it rejected his argument that the trial court relied on improper evidence when reaching its verdict. Because a fact-finder "should use his or her own common sense and everyday experience in evaluating evidence, the trial court did not rely on improper evidence.” Affirmed.

    • Litigation (2)

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      This summary also appears under Alternative Dispute Resolution

      e-Journal #: 59928
      Case: Bidasaria v. Central MI Univ.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Jansen, Meter, and Beckering
      Issues: Action to vacate an arbitration award; Limitations period; MCR 3.602(J)(1) & (3); MCL 600.5807 (statute of limitations for general contract actions); Applicability of City of Ann Arbor v. American Fed’n of State, Cnty., & Mun. Employees (AFSCME) Local 369; The revised Michigan Uniform Arbitration Act (MUAA) (MCL 691.1681 et seq.); MCL 691.1683(1) & (2); Knoke v. East Jackson Pub. Sch. Dist.; Presumption that the Legislature acts with knowledge of the state appellate courts’ statutory interpretations; Gordon Sel-way, Inc. v. Spence Bros., Inc.; People v. Henderson; A “frivolous” claim; MCL 600.2591(1) & (3); MCR 2.114(F); Kitchen v. Kitchen; Jerico Constr., Inc. v. Quadrants, Inc.; Legal position “devoid of arguable legal merit”; MCL 600.2591(3)(a)(iii); Taylor v. Lenawee Cnty. Bd. of Rd. Comm’rs
      Summary: The court held that the trial court properly granted the defendant summary disposition because the plaintiff’s action to vacate an arbitration award was time-barred by MCR 3.602(J)(1). However, the trial court clearly erred in finding that plaintiff’s claims were not frivolous. Thus, the court affirmed in part, reversed in part, and remanded for a determination of the proper amount of defendant’s costs and fees. Plaintiff was a tenured professor on defendant’s faculty until he was terminated in 2009. Plaintiff filed a grievance with his union and appealed his discharge to final and binding arbitration. In 2010, “the arbitrator denied the grievance, concluding that defendant acted reasonably and had just cause to terminate plaintiff.” Plaintiff then sued in federal court. The federal district court granted defendant summary judgment on plaintiff’s Title VII claim, finding that he failed to establish a prima facie case of discrimination. It also ordered that defendant was entitled to sanctions for the costs and fees incurred in filing its supplemental brief. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s judgment, found that “plaintiff’s appeal was frivolous and ordered him to pay $5,000 in sanctions to defendant.” Plaintiff sued defendant in state court in 2012, alleging the same discrimination and retaliation claims. Defendant was granted summary disposition. Plaintiff filed this action in 2013. While he relied on City of Ann Arbor in arguing that the time limits in MCR 3.602(J) did not apply to his claims, the court concluded that “City of Ann Arbor has no application to the revised MUAA, and plaintiff’s reliance on that case is misplaced.” Further, the grievance procedure at issue “specifically stated that ‘[t]he decision of the arbitrator shall be final and binding on the parties.’ After submitting to binding arbitration, an individual cannot pursue a breach of contract claim against an employer unless that person is first successful in showing a breach of the duty of fair representation.” Plaintiff made no such claim. In finding that he filed a frivolous claim, the court concluded that he “had no reasonable basis to believe that the facts underlying his legal position were in fact true pursuant to MCL 600.2591(3)(a)(ii)” and that his “legal position was devoid of arguable legal merit under MCL 600.2591(3)(a)(iii).”

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      This summary also appears under Attorneys

