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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Administrative Law (2)

    Full Text Opinion

    e-Journal #: 79556
    Case: Dobronski v. Transamerica Life Ins.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Swartzle, M.J. Kelly, and Boonstra
    Issues:

    Do-not-call registry; Whether a mobile-phone user can be considered a residential telephone subscriber under the Telephone Consumer Protection Act (TCPA); Stevens-Bratton v TruGreen, Inc (WD TN); Whether plaintiff pled a claim under MCR 2.116(C)(8); Michigan Home Solicitation Sales Act (MHSSA); Michigan Telephone Companies as Common Carriers Act; MCL 484.125; Consent/established business relationship; Private right of action under 47 CFR § 64.1601(e)

    Summary:

    In an issue of first impression regarding whether there is a private right of action as to § 64.1601(e), the court held that there is not. But it otherwise concluded the trial court erred by granting summary disposition to defendants at a very early stage of the litigation. Thus, it vacated in all respects except on the count for violation of § 64.1601(e). “Plaintiff sued defendants on claims of unlawful robocalls and violations of the national do-not-call registry.” A key aspect of the case turned on whether “a mobile phone can be (and often is) used for residential purposes. Neither federal nor state law compels a contrary conclusion, notwithstanding defendants’ arguments.” The court considered, among other things, the “trial court’s conclusion that plaintiff is not a user of residential-telecommunications services, which impacts Counts II, III, V, and VI.” The trial court held “that a mobile-phone user cannot, as a matter of law, qualify as a residential telephone subscriber for purposes of the TCPA. The trial court erred in this respect.” The court concluded that a plain reading of § 64.1200(e) confirms that, at least in the FCC’s view, “the protections afforded to residential telephone subscribers in” §§ 227(c)(5) and “64.1200(c)(2) and (d)(4) extend to mobile-phone users who use their devices for residential purposes.” The court agreed “with the federal district court’s analysis in Stevens-Bratton on this question and adopt[ed] it here.” The court noted that little to no discovery had been conducted. It found that whether “a person uses a mobile phone for residential purposes will, in the mine-run of cases, be a fact-intensive question, one not typically answerable at the outset of litigation.” Thus, it concluded that “the trial court erred in granting summary disposition to defendants on Counts II and III with respect to whether plaintiff’s use of a mobile phone could qualify him, if factually supported, as a residential telephone subscriber.” For reasons similar to those related to the TCPA, the court concluded “that ‘residential telephone service’ under the MHSSA can, if the facts warrant, include service on a mobile device. There is nothing in the MHSSA limiting ‘residential telephone service’ to a particular type of communications provider.” In holding that the trial court did not err in granting defendants summary disposition on Count IV, concerning § 64.1601(e), the court noted that “critically, there is nothing in the statute that clearly indicates that Congress intended for private lawsuits to enforce caller-ID requirements.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 79558
    Case: True Care Physical Therapy, PLLC v. Auto Club Group Ins. Co.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Hood, Gleicher, and Maldonado
    Issues:

    The No-Fault Act (NFA); The trial court’s subject-matter jurisdiction; Whether an administrative appeal of an insurer’s utilization review is required; MCL 500.3157a; MI Admin Code, R 500.64 & 500.65; MCL 500.3112; Statutory interpretation; “May”; Department of Ins & Fin Servs (DIFS)

    Summary:

    The court held that an administrative appeal of defendant-insurer’s utilization review via the procedures in MCL 500.3157a and R 500.65 was permissive, not mandatory. Thus, plaintiff-healthcare provider could sue defendant under MCL 500.3112 without exhausting the nonexclusive administrative appeal, and the trial court had subject-matter jurisdiction over plaintiff’s claims. As a result, the court affirmed the trial court’s denial of defendant’s motion for summary disposition under MCR 2.116(C)(4) and its award of no-fault benefits, costs, and attorney fees to plaintiff. In asserting that the trial court lacked subject-matter jurisdiction, defendant contended MCL 500.3157a and Rule 500.65 required plaintiff “to appeal to the DIFS before filing suit.” On appeal, the court concluded that at “its core, a utilization review is an ‘initial evaluation’ of the appropriateness of the level and quality of treatment. . . . The cause of action that the Legislature provided in MCL 500.3112 is not preconditioned on the permissive administrative appeal of that initial evaluation.” Rather, the NFA’s plain language showed “that the Legislature intended alternate pathways for determining whether care was appropriate.” The court noted that “MCL 500.3157a(5) provides that if an insurer’s utilization review determines that a provider ordered inappropriate treatment, the provider ‘may appeal the determination’ to the DIFS.” It uses the permissive word “may” rather than “shall” or “must.” Further, Rule 500.65 likewise uses the word “may.” The court found that the “ordinary meaning of these words suggests that both the Legislature and the DIFS intended subsection 3157a(5) and Rule 500.65 to provide an alternative and discretionary way to appeal a utilization review determination to the DIFS, not an exclusive or mandatory method for challenging denial of benefits.” The court agreed with the trial court that “reading the permissive language in MCL 500.3157a(5) and Rule 500.65 as mandatory or exclusive conflicts with the Legislature’s intent as expressed in other” sections of the NFA. As an administrative appeal is permitted but not required, plaintiff “was not required to appeal the utilization review decision to the DIFS to satisfy administrative exhaustion requirements.”

