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Construction Law (1) Full Text Opinion This summary also appears under Municipal e-Journal #: 73237 Case: Our EGR Homeowners Alliance v. City of E. Grand Rapids Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Fort Hood, and Swartzle Issues: Zoning; Review of a circuit court’s decision in an appeal rom a zoning board of appeals; Olsen v. Chikaming Twp.; The Michigan Zoning Enabling Act (MZEA) (MCL 125.3101 et seq.); “Aggrieved party”; MCL 125.3606(1); MCL 125.3605; Unger v. Forest Home Twp.; Spohn v. Van Dyke Pub. Sch. Summary: The court held that plaintiff-Our EGR Homeowners Alliance (Alliance) did not show that it was an aggrieved party to challenge the decision of defendant-City’s Commission to approve intervening appellee-Spectrum’s requested zoning variances and site plan. Thus, it affirmed the circuit court’s dismissal of Alliance’s appeal. The case arose out of a construction project at Spectrum. “According to the City, the appeal must fail because Olsen is binding on the court and Alliance” admitted that it could not meet this standard. It was true that Alliance argued that the court improperly interpreted provisions of the MZEA in Olsen. However, it also asserted that, “regardless of the analysis in Olsen, Alliance ‘members plainly meet the statutory test’ as aggrieved parties.” The court held that this case was comparable to Olsen. “Claims of aesthetic changes are insufficient to constitute special damages.” Further, like the septic systems at issue in Olsen, “vibrations from construction may affect nearby landowners. However, as was also the case” there, Alliance did not “show that its claim that the proposed construction will damage the foundations or driveways of nearby homes was ‘more than speculation or anticipation of future harm.’” It did not provide “any evidence disputing Spectrum’s claim that the construction will not cause harm to adjacent homes. Further, Alliance members submitted their own site plan proposals for Spectrum’s consideration that would require construction” and admitted that the existing parking garage had to be replaced. Alliance did not establish that “Spectrum’s requested variances and proposed site plan will result in more damage than their own proposed plans or the simple replacement of the existing parking garage. In addition, Spectrum was granted variances for parking setbacks and maximum lot coverage in 2008.” Alliance did not show that “damage (or additional damage) will occur as a result of the approval of the requested variances.” It failed to present “any evidence that the City Commission’s approval of the current variances and proposed site plan will cause the harm that it anticipates.” Because it failed to show “‘special damages different from those of others within the community,’ it was not ‘aggrieved’ pursuant to MCL 125.3605,” and could not invoke the circuit court’s jurisdiction. Full Text Opinion

Consumer Rights (1) Full Text Opinion e-Journal #: 73322 Case: Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc. Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Stranch and White; Dissent – Gibbons Issues: Telephone Consumer Protection Act (TCPA); 47 USC § 227; Whether the recent case of PDR Network, LLC Carlton & Harris Chiropractic, Inc. impacted the court’s prior determination in the case; 2006 FCC final order; The Hobbs Act; 28 USC § 2342(1); Chrysler Corp. v. Brown; Perez v. Mortgage Bankers Ass’n; The district court’s interpretation of Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc.; Commercial Money Ctr., Inc. v. Illinois Union Ins. Co.; Whether the unsolicited fax qualified as an advertisement within the meaning of the TCPA; §§ 227(a)(5) & (b)(1)(C); Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm., Inc. (2d Cir.); A grant, vacate, & remand order (GVR) Summary: [This appeal was from the ED-MI.] On remand from the Supreme Court, the court held that plaintiff-dental practice (Fulton) plausibly alleged that defendants’ fax was an “unsolicited advertisement” under the TCPA where the fax allegedly served as a “pretext” for a commercial solicitation. Plaintiff sued defendants under the TCPA for sending it an unsolicited fax without an opt-out provision as an alleged pretext to send additional marketing materials for defendants’ data bases. Defendants argued that the fax was not required to have an opt-out provision because it did not meet the TCPA’s definition of an advertisement. The district court dismissed the case for failure to state a claim. The court reversed, and defendants filed for a writ of certiorari. The Supreme Court issued a GVR for review under its recent case, PDR Network. The court held that unlike that case, its decision was not based on the 2006 FCC final order or the Hobbs Act, but instead determined that plaintiff had stated a claim based on the TCPA, circuit precedent, and other relevant law. In Sandusky, the court held that “to qualify as an unsolicited advertisement under the TCPA, a fax ‘must promote goods or services that are for sale, and the sender must have profit as an aim.’” The district court erred when it ruled that Sandusky required that "the fax must propose a direct commercial transaction between the sender and the recipient” because the Sandusky decision provides for TCPA coverage “where the fax is ‘an indirect commercial solicitation, or pretext for’ such a solicitation.” It also erred when it declined to review plaintiff’s exhibits attached to the complaint and ruled that Sandusky limited its review to the face of the fax. Considering whether the unsolicited fax “qualified as an advertisement” within the meaning of the TCPA, the court concluded that plaintiff alleged a plausible TCPA claim because it “adequately alleged that the fax Fulton received was an unsolicited advertisement because it served as a commercial pretext for future advertising opportunities.” Thus, the court reversed summary judgment for defendants and remanded. Full Text Opinion

