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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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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 opinion under Municipal/Negligence & Intentional Tort.


Cases appear under the following practice areas:

  • Administrative Law (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 75551
    Case: City of Eugene, OR v. Federal Commc'ns Comm'n
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Kethledge, McKeague, and Griffin
    Issues:

    Rules for state & local governments’ regulation of cable providers; Title VI of the Communications Act (the Act); “Franchise fee”; 47 USC § 542(g); “Cable-related noncash exactions”; The standard for assigning a monetary value to these extractions; Alleged violations of the Administrative Procedures Act; Whether the FCC’s Third Order was “arbitrary & capricious”; The “mixed-use rule”; Preemption; § 544(a); § 556(c)

    Summary:

    In this case in which petitioners (including municipalities and a state) challenged respondent-FCC’s Third Order, which provides rules for state and local governments’ regulation of cable providers, the court granted in part and denied in the petitions for review. While it rejected their challenge to “the FCC’s determination that noncash cable-related exactions are franchise fees under § 542(g)[,]” it found that they had a point as to the standard by which those “exactions should be assigned a monetary value for purposes of counting them toward” the 5% cap on franchise fees. Petitioners argued that the Third Order “misinterpreted the Act” with its definition of franchise fee as including “most—though not all—cable-related noncash exactions.” The court noted that the Act defines a franchise fee as “‘any tax, fee, or assessment of any kind[.]’” It agreed with the FCC that “noncash (or ‘in-kind’) cable-related obligations mandated by the Act are not franchise fees. But noncash cable-related exactions (including I-Net exactions) that the Act merely permits a franchising authority to impose are franchise fees under § 542(g) and thus count toward” the 5% cap. The court then considered petitioners’ claim as to the standard by which noncash cable-related exactions are assigned a monetary value when counting them toward the cap. The Third Order provided that they “should be assigned their ‘market value’ . . . .” The court held that they “should be assigned a value equal to the cable operator’s marginal cost in providing them.” Petitioners also challenged the mixed-use rule, which addresses “the extent to which the Act bars franchising authorities from regulating non-cable services provided by cable operators.” Reviewing § 544(a) and § 556(c), the court concluded that the Act “preempts actions that violate or circumvent any of its provisions.” The court agreed with the FCC “that ‘states and localities [may] not “end-run” the Act’s limitations by using other governmental entities or other sources of authority to accomplish indirectly what franchising authorities are prohibited from doing directly.’” Further, it determined that the FCC was correct that, “as applied to a cable operator that is not a common carrier,” petitioner-City of Eugene’s fee on broadband services was preempted. The court found no merit in petitioners’ argument that it was arbitrary and capricious for the FCC to extend the Third Order determinations to state (as opposed to local) franchisors.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 75539
    Case: In re Guardianship & Conservatorship of Metcalf
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Fort Hood, and Gleicher
    Issues:

    Whether a cattle-farming partnership existed between the parties; Interpretation of settlement agreements; Kloian v Domino’s Pizza, LLC; Integration clause; UAW-GM Human Res Ctr v KSL Recreation Corp; Parol evidence; “Partnership”; MCL 449.6(1); Byker v Mannes; Distinguishing Leighton v Leighton

    Summary:

    The court held that the probate court did not err by finding no cattle-farming partnership existed between the parties. After respondent-guardian petitioned to sell real property to support Glen and Linda, petitioner-Roy sought a declaration regarding the extent of his partnerships with Glen. He asked the trial court to either partition them or credit him for 50% of the assets. The probate court ultimately found that Roy and Glen did not intend to form a cattle-farming partnership that included the real estate. On appeal, the court rejected Roy’s argument that the probate court erred by finding “no partnership existed with respect to the cattle/farm land based solely on the lack of a writing.” First, while the probate “court found that no written partnership agreement existed, it explicitly noted that the lack of writing was ‘not, in and of itself, fatal to the finding of the existence of a partnership . . . .’” Second, the probate court’s ruling “was not based on the statute of frauds.” Third, the parties’ settlement agreement did not include an express integration clause, and the probate “court did not base its decision on the existence of an integration clause. Instead, it simply interpreted the plain language of the parties’ settlement agreement.” It also did not err by “failing to address or consider Roy’s parol evidence, as it was immaterial to the issue.” Fourth, there was “no written contract under which the probate court could order specific performance . . . , and no indication that Linda was involved in the cattle partnership. In fact, Roy testified that she was not involved in the partnership.” Finally, the probate court’s ruling was “sufficiently clear” to establish that property belonging to Roy’s daughter and Linda “as joint tenants with full rights of survivorship was not part of the alleged partnership, and remand is not necessary.” Affirmed.

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    e-Journal #: 75577
    Case: People v. Gholston
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Riordan, and O’Brien
    Issues:

    Validity of a search warrant affidavit; People v Martin; Denial of a motion for a Franks hearing; Franks v Delaware; Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; People v Thomas; Prejudice; People v Johnson; Expert testimony; MRE 702; Reliability of STR Mix software in DNA testing; People v Muhammad

    Summary:

    The court held that the trial court did not err by denying defendant’s motion for a Franks hearing, and that he was not denied the effective assistance of counsel. He was convicted of armed robbery and first-degree home invasion for a pushing his way into the victim’s apartment and robbing him at gunpoint. On appeal, the court rejected his assertion that the trial court misunderstood his argument at the motion hearing and erroneously denied his motion for a Franks hearing based on this misunderstanding, noting that although defendant established there was an error in the search warrant affidavit, he “provided nothing to suggest that the error was anything other than innocent, or at worst negligent.” In addition, the officer “had sufficient probable cause to obtain defendant’s cellphone records without the single provision in the warrant affidavit referencing defendant’s vehicle.” The court also rejected his claim that he received ineffective assistance of counsel because counsel failed to correct the trial court’s misunderstanding of his argument seeking a Franks hearing, and failed to challenge the reliability of “STR Mix software” evidence. First, because case law “clearly establishes the reliability of STR Mix as a tool of inclusion, certainly as to a major donor even where there might be more DNA donors than the processing laboratory can calculate, any objection by trial counsel would have been futile.” The court further concluded that, “in combination with the extensive other evidence identifying defendant and linking him to both” the robbery and a set of headphones found at the scene, it was “highly unlikely that exclusion of the STR Mix evidence would have affected the outcome of the trial.” Second, he also “was not denied effective assistance of counsel by counsel’s failure to assert a meritless argument” as to the Franks hearing. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75535
    Case: People v. Rose
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, M.J. Kelly, and Swartzle
    Issues:

    Sentencing; Upward departure from the guidelines; Reasonableness & proportionality; People v Steanhouse; Cruel &/or unusual punishment; People v Posey

    Summary:

    Holding that defendant’s departure sentence was more than reasonable and proportionate under the circumstances, and that it did not constitute cruel and/or unusual punishment, the court affirmed his 81-month minimum sentence for his involuntary manslaughter conviction. He was originally sentenced to 10 to 15 years. The court previously affirmed his conviction but found that PRV 5 was improperly scored and that correcting the score changed his guidelines range, requiring resentencing. On remand, the trial court resentenced him to 81 months to 15 years. This was still an upward departure from the revised guidelines range of 29 to 57 months. The trial court determined “that the guidelines range did not adequately account for the violent and tragic nature of defendant’s crime.” His total OV score (111 points) “exceeded the 75+ points required to fall within OV Level VI by 36 points,” so the guidelines did not fully account for these 36 points. “OV Level VI did not, and could not, fully account for the seriousness of the offense in this case. Defendant would have fallen within the same OV level even were he assessed 75 points instead of 111 points.” The trial court also noted that he “was ‘selling drugs illegally,’ ‘took the law into [his] own hands instead of proceeding through whatever lawful remedies [he] may [have] had,’ went to [victim-B’s] home and demanded money from [B’s] wife, telling her that her son ‘was a dead man,’ went back to [B’s] home that same night with two carloads of people, and stabbed [B] in the neck with a knife. In addition, the trial court indicated that the evidence proved that defendant brought the knife to” B’s home that night, and that after stabbing B, “threw the knife away and told a person to lie about it.” The court concluded that the trial court, in crafting its departure sentence, “considered appropriate factors” and provided sufficient justification for the 24-month upward departure.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75552
    Case: United States v. Williams
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Donald, Cole, and Readler
    Issues:

    Sufficiency of the evidence of a conspiracy; Whether the indictment was a “prejudicial variance”; Denial of requests for jury instructions about a buyer-seller relationship & multiple conspiracies; Jury instructions as to the application of 21 USC § 841(b)(1)(C)’s penalty enhancement; Whether multiple counts of the indictment were duplicitous; Aiding & abetting; Motion to suppress interrogation statements; Miranda waivers; Motion to suppress evidence seized from a cell phone

    Summary:

    The court held that there was sufficient evidence that defendants-Williams, Barrett, and Bradley were involved in a single “chain conspiracy” and not in multiple different conspiracies. Thus, the indictment charging a single conspiracy was not a prejudicial variance. The court also rejected their challenges to the jury instructions, and upheld the denial of their motions to suppress and their motions to dismiss various counts. They were convicted of conspiring to distribute fentanyl, and multiple counts of distributing and possessing with the intent to distribute fentanyl, the use of which resulted in serious bodily injury or death. The court held that there was sufficient evidence to establish a chain conspiracy, in which “‘the agreement can be inferred from the interdependent nature of the criminal enterprise.’” There was evidence that Bradley manufactured the pills, Williams bought them from another conspirator, and Barrett bought them from another conspirator down the line. Even if Williams and Barrett were unaware that the pills contained fentanyl, the court held that they still could be charged with conspiracy where mens rea as to the type of drug need not be established. Because Barrett purchased the drugs for distribution, he was not entitled to be considered only “a buyer.” The court rejected Bradley’s claim that there were “multiple conspiracies” and that because the indictment only alleged a “single conspiracy,” there was a prejudicial variance. It held that the evidence did not show multiple conspiracies but instead indicated one chain conspiracy, and that even if there had been a variance, he could not establish prejudice. It also held that the district court did not abuse its discretion by declining to give a buyer-seller jury instruction where the evidence showed that the relationship at issue was actually one of “supplier and distributor.” Barrett challenged the jury instruction on his sentencing enhancement under § 841(b)(1)(C), but the court held that the government does not have to show foreseeability to apply the enhancement, and that it was properly applied. It rejected all the defendants’ challenges to their Miranda waivers, and upheld the warrantless search of Williams’s cell phone under the exigent circumstances exception. Affirmed.

    Full Text Opinion

  • Family Law (2)

    Full Text Opinion

    e-Journal #: 75543
    Case: Brickey v. Brickey
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Cavanagh, and Gadola
    Issues:

    Custody; Established custodial environment (ECE); Burden of proof; The best interest factors (MCL 722.23); Factors (b), (d), (e), (f), (h), (i), (j), (k), & (l)

    Summary:

    The court held that to the extent the trial court erred as to the ECE, the error was harmless because clear and convincing evidence supported its best-interest determination and ultimate custody decision. Further, plaintiff-father did not establish clear error on the burden of proof issue. Finally, the court concluded that none of the trial court’s findings on the best interest factors were against the great weight of the evidence. Thus, the court affirmed the trial court’s order granting defendant-mother sole legal custody of the child, J, and granting the parties joint physical custody. Plaintiff argued that the trial court erred by finding that J’s ECE was with defendant alone. Although the court held that an ECE existed with both parents, to the extent the trial court made the finding that an ECE did not exist with plaintiff, it found the error to be harmless. “The trial court did not explicitly state that it found that an ECE existed with defendant and not with plaintiff, instead” stating that the ECE weighed in defendant’s favor. It “then noted that it had considered the parties’ testimony at the custody hearings and its in camera interview with [J], and that defendant had historically been much more involved in caring for” J than plaintiff. The court’s review of the record showed that, “although defendant was historically the more involved parent, plaintiff became significantly more involved in parenting” J starting in 2016. Further, they “exercised equal parenting time under a temporary order entered at the outset of this case, with each parent being responsible for school days as well as weekend days. The testimony of both parties revealed that plaintiff was involved in [J’s] education and extracurricular activities and, although the parties disputed its appropriateness, had provided discipline and guidance to [J] for the past several years. To the extent the trial court found that an ECE existed with defendant alone, this finding was against the great weight of the evidence.” However, the court held that any such error was harmless. The trial court made detailed factual findings as to the statutory best interest factors, and found that several of them favored defendant. These findings were “not against the great weight of the evidence.” In addition, there was no evidence that it “merely applied a preponderance of the evidence standard or incorrectly allocated the burden of proof.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75547
    Case: Lorenz v. Lorenz
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, M.J. Kelly, and Swartzle
    Issues:

    Custody under the Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA); Jurisdiction under MCL 722.1201(1)(b); “Home state” & “state”

    Summary:

    Holding that the Michigan trial court could not have exercised jurisdiction under MCL 722.1201(1)(b), the court affirmed its dismissal of the action on the basis that it lacked jurisdiction under the UCCJEA. Plaintiff-father alleged that the parties and their children moved from Michigan to Germany in 2014, where they remained until 7/21/20, when he returned to Michigan with the children. While defendant-mother consented to the move, she remained in Germany. Plaintiff claimed that Michigan was the children’s home state; thus, the trial court had jurisdiction under the UCCJEA. “For the Michigan trial court to exercise jurisdiction under MCL 722.1201(1)(b) on consideration of the circumstances presented in this case, Germany either had to lack jurisdiction under MCL 722.1201(1)(a), or Germany had to be the home state of the children and had to decline to exercise jurisdiction on the basis that Michigan was the more appropriate forum.” First, the court determined that “Germany had jurisdiction under MCL 722.1201(1)(a) because it was the home state of the children within 6 months before the commencement of the instant lawsuit on” 10/26/20, and because the mother continued to live in Germany. Plaintiff and the children left Germany “within six months before the action was commenced, and the parties and the children had lived in Germany for several years up until” 7/21/20. Second, the court held that “it cannot be said that a court of the ‘home state’ of the children declined to exercise jurisdiction because Germany was not the ‘home state’ of the children when plaintiff filed the action on [10/26/20], where the children had not ‘lived with a parent . . . for at least 6 consecutive months [in Germany] immediately before the commencement of [the] child-custody proceeding.’” The court noted that “a state can have jurisdiction under MCL 722.1201(1)(a) when it had previously been a child’s ‘home state’ within the six-month window, while not currently being the child’s ‘home state’ relative to the declination-of-jurisdiction provision.” That said, even if the court accepted that Germany was “the home state of the child[ren],” there was “nothing in the record showing that Germany declined to exercise jurisdiction, nor did MCL 722.1201 require the trial court to communicate with the German court authorities on the matter.”

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 75540
    Case: Norman v. Department of Transp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Borrello, and Redford
    Issues:

    Governmental immunity; Whether the Court of Claims’ local court rule LCR 2.119 conflicts with MCR 2.116; MCR 2.119; Distinguishing Schlender v Schlender; Due process; Opportunity to be heard & to respond; Whether the record showed the existence of a factual question as to whether the buffer zone at issue constituted an improved portion of the highway designed for vehicular travel; Whether summary disposition was premature

    Summary:

    The court held that no conflict exists between the Court of Claims’ LCR 2.119 and the relevant MCRs, and that the trial court did not deprive plaintiff of due process. Further, the trial court did not err by holding that the highway exception did not apply and that governmental immunity protected defendant from tort liability. Finally, summary disposition for defendant on the basis of governmental immunity was not premature. The case arose after plaintiff fell while riding a bicycle in a buffer zone bordering parallel parking spots adjacent to street traffic lanes. She argued that “the trial court erred by following provisions of the Court of Claims local court rule, LCR 2.119, on the ground that it conflicts with MCR 2.116, the general procedural court rule governing dispositive motion practice, because LCR 2.119 prescribes different timing for filing response briefs in relation to such motions.” She contended that “MCR 2.116 requires setting a hearing for dispositive motions which triggers the time to file a response brief and because the trial court errantly followed LCR 2.119, which leaves setting a hearing to the discretion of the court, it violated her due-process rights by denying her notice and opportunity to respond to defendant’s dispositive motion.” The court disagreed, holding that close analysis of these rules did not support plaintiff’s argument. “LCR 2.119 does not conflict with the general court rules that govern motions. MCR 2.116 and MCR 2.119 anticipate hearings on motions but do not mandate them. These rules grant trial courts in civil proceedings discretion to manage their dockets and dispense with hearings and oral argument. LCR 2.119, which exclusively applies to motion practice in the Court of Claims, a legislatively created court of limited jurisdiction, leaves conducting hearings in the sole discretion of the presiding judge. LCR 2.119 does not link to hearing dates the filing of briefs in response to motions, dispositive or otherwise. Instead, it sets forth specific procedural guidelines for motion practice in the Court of Claims.” The court found that no conflict existed “between the general rules and this local rule.” In addition, close analysis of Schlender, on which plaintiff relied, revealed that “it does not stand for the proposition that local rules are automatically invalid if they cover matters covered by the general court rules.” Affirmed.

    Full Text Opinion

  • Municipal (2)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 75625
    Case: Buhl v. City of Oak Park
    Court: Michigan Supreme Court ( Opinion )
    Judges: Bernstein, McCormack, Zahra (except as to Part III(C)), Viviano, Clement (except as to part III(C)), and Welch; Concurrence – Viviano; Concurring in part, Dissenting in part – Clement and Zahra; Not participating - Cavanagh
    Issues:

    Trip & fall on an uneven sidewalk; Negligence claim under the Governmental Tort Liability Act (GTLA); Whether a GTLA amendment that went into effect after plaintiff’s claim accrued but before she filed her complaint can be retroactively applied; The “sidewalk exception” to governmental immunity; MCL 691.1402a; Use of the open & obvious defense under the GTLA; MCL 691.1402a(5); Lugo v Ameritech Corp, Inc; Retroactivity; Legislative intent; LaFontaine Saline, Inc v Chrysler Group, LLC; Specific language; Johnson v Pastoriza; Rights & duties; In re Certified Questions from US Court of Appeals from the Sixth Circuit; A statute imposing a new substantive duty & providing a new substantive right; Kia Motors Am, Inc v Glassman Oldsmobile Saab Hyundai, Inc (6th Cir); The “Brewer restoration rule”; Brewer v A D Transp Express, Inc

    Summary:

    Holding that a GTLA amendment (MCL 691.1402a(5)) that went into effect after plaintiff’s negligence claim against defendant-city accrued but before she filed her complaint cannot be retroactively applied, the court reversed and remanded to the trial court for reinstatement of plaintiff’s claim. She was injured when she tripped and fell on an uneven sidewalk. Before she filed her complaint, the Legislature added MCL 691.1402a(5) to the GTLA, allowing a municipality to assert a defense that the condition was open and obvious. Defendant moved for summary disposition, arguing the new provision applied retroactively and that the defect in the sidewalk was open and obvious. The trial court agreed and granted defendant’s motion. The Court of Appeals affirmed in a split decision, with the dissent opining that retroactive application was inappropriate because the Legislature never manifested such an intent, “and because doing so would impair plaintiff’s vested rights.” The court agreed, finding that “none of the applicable LaFontaine factors” supported retroactive application. First, “nothing in the plain language of the statute suggests that MCL 691.1402a(5) was intended to apply retroactively. To the contrary, [it] was given immediate effect without further elaboration[,]” and it made “no mention of whether it applies to a cause of action that had already accrued before its effective date.” In addition, “because plaintiff’s claim had already accrued on the day she was injured, the retroactive application of MCL 691.1402a(5) would effectively rewrite history as to the duty defendant owed plaintiff by absolving defendant of its duty to maintain public sidewalks in reasonable repair.” Further, since retroactive application “would relieve defendant of the duty it owed to maintain its sidewalk in reasonable repair,” the fourth LaFontaine factor also did not favor retroactive application. The court also held that “the Court of Appeals majority erred in its creation of the Brewer restoration rule.”

    Justice Viviano concurred, but wrote separately, noting he would “define a statute as retroactive if it seeks to regulate conduct that occurred before its passage.” To make this determination, he “would do the same thing” the court does “with every other statutory interpretation question” it faces: “discern the ordinary meaning of the text.” And he would do this without considering the other LaFontaine factors, unless the text remained unclear. He agreed with the majority that nothing in the text suggested the statutory amendment applied to accidents that occurred before its effective date, but his analysis would stop there.

    Justice Clement, joined by Justice Zahra, concurred in part and dissented in part, noting she agreed completely with the result reached by the majority, and also joined most of its analysis of the retroactivity factors from LaFontaine, with the exception of Part III(C). “As the majority note[ed], we hold today that the Court of Appeals erred when it held ‘that MCL 691.1402a(5) satisfies the third LaFontaine factor,’ meaning that we ‘could end our analysis here . . . .’ I agree that we could, and therefore I would.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 75551
    Case: City of Eugene, OR v. Federal Commc'ns Comm'n
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Kethledge, McKeague, and Griffin
    Issues:

    Rules for state & local governments’ regulation of cable providers; Title VI of the Communications Act (the Act); “Franchise fee”; 47 USC § 542(g); “Cable-related noncash exactions”; The standard for assigning a monetary value to these extractions; Alleged violations of the Administrative Procedures Act; Whether the FCC’s Third Order was “arbitrary & capricious”; The “mixed-use rule”; Preemption; § 544(a); § 556(c)

    Summary:

    In this case in which petitioners (including municipalities and a state) challenged respondent-FCC’s Third Order, which provides rules for state and local governments’ regulation of cable providers, the court granted in part and denied in the petitions for review. While it rejected their challenge to “the FCC’s determination that noncash cable-related exactions are franchise fees under § 542(g)[,]” it found that they had a point as to the standard by which those “exactions should be assigned a monetary value for purposes of counting them toward” the 5% cap on franchise fees. Petitioners argued that the Third Order “misinterpreted the Act” with its definition of franchise fee as including “most—though not all—cable-related noncash exactions.” The court noted that the Act defines a franchise fee as “‘any tax, fee, or assessment of any kind[.]’” It agreed with the FCC that “noncash (or ‘in-kind’) cable-related obligations mandated by the Act are not franchise fees. But noncash cable-related exactions (including I-Net exactions) that the Act merely permits a franchising authority to impose are franchise fees under § 542(g) and thus count toward” the 5% cap. The court then considered petitioners’ claim as to the standard by which noncash cable-related exactions are assigned a monetary value when counting them toward the cap. The Third Order provided that they “should be assigned their ‘market value’ . . . .” The court held that they “should be assigned a value equal to the cable operator’s marginal cost in providing them.” Petitioners also challenged the mixed-use rule, which addresses “the extent to which the Act bars franchising authorities from regulating non-cable services provided by cable operators.” Reviewing § 544(a) and § 556(c), the court concluded that the Act “preempts actions that violate or circumvent any of its provisions.” The court agreed with the FCC “that ‘states and localities [may] not “end-run” the Act’s limitations by using other governmental entities or other sources of authority to accomplish indirectly what franchising authorities are prohibited from doing directly.’” Further, it determined that the FCC was correct that, “as applied to a cable operator that is not a common carrier,” petitioner-City of Eugene’s fee on broadband services was preempted. The court found no merit in petitioners’ argument that it was arbitrary and capricious for the FCC to extend the Third Order determinations to state (as opposed to local) franchisors.

    Full Text Opinion

  • Negligence & Intentional Tort (4)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 75625
    Case: Buhl v. City of Oak Park
    Court: Michigan Supreme Court ( Opinion )
    Judges: Bernstein, McCormack, Zahra (except as to Part III(C)), Viviano, Clement (except as to part III(C)), and Welch; Concurrence – Viviano; Concurring in part, Dissenting in part – Clement and Zahra; Not participating - Cavanagh
    Issues:

    Trip & fall on an uneven sidewalk; Negligence claim under the Governmental Tort Liability Act (GTLA); Whether a GTLA amendment that went into effect after plaintiff’s claim accrued but before she filed her complaint can be retroactively applied; The “sidewalk exception” to governmental immunity; MCL 691.1402a; Use of the open & obvious defense under the GTLA; MCL 691.1402a(5); Lugo v Ameritech Corp, Inc; Retroactivity; Legislative intent; LaFontaine Saline, Inc v Chrysler Group, LLC; Specific language; Johnson v Pastoriza; Rights & duties; In re Certified Questions from US Court of Appeals from the Sixth Circuit; A statute imposing a new substantive duty & providing a new substantive right; Kia Motors Am, Inc v Glassman Oldsmobile Saab Hyundai, Inc (6th Cir); The “Brewer restoration rule”; Brewer v A D Transp Express, Inc

    Summary:

    Holding that a GTLA amendment (MCL 691.1402a(5)) that went into effect after plaintiff’s negligence claim against defendant-city accrued but before she filed her complaint cannot be retroactively applied, the court reversed and remanded to the trial court for reinstatement of plaintiff’s claim. She was injured when she tripped and fell on an uneven sidewalk. Before she filed her complaint, the Legislature added MCL 691.1402a(5) to the GTLA, allowing a municipality to assert a defense that the condition was open and obvious. Defendant moved for summary disposition, arguing the new provision applied retroactively and that the defect in the sidewalk was open and obvious. The trial court agreed and granted defendant’s motion. The Court of Appeals affirmed in a split decision, with the dissent opining that retroactive application was inappropriate because the Legislature never manifested such an intent, “and because doing so would impair plaintiff’s vested rights.” The court agreed, finding that “none of the applicable LaFontaine factors” supported retroactive application. First, “nothing in the plain language of the statute suggests that MCL 691.1402a(5) was intended to apply retroactively. To the contrary, [it] was given immediate effect without further elaboration[,]” and it made “no mention of whether it applies to a cause of action that had already accrued before its effective date.” In addition, “because plaintiff’s claim had already accrued on the day she was injured, the retroactive application of MCL 691.1402a(5) would effectively rewrite history as to the duty defendant owed plaintiff by absolving defendant of its duty to maintain public sidewalks in reasonable repair.” Further, since retroactive application “would relieve defendant of the duty it owed to maintain its sidewalk in reasonable repair,” the fourth LaFontaine factor also did not favor retroactive application. The court also held that “the Court of Appeals majority erred in its creation of the Brewer restoration rule.”

    Justice Viviano concurred, but wrote separately, noting he would “define a statute as retroactive if it seeks to regulate conduct that occurred before its passage.” To make this determination, he “would do the same thing” the court does “with every other statutory interpretation question” it faces: “discern the ordinary meaning of the text.” And he would do this without considering the other LaFontaine factors, unless the text remained unclear. He agreed with the majority that nothing in the text suggested the statutory amendment applied to accidents that occurred before its effective date, but his analysis would stop there.

    Justice Clement, joined by Justice Zahra, concurred in part and dissented in part, noting she agreed completely with the result reached by the majority, and also joined most of its analysis of the retroactivity factors from LaFontaine, with the exception of Part III(C). “As the majority note[ed], we hold today that the Court of Appeals erred when it held ‘that MCL 691.1402a(5) satisfies the third LaFontaine factor,’ meaning that we ‘could end our analysis here . . . .’ I agree that we could, and therefore I would.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75532
    Case: Garza v. GPM Invs., LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Sawyer, Stephens, and Rick
    Issues:

    Premises liability; Slip & fall; Causation; Whether plaintiff fell due to ice or for some other reason; Applicability of the open & obvious doctrine; Black ice

    Summary:

    While the court concluded that there was a genuine issue of material fact as to causation, it affirmed summary disposition for defendant-gas station owner on the basis that the black ice that allegedly caused plaintiff-invitee’s fall was open and obvious. Defendant asserted that she “could not establish causation and that any ice present in” its parking lot was open and obvious. The trial court determined “that while there was a genuine issue of material fact regarding causation,” summary disposition was warranted on the basis that the ice was open and obvious. The causation issue concerned whether plaintiff fell due to “ice or for some other reason.” The court found that, viewing the evidence in the light most favorable to the nonmoving party, there was a genuine issue of fact as to whether black ice on the property caused her fall. But it rejected her contention that the open and obvious doctrine should not apply because there was no noticeable black ice when she fell. Even if the photos taken by defendant’s store manager after the fall were deemed “inconclusive on the visibility of black ice,” there was sufficient indicia of the possibility that it existed “to support a holding that any black ice present was open and obvious. First, the plaintiff is a lifelong Michigan resident and, therefore, is assumed to be aware of the possibility of ice formation during cold weather.” In addition, the record contained weather information showing that the high temperature in the area on the day in question “was 30 degrees, and the low temperature was 18 degrees. At 2:53 p.m., the report described the weather as ‘fair,’ and the indicated temperature was 30 degrees. Readings from the previous day intermittently indicated ‘light snow.’ Therefore, the weather data—indicating that it snowed the previous day and that the temperature remained below freezing—supports a conclusion that any black ice present was open and obvious.” The court added that the record suggested “plaintiff did not see the ice because she was not paying attention.”

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    e-Journal #: 75533
    Case: Jones v. Suburban Mobility Auth. for Reg'l Transp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Markey, M.J. Kelly, and Swartzle
    Issues:

    Negligence claim for injuries sustained by a bus passenger; Governmental immunity; The motor vehicle exception; MCL 691.1405; Putting the bus in motion while a passenger with a walking cane was still standing at the front of the bus; Sudden stop; Motor vehicle owner’s liability; MCL 257.401(1); “Ordinary care”; Evidence of distracted driving by a bus driver; Distinguishing Milbourne v Jongeward

    Summary:

    Concluding that it would not “rule out negligence as a matter of law where a bus driver begins driving while a 61-year-old patron using a walking cane is yet to be seated[,]” and that evidence of a bus driver’s distracted driving can support a negligence finding, the court affirmed the denial of defendant-SMART’s motion for partial summary disposition. It found that it was for a trier of fact to determine “whether the circumstances constituted a special and apparent reason such that the bus driver was negligent for driving the bus before” plaintiff-Jones was seated. Video evidence showed that the bus began to move while he was still standing looking for bus fare. The driver “twice looked away from the road in the direction of the fare machine and reached out to do something on a control panel near the machine in the seconds before the sudden stop. A reasonable juror viewing the video could conclude that the bus driver was attending to the operation of the fare machine while driving.” The court concluded that a genuine issue of material fact existed as to whether the “driver failed to exercise ordinary care while driving given the evidence that she twice looked away from the road and may have been paying attention to something unrelated to driving safely in the seconds leading up to her sudden application of the brakes.” Viewing the video in a light most favorable to Jones, “it could reasonably be inferred that the bus driver was distracted for four to five crucial seconds from the time Jones first put something in the fare machine to the time that the driver braked. It was during that same period of time that the bus began to rapidly approach the white car that was directly in front of the bus. A juror could also reasonably infer from the evidence that the bus driver’s inattention caused the need to brake suddenly, which in turn caused Jones to fall.” While SMART relied on Milbourne, the procedural context differed and the circumstances were “vastly different . . . .” The video here permitted “a jury to assess when the bus driver should have become aware of the need to stop, the distance to the car in front of the bus, the driver’s actions leading up to her sudden braking, and to ultimately assess whether there was negligence that caused Jones to fall.” The court held that a reasonable juror could find based on “the video ‘that more likely than not’ the bus driver’s inattention or negligence caused Jones to fall.”

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    This summary also appears under Litigation

    e-Journal #: 75540
    Case: Norman v. Department of Transp.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Borrello, and Redford
    Issues:

    Governmental immunity; Whether the Court of Claims’ local court rule LCR 2.119 conflicts with MCR 2.116; MCR 2.119; Distinguishing Schlender v Schlender; Due process; Opportunity to be heard & to respond; Whether the record showed the existence of a factual question as to whether the buffer zone at issue constituted an improved portion of the highway designed for vehicular travel; Whether summary disposition was premature

    Summary:

    The court held that no conflict exists between the Court of Claims’ LCR 2.119 and the relevant MCRs, and that the trial court did not deprive plaintiff of due process. Further, the trial court did not err by holding that the highway exception did not apply and that governmental immunity protected defendant from tort liability. Finally, summary disposition for defendant on the basis of governmental immunity was not premature. The case arose after plaintiff fell while riding a bicycle in a buffer zone bordering parallel parking spots adjacent to street traffic lanes. She argued that “the trial court erred by following provisions of the Court of Claims local court rule, LCR 2.119, on the ground that it conflicts with MCR 2.116, the general procedural court rule governing dispositive motion practice, because LCR 2.119 prescribes different timing for filing response briefs in relation to such motions.” She contended that “MCR 2.116 requires setting a hearing for dispositive motions which triggers the time to file a response brief and because the trial court errantly followed LCR 2.119, which leaves setting a hearing to the discretion of the court, it violated her due-process rights by denying her notice and opportunity to respond to defendant’s dispositive motion.” The court disagreed, holding that close analysis of these rules did not support plaintiff’s argument. “LCR 2.119 does not conflict with the general court rules that govern motions. MCR 2.116 and MCR 2.119 anticipate hearings on motions but do not mandate them. These rules grant trial courts in civil proceedings discretion to manage their dockets and dispense with hearings and oral argument. LCR 2.119, which exclusively applies to motion practice in the Court of Claims, a legislatively created court of limited jurisdiction, leaves conducting hearings in the sole discretion of the presiding judge. LCR 2.119 does not link to hearing dates the filing of briefs in response to motions, dispositive or otherwise. Instead, it sets forth specific procedural guidelines for motion practice in the Court of Claims.” The court found that no conflict existed “between the general rules and this local rule.” In addition, close analysis of Schlender, on which plaintiff relied, revealed that “it does not stand for the proposition that local rules are automatically invalid if they cover matters covered by the general court rules.” Affirmed.

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  • Real Property (1)

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    This summary also appears under Contracts

    e-Journal #: 75539
    Case: In re Guardianship & Conservatorship of Metcalf
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Fort Hood, and Gleicher
    Issues:

    Whether a cattle-farming partnership existed between the parties; Interpretation of settlement agreements; Kloian v Domino’s Pizza, LLC; Integration clause; UAW-GM Human Res Ctr v KSL Recreation Corp; Parol evidence; “Partnership”; MCL 449.6(1); Byker v Mannes; Distinguishing Leighton v Leighton

    Summary:

    The court held that the probate court did not err by finding no cattle-farming partnership existed between the parties. After respondent-guardian petitioned to sell real property to support Glen and Linda, petitioner-Roy sought a declaration regarding the extent of his partnerships with Glen. He asked the trial court to either partition them or credit him for 50% of the assets. The probate court ultimately found that Roy and Glen did not intend to form a cattle-farming partnership that included the real estate. On appeal, the court rejected Roy’s argument that the probate court erred by finding “no partnership existed with respect to the cattle/farm land based solely on the lack of a writing.” First, while the probate “court found that no written partnership agreement existed, it explicitly noted that the lack of writing was ‘not, in and of itself, fatal to the finding of the existence of a partnership . . . .’” Second, the probate court’s ruling “was not based on the statute of frauds.” Third, the parties’ settlement agreement did not include an express integration clause, and the probate “court did not base its decision on the existence of an integration clause. Instead, it simply interpreted the plain language of the parties’ settlement agreement.” It also did not err by “failing to address or consider Roy’s parol evidence, as it was immaterial to the issue.” Fourth, there was “no written contract under which the probate court could order specific performance . . . , and no indication that Linda was involved in the cattle partnership. In fact, Roy testified that she was not involved in the partnership.” Finally, the probate court’s ruling was “sufficiently clear” to establish that property belonging to Roy’s daughter and Linda “as joint tenants with full rights of survivorship was not part of the alleged partnership, and remand is not necessary.” Affirmed.

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  • Termination of Parental Rights (1)

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    e-Journal #: 75583
    Case: In re Irvine
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Jansen, and Stephens
    Issues:

    Termination under §§ 19b(3)(h) & (k)(ii); Hearsay; MRE 801(c); Principle that a certified copy of a public record is admissible as evidence; MRE 902(4); Admission by a party-opponent; MRE 801(d)(2); Best interests of the children; In re White; Judgment of sentence (JOS)

    Summary:

    Holding that the trial court did not err by admitting certain evidence, that at least one statutory ground was met, and that termination was in the children’s best interests, the court affirmed termination of respondent-father’s parental rights. On appeal, the court rejected his argument that the trial court relied on inadmissible hearsay evidence to terminate his parental rights. It noted that the DHHS “submitted certified copies of the plea hearing transcript and” JOS, and that a “certified copy of a public record is admissible as evidence.” In addition, a CPS worker’s testimony “as to what she heard respondent testify to at the criminal plea hearing was admissible hearsay . . . as an admission by a party-opponent.” Further, testimony from the CPS worker and a detective as to items found in one of the children’s rooms was admissible. The court also rejected his claim that the DHHS failed to prove a statutory ground for termination, finding that termination under either § (h) or § (k)(ii) “was supported by clear and convincing evidence, and was not erroneous.” Finally, it rejected his contention that termination was not in the children’s best interests, noting the “record was replete with evidence of the harm done to the children by respondent.” Respondent was “sentenced to at least 25 years in prison and no relatives came forward to care for the children. The evidence that termination of respondent’s parental rights was in the best interests of each child was overwhelming.”

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