Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Breach of contract; Principle that a disappointed bidder on a government contract has no standing to sue as to the bid; Cedroni Assoc., Inc. v. Tomblinson, Harburn Assoc., Architects & Planners Inc.; Groves v. Department of Corr.; Promissory estoppel; Detroit Land Bank Authority (DLBA)
While the court affirmed summary disposition for defendant-DLBA on plaintiff-Farrow’s claim for breach of contract, it reversed summary disposition on the promissory estoppel claim, and remanded. Plaintiff submitted bids to the Detroit Building Authority (DBA) for demolition work on properties owned by the DLBA pursuant to DBA’s request for proposals (RFP). Farrow asserted that it had contracts with the DLBA to perform the work and that the DLBA breached the contracts when it informed Farrow that all the RFPs needed to be re-bid. As to the claim for breach of contract, the court tended to agree with plaintiff that the trial court’s reliance on the disappointed bidder rule was misplaced. As the court read plaintiff’s argument, it was not that plaintiff was “challenging the bidding process or that it should have been granted the bid that was denied, which the disappointed bidder rule precludes; rather, plaintiff argues that it was the successful bidder.” However, the court agreed “that summary disposition was appropriate because the RFP clearly indicated that a written contract would have to be entered into.” And it was undisputed that no contract was entered into. Thus, “regardless whether the statute of frauds would require a written contract in this context, it was clearly indicated in the RFP that the parties would be bound only by a written contract.” But the court was “not persuaded that the trial court correctly granted summary disposition on plaintiff’s promissory estoppel claim.” It was not at all clear to the court “why the trial court granted summary disposition on this count” as there was no analysis or discussion of the claim. In any event, plaintiff’s complaint did “plead a claim based upon promissory estoppel.” Whether the claim could survive summary disposition required “greater consideration and analysis by the trial court.” It did not automatically fail simply because the breach of contract claim failed.
Breach of an installment contract on a recreational vehicle (RV); Effect of acceptance of case evaluation; MCR 2.403(M)(1); Whether an order of dismissal following the acceptance of a case evaluation award precludes an action to enforce the terms of an installment agreement; CAM Constr. v. Lake Edgewood Condo Ass’n; Enforcing a contract as written; Rory v. Continental Ins. Co.; Purpose of case evaluation; Magdich & Assoc., PC v. Novi Dev. Assoc., LLC; Res judicata; Sewell v. Clean Cut Mgmt., Inc.; Bryan v. JP Morgan Chase Bank; Garrett v. Washington; Adair v. Michigan; Baraga Cnty. v. State Tax Comm’n; Limbach v. Oakland Cnty. Bd. of Cnty. Rd. Comm’rs
Holding that MCR 2.403(M)(1) did not bar plaintiff’s claims in this case, and that the claims were not barred by res judicata, the court concluded that the trial court erred by granting declaratory relief for defendant, and thus, it reversed and remanded. Plaintiff-bank sued defendant for breach of contract, claim and delivery, unjust enrichment, common law conversion, and statutory conversion, asserting that she breached her installment contract by failing to make timely payments on her RV. The parties had previously litigated an action involving the RV that resulted in a case evaluation award. The court agreed with plaintiff that the trial court erred by granting defendant declaratory relief. It disagreed with the trial court’s determination that “MCR 2.403(M)(1) operates to bar [plaintiff’s] claims in the present case as [its] claims were not part of the initial action that ended because of the parties’ mutual acceptance of case evaluation.” It also disagreed with “the foundational premise underlying the trial court’s ruling, that the validity and enforceability of the installment contract was a claim that was dismissed by virtue of the parties mutually accepting case evaluation.” It further disagreed with “the trial court’s conclusion in its written ruling that ‘the subject of the prior action was the validity and enforceability of the installment contract[.]’” Finally, it rejected defendant’s argument that res judicata barred plaintiff’s claims, noting the third requirement to invoke the doctrine was not met. Defendant would be “hard-pressed to claim that [plaintiff’s] claims arising from her non-payment of her financial responsibilities pursuant to the installment contract ought to have been raised in the first lawsuit, given that the record is clear that [she] was not in default on her payment obligations until . . . over three months after the first lawsuit concluded.”