Courts (1) Full Text Opinion This summary also appears under Criminal Law e-Journal #: 73251 Case: People v. Chandler Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Cavanagh, and M.J. Kelly Issues: Sentencing; Imposition of court costs; MCL 769.1k(1)(b)(iii); Illegal tax claim; People v. Cameron; Waiver of claim as to the conditions of probation; People v. Carter; Whether the trial court delegated its authority to the probation officer Summary: Under Cameron, the court held that defendant’s claim the court costs imposed on him were an illegal tax had no merit. He waived his claim that the trial court erred in requiring certain probation conditions, and the court concluded that the trial court did not delegate its authority to order probation conditions to the probation officer. He pled guilty to first-degree retail fraud. The trial court sentenced him as a second offense habitual offender “to 70 days in jail, with credit for 54 days served, followed by 36 months of probation, with the sentences to be served concurrently. As part of his probation, he was to be placed on a continuous alcohol monitoring system (SCRAM) or sober-link program requiring electronic alcohol monitoring, not to possess any alcohol, undergo substance abuse and mental health evaluations and complete any recommended treatment ‘as directed by the probation officer,’ and to pay $400 in court costs.” He argued that imposing “court costs in general is unconstitutional because it violates the Distinct Statement Clause and the doctrine of separation of powers.” But the court considered “the constitutionality of MCL 769.1k in Cameron and held the opposite.” Given that he requested substance abuse treatment as part of his probation, he waived his claim that the trial court erred in “requiring alcohol treatment and the use of a SCRAM device as part of his probation conditions because there was not a rational relationship between the conditions and rehabilitation of his convictions.” As to his contention that the trial court abdicated its discretion to order his probation conditions, the record showed that it ordered him “to undergo substance abuse and mental health evaluations and testing. Referring to the outcome and potential recommendations of the evaluation and testing, the trial court ordered [him] to participate in ‘treatment as directed by the probation officer.’” Thus, it did not abdicate its role, but rather instructed “the probation officer to follow-up and follow through with [defendant’s] testing outcomes by implementing any specific substance abuse treatment that [he] requested and the trial court ordered.” Affirmed. Full Text Opinion

Criminal Law (7) Full Text Opinion e-Journal #: 73323 Case: People v. Jemison Court: Michigan Supreme Court ( Opinion ) Judges: McCormack, Markman, Zahra, Bernstein, Clement, and Cavanagh; Not participating – Viviano Issues: Whether by allowing the witness’s two-way interactive video testimony over the defendant’s objection, the trial court violated his right of confrontation &, if so, whether the error was harmless; People v. Bruner; Const. 1963, art. 1, § 20; Crawford v. Washington; People v. Pesquera; Maryland v. Craig; Ohio v. Roberts; The reliability-balancing approach; Rodriguez de Quijas v. Shearson/American Express, Inc.; Melendez-Diaz v. Massachusetts Summary: Holding that by allowing the witness’s two-way, interactive video testimony over the defendant’s objection, the trial court violated his right of confrontation, the court reversed the judgment of the Court of Appeals and remanded for further proceedings, including deciding whether that violation was harmless beyond a reasonable doubt. He was convicted of one count of CSC I and acquitted of the other count. The court applied Craig “only to the specific facts it decided: a child victim may testify against the accused by means of one-way video (or a similar Craig-type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.” The witness in this case was neither the victim nor a child; Crawford thus provides the applicable rule. “The Court of Appeals answered the wrong question when it held that ‘the trial court appropriately dispensed with the face-to-face requirement.’” The court held that Crawford “makes clear, for testimonial evidence, that requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.” The parties did not dispute that witness-C, the laboratory analyst for serological processing and further DNA testing evidence, was testimonial. And the court agreed. The court held that defendant “had a right to face-to-face cross-examination;” C was available, and “defendant did not have a prior chance to cross-examine him.” Defendant’s “state and federal constitutional rights to confrontation were violated by the admission of [C’s] two-way, interactive video testimony.” Full Text Opinion Full Text Opinion e-Journal #: 73255 Case: People v. Brito Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Cavanagh, and M.J. Kelly Issues: Sentencing; Scoring of OV 