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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Business Law (1)

    Full Text Opinion

    e-Journal #: 73118
    Case: Finke v. Vanderkelen
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - K.F. Kelly, Borrello, and Boonstra
    Issues:

    Shareholder’s claims for breach of fiduciary duties; The business judgment rule; Sutton v. FedFirst Fin. Corp. (MD); Oliveira v. Sugarman (MD); A shareholder’s standing; Shenker v. Laureate Educ., Inc. (MD); Duty of candor; In re JP Morgan Chase & Co. Shareholder Litig. (DE); Right result reached for the wrong reason; Gleason v. Michigan Dep’t of Transp.

    Summary:

    With “the exception of the claim that defendants breached their duty of candor in preparing the proxy statement,” the court disagreed with plaintiff’s claim that “he was entitled to file a direct (i.e., non-derivative) claim against” them and that the trial court erred by granting them summary disposition. As to the duty of candor claim, the court held that “Maryland law permits such a claim as a direct action, but” it nonetheless found that “the claim was properly dismissed because plaintiff did not allege any individual damages to shareholders as a result of the alleged inaccuracies or omissions in the proxy statement.” Plaintiff was a shareholder of Wolverine Bancorp, “a savings and loan company organized under the laws of the state of Maryland and principally operating in Midland, Michigan. Defendants were directors of Wolverine, and certain defendants were also officers of Wolverine.” Plaintiff alleged that, under Maryland law, they had breached their fiduciary duties to the shareholders. The court found that in both the cases decided before the relevant statute was amended—Shenker and Sutton— and the case decided after the amendment—Oliveira—"Maryland courts have applied the business judgment rule to bar direct actions from shareholders against a corporation’s directors for claims related to the management of the corporation and the effect of management’s actions on share price. To be permitted to bring a direct claim against directors, a shareholder must plead an injury separate and distinct from the corporation, and, when deciding that issue, Delaware cases provide appropriate guidance.” Therefore, “in a situation in which there is a part stock-for-stock and part cash-for-stock merger between two companies that are both traded in ‘in a large, fluid, public market,’ the shareholders can only bring a derivative claim on behalf of the corporation.” Because plaintiff failed to do so here, “he failed to state a claim on which relief could be granted, and the trial court appropriately granted” defendants summary disposition on his breach of fiduciary duty claims. Affirmed.

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 73120
    Case: People v. Schrauben
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Tukel, Markey, and Gadola
    Issues:

    Restitution; Const. 1963, art. 1, § 24; People v. Turn; MCL 769.1a; The Crime Victim’s Rights Act (MCL 780.751 et seq.); People v. Garrison; People v. Allen; In re White; MCL 780.766(2); People v. McKinley; People v. Byard; Amount of the victim’s loss; People v. Fawaz; People v. Gubachy; Principle that restitution is a not a substitute for civil damages; People v. Lee; Entitlement to an offset

    Summary:

    Holding that defendant was not entitled to an offset against the restitution amount awarded to a victim (L), the court vacated the restitution order and remanded the case to the trial court. Defendant pled no contest to 70 counts of uttering and publishing, and 3 counts of converting funds from prepaid funeral contracts. He was ordered to pay $234,394.67 in restitution. The prosecution appealed the trial court’s order as to restitution giving defendant credit for amounts allegedly owed to him by L “under promissory notes executed in 2005.” The court concluded that “the rights and duties of the parties under the 2005 promissory notes” were unrelated to determining the loss L suffered due to defendant’s criminal activities in this case. It held that whether L owed him money under those notes “was beyond the scope of the trial court’s duty to determine and order restitution.” The court noted that the restitution amount “must be based upon the actual loss suffered by the victim as a result of a defendant’s fraudulent activities.” It was the trial court’s obligation to determine the amount of loss L incurred due to “defendant’s fraud, which took place from 2008 to 2010. But the trial court’s decision reaches beyond the question of the loss suffered by the victim as a result of defendant’s fraud, and extends to determining the rights and duties of the parties under the 2005 promissory notes.” The only way the trial court could determine the enforceability of the notes and the alleged balance on them was if that debt related to the loss L suffered due to defendant’s fraud. If there was no quid pro quo involving enforcement of the notes and the amount defendant defrauded from L, “the restitution amount should not be offset by the amount owed on the notes.” The court found that the record showed that defendant did not “forego enforcement of the notes as a sort of quid pro quo to balance out the fraud debt; rather, he sold his interest in the notes to pay a debt he owed, authorizing the assignee to pursue [L] for the balance owed on” them. He claimed that because L later struck a deal with the assignee to pay less than the full amount owed, L “should give him the remaining amount that he would have had to pay defendant if defendant had not sold the notes and had instead successfully foreclosed on the debt.” But defendant’s failure to do so was unrelated to the fraud case.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73217
    Case: United States v. Smith
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Readler, Boggs, and Griffin
    Issues:

    Sentencing; Whether defendant’s plea agreement waived his right to challenge his drug-distributing sentence under the First Step Act; United States v. McGilvery; United States v. Murdock; United States v. Calderon; United States v. Fleming; Whether the First Step Act modified 21 USC § 841(b)(1)(C); United States v. Wiseman

    Summary:

    The court held that defendant-Smith was not entitled to a sentence reduction under the First Step Act where he waived his right to appeal his sentence in a valid Rule 11 plea agreement. It added that even if he had not waived this challenge, the court previously held that the First Step Act does not apply to § 841(b)(1)(C), the statute under which he was sentenced. Smith challenged his 150-month sentence, arguing that the district court should have applied the First Step Act when sentencing him. The court first held that Smith’s plea was “knowing and voluntary.” It then considered the waiver itself, which “waived all grounds for appeal save for five specific instances: 1) his sentence, if he was sentenced above the agreed-upon statutory maximum, 2) his sentence, if he was sentenced above the agreed-upon Guideline range, 3) his career-offender status, ineffective counsel, and 5) prosecutorial abuse.” Because the First Step Act issue was not one of the five grounds, the court held that Smith waived his right to appeal this issue. It also noted that under Wiseman, “the First Step Act did not modify § 841(b)(1)(C), the section at issue here.” Affirmed.

    Full Text Opinion

  • Insurance (3)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73117
    Case: Good v. Pioneer Mut. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray and Tukel; Concurrence – Ronayne Krause
    Issues:

    No-fault dispute over attendant care benefits; Motion to excuse a juror for cause under MCR 2.511(D); Poet v. Traverse City Osteopathic Hosp.; Jalaba v. Borovoy; Presumption jurors are qualified; Bynum v. ESAB Group, Inc.; “Actionable prejudice”; Jury nullification; Failure to assert that the verdict was against the great weight of the evidence; Precopio v. City of Detroit Dep’t of Transp.; Tuttle v. Department of State Hwys.; Failure to argue that the jury’s special verdicts were so logically & legally inconsistent that they could not be reconciled & must be set aside; Local Emergency Fin. Assistance Loan Bd. v. Blackwell

    Summary:

    In this dispute over no-fault attendant care benefits, the court held that plaintiff was not entitled to relief on his claim that the trial court abused its discretion by denying his motion to excuse a juror (#166) for cause under MCR 2.511(D) because he could not show actionable prejudice requiring reversal under Poet. It also rejected his jury nullification claim. It assumed without deciding that the trial court abused its discretion, but concluded that plaintiff was not entitled to relief because he did not meet the third and fourth elements of the Poet test. As to the third element – the moving party showed “the desire to excuse another subsequently summoned juror—the moving party is required to manifest such desire by way of ‘a motion to challenge for cause, a request for additional peremptory challenges in the case of exhaustion, or a simple expression of dissatisfaction with a juror who cannot be excused because of improperly compelled exhaustion.’” The court noted that after the trial court denied his “motion to excuse Juror #166, plaintiff did move to excuse another juror for cause. But the trial court granted that motion, excusing the objected-to juror, which plainly resulted in no actionable prejudice to plaintiff.” Further, he did not challenge any additional “jurors for cause, request additional peremptory challenges, or express dissatisfaction with any juror who could not be excused because” he did not have any more peremptory challenges. Thus, he did not satisfy the third element. In addition, he failed to “satisfy the fourth element, i.e., the juror whom the party later wished to excuse was objectionable.” In order to demonstrate “that a potential juror is objectionable, there must, first, be a specific indication, on the record, that the party seeking removal finds the individual objectionable. Second, the objector must expressly articulate or list the particular reasons why the juror is objectionable.” When the trial court denied his motion as to Juror #166, plaintiff did not articulate any “specific objections to any juror other than the one he successfully challenged for cause.” And while he later used his peremptory challenges on several jurors, he did not articulate any “particular reasons for doing so. In sum, because plaintiff did not expressly articulate any objections to a subsequently summoned juror who ended up on the final panel, he did not satisfy the fourth element of the Poet test.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73123
    Case: Meemic Ins. Co. v. Jones
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Swartzle, and Cameron
    Issues:

    Insurer’s claim for reimbursement of money paid to a mortgagee under a standard mortgage clause; Foremost Ins. Co. v. Allstate Ins. Co.; Wells Fargo Bank, NA v. Null; Subrogation; Citizens State Bank of Clare v. State Mut. Rodded Fire Ins. Co. of MI; Deny defined; Distinguishing Marketos v. American Employers Ins. Co.; Insurance policy interpretation; Klapp v. United Ins. Group Agency, Inc.; Using a dictionary to define terms not defined in the policy; Citizen Ins. Co. v. Pro-Seal Serv. Group, Inc.

    Summary:

    Concluding that the policy at issue only contemplated subrogation rights when a claim was denied, the court held that defendant-insured (Jones) was not contractually obligated to reimburse plaintiff-insurer (Meemic) for the payment it made to her mortgagee (nonparty-CitiMortgage). Thus, it reversed summary disposition for Meemic as to recoupment of the $53,356.49 payment, and remanded. After a fire damaged the insured property, Meemic rescinded and voided the policy from its inception on the basis of a material misrepresentation by Jones. After it rescinded the policy, it sent CitiMortgage the payment. It later filed this suit, seeking to recover that payment from Jones, as well as an advance payment it had made to her. She argued that the trial court erred in granting Meemic summary disposition on the basis it was entitled to reimbursement of the $53,356.49 payment. The court agreed. The policy’s plain language provided “that ‘any action or neglect’ by Jones (the named insured) would not prohibit recovery by” the mortgagee. This standard mortgage clause “created a separate, independent contract between Meemic and CitiMortgage.” As a result, its “rescission of Jones’s policy based on the acts of Jones at the time she procured the policy did not affect Meemic’s independent contract with CitiMortgage.” As to whether Meemic had subrogation rights even though the policy between it and Jones was rescinded, the contract’s plain language provided “that, if Meemic paid CitiMortgage ‘for any loss’ and denied payment to Jones, Meemic would have rights of subrogation.” She contended that, because Meemic rescinded the policy, instead of simply denying her claim, it was not entitled to subrogation. Turning to a dictionary to define the undefined term “deny,” the court concluded that “the contract only granted Meemic the right of subrogation if it paid CitiMortgage and refused to pay Jones’s claim under the policy—as opposed to entirely annulling Jones’s rights under” it. Meemic decided to do more than refuse to pay Jones’s claim – it “voided the policy ab initio due to Jones’s material misrepresentation.” Citizens State Bank did not, as Meemic contended, hold that an insurer “is entitled to subrogation even after it elects to rescind an insurance policy due to the insured’s misrepresentations at the time the policy is procured.” Further, the policy language here was narrower than in that case.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73178
    Case: Saleh v. Safeco Ins. Co. of IL
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Beckering and Fort Hood; Concurring in the result only - Shapiro
    Issues:

    The No-Fault Act (MCL 500.3101 et seq.); Action for first-party personal protection insurance (PIP) benefits; Uninsured/underinsured (UM) benefits; Policy fraud provision; Whether summary disposition was premature; Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club; Gara v. Woodbridge Tavern

    Summary:

    Holding that defendant-insurer was entitled to summary disposition based on the policy’s fraud provision, and that it was not premature, the court affirmed summary disposition for defendant in this action for first-party PIP benefits and UM benefits. Plaintiffs asserted that plaintiff-husband (Mr. Saleh) was the victim of a hit-and-run car accident. An expert (P) conducted a collision damage analysis of accident on defendant’s behalf and reported the results to defendant in a report (referred to as the Exponent report). P inspected Mr. Saleh’s Jeep and downloaded its Event Data Recorder (EDR) to obtain data related to the accident. He concluded “that physical damage to the Jeep and its EDR data were not consistent with the events Mr. Saleh described.” The policy’s fraud provision stated “in relevant part that defendant ‘may void this policy or deny coverage for an accident or loss if you or an insured have concealed or misrepresented any material fact or circumstance . . . .’ Defendant argued that plaintiffs made a material misrepresentation when claiming that the crash was a hit-and-run accident, as the physical and electronic crash data evidence showed the accident did not occur the way Mr. Salah described. Instead, the evidence indicated that two minor collisions were intentionally staged. Data from the EDR showed that the vehicle was twice driven forward into an object from a stopped position, at low but increasing speeds, and that the final collision with the object occurred one minute after the immediately prior collision. Neither collision deployed the airbags, which were triggered in some other fashion. The EDR data was inconsistent with Mr. Saleh’s account” and supported P’s finding “that the two collisions were intentionally staged. Plaintiffs did not dispute the” EDR’s accuracy or offer “an expert witness affidavit or other evidence at the summary disposition hearing to materially contest the conclusions drawn from the data.” The burden shifted to them to show a genuine issue of material fact as to “whether Mr. Saleh materially misrepresented the nature of the collision and triggered the fraud exclusion, as raised in defendant’s affirmative defense.” The court held that they failed to do so. The record did “not ‘leave[] open an issue upon which reasonable minds might differ.’”

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 73117
    Case: Good v. Pioneer Mut. Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray and Tukel; Concurrence – Ronayne Krause
    Issues:

    No-fault dispute over attendant care benefits; Motion to excuse a juror for cause under MCR 2.511(D); Poet v. Traverse City Osteopathic Hosp.; Jalaba v. Borovoy; Presumption jurors are qualified; Bynum v. ESAB Group, Inc.; “Actionable prejudice”; Jury nullification; Failure to assert that the verdict was against the great weight of the evidence; Precopio v. City of Detroit Dep’t of Transp.; Tuttle v. Department of State Hwys.; Failure to argue that the jury’s special verdicts were so logically & legally inconsistent that they could not be reconciled & must be set aside; Local Emergency Fin. Assistance Loan Bd. v. Blackwell

    Summary:

    In this dispute over no-fault attendant care benefits, the court held that plaintiff was not entitled to relief on his claim that the trial court abused its discretion by denying his motion to excuse a juror (#166) for cause under MCR 2.511(D) because he could not show actionable prejudice requiring reversal under Poet. It also rejected his jury nullification claim. It assumed without deciding that the trial court abused its discretion, but concluded that plaintiff was not entitled to relief because he did not meet the third and fourth elements of the Poet test. As to the third element – the moving party showed “the desire to excuse another subsequently summoned juror—the moving party is required to manifest such desire by way of ‘a motion to challenge for cause, a request for additional peremptory challenges in the case of exhaustion, or a simple expression of dissatisfaction with a juror who cannot be excused because of improperly compelled exhaustion.’” The court noted that after the trial court denied his “motion to excuse Juror #166, plaintiff did move to excuse another juror for cause. But the trial court granted that motion, excusing the objected-to juror, which plainly resulted in no actionable prejudice to plaintiff.” Further, he did not challenge any additional “jurors for cause, request additional peremptory challenges, or express dissatisfaction with any juror who could not be excused because” he did not have any more peremptory challenges. Thus, he did not satisfy the third element. In addition, he failed to “satisfy the fourth element, i.e., the juror whom the party later wished to excuse was objectionable.” In order to demonstrate “that a potential juror is objectionable, there must, first, be a specific indication, on the record, that the party seeking removal finds the individual objectionable. Second, the objector must expressly articulate or list the particular reasons why the juror is objectionable.” When the trial court denied his motion as to Juror #166, plaintiff did not articulate any “specific objections to any juror other than the one he successfully challenged for cause.” And while he later used his peremptory challenges on several jurors, he did not articulate any “particular reasons for doing so. In sum, because plaintiff did not expressly articulate any objections to a subsequently summoned juror who ended up on the final panel, he did not satisfy the fourth element of the Poet test.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Real Property