      e-Journal #: 59922
      Case: Smith v. Babbitt, Johnson, Osborne & Le Clainche, PA
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Beckering and Boonstra; Concurring in part, Dissenting in part – Jansen
      Issues: Attorney fee dispute related to a fee-sharing agreement; Whether the defendant-law firm was subject to general personal jurisdiction in Michigan; Electrolines, Inc. v. Prudential Assurance Co., Ltd.; MCL 600.711; MCL 600.745; Lease Acceptance Corp. v. Adams; Factors in determining whether a corporation carries on “a continuous and systematic part of its general business” in the state; Glenn v. TPI Petroleum, Inc.; Goodyear Dunlop Tires Operations, SA v. Brown; Kircos v. Lola Cars Ltd.; Whether the firm was subject to specific personal jurisdiction here; Yoost v; Caspari; MCL 600.715; Oberlies v. Searchmont Resort, Inc.; Due process; Starbrite Distrib., Inc. v. Excelda Mfg. Co.; Burger King Corp. v. Rudzewicz; Aaronson v. Lindsay & Hauer Int’l Ltd.
      Summary: While the court held that the defendant-law firm (Babbitt) was not subject to general personal jurisdiction in Michigan, it upheld the trial court’s conclusion that Babbitt was subject to specific personal jurisdiction under MCL 600.715(1). Further, it held that subjecting Babbitt to specific personal jurisdiction here comported “with notions of fair play and substantial justice,” and was permissible under the Due Process Clause. Thus, the court affirmed the trial court’s order denying Babbitt’s summary disposition motion in this attorney fee dispute. Plaintiff-Smith retained the plaintiff-law firm (Goodman) to represent her in pursuing claims related to an auto accident. Goodman entered into a fee-sharing agreement with Babbitt. The court concluded that the trial court erred in ruling that Babbitt consented to general personal jurisdiction in Michigan via the Michigan choice-of-law provision in the agreement, noting that “the contract did not contain a Michigan forum selection clause” and thus, “Babbitt did not explicitly agree or consent to the adjudication in a Michigan court of any dispute arising under the contract.” The trial court also erred in finding that “Babbitt carried on a continuous and systematic part of its general business” in Michigan. However, the court concluded that the trial court correctly ruled that Babbitt was subject to specific personal jurisdiction in Michigan. “Babbitt entered into the fee-sharing agreement with Goodman, including a Michigan choice-of-law provision. Although the underlying litigation proceeded in Florida, Goodman is a Michigan corporation, and Babbitt communicated with Goodman in Michigan on a consistent basis” during the litigation. “Further, Babbitt’s assent to the fee-sharing agreement meant that it agreed to a continuing contractual relationship with Goodman, a Michigan firm, with a Michigan choice-of-law provision, to litigate against a Michigan company” (defendant-Auto-Owners). The relationship lasted nearly five years. Babbitt’s employees traveled to Michigan to participate in taking depositions. Taken together, the court held that “the contacts were sufficient to constitute the transaction of business by Babbitt within Michigan.” Further, “Babbitt purposefully availed itself of the privileges of conducting activities” here, the cause of action arose from its activities here, and relevant “considerations of fairness” showed that Michigan was “a reasonable forum for the adjudication of the dispute between Babbitt and Goodman.”

    • Malpractice (1)

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      e-Journal #: 59953
      Case: Bowden v. Gannaway
      Court: Michigan Court of Appeals ( Published-After-Release Opinion )
      Judges: Per Curiam – Wilder, Servitto, and Stephens
      Issues: Attorney malpractice; Charles Reinhart Co. v. Winiemko; Whether defendants' alleged professional negligence was a proximate cause of plaintiffs' alleged injuries; Polania v. State Employees' Ret. Sys.; MCL 38.24 (governing the award of non-duty disability retirement benefits to state employees); Gordon v. City of Bloomfield Hills; Office of Retirement Services (ORS)
      Summary: [This opinion was previously released as an unpublished opinion on 3/24/15.] The court held that because plaintiffs could not establish that plaintiff-Janell Bowden would have prevailed had defendants filed a timely appeal of the initial denial of her application for benefits, plaintiffs could not show that defendants' alleged negligence was a proximate cause of their alleged damages and, thus, the trial court did not err in dismissing their claim. Plaintiff filed an application with Michigan's ORS for non-duty disability retirement benefits. The physician designated by the State to examine her application and medical records concluded that she was not totally and permanently disabled, and that she "should be able to return to her past job." In a letter, the ORS denied her application and informed her that she had 60 days from the date of the letter to appeal the decision. Plaintiff engaged codefendant-Gannaway to represent her on appeal. "However, the appeal was not filed timely." Plaintiffs filed a professional negligence case against defendants, based upon the failure to file a timely appeal of the ORS denial of the non-duty retirement. In order to prevail on their legal malpractice claim, plaintiffs had to show that, but for the failure to timely appeal the denial of Janell's application for non-duty disability retirement benefits, she would have been awarded the benefits. Plaintiffs argued that, before Polania, an appeal of the Retirement System's denial of Janell's application would have been governed by Gordon, which required a reviewing court to "consider all the evidence on the record, not just that supporting the agency's decision." Plaintiffs asserted that had defendants filed a timely appeal, "a review of the 'whole record' would have resulted in reversal of the denial because assessments from several independent physicians clearly established the disability." Contrary to plaintiffs' insistence, this matter did "not involve the question of the retroactive application of a new rule or principle." The court noted preliminarily that the statute interpreted by the Polania court was a predecessor statute. It was undisputed that the medical advisor had not certified Janell "as totally and permanently disabled, and that without such certification, she was ineligible for benefits under the plain language of MCL 38.24(1)(b)." Affirmed.

    • Negligence & Intentional Tort (1)

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      This summary also appears under Employment & Labor Law