PIP benefits under the No-Fault Act (MCL 500.3101 et seq.) for medical treatment; Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.; Whether a release was unambiguous; Kyocera Corp. v. Hemlock Semiconductor, LLC
The court held that the trial court did not err in granting defendant-city’s motion for summary disposition because the person (S) injured on a city bus had released all her rights to PIP benefits covering the medical expenses plaintiffs-hospitals sought. The procedural circumstances here and the holding in Covenant dictated summary dismissal of plaintiffs’ action. S was seriously injured while she was a passenger on a bus insured by the city. She later “executed a first party, no-fault release in consideration for the payment of $105,000 by the city.” Plaintiffs, who had provided S with medical treatment, argued that their claims were not released or settled when S signed the release, and that the trial court erred by concluding that S’s assignment failed to give them standing to proceed. Finally, they asserted that the city was bound by a response to requests for admissions in which it had admitted “that plaintiffs’ claims were not released as part of any prior litigation or settlement and that this admission was made” after the settlement agreement (SA) was first executed. The court concluded that when the trial court entered the order approving the SA in 3/17, “the parties expected to fully litigate plaintiffs’ claims for no-fault benefits related to medical treatment provided to” S in 2015. Under existing case law, plaintiffs still had “a statutory cause of action against the city under the no-fault act regardless of [S’s] release.” Further, the release “plainly and unambiguously released all of” her claims to PIP benefits for medical expenses incurred through 6/8/16, necessarily including any claims that S “may have had for benefits to cover the expenses of the medical care provided by plaintiffs in 2015.” There was “no other reasonable or viable construction of the release, and plaintiffs’ reliance on extrinsic evidence in an effort to establish an ambiguity” was unavailing. Also, at the time of the release and the order approving the SA, plaintiffs simply “wished to preserve their then statutory right to pursue no-fault benefits from the city. This goal was accomplished with the order approving the [SA] when the trial court included language that the order ‘in no way’ affected plaintiffs’ ‘pending claims for independently submitted claims.’” Then, Covenant was issued, changing everything. “A statutory cause of action against the city for PIP benefits was no longer available to plaintiffs.” And S had “released her rights to benefits covering 2015 medical expenses. So, as the trial court astutely determined, [S] ‘assigned nothing’ to plaintiffs.” Affirmed.
Mail fraud, aggravated identity theft, conspiracy, & illegal monetary transactions ; “Intent to defraud”; United States v. Parkes; United States v. Isaiah; Desert Palace, Inc. v. Costa; Whether the government established that two defendants knew they were using information about real people to establish the crime of aggravated identity theft; Sixth Circuit Pattern Jury Instr. 15.04; United States v. Soto (1st Cir.); States v. Holmes (11th Cir.); Whether the grievances defendants filed with the State Bar created conflicts of interest resulting in ineffective assistance of counsel; Strickland v. Washington; United States v. Kilpatrick; Mickens v. Taylor; United States v. Burns (4th Cir.); United States v. Leggett (DC Cir.); Allegations of “duplicity in the indictment” or the lack of a specific unanimity jury instruction on the aggravated-identity-theft charges; United States v. Kakos; United States v. Davis; United States v. Barnett; Johnson v. United States; United States v. Duncan; United States v. Schmeltz; Schad v. Arizona; McKoy v. North Carolina; Whether the aiding & abetting jury instruction should have specified that a defendant must have knowledge that another person would use a real identity theft victim’s personal information; Rosemond v. United States; United States v. Wood
