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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

Note: The State Bar of Michigan will be closed Friday, July 3, in observance of Independence Day. The e-Journal will resume publication on Monday, July 6.


Cases appear under the following practice areas:

  • Criminal Law (4)

    Full Text Opinion

    e-Journal #: 73335
    Case: People v. Harrison
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Meter
    Issues:

    Permissive joinder of charges; MCR 6.120(B); “Related” crimes; People v. Gaines; Other acts evidence; MRE 404(b)(1); People v. Starr; People v. Sabin (After Remand); People v. Knox; Proper purpose; People v. Johnigan; MRE 403; People v. Watkins; Unfair prejudice; People v. Wilson; Lewis v. Legrow; Identification testimony; People v. Kurylczyk; An unduly suggestive identification procedure; People v. McDade; Whether it was necessary to establish an independent basis for the in-court identification; People v. McElhaney; People v. Laidlaw; Ineffective assistance of counsel; People v. Taylor; People v. Jordan; Failure to advance a meritless argument; People v. Ericksen

    Summary:

    The court held that the trial court did not abuse its discretion in allowing joinder of the charges against defendant involving two victims in separate incidents, or in allowing evidence of an uncharged act. Further, the court found no issues with the challenged pretrial identifications of defendant and thus, also rejected his claim that defense counsel was ineffective for failing to object to them. He was convicted of armed robbery and unarmed robbery in these consolidated cases. The court noted that the “two robberies were in proximate geographic locations, and occurred within days of each other during a time in which defendant had a negative bank balance.” He suddenly approached the women as they “had recently left their vehicles while in a parking lot and were preoccupied with a task. Defendant used physical force on both” to overcome any resistance, and took a purse in the one incident and a wallet in the other before fleeing. His “acts of surprising women who had just left their vehicles, while they were distracted, during a discrete period of time in which he lacked money and had been abusing drugs, in proximate locations, and in order to rob them after using physical force to control or intimidate them, constituted a series of acts that demonstrated an overall scheme or plan to rob vulnerable women in a specific way.” He claimed that joinder was inappropriate due to witness inconvenience and that the number of charges confused the jury. But “joinder would have been more convenient for the detectives, whose investigations overlapped, because they were required to testify only at one trial instead of two. Similarly, the victims only had to testify once but would have had to testify in one trial as a complainant and in another to provide evidence of defendant’s other acts.” Further, only two charges were “joined, and there was no evidence of jury confusion.” As to the other acts evidence from a third woman about an attempted robbery, it “was relevant and used for a proper purpose because defendant was charged with robbery,” and it showed his “common plan and consistent style of executing the robberies.” The court also found that none of the Watkins factors indicated it was unfairly prejudicial. In addition, he failed to show that the witnesses’ identifications of him in photographic lineups were unreliable. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73341
    Case: People v. Runyon
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Ineffective assistance of counsel; People v. Taylor; People v. Jordan; People v. Rodgers; Failure to object to other acts evidence; MRE 404(b)(1); People v. Sabin (After Remand); People v. Houston; People v. Knox; A proper purpose; People v. Johnigan; Relevance; MRE 401; People v. Aldrich; MRE 403; People v. Watkins; Unfair prejudice; People v. Wilson; Lewis v. Legrow; People v. McGhee; Failure to object to a statement by the prosecutor; Failure to make a futile objection; People v. Ericksen; Hearsay; MRE 801(c); People v. Stamper; Sentencing; Life without parole for a first-degree murder committed when defendant was under the age of 18; Miller v. Alabama; MCL 769.25; Double jeopardy; People v. Nutt; Multiple punishments; People v. Ream; People v. Herron; Dual convictions for first-degree premeditated murder & first-degree felony murder; People v. Coomer; One conviction & sentence supported by two theories; People v. Williams; Correcting the presentence information report (PSIR); People v. Lampe; Judgment of sentence (JOS); Department of Corrections (DOC)

    Summary:

    The court rejected defendant’s claims that defense counsel was ineffective for failing to raise various objections, and held that the trial court did not err in sentencing him to life without the possibility of parole for a first-degree murder committed when he was less than 18 years old. However, the trial court violated his constitutional protections against double jeopardy by sentencing him twice for the same crime. Thus, it ordered his JOS “amended to specify a single conviction, supported by two theories, and a single sentence for the killing of one victim. The PSIR must also be amended” and sent to the DOC. As to his claim that defense counsel should have objected to other acts evidence of his participation in an assault about five hours before the murder of victim-G, the court concluded that because it was presented “for the purpose of establishing defendant’s link to the murder weapon, not to show a propensity to murder, the evidence was admitted for a proper purpose.” He also argued that this evidence, as well as evidence of another murder he committed, was unfairly prejudicial. “However, all three crimes were committed over the course of only six days, and there was no evidence of any intervening acts that would discount the relevance that the same gun used to kill [G] was used in the assault” and the other murder. The firearm evidence appeared to be “scientifically based and very reliable. Furthermore, it was necessary because it showed that defendant was known to have possessed, and used in recent crimes, the same gun used to kill” G. There was no indication that the evidence injected issues broader than his guilt or innocence into the case, or “of a danger of confusion of the issues, misleading the jury, or creating too much empathy, which could have required exclusion of the evidence under MRE 403. The evidence was strongly probative because it” showed the likelihood that he used the same gun “to commit serious crimes, including the charged crimes, in the same area over the course of six days. Although the evidence was prejudicial, it was not unfairly prejudicial.” As to his sentence, in light of “the trial court’s thorough consideration of the Miller factors and detailed findings in support of” his sentence, the court held that it did not abuse its discretion. But dual convictions of first-degree premeditated and felony murder for the death of one victim violate double jeopardy. Remanded for amendment of the JOS and PSIR, but otherwise affirmed.

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    e-Journal #: 73366
    Case: People v. Williams
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Meter
    Issues:

    Lesser included offense; People v. Cornell; People v. Haynie; Assault & battery; MCL 750.81(1); Assault with intent to commit murder (AWIM); MCL 750.83; People v. Jones; Ineffective assistance of counsel; People v. Ginther; Failure to request a jury instruction on the lesser included offense of assault & battery; People v. Pickens; People v. Hoag; Trial strategy; People v. Trakhtenberg; Strickland v. Washington; People v. Ross; People v. Ora Jones; Hanna v. People; Prejudice; People v. Wilson; Whether counsel should have further impeached the witness; MRE 609(a) & (c); People v. Crew; Jury instruction regarding credibility; M Crim JI 3.6; M Crim JI 5.1; Johnson v. Corbet; Other acts evidence; MRE 404(b)(1) & (2); People v. Rockey; Court costs; People v. Cameron; MCR 7.215(J)(1); Assault with intent to do great bodily harm less than murder (AWIGBH); Felon in possession (FIP)

    Summary:

    Noting that the Michigan Supreme Court overruled a pivotal case addressing the lesser included offense issue of assault and battery, the court remanded for a hearing pursuant to Ginther to consider whether defense counsel was ineffective in failing to request a jury instruction. Also, although it remanded, the court considered the remainder of defendant’s appellate challenges, none of which merited relief. He was convicted of AWIGBH, FIP, felonious assault, and felony-firearm. The trial court instructed the jury on the charged offense of AWIM and the lesser included offense of AWIGBH. The jury acquitted him of the greater offense and convicted him of the lesser. On appeal, he argued that the trial court erred by failing to instruct the jury on the lesser offense of assault and battery, and that counsel was ineffective for failing to request the instruction. The court held that it could not discern on the record whether counsel erred in failing to request the instruction. It knew that counsel did not rely on Haynie in deciding against requesting the instruction. The court determined that on remand, the parties may explore “counsel’s legal grounds for requesting an assault and battery instruction, as well as any potential strategic reasons not to request the instruction. The parties may develop a record regarding whether an assault and battery instruction would be supported by a rational view of the evidence. After these considerations are fleshed out, the trial court can determine in the first instance whether defense counsel’s performance fell below an objective standard of reasonableness.” Even if the trial court finds that counsel acted reasonably, the court directed it “to consider the prejudicial effect of the lack of the jury instruction.” The court retained jurisdiction.

