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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 a summary of one Michigan Supreme Court order under Healthcare Law/Malpractice.


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    e-Journal #: 79597
    Case: MacIntosh v. Clous
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Stranch and Davis; Dissent – Sutton
    Issues:

    First Amendment retaliation; “Adverse action”; Zilich v Longo; Whether defendant-county commissioner was expressing his own First Amendment rights by brandishing a rifle; Bloch v Ribar; Qualified immunity; Whether the constitutional right at issue was “clearly established”; Thaddeus-X v Blatter

    Summary:

    [This appeal was from the WD-MI.] The court held that because plaintiff-MacIntosh plausibly alleged that defendant-county commissioner Clous violated her free-speech rights, and Sixth Circuit case law put Clous on clear notice his actions were unconstitutional, the district court did not err by denying his motion to dismiss, which was based on qualified immunity. Pursuant to Zilich, a “ threat to shoot a person because of her protected speech is an adverse action sufficient to support a First Amendment retaliation claim.” MacIntosh attended a Zoom meeting of the Grand Traverse County Commission 14 days after the events of 1/6/21 and expressed her concern about the Commission’s prior endorsement of the Proud Boys, a designated extremist hate group. She suggested the commissioners release a statement condemning the group’s violent behavior. Clous’s response was to “produce[] a high-powered rifle and display[] it to MacIntosh and the viewing audience.” MacIntosh sued the County and Clous in his individual capacity. She alleged Clous “retaliated against her for exercising her rights under the First Amendment, and that the County had an unconstitutional policy or practice of” permitting this. On appeal, as to whether Clous was entitled to qualified immunity, the court held that MacIntosh plausibly alleged that Clous’s actions violated a clearly established constitutional right. It noted that whether an action was so severe as to deter an individual “of ordinary firmness” from exercising a constitutional right is a question of fact, and under the motion to dismiss standard, a plaintiff only needs to assert a “plausible” claim. The court explained that, in response to McIntosh’s protected speech, Clous responded “by displaying a high-powered firearm to the camera—a threat with a deadly weapon that MacIntosh interpreted as ‘a symbolic message to say “stop or else”’ he would use that weapon against her—and the Board Chairman laughed. That action was followed by late night, anonymous, phone calls threatening MacIntosh.” Based on the factual parallels to Zilich, “Clous was on notice that he was accountable for communicating a threat against a citizen who was exercising her right to speak in the public square.” The court also held that in light of Zilich and Thaddeus-X, the right was clearly established. “Zilich established that threatening gun violence to silence a political opponent constitutes unconstitutional adverse action.” And the conduct here of “brandishing a weapon was proscribed by our conclusion in Thaddeus-X that physical threats constitute adverse action—especially” given that MacIntosh was a “citizen exercising her right to speak during a public comment period at a Commission meeting[.]” Affirmed.

    Full Text Opinion

  • Criminal Law (4)

    Full Text Opinion

    e-Journal #: 79492
    Case: People v. Bauman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; Right to a properly instructed jury; People v Mills; Right to a unanimous verdict; People v Gadomski; Distinguishing between first-degree felony murder & first-degree premeditated murder; People v Fullwood; Failure to move to suppress defendant’s police statements & evidence from his cell phone; Miranda v Arizona; Search & seizure; Probable cause; Cumulative error

    Summary:

    The court held that defendant was not denied his right to the effective assistance of counsel. He was convicted of first-degree murder, AWIM, first-degree home invasion, and felony-firearm for breaking into his ex-wife’s home, shooting her, shooting and killing her new boyfriend, and shooting a neighbor. On appeal, the court rejected his argument that trial counsel was ineffective for failing to object to the trial court’s unanimity instruction and use of an allegedly faulty verdict form. The trial court “was not required to give a specific unanimity instruction because there was sufficient evidence to establish both first-degree premeditated murder and felony murder, the charges were proved by substantially the same evidence, and there was no evidence of juror confusion.” As such, “even if trial counsel had objected to the verdict form and requested a specific unanimity instruction, his request would have been denied.” The court also rejected the claim that trial counsel should have moved to suppress defendant’s incriminating statements to police because he was not provided his Miranda rights before being subjected to custodial interrogation in a patrol car. His “incriminating statements made in the patrol car on the way to jail were admissible because they were not obtained via custodial interrogation in violation of Miranda. [He] has not provided any ground on which to invalidate the Miranda waiver provided by defendant before being interrogated by” an officer at the jail. “Because the motion to suppress the statements to police would have been denied as meritless, trial counsel cannot be deemed ineffective for failing to raise the argument.” As to the decision to not move to suppress evidence retrieved from his cell phone, because “the warrant to search defendant’s cell phone was constitutionally sound, any motion to suppress evidence obtained from it would have lacked merit. Alternatively, even if the affidavit supporting the warrant was technically deficient, the motion to suppress still would have been denied on the basis of the good-faith exception to the exclusionary rule.” Finally, the court rejected his cumulative error argument given that he did not identify “any actual errors that occurred during the trial.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79508
    Case: People v. Lafay
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Sufficiency of the evidence; OWI; “Operating” a truck; MCL 257.35a(a); Motion for mistrial

    Summary:

    Holding that there was sufficient evidence to support defendant’s OWI conviction and that the record did not support his claim the officer’s statement required the trial court to declare a mistrial, the court affirmed his convictions of OWI and operating a vehicle without a license. Defendant argued “that due process requires reversal of his OWI conviction because the prosecutor presented insufficient evidence to establish he was intoxicated while actually operating his vehicle.” He contended “that he was not ‘operating’ his truck within the meaning of MCL 257.35a(a).” This argument was unpersuasive. The court held that there was sufficient circumstantial evidence presented to support the jury’s verdict. Defendant conceded “that his blood-alcohol content was above the legal limit when his blood was taken, and he admitted to driving his truck to the intersection before it became disabled.” Also, he “smelled of alcohol and admitted to drinking earlier in the day, and the arresting trooper observed multiple vodka bottles under defendant’s driver seat, noting that some were empty or partially empty. The lack of direct statements or witness testimony presented at trial to show the alcohol consumption occurred before defendant’s truck broke down is immaterial given the circumstantial evidence presented.” Moreover, the court noted that “the trooper observed defendant’s truck at the intersection with the headlights and taillights activated. The trooper testified that defendant’s truck was not parked next to the curb and that other vehicles had to drive on the sidewalk to get around the truck, which created a traffic hazard. Accordingly, the truck was ‘in a position posing a significant risk of causing a collision’ when the trooper arrived.” Similarly, the court noted that “defendant admitted he had been drinking earlier in the day, stating he had consumed shots of liquor and three to six beers. It was, therefore, reasonable for the jury to infer that defendant was operating his vehicle while impaired prior to the time at which it became inoperable.” Thus, there was sufficient evidence to support his OWI conviction.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79527
    Case: People v. Tolliver
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Mootness; People v Cathey

    Summary:

    The court held that because defendant had acquiesced to the protective order at issue while the appeal was pending, the appeal was moot. He was charged with multiple crimes. Before he “was bound over for trial, the district court entered a stipulated protective order regarding the discovery of digital evidence at issue in the case, which included hours of police bodycam footage and 911 calls, as well as upwards of 70,000 pages of cell phone records. Defendant’s trial counsel initially agreed to the terms of the protective order. However, defendant retained new counsel after he was bound over for trial. Defendant’s retained counsel moved to compel discovery, asserting that the protective order was overbroad.” The trial court agreed “and entered an order granting the motion to compel discovery and setting aside the district court’s protective order.” The prosecution appealed. While the appeal was pending, defendant “obtained new trial counsel, who signed the protective order.” The court noted that a copy of the order, signed by the parties, was submitted to it after oral argument. Thus, it dismissed the appeal as moot given that it would be impossible for it to fashion an appropriate remedy under the circumstances.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79596
    Case: United States v. McReynolds
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay and Stranch; Concurring in part, Dissenting in part – Griffin
    Issues:

    Sentencing; Calculation of drug quantity; Whether there was competent record evidence to support the district court’s drug-quantity determination; “Relevant conduct” under USSG § 1B1.3(a)(1)(B); The jury’s determination as to the drug quantity; Request for reassignment to another judge on remand

    Summary:

    [This appeal was from the ED-MI.] The court vacated defendant-McReynolds’s sentence and remanded for resentencing, holding that the district court erred by attributing the “conspiracy-wide drug quantity” to him based only on circumstantial evidence. But it declined to reassign the case on remand where the district court’s erroneous decision was not based on any improper conceptions as to the merits of defendant’s claims and there was no indication of bias. This was defendant’s second appeal as to his sentence for conspiring to distribute and to possess with intent to distribute a controlled substance. In his previous appeal, he argued the district court erred by attributing to him a “substantially higher” quantity of drugs than the jury had attributed to him. The district court’s quantity calculation increased the low end of the advisory guidelines range by nearly 5 years, and he was sentenced to 151 months in prison and 6 years of supervised release. The court previously vacated that sentence and remanded for resentencing based on the district court’s failure to explain the higher drug amounts. On remand, the district court did not change its drug-amount calculation, explaining that it believed the PSR contained the accurate drug quantity, and that the jury had been “confused.” It then sentenced defendant to 145 months based on his “post-sentencing positive conduct.” He again appealed, requesting that the district court be required to adopt the jury’s quantity calculation, and that the case be reassigned to a different judge on remand. After reviewing the testimony of defendant’s co-conspirator and his former customer, the court held that there was insufficient competent evidence in the record to support the district court’s drug-quantity determination. It concluded the evidence only established that he knew about the conspiracy, and not that he participated in it. Under § 1B1.3(a)(1)(B), he could not be liable for the acts of others where there was insufficient evidence that he participated in the conspiracy. And the government did not “establish modus operandi, coordination of activities among schemers, or a pooling of resources or profits.” The court also found that the record did not support the district court’s characterization of the jury as “confused” by their instructions. But it declined to reassign the case on remand under the circumstances.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 79521
    Case: Dorais v. Burt
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Divorce; The trial court’s jurisdiction; The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA); MCR 2.116(C)(6)

    Summary:

    The court held that the trial court erred when it did not limit its exercise of jurisdiction in this divorce case “to child-custody determinations under the UCCJEA” and failed to apply MCR 2.116(C)(6)’s unambiguous language to dismiss the noncustodial parts of the complaint without prejudice. Thus, the court reversed the order denying defendant-husband’s motion to dismiss plaintiff-wife’s divorce complaint and remanded for entry of an order dismissing the noncustodial components of the complaint. The parties married in Hungary in 1993. “From 2000 onward, they and their four children lived primarily in the United States, except for approximately 18 months spent in Hungary between 2014 and 2016.” When the case began, their only minor child lived “with plaintiff in Grand Rapids. The parties and their children have dual citizenship in the” U.S. and Hungary. Defendant left the marital home in 5/21 and moved back to Hungary. He filed for divorce there a few months later. Two months after that, plaintiff filed her complaint in Kent County. There was no dispute between the parties that the UCCJEA applied. And it could not “be reasonably disputed that the Michigan court has home-state jurisdiction under the UCCJEA to make an initial custody determination. Indeed, defendant acknowledged that the parties’ minor child had resided in Michigan for the past five or six years during the hearing on his motion to dismiss.” Under the circumstances, the court agreed with defendant “that the trial court erred by failing to limit the exercise of its jurisdiction to the custodial matters in plaintiff’s” complaint pursuant to the UCCJEA and should have dismissed “the noncustodial matters under MCR 2.116(C)(6).” The court noted that if “the Hungarian court does not resolve issues concerning the parties’ jointly owned Michigan property, either party may file an action thereafter in Michigan to resolve those outstanding issues. Whether comity dictates that the Hungarian divorce degree should be recognized and enforced in Michigan can only be determined after the decree has been issued.”

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 79594
    Case: Morgan v. Lakeland Med. Ctr.
    Court: Michigan Supreme Court ( Order )
    Judges: Clement, Zahra, Viviano, Bernstein, Cavanagh, Welch, and Bolden
    Issues:

    Medical malpractice; Vicarious liability under a theory of ostensible agency despite a preexisting physician-patient relationship; Markel v William Beaumont Hosp

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77308 in the 5/5/22 edition) and remanded the case to the Court of Appeals for reconsideration in light of Markel.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    e-Journal #: 79528
    Case: Spectrum Health Hosps. v. Citizens Ins. Co. of Am.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Rick, Shapiro, and O’Brien
    Issues:

    Action by a medical provider seeking PIP benefits for services provided to an insured; Causation; MCL 500.3105(1); McPherson v McPherson; Effect of a failure to pursue workers’ compensation benefits; MCL 500.3109(1); Perez v State Farm Mut Auto Ins Co

    Summary:

    The court held that the trial court erred by granting summary disposition for defendants-insurers because a genuine issue of fact remained and neither party was entitled to summary disposition. Plaintiffs sought reimbursement from defendants for services it provided for defendants’ insured (W), who was injured in an auto accident. The trial court found defendants were not liable to pay no-fault benefits because W failed to use reasonable efforts to obtain workers’ compensation benefits before pursuing no-fault benefits. On appeal, the court found neither party was entitled to summary disposition because there remained a genuine issue of material fact whether W’s injury requiring surgery arose from the accident. “[R]esolution of the parties’ dispute comes down to what caused [W’s] AC joint separation to worsen and require surgery—did it naturally worsen over time (as plaintiffs argue) or did it worsen because [W] caused greater damage by reinjuring his shoulder while at work (as defendants argue)? Both theories have evidence support, so resolution of the issue should be left to a factfinder, not resolved at the dispositive motion stage.” The court also found that the trial court erred by granting defendants’ motion for summary disposition on the basis of W’s failure to use reasonable efforts to obtain workers’ compensation benefits, and that W’s failure to pursue available workers’ compensation benefits did not entitle defendants to summary disposition. “First, as plaintiffs point out, defendants themselves could have pursued workers’ compensation benefits on behalf of” W. As such, W’s “failure to pursue workers’ compensation benefits did not preclude the practical application of MCL 500.3109(1), nor did it frustrate that statute’s purpose.” Second, defendants “are only entitled to subtract ‘[b]enefits provided or required to be provided,’ and the parties dispute whether [W’s] injuries would have qualified for workers’ compensation benefits.” Third, nothing in MCL 500.3109(1) indicated “it absolves defendants of their responsibility to pay PIP benefits.” Reversed and remanded.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 79526
    Case: Estate of Tschirhart v. City of Troy
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Wrongful death by drowning; Motion to amend the complaint; Notice-pleading; Personal representative (PR)

    Summary:

    The court held that the trial court erred, in part, by denying plaintiff-PR’s motion to amend the complaint as to defendants-city employees. But because plaintiff did not appeal the dismissal of defendant-city and previously conceded that it “should be dismissed, the claim of gross negligence in count VI of the proposed amended complaint naming” the city was improper. The case arose “from the drowning death of plaintiff’s 32-year-old disabled son in a swimming pool at” a facility operated by the city. The court noted that defendants “did not claim or identify any undue delay or undue prejudice arising from the proposed amended complaint. Therefore, leave should have been freely granted unless it could be shown that amendment would be futile.” As to futility, the court held that “the trial court erred in denying amendment by only relying on” a prior opinion issued by the court “and failing to consider the subsequent Supreme Court order.” It concluded that in “light of the Supreme Court order, a lifeguard’s delay, even if it constitutes gross negligence can be a cause in fact of a person’s drowning, a governmental employee’s failure to intervene can constitute the proximate cause of an injury, and the propriety of summary disposition under the circumstances is contingent upon the facts of the case.” Defendants submitted “that plaintiff failed to properly plead a duty, gross negligence, and facts in avoidance of governmental immunity.” But the court determined that under “the circumstances, plaintiff sufficiently pleaded that the decedent was a participant in defendants’ swimming program, that he had a history of seizures, that he was in the pool without a life jacket or life-saving protection, that he went under water, that [defendant-Alleman] did not immediately respond to the submersion but merely poked the decedent with a pool noodle, that ‘eventually’ the decedent was removed from the pool, and that there was a delay in providing chest compressions to” him. Plaintiff further claimed “that the conduct amounted to gross negligence because it demonstrated a substantial lack of concern for whether injury or death results. Under Michigan’s notice-pleading rules, plaintiff sufficiently alleged that defendants’ actions or omissions were the proximate cause of the death and that” the employees were “responsible because the action or inaction was the product of gross negligence, allegations in avoidance of governmental immunity.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Malpractice (1)