4; Victim’s psychological injury; MCL 777.34(1); Serious “psychological injury requiring professional treatment occurred to a victim”; MCL 777.34(1)(a); MCL 777.34(2); People v. Armstrong; People v. McGraw; People v. Sargent; People v. Lampe; People v. Dixon-Bey; MCL 750.530(1) Summary: The court reversed the trial court’s scoring of OV 4 and remanded for the trial court to consider whether C’s victim impact statement might support the scoring of OV 4 against defendant. He pled guilty to armed robbery and felony-firearm. He was sentenced to 168 to 360 months for armed robbery to be served consecutively to 2 years for felony-firearm. He argued the trial court improperly scored OV 4. Specifically, he contended that the record lacked sufficient evidence showing psychological harm to the victim due to his conduct. Defendant’s criminal actions began when he demanded “anything” from victims-H and G, while pointing a gun at H. G refused, leading codefendant-M to shoot him in the leg. Defendant’s criminal conduct, to which he pled guilty, involved the armed robbery of H and G. Likewise, defendant also participated in the armed robbery of C. H did not submit a victim impact statement. G did submit a victim impact statement, which was partially read at defendant’s sentencing. G suffered a gunshot wound to his inner thigh that resulted in a broken bone. Because of this, G underwent surgery to repair the bone and insert a plate. G “stated that following the incident, he did not work for two months, suffered stress due to monetary concerns, and became depressed.” Further, the inability of G’s boss to help him through this period contributed to the difficulties. However, G's victim impact statement addressed injuries resulting solely from the gunshot wound, an act committed by M and not the defendant. Defendant was charged with, and pled guilty to, armed robbery and felony-firearm, both of which were factually independent of M’s act of shooting G in the leg. However, after M shot G, C’s “money, cell phone, gold necklace, and tablet were taken while he was inside the residence.” C was also held at gunpoint with G. The trial court record provided that defendant admitted taking a cell phone from the residence. Thus, it was reasonable to infer that C was a victim of defendant’s conduct of armed robbery. Moreover, C “provided a victim impact statement that indicated a continuing fear that defendant and” M would return. Similarly, C stated that noises caused him to think that defendant and M “did in fact come back, or might come back in the future.” However, the trial court neither addressed nor referenced C at sentencing. While C’s victim impact statement might support the scoring of OV 4, the court “should avoid supplementing or otherwise justifying the trial court’s otherwise insufficient reasoning with reasoning of its own.” The court held that the “trial court erred when it assessed 10 points for OV 4 based on the victim impact statement provided by [G], as the psychological injuries of which he complained . . . related solely to the shooting committed by [M], not the armed robbery committed by defendant.” However, defendant’s participation in the armed robbery of C might reasonably support the scoring of OV 4 against him. Full Text Opinion Full Text Opinion e-Journal #: 73246 Case: People v. Buelteman Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, Boonstra, and Letica Issues: Other acts of domestic violence; MCL 768.27b(1); People v. Cameron; Domestic violence defined; MCL 768.27b(6); MRE 403 balancing test; People v. Watkins; People v. Railer; People v. Propp; Presumption jurors follow their instructions; People v. Abraham; Whether an error is outcome determinative; People v. Feezel; Credibility; People v. Dunigan; Flight; People v. Unger; Sentencing; Scoring of 10 points for OV 9; People v. McGraw; People v. Sargent; MCL 777.39(1)(c); People v. Nickens; People v. Morson; People v. Davis Summary: The court concluded that even if it were to determine that the trial court abused its discretion by admitting the other acts evidence, defendant-Buelteman would not be entitled to a new trial because it was not more probable than not that its admission undermined the reliability of the verdict. Also, because a preponderance of the evidence supported that the victim’s cousin was in danger of physical injury during the ongoing assault on the victim, the trial court did not err by assessing 10 points for OV 9. He was convicted of domestic violence, third offense and sentenced as a second-offense habitual offender to 26 months to 7-1/2 years. He argued that the trial court abused its discretion by admitting evidence of his other acts of domestic violence against the victim under MCL 768.27b. He conceded that his other acts of twisting her arm and slapping her were admissible under MCL 768.27b. But he argued that “evidence that he forced the victim to engage in sexual acts with his elderly relative by threatening her with physical violence and by pushing her head down ‘had only slight probative value.’” Thus, he argued that the trial court abused its discretion by failing to exclude this evidence under MRE 403. The court held that “the challenged evidence had significant probative value for establishing [his] propensity to engage in domestic violence with the victim.” It was also relevant to assess her credibility, “which was of particular importance in light of Buelteman’s argument that the victim’s testimony was not reliable. Finally, the other acts provided context for understanding the relationship and background of Buelteman and the victim.” Thus, the court held that “this was not marginally probative evidence that risked creating unfair prejudice.” Although he claimed that it was dissimilar to the 2018 incident, the other acts evidence involved the same victim and showed “a pattern of violence by Buelteman against the victim, thereby adding to its probative value. The risk that the jury would be distracted by extraneous considerations, such as bias, sympathy, anger, or shock, was addressed by the trial court’s instructions” about the permissible use of the evidence. The jurors were specifically instructed “that they could consider the prior acts to determine whether Buelteman committed the charged offense, but could not convict [him] solely because they believed he was guilty of the other bad conduct.” Further, any error was harmless given the overwhelming evidence of his guilt. Affirmed. Full Text Opinion Full Text Opinion This summary also appears under Courts e-Journal #: 73251 Case: People v. Chandler Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Gadola, Cavanagh, and M.J. Kelly Issues: Sentencing; Imposition of court costs; MCL 769.1k(1)(b)(iii); Illegal tax claim; People v. Cameron; Waiver of claim as to the conditions of probation; People v. Carter; Whether the trial court delegated its authority to the probation officer Summary: Under Cameron, the court held that defendant’s claim the court costs imposed on him were an illegal tax had no merit. He waived his claim that the trial court erred in requiring certain probation conditions, and the court concluded that the trial court did not delegate its authority to order probation conditions to the probation officer. He pled guilty to first-degree retail fraud. The trial court sentenced him as a second offense habitual offender “to 70 days in jail, with credit for 54 days served, followed by 36 months of probation, with the sentences to be served concurrently. As part of his probation, he was to be placed on a continuous alcohol monitoring system (SCRAM) or sober-link program requiring electronic alcohol monitoring, not to possess any alcohol, undergo substance abuse and mental health evaluations and complete any recommended treatment ‘as directed by the probation officer,’ and to pay $400 in court costs.” He argued that imposing “court costs in general is unconstitutional because it violates the Distinct Statement Clause and the doctrine of separation of powers.” But the court considered “the constitutionality of MCL 769.1k in Cameron and held the opposite.” Given that he requested substance abuse treatment as part of his probation, he waived his claim that the trial court erred in “requiring alcohol treatment and the use of a SCRAM device as part of his probation conditions because there was not a rational relationship between the conditions and rehabilitation of his convictions.” As to his contention that the trial court abdicated its discretion to order his probation conditions, the record showed that it ordered him “to undergo substance abuse and mental health evaluations and testing. Referring to the outcome and potential recommendations of the evaluation and testing, the trial court ordered [him] to participate in ‘treatment as directed by the probation officer.’” Thus, it did not abdicate its role, but rather instructed “the probation officer to follow-up and follow through with [defendant’s] testing outcomes by implementing any specific substance abuse treatment that [he] requested and the trial court ordered.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 73243 Case: People v. Foy Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Fort Hood, and Swartzle Issues: Confidential communication under the cleric-congregant privilege; People v. Bragg; MCL 600.2156; MCL 767.5a(2); Expert witness who vouched for the victim’s credibility; MRE 702; People v. Peterson; People v. Thorpe; People v. Palmer; People v. Nowack; Ineffective assistance of counsel; Failure to object to the admission of the expert witness’s testimony; People v. Head; People v. Heft; Smith v. Spisak; People v. Trakhtenberg; Strickland v. Washington; People v. Carbin; Trial strategy; People v. Unger; People v. Jackson; Cumulative effect of the alleged errors; People v. Knapp; People v. Dobek Summary: The trial court did not err when it held that the cleric-congregant privilege under MCL 767.5a(2) was inapplicable. Also, the court could not conclude that the admission of the expert witness’s testimony here deprived defendant of his substantial rights. Further, he was not denied the effective assistance of counsel. Finally, because no error was established, reversal was not warranted on the basis of cumulative error. He was convicted of three counts of CSC I. Defendant argued that the trial court erred when it denied his motion to suppress his pastor’s testimony because it was not a confidential communication under the cleric-congregant privilege. His “pastor testified that when defendant first admitted to the pastor that he was having intercourse with his step-daughter, the two did, indeed, pray together about the situation. At the same time, the pastor testified that he was a friend of defendant’s and that defendant also asked him in that conversation to place a telephone call to his ex-wife and accompany defendant to a meeting with his attorney the following morning.” The next day, “defendant again admitted to having sexual intercourse with his step-daughter, and during that time, the pastor provided no advice or input other than praying for the family outside afterwards.” The trial court determined that he “had not necessarily communicated with the pastor as a pastor, but instead as a friend from whom defendant sought ‘help . . . with his mounting serious legal predicament.’” The court discerned no clear error regarding that conclusion. And, even more importantly, it noted that he did “not even dispute that the third element from” Bragg was met. The “pastor explicitly testified at the hearing on defendant’s motion to preclude the pastor’s testimony that he had concluded with his church elders that communications are not considered confidential in their denomination when they involve ‘harm to anyone else or their immediate family,’ or when the communication demonstrates that the congregant is a ‘threat to themselves or anyone else.’” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 73239 Case: People v. Seals Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, Boonstra, and Letica Issues: Prosecutorial error; People v. Noble; People v. Brownridge (On Remand); Ineffective assistance of counsel; People v. Trakhtenberg; Strickland v. Washington; People v. Vaughn; Matters of trial strategy; People v. Ackley; People v. Petri; Decision not to object; People v. Unger; Failure to raise a futile objection; People v. Putman; Presumption that counsel’s advice that defendant not testify was sound trial strategy; People v. Tommolino Summary: Rejecting defendant’s prosecutorial error and ineffective assistance of counsel claims, the court affirmed his felonious assault conviction. He hit the victim, a neighbor, “twice with a stick, causing injuries to his forearm, head, and eye. At trial, the victim testified that during the attack defendant said, ‘I’ve got you now, f***er,’ and ‘that’s for hitting my kid.’ Physical evidence corroborated the victim’s testimony, including the stick used in the attack and defendant’s shoes that were found at the scene. Defendant’s statements were also corroborated by photographic evidence taken at the scene of spray-painted derogatory remarks, directed at the victim, on items located outside defendant’s residence.” He argued on appeal that “the admission of evidence of the derogatory remarks against the victim, including testimony and photographs, violated the parties’ prior stipulation to limit the trial testimony to the events of the day of the alleged assault.” He also contended that it was prosecutorial error for the prosecution to offer this evidence. The court disagreed, concluding that there was “no indication that the evidence was not offered in good faith. Indeed, the prosecutor indicated that the evidence was being introduced to corroborate defendant’s statements.” In addition, it was not outcome-determinative because “ample evidence” existed for the jury to find him guilty beyond a reasonable doubt without it. The victim suffered “multiple severe injuries, including blindness, and law enforcement located pieces of the stick used to attack the victim and defendant’s shoes at and near the scene. Thus, the admission of this evidence was not plainly erroneous.” The court also held that defense counsel was not ineffective for failing to object to the evidence on the basis that it violated the stipulation, or because that defendant did not testify. Defense counsel referenced the derogatory remarks in closing argument to suggest a self-defense theory, and defendant failed to overcome the presumption that counsel’s advice not to testify was sound trial strategy. Full Text Opinion Full Text Opinion e-Journal #: 73244 Case: People v. Self Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Jansen; Concurrence - Boonstra; Dissent - Markey Issues: Sentencing; The sentencing court’s authority to modify a sentence; MCR 6.429(A); People v. Whalen; People v. Mitchell Summary: The court held that the trial court erred by amending defendant’s original sentence. He was convicted of two counts of delivery of a controlled substance. The trial court initially sentenced him to 24 months to 20 years, then amended the judgment of sentence to reflect that he was to serve 72 months to 20 years. On appeal, the court agreed with defendant that the trial court erred by amending a valid sentence. “Defendant’s original sentence . . . was not invalid.” Indeed, it was “below the minimum sentencing guidelines range, but that alone does not render it invalid.” It noted that the register of actions indicated that “the original judgment of sentence was entered on June 26, 2018, following the first sentencing hearing, and an order of commitment was entered on that same date.” The order of commitment reflected his sentence of 24 months to 20 years. “The trial court lacked authority to amend a valid sentence after that date.” Thus, it “exceeded its authority by amending defendant’s sentence on its own initiative.” Defendant’s sentence of 72 months to 20 years “cannot stand.” Reversed, and remanded for the limited purpose of correcting defendant’s judgment of sentence to accurately reflect his sentence of 24 months to 20 years. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Real Property e-Journal #: 73254 Case: Black v. Hill Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, Boonstra, and Letica Issues: Action to void a real property conveyance; Insanity for purposes of MCL 600.5851 (tolling the statute of limitations); Insane defined; MCL 600.5851(2); Lemmerman v. Fealk; Makarow v. Volkswagen of Am., Inc.; Hill v. Clark Equip. Co.; Davidson v. Baker-Vander Veen Constr. Co.; Burden of proof; Warren Consol. Sch. v. W R Grace & Co.; Undue influence; In re Erickson Estate; Public policy argument; Terrien v. Zwit; Respecting the plain language of a statute; McQueer v. Perfect Fence Co. Summary: The court held that ample evidence existed that plaintiff was continuously insane for purposes of MCL 600.5851 from 1976 until 2017, when she filed this action, and that defendant unduly influenced her as to the 1976 real property conveyance at issue. Thus, it affirmed the trial court’s order voiding the property transfer. “Plaintiff suffers from mental illnesses, the most significant of which are bipolar disorder and schizoaffective disorder, which have affected her throughout her life.” Her grandmother conveyed the property (farmland) to her in 1974. Plaintiff suffered a mental breakdown in 1976 and was hospitalized for weeks. After she was discharged the next month, she conveyed the property to defendant, her mother. Plaintiff asserted that “defendant unduly influenced her to convey the property.” As to the tolling of the statute of limitations, defendant argued that plaintiff tried “to ‘tack’ successive disabilities in violation of MCL 600.5851(4).” But while she was correct that plaintiff’s diagnoses changed over time, two medical “experts explained that bipolar disorder and schizoaffective disorder were similar and often difficult to distinguish from each other, which would explain why some diagnoses since 1976 included only one or the other. Thus, there was evidence that plaintiff had an ongoing mental illness[.]” The court also rejected “defendant’s contentions that plaintiff was not continuously insane and thus there were periods in which” she could have filed suit. It concluded that the record evidence supported the trial court’s findings as to her insanity. Plaintiff also established a presumption of undue influence. Testimony showed that she “was entirely dependent on her parents during” the period surrounding the transfer. She “had recently been hospitalized and she was in a vulnerable state of mind.” Defendant clearly benefited from the transfer. “Plaintiff testified that she was under the effects of potent antipsychotic drugs, and she did not remember how she arrived at or left the attorney’s office” where she executed the conveyance. Both doctors testified that those “drugs were extremely powerful and capable of causing cognitive impairment.” Defendant did not offer sufficient evidence to rebut the presumption. Full Text Opinion

Municipal (1) Full Text Opinion This summary also appears under Construction Law e-Journal #: 73237 Case: Our EGR Homeowners Alliance v. City of E. Grand Rapids Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Fort Hood, and Swartzle Issues: Zoning; Review of a circuit court’s decision in an appeal rom a zoning board of appeals; Olsen v. Chikaming Twp.; The Michigan Zoning Enabling Act (MZEA) (MCL 125.3101 et seq.); “Aggrieved party”; MCL 125.3606(1); MCL 125.3605; Unger v. Forest Home Twp.; Spohn v. Van Dyke Pub. Sch. Summary: The court held that plaintiff-Our EGR Homeowners Alliance (Alliance) did not show that it was an aggrieved party to challenge the decision of defendant-City’s Commission to approve intervening appellee-Spectrum’s requested zoning variances and site plan. Thus, it affirmed the circuit court’s dismissal of Alliance’s appeal. The case arose out of a construction project at Spectrum. “According to the City, the appeal must fail because Olsen is binding on the court and Alliance” admitted that it could not meet this standard. It was true that Alliance argued that the court improperly interpreted provisions of the MZEA in Olsen. However, it also asserted that, “regardless of the analysis in Olsen, Alliance ‘members plainly meet the statutory test’ as aggrieved parties.” The court held that this case was comparable to Olsen. “Claims of aesthetic changes are insufficient to constitute special damages.” Further, like the septic systems at issue in Olsen, “vibrations from construction may affect nearby landowners. However, as was also the case” there, Alliance did not “show that its claim that the proposed construction will damage the foundations or driveways of nearby homes was ‘more than speculation or anticipation of future harm.’” It did not provide “any evidence disputing Spectrum’s claim that the construction will not cause harm to adjacent homes. Further, Alliance members submitted their own site plan proposals for Spectrum’s consideration that would require construction” and admitted that the existing parking garage had to be replaced. Alliance did not establish that “Spectrum’s requested variances and proposed site plan will result in more damage than their own proposed plans or the simple replacement of the existing parking garage. In addition, Spectrum was granted variances for parking setbacks and maximum lot coverage in 2008.” Alliance did not show that “damage (or additional damage) will occur as a result of the approval of the requested variances.” It failed to present “any evidence that the City Commission’s approval of the current variances and proposed site plan will cause the harm that it anticipates.” Because it failed to show “‘special damages different from those of others within the community,’ it was not ‘aggrieved’ pursuant to MCL 125.3605,” and could not invoke the circuit court’s jurisdiction. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion e-Journal #: 73236 Case: Pough v. 29th St. Hospitality, Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly, Fort Hood, and Swartzle Issues: Slip & fall; Premises liability; Open & obvious danger; Joyce v. Rubin; Bullard v. Oakwood Annapolis Hosp.; Hoffner v. Lanctoe; Whether the condition was effectively unavoidable; Lugo v. Ameritech Corp., Inc.; Whether the wet floors presented an unreasonable risk of harm; Bertrand v. Alan Ford, Inc. Summary: Holding that the dampness of the freshly-cleaned carpets in defendant’s hotel was an open and obvious condition, and that plaintiff failed to establish a special aspect existed, the court affirmed summary disposition for defendant. When she returned to the elevator after visiting a friend, “she slipped when transitioning between the carpet in the hallway and the tile in the elevator lobby. She said that it was like stepping on oil.” Her friend also slipped but did not fall. Plaintiff “testified that a gentleman who came to help her said that the area was ‘slippery as snot,’ and two other hotel patrons also commented that the floor was slippery.” She sustained a knee fracture. “Defendant’s general manager testified that she placed six red warning signs on each floor of the hotel to warn patrons of the wet floor.” A photo of plaintiff sitting where she slipped and fell showed “that one of these signs was hanging directly above” her head. The court concluded that objectively viewing the facts, “reasonable minds could not disagree that defendant exercised reasonable care.” Plaintiff’s deposition testimony showed that she was aware “the first floor of defendant’s premises was ‘slippery.’ Based on these facts, it is reasonable to expect that an average person with ordinary intelligence would have discovered, upon casual inspection, that the transition between the carpet and the tile floor could have been slippery.” The court also rejected plaintiff’s assertion that “the condition was effectively unavoidable.” In contrast to the hypothetical in Lugo, this case did not present “a situation in which standing water is covering the floor and there is only one exit. Here, based on plaintiff’s deposition testimony, the floors were wet, but passable. Further differentiating this case from Lugo, there was more than one exit because plaintiff could have used the stairs rather than the elevator.” There was no record evidence supporting her assertion “that the ‘same slippery conditions’ would have existed ‘at the other end of the hallway[.]’” She did not establish that the wet floors posed “an unreasonable risk of harm.” Full Text Opinion

Real Property (2) Full Text Opinion This summary also appears under Litigation e-Journal #: 73254 Case: Black v. Hill Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, Boonstra, and Letica Issues: Action to void a real property conveyance; Insanity for purposes of MCL 600.5851 (tolling the statute of limitations); Insane defined; MCL 600.5851(2); Lemmerman v. Fealk; Makarow v. Volkswagen of Am., Inc.; Hill v. Clark Equip. Co.; Davidson v. Baker-Vander Veen Constr. Co.; Burden of proof; Warren Consol. Sch. v. W R Grace & Co.; Undue influence; In re Erickson Estate; Public policy argument; Terrien v. Zwit; Respecting the plain language of a statute; McQueer v. Perfect Fence Co. Summary: The court held that ample evidence existed that plaintiff was continuously insane for purposes of MCL 600.5851 from 1976 until 2017, when she filed this action, and that defendant unduly influenced her as to the 1976 real property conveyance at issue. Thus, it affirmed the trial court’s order voiding the property transfer. “Plaintiff suffers from mental illnesses, the most significant of which are bipolar disorder and schizoaffective disorder, which have affected her throughout her life.” Her grandmother conveyed the property (farmland) to her in 1974. Plaintiff suffered a mental breakdown in 1976 and was hospitalized for weeks. After she was discharged the next month, she conveyed the property to defendant, her mother. Plaintiff asserted that “defendant unduly influenced her to convey the property.” As to the tolling of the statute of limitations, defendant argued that plaintiff tried “to ‘tack’ successive disabilities in violation of MCL 600.5851(4).” But while she was correct that plaintiff’s diagnoses changed over time, two medical “experts explained that bipolar disorder and schizoaffective disorder were similar and often difficult to distinguish from each other, which would explain why some diagnoses since 1976 included only one or the other. Thus, there was evidence that plaintiff had an ongoing mental illness[.]” The court also rejected “defendant’s contentions that plaintiff was not continuously insane and thus there were periods in which” she could have filed suit. It concluded that the record evidence supported the trial court’s findings as to her insanity. Plaintiff also established a presumption of undue influence. Testimony showed that she “was entirely dependent on her parents during” the period surrounding the transfer. She “had recently been hospitalized and she was in a vulnerable state of mind.” Defendant clearly benefited from the transfer. “Plaintiff testified that she was under the effects of potent antipsychotic drugs, and she did not remember how she arrived at or left the attorney’s office” where she executed the conveyance. Both doctors testified that those “drugs were extremely powerful and capable of causing cognitive impairment.” Defendant did not offer sufficient evidence to rebut the presumption. Full Text Opinion Full Text Opinion e-Journal #: 73247 Case: White v. Ochalek Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Cameron, Boonstra, and Letica Issues: Riparian rights dispute over a piece of property between the parties’ respective properties; Hearsay; MRE 801(c); Hearsay exceptions; MRE 802; Campbell v. Department of Human Servs.; Principle that statements offered to show that they were made or to show their effect on the listener are not hearsay; Hilliard v. Schmidt; Waiver; Principle that a party who expressly agrees with an issue in the trial court cannot then take a contrary position on appeal; Grant v. AAA MI/WI, Inc.; Harboring error as an appellate parachute; Auto-Owners Ins. Co. v. Compass Healthcare PLC; Quiet title; Acquiescence; Sackett v. Atyeo; Killips v. Mannisto; Adverse possession; Marlette Auto Wash, LLC v. Van Dyke SC Props., LLC; “Hostility”; Jonkers v. Summit Twp.; The 15-year limitations period for adverse possession; MCL 600.5801(4); Accrual; Adams v. Adams; Disseisin; MCL 600.5829(1); Kipka v. Fountain; Principle that the trial court lacks jurisdiction to issue a declaratory judgment where there is no actual controversy; Tenneco Inc. v. Amerisure Mut. Ins. Co.; McGill v. Auto Ass’n of MI; Credibility; Patel v. Patel Summary: The court held that the trial court did not err by denying plaintiff’s request for declaratory relief and finding he failed to establish title to the disputed property through acquiescence or adverse possession. Plaintiff filed this action claiming he was entitled to declaratory relief because defendants did not assert a claim to a disputed piece of land between their respective properties within the applicable statutory limitations period. The trial court denied his request to quiet title and for declaratory relief. On appeal, the court first rejected his argument that the trial court abused its discretion by admitting hearsay evidence in the form of a letter he received from defendants’ attorney about his installation of lights on the disputed property, noting he “affirmatively consented” to it at trial. The letter also “was not offered to prove the truth of the matter asserted. Rather, it was offered to show the effect on the listener.” Defense counsel’s “line of questioning related to plaintiff’s interpretation of the letter.” The court then rejected his claim that he acquired title to the disputed property by acquiescence or adverse possession, noting that defendants’ attorney’s letter showed “plaintiff’s awareness that [they] did not acquiesce to the seawall being the boundary line because in 2010, they informed [him] he had placed lights on the disputed seawall portion that belonged to them, not him.” Further, after they conducted a boundary line survey in 2009, they placed a stake in the ground to show this boundary. In addition, “although plaintiff testified that he was the only person who backfilled and seeded the disputed property area,” defendants disputed this claim. Moreover, the evidence did “not establish that the parties treated the seawall as the boundary line for at least 15 years to establish a claim of adverse possession.” And the statutory limitations period to establish a claim of adverse possession had not expired. Thus, “there was no actual controversy, and the trial court lacked jurisdiction to issue a declaratory judgment.” Affirmed. Full Text Opinion

Termination of Parental Rights (1) Full Text Opinion e-Journal #: 73265 Case: In re Johnson Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Cameron, Boonstra, and Letica Issues: Termination under § 19b(3)(c)(i); In re Sours; In re Trejo Minors; In re Moss Minors; In re White; In re Powers; Child’s best interests; In re Laster; In re Moss Minors; In re Jones; In re BZ; In re VanDalen; In re Frey; In re Gillespie; In re Olive/Metts Minors; Placement with relatives; MCL 712A.12a(1)(j); In re Schadler Summary: Holding that § (c)(i) existed and termination of respondent-mother’s parental rights was in the child’s (E) best interests, the court affirmed. The trial court did not clearly err by holding that the conditions that led to her adjudication continued to exist and that there was no reasonable likelihood that they would be rectified in a reasonable time, considering E’s age. “Respondent admitted in her plea that she had a substance abuse issue involving [meth] that negatively impacted her ability to parent, and that she needed services.” At the termination hearing, over a year later, she had made no effort to deal with her substance abuse issues. “She had absconded from a jail diversion program, had not participated in counseling for substance abuse, had tested positive for” meth in 3/19, and had then left the state with her newborn infant. Respondent’s whereabouts at the time were unknown. The trial court did not clearly err by determining that her issues with substance abuse, which caused her to be unable to parent E, continued to exist. “Moreover, given respondent’s prior contacts with CPS, her failure to make any substantial progress on her treatment plan, and her disappearance after the” 4/19 drug screen, the court held that “the trial court did not clearly err by finding that there was clear and convincing evidence that there was no reasonable likelihood that those conditions would be rectified within a reasonable time considering” E’s age. Full Text Opinion