      e-Journal #: 59936
      Case: Watz v. Wal-Mart Stores E. LP
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Talbot, Cavanagh, and Meter
      Issues: The Persons With Disabilities Civil Rights Act (PWDCRA) (MCL 37.1101 et seq.); “Hostile work environment” claim based on disability harassment; Radtke v. Everett; Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs; Corley v. Detroit Bd. of Educ.; Marsh v. Department of Civil Serv.; Claim that being called “dumb” and “stupid” was evidence of discrimination when viewed in light of the fact that plaintiff has cerebral palsy; Whether defendant-Walmart took prompt remedial action; Respondeat superior hostile work environment claim; Notice; Chambers v. Trettco, Inc.; Intentional infliction of emotional distress (IIED); Roberts v. Auto-Owners Ins. Co.
      Summary: The court reversed the trial court's order denying defendants-Ledbetter and Walmart’s motion for summary disposition in this employment-dispute case and remanded for entry of judgment in their favor. “Plaintiff has had cerebral palsy since birth. It affects his coordination, ability to write legibly, speech patterns, and gait.” The appeal concerned his claims against Ledbetter and against Walmart on a respondeat superior theory. He alleged a hostile work environment based on disability harassment contrary to the PWDCRA. He asserted that, because of his disability, “Ledbetter yelled at him and badgered him, refused to give him earned days off, prevented him from performing his job, and removed personnel from his department.” On appeal, defendants argued that plaintiff could not establish that “Ledbetter’s conduct or communications were based on his disability.” The evidence showed that “Ledbetter had a difficult management style and had received coachings” as to her management style because “employees other than plaintiff had complained about her." However, no evidence indicated that “Ledbetter’s treatment of plaintiff was based on his disability.” The court also concluded that plaintiff’s IIED claim against Ledbetter was not viable.

    • Probate (1)

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      e-Journal #: 59895
      Case: In re Conservatorship of Brandon M. Owens
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Riordan, Jansen, and Fort Hood
      Issues: Conservatorships; The conservator’s rights & obligations in spending protected funds; MCL 700.5425
      Summary: The court held that the trial court did not err by denying the petitioner-former conservator’s petition to allow accounts, by discharging him as conservator, or by appointing the respondent-current conservator. The trial court removed petitioner as conservator after he spent a significant sum of money from the life insurance proceeds his son received on his mother’s death. It found that “it was petitioner’s obligation to support his child, and that his salary, along with the social security funds he received on behalf of the child, were sufficient to cover the claimed expenses without necessitating use of the insurance proceeds.” On appeal, the court rejected his argument that the trial court erred when it disallowed expenses related to the child’s health, education, and welfare, noting that “the trial court based its finding on sound reasoning and conclusions” and the evidence supported its findings. “The trial court emphasized that the claimed expenses by petitioner were cumulatively less than petitioner receives from social security benefits for the minor child. As such, use of the insurance proceeds was excessive and unnecessary. Petitioner offered no evidence or argument of why or how the social security benefits were insufficient to cover the listed expenses and only summarily asserts that social security benefits were used to cover ordinary needs.” Further, “petitioner also earns a middle class wage, which he does not dispute is at least $50,000, which the trial court held could be used to cover everyday expenses for petitioner and the minor child.” The factors presented in MCL 700.5425(b) also supported the trial court’s holding as it “considered the estate size, including the social security” income, as well as their “standard of living, particularly in relation to the income received by petitioner.” Affirmed.

    • Real Property (1)

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      This summary also appears under Contracts

      e-Journal #: 59937
      Case: Great Lakes Shores Inc. v. Bartley
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Hoekstra, Sawyer, and Borrello
      Issues: Attorney fees related to an action for unpaid lot owner assessments on resort property; The Summer Resort Owners Corporation Act (SROCA) (MCL 455.201 et seq.); Contract provision as to attorney fees; Fleet Bus. Credit v. Krapohl Ford Lincoln Mercury Co.; A corporation’s bylaws as a contract between the corporation and its shareholders; Allied Supermarkets, Inc. v. Grocer’s Dairy Co.; Late fees
      Summary: Holding that the trial court should have awarded the plaintiff-nonprofit corporation attorney fees that it incurred to recover unpaid dues and assessments, the court reversed the trial court’s denial of attorney fees and remanded for further proceedings. Plaintiff, which is organized under the SROCA, is designated to administer a summer resort. “Lot owners are required to pay yearly dues and assessments, which are used to maintain the resort property and to pay for taxes and insurance.” Plaintiff alleged that “defendant paid her dues and assessments from 2004 through 2009, but that she thereafter failed to pay. According to plaintiff, the amount of dues and assessments owed was $400.” In 2012, plaintiff recorded a lien for the unpaid dues and assessments, and it later filed suit. In moving for summary disposition, plaintiff “sought $400 in unpaid dues and assessments, $40 in late fees, $574.40 in court costs, and $6,007.29 in attorney fees. In its motion, plaintiff did not seek to foreclose its lien, but it argued in its brief that it was entitled to seek foreclosure.” The trial court granted plaintiff summary disposition because defendant did not provide any evidentiary materials to contradict plaintiff’s evidence showing that she had received the invoices. However, it declined to award plaintiff attorney fees and later denied plaintiff’s motion for reconsideration. The court concluded that it was “clear that defendant, as a lot owner in the resort, was a shareholder” in the plaintiff. “The bylaws of a corporation constitute a contract between a corporation and its shareholders.” The bylaws at issue stated that all “annual dues and/or special assessments levied against any or all members not paid by August 31st each year shall become a lien upon the property of the delinquent member and such delinquencies may be enforced by Court action. All costs of such action shall be assessed to the member and become part of said lien, including by [sic] not limited to actual attorney fees.” While defendant argued below that attorney fees were only recoverable if plaintiff foreclosed its lien, the provision clearly contemplated “permitting both a lien and a separate action to collect delinquent dues.” Further, $40 in late fees were appropriate.
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