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 79594
    Case: Morgan v. Lakeland Med. Ctr.
    Court: Michigan Supreme Court ( Order )
    Judges: Clement, Zahra, Viviano, Bernstein, Cavanagh, Welch, and Bolden
    Issues:

    Medical malpractice; Vicarious liability under a theory of ostensible agency despite a preexisting physician-patient relationship; Markel v William Beaumont Hosp

    Summary:

    In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77308 in the 5/5/22 edition) and remanded the case to the Court of Appeals for reconsideration in light of Markel.

    Full Text Opinion

  • Municipal (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 79519
    Case: Lane v. Grattan Twp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Whether the Michigan Land Division Act (LDA) preempts a township’s land-division ordinances; DeRuiter v Township of Byron; “Division”; MCL 560.102(d); Effect of a failure to exhaust administrative remedies; Cummins v Robinson Twp; Costs & attorney fees; MCR 1.109(E), MCR 2.625, MCL 600.2591; “Frivolous” action

    Summary:

    The court held that the trial court did not err by ruling that defendant-township’s land-division ordinances were not preempted by the LDA or in finding that plaintiffs-property owners failed to exhaust administrative remedies. But it also concluded the trial court did not abuse its discretion in denying defendants’ motion for attorney fees. Thus, the court affirmed the denial of plaintiffs’ partial motion for summary disposition, grant of summary disposition for defendants, and denial of defendants’ motion for attorney fees. Plaintiffs attempted to change boundary lines and transfer ownership of two parcels of property. They eventually sought a declaration that the transfer of land was valid under the LDA, and for a writ of mandamus compelling the township to act on their land-division application. Defendants filed a counterclaim, which included a demand for attorney fees and costs. The trial court ordered plaintiffs to recombine the parcels to their original state. It also granted defendants’ motion for costs, but denied it as to attorney fees. On appeal, the court rejected plaintiffs’ argument that the trial court erred by finding the LDA did not preempt the township’s land-division ordinances, noting they “incorrectly suggest the LDA permits the ‘unrestricted transfer of lands.’ And, the statute does not preempt the ordinance.” It noted townships are “free to enact regulations which exceed the language of a statute. Although the LDA uses the term ‘division’ in a more limited fashion, that does not mean the township could not enact a broader definition of the term.” The court also rejected plaintiffs’ claim that the trial court incorrectly concluded they failed to exhaust their administrative remedies. “As the moving party, plaintiffs were required to offer documentary evidence showing no genuine dispute of fact. [They] failed in this regard, so the burden never shifted to defendants to establish that a genuine issue of disputed fact exists. However, even if it had shifted, defendants offered documentary proof showing the lakefront parcels may be joined to” the other two parcels “under the township’s ordinances and the trial court was required to view this evidence in a light most favorable to defendants.” As such, the trial court did not err by disregarding their “argument about the completeness of the application because plaintiffs failed to show a genuine dispute of fact as to this issue.” Finally, defendants’ request for attorney fees under MCR 2.625(A) was “misplaced because only costs are recoverable under the rule, not attorney fees.” In addition, to the extent they “believe plaintiffs’ primary purpose in filing suit was to ‘harass, embarrass, or injure’” them, they offered “no evidence of the same, nor is there any evidence of this in the lower court record.”