    Full Text Opinion

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 79507
    Case: In re Talanda Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Murray, and Feeney
    Issues:

    Dispute over the distribution of trust assets; Sanctions; Frivolous allegations; MCL 600.2591; MCR 1.109(E)(6) & (7); MCR 2.625(A)(2); Meisner Law Group PC v Weston Downs Condo Ass’n; Discovery & procedural abuses; MCR 2.302(G)(3); MCR 5.131(B)(3); Attorney fees; Smith v Khouri; Calculation of attorney fees; MRPC 1.5(a); Wood v Detroit Auto Inter-Ins Exch

    Summary:

    The court in these consolidated appeals held that the probate court did not abuse its discretion by finding the allegations in appellants’ counterpetition were frivolous, that it did not err by finding their discovery requests and motion to disqualify were filed for an improper purpose, and that it properly calculated attorney fees it awarded to appellees. The parties, who are siblings (other than appellant-attorney Broxup and a successor trustee), engaged in mediation to determine the disposition of the assets held by their parents’ trusts. They eventually entered into a settlement agreement. Appellees-Fath, Potts, and Edmund Talanda later filed a petition seeking to enforce the settlement agreement relative to a cottage and a lake lot. Appellants-Goetting and Kraft, through Broxup, filed a counterpetition, seeking to set aside the sale of the lake lot and disputing the contention that Fath and Edmund provided proper notice to take possession of the cottage. The probate court found in favor of appellees. In a prior appeal, the court affirmed the decision concerning the lake lot. The probate court awarded appellees $51,960 in attorney fees and costs, and also awarded Fath, in her capacity as former cotrustee, $13,377.50 in attorney fees and costs. The awards were entered against appellants jointly and severally. On appeal, the court rejected appellants’ argument that the probate court abused its discretion by finding that claims presented in their counterpetition were frivolous and were, in part, solely meant to harass Fath. “[T]he probate court was familiar with the history of the case and the parties’ positions and disputes. [It] carefully considered the allegations and determined that it was unreasonable for appellants to believe that the allegations were factually supported.” The court also rejected appellants’ claim that the probate court abused its discretion by finding they engaged in discovery and procedural abuses. “Considering the limited issues before the probate court,” it did not err by finding “several of the discovery requests were improper and warranted the imposition of” sanctions, or by finding the motion to disqualify Fath’s attorney “was not filed for a proper purpose.” Finally, the court rejected appellants’ contention that the probate court abused its discretion in determining the amount of sanctions, finding it “complied with Smith, Wood, and MRPC 1.5(a), and did not err in calculating the amount of attorney fees.” Affirmed.

    Full Text Opinion

  • Criminal Law (1)

    Full Text Opinion

    e-Journal #: 79499
    Case: People v. Erdman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Murray, and Feeney
    Issues:

    Sufficiency of the evidence; Resisting & obstructing a police officer; MCL 750.81d(1); Probable cause; Great weight of the evidence; Jury instructions; Ineffective assistance of counsel; Personal protection order (PPO)

    Summary:

    The court held that there was sufficient evidence defendant “did not have a right to resist or obstruct the deputies.” Also, it concluded “the evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” Finally, it determined that “defense counsel did not render ineffective assistance by failing to object to the instructions or by failing to request certain instructions.” At the heart of the case was a PPO verbally served on defendant. Defendant’s sole focus was “on the element requiring the deputies to have acted lawfully in placing defendant under arrest, with defendant arguing that probable cause to arrest him was lacking.” The court concluded there was sufficient evidence that he “failed to immediately comply with the PPO, providing, upon objective examination, reasonable cause for an immediate arrest, even if the deputies might have thought differently.” The evidence as to “communications at the window showed that defendant knew he could not stay at the house under the PPO and knew that he could be arrested if he did so, yet he initially ignored the deputies.” The court also concluded “that there was sufficient evidence to additionally establish reasonable cause to arrest defendant on the basis of his subsequent actions at the front doorway of the house.” Thus, there was sufficient evidence “the deputies made lawful commands, were making a lawful arrest, i.e., an arrest based on reasonable cause, and were otherwise performing lawful acts.” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 79501
    Case: Osim v. Scott
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gadola, Patel, and Maldonado
    Issues:

    Divorce; Property distribution; Effect of a settlement agreement; Modification of spousal support; MCL 552.603; Division of social security benefits; Whether social security benefits are a marital asset; Biondo v Biondo; Social Security Disability Insurance (SSDI) benefits

    Summary:

    The court held that the trial court erred by dividing plaintiff-ex-husband’s social security benefits, and by failing to set the date he moved to modify spousal support as the effective date of its order. It also held that while the trial court did not abuse its discretion in its modification of spousal support, its error concerning the property division could affect the amount of support warranted. Thus, it affirmed in part, reversed in part, and remanded. The parties previously entered into a consent judgment and a property settlement that disposed of their marital assets, but they were unable to agree on spousal support. On remand from a previous appeal, the trial court ordered plaintiff to pay defendant-ex-wife one-half of his monthly gross social security benefits pursuant to the parties’ contracted property settlement, and modified spousal support to award defendant $1,000 monthly support. In the present appeal, the court agreed with plaintiff that the trial court erred by setting 7/1/17, as the effective date of its final order. “Pursuant to the plain, unambiguous language in MCL 552.603(2), retroactive modification of spousal support is permissible only from the date that notice of a petition to amend support is given, i.e., when husband filed his motion to eliminate support.” Here, while the “final order’s effective date was apparently based on the parties’ stipulation as to when the property division should have taken effect, no such stipulation was made specific to the support award.” As such, the “modification of support should have been effective” 4/3/17. The court next found that the trial court erred by dividing plaintiff’s social security benefits pursuant to the parties’ property settlement, but not for his argued reasons. “The trial court had no power to divide [his] social security benefits or otherwise enforce any transfer or assignment thereof.” As such, it was required to vacate the trial court’s division of his social security pursuant to the parties’ property settlement. “Given this conclusion, the parties’ dispute as to whether the property settlement was intended to automatically entitle wife to half of husband’s SSDI benefits—and any ambiguity in the agreement on this matter—is irrelevant.” Finally, the court rejected plaintiff’s argument that the trial court improperly considered his pension and otherwise used a faulty mechanism to determine its support award. “[T]he trial court adhered to our instruction in its modification of support.” It also “sufficiently addressed the other relevant considerations surrounding” defendant’s pension, and its “modified support award was fair and equitable in light of the facts.”

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    e-Journal #: 79557
    Case: Stanley v. City of Detroit
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Per Curiam - Cameron, Jansen, and Borrello
    Issues:

    No-fault action; PIP benefits; “Uninsured” under MCL 500.3177(1); Assignment of a claim by the Michigan Automobile Insurance Placement Facility (MAIPF); MCL 500.3172(1); Insurer priority; MCL 500.3114(4); Comparing Griffin v Trumbull Ins Co; Due diligence in trying to identify an insurer

    Summary:

    The court held that the trial court erred by denying defendants-rental car company (Executive) and insurer (National) summary disposition of plaintiff’s claims. Plaintiff was a passenger in her sister’s rental car when they collided with a municipal van. She sued several defendants for her injuries. As relevant to this appeal, the trial court denied motions by Executive and National for summary disposition and found National liable for reimbursement of no-fault benefits. The cases were consolidated. On appeal, the court agreed with Executive that it was entitled to summary disposition because (1) it is not an insurer, and thus plaintiff failed to state a valid claim; and (2) MCL 500.3177 did not apply and was not pleaded against it. First, “because Executive is not an insurer, it cannot be liable for no-fault benefits and plaintiff’s complaint, even as amended, was facially defective.” Second, there was “no dispute that Executive had an insurance policy through National that covered the rented [vehicle] at the time of the accident. Thus, the definition of ‘uninsured’ in MCL 500.3177(1) is not met, and the statute would not apply.” The court also agreed with National that the trial court erred by finding plaintiff could recover PIP benefits from defendant-Farmers where the MAIPF had no duty to assign her claim under MCL 500.3172, and that Farmers could then seek reimbursement from National. “Plaintiff failed to exercise due diligence in identifying the highest-priority insurer, and therefore, she is not entitled to PIP benefits.” Applying Griffin, the court concluded that she “failed to act with due diligence in trying to identify Executive’s insurer.” In addition, “under MCL 500.3114(4)(a), National would be the highest-priority insurer as the insurer of Executive, the owner of the vehicle.” Based on plaintiff’s “lack of due diligence, she is not entitled to recover any benefits, and moreover, the claim against National is barred by the statute of limitations. Therefore, the trial court erred in determining that Farmers, as the assigned servicing insurer from the MAIPF, was responsible for paying plaintiff’s PIP benefits, and then entitled to reimbursement for any payment made from National.” Reversed and remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 79558
    Case: True Care Physical Therapy, PLLC v. Auto Club Group Ins. Co.
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Hood, Gleicher, and Maldonado
    Issues:

    The No-Fault Act (NFA); The trial court’s subject-matter jurisdiction; Whether an administrative appeal of an insurer’s utilization review is required; MCL 500.3157a; MI Admin Code, R 500.64 & 500.65; MCL 500.3112; Statutory interpretation; “May”; Department of Ins & Fin Servs (DIFS)

    Summary:

    The court held that an administrative appeal of defendant-insurer’s utilization review via the procedures in MCL 500.3157a and R 500.65 was permissive, not mandatory. Thus, plaintiff-healthcare provider could sue defendant under MCL 500.3112 without exhausting the nonexclusive administrative appeal, and the trial court had subject-matter jurisdiction over plaintiff’s claims. As a result, the court affirmed the trial court’s denial of defendant’s motion for summary disposition under MCR 2.116(C)(4) and its award of no-fault benefits, costs, and attorney fees to plaintiff. In asserting that the trial court lacked subject-matter jurisdiction, defendant contended MCL 500.3157a and Rule 500.65 required plaintiff “to appeal to the DIFS before filing suit.” On appeal, the court concluded that at “its core, a utilization review is an ‘initial evaluation’ of the appropriateness of the level and quality of treatment. . . . The cause of action that the Legislature provided in MCL 500.3112 is not preconditioned on the permissive administrative appeal of that initial evaluation.” Rather, the NFA’s plain language showed “that the Legislature intended alternate pathways for determining whether care was appropriate.” The court noted that “MCL 500.3157a(5) provides that if an insurer’s utilization review determines that a provider ordered inappropriate treatment, the provider ‘may appeal the determination’ to the DIFS.” It uses the permissive word “may” rather than “shall” or “must.” Further, Rule 500.65 likewise uses the word “may.” The court found that the “ordinary meaning of these words suggests that both the Legislature and the DIFS intended subsection 3157a(5) and Rule 500.65 to provide an alternative and discretionary way to appeal a utilization review determination to the DIFS, not an exclusive or mandatory method for challenging denial of benefits.” The court agreed with the trial court that “reading the permissive language in MCL 500.3157a(5) and Rule 500.65 as mandatory or exclusive conflicts with the Legislature’s intent as expressed in other” sections of the NFA. As an administrative appeal is permitted but not required, plaintiff “was not required to appeal the utilization review decision to the DIFS to satisfy administrative exhaustion requirements.”

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Zoning

    e-Journal #: 79555
    Case: Zelasko v. Charter Twp. of Bloomfield
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gadola, Jansen, and Servitto
    Issues:

    Zoning; Procedural due process; MCR 2.116(I)(1); Boulton v Fenton Twp; Notice or a meaningful opportunity to be heard; Distinguishing Al-Maliki v LaGrant & Lamkin v Hamburg Twp Bd of Trs; Subject matter jurisdiction; MCR 7.122(B); MCL 125.3606(3); Krohn v City of Saginaw; Houdini Props, LLC v City of Romulus; Res judicata

    Summary:

    In this zoning dispute, the court held that the circuit court “did not deny plaintiffs due process nor otherwise err by granting defendants summary disposition under MCR 2.116(I)(1), though defendants moved for summary disposition under MCR 2.116(C)(4).” Plaintiffs also “were not deprived of notice or a meaningful opportunity to be heard on issues that formed the basis of” the circuit court’s ruling. Further, because they failed to timely file an appeal to the circuit court to challenge the defendant-Board’s decision, the circuit court correctly found “that it lacked subject matter jurisdiction over the dispute.” Finally, plaintiffs’ res judicata argument failed because defendants were not granted summary disposition on that basis. They contended “they were denied procedural due process because the circuit court granted defendants summary disposition under MCR 2.116(I)(1) without notifying” them in advance it was considering dismissing the amended complaint under this court rule. Their argument suggested “that MCR 2.116(C)(4) and (I)(1) are mutually exclusive grounds for granting summary disposition. However, MCR 2.116(I)(1) is a corollary to the various grounds for summary disposition stated in MCR 2.116(C).” Plaintiffs further asserted “the circuit court violated their due-process rights because the circuit court did not advise them in advance that it planned to rule under MCR 2.116(I)(1).” But unlike in Al-Maliki, the circuit court here “did not grant defendants summary disposition on an issue raised sua sponte by the circuit court. Rather, defendants moved for summary disposition contending that the circuit court lacked subject matter jurisdiction because plaintiffs had failed to appeal the Board’s decision and because plaintiffs were not aggrieved parties. Plaintiffs responded to defendants’ motion and the parties addressed the issues at a hearing on the motion. The circuit court subsequently granted defendants summary disposition on the bases raised in their motion.” Also, unlike Lamkin, plaintiffs here “were not unaware that the circuit court was ‘contemplating summary disposition’ of their claims. Plaintiffs in this case were aware that defendants had moved for summary disposition, responded to the motion, and participated in the hearing on the motion. The circuit court thereafter granted defendants summary disposition on the grounds asserted in their motion.” Plaintiffs further argued “they lacked notice of the circuit court’s intention to address the merits of Counts 1 through 4 of their amended complaint.” But the circuit court granted defendants summary disposition on the basis it lacked subject matter jurisdiction. Plaintiffs “had notice and an opportunity to be heard on” that issue and thus, were not denied due process.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 79507
    Case: In re Talanda Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Murray, and Feeney
    Issues:

    Dispute over the distribution of trust assets; Sanctions; Frivolous allegations; MCL 600.2591; MCR 1.109(E)(6) & (7); MCR 2.625(A)(2); Meisner Law Group PC v Weston Downs Condo Ass’n; Discovery & procedural abuses; MCR 2.302(G)(3); MCR 5.131(B)(3); Attorney fees; Smith v Khouri; Calculation of attorney fees; MRPC 1.5(a); Wood v Detroit Auto Inter-Ins Exch

    Summary:

    The court in these consolidated appeals held that the probate court did not abuse its discretion by finding the allegations in appellants’ counterpetition were frivolous, that it did not err by finding their discovery requests and motion to disqualify were filed for an improper purpose, and that it properly calculated attorney fees it awarded to appellees. The parties, who are siblings (other than appellant-attorney Broxup and a successor trustee), engaged in mediation to determine the disposition of the assets held by their parents’ trusts. They eventually entered into a settlement agreement. Appellees-Fath, Potts, and Edmund Talanda later filed a petition seeking to enforce the settlement agreement relative to a cottage and a lake lot. Appellants-Goetting and Kraft, through Broxup, filed a counterpetition, seeking to set aside the sale of the lake lot and disputing the contention that Fath and Edmund provided proper notice to take possession of the cottage. The probate court found in favor of appellees. In a prior appeal, the court affirmed the decision concerning the lake lot. The probate court awarded appellees $51,960 in attorney fees and costs, and also awarded Fath, in her capacity as former cotrustee, $13,377.50 in attorney fees and costs. The awards were entered against appellants jointly and severally. On appeal, the court rejected appellants’ argument that the probate court abused its discretion by finding that claims presented in their counterpetition were frivolous and were, in part, solely meant to harass Fath. “[T]he probate court was familiar with the history of the case and the parties’ positions and disputes. [It] carefully considered the allegations and determined that it was unreasonable for appellants to believe that the allegations were factually supported.” The court also rejected appellants’ claim that the probate court abused its discretion by finding they engaged in discovery and procedural abuses. “Considering the limited issues before the probate court,” it did not err by finding “several of the discovery requests were improper and warranted the imposition of” sanctions, or by finding the motion to disqualify Fath’s attorney “was not filed for a proper purpose.” Finally, the court rejected appellants’ contention that the probate court abused its discretion in determining the amount of sanctions, finding it “complied with Smith, Wood, and MRPC 1.5(a), and did not err in calculating the amount of attorney fees.” Affirmed.