    e-Journal #: 73130
    Case: Pobanz v. Eugene E. Hamilton Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Beckering, Sawyer, and Gadola
    Issues:

    Action to stop a foreclosure & to discharge a mortgage; Motion to vacate a consent judgment; A settlement agreement as a contract; Kloian v. Domino’s Pizza, LLC; In re Robert H. Draves Trust; Finality of settlement agreements; Clark v. Al-Amin; Requirements of MCR 2.507(G); Effect of a settlement agreement in open court; Michigan Bell Tel. Co. v. Sfat; Wagner v. Myers; Appeal from a consent judgment; Dora v. Lesinski; Sauer v. Rhoades; Due process; MCR 2.401; Claim that the consent judgment should be set aside because the parties were not under oath when they entered into the agreement; Marsh v. Department of Civil Serv.; Indefiniteness; Calhoun Cnty. v. Blue Cross Blue Shield of MI; Effect of stipulating to a matter in the trial court; Holmes v. Holmes

    Summary:

    The court held that because “the parties agreed on the record to settle the litigation rather than having the issues of the litigation determined by the trial court, plaintiff was not entitled to set aside the consent judgment and have the issues determined by the trial court,” or to have those issues determined by the court. It also rejected his claim that the trial court improperly insisted that he participate in a surprise settlement conference. Thus, the court affirmed the consent judgment ordering plaintiff-borrower to pay defendant-trust $5,000 in exchange for defendant’s discharge of a mortgage, but remanded for correction of a clerical error in the consent judgment. Plaintiff contended that the trial court erred by denying his motions to vacate the consent judgment. He argued that “he was entitled to entry of a default judgment against defendant and also that defendant was precluded from enforcing the mortgage against him by the statute of limitations.” The court found that a review of the trial court record did “not suggest that the parties’ consent to the agreement was involuntary, nor does the record suggest the presence of mistake, fraud, or unconscionable advantage.” Rather, they were clear as to the terms of the settlement agreement (SA) “and consented to the terms without hesitation.” Plaintiff raised the issue of the statute of limitations, and the trial court explained “that it was not addressing the substantive issues at that time but was instead asking if the parties had made offers to settle the matter. Plaintiff explained that defendant had made the offer of $10,000 to discharge the mortgage, and that plaintiff planned to make a counteroffer.” The transcript of the hearing was “clear that the parties understood the terms of the agreement and agreed to be bound by the settlement. The trial court was also clear that the parties were not obligated to negotiate a settlement and that the trial court would proceed to decide the parties’ issues if they did not want to pursue settlement.” After they “agreed to the settlement, plaintiff sought judicial determination of his arguments that he was entitled to default judgment and that enforcement of the mortgage is barred by the statute of limitation.” However, the trial court “did not reach those issues because the parties had already agreed to settle the matter. Plaintiff clearly agreed on the record to settle the litigation, thereby waiving his right to assert those theories, and was not entitled to have the consent judgment set aside.” While he wanted to withdraw from the agreement, “a ‘change of heart’” was insufficient to justify setting aside a SA.

    Full Text Opinion

  • Qui Tam (1)

    Full Text Opinion

    e-Journal #: 73198
    Case: United States ex rel Holloway v. Heartland Hospice, Inc.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Moore, Merritt, and Murphy
    Issues:

    Whistleblower action under the False Claims Act (31 USC §§ 3729–3733); §§ 3729(a)(1)(A), (B), & (G); Whether the relator’s claim was barred by a “prior public disclosure”; U.S. ex rel. Walburn v. Lockheed Martin Corp.; U.S. ex rel. Antoon v. Cleveland Clinic Found.; Patient Protection & Affordable Care Act, § 10104(j)(2); U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A.; U.S. ex rel. Gear v. Emergency Med. Assocs. of IL, Inc. (7th Cir.); U.S. ex rel. Burns v. A.D. Roe Co.; U.S. ex rel. Jones v. Horizon Healthcare Corp.; U.S. ex rel. Poteet v. Medtronic, Inc.; Whether other complaints are “public” under the amended public-disclosure bar; The qui tam relator as the government’s agent under § 3730(e)(4)(A); U.S. ex rel. Forney v. Medtronic, Inc. (ED PA); U.S. ex rel. Gilbert v. Virginia Coll., LLC (ND AL); The pre-amendment disclosure bar; U.S. ex rel. McKenzie v. Bellsouth Telecomm., Inc.; United States ex rel. Precision Co. v. Koch Indus. (10th Cir.); U.S. ex rel. Dingle v. BioPort Corp.; U.S. ex rel. Ondis v. City of Woonsocket (1st Cir.); U.S. ex rel. Fine v. Sandia Corp. (10th Cir.); U.S. ex rel. Kirk v. Schindler Elevator Corp. (2d Cir.); Bellevue v. Universal Health Servs. of Hartgrove, Inc. (7th Cir.); United States ex rel. Armes v. Garman (Unpub. 6th Cir.)

    Summary:

    The court held that three prior South Carolina complaints constituted a “public disclosure” barring relator-Holloway from bringing a qui tam action against defendant-Heartland Hospice for allegedly orchestrating a corporate-wide scheme to submit false claims for payments from Medicare and Medicaid. She alleged the presentation of false claims, the use of false records or statements, and the wrongful retention of government funds. The district court ruled that her claim was not barred by a prior public-disclosure but dismissed it based on insufficient pleading. The court considered the applicability of the prior public disclosure bar. Since Holloway did not assert that she was the “original source” of the information, she had to either “show that the purported prior disclosures were not ‘public,’ or that their contents did not ‘disclose’ her allegations.” The court held that some of the public disclosures offered by Heartland involved other hospice providers and not Heartland, and the Health and Human Services Office of Inspector General report did not constitute a public disclosure. However, Heartland also cited three qui tam complaints filed in the U.S. District Court for the District of South Carolina against Heartland’s parent company and related entities. The court noted that courts are split over whether a qui tam relator is the government’s agent and thus, whether a “case is not ‘public’ unless the government intervenes.” The court followed the majority of circuits by holding that “a qui tam relator is the government’s agent because the government ‘is the real party in interest,’” and it concluded that “the South Carolina cases are public under both versions of the public-disclosure bar, despite the fact that the government did not intervene.” It found that the South Carolina complaints involved the same corporate parent and the same type of fraud as this case. The current version of the statute “bars claims ‘if substantially the same allegations or transactions’ have been publicly disclosed,” but it determined that Holloway’s action would be precluded under both the pre- and post-amendment public-disclosure bar. It affirmed the district court’s dismissal.

    Full Text Opinion

  • Real Property (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73130
    Case: Pobanz v. Eugene E. Hamilton Trust
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Beckering, Sawyer, and Gadola
    Issues:

    Action to stop a foreclosure & to discharge a mortgage; Motion to vacate a consent judgment; A settlement agreement as a contract; Kloian v. Domino’s Pizza, LLC; In re Robert H. Draves Trust; Finality of settlement agreements; Clark v. Al-Amin; Requirements of MCR 2.507(G); Effect of a settlement agreement in open court; Michigan Bell Tel. Co. v. Sfat; Wagner v. Myers; Appeal from a consent judgment; Dora v. Lesinski; Sauer v. Rhoades; Due process; MCR 2.401; Claim that the consent judgment should be set aside because the parties were not under oath when they entered into the agreement; Marsh v. Department of Civil Serv.; Indefiniteness; Calhoun Cnty. v. Blue Cross Blue Shield of MI; Effect of stipulating to a matter in the trial court; Holmes v. Holmes

    Summary:

    The court held that because “the parties agreed on the record to settle the litigation rather than having the issues of the litigation determined by the trial court, plaintiff was not entitled to set aside the consent judgment and have the issues determined by the trial court,” or to have those issues determined by the court. It also rejected his claim that the trial court improperly insisted that he participate in a surprise settlement conference. Thus, the court affirmed the consent judgment ordering plaintiff-borrower to pay defendant-trust $5,000 in exchange for defendant’s discharge of a mortgage, but remanded for correction of a clerical error in the consent judgment. Plaintiff contended that the trial court erred by denying his motions to vacate the consent judgment. He argued that “he was entitled to entry of a default judgment against defendant and also that defendant was precluded from enforcing the mortgage against him by the statute of limitations.” The court found that a review of the trial court record did “not suggest that the parties’ consent to the agreement was involuntary, nor does the record suggest the presence of mistake, fraud, or unconscionable advantage.” Rather, they were clear as to the terms of the settlement agreement (SA) “and consented to the terms without hesitation.” Plaintiff raised the issue of the statute of limitations, and the trial court explained “that it was not addressing the substantive issues at that time but was instead asking if the parties had made offers to settle the matter. Plaintiff explained that defendant had made the offer of $10,000 to discharge the mortgage, and that plaintiff planned to make a counteroffer.” The transcript of the hearing was “clear that the parties understood the terms of the agreement and agreed to be bound by the settlement. The trial court was also clear that the parties were not obligated to negotiate a settlement and that the trial court would proceed to decide the parties’ issues if they did not want to pursue settlement.” After they “agreed to the settlement, plaintiff sought judicial determination of his arguments that he was entitled to default judgment and that enforcement of the mortgage is barred by the statute of limitation.” However, the trial court “did not reach those issues because the parties had already agreed to settle the matter. Plaintiff clearly agreed on the record to settle the litigation, thereby waiving his right to assert those theories, and was not entitled to have the consent judgment set aside.” While he wanted to withdraw from the agreement, “a ‘change of heart’” was insufficient to justify setting aside a SA.

    Full Text Opinion

  • Termination of Parental Rights (3)

    Full Text Opinion

    e-Journal #: 73151
    Case: In re Osborne
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cavanagh, Sawyer, and Riordan
    Issues:

    Termination under § 19b(3)(c)(i); In re Trejo Minors; In re Fried; In re White; In re HRC; In re Rood; In re Miller; In re VanDalen; In re Williams; In re Foster; Children’s best interests; In re Olive/Metts Minors; In re Moss Minors; Family Dependency Treatment Court (FDTC)

    Summary:

    Holding that § (c)(i) existed and termination of respondent-mother’s parental rights was in the children’s best interests, the court affirmed. The trial court did not clearly err in determining that she failed to rectify the conditions that led to her adjudication. The condition that existed at the time of the adjudication was her “substance abuse that resulted in criminal convictions and CPS investigation.” The record supported the trial court’s findings as to her substance abuse. She showed that “she was capable of addressing her substance abuse when she achieved 180 days’ sobriety at the time of the” 7/17 dispositional hearing. However, she “tested positive for various substances on 55 occasions, including positive drug tests while the children were in respondent’s care and home, and missed approximately 76 drug tests throughout this case. There were 12 parenting-time visitations with the children that correlated with positive drug screens.” Also, she “tested positive for cocaine twice while she was completing an inpatient substance abuse treatment program, including a positive test on her day of discharge from the program. [She] completed four inpatient rehabilitation programs and was participating in a rehabilitation program at the time of the termination hearing.” Also, she “participated in five outpatient substance abuse programs during this case.” Further, the trial court ordered her to participate in the FDTC program. “Respondent advanced to phase three of the FDTC program, but she was ultimately unsuccessfully discharged from the program as a result of positive drug screens. Respondent also participated in individual family counseling and individual counseling, but respondent was not participating in those services at the time of the termination hearing.” She tested positive for substances in 6/19 and “thereafter failed to attend drug screens or participate in any services until respondent voluntarily entered an inpatient rehabilitation program in” 8/19. Thus, she “failed to rectify her substance use issues and maintain long-term sobriety by the time of the termination hearing in [10/19], despite her participation in various services to address her substance abuse issues.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73150
    Case: In re PML
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Servitto, and Redford
    Issues:

    Termination under the Adoption Code; MCL 710.51(6); In re Hill; In re ALZ; In re Talh; Principle that an incarcerated parent may still retain the ability to comply with the support requirements of MCL 710.51(6); In re Caldwell; Principle that attempts to communicate by letters & phone calls are not regular or substantial contacts within the meaning of MCL 710.51(6)(b); In re Kaiser; Waiver; In re Ferranti; Elahham v. Al-Jabban; Varran v. Granneman; Requirement that the trial court consider the children’s best interests before approving their adoption; MCL 710.22(g); MCL 710.51(1)(b); In re Newton; Best interests of the children; MCL 712A.19b(5); In re Olive/Metts Minors; Correction of clerical errors; MCR 6.435(A); MCR 7.216(A)(4)

    Summary:

    Holding that there were grounds for termination of respondent-mother’s parental rights to the children under the Adoption Code, and that termination was in the children’s best interests, the court affirmed termination of her parental rights, but remanded for the ministerial task of correcting clerical errors in the termination orders. Petitioner-father sought termination of respondent’s parental rights to their children for purposes of stepparent adoption. The trial court found that clear and convincing evidence established grounds for termination under MCL 710.51(6), and that termination was in the children’s best interests. On appeal, the court rejected her argument that the trial court erred by finding that the evidence supported termination under the Adoption Code. It noted the record supported that “during the requisite two-year review period, [she] had the ability to support or assist in supporting the children, but she failed or neglected to provide regular and substantial support” and that she “failed to make the children a priority in her life and neglected to visit them.” Further, she “expressly waived any objection to the admission of” alleged hearsay and “abandoned her claim of error regarding the admissibility of” petitioner’s testimony. Meanwhile, it noted that, “[i]n filling out the form order, the trial court checked the wrong box on each of the orders it entered. Because [its] ruling from the bench does not indicate a substantive error but only a clerical error, the clerical errors require correction.” Finally, it rejected her contention that termination was not in the children’s best interests, finding she “lacked the ability to provide the children stability and permanence of the type that would foster” their development, “lacked the ability to provide meaningful parental guidance,” had a “history of committing domestic violence” against family members, and “had a substance abuse problem that interfered with her ability to parent and be present for the children.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73147
    Case: In re Smith/Williams
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Markey, and Gadola
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Best interests of the children; In re Moss Minors; In re Frey; Parent-child bond; In re Olive/Metts Minors

    Summary:

    Holding that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her parental rights were terminated based primarily on resource availability, lack of parenting skills, and her inability to maintain stable employment. The trial court also noted that the children had a definite need for permanency, stability, and finality, and that termination was in their best interests. On appeal, the court rejected her argument that the trial court erred in its best-interests determination, finding its analysis “was straightforward and exceptionally thorough.” After listening carefully to the “testimony given, the arguments made, and the parental issues that had yet to be resolved, the trial court found that a preponderance of the evidence supported that it was is in the best interests of [the children] to terminate respondent’s parental rights.” It did not err in this determination, and, in fact, there was “an abundance of evidence to support it . . . .”

    Full Text Opinion

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