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    e-Journal #: 73373
    Case: Davenport v. MacLaren
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Stranch and Cole; Dissent – Readler
    Issues:

    Habeas corpus; 28 USC § 2254; Antiterrorism & Effective Death Penalty Act (AEDPA); Standard of review; Brecht v. Abrahamson; Davis v. Ayala; Chapman v. California; Ruelas v. Wolfenbarger; Hollman v. Sprader (Unpub. 6th Cir.); Reiner v. Woods; Sifuentes v. Brazelton (9th Cir.); Shackling; Deck v. Missouri; Holbrook v. Flynn; Coffin v. United States; Illinois v. Allen; Whether petitioner’s shackling had a “substantial and injurious effect or influence” on the jury’s verdict; McCarley v. Kelly; O’Neal v. Balcarcel; Robinson v. Gundy (Unpub. 6th Cir.); Lakin v. Stine; Ruimveld v. Birkett; Hammonds v. Commissioner, AL Dep’t of Corr. (11th Cir.); Malone v. Carpenter (10th Cir.); Evidence of guilt; Distinction between first- & second-degree murder under Michigan law; People v. Morrin (MI App.); MI Crim. JI 16.6; People v. Hoffmeister (MI); People v. Plummer (MI App.); People v. Tilley (MI); People v. Johnson (MI); People v. Furman (MI App.); Juror testimony; Rhoden v. Rowland (9th Cir.)

    Summary:

    [This appeal was from the WD-MI.] The court reversed the district court and granted petitioner-Davenport a conditional writ of habeas corpus from his first-degree murder conviction because his appearance at trial in shackles was “inherently prejudicial,” and the State of Michigan failed to show that the restraints did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” During his trial, one of Davenport’s hands was shackled, and there were shackles around his waist and ankles. A privacy curtain was placed around the defense table. The Michigan Court of Appeals rejected his arguments as to the shackles, but the Michigan Supreme Court remanded to the trial court for a hearing, after which the trial court concluded that the shackling had not affected the jury’s verdict. The court first noted that the State conceded that Davenport’s constitutional rights were violated, and that it only had to apply the “Brecht test” to evaluate harmless error on collateral review, even where AEDPA applies. Noting that it is well established shackling is inherently prejudicial, and that it was the State’s burden to show that the error did not affect the jury’s decision, the court cited cases holding that “the shackling of a defendant without justification is highly prejudicial if viewed by the jury because it vitiates the presumption of innocence and undermines the fairness of the factfinding process.” It then considered the evidence of guilt, and found that under Michigan law, “evidence of manual strangulation alone is not enough to prove premeditation[,]” and that the jury in this case could have easily returned a verdict of second-degree murder. The court saw the issue as “‘not whether there was sufficient evidence to support the jury’s conclusions, but rather whether the evidence is so strong that a reviewing court can be assured that the shackling did not affect the jury’s conclusions.” The court rejected the State’s claim that jurors’ evidentiary hearing testimony supported that they were not adversely influenced by the shackling because the Supreme Court in Holbrook has held that “jurors will not necessarily be fully conscious of the effect [that shackling] will have on their attitude toward the accused.” Thus, it held that “the shackles branded Davenport as having a violent nature in a case where the crucial point of contention was whether he engaged in deliberate and premeditated murder. Given the closeness of this question, the number of jurors who observed the restraints, and the inherently prejudicial nature of shackling, the State has failed to carry its burden to show that the shackles did not have a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 73332
    Case: Gray v. Gray
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – O’Brien and Gadola; Dissent – Ronayne Krause
    Issues:

    Divorce; Whether the consent judgment awarded a surviving spouse’s annuity as part of a share of the other spouse’s pension benefit; MCL 552.101(4); Hudson v. Hudson; Interpreting a divorce judgment as a contract; Kendzierski v. Macomb Cnty.; Qualifying domestic relations order (QDRO)

    Summary:

    Concluding that it was bound by Hudson, the court rejected defendant-ex-wife’s argument that MCL 552.101(4) compelled a determination that the parties’ consent divorce judgment entitled her to elect an annuity as part of her share of plaintiff-ex-husband’s pension. Further, the judgment made it clear that she was to “receive a coverture fraction payable over” his lifetime. Thus, the court affirmed the order determining that the judgment did not award her a surviving spouse’s annuity. She argued that she was statutorily entitled to such “annuity benefits because MCL 552.101(4) provides that surviving spouse annuity benefits are automatically included with the assignment of any rights to the opposing party’s pension unless” the divorce judgment expressly states they are not included. The court disagreed, noting that it addressed the statute’s application under similar circumstances in Hudson, where it rejected a party’s argument that it “entitled him to choose the option of a single life annuity to be paid over the course of his lifetime, determining that the annuity options in the form QDRO merely provided a mechanism of payment of the retirement benefit. The Court concluded that ‘the option . . . to choose the terms and conditions of payment is not a “component” as that term is defined in MCL 552.101(5).’” Here, as in Hudson, defendant could not “be given 33% of the option (a survivor’s annuity) she wishes to exercise, and the statute does not apply to the question concerning her right to elect the form of payment of the benefit she will receive under” the judgment. Her argument that it “compels a determination that she is entitled to elect an annuity option as a ‘component’ of plaintiff’s pension, when the” judgment only entitled her to a percentage of the pension benefit, was foreclosed under Hudson. The judgment’s plain language made “clear that the parties did not intend that defendant be able to take this benefit in the form of an annuity payable over her lifetime.” It stated if she predeceased him, “her benefit is to be paid to her estate, or if none, then to the children of the parties’ marriage.” Had the parties “contemplated a surviving spouse annuity there would have been no need for the language in the Consent Judgment providing what is to occur with defendant’s benefits were she to predecease” him. There was also disclaimer language strongly suggesting that she “affirmatively waived any interest in a survivor’s annuity.”

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Wills & Trusts

    e-Journal #: 73339
    Case: Chakmak v. Estate of Joan S. Chakmak
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Rejection of evidence as to the market value of properties; The trial court’s factual findings after a bench trial; Menhennick Family Trust v. Menhennick; Review limited to the trial court record; Kent Cnty. Aeronautics Bd. v. Department of State Police; Validity of a gift; In re Casey Estate; Garrison v. Union Trust Co.; Sanctions; Frivolous suit or defenses; MCL 600.2591(1) & (3); MCR 2.625(A)(2); In re Attorney Fees & Costs; Rieth v. Keeler; Amberg v. City of Dearborn; Principle that appellate review is limited to issues actually decided by the trial court; Allen v. Keating; Appellate expenses; MCR 7.216(C)(1) & (8); Kitchen v. Kitchen

    Summary:

    The court held that plaintiff failed to show the trial court clearly erred when it determined that he did not sustain his burden in establishing that decedent-Joan (his stepmother) breached her fiduciary duty in connection with the sale prices of the Colorado properties at issue. Also, the trial court did not err when it determined that plaintiff failed to sustain his burden to show that Joan sold a lot for just $10. Finally, defendant-estate’s request for sanctions failed on the merits. Thus, the court affirmed the order dismissing his claims against defendant, and rejected defendant’s cross-appeal “insofar as the trial court did not rule on defendant’s request for sanctions against plaintiff for the filing of frivolous claims.” Plaintiff, who was a trustee of the Family Trust created by his father and Joan, argued that the trial court clearly erred when it rejected his evidence as to the market value of the Colorado properties. He contended “that the trial court erred when it disregarded his valuation testimony and instead relied on its own calculations to determine the value of the” properties. Plaintiff cited “multiple treatises and articles that were not presented or discussed during trial and asks this Court take judicial notice of these treatises and texts.” However, the court’s “‘review is limited to the record developed by the trial court,’ and a ‘party is not permitted to enlarge the record on appeal by asserting numerous facts that were not presented at the trial court.’” While plaintiff asserted that the resources he now relied on were “commonly known to be accurate in this jurisdiction, he neither indicates that those resources were unavailable for him to present at trial nor otherwise explains why this Court should consider evidence that was not presented below.” The court further noted that “the trial court conducted its own calculations to illustrate the lack of explanation” from plaintiff as to how he reached his valuation. In addition, the trial court noted that, even if he had shown that the Colorado properties were “sold for an unreasonable value, the court’s own calculation regarding their value indicated that Joan would have been entitled to retain the proceeds of those sales under certain exemptions and reimbursements to which she was entitled under Michigan law.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 73348
    Case: Gonzalez v. Beaumont Hosp.-Farmington Hills
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Meter
    Issues:

    Medical malpractice; Motion to amend the notice of intent to file claim (NOI) & complaint; Kostadinovski v. Harrington; MCL 600.2912b; MCL 600.2301; Bush v. Shabahang; MCL 600.2912b(1); Burton v. Reed City Hosp. Corp.; Decker v. Rochowiak; Undue delay; MCR 2.118(A)(2); Weymers v. Khera; Whether failure to file an amended affidavit of merit precluded plaintiff from amending his complaint; MCL 600.2912d(1); King v. Reed

    Summary:

    Holding that the trial court abused its discretion in denying plaintiff’s motion to amend the NOI and complaint, the court reversed and remanded. Plaintiff claimed that defendant-Beaumont was vicariously liable for the negligence of its ER “physicians and staff for failing to timely diagnose plaintiff’s stroke and to administer tissue plasminogen activator (tPA).” He argued the trial court erred in denying his motion to amend the NOI. The court held that the first prong of Bush was satisfied. Allowing him to amend the NOI and complaint did not affect Beaumont’s substantial rights “because the original NOI put Beaumont on notice of possible claims arising from the neurologists’ failure to diagnose and treat plaintiff’s stroke.” The second prong was also satisfied. “Plaintiff’s original NOI, considered as a whole, clearly set forth plaintiff’s medical malpractice claim on the basis of Beaumont’s failure to determine the time frame during which tPA could have been timely administered.” Specifically, the NOI asserted “Beaumont was vicariously liable for the actions of the emergency department physicians for failing to properly care for, diagnose, and treat plaintiff’s condition.” The NOI identified “the standard of care applicable to Beaumont, and to the doctors and nurses who participated in treating plaintiff, and alleges that the failure to treat plaintiff with tPA caused significant neurological and cognitive deficits.” Two ER doctors who were also defendants were specifically named in the NOI, which also referenced “the neurology consult, identifying several inaccuracies within the neurology consultation report. Because plaintiff made a good faith attempt to comply with the requirements of MCL 600.2912b, allowing the proposed amendments to the NOI would be in the furtherance of justice.” The court also agreed with plaintiff that the trial court erred in denying his motion because he was not seeking to add an additional legal claim but instead, sought to clarify that Beaumont was “also vicariously liable for the neurologists’ failure to administer tPA.” Further, the trial court abused its discretion in denying his motion to amend his complaint based on undue delay.

    Full Text Opinion

  • Malpractice (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73348
    Case: Gonzalez v. Beaumont Hosp.-Farmington Hills
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher, Sawyer, and Meter
    Issues:

    Medical malpractice; Motion to amend the notice of intent to file claim (NOI) & complaint; Kostadinovski v. Harrington; MCL 600.2912b; MCL 600.2301; Bush v. Shabahang; MCL 600.2912b(1); Burton v. Reed City Hosp. Corp.; Decker v. Rochowiak; Undue delay; MCR 2.118(A)(2); Weymers v. Khera; Whether failure to file an amended affidavit of merit precluded plaintiff from amending his complaint; MCL 600.2912d(1); King v. Reed

    Summary:

    Holding that the trial court abused its discretion in denying plaintiff’s motion to amend the NOI and complaint, the court reversed and remanded. Plaintiff claimed that defendant-Beaumont was vicariously liable for the negligence of its ER “physicians and staff for failing to timely diagnose plaintiff’s stroke and to administer tissue plasminogen activator (tPA).” He argued the trial court erred in denying his motion to amend the NOI. The court held that the first prong of Bush was satisfied. Allowing him to amend the NOI and complaint did not affect Beaumont’s substantial rights “because the original NOI put Beaumont on notice of possible claims arising from the neurologists’ failure to diagnose and treat plaintiff’s stroke.” The second prong was also satisfied. “Plaintiff’s original NOI, considered as a whole, clearly set forth plaintiff’s medical malpractice claim on the basis of Beaumont’s failure to determine the time frame during which tPA could have been timely administered.” Specifically, the NOI asserted “Beaumont was vicariously liable for the actions of the emergency department physicians for failing to properly care for, diagnose, and treat plaintiff’s condition.” The NOI identified “the standard of care applicable to Beaumont, and to the doctors and nurses who participated in treating plaintiff, and alleges that the failure to treat plaintiff with tPA caused significant neurological and cognitive deficits.” Two ER doctors who were also defendants were specifically named in the NOI, which also referenced “the neurology consult, identifying several inaccuracies within the neurology consultation report. Because plaintiff made a good faith attempt to comply with the requirements of MCL 600.2912b, allowing the proposed amendments to the NOI would be in the furtherance of justice.” The court also agreed with plaintiff that the trial court erred in denying his motion because he was not seeking to add an additional legal claim but instead, sought to clarify that Beaumont was “also vicariously liable for the neurologists’ failure to administer tPA.” Further, the trial court abused its discretion in denying his motion to amend his complaint based on undue delay.

    Full Text Opinion

  • Negligence & Intentional Tort (4)

    Full Text Opinion

    e-Journal #: 73293
    Case: Bernadi v. Rock
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gadola and Letica; Dissent - Gleicher
    Issues:

    Auto negligence action under the No-Fault Act (MCL 500.3101 et seq.); Whether plaintiff suffered a serious impairment of a body function; MCL 500.3135(1) & (5); McCormick v. Carrier; Principle that the aggravation or triggering of a pre-existing condition can constitute a compensable injury; Fisher v. Blankenship; Wilkinson v. Lee; Principle that a degenerative condition can be exacerbated by subsequent injury such that it constitutes an impairment of a bodily function; Washington v. Van Buren Cnty. Rd. Comm’n; Causation; Patrick v. Turkelson; Skinner v. Square D Co.; Weymers v. Khera; Principle that settlements may be motivated by a great many possible considerations unrelated to the substantive merits of a claim; Chouman v. Home Owners Ins. Co.; Expert testimony; Edry v. Adelman; MRE 702; MCL 600.2955(1); Daubert v. Merrell Dow Pharms., Inc.; Gilbert v. DaimlerChrysler Corp.; Elher v. Misra; Use of an expert to prove factual causation; Mulholland v. DEC Int’l Corp.; Craig v. Oakwood Hosp.; Lowery v. Enbridge Energy Ltd. P’ship; West v. General Motors Corp.; Social Security disability (SSD)

    Summary:

    Holding that the trial court did not err by finding that plaintiff’s expert’s (Dr. S) opinion that the auto accident at issue caused plaintiff’s herniated disc was unreliable, and thus, that there was no evidence of causation, the court affirmed summary disposition for defendant-driver. Plaintiff sued defendant alleging he suffered a serious impairment of body function as a result of an accident in which defendant rear-ended the bus he was driving, and that, even if he had a pre-existing condition, defendant’s negligence aggravated it. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition on the causation question after it determined S’s opinion that the accident caused his disc herniation was unreliable. It first found that the trial court did not err in rejecting “plaintiff’s reliance on the outcome of the separate SSD legal proceeding as it neither involved a determination that this accident caused plaintiff’s herniated disc or his aggravated his back condition.” It also noted that S “testified that disc herniation occurs with and without trauma. In fact, [S] recognized that disc herniation could be caused by every day activities, like coughing, sneezing, or placing a child into a car.” Further, despite S’s credentials, which the trial court recognized, S’s “conclusion was unsupported by peer-reviewed medical literature.” And S’s assumption that plaintiff “suffered trauma to his body, including his back, that caused a herniated disc was speculative.” Finally, the trial court “appropriately relied upon the lack of literature as a factor in addition to [S’s] incorrect assumptions or speculation about the facts surrounding this accident, namely that plaintiff was unrestrained and that trauma occurred.”

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    e-Journal #: 73354
    Case: Birchfield v. Chiodo
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Gleicher and M.J. Kelly; Dissent - Markey
    Issues:

    Serious impairment of an important body function; MCL 500.3135(1); MCL 500.3135(2)(a); MCL 500.3135(5); McCormick v. Carrier; Lysogorski v. Bridgeport Charter Twp.; Washington v. Van Buren Cnty. Rd. Comm’n; Schwingschlegl v. City of Monroe; Mosley v. Dati

    Summary:

    Holding that plaintiff-Birchfield “created a triable issue of fact that he suffered a serious impairment of an important body function, contrary to the trial court’s assessment,” the court reversed and remanded. Birchfield was rear-ended by defendant-Chiodo and initially denied any injury. During the next three years, he “sought treatment for his back pain from a number of medical providers.” Because the pain persisted, he sought damages under MCL 500.3135(1). The court emphasized that the evidence revealed a factual dispute as to the nature and extent of the back injury, and that the dispute was material to deciding whether he suffered a serious impairment. Under the rules governing summary disposition, the court may not determine whether his evidence was “stronger or more persuasive than the evidence presented by defendants, and we may not superimpose our own view of which side should win or lose.” The court held that the evidence supported that “Birchfield has limited range of motion and chronic pain due to his back injury, that the impairment is objectively manifested by reduced range of motion and spasms, and that it has affected (and continues to affect) his general ability to lead his normal life.”

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    e-Journal #: 73331
    Case: Rockov v. Lilley Pointe Condo. Ass'n
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Murray, Jansen, and Markey
    Issues:

    Trip & fall on a step; Premises liability; Negligence; Open & obvious danger; Lugo v. Ameritech; Special aspects; Hoffner v. Lanctoe; Whether the danger was effectively unavoidable; Wilson v. BRK, Inc.; Statutory liability under the Condominium Act (MCL 559.101 et seq.); MCL 559.241; MCL 554.139; Compliance with local law, ordinances, & regulations; MCL 559.241(1), Whether the condo was a dangerous building under the Housing Law of Michigan (MCL 125.401 et seq.); MCL 125.536(1), 538, & 539; Michigan Construction Code (MCC)

    Summary:

    The court held that the trial court properly dismissed plaintiff’s common-law premises liability claim, but failed to properly address her statutory claim. Plaintiff sued defendants-condo association, management group, and condo owner for injuries she sustained when she tripped and fell on a porch step. The trial court granted summary disposition for defendants. On appeal, the court rejected her argument that “special aspects” existed removing the case from the open and obvious danger doctrine because the porch step was effectively unavoidable, noting the step “was not effectively unavoidable because plaintiff was not forced or compelled to encounter” it. The court next addressed her claim that the open and obvious danger doctrine did not apply because a statutory duty existed under the Condominium Act, and the step violated MCL 559.241 by exceeding the maximum height allowed by the MCC, which had been adopted by the city. It found that that “the proper approach is to remand this case to the trial court for the court to address the issue as it should have done in the first instance." It directed the trial court, “either from the bench or in a written opinion, to substantively address, analyze, and resolve” the issue, taking into account Wilson, “along with any relevant statutory or caselaw” and allowing “the parties to submit supