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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary

Includes summaries of one Michigan Supreme Court opinion under Insurance/Negligence & Intentional Tort and one Michigan Supreme Court order under Criminal Law.


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 79525
    Case: New Prods. Corp. v. Butzel Long
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Hood and Maldonado; Concurrence - Gleicher
    Issues:

    Legal malpractice; Statute of repose; MCL 600.5838b; Contract interpretation

    Summary:

    The court held that the trial court erred by granting defendant-law firm summary disposition of plaintiff’s legal malpractice action on the basis it was time-barred. Defendant initially represented plaintiff in an underlying property dispute. After plaintiff filed this suit, the parties entered into an agreement that this “lawsuit would be dismissed without prejudice and the statute of limitations would be tolled while” plaintiff litigated the underlying case. It lost that case, and resumed this one, claiming defendant’s negligence resulted in plaintiff losing title to the disputed land. But while the underlying case was still being litigated, the Legislature enacted MCL 600.5838b, which bars legal malpractice actions commenced “six years after the date of the act or omission that is the basis for the claim.” The trial court found that this litigation was barred by the statute of repose. On appeal, the court agreed with plaintiff that “the trial court’s interpretation of the agreement was erroneous because interpreting the tolling agreement as to include the statute of repose is consistent with the contract’s plain language and because excluding it is contrary to” the parties’ clear intent. The court noted it was “undeniable, both from the language of the agreement and the circumstances surrounding its formation, that the parties’ intent was that [plaintiff] would be allowed to bring its malpractice action against [defendant] without being time-barred at the conclusion of” the underlying case. It was also “undeniable that the parties did not intend that the action be time-barred by the statute of repose because the statute of repose did not exist” when the agreement was executed. In addition, “interpreting the contract as to toll the statute of repose is consistent with its plain language. The parties agreed to toll ‘[a]ll applicable Statutes of Limitation,’ and we conclude that the statute of repose fits within the term ‘Statutes of Limitation’ as it is used in this agreement.” And although “there is caselaw recognizing a distinction between statutes of limitations and statutes of repose . . . all rules of interpretation are subordinate to the goal of ascertaining the parties’ intent and interpreting the term in such a way as to include the statute of repose is consistent with the parties’ intent to waive time limitations so that [plaintiff] could litigate the underlying claim prior to bringing the malpractice action. The parties could not have intended for the statute of repose to remain effective given that it did not yet exist.” Reversed and remanded.

    Full Text Opinion

  • Civil Rights (1)

    Full Text Opinion

    e-Journal #: 79593
    Case: Does 1-5 v. Whitmer
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Boggs, McKeague, and Thapar
    Issues:

    Supervisory liability under 42 USC § 1983; Claim based on defendants’ alleged failure to stop their subordinates (the Michigan State Police (MSP)) from enforcing unconstitutional provisions of the Michigan Sex Offender Registration Act (SORA); Whether plaintiffs plausibly alleged that defendants authorized, approved, or knowingly acquiesced in any unconstitutional conduct; Distinguishing Peatross v City of Memphis

    Summary:

    [This appeal was from the ED-MI.] The court upheld the dismissal of plaintiffs-Does’ § 1983 action against defendants-current and former Michigan governors and MSP directors, holding that plaintiffs failed to establish a supervisory liability claim where they did not plausibly allege that “defendants authorized, approved, or knowingly acquiesced in any unconstitutional conduct.” Plaintiffs. five sex offenders, brought this class-action suit against defendants for damages, alleging that they oversaw and failed to stop the MSP from enforcing unconstitutional provisions of the Michigan SORA against them even though the provisions were declared unconstitutional by the federal courts. The district court dismissed the case based on, among other grounds, sovereign immunity. The court affirmed but on different grounds, explaining that it preferred to resolve the case on the merits. “To state a claim of supervisory liability under § 1983, plaintiffs must plausibly allege that a defendant ‘authorized, approved, or knowingly acquiesced in the unconstitutional conduct . . . of his subordinates through the execution of his job functions.’” The court noted that each official could only be liable for their own misconduct, and not for a subordinate’s actions. The court considered the allegations that the MSP directors “acquiesced in or implicitly authorized” unconstitutional conduct and found them to be “wholly conclusory.” It then held that the allegations regarding a failure to instruct their subordinates were deficient where “alleging a mere failure to act, without more, is insufficient to state a claim of supervisory liability.” Plaintiffs alleged that “the governors were aware that their subordinates continued to enforce the invalidated portions of SORA, not least because the governors were subject to a ‘never-ending barrage of lawsuits.’” But this case was distinguishable “from Peatross, where the complaint alleged that the supervisor had been warned repeatedly of a pattern of constitutional violations.” Although the court did “not say that plaintiffs can never plausibly allege knowing acquiescence or deliberate indifference by pointing to a pattern of past or ongoing litigation[,]” the three cases plaintiffs cited in their complaint were insufficient.

    Full Text Opinion

  • Criminal Law (5)

    Full Text Opinion

    e-Journal #: 79592
    Case: People v. Furman
    Court: Michigan Supreme Court ( Order )
    Judges: Clement, Zahra, Viviano, Bernstein, Cavanagh, Welch, and Bolden
    Issues:

    Motion to withdraw a no-contest plea after sentencing; Ineffective assistance of counsel related to a plea; Promises outside the plea agreement

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 78347 in the 11/7/22 edition) and a circuit court order, and remanded to the district court for an evidentiary hearing as to whether an outside promise induced “defendant’s plea and whether defense counsel was ineffective.” The circuit court order had reversed the district court’s order granting defendant’s motion to withdraw his nolo contendere plea. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79515
    Case: People v. Castillo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Evidence; Authentication; Mitchell v Kalamazoo Anesthesiology, PC; Adequate foundation for real evidence & photos; Unfair prejudice; MRE 403; People v Blackston; Whether the standard deadlock jury instruction (M Crim JI 3.12.) should have been given instead of a modified one; People v Hardin; Sentencing; Scoring of OV 7; People v Lydic; MCL 777.37(1)(a); Ineffective assistance of counsel; Failure to raise meritless arguments or objections

    Summary:

    The court held that the trial court did not err in admitting photos of the victim’s (B) home and a damaged light fixture collected from it over a year after the incident. Further, the trial court did not err in giving a modified deadlock jury instruction that added information not included in the standard one. Finally, the court upheld the 50-point score for OV 7 and rejected defendant’s ineffective assistance of counsel claims. Thus, it affirmed his AWIGBH conviction and sentence as a second-offense habitual offender to 18 months to 15 years. While he faulted the trial court for admitting the photos and fixture “because the evidence was unreliable, the weight or reliability of evidence is an issue for the jury” after the evidence is admitted. In addition, “there was a proper foundation to admit this evidence.” B’s girlfriend (A) testified extensively about the accuracy of the photos, which she took. While some “were taken an hour or so after the fight, some later in the evening, and some days later; [A] was clear in describing the circumstances surrounding each image and any changes she had made to the scene since the fight occurred.” Further, she, B, and a law enforcement officer “all testified that the light fixture, despite being recovered by police well after the fight, was damaged during the fight and thereafter was substantially unchanged. Given the proper foundation for admission, whether this evidence was genuine and reliable, including whether [it] accurately depicted the scene, was” for the jury to decide. The court also determined the “evidence was not unduly prejudicial under MRE 403.” The photos simply showed “the scene of the fight after [B] was hospitalized and the police left the home. While these images certainly show that the fight was violent, particularly given the blood spatter depicted, nothing indicates they were enhanced or otherwise altered to distort the nature of the incident and inflame the jury.” And nothing indicated the fixture was altered other than being dismantled from the ceiling. As to the challenged jury instruction, the court held that the “trial court’s additional commentary to the instruction did not improperly coerce the jury.” Nothing indicated that the jury was required to reach a verdict “or that deliberations would continue until” one was reached. And the court found the evidence supported a 50-point score for OV 7, “specifically under the excessive-brutality prong.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79496
    Case: People v. Lieb
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Sufficiency of the evidence for a receiving & concealing stolen property conviction; Restitution; Constitutionality of MCL 769.1k(1)(b)(iii); People v Johnson; Judgment of sentence (JOS)

    Summary:

    The court held that there was sufficient evidence to support defendant's receiving and concealing stolen property conviction. It also affirmed his sentence (including the requirement that he pay costs), but vacated the restitution-award portion of the JOS, and remanded solely for the trial court to reduce the restitution award from $6,000 to $2,000. He argued “the prosecution failed to meet its evidentiary burden to prove that defendant knew the Greenlee 555 was stolen at the time he received” the equipment. But the court concluded a fact-finder could find the “prosecution proved beyond a reasonable doubt that defendant had guilty knowledge of the stolen status of the equipment at the time he received and possessed the Greenlee 555.” The court concluded “that there was sufficient evidence to support defendant’s conviction of receiving and concealing stolen property.” Defendant argued, and the prosecution concurred, “that the $6,000 restitution award must be vacated and reduced to $2,000 because the amount of restitution is unsupported by the record and exceeds the amount that can be considered part of defendant’s course of conduct.” The court agreed. The prosecution conceded this point and agreed the record only supported a restitution award of $2,000. The trial court’s restitution award was clearly erroneous and must be vacated to accurately reflect the record. The court remanded for the trial court to reduce the restitution award from $6,000 to $2,000. Defendant lastly argued MCL 769.1k(1)(b)(iii) is unconstitutional. Applying Johnson, defendant’s challenges to the facial constitutionality of MCL 769.1k(1)(b)(iii) failed, and the court affirmed the costs ordered by the trial court in defendant’s JOS. 

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Juvenile Law

    e-Journal #: 79503
    Case: People v. McConnell
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Application to set aside a plea-based juvenile adjudication for CSC III; MCL 712A.18e; People v Butka (Unpub); Distinguishing People v Rosen & People v Boulding

    Summary:

    The court held that the trial court was allowed “to, and did, rely on the impact that” granting defendant’s motion to set aside his plea-based juvenile adjudication for CSC III would have on the victim, and did not abuse its discretion in denying the motion. He argued it “improperly based its decision on the nature of the offense and usurped the” Legislature’s role. The court disagreed. Pursuant to Rosen, in deciding whether or not to set aside a juvenile adjudication or conviction, “the focus cannot solely be on the nature of the offense itself.” Instead, under MCL 712A.18e(9), the trial court analysis must focus “on: (1) the circumstances and the defendant’s behavior since the offense was committed, and (2) consideration of the public welfare.” The court noted that the trial court at no point stated “it was denying the motion because similarly-situated adults were ineligible. Rather,” it was clear that it “was concerned about the nature of the offense—both generally and in the context of the case.” And although the nature of the crime “cannot be the sole factor when deciding whether to set aside an adjudication, nothing in the statute or caselaw interpreting it counsels that the court may not consider it at all, especially in light of the requirement that the court consider whether setting aside the adjudication is in the ‘public welfare.’” Similar to Butka, the trial court here “acknowledged the seriousness of defendant’s actions, and did so in the context of the impact those actions had on the victim.” The court disagreed “with defendant’s characterization that the trial court ‘usurped’ the Legislature’s because, plainly, it did not.” It also rejected his assertion the trial court relied solely on the nature of the crime. Unlike Rosen and Boulding, the trial court here “did not focus only on the nature of the offense. [It] took testimony from defendant—which did not occur in Rosen—in which defendant explained how his life had improved since the adjudication,” and it considered his testimony. In addition, it “took testimony from the victim—which also did not occur in Rosen—in which [she] detailed the impact the offense had on her life and her desire that defendant’s adjudication not be set aside. Thus, . . . the court focused primarily on whether setting aside the adjudication would be consistent with the public welfare, i.e., the impact on the victim if the adjudication were set aside.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79553
    Case: United States v. Sanders
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Sutton, Moore, Clay, Gibbons, Griffin, Kethledge, Stranch, Thapar, Bush, Larsen, Nalbandian, Readler, Murphy, Davis, and Mathis
    Issues:

    Search & seizure; Probable cause; Whether there was a sufficient nexus to support the search warrant; Corroboration; Principle that probable cause is not satisfied by an officer’s mere “hunch”; Warrantless search; Good faith exception to the exclusionary rule; Effect of a “bare bones” affidavit

    Summary:

    In an order as to a petition for rehearing en banc (see e-Journal # 78930 in the 2/21/23 edition for the opinion at issue), a majority of the court’s judges in regular active service voted for rehearing en banc of this case. The original panel held that the district court erred by denying defendant’s motion to suppress because the police lacked probable cause to search the apartment where the evidence was found, and the good faith exception did not apply to save the fruits of an illegal search. Under Sixth Circuit Rule 35(b), the court ordered that the previous decision and judgment be vacated, the mandate stayed, and the case restored to the docket as a pending appeal.