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 79526
    Case: Estate of Tschirhart v. City of Troy
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, Borrello, and Riordan
    Issues:

    Wrongful death by drowning; Motion to amend the complaint; Notice-pleading; Personal representative (PR)

    Summary:

    The court held that the trial court erred, in part, by denying plaintiff-PR’s motion to amend the complaint as to defendants-city employees. But because plaintiff did not appeal the dismissal of defendant-city and previously conceded that it “should be dismissed, the claim of gross negligence in count VI of the proposed amended complaint naming” the city was improper. The case arose “from the drowning death of plaintiff’s 32-year-old disabled son in a swimming pool at” a facility operated by the city. The court noted that defendants “did not claim or identify any undue delay or undue prejudice arising from the proposed amended complaint. Therefore, leave should have been freely granted unless it could be shown that amendment would be futile.” As to futility, the court held that “the trial court erred in denying amendment by only relying on” a prior opinion issued by the court “and failing to consider the subsequent Supreme Court order.” It concluded that in “light of the Supreme Court order, a lifeguard’s delay, even if it constitutes gross negligence can be a cause in fact of a person’s drowning, a governmental employee’s failure to intervene can constitute the proximate cause of an injury, and the propriety of summary disposition under the circumstances is contingent upon the facts of the case.” Defendants submitted “that plaintiff failed to properly plead a duty, gross negligence, and facts in avoidance of governmental immunity.” But the court determined that under “the circumstances, plaintiff sufficiently pleaded that the decedent was a participant in defendants’ swimming program, that he had a history of seizures, that he was in the pool without a life jacket or life-saving protection, that he went under water, that [defendant-Alleman] did not immediately respond to the submersion but merely poked the decedent with a pool noodle, that ‘eventually’ the decedent was removed from the pool, and that there was a delay in providing chest compressions to” him. Plaintiff further claimed “that the conduct amounted to gross negligence because it demonstrated a substantial lack of concern for whether injury or death results. Under Michigan’s notice-pleading rules, plaintiff sufficiently alleged that defendants’ actions or omissions were the proximate cause of the death and that” the employees were “responsible because the action or inaction was the product of gross negligence, allegations in avoidance of governmental immunity.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 79519
    Case: Lane v. Grattan Twp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, K.F. Kelly, and M.J. Kelly
    Issues:

    Whether the Michigan Land Division Act (LDA) preempts a township’s land-division ordinances; DeRuiter v Township of Byron; “Division”; MCL 560.102(d); Effect of a failure to exhaust administrative remedies; Cummins v Robinson Twp; Costs & attorney fees; MCR 1.109(E), MCR 2.625, MCL 600.2591; “Frivolous” action

    Summary:

    The court held that the trial court did not err by ruling that defendant-township’s land-division ordinances were not preempted by the LDA or in finding that plaintiffs-property owners failed to exhaust administrative remedies. But it also concluded the trial court did not abuse its discretion in denying defendants’ motion for attorney fees. Thus, the court affirmed the denial of plaintiffs’ partial motion for summary disposition, grant of summary disposition for defendants, and denial of defendants’ motion for attorney fees. Plaintiffs attempted to change boundary lines and transfer ownership of two parcels of property. They eventually sought a declaration that the transfer of land was valid under the LDA, and for a writ of mandamus compelling the township to act on their land-division application. Defendants filed a counterclaim, which included a demand for attorney fees and costs. The trial court ordered plaintiffs to recombine the parcels to their original state. It also granted defendants’ motion for costs, but denied it as to attorney fees. On appeal, the court rejected plaintiffs’ argument that the trial court erred by finding the LDA did not preempt the township’s land-division ordinances, noting they “incorrectly suggest the LDA permits the ‘unrestricted transfer of lands.’ And, the statute does not preempt the ordinance.” It noted townships are “free to enact regulations which exceed the language of a statute. Although the LDA uses the term ‘division’ in a more limited fashion, that does not mean the township could not enact a broader definition of the term.” The court also rejected plaintiffs’ claim that the trial court incorrectly concluded they failed to exhaust their administrative remedies. “As the moving party, plaintiffs were required to offer documentary evidence showing no genuine dispute of fact. [They] failed in this regard, so the burden never shifted to defendants to establish that a genuine issue of disputed fact exists. However, even if it had shifted, defendants offered documentary proof showing the lakefront parcels may be joined to” the other two parcels “under the township’s ordinances and the trial court was required to view this evidence in a light most favorable to defendants.” As such, the trial court did not err by disregarding their “argument about the completeness of the application because plaintiffs failed to show a genuine dispute of fact as to this issue.” Finally, defendants’ request for attorney fees under MCR 2.625(A) was “misplaced because only costs are recoverable under the rule, not attorney fees.” In addition, to the extent they “believe plaintiffs’ primary purpose in filing suit was to ‘harass, embarrass, or injure’” them, they offered “no evidence of the same, nor is there any evidence of this in the lower court record.”

    Full Text Opinion

  • Termination of Parental Rights (2)

    Full Text Opinion

    e-Journal #: 79541
    Case: In re McCullough/Ingraham
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Petition to remove the children; Mootness

    Summary:

    The court dismissed the appeal as moot. Following a preliminary hearing, the trial court authorized a petition to remove the children from respondent-mother’s care and placed them with the father, who resides in Texas. Respondent appealed. During the pendency of the “appeal, the trial court terminated its jurisdiction and dismissed the petition because the children were placed with their father in Texas.” The court held that because “the court no longer has any jurisdiction to exercise, it may not enter any additional orders.” Even if the court “were to reverse the order authorizing the petition and removing the children, the trial court has no jurisdiction to grant respondent’s request to order the children placed with her.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 79545
    Case: In re RG
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Patel, Cavanagh, and Redford
    Issues:

    Decision to authorize the petition to initiate child protective proceedings; MCL 712A.2(b)(1) & (2); Removal of the child; MCR 3.965(C); In re Benavides; Ruling that reasonable reunification efforts did not have to be made; In re Smith-Taylor; MCL 712A.19a(2); MCL 722.638(1)(a)(ii) (criminal sexual conduct (CSC) involving penetration, attempted penetration, or assault with intent to penetrate the child)

    Summary:

    The court held that MCL 712A.2(b)(1) and (2) both provided grounds for authorizing the petition here and that the trial court did not err in removing the child (RG) from respondent-father’s custody. It also did not clearly err in determining “that no reasonable efforts to preserve or reunify the family would be made” due to the existence of aggravating circumstances – clear and convincing record “evidence that respondent sexually abused RG.” As to authorization of the petition, “RG disclosed in a forensic interview, in a medical examination, and to several other individuals that” respondent had sexually abused her. Thus, the trial court did not clearly err in “finding probable cause to believe that respondent engaged in conduct falling within MCL 712A.2(b)(1) and (2)[.]” As to RG’s removal, the alleged sexual abuse showed that she “faced a substantial risk of harm if not removed from respondent’s custody.” Additionally, her allegations “provided a sufficient factual basis to establish that remaining in” his custody would be contrary to her welfare. Given that the case was “based on accusations of sexual abuse, separation from respondent was the only provision reasonably available to alleviate the risk of harm to RG. . . . Further, in the face of the severity of the allegations, the investigation and the forensic interview constituted reasonable efforts to avoid removal.” The court lastly noted that “because RG was placed with her mother and” there were no allegations against the “mother, the conditions were adequate to safeguard RG.” As to reunification efforts, she “disclosed that respondent had sexually abused her in several ways, and such allegations constitute an aggravated circumstance under MCL 712A.19a(2).” A DHHS caseworker testified that although RG’s medical exam “did not reveal any physical findings of sexual abuse, her disclosures” were consistent throughout “the investigation. RG’s allegations were included in DHHS’s petition, all of which were detailed, specific, and consistent with one another. A parent’s sexual abuse of a child places that child in substantial risk of harm if he or she were to remain in that parent’s custody and care or be placed back into that parent’s care.” Under the circumstances, “it was not unreasonable for the trial court to find that DHHS was not obligated to make reasonable efforts to preserve or reunify the family.” Affirmed.

    Full Text Opinion

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