[This appeal was from the ED-MI.] The court rejected defendants’ claims that the grievances they filed with the State Bar about alleged speedy-trial violations created conflicts of interest resulting in ineffective assistance of counsel, and held that their unmeritorious allegations to the State Bar did not create “conflicting obligations” for the attorneys. It also held that there was sufficient evidence to support their convictions and rejected their challenges to the jury instructions. They were convicted of mail fraud, conspiracy to commit mail fraud, aggravated identity theft, conspiracy to commit identity theft, and illegal monetary transactions, arising from a scheme involving fictitious trusts and tax returns. The court first held that there was sufficient evidence of defendant-Sharon’s intent to defraud to support her convictions where the record showed that she cashed refund checks, set up fraudulent trust accounts and P.O. boxes, and a search of her home turned up materials related to the scheme. Both Sharon and defendant-Anthony challenged their aggravated identity theft convictions. But the court held that there was enough circumstantial evidence, such as the identifying information in their possession, their willingness to submit the information to the IRS on false tax returns, and their use of names of friends and family, to show that they knew the individuals were real. Anthony and defendant-Christopher sought to dismiss their attorneys at trial, claiming that they failed to adequately pursue a speedy trial violation. They then maintained that counsel was ineffective based on a conflict of interest, where they had filed grievances against them a week before trial. The district court ruled that both the speedy-trial argument and the conflict of interest allegations were without merit, were “contrived by the defendants in order to avoid trial,” and that there was no breakdown of communications. The court held that the grievances did not create “conflicting obligations” for the attorneys, and ruling to the contrary could encourage other defendants to file meritless grievances in order to create a conflict of interest. It also rejected defendants’ claims of duplicity in the indictment and the lack of a specific unanimity jury instruction on the aggravated-identity-theft charges where there is no “binding precedent that establishes that each victim of identity theft must be the subject of a separate charge or that a jury verdict must be unanimous regarding the victim of identity theft.” The district court also did not have to instruct the jury that a defendant can be found guilty of aiding and abetting only if “he knew that another person would use a real identity-theft victim’s personal information.” Affirmed.
Proceedings under the Adoption Code & the Paternity Act; In re MGR; In re MKK; MCL 710.25(2); Denial of motions for a stay in the paternity proceedings; MCL 710.21a; A trial court’s inherent authority to control the progress of a case; MCR 1.105, 2.401, & 3.217(A); Whether the trial court should have stayed the paternity proceedings under MCR 7.209(E)(2)(b)
In an order in lieu of granting leave to appeal a Court of Appeals order, the court vacated the trial court’s order denying defendant-mother’s motion to stay the paternity proceedings in this case. Plaintiff-father did not ask the trial court in the related adoption proceedings to stay those proceedings “in favor of the paternity proceedings pursuant to MCL 710.25(2), and the facts did not justify a stay in any event.” However, defendant did request that the trial court stay the paternity proceedings, and the court held that the trial court abused its discretion in denying her motions “given the unique circumstances of this case. The trial court had the authority to stay the paternity action in favor of the adoption proceedings: absent good cause, adoption proceedings should be given priority.” Further, trial courts have “the inherent authority to control the progress of a case.” The court concluded that because “the petitioners in the adoption case had a right to appeal the Section 39 determination and because good cause to delay those proceedings had not been alleged, the trial court should have stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) so that the appellate court could review that decision.” Given that the trial court abused its discretion in denying defendant’s motion to stay, it “also abused its discretion in granting the order of filiation.” Thus, the court vacated that order and remanded the case to the trial court for entry of an order of stay pending resolution of MGR (also in this edition), which the court remanded for analysis under MCL 710.39(1). For the reasons stated in the concurrence in MGR (also in this edition), Justices Markman and Zahra concurred in the majority’s decision. Justice Viviano dissented because he disagreed with the majority’s holding “that the trial court erred by not staying the putative father’s paternity action pending resolution of the adoption proceedings.”
Adoption; In re MGR; The Adoption Code (MCL 710.21 et seq.); Order declining to terminate respondent-father’s parental rights under MCL 710.39(1); The factors in MCL 710.22(g); MCL 710.62; In re TMK; MCL 710.25(1) & (2); In re MKK; The Paternity Act (MCL 722.711 et seq.); MCL 722.717; Sarna v. Healy (Unpub.)
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 67394 in the 3/19/18 edition), the court reversed the Court of Appeals judgment dismissing petitioners’ appeal as moot, vacated the trial court’s order reinstating the birth mother’s parental rights, and remanded to the trial court for entry of an order terminating respondent-father’s parental rights under MCL 710.39(1) and for further proceedings. The child at issue was placed with petitioners shortly after birth, and they filed an adoption petition. Respondent, who was not established as his legal father, objected, and the case went to a contested hearing under MCL 710.39(1). The court held that the trial court abused its discretion in declining to terminate respondent’s rights after “that hearing and by reinstating the birth mother’s parental rights. The evidence related to the factors in MCL 710.22(g) at” the § 39 hearing showed that it would not have been in the child’s best interests to grant custody to respondent. While the appeal from that decision “was pending before the Court of Appeals, petitioners moved to stay” respondent’s related paternity action, then pending before a different judge, which respondent filed after the § 39 “hearing was already underway. The trial court presiding in the paternity action abused its discretion by denying petitioners’ motion and allowing the case to proceed to entry of an order of filiation while this adoption case was proceeding.” Respondent never requested a stay in the adoption proceedings to pursue his “paternity action, and no facts justified a stay in any event. As a result, the trial court abused its discretion when it refused to stay the paternity action prior to entry of an order of filiation while this adoption proceeding was ongoing.” In Sarna, the Court of Appeals, identifying the error, reversed the trial court’s order denying petitioners’ motion for a stay of the paternity proceedings. The court concluded that the “Court of Appeals erred in dismissing this appeal as moot. Because petitioners prevailed on their appeal of the trial court’s decision” in Sarna to deny their motion to stay the paternity proceedings, the “order of filiation, which post-dated its denial of the motion to stay, was entered erroneously.” The question here was whether the trial court abused its discretion in its best-interest determination, and the court held that it did. For the reasons stated in the concurrence in MGR (also in this edition), Justices Markman and Zahra concurred in the majority’s decision to reverse the Court of Appeals judgment dismissing as moot petitioners’ appeal, and in its decision “to vacate the trial court’s order reinstating the birth mother’s parental rights and remand” for entry of an order terminating respondent’s parental rights and for further proceedings. For the reasons stated in the dissent in MGR, Justice Viviano would apply the good-cause analysis in MKK to “determine whether the putative father’s paternity action should have been stayed in favor of the adoption proceedings.” He expressed concern that the majority’s analysis “sets forth a rule that trial courts must always stay a paternity action in favor of adoption proceedings when the putative father has not filed a motion to stay the adoption proceedings.” However, applying the MKK good-cause analysis, he believed that the majority reached the right result.