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 79524
    Case: Harris v. NJM Mgmt. Co., Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Premises liability; The open & obvious doctrine; “Special aspects”; Lugo v Ameritech Corp, Inc; Actual or constructive notice; Lowrey v LMPS & LMPJ, Inc; Ordinary negligence

    Summary:

    Concluding that plaintiff’s claim sounded only in premises liability, not ordinary negligence, the court held that there was no genuine issue of material fact the metal threshold on which she tripped and fell was “an open and obvious hazard.” Further, there were no special aspects and she offered “no evidence that defendants had actual or constructive notice of the allegedly loose and raised threshold.” Thus, the court affirmed summary disposition for defendants. The case arose after plaintiff “tripped on an allegedly loose and raised metal door plate at the entrance of defendants’ restaurant.” The court first determined that because her “claim arose from a condition on defendants’ property” it sounded only in premises liability. Agreeing with the trial court’s determination that the condition was open and obvious, the court noted that the restaurant threshold “was metallic in in appearance and was raised slightly above the outer cement sidewalk. The color and material of the threshold clearly contrasted from that of the sidewalk, the door frame, and the interior tile floor.” A photo of the threshold showed “that an average person would have noticed the raised threshold (essentially a small, ordinary step) and that it was not flush with the sidewalk if the area was casually inspected when entering the restaurant. Indeed, plaintiff admitted in her deposition that she saw the threshold before and while she opened the door to the restaurant. It was a clear day, and it was still light outside when the incident occurred. Plaintiff was also not carrying anything in her hands when she entered the restaurant.” As to her special aspects argument, the court noted that she “had a choice whether to confront the hazard, and therefore, the hazard could not have been truly or effectively unavoidable.” In addition, she offered no evidence that the “threshold posed a substantial risk of death or serious injury.”

    Full Text Opinion

  • Termination of Parental Rights (2)

    Full Text Opinion

    e-Journal #: 79535
    Case: In re Figueroa
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Child’s best interests; Anticipatory neglect

    Summary:

    Holding that the trial court clearly erred in concluding that termination of respondent-father’s parental rights was in XAF’s best interests, the court reversed and remanded. This appeal involved two half-siblings, XAF and IB. The “trial court provided a limited best-interest analysis. It appeared to find that termination was in XAF’s best interests because of [father’s] abuse of IB, and that the risk of harm due to XAF’s ‘vulnerability outweighed the bond the child shared’” with the father. However, the trial court did not “consider or weigh any other factor, including [father’s] parenting ability, his visitation history with XAF, or XAF’s need for permanency, stability, and finality.” Its discussion of XAF’s bond to father “was also limited to a conclusory finding that their bond did not outweigh the risk of harm; there is no discussion of the evidence the trial court relied on to determine that the pair had a bond to begin with.” To be sure, the father’s “sexual abuse of IB was a critical consideration in determining whether termination was in XAF’s best interests.” The court held that “it should not have been the only consideration.” The court concluded this was “not to say that whether XAF’s ‘safety and well-being [can be] reasonably assured’’’ in the father’s “care cannot outweigh the other factors, only that the trial court’s best-interest analysis should weigh all the available evidence.” The trial court did not do that in this case, which was error. “Further, such balancing of anticipated harm needed to be tied to XAF.” The court held that instead “of analyzing how IB and XAF might be similarly situated despite ostensible differences (i.e., XAF was respondent’s biological son, while IB was not related by blood and female), the court relied only on its perception of XAF’s inherent vulnerability as a child. This too was error.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79542
    Case: In re Workman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, Murray, and Feeney
    Issues:

    Termination under §§ 19b(3)(c)(i), (c)(ii), & (j); Child’s best interests; In re Mota

    Summary:

    Holding that §§ (c)(i) and (j) were established by clear and convincing evidence, and that terminating respondent-mother’s parental rights to the child was in the child’s best interests, the court affirmed the termination order. As to § (j), it noted that the argument the child had not thus far been harmed missed the point, given that this provision “examines the question whether it is reasonably likely that a child ‘will be harmed’ in the future if returned to his or her parent. The evidence of the father’s instability and daily meth[] use and respondent’s insistence that she and [the child] continue to have contact with father constituted adequate evidence” showing a reasonable likelihood the child “would be emotionally or physically harmed if she were returned to respondent’s care.” The court noted that this was “especially true given the expert opinions that respondent was vulnerable to relapsing in regards to her past drug use and that she was easily manipulated. The fact that respondent was more than willing to lie about the contacts and relationship with father further supported the trial court’s ruling.” While the court agreed with respondent that § (c)(i) did not apply, there was no clear error in the determination that § (c)(ii) did. The ongoing relationship between respondent and the father “qualified as an ‘[o]ther condition[]’ that would have been adequate to trigger the [trial] court’s jurisdiction. And respondent received recommendations to rectify that condition, which was not rectified after she was given a reasonable opportunity to do so. The evidence of long-term deception by respondent on the matter and her continuing actions to stay in contact with father demonstrated that there was no reasonable likelihood that the condition would be rectified within a reasonable time considering” the child’s age. The court further concluded it was not in the child’s best interests “to continue waiting for some uncertain event in the future. While it is DHHS’s policy to keep siblings together, there is no policy reason to delay termination because a new sibling has been added to a pending child protective case.” Thus, the court held “that there was no clear error in regard to the court’s best-interests ruling.”

    Full Text Opinion

  • Zoning (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 79555
    Case: Zelasko v. Charter Twp. of Bloomfield
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Gadola, Jansen, and Servitto
    Issues:

    Zoning; Procedural due process; MCR 2.116(I)(1); Boulton v Fenton Twp; Notice or a meaningful opportunity to be heard; Distinguishing Al-Maliki v LaGrant & Lamkin v Hamburg Twp Bd of Trs; Subject matter jurisdiction; MCR 7.122(B); MCL 125.3606(3); Krohn v City of Saginaw; Houdini Props, LLC v City of Romulus; Res judicata

    Summary:

    In this zoning dispute, the court held that the circuit court “did not deny plaintiffs due process nor otherwise err by granting defendants summary disposition under MCR 2.116(I)(1), though defendants moved for summary disposition under MCR 2.116(C)(4).” Plaintiffs also “were not deprived of notice or a meaningful opportunity to be heard on issues that formed the basis of” the circuit court’s ruling. Further, because they failed to timely file an appeal to the circuit court to challenge the defendant-Board’s decision, the circuit court correctly found “that it lacked subject matter jurisdiction over the dispute.” Finally, plaintiffs’ res judicata argument failed because defendants were not granted summary disposition on that basis. They contended “they were denied procedural due process because the circuit court granted defendants summary disposition under MCR 2.116(I)(1) without notifying” them in advance it was considering dismissing the amended complaint under this court rule. Their argument suggested “that MCR 2.116(C)(4) and (I)(1) are mutually exclusive grounds for granting summary disposition. However, MCR 2.116(I)(1) is a corollary to the various grounds for summary disposition stated in MCR 2.116(C).” Plaintiffs further asserted “the circuit court violated their due-process rights because the circuit court did not advise them in advance that it planned to rule under MCR 2.116(I)(1).” But unlike in Al-Maliki, the circuit court here “did not grant defendants summary disposition on an issue raised sua sponte by the circuit court. Rather, defendants moved for summary disposition contending that the circuit court lacked subject matter jurisdiction because plaintiffs had failed to appeal the Board’s decision and because plaintiffs were not aggrieved parties. Plaintiffs responded to defendants’ motion and the parties addressed the issues at a hearing on the motion. The circuit court subsequently granted defendants summary disposition on the bases raised in their motion.” Also, unlike Lamkin, plaintiffs here “were not unaware that the circuit court was ‘contemplating summary disposition’ of their claims. Plaintiffs in this case were aware that defendants had moved for summary disposition, responded to the motion, and participated in the hearing on the motion. The circuit court thereafter granted defendants summary disposition on the grounds asserted in their motion.” Plaintiffs further argued “they lacked notice of the circuit court’s intention to address the merits of Counts 1 through 4 of their amended complaint.” But the circuit court granted defendants summary disposition on the basis it lacked subject matter jurisdiction. Plaintiffs “had notice and an opportunity to be heard on” that issue and thus, were not denied due process.

    Full Text Opinion

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