    Full Text Opinion

  • Family Law (2)

    Full Text Opinion

    e-Journal #: 79534
    Case: Klein v. Klein
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Child custody; Proper cause or a change of circumstances; Vodvarka v Vodvarka; Established custodial environment (ECE); Pierron v Pierron; The statutory best-interest factors; MCL 722.23; Factors (a)-(j); Shade v Wright; Great weight of the evidence

    Summary:

    The court held that the trial court did not err by adopting the referee’s recommendation to deny defendant-mother’s motion for change of custody and parenting time. The trial court initially granted the parties joint legal custody and granted plaintiff-father sole physical custody of the children. Defendant subsequently moved for a change of custody and modification of parenting time. The referee ultimately recommended that plaintiff continue to have primary physical custody, but that parenting time be slightly decreased for defendant during the school year in order to provide the children with more stability and consistency while attending school. The trial court adopted this recommendation. On appeal, the court rejected defendant’s argument that the trial court abused its discretion because its findings concerning the children’s best interests were against the great weight of the evidence. It found that 1) the evidence supported the trial court’s findings as to factor (a); 2) the evidence supported the trial court’s finding that factor (b) favored plaintiff because he was able to offer better guidance than defendant; 3) defendant failed to show on appeal why factor (c) should have favored her over plaintiff; 4) the trial court did not abuse its discretion when it found factor (d) favored plaintiff because “he had a more stable environment that the children preferred and were used to, where, in contrast, defendant’s environment was problematic and the children were uncomfortable with it”; 5) the evidence supported the determination that factor (e) favored plaintiff because “plaintiff’s home environment was safer, more stable, and more permanent than defendant’s, . . . the children preferred plaintiff’s home, and [they] were clearly uncomfortable with” defendant’s living situation; 6) the evidence supported the trial court’s conclusion that factors (f)-(h) favored plaintiff over defendant; 7) defendant’s claim as to factor (i) was meritless; and 8) as to factor (j), “[t]he evidence presented showed that both parties demonstrated an inability to communicate with each other, to effectively coparent, or to encourage a good relationship between the children and the other parent.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79522
    Case: Maranda v. Alexander
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Statutory child support review pursuant to MCL 552.517(1) & b(1); Modification of a child support order; MCL 552.517b(8); MCL 552.517b(2); Hearing before a referee; MCL 552.517(4) & (5); The change-of-circumstances standard; MCL 552.517b(7); Friend of the Court (FOC)

    Summary:

    Holding that the trial court erred as a matter of law when it applied the change-of-circumstances standard, the court vacated the order denying a petition to modify child support and remanded. The trial court affirmed a recommendation of a referee to deny the FOC’s petition to modify child support on the basis defendant-father had not established a change of circumstances to warrant modification. It acknowledged his argument that the support review in this case was initiated by the FOC and therefore did not require proof of substantial change of circumstances pursuant to MCL 552.517b(7), but found the basis for his objection was erroneous. It also explained that “at the referee hearing, it was discussed that defendant requested a support review and his attorney agreed, which suggested that defendant, not the FOC, initiated the support review.” On appeal, defendant argued that the trial court erred by applying a change-of-circumstances standard. “Pursuant to MCL 552.517b(7), defendant is correct—because the FOC filed the petition to modify child support, no party needed to prove a substantial change in circumstances to sustain the FOC’s recalculation of the support obligation.” The court noted that defendant “never moved the trial court for a modification of his child support obligation—the FOC filed the petition in this matter.” MCL 552.517b(7) “expressly provides that ‘[t]he court shall not require proof of a substantial change in circumstances to modify child support when support is adjusted under [MCL 552.517(1)].’ Thus, the referee’s conclusion that defendant needed to prove a change of circumstances was legally incorrect.” Likewise, the trial court’s order, “which adopted the referee’s order, was legally incorrect. In short, the trial court erred as a matter of law when it applied the change-of-circumstances standard.”

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79595
    Case: Wilmore-Moody v. Zakir
    Court: Michigan Supreme Court ( Opinion )
    Judges: Cavanagh, Clement, Zahra, Viviano, Bernstein, and Welch; Not Participating – Bolden
    Issues:

    Auto negligence; Third-party action under the No-Fault Act (NFA); Bar from recovery if the injured person was operating their own vehicle at the time the injury occurred & did not have an insurance policy in effect for the vehicle; MCL 500.3135(2)(c); Effect of rescission of a policy on the vehicle after the accident

    Summary:

    The court held that an insurer’s decision to rescind a no-fault policy after an accident does not trigger MCL 500.3135(2)(c)’s exclusion prohibiting an injured person from recovering third-party no-fault benefits. Thus, the court affirmed the Court of Appeals decision that reversed the trial court’s grant of summary disposition to defendant-Zakir, who rear-ended plaintiff’s vehicle in the underlying accident. At the time of the accident, plaintiff had an insurance policy issued by defendant-Everest National Insurance Company. After the accident, she “submitted a claim to Everest for first-party no-fault benefits. Rather than paying plaintiff benefits, Everest notified her that it would be rescinding her policy and returning her premiums because it concluded that she had made a material misrepresentation in her insurance application.” Plaintiff subsequently sued Everest and Zakir. After the trial court granted Everest summary disposition on the basis it had the right to rescind the policy, Zakir also successfully moved for summary disposition, relying on MCL 500.3135(2)(c). The Court of Appeals agreed with plaintiff that the trial court erred as to Zakir. On his appeal, the court concluded that rescission of an insurance policy is an equitable, “contractual remedy between the insured and insurer[,]” exercised at the insurer’s discretion. It “does not alter the reality that, at the time the injury occurred, the injured motorist held the required security. Rescission by the insurer postaccident is not a defense that can be used by a third-party tortfeasor to avoid liability for noneconomic damages.” The court noted that “MCL 500.3135(2)(c) requires that the owner or registrant maintained the required security ‘at the time the injury occurred.’ The statute uses the past-tense phrase ‘at the time the injury occurred’ twice. This signals the Legislature’s intent concerning the time that is relevant when considering whether a claimant is barred from suing for noneconomic damages. It is undisputed in this case that, ‘at the time the injury occurred,’ plaintiff held an insurance policy issued by Everest and that the policy was not rescinded until much later.” The court remanded the case to the trial court for further proceedings.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79500
    Case: Harris v. Allstate Fire & Cas. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Auto negligence; “Serious impairment of an important body function”; MCL 500.3135(1) & (5); McCormick v Carrier; Causation; Patrick v Turkelson; The ability to move one’s back as an important body function

    Summary:

    In this third-party no-fault action, the court held that a factual dispute existed as to “the nature and extent of plaintiff’s injuries” and that it was material to determining whether she suffered a threshold injury under MCL 500.3135(1). Thus, it reversed summary judgment for defendant-Alson and remanded. It first found record evidence supported “that plaintiff sustained objectively manifested impairments to her back, neck, and shoulder caused by the accident.” Records from one doctor (H) showed “that he detected ‘traumatic spondylopathy’ in” her cervical region, and another doctor indicated she “had a flattening of her cervical lordotic curve, decreased range of motion, and an elevated left shoulder as a result of muscle spasm.” Thus, there was “evidence of objectively manifested impairments.” Further, it was “reasonably inferable” that the impairments resulted from the accident. She was transported to the hospital “and complained of neck and shoulder pain. Three days later, plaintiff followed up with her primary care physician and again complained of neck and shoulder pain. About two weeks later, [she] called her primary care physician and complained of pain and indicated she wanted to try physical therapy. About a month later, [she] was diagnosed with a sprain of cervical spine ligaments, traumatic spondylopathy in cervical region, flattening of cervical lordotic curve, decreased range of motion, and an elevated shoulder” due to a muscle spasm. Thus, the court found her evidence showed “a ‘logical sequence of cause and effect’ that these impairments were a result of the accident.” It also noted it has previously recognized the “‘ability to move one’s back is an important body function’” and plaintiff’s deposition testimony showed “her pain impacted her ability to walk, participate in recreational activities, and perform certain physical tasks at work.” As to their effect on her general ability to live her normal life, there was evidence she missed eight days of work due to the accident, and H disabled her from housework for nearly six weeks. Plaintiff also “testified she could no longer bowl or play softball,” activities she regularly participated in previously. While defendant suggested there was no factual dispute because plaintiff’s only alleged injuries were “soft tissue in nature” the court noted that “neither the case law nor MCL 500.3135 render persistent ‘soft tissue’ injuries nonrecoverable[.]”

