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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary

Includes summaries of one Michigan Supreme Court opinion under Criminal Law and one Michigan Supreme Court order under Criminal Law.


Cases appear under the following practice areas:

  • Civil Rights (2)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 77642
    Case: Kimbrough v. MWT of Allen Park, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cameron, O'Brien, and Swartzle
    Issues:

    Alleged gender discrimination under the Civil Rights Act (CRA); MCL 37.2202(1)(a); “Direct evidence” of bias; Hazle v Ford Motor Co; Hecht v National Heritage Acads, Inc; Indirect evidence of discrimination; McDonnell Douglas Corp v Green; Town v Michigan Bell Tel Co; Pretext; Meagher v Wayne State Univ

    Summary:

    The court held that the trial court properly granted defendant-prospective employer summary disposition of plaintiff-prospective employee’s gender discrimination action. Plaintiff sued defendant under the CRA alleging defendant wrongly refused to hire her because of her gender. On appeal, the court rejected plaintiff’s argument that she presented sufficient direct evidence of discrimination to survive summary disposition. It noted the alleged statements by two male sales representatives that the store manager did not hire women “merely amount to circumstantial evidence of discrimination and standing alone cannot support plaintiff’s claim of direct discrimination.” In addition, the store manager’s “stray and isolated expressions of frustration do not support plaintiff’s claim of direct discrimination.” Further, as to defendant’s head of HR’s e-mail to the owner indicating that the store manager preferred to hire men, the court noted that the hiring statistics “standing alone do not provide plaintiff with direct evidence of discrimination.” Because plaintiff “failed to plead a discrimination claim concerning the treatment that she received from employees at” another one of defendant’s stores, she cannot use that evidence to support her direct discrimination claim. The court also rejected her contention that she established a prima facie case of discrimination, noting she failed to submit evidence to support that the employee who was hired “was ‘similarly situated’ to plaintiff and that he was given the position ‘under circumstances giving rise to an inference of unlawful discrimination.’” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 77722
    Case: Lindke v. Freed
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Thapar, Guy, and Readler
    Issues:

    Action under 42 USC § 1983 alleging a First Amendment free speech violation; Whether defendant was acting “under the color of state law” with his Facebook page; The “state-official test”

    Summary:

    [This appeal was from the ED-MI.] The court held that defendant-city manager’s (Freed) “Facebook activity was not state action.” Thus, he was properly granted summary judgment of plaintiff-Lindke’s § 1983 action asserting Freed violated his free-speech rights by blocking him from his page. Freed is a city manager for the City of Port Huron, Michigan. He had a Facebook page featuring his family and other personal posts. He later updated it to reflect his new his job title, and used the City Hall’s address as his page address. During the pandemic, he shared “the policies he initiated for Port Huron and news articles on public-health measures and statistics.” Lindke disapproved of Freed’s handling of the pandemic and posted criticism on Freed’s page. Freed deleted his comments and eventually blocked him from the page. The court explained that to establish a free speech violation under § 1983, a plaintiff must show that the defendant is “acting in a state capacity . . . .” To determine whether Freed was acting in his capacity as city manager, the court applied the “state-official test,” a version of the Supreme Court’s nexus test. This test “asks whether the official is ‘performing an actual or apparent duty of his office,’ or if he could not have behaved as he did ‘without the authority of his office.’” The court considered whether Freed’s actions were “‘entwined with governmental policies’ or subject to the government’s ‘management or control.’” It looked at his Facebook page to determine whether he was a public official operating a social-media account. “[S]ocial-media activity may be state action when it (1) is part of an officeholder’s ‘actual or apparent dut[ies],’ or (2) couldn’t happen in the same way ‘without the authority of [the] office.’” Freed was not legally required to have a Facebook page as part of his duties. The page was created years before he took office, and it will not change hands once another person becomes city manager. He also did not “rely on government employees to maintain his Facebook page.” The court rejected Lindke’s argument that “Freed’s use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin” made it appear he was acting in his official capacity. “Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.” Affirmed.

    Full Text Opinion

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 77722
    Case: Lindke v. Freed
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Thapar, Guy, and Readler
    Issues:

    Action under 42 USC § 1983 alleging a First Amendment free speech violation; Whether defendant was acting “under the color of state law” with his Facebook page; The “state-official test”

    Summary:

    [This appeal was from the ED-MI.] The court held that defendant-city manager’s (Freed) “Facebook activity was not state action.” Thus, he was properly granted summary judgment of plaintiff-Lindke’s § 1983 action asserting Freed violated his free-speech rights by blocking him from his page. Freed is a city manager for the City of Port Huron, Michigan. He had a Facebook page featuring his family and other personal posts. He later updated it to reflect his new his job title, and used the City Hall’s address as his page address. During the pandemic, he shared “the policies he initiated for Port Huron and news articles on public-health measures and statistics.” Lindke disapproved of Freed’s handling of the pandemic and posted criticism on Freed’s page. Freed deleted his comments and eventually blocked him from the page. The court explained that to establish a free speech violation under § 1983, a plaintiff must show that the defendant is “acting in a state capacity . . . .” To determine whether Freed was acting in his capacity as city manager, the court applied the “state-official test,” a version of the Supreme Court’s nexus test. This test “asks whether the official is ‘performing an actual or apparent duty of his office,’ or if he could not have behaved as he did ‘without the authority of his office.’” The court considered whether Freed’s actions were “‘entwined with governmental policies’ or subject to the government’s ‘management or control.’” It looked at his Facebook page to determine whether he was a public official operating a social-media account. “[S]ocial-media activity may be state action when it (1) is part of an officeholder’s ‘actual or apparent dut[ies],’ or (2) couldn’t happen in the same way ‘without the authority of [the] office.’” Freed was not legally required to have a Facebook page as part of his duties. The page was created years before he took office, and it will not change hands once another person becomes city manager. He also did not “rely on government employees to maintain his Facebook page.” The court rejected Lindke’s argument that “Freed’s use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin” made it appear he was acting in his official capacity. “Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.” Affirmed.

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    e-Journal #: 77720
    Case: People v. Lewis
    Court: Michigan Supreme Court ( Order )
    Judges: McCormack, Viviano, Bernstein, Clement, Cavanagh, and Welch; Not participating – Zahra
    Issues:

    Motion to quash; Probable cause at the preliminary exam; People v Yost; People v Anderson

    Summary:

    In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals judgment (see e-Journal # 76784 in the 1/24/22 edition) and the circuit court’s orders granting defendant’s motion to quash. The court held that there was sufficient evidence produced at the preliminary exam to “establish probable cause to believe the defendant’s actions were the cause of the deaths for which” he was charged. Thus, the district court did not abuse its discretion in binding him over and the circuit court erred in granting his motion to quash. The evidence showed that “defendant was drunk and angry with his estranged wife on the night in question, that he chased her vehicle at a high rate of speed until it crashed, that the vehicle the defendant was driving suffered front-end damage, and that the crash-data-retrieval report from that same vehicle also showed evidence of a nondeployment event while moving at a high rate of speed that day. Although this evidence may not be sufficient to prove guilt beyond a reasonable doubt, it is sufficient to provide probable cause for purposes of bindover.” Remanded.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 77723
    Case: People v. Peeler
    Court: Michigan Supreme Court ( Opinion )
    Judges: McCormack, Zahra, Viviano, Bernstein, Cavanagh, and Welch; Concurrence – Bernstein; Not participating – Clement
    Issues:

    The one-man grand jury statutes (MCL 767.3 & 767.4); Entitlement to a preliminary exam; People v Duncan; People v Green; Whether a judge can issue an indictment authorizing criminal charges against a defendant; Indictment as defined by MCL 761.1(g)

    Summary:

    The court held that a defendant charged by a one-man grand jury is entitled to a preliminary exam, and that MCL 767.3 and 767.4 do not authorize a judge to issue indictments. Thus, it reversed the trial court’s order denying defendants-Peeler and Baird’s motions to remand for a preliminary exam and the trial court’s order denying defendant-Lyon’s motion to dismiss. These prosecutions arose from the Flint water crisis. A one-man grand jury issued the charges against defendants. The court agreed with Peeler and Baird that the language of the one-man grand jury statutes provide a right to a preliminary exam, noting it had said so in Duncan, although in dictum. “MCL 767.4 refers to a ‘hearing on the complaint or indictment’ and disqualifies the judge who conducted the inquiry from being the ‘examining magistrate’ at that hearing. It is unclear what ‘hearing’ that language could be referring to other than a preliminary examination. Moreover, ‘examining magistrate’ is a term of art used in other statutes, so we need not guess what it means—an examining magistrate is a judge who conducts a preliminary” exam. The court noted there was additional “evidence in historical practice.” Cases revealed that preliminary exams “were routinely conducted after a one-person grand jury returned an indictment.” The court concluded the Court of Appeals was wrong in Green when it ruled “that the one-person grand-jury procedure ‘serve[s] the same function’ as a preliminary” exam. The court overruled Green. It also agreed with Lyon that MCL 767.4 “does not grant the judge conducting the inquiry the authority to issue indictments.” The court noted that “the statute is clear about what it does authorize a judge to do.” Pursuant to MCL 767.3 and 767.4, a judge is authorized “to investigate, subpoena witnesses, and issue arrest warrants.” MCL 767.4 does not “authorize the judge to issue an arrest warrant explicitly and issue an indictment at the same time implicitly.” The court noted important differences between the statutes governing one-man grand-jury and citizens grand-jury procedures. The absence of the juror’s oath requirement in MCL 767.4 was “more evidence that the one-man grand-jury statutes do not authorize a judge to initiate charges by issuing indictments.” Remanded to the trial court for further proceedings.

    Concurring, Justice Bernstein fully agreed with the court’s opinion but wrote “separately to address the significant interests implicated in this case. Today, this Court recognizes what we have always known to be true: procedure matters. It is, in fact, the foundation of our adversarial process.” He noted that the preliminary exam “serves a crucial function for criminal defendants” and the prosecution may not “simply cut corners in order to prosecute defendants more efficiently.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 77632
    Case: People v. Brown
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, M.J. Kelly, and Yates
    Issues:

    Ineffective assistance of counsel; Failure to object to the admission of Facebook messages & other testimony; Relevance; MRE 401; Unfair prejudice; MRE 403; Authentication; MRE 901; The best-evidence rule; MRE 1002; “Original” writing; MRE 1001(3); Prosecutorial misconduct; Misstating the law of self-defense; Sentencing; Proportionality; Effect of a within-guidelines sentence

    Summary:

    The court concluded that defendant-Brown’s “lawyer did not render constitutionally deficient assistance by failing to object on the basis that the” Facebook messages and other testimony were irrelevant or inadmissible under MRE 403. Also, the prosecutor did not misstate the law of self-defense. Finally, Brown did not show that his within-guidelines sentence was disproportionate or that the trial court erred by failing to consider his age as a mitigating factor. He was convicted of AWIM, intentional discharge of a firearm from a vehicle, FIP, and felony-firearm, second offense. He was sentenced as a fourth-offense habitual offender to 840 months to 125 years for AWIM; 152 months to 70 years for discharge of a firearm from a vehicle; 76 months to 70 years for FIP; and 5 years for each count of felony-firearm, to be served consecutively to, and preceding, the other felony sentences. Brown argued that his lawyer’s assistance was ineffective because he did not object to the admission of Facebook messages. Taken as a whole, the messages were “relevant to a fact of consequence: Brown’s motive for instigating a shootout. They allow for an inference that Brown and [victim-H] were ‘beefing,’ that [H] wanted to ‘get along’ but Brown did not want to, and that Brown was making threats toward [H]. Those threats included what appears to be a deadline for [H] and [H’s] brother to leave the neighborhood, an indication that Brown wanted [H] to ‘line up’ rather than hide, and a reference to [H] never meeting his ‘seed,’ which is presumably a reference to [H’s] children.” Because each inference went toward Brown’s motive, the messages were relevant. He also argued that his lawyer should have objected under MRE 403, as the messages were unfairly prejudicial because they were sent over a year before the shootout. “Because the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, Brown’s lawyer was not ineffective for failing to object to its admission under MRE 403.” As to his claim the messages were inadmissible because they were not properly “authenticated,” he did not argue that there was a lack of authentication under MRE 901. Rather, he relied on the best evidence rule to claim that there was nothing to show the contents of the writing were accurately reflected. But he did not show that an objection on the basis the “messages were not the best evidence would have been successful.” Thus, he could not “meet his burden of showing that his lawyer’s failure to object constituted deficient performance." Affirmed.