The Adoption Code (MCL 710.21 et seq.); In re MKK; The Paternity Act (MCL 722.711 et seq.); Whether an appeal was moot due to an order of filiation in a related paternity case; Hearing under MCL 710.39 (§ 39 hearing); Denial of motions to stay the paternity action; MCL 710.21a; MCL 710.25(2); A trial court’s inherent authority to control the progress of a case; MCR 1.105, 2.401, & 3.217(A); Whether the trial court should have stayed the paternity proceedings under MCR 7.209(E)(2)(b); Determination that the putative father was a “do something” father under MCL 710.39(2)
In an order after leave to appeal was granted and the briefs and parties’ arguments were considered, the court reversed the Court of Appeals judgment (see e-Journal # 67306 in the 3/1/18 edition for the published opinion), vacated the trial court’s “determination that the putative father was a ‘do something’ father” under § 39(2) of the Adoption Code, and remanded to the trial court for further proceedings. It held that the Court of Appeals erred in concluding that petitioners’ appeal was moot due to a subsequently entered order of filiation in a related paternity case (see Brown v. Ross in this edition). The child (MGR) was born on 6/5/16. Petitioners filed their petition for adoption days later. Respondent-father filed his paternity action on 7/15/16. He did not seek to have “the trial court stay the adoption proceedings in favor of the paternity proceedings pursuant to MCL 710.25(2), and the facts did not justify a stay in any event.” Rather, over “petitioners’ objection that there was no good cause, the trial court, sua sponte,” entered an order staying the adoption proceedings until resolution of the paternity action. The Court of Appeals entered orders directing the trial court to begin and conclude the § 39 hearing, and the father did not seek review of either order. The trial court later entered an order of filiation “after it had issued” its § 39 determination “and after petitioners had appealed that decision to the Court of Appeals.” On the other hand, the birth mother twice requested that the trial court stay the paternity action, and the court concluded that its denial of her motions “was an abuse of discretion given the unique circumstances of this case.” As petitioners had a right to appeal the § 39 “determination and because good cause to delay those proceedings had not been alleged, the trial court should have stayed the paternity proceedings pursuant to MCR 7.209(E)(2)(b) so that the appellate court could review that decision.” Thus, the order of filiation was erroneously entered, and the court vacated it in an order issued in Brown. As a result, the order of filiation did not moot appellate review of the trial court’s § 39 decision. The court also held that “the trial court abused its discretion in determining that the putative father was a ‘do something’ father” under § 39(2), concluding that he failed to satisfy either of the two conditions required to qualify as such. On remand, the trial court is to conduct an analysis under § 39(1). Justices Markman and Zahra agreed “that the trial court in the paternity case abused its discretion by denying the birth mother’s motions to stay the paternity case for the adoption case and that, as a result, the order of filiation was erroneously entered before the adoption case was completed.” They also agreed that “the trial court abused its discretion in determining that the putative father was a ‘do something’ father” under MCL 710.39(2). But they disagreed with the majority’s statement that “‘[a]lthough proceedings under the Adoption Code should, in general, take precedence over proceedings under the Paternity Act, adoption proceedings may be stayed upon a showing of good cause, as determined by the trial court on a case-by-case basis.’” Rather, because they believed that “proceedings under the Adoption Code must take priority over proceedings filed under the Paternity Act and there is no ‘good cause’ exception to that requirement,” they believed that MKK was wrongly decided and would not rely on it. Justice Viviano dissented because he disagreed with the majority’s determinations that “the trial court erred by not staying the putative father’s paternity action pending resolution of the adoption proceedings and by concluding that” he was a do-something father.
First-party no-fault action; Burden of proof as to an exclusionary clause; Shelton v. Auto-Owners Ins. Co.; Fraud; Meemic Ins. Co. v. Fortson; Mina v. General Star Indem. Co.; A material statement; Bahri v. IDS Prop. Cas. Ins. Co.; Personal protection insurance (PIP) benefits; MCL 500.3107(1)(c); Candler v. Farm Bureau Mut. Ins. Co. of MI; Principle that summary disposition is rarely appropriate in cases involving questions of credibility, intent, or state of mind; In re Handelsman
Noting that summary disposition is rarely appropriate in cases involving questions of credibility, intent, or state of mind, and that the question of fraud is generally a question of fact for the jury, the court held that the evidence did not support, as a matter of law, that plaintiff committed fraud to the extent that the fraud exclusion clause of the insurance contract barred his claim for benefits. Plaintiff sued defendant for injuries he sustained in an auto accident. The trial court granted summary disposition for defendant, finding his claim for benefits was barred as a matter of law because he committed fraud. On appeal, the court agreed with plaintiff that the trial court erred by granting defendant’s motion for summary disposition because there remained a genuine issue of material fact as to whether he committed fraud as to his claims for household replacement services and his preaccident medical history. It found this case was not analogous to Candler, where it would have been “unreasonable for a jury to find that the plaintiff therein did not know that his statements contained false information after the plaintiff lied about who provided his services and then forged his brother’s signature in order to receive benefits. Here, there is a question of fact as to whether plaintiff was aware of the specific services [his roommate and service provider] claimed or that the forms contained false information.” Thus, a genuine issue of material fact existed “as to whether plaintiff himself made a false misrepresentation with reckless disregard for its truth or falsity, and with the intention that the defendant rely on it.” Further, “solely based on [] one medical record, it is not clear whether plaintiff knowingly provided false information or whether it was an honest mistake. Moreover, there is no evidence that plaintiff intentionally made this statement with the intent that defendant rely on it.” As such, his “denial of past neck pain created a question of fact for the jury as to whether plaintiff committed fraud.” And the evidence did not show that he “knowingly provided false information when he testified that he did not have any prior leg pain.” Reversed and remanded.
Quiet title claim; Wrongful eviction; Lawrence v. Rapaport; Unjust enrichment; Karaus v. Bank of NY Mellon; Whether the trial court in this case overruled the trial court’s decision in a related case; Principle that courts speak through their orders & not their oral statements; Tiedman v. Tiedman; Principle that one circuit court judge is not required to follow the decision of another; Johnson v. Johnson
The court rejected plaintiff’s claim that the trial court overruled the decision by the trial court in a related case. It also held that she lacked a viable quiet title claim or any legal basis for her wrongful eviction claim, and that her unjust enrichment claim lacked merit. Thus, it affirmed the dismissal of her complaint. The case arose after a mortgage foreclosure by defendant-Deutsche Bank National Trust Company on a property in 2015. “Plaintiff lived in the house on the property during 2015 and allegedly agreed to purchase” it under an unrecorded land contract entered into earlier in 2015. Defendant-Bye evicted her from the house in 2016. “Bye brought a quiet title action against Deutsche Bank and the person who leased the property to him with an option to buy” in 2016. Plaintiff unsuccessfully sought to intervene in the case to sue Bye for wrongful eviction. She asserted here that the presiding judge in that case, in denying her motion to intervene, “ruled that plaintiff could pursue a separate action.” But the record reflected that the trial court there “did not rule that plaintiff had a viable claim against any party nor did it authorize plaintiff to bring a separate suit. The trial court simply denied her motion to intervene because she lacked an interest in the property, conceded that Deutsche Bank had title to the property, and it declined to rule beyond the scope of the motion before it.” Thus, her sole claim of error failed. Also, the evidence offered “by Deutsche Bank in support of its motion for summary disposition in the Bye case established unequivocally Deutsche Bank’s superior right to the property as against all others.” The facts and the law showed that plaintiff did not have “a viable quiet title claim when she filed suit” in this case in 2017. As to her wrongful eviction claim, she could not show that Bye, as her “landlord or as someone holding a greater interest in the property than her, committed an act that interfered with her enjoyment or use of the property.” The alleged eviction happened in 2016. “Deutsche Bank acquired and recorded its title to the property in 2015. Bye had no interest in the property, was not plaintiff’s landlord when he allegedly evicted her, and he did not act on Deutsche Bank’s behalf.” Her unjust enrichment claim likewise failed because the “evidence plaintiff submitted to the trial court for her claim did not support her allegation that she conveyed a benefit upon Deutsche Bank.”
Governmental immunity; Beals v. Michigan; The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(2); Gross negligence; MCL 691.1407(8)(a); Wood v. Detroit; Costa v. Community Med. Servs.; Tarlea v. Crabtree; Principle that a statutory violation only creates the rebuttable presumption of negligence; Kennedy v. Great Atl. & Pac. Tea Co.; Reliance on the Commercial Driver’s License (CDL) manual; MCL 257.312f(1) (part of the Michigan Vehicle Code – MVC); Whether the summary disposition motion was premature because discovery was incomplete; Meisner Law Group PC v. Weston Downs Condo Ass’n; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Mere speculation that further discovery might produce evidentiary support; Caron v. Cranbrook Educ. Cmty.
Concluding that plaintiff did not allege facts establishing gross negligence and that no reasonable juror could find that defendant-Jacobson’s conduct constituted gross negligence, the court reversed the trial court’s order denying Jacobson’s motion for summary disposition based on governmental immunity, and remanded. The case arose from a car accident involving plaintiff and Jacobson, who at the time of the accident was employed as an equipment operator for a state agency. He was driving a tractor-trailer in the course of his employment when the accident occurred. In the complaint, “plaintiff primarily relied on the assertion that defendant failed to operate his vehicle in accordance with provisions of” the MVC. However, establishing that he violated an MVC provision “does not establish gross negligence because the violation of a statute only creates the rebuttable presumption of negligence.” Given that evidence of ordinary negligence is not sufficient to show “gross negligence, plaintiff had to allege or present evidence that defendant’s conduct was ‘substantially more than negligent.’” But she did not offer “evidence or allege facts that would support a finding of gross negligence. Plaintiff merely asserted a brief factual overview of the accident and concluded that the incident amounted to gross negligence.” The court also noted that the evidence “presented established that defendant was not suspected of being under the influence of drugs or alcohol. Defendant stopped at the stop sign, and when the accident occurred, he was only driving approximately 5 miles an hour. Based on these facts, a reasonable juror could not conclude” that his conduct was grossly negligent. Further, plaintiff’s reliance on the CDL manual was “unfounded.” The MVC “does not state that the CDL manual contains enforceable rules, the violation of which establish negligence.” Even if plaintiff could show via additional discovery that “defendant failed to look in his mirror, the violation may amount to ordinary negligence, not gross negligence.” The trial court determined that summary disposition was premature given that discovery was incomplete. But plaintiff’s “claim that discovery could establish that defendant did look in his mirror but simply did not care if he hit plaintiff’s vehicle” was simply speculation. She offered no evidence to support the contention that he “intentionally or with willful disregard” struck her vehicle.
Trip & fall in a grocery store; Premises liability; Hoffner v. Lanctoe; Duty owed to an invitee; Stitt v. Holland Abundant Life Fellowship; Open & obvious danger; Novotney v. Burger King Corp. (On Remand); Slaughter v. Blarney Castle Oil Co.; Lugo v. Ameritech Corp.
Holding that the wooden pallet on which plaintiff tripped was open and obvious, and thus, defendant-grocery store had no duty to warn or protect him from the danger, the court affirmed the trial court’s grant of summary disposition for defendant. Plaintiff sued defendant for injuries he sustained when he tripped and fell on the pallet as he entered the grocery store. The trial court granted defendant summary disposition of plaintiff’s premises-liability claim. On appeal, the court rejected his argument that the condition that caused his fall was not an open-and-obvious danger, but was a deceptive condition and a trap that caused his injuries. It noted that “[t]he sides of the pallet were painted a bright blue, in stark contrast to the tile floor.” Further, “he entered the store through the entrance door, where a person’s line of sight would have clearly seen not just part of the top of the pallet, but also the bright-blue side of the pallet.” As such, “an average person with ordinary intelligence would have discovered the pallet upon a casual inspection, and a reasonable person in plaintiff’s position would have perceived the danger.” Finally, the court rejected his claim that defendant’s employees negligently placed a warning cone on the middle of the pallet when they should have placed it on the corner, because the corner of the pallet presented the actual trip-and-fall hazard. “Regardless of the warning cone, the bright-blue color on the side of the pallet was in stark contrast to the tile floor and an average person with ordinary intelligence would have discovered the pallet upon a casual inspection.”
Termination of parental rights; Reasonable reunification efforts; In re Mason; In re Rood; In re Smith; In re Hudson; In re Hicks/Brown; The Americans with Disabilities Act (42 USC § 12101 et seq.); The Michigan Probate Code (MCL 712A.21 et seq.); In re Hicks; Disability defined; § 12102(1); Mental impairment defined; 28 CFR § 35.108(b)(1); § 12102(2)(A); Compliance with treatment plan; Lawyer-guardian ad litem (L-GAL)
The court held that the L-GAL failed to establish that the trial court clearly erred when it found the DHHS failed to make reasonable efforts toward reunifying respondent-father with the children. The L-GAL asserted that the trial court erred when it found that the DHHS failed to provide the father with appropriate resources because the “DHHS does not have a duty to accommodate parents with mental health issues, but only those parents with intellectual, cognitive, or developmental disabilities.” In support of this position, the L-GAL relied on the court’s decision in Hicks. The L-GAL ignored that Hicks was affirmed in part and vacated in part by the Supreme Court in Hicks/Brown. Regardless, neither the court’s “decision nor that of the Supreme Court’s stands for the proposition that the duty to accommodate a disabled parent only extends to intellectual, cognitive, or developmental disabilities. Such an interpretation would lead to absurd results.” The DHHS’s “efforts were insufficient to address the issues that brought the children into care: chronic homelessness and untreated mental health issues.” Also, in many respects, the father was in compliance with his treatment plan. However, it remained unclear whether he may be able to overcome the conditions that brought the children into care. “Even with appropriate psychiatric care and medication, he may be unable to safely parent his children within a reasonable time.” However, given the DHHS’s inadequate efforts, such a determination was premature. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); In re Moss Minors; In re Fried; In re Hudson; In re HRC; In re White; Children’s best interests; In re Laster; In re Olive/Metts Minors; In re Frey
The court held that the trial court properly terminated respondents-parents’ parental rights to the children where the statutory grounds were established by clear and convincing evidence and it was in their best interests. Under § (c)(i), clear and convincing evidence established that the conditions that led to the children’s adjudication as temporary court wards continued to exist at the time of the termination trial. The court rejected respondent-father’s additional claims that termination was premature and that the trial court improperly considered his alcohol abuse in its reasons for termination under § (c)(i) where alcohol treatment was not part of his case service plan and he received no services to address this condition. The fact that he was not offered services for his alcohol abuse did not “overcome the fact that reasonable efforts were made to address the over-arching issues of domestic abuse and father’s toxic relationship with” respondent-mother. Clear and convincing evidence also supported termination under §§ (g) and (j). In the “mother’s case, she both failed to participate and benefit from her case service plan. Her case service plan required that she maintain an income, housing, and sobriety, and participate in domestic violence and anger management classes.” She was financially dependent on the father, “missed 124 screens and 16 of her 18 intensive outpatient therapy sessions, was not in counseling long enough to reach the point of anger management, and had no enlightenment into her role as the perpetrator of abuse.” In the father’s “case, he participated in his case service plan but failed to benefit from it in any significant way.” He maintained “employment throughout the proceedings, had housing, provided negative substance abuse screens, and completed counseling.” The court also acknowledged his “efforts at distancing himself from [the] mother by filing a personal protection order against her and for divorce. His efforts were all for naught however when he continued to act as if he and mother were still a married couple by having sex with [the mother], financially supporting her addiction, and allowing her to come to his apartment.” The domestic violence counselor could not give an opinion as to whether the father “benefitted from domestic violence counseling because he was still in a violent situation.” The caseworker “echoed that there would be a substantial risk of harm to send the children home because of these unrectified issues.” The father’s “inability to take adequate precautions to keep the children safe supported the conclusion that there would be a reasonable likelihood, based on respondent’s conduct or capacity, that the child will be harmed if returned to respondent’s home.” Affirmed.