    Full Text Opinion

  • Juvenile Law (1)

    Full Text Opinion

    This summary also appears under Criminal Law

    e-Journal #: 79503
    Case: People v. McConnell
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Application to set aside a plea-based juvenile adjudication for CSC III; MCL 712A.18e; People v Butka (Unpub); Distinguishing People v Rosen & People v Boulding

    Summary:

    The court held that the trial court was allowed “to, and did, rely on the impact that” granting defendant’s motion to set aside his plea-based juvenile adjudication for CSC III would have on the victim, and did not abuse its discretion in denying the motion. He argued it “improperly based its decision on the nature of the offense and usurped the” Legislature’s role. The court disagreed. Pursuant to Rosen, in deciding whether or not to set aside a juvenile adjudication or conviction, “the focus cannot solely be on the nature of the offense itself.” Instead, under MCL 712A.18e(9), the trial court analysis must focus “on: (1) the circumstances and the defendant’s behavior since the offense was committed, and (2) consideration of the public welfare.” The court noted that the trial court at no point stated “it was denying the motion because similarly-situated adults were ineligible. Rather,” it was clear that it “was concerned about the nature of the offense—both generally and in the context of the case.” And although the nature of the crime “cannot be the sole factor when deciding whether to set aside an adjudication, nothing in the statute or caselaw interpreting it counsels that the court may not consider it at all, especially in light of the requirement that the court consider whether setting aside the adjudication is in the ‘public welfare.’” Similar to Butka, the trial court here “acknowledged the seriousness of defendant’s actions, and did so in the context of the impact those actions had on the victim.” The court disagreed “with defendant’s characterization that the trial court ‘usurped’ the Legislature’s because, plainly, it did not.” It also rejected his assertion the trial court relied solely on the nature of the crime. Unlike Rosen and Boulding, the trial court here “did not focus only on the nature of the offense. [It] took testimony from defendant—which did not occur in Rosen—in which defendant explained how his life had improved since the adjudication,” and it considered his testimony. In addition, it “took testimony from the victim—which also did not occur in Rosen—in which [she] detailed the impact the offense had on her life and her desire that defendant’s adjudication not be set aside. Thus, . . . the court focused primarily on whether setting aside the adjudication would be consistent with the public welfare, i.e., the impact on the victim if the adjudication were set aside.” Affirmed.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79517
    Case: Intrastate Distribs., Inc. v. Aoun
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Tortious interference with a contractual or business relationship; Health Call v Atrium Home & Health Care Servs, Inc; Whether the actions pled & argued gave rise to tort liability; Discovery; Grant of a request for a protective order

    Summary:

    The court held that the trial court did not err in granting defendants summary disposition because plaintiff failed to state valid claims. It also concluded that the trial court’s denial of plaintiff’s requested discovery “did not fall outside the range of principled outcomes.” Thus, it affirmed the trial court’s order granting defendants’ motion for summary disposition on the basis that defendants’ actions, as pled and argued, “did not give rise to tort liability.” The contract between nonparty-Essentia “and plaintiff did not create a situation in which any nonparties separately distributing Essentia products in plaintiff’s region were thereby engaging in tortious conduct.” The court held that plaintiff’s “last-minute, and unpersuasive, assertion of a breach by Essentia did not constitute properly pleading that plaintiff’s relationship with Essentia had broken down in some way. That this element was not properly pleaded supported summary disposition under MCR 2.116(C)(8).” The court concluded that to “state a valid claim, plaintiff also had to allege that defendants acted in an improper way. In this respect it is important to note that plaintiff and defendants are marketplace competitors.” The alleged torts (tortious interference with a business relationship and tortious interference with a contract) “are tools for preventing, or remedying, improper interference with business relationships, not for stifling competition or shutting down a competitor.” The court found that plaintiff’s “pleadings included no allegation that defendants ever intended to interfere with its contract with Essentia or any specific facts of any contact with Essentia.” The court determined that “defendants’ actions competing in the marketplace financially affected plaintiff is not enough. Plaintiff’s failure to connect defendants’ actions with any breakdown of its relationship with Essentia supported” the grant of summary disposition under (C)(8). As to the grant of defendants’ request for a protective order, the court found “it obvious that plaintiff could gain an undeserved competitive advantage by obtaining” the information it sought in discovery (including purchase orders, invoices, and delivery slips) “without having properly alleged valid claims against defendants.”

    Full Text Opinion

  • Malpractice (1)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 79525
    Case: New Prods. Corp. v. Butzel Long
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Hood and Maldonado; Concurrence - Gleicher
    Issues:

    Legal malpractice; Statute of repose; MCL 600.5838b; Contract interpretation

    Summary:

    The court held that the trial court erred by granting defendant-law firm summary disposition of plaintiff’s legal malpractice action on the basis it was time-barred. Defendant initially represented plaintiff in an underlying property dispute. After plaintiff filed this suit, the parties entered into an agreement that this “lawsuit would be dismissed without prejudice and the statute of limitations would be tolled while” plaintiff litigated the underlying case. It lost that case, and resumed this one, claiming defendant’s negligence resulted in plaintiff losing title to the disputed land. But while the underlying case was still being litigated, the Legislature enacted MCL 600.5838b, which bars legal malpractice actions commenced “six years after the date of the act or omission that is the basis for the claim.” The trial court found that this litigation was barred by the statute of repose. On appeal, the court agreed with plaintiff that “the trial court’s interpretation of the agreement was erroneous because interpreting the tolling agreement as to include the statute of repose is consistent with the contract’s plain language and because excluding it is contrary to” the parties’ clear intent. The court noted it was “undeniable, both from the language of the agreement and the circumstances surrounding its formation, that the parties’ intent was that [plaintiff] would be allowed to bring its malpractice action against [defendant] without being time-barred at the conclusion of” the underlying case. It was also “undeniable that the parties did not intend that the action be time-barred by the statute of repose because the statute of repose did not exist” when the agreement was executed. In addition, “interpreting the contract as to toll the statute of repose is consistent with its plain language. The parties agreed to toll ‘[a]ll applicable Statutes of Limitation,’ and we conclude that the statute of repose fits within the term ‘Statutes of Limitation’ as it is used in this agreement.” And although “there is caselaw recognizing a distinction between statutes of limitations and statutes of repose . . . all rules of interpretation are subordinate to the goal of ascertaining the parties’ intent and interpreting the term in such a way as to include the statute of repose is consistent with the parties’ intent to waive time limitations so that [plaintiff] could litigate the underlying claim prior to bringing the malpractice action. The parties could not have intended for the statute of repose to remain effective given that it did not yet exist.” Reversed and remanded.

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  • Negligence & Intentional Tort (3)

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    This summary also appears under Insurance

    e-Journal #: 79595
    Case: Wilmore-Moody v. Zakir
    Court: Michigan Supreme Court ( Opinion )
    Judges: Cavanagh, Clement, Zahra, Viviano, Bernstein, and Welch; Not Participating – Bolden
    Issues:

    Auto negligence; Third-party action under the No-Fault Act (NFA); Bar from recovery if the injured person was operating their own vehicle at the time the injury occurred & did not have an insurance policy in effect for the vehicle; MCL 500.3135(2)(c); Effect of rescission of a policy on the vehicle after the accident

    Summary:

    The court held that an insurer’s decision to rescind a no-fault policy after an accident does not trigger MCL 500.3135(2)(c)’s exclusion prohibiting an injured person from recovering third-party no-fault benefits. Thus, the court affirmed the Court of Appeals decision that reversed the trial court’s grant of summary disposition to defendant-Zakir, who rear-ended plaintiff’s vehicle in the underlying accident. At the time of the accident, plaintiff had an insurance policy issued by defendant-Everest National Insurance Company. After the accident, she “submitted a claim to Everest for first-party no-fault benefits. Rather than paying plaintiff benefits, Everest notified her that it would be rescinding her policy and returning her premiums because it concluded that she had made a material misrepresentation in her insurance application.” Plaintiff subsequently sued Everest and Zakir. After the trial court granted Everest summary disposition on the basis it had the right to rescind the policy, Zakir also successfully moved for summary disposition, relying on MCL 500.3135(2)(c). The Court of Appeals agreed with plaintiff that the trial court erred as to Zakir. On his appeal, the court concluded that rescission of an insurance policy is an equitable, “contractual remedy between the insured and insurer[,]” exercised at the insurer’s discretion. It “does not alter the reality that, at the time the injury occurred, the injured motorist held the required security. Rescission by the insurer postaccident is not a defense that can be used by a third-party tortfeasor to avoid liability for noneconomic damages.” The court noted that “MCL 500.3135(2)(c) requires that the owner or registrant maintained the required security ‘at the time the injury occurred.’ The statute uses the past-tense phrase ‘at the time the injury occurred’ twice. This signals the Legislature’s intent concerning the time that is relevant when considering whether a claimant is barred from suing for noneconomic damages. It is undisputed in this case that, ‘at the time the injury occurred,’ plaintiff held an insurance policy issued by Everest and that the policy was not rescinded until much later.” The court remanded the case to the trial court for further proceedings.

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    This summary also appears under Insurance

    e-Journal #: 79500
    Case: Harris v. Allstate Fire & Cas. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Hood, and Maldonado
    Issues:

    Auto negligence; “Serious impairment of an important body function”; MCL 500.3135(1) & (5); McCormick v Carrier; Causation; Patrick v Turkelson; The ability to move one’s back as an important body function

    Summary:

    In this third-party no-fault action, the court held that a factual dispute existed as to “the nature and extent of plaintiff’s injuries” and that it was material to determining whether she suffered a threshold injury under MCL 500.3135(1). Thus, it reversed summary judgment for defendant-Alson and remanded. It first found record evidence supported “that plaintiff sustained objectively manifested impairments to her back, neck, and shoulder caused by the accident.” Records from one doctor (H) showed “that he detected ‘traumatic spondylopathy’ in” her cervical region, and another doctor indicated she “had a flattening of her cervical lordotic curve, decreased range of motion, and an elevated left shoulder as a result of muscle spasm.” Thus, there was “evidence of objectively manifested impairments.” Further, it was “reasonably inferable” that the impairments resulted from the accident. She was transported to the hospital “and complained of neck and shoulder pain. Three days later, plaintiff followed up with her primary care physician and again complained of neck and shoulder pain. About two weeks later, [she] called her primary care physician and complained of pain and indicated she wanted to try physical therapy. About a month later, [she] was diagnosed with a sprain of cervical spine ligaments, traumatic spondylopathy in cervical region, flattening of cervical lordotic curve, decreased range of motion, and an elevated shoulder” due to a muscle spasm. Thus, the court found her evidence showed “a ‘logical sequence of cause and effect’ that these impairments were a result of the accident.” It also noted it has previously recognized the “‘ability to move one’s back is an important body function’” and plaintiff’s deposition testimony showed “her pain impacted her ability to walk, participate in recreational activities, and perform certain physical tasks at work.” As to their effect on her general ability to live her normal life, there was evidence she missed eight days of work due to the accident, and H disabled her from housework for nearly six weeks. Plaintiff also “testified she could no longer bowl or play softball,” activities she regularly participated in previously. While defendant suggested there was no factual dispute because plaintiff’s only alleged injuries were “soft tissue in nature” the court noted that “neither the case law nor MCL 500.3135 render persistent ‘soft tissue’ injuries nonrecoverable[.]”

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    This summary also appears under Litigation

    e-Journal #: 79517
    Case: Intrastate Distribs., Inc. v. Aoun
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Tortious interference with a contractual or business relationship; Health Call v Atrium Home & Health Care Servs, Inc; Whether the actions pled & argued gave rise to tort liability; Discovery; Grant of a request for a protective order

    Summary:

    The court held that the trial court did not err in granting defendants summary disposition because plaintiff failed to state valid claims. It also concluded that the trial court’s denial of plaintiff’s requested discovery “did not fall outside the range of principled outcomes.” Thus, it affirmed the trial court’s order granting defendants’ motion for summary disposition on the basis that defendants’ actions, as pled and argued, “did not give rise to tort liability.” The contract between nonparty-Essentia “and plaintiff did not create a situation in which any nonparties separately distributing Essentia products in plaintiff’s region were thereby engaging in tortious conduct.” The court held that plaintiff’s “last-minute, and unpersuasive, assertion of a breach by Essentia did not constitute properly pleading that plaintiff’s relationship with Essentia had broken down in some way. That this element was not properly pleaded supported summary disposition under MCR 2.116(C)(8).” The court concluded that to “state a valid claim, plaintiff also had to allege that defendants acted in an improper way. In this respect it is important to note that plaintiff and defendants are marketplace competitors.” The alleged torts (tortious interference with a business relationship and tortious interference with a contract) “are tools for preventing, or remedying, improper interference with business relationships, not for stifling competition or shutting down a competitor.” The court found that plaintiff’s “pleadings included no allegation that defendants ever intended to interfere with its contract with Essentia or any specific facts of any contact with Essentia.” The court determined that “defendants’ actions competing in the marketplace financially affected plaintiff is not enough. Plaintiff’s failure to connect defendants’ actions with any breakdown of its relationship with Essentia supported” the grant of summary disposition under (C)(8). As to the grant of defendants’ request for a protective order, the court found “it obvious that plaintiff could gain an undeserved competitive advantage by obtaining” the information it sought in discovery (including purchase orders, invoices, and delivery slips) “without having properly alleged valid claims against defendants.”

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