    Full Text Opinion

  • Employment & Labor Law (1)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 77642
    Case: Kimbrough v. MWT of Allen Park, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Cameron, O'Brien, and Swartzle
    Issues:

    Alleged gender discrimination under the Civil Rights Act (CRA); MCL 37.2202(1)(a); “Direct evidence” of bias; Hazle v Ford Motor Co; Hecht v National Heritage Acads, Inc; Indirect evidence of discrimination; McDonnell Douglas Corp v Green; Town v Michigan Bell Tel Co; Pretext; Meagher v Wayne State Univ

    Summary:

    The court held that the trial court properly granted defendant-prospective employer summary disposition of plaintiff-prospective employee’s gender discrimination action. Plaintiff sued defendant under the CRA alleging defendant wrongly refused to hire her because of her gender. On appeal, the court rejected plaintiff’s argument that she presented sufficient direct evidence of discrimination to survive summary disposition. It noted the alleged statements by two male sales representatives that the store manager did not hire women “merely amount to circumstantial evidence of discrimination and standing alone cannot support plaintiff’s claim of direct discrimination.” In addition, the store manager’s “stray and isolated expressions of frustration do not support plaintiff’s claim of direct discrimination.” Further, as to defendant’s head of HR’s e-mail to the owner indicating that the store manager preferred to hire men, the court noted that the hiring statistics “standing alone do not provide plaintiff with direct evidence of discrimination.” Because plaintiff “failed to plead a discrimination claim concerning the treatment that she received from employees at” another one of defendant’s stores, she cannot use that evidence to support her direct discrimination claim. The court also rejected her contention that she established a prima facie case of discrimination, noting she failed to submit evidence to support that the employee who was hired “was ‘similarly situated’ to plaintiff and that he was given the position ‘under circumstances giving rise to an inference of unlawful discrimination.’” Affirmed.

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    This summary also appears under Native American Law

    e-Journal #: 77660
    Case: McGrath v. Bressette
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Ronayne Krause, M.J. Kelly, and Yates
    Issues:

    Child custody; State court jurisdiction; MCL 722.1201(1) & 1202(2); “Home state”; MCL 722.1102(g); Principle that Michigan courts shall treat a tribe as a state of the United States; MCL 722.1104(2); “Tribe”; MCL 722.1102(q); Effect of a Tribe declining to exercise jurisdiction; MCL 722.1201(1)(b); Appropriate forum; MCL 722.1204, 1206 & 1207; A state court’s communication with courts of other states; MCL 722.1110

    Summary:

    The court held that the trial court exercised jurisdiction in violation of MCL 722.1206(1) because, although the custody-related action earlier commenced in the Tribal Court had been terminated, the record did not indicate that it was terminated specifically because the Tribal Court found that the trial court offered the more convenient forum. Plaintiff-father filed this action to establish custody, support, and parenting time in connection with the parties’ children. Defendant-mother’s counsel moved to dismiss the action, arguing that the trial court lacked jurisdiction because a custody proceeding was pending in the Tribal Court at the time plaintiff filed his complaint. The trial court denied the motion, noting it spoke with the Tribal Court, which indicated that it did not have exclusive jurisdiction, that it had no concerns regarding the matter proceeding in the state court, and that the Tribal Court would not be a more appropriate forum. It then entered an order regarding custody and parenting time. On appeal, the court agreed with defendant that the trial court erred by exercising operational jurisdiction because a related proceeding was pending in the Tribal Court when this action commenced. The trial court’s actions did not “clarify by implication whether [it] made a ‘home state’ determination.” It also articulated “no factual findings regarding whether the children or parents had significant connections with Michigan, or whether substantial evidence concerning the children was available in Michigan.” And the Tribal Court, according to the trial court, did not indicate that it “dismissed its own custody-related case specifically because of a finding that the [trial] court was the more appropriate forum.” As such, the court found there was “an insufficient factual record from which to evaluate the propriety of the” trial court’s decision. The court also agreed with defendant that the trial court erred by exercising personal jurisdiction over her and the children, whose home state was the Tribe, not the state of Michigan. It noted that although the trial court correctly “recognized that the Tribal Court, having ‘terminated’ its child-protective case, removed that action as an absolute bar to the” trial court’s exercise of jurisdiction under MCL 711.1206(1), the trial court “erred by failing to recognize that the statute conditioned that effect on the Tribal Court terminating its case specifically ‘because a court of this state is a more convenient forum.’” Reversed and remanded.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    e-Journal #: 77643
    Case: Michigan Head & Spine Inst., PC v. Mid-Century Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Letica, K.F. Kelly, and Riordan
    Issues:

    Priority provisions of the No-Fault Act (NFA) for payment of PIP benefits; MCL 500.3114(1), (3), & (4); Lewis v Farmers Ins Exch; Michigan Assigned Claims Plan (MACP); MCL 500.3172(1)

    Summary:

    Holding that plaintiffs-healthcare providers and intervening plaintiff-Stacey Krebs must seek PIP benefits from the MACP under MCL 500.3114(4), the court reversed the order denying defendant-Mid-Century Insurance Company’s motion for partial summary disposition, and remanded. Stacey was seriously injured in an auto accident while a passenger in a vehicle owned by Mid-Century’s insured. Mid-Century denied her claim for PIP benefits on the basis “it was not within the order of priority for” payment under MCL 500.3114. On appeal, plaintiffs and Stacey asserted that its “policy broadened coverage beyond what is required under MCL 500.3114 to include Stacey as an ‘insured’ and, that as an ‘insured,’ she was entitled to collect PIP benefits from Mid-Century.” But the court determined that, regardless of the breadth of the policy’s coverage, it did “not control whether plaintiffs or Stacey may claim PIP benefits from Mid-Century.” The court noted that the NFA “governs the coverages it mandates, while an insurance policy governs optional coverage not required by the” NFA. Because PIP benefits are mandated by the NFA, “entitlement to, and payment of, PIP benefits is governed by statute, not by the insurance contract.” Further, this was embodied in the policy, which stated that liability for PIP benefits was subject to the NFA’s provisions. Thus, the case on which plaintiffs and Stacey relied, Lewis, was of no help to them because the policy mandated that the NFA be followed. This meant that Stacey’s entitlement to PIP benefits was controlled by MCL 500.3114. Neither MCL 500.3114(1) nor (3) entitled her to benefits The court found that MCL 500.3114(4) specifically applied “because Stacey is ‘a person who suffer[ed] accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle who is not covered under a personal protection insurance policy as provided in [MCL 500.3114](1).’ Thus, a claimant such as Stacey ‘shall claim personal protection insurance benefits under the assigned claims plan under [MCL 500.]3171 to [MCL 500.]3175.’ Under MCL 500.3172(a), the assigned claims plan is the appropriate insurer for PIP benefits because” there was no policy otherwise applicable to her injuries. The court was not persuaded by plaintiffs’ argument that MCL 500.3172 did not apply.

    Full Text Opinion

  • Native American Law (1)

    Full Text Opinion

    This summary also appears under Family Law

    e-Journal #: 77660
    Case: McGrath v. Bressette
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Ronayne Krause, M.J. Kelly, and Yates
    Issues:

    Child custody; State court jurisdiction; MCL 722.1201(1) & 1202(2); “Home state”; MCL 722.1102(g); Principle that Michigan courts shall treat a tribe as a state of the United States; MCL 722.1104(2); “Tribe”; MCL 722.1102(q); Effect of a Tribe declining to exercise jurisdiction; MCL 722.1201(1)(b); Appropriate forum; MCL 722.1204, 1206 & 1207; A state court’s communication with courts of other states; MCL 722.1110

    Summary:

    The court held that the trial court exercised jurisdiction in violation of MCL 722.1206(1) because, although the custody-related action earlier commenced in the Tribal Court had been terminated, the record did not indicate that it was terminated specifically because the Tribal Court found that the trial court offered the more convenient forum. Plaintiff-father filed this action to establish custody, support, and parenting time in connection with the parties’ children. Defendant-mother’s counsel moved to dismiss the action, arguing that the trial court lacked jurisdiction because a custody proceeding was pending in the Tribal Court at the time plaintiff filed his complaint. The trial court denied the motion, noting it spoke with the Tribal Court, which indicated that it did not have exclusive jurisdiction, that it had no concerns regarding the matter proceeding in the state court, and that the Tribal Court would not be a more appropriate forum. It then entered an order regarding custody and parenting time. On appeal, the court agreed with defendant that the trial court erred by exercising operational jurisdiction because a related proceeding was pending in the Tribal Court when this action commenced. The trial court’s actions did not “clarify by implication whether [it] made a ‘home state’ determination.” It also articulated “no factual findings regarding whether the children or parents had significant connections with Michigan, or whether substantial evidence concerning the children was available in Michigan.” And the Tribal Court, according to the trial court, did not indicate that it “dismissed its own custody-related case specifically because of a finding that the [trial] court was the more appropriate forum.” As such, the court found there was “an insufficient factual record from which to evaluate the propriety of the” trial court’s decision. The court also agreed with defendant that the trial court erred by exercising personal jurisdiction over her and the children, whose home state was the Tribe, not the state of Michigan. It noted that although the trial court correctly “recognized that the Tribal Court, having ‘terminated’ its child-protective case, removed that action as an absolute bar to the” trial court’s exercise of jurisdiction under MCL 711.1206(1), the trial court “erred by failing to recognize that the statute conditioned that effect on the Tribal Court terminating its case specifically ‘because a court of this state is a more convenient forum.’” Reversed and remanded.

    Full Text Opinion

  • Negligence & Intentional Tort (1)

    Full Text Opinion

    e-Journal #: 77648
    Case: Hamade v. New Lawn Sod Farm, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Swartzle and Patel; Concurring in part, Dissenting in part - O'Brien
    Issues:

    Trip & fall on an obstacle course; Premises liability; Duty; Albitus v Greektown Casino; Constructive notice; Lowrey v LMPS & LMPJ, Inc; Active negligence; Notice; Distinguishing Williams v Borman’s Foods, Inc

    Summary:

    The court held that neither party was entitled to summary disposition based on constructive notice, but defendants-obstacle course owners were entitled to partial summary disposition of plaintiff’s theory of actual negligence. Plaintiff sued defendants for injuries he sustained while attempting to navigate their obstacle course. The trial court granted summary disposition for defendants. In a prior appeal, the court reversed and remanded. On remand, the trial court again granted summary disposition for defendants, finding they did not have notice of the defective tire on which plaintiff tripped and broke his ankle, and did not cause the danger. On appeal, the court noted the "tire had apparently been in place for several seasons without any complaints before” plaintiff’s injury. Given this, “the record does not establish that the hazard existed for a sufficient time to give defendants constructive notice of it.” Further, a dispute of material fact remained because defendants “had never received a complaint about the tire, and . . . routine visual inspections did not reveal any issues. The lack of any complaints about the tire prior to [plaintiff’s] fall suggests that the hazard was not of such a character that defendants should have been aware of it when [he] fell. This is a classic question of fact, and, thus, neither” party was entitled to summary disposition on plaintiff’s constructive-notice theory. However, the court found defendants were entitled to partial summary disposition based on plaintiff’s active negligence theory. “This case does not present a situation like Williams in which the failure to maintain a drainage system caused a leak, which in turn caused the plaintiff to fall.” Although tires can “rot from nonuse, defendants had not encountered any such issue with the obstacle course before and nothing in the record suggests that defendants intentionally used defective tires in the obstacle course. Instead, the tires were placed years earlier and the obstacle course was constructed in a way to mitigate any issues caused by the tire” plaintiff fell on being spongy. Affirmed in part and reversed in part.

    Full Text Opinion

  • Personal Protection Orders (1)

    Full Text Opinion

    e-Journal #: 77653
    Case: AH v. AK
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, M.J. Kelly, and Yates
    Issues:

    Nondomestic PPO; Stalking; “Course of conduct”; MCL 750.411h(1)(a); “Harassment”; MCL 750.411h(1)(c); “Unconsented conduct”; MCL 750.411h(1)(e)

    Summary:

    Concluding the trial court did not err when it found that petitioner presented sufficient evidence that respondent engaged in a course of conduct that constituted stalking behavior, the court affirmed the trial court’s order denying respondent's motion to terminate a PPO. The parties are neighbors in a rural subdivision. “Respondent is a 72-year old man who—because of ongoing issues with individuals driving too fast on the dirt road near his home—has submitted complaints with the board of his homeowner’s association regarding issues with posted speed limit signs and deed restrictions. Petitioner is a 16-year old boy who has driven his four-wheeler on the dirt road near respondent’s home.” The court noted that he “filed a petition for a nondomestic ex parte PPO under MCL 600.2950a(1) based on three incidents that occurred with respondent in 2020 and 2021." The trial court granted it, and respondent unsuccessfully moved to terminate it. The court determined that deciding the motion required the trial “court to evaluate the credibility of the witnesses. This Court gives great deference to trial courts’ credibility assessments.” In assessing the testimony, the trial court determined that respondent was the less credible of the two. It found that “respondent’s blatant denials did not sufficiently rebut petitioner’s testimony.” It further found that “it was more likely than not that the events occurred in the manner described by petitioner given that respondent was already upset with the association board because of the four-wheelers traveling past his house every day.” The trial court “considered respondent’s testimony that his medical condition prevented his mobility; however, the court concluded that ‘notwithstanding those medical conditions, I find credibility in [petitioner’s] assertion that he’s in need of protection.’” The court would “not disturb the trial court’s finding that respondent engaged in a course of stalking behavior by threatening to slash petitioner’s tires and ‘bash in’ his face and by causing petitioner to believe that he was hit in the face with a rock.”

    Full Text Opinion

  • Termination of Parental Rights (3)

    Full Text Opinion

    e-Journal #: 77664
    Case: In re Cerna/Fry/Hayworth
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, Jansen, and Murray
    Issues:

    Termination under § 19b(3)(b)(j); Judicial bias; MCR 2.003(C)(1); Liteky v United States; Plain error; In re Beers

    Summary:

    Concluding there was no valid factual or legal basis for respondent-mother’s judicial bias claim, the court affirmed the order terminating her parental rights. It first noted the record did not support her claim “that the trial court improperly questioned a caseworker” about statements in police reports. At a hearing, the prosecution, “who was representing the DHHS, asked the caseworker about her opinion concerning parenting time in light of the allegations in the petition and statements in the police reports.” At another hearing, the trial court asked the caseworker if the police reports had been given to respondent’s counselor and expressed concern when informed it was not the general practice to do so, “believing that it was important for the counselor to have this information to properly help mother. The court used words such as ‘depravity,’ ‘horrific,’ and ‘torture’ during his exchange.” But the transcript did not indicate these comments were made based on the police reports. Rather, the trial court specified “that these were, ‘My words. Not anyone else’s.’” Further, statements about the condition of the home “and the children were included in the petition” and the CPS investigator testified about her observations of both at the preliminary hearing. The court noted that the trial court expressed concern as to whether respondent “properly understood the proceedings because she was participating in services although the DHHS was seeking to immediately terminate her parental rights.” The court concluded she completely failed to show that it “did not act as a neutral finder of fact, or otherwise displayed ‘deep-seated favoritism or antagonism’ in violation of the Due Process Clause of the state (or federal) constitution.” In addition, even if she could show an error occurred (and she did not), it would not have affected the outcome. “None of the evidence boded well for mother. At the conclusion of the testimony, the trial court made extensive factual findings. There is nothing in the record to suggest that these factual findings were improperly based on statements in the police reports.” Further, extensive evidence supported termination under § (j), at a minimum.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 77665
    Case: In re Nethaway
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Garrett
    Issues:

    Child’s best interests; Guardianship

    Summary:

    Holding that termination of respondent-father’s parental rights was in the child’s (AN) best interests, the court affirmed. The trial court terminated his rights after he failed to cooperate with services for over two years. He contended that termination was not in AN’s best interests and argued that the trial court should instead have placed her in a guardianship. The court noted that he “did not meet the child until she was four years old.” After he and the mother broke up, he “did not maintain contact with AN. During these child protective proceedings, respondent visited AN in person only once.” The trial court allowed “supervised phone and video visits to foster the parent-child relationship given that respondent lived three hours away.” He missed many of the visits. “Despite that he had earlier requested telephonic visits in lieu of in person, respondent participated in only one video visit at the start of the pandemic. Respondent claimed that COVID was a government hoax, the DHHS had lied about his marijuana use, and the DHHS had kidnapped his child. Respondent turned the focus on himself and refused to participate in the proceedings and his child’s life because he felt he was treated unfairly. As a result of his own behavior, respondent has no relationship or bond with AN.” The court noted that he also “declined to address the barriers to reunification based on his personal feeling of inequity. Respondent took no responsibility for AN being in care, shifting all blame on” the mother. He refused to acknowledge that his absence left AN unprotected. Although his “psychological evaluation revealed several major areas of concern, respondent refused to address those issues. He began substance abuse counseling, but continued to smoke marijuana ‘24/7’ and saw no need to stop.” In addition, he “knew that he needed to find housing suitable for a child. Respondent was gainfully employed for a large portion of the proceedings and had adequate funds to rent a residence. Yet respondent never did so. He continued to live in a pole barn with no bathroom and no bedroom for a child until his grandmother had him removed. Further, respondent’s criminal behavior would put AN at risk if she was placed in his care.” The court concluded that although “AN is placed with relatives, she was only seven at the time of termination. She required a permanent, stable home. AN could not wait in limbo for respondent to participate in and benefit from services. It was not in AN’s best interests to place her in a guardianship, building up hope that” he would make changes necessary to safely parent her.

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    e-Journal #: 77662
    Case: In re Saunders
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Gadola, and Hood
    Issues:

    Termination under §§ 19b(3)(a)(ii), (b)(i), (i), & (j); Child’s best interests

    Summary:

    Holding that §§ (a)(ii), (b)(i), (i), and (j) existed and the trial court clearly did not err by holding that termination of respondent-mother’s parental rights was in the child’s (MMS) best interests, the court affirmed. As to § (a)(ii), the evidence showed that “over 91 days elapsed without respondent seeking custody of the child or having contact with the child.” The record indicated that she “initially told DHHS workers that she did not want to plan for the child and preferred that MMS be adopted by a relative. Shortly before her parental rights to MMS were terminated, she expressed interest in possibly planning for the child, but took no steps toward that goal. Respondent failed to visit the child, failed to attend hearings before the trial court, and did not maintain contact with” DHHS. Also, as to § (b)(i), “the evidence demonstrated that MMS tested positive at birth for cocaine, amphetamines, methamphetamine, and methadone. The child experienced severe withdrawal symptoms, including seizures, necessitating five weeks in the hospital and medication with morphine. Respondent admitted using those drugs during her pregnancy, thus causing harm to the child. Respondent demonstrated both in her prior termination case and during the present case that she would not comply with a treatment plan or make any effort to address her drug addiction, supporting the finding that there is a reasonable likelihood that the child would suffer injury or abuse in the foreseeable future if placed in" her care. Further, as to § (i), “clear and convincing evidence supports termination of respondent’s parental rights under this subsection.” A review of the record demonstrated that “respondent’s parental rights previously were terminated to two of MMS’s siblings because of respondent’s substance abuse, which resulted in one of the siblings testing positive at birth for illegal substances. Respondent previously failed to comply with the case service plan regarding her older children and she similarly failed to take any steps to address her substance abuse in this case, thereby failing to rectify the condition that led to the prior termination.” Finally, as to § (j), “respondent rejected all efforts to assist her with drug rehabilitation, demonstrating that the child would be at risk of harm if placed in her care.”

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