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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Statutory conversion; Treble damages; MCL 600.2919a(1)(a); Claim that an attorney’s lien was converted
In an order in lieu of granting leave to appeal, the court reversed Part II(A) of the Court of Appeals’ opinion (see e-Journal # 74173 in the 11/23/20 edition) as to statutory conversion, vacated Part II(B) as to treble damages, and remanded to the trial court for further proceedings. Plaintiff asserted that defendant-appellant “committed conversion by selling the real property on which plaintiff had an attorney’s lien without providing plaintiff her share of the proceeds.” Given that real property cannot be converted, plaintiff contended that defendant converted her attorney’s lien. However, the court concluded that while it may in some circumstances be possible to convert a lien, the lien here was not converted. “First, defendant’s actions were taken in regard to the real property and the proceeds, but not the lien or any document memorializing the lien. In this case, the lien was not property that was converted; the lien only acted as the basis for plaintiff’s interest in the real property. Second, to hold that plaintiff’s conversion claim succeeds in these circumstances, in which the property is sold and the effect on the lien is incidental to that sale, would create a loophole to the general rule that real property is not subject to conversion—actions taken with regard to the real property would be conversion if they had even an incidental effect on the lien.” As to plaintiff’s alternative argument that defendant converted the sale proceeds, while real-estate sale proceeds are personal property and can be converted, there are specific requirements as to when money can be converted. Plaintiff’s claim “did not relate to any specific monies. The lien was never recorded against the Escanaba property for a specific monetary value and thus was never made a formal encumbrance requiring resolution prior to closing. Plaintiff also did not claim that she was entitled to the specific money that the purchaser used to buy” it; she simply asserted “defendant should have given plaintiff her share of the proceeds as per the lien. Therefore, because neither the proceeds nor the lien were converted in this case, and because real property cannot be the subject of conversion,” the conversion claim failed. Given this, “the Court of Appeals did not need to reach the treble-damages issue.” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining question presented.
Applicability of the No-Fault Act (NFA); Property protection; Owner’s obligation to maintain no-fault insurance; Retroactive application of Dye v Esurance Prop & Cas Ins Co; Iqbal v Bristol W Ins Group; Pohutski v Allen Park; Whether Dye should be limited to cases involving PIP benefits & not be extended to cases involving property protection insurance; Insurance maintained by corporate entities; Terms of the policy; Fraud in the procurement; “Use of a motor vehicle as a motor vehicle”; Auto repair business exception; MCL 500.3101(1); Late-filed documents; Motion to strike affirmative defenses; Statute of limitations; MCL 500.3145(5); The relation-back doctrine; Fraudulent concealment; Equitable estoppel ; Breach of contract; Unjust enrichment; Greg Hibbitts Transport Company (GHTC); Beline Transportation Services (BTS)
The court affirmed summary disposition for defendants-GHTC, BTS, and others (referred to as the Hibbitts defendants) of plaintiffs’ tort claims on the ground the NFA applied and precluded the claims. Among other things, it rejected plaintiffs’ claim that Dye should not apply retroactively. Also, it declined to limit Dye’s application to cases involving PIP benefits and concluded that it applied to a determination of whether GHTC “maintained no-fault insurance as required by MCL 500.3101(1).” The case arose from an engine fire in “a parked semi-truck, which resulted in damage to a nearby building and the building’s contents.” Plaintiffs, the owner and the tenant of the building, sought to recover damages from several defendants. In addition to granting summary disposition on plaintiffs’ tort claims to the Hibbitts defendants, the trial court granted summary disposition to defendant-Fremont Insurance, holding that “plaintiffs’ claims for no-fault benefits were time-barred by MCL 500.3145(5) and that Fremont was entitled to summary disposition on plaintiffs’ claims for breach of contract and unjust enrichment under MCR 2.116(C)(8) and (C)(10).” On appeal, plaintiffs contended as to the Hibbitts defendant that the NFA “does not apply and that tort liability is not abolished under MCL 500.3135(3) because GHTC—as the registered owner of the truck— failed to maintain security as required by MCL 500.3101(1).” The court held that “under Dye GHTC, as the truck’s owner could fulfill its obligation to maintain insurance under MCL 500.3101(1) by having another person or entity maintain insurance.” Plaintiffs unsuccessfully offered “a long list of arguments why Dye should not apply and why the Fremont policy should not be held to satisfy MCL 500.3101(1) or to result in the abolition of tort liability under MCL 500.3135(3).” The court first rejected their assertion that Dye should not apply retroactively. It concluded that “Dye was not unforeseeable and did not announce a new principle of law by overruling clear past precedent.” Rather, Dye adhered to the NFA’s plain language “and reaffirmed the holding in Iqbal. Because Dye did not clearly establish a new principle of law, it does not satisfy Pohutski’s threshold question and should be applied retroactively.” The court further found there was “no statutory basis for concluding that Dye should only apply to PIP benefits or that some higher or different standard is required for an owner to ‘maintain’ property protection insurance.”
Sentencing; Scoring 10 points for OV 4 (psychological harm); MCL 777.34; People v Armstrong; Fear created solely during the offense; People v White; People v Lampe; Right to be sentenced on accurate information; People v Francisco; Inapplicability of Michigan’s rules of evidence at sentencing; MRE 1101(b)(3)
The court held that the trial court did not err by scoring OV 4 at 10 points because a preponderance of the evidence indicated the victim’s (C) fear and feeling of being unsafe continued beyond the robbery itself. Further, because the trial court used accurate information in calculating the guidelines, resentencing was not required. Defendant pled guilty to armed robbery and felony-firearm. He was sentenced to 168 months to 30 years for the former. In a prior appeal, the court reversed and remanded. It found that although the trial court erred by scoring 10 points for OV 4 based on the victim impact statement provided by a second victim (G), defendant’s participation in the armed robbery of C might reasonably support the scoring of OV 4. On remand, the trial court considered whether C’s victim impact statement supported the scoring of OV 4 at 10 points and found that it did. In the present appeal, the court rejected defendant’s argument that the trial court violated his right to be sentenced on accurate information as there was insufficient evidence to score points for OV 4. “[T]he trial court found that the victim was always in fear of the defendant’s return, that his fear was not fleeting or arose only when defendant engaged in the actions that led to his convictions.” Further, C stated that “whenever he heard noises he is fearful that he will be subjected to harm as it signals to him the possibility of the defendant’s return.” Finally, the trial court held that “‘not only does [the victim] have scared thinking, but “scared thinking always” . . . all the time . . . ’” Affirmed.
The No-Fault Act; (NFA); Insurer liability for PIP benefits; Priority; MCL 500.3114(4); Allstate Ins Co v State Farm Mut Auto Ins Co; MCL 500.3177(1); Waiver by failing to sufficiently raise an argument; Reimbursement; Michigan Assigned Claims Plan (MACP)
Concluding that the trial court did not err when it found defendant was not the insurer of the vehicle, the court affirmed. Nonparty-Krinsky’s vehicle, which was insured by defendant, was stolen. He later signed over the title to defendant in exchange for payment for coverage of the vehicle. Defendant did not register the title with the state. Six days after defendant took title to the vehicle, it was involved in a car accident in which claimants were injured. Plaintiff paid claimants in accordance with the NFA, as an assigned insurer by the MACP, and sought reimbursement from defendant for PIP benefits paid, claiming that it was a higher priority insurer under MCL 500.3114(4)(a). The case was “similar to Allstate, because Krinsky showed he did not intend to remain the registrant of the vehicle after it was stolen. Because the vehicle was stolen, Krinsky had no opportunity to take actions such as removing the license plate, but by accepting payment for the vehicle and signing over title to defendant, he showed his intent to no longer have an ‘insurable interest’ in the vehicle, and ‘did nothing to intimate that he was voluntarily remaining the registrant of the car.’” Plaintiff cited MCL 257.234(3). Following its logic, “because only six days had passed between Krinsky signing over title and the accident, the vehicle was not considered ‘without registration’ under the statute, and therefore Krinsky must still be considered the registrant of the vehicle.” The court addressed a similar argument in Allstate. As in that case, “the applicable provisions of the vehicle code do not compel a conclusion that the previous owner of the vehicle—here, Krinsky—was still the registrant. The provision cited by plaintiff provides only a situation in which the Secretary of State will consider a vehicle to be ‘without registration.’” Thus, its claim that “Krinsky should have still been considered the registrant of the vehicle at the time of the accident on the basis of the vehicle code” failed. Plaintiff’s second theory was that “because defendant was the owner of the vehicle at the time of the accident, defendant should have covered the PIP claims.” The trial court found that “even if defendant owned the vehicle, priority is based on the insurer of the owner or registrant of the vehicle, and there was no evidence in the record that defendant issued a policy on the vehicle after” it obtained the title. On appeal, plaintiff did not contend otherwise—it did “not point to any policy that defendant issued on the vehicle after it obtained ownership such that it would be a higher priority insurer.”
Trip & fall on a step; Premises liability; Buhalis v Trinity Continuing Care Servs; Premises possessor’s duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land; Lugo v Ameritech Corp, Inc; Open & obvious danger; Hoffner v Lanctoe; Principle that stairs are generally discoverable on casual inspection; Weakley v Dearborn Hts; Effect of poor lighting; Singerman v Municipal Serv Bureau, Inc; Distinguishing Knight v Gulf & W Props, Inc, Abke v Vandenberg, & Blackwell v Franchi
The court held that the trial court did not err by granting defendant-coffee shop summary disposition of plaintiff’s premises liability claim. Plaintiff tripped and fell on a three-inch step that separated the sidewalk from a red-tiled piazza at the front of the shop. She claimed that “the step was not observable because there was no paint or other warning to indicate the existence of the elevated surface upon entering the shop[,]” and that this hidden danger caused her fall. The court rejected her argument that the trial court erred by granting summary disposition for defendant because there remained a genuine issue of material fact as to whether the hazardous condition was open and obvious upon casual inspection. “[T]he lighting in this case is dissimilar to the lighting in Knight, Abke, and Blackwell. Indeed, although testimony supports that it was dark outside and that the area was ‘poorly lit,’ evidence nonetheless supports that there was lighting on the street and inside defendant’s shop, as well as colored lights decorating defendant’s building and the surrounding buildings.” Although plaintiff argued that “individuals who were crowded on the sidewalk cast shadows that obscured the step, evidence also supports that individuals were standing on the piazza before plaintiff fell. This elevation would have alerted a reasonably prudent person of the step.” Further, the dangers in Knight, Abke, and Blackwell were unexpected. The plaintiffs in those cases “received no warnings of the dangers and had no reason to suspect the dangers.” Here, though, “a reasonable person in plaintiff’s position would have anticipated a step in front of a store.” In addition, testimony supported that “the red-tiled flooring was distinguishable from the sidewalk, and photographs of the scene support this testimony. Although the three-inch step that separated the sidewalk from the red-tiled piazza at the front of defendant’s shop was consistent in color with the sidewalk, steps are a common occurrence that should reasonably be foreseen, and a reasonable person in plaintiff’s position would have foreseen the danger of potentially tripping on a step in front of a store.” Finally, unlike the “unique conditions addressed in Knight, Abke, and Blackwell, a reasonable person can expect to encounter a step at the threshold of a storefront. Because the condition is not unusual and is to be anticipated by a reasonable person, the allegedly poor lighting had no impact on whether the step was open and obvious.” Affirmed.
Adverse possession; Actual use; Jonkers v Summit Twp; Exclusive possession; Open & notorious; Houston v Mint Group, LLC; Adverse & hostile; Continuous for the 15-year statutory period; Dummer v US Gypsum Co
Holding that defendants/counterplaintiffs-the Berghorsts established all the elements of adverse possession, the court affirmed the trial court’s judgment ruling that the property in dispute belonged to them. Plaintiff/counterdefendant-Flegel and defendants in the second of these consolidated cases own lots within an area known as Pine River Hills (the court referred to them as the lot owners). “The Berghorsts own a parcel of land located west of Pine River Hills.” This dispute involved the ownership of land located west of a creek (Coe Creek) “and inside the calculated dimensions of the Pine River Hills plat.” The court found that the evidence showed “the Berghorsts and their guests physically used the land in a way that was reasonable on the basis of” its character, which was “mostly undeveloped woodlands and Coe Creek,” a 10- to 20-foot-wide stream. Thus, “with some exceptions, all the property owners generally used the area for leisure and recreational activities . . . .” Testimony also showed “that the Berghorsts and their guests used the areas west of the creek on Lots 16, 17, and 18 for activities such as hiking, hunting, and fishing ever since” the property was purchased in 1964. The court concluded the “trial court did not clearly err in finding actual use of the disputed lands.” Further, it did not err in “concluding that the Berghorsts had occupied the disputed property to the exclusion of others, especially considering the property’s character[.]” In addition to the posting of no trespassing signs, “the driveway leading to the Berghorst cabin was protected by a cable, and the property’s northern and southern borders had fences.” The court also determined “the evidence supported the trial court’s finding that the Berhorsts’ use of the property west of the creek for fishing, hunting and gathering was open and visible to the Pine River Hills landowners.” Among other things, a member of the family “placed a culvert on Lot 17 to help with drainage” and constructed “a permanent tree stand on Lot 18[.]” As to the adverse and hostile element, significant testimony was presented showing “that the Berghorsts and their guests believed that the property extended to the middle of Coe Creek, and that they treated the creek as the boundary between their property and Pine River Hills.” Finally, the court concluded that their “use of the property west of the Coe Creek for recreational activities was continuous for at least 15 years.”
Termination under § 19b(3)(k)(ix); “Sexual abuse”; MCL 722.622(z); “Sexual contact”; “Sexual penetration”; MCL 750.520a(r); Best interests of the children; In re White; Anticipatory neglect; In re AH
Holding that § (k)(ix) was met, and that termination was in the children’s (SEB and MNB) best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated based on his sexual abuse of SEB. On appeal, the court rejected his argument that the DHHS failed to prove a statutory ground for termination. “[T]he evidence support[ed] finding by clear and convincing evidence that respondent engaged in ‘sexual contact’ with SEB as that term is defined in MCL 750.520a(q), and thus that [he] engaged in ‘sexual abuse’ with a child as that term is defined in MCL 722.622(z). This in turn supports that respondent’s parental rights to SEB and MNB (as SEB’s sibling) were properly terminated under” § (k)(ix). In addition, the trial court did not err by finding “there was a reasonable likelihood that both children would be harmed if returned to respondent’s care in light of his sexual abuse of SEB.” Further, none of his arguments “warrant a conclusion that the trial court erred by crediting SEB’s statements.” The court also rejected his claim that termination was not in the children’s best interests. The trial court did not err by concluding that “ensuring SEB’s safety and well-being outweighed preserving her bond with respondent, which supports the court’s conclusion that termination was in SEB’s best interests.” Moreover, the trial court “properly applied the doctrine of anticipatory neglect to conclude that it was in MNB’s best interests to terminate respondent’s parental rights.” In sum, the trial court’s “overarching concern was the children’s safety and well-being, and it believed that, in light of respondent’s sexually assaulting SEB, neither child’s safety or wellbeing could be reasonably ensured if left in respondent’s care.” It did not err in this regard.
Termination under § 19b(3)(b)(i); Termination at the initial disposition; Exceptions to the reasonable reunification efforts requirement; MCL 712A.19a(2); MCL 722.638(1); Whether the trial court must specifically identify the relevant exception; Children’s best interests; Motion for reconsideration or a new trial based on the claim of effective assistance of counsel
Holding that respondent-father did not establish any grounds for relief, the court affirmed the trial court’s orders terminating his parental rights to three of his children. Respondent argued that the trial court erred in ordering termination “at the initial disposition without making the required finding of aggravated circumstances.” However, the court noted that there are exceptions to the reasonable reunification efforts requirement, and it concluded the trial court made findings establishing “beyond reasonable dispute that it determined that the exception” in MCL 712A.19a(2)(a) applied. The court determined that its “statements and findings were sufficient to establish that respondent engaged in conduct that fell within the conduct described under MCL 722.638(1), and that the children were either the child subjected to the abuse, or siblings of a child subjected to the abuse.” Thus, he did not show that the trial court plainly erred when it applied the law and determined that the DHHS could properly seek termination at the initial disposition. In addition, respondent did not identify any errors with the trial court’s findings or determination that the DHHS established grounds to terminate his parental rights under § (i). Thus, the court did not need to “address whether the trial court erred in any respect when it terminated” his rights on that basis. He did not show that the trial court clearly erred when it determined that the DHHS “had established at least one statutory ground for terminating his parental rights to each of the children.” Also, he failed to show that it “clearly erred when it found that termination was in the best interests of” all the children. Finally, he did not show that the trial court’s decision to deny his motion for reconsideration or a new trial based on ineffective assistance of counsel fell outside the range of principled outcomes.
Termination under §§ 19b(3)(b)(i), (c)(i), & (j); Effect of a parent’s failure to participate in & benefit from a service plan; In re White; Child’s best interests
Holding that termination was warranted under §§ (b)(i), (c)(i), and (j), and that it was also in the child’s best interests, the court affirmed the order terminating respondent-father’s parental rights. It concluded that the record contained “clear and convincing evidence from which the trial court reasonably could have found that the child was sexually abused and respondent was the perpetrator.” Further, even if the trial court had erred as to § (b)(i), it did not clearly err in determining §§ (c)(i) and (j) were also established. The record showed that “during the four years the child was a court ward, respondent could not obtain and maintain the stability and skills necessary to safely parent his special-needs child. Respondent would take one step forward, be granted additional privileges, and then engage in behavior that amounted to two steps backward.” While parenting classes was one service he completed, it was “clear that he did not benefit from” the classes. Among other things, when he was “granted unsupervised parenting time, he again physically abused the child.” In addition, he did not “adequately address his substance abuse issues, as he admitted to using marijuana every day and consuming alcohol to cope with the removal of his child. At least two witnesses testified that respondent frequently arrived at parenting time smelling of alcohol and behaving in a manner suggesting that he was under the influence.” The court noted that he “engaged in a wholesale failure to comply with the [trial] court’s order requiring weekly random drug and alcohol screens.” The evidence also showed that he “refused to participate fully in services intended to address his substance abuse issues.” Further, the court held that the trial court did not clearly err in finding termination was in the child’s best interests. “Children require parents who can provide them with a safe, stable, and permanent home. This was particularly important for this child because of his special needs.” There was also evidence indicating he “did not want to return to respondent’s home.” The child was thriving in a residential facility, and, significantly, while his “future was uncertain, a preponderance of the evidence established that respondent’s home was not a viable placement option because the child would not be safe in” his care. Termination was the only way to ensure he would not be able to again harm the child.
Termination under § 19b(3)(c)(i); Domestic violence; In re Jackisch/Stamm-Jackisch; Children’s best interests; In re Gonzales/Martinez; Due process; In re Brock; Use of videoconferencing technology to conduct the termination hearing; MCR 3.904(B); Administrative Order Nos. 2020-6 & 2020-19 (AOs 2020-6 & 2020-19)
The court held that clear and convincing evidence supported terminating respondent-mother’s parental rights under § (c)(i), that it was in her children’s best interests, and that her due process rights were not violated by the trial court’s use of videoconferencing technology to conduct the termination hearing when AOs 2020-6 and 2020-19 were in effect. The conditions that led to the “adjudication were an unclean and unsafe home, substance abuse, lack of parenting skills, and domestic violence.” The trial court focused on respondent’s record as to “drug screens, her parenting ability, and domestic violence.” The court noted that there was “scant evidence” about the frequency or nature of the domestic violence, and “not even a hint or suggestion that respondent was a perpetrator. In light of Jackisch/Stamm-Jackisch, domestic violence was not a proper basis for the” trial court to terminate her parental rights. However, it was undisputed that she “did not fully comply with her treatment plan’s drug screening requirements. In addition, although there was evidence in the court reports that respondent successfully completed supportive visitation classes and acted appropriately during in-person parenting time, there was no indication” she fully understood the children’s special needs “and how to accommodate them[.]” Further, her contact with them, “particularly in 2020, was inconsistent and did not evince a sensitivity to the children’s emotional needs or need for consistency.” Testimony from a DHHS worker indicated “it was very unlikely that respondent could make the major changes necessary to provide a safe and stable environment within a reasonable period of time. For these reasons,” the court upheld the trial court’s finding as to § (c)(i). As to the children’s best interests, while there was a strong parent-child bond, this was only one factor that had to be considered, “and all the other factors preponderated in favor of termination.” Finally, the court found that the trial court did not violate “MCR 3.904(B) as temporarily amended by the Supreme Court’s” AOs, and that its “decision to conduct the termination hearing via videoconferencing technology did not affect respondent’s substantial rights.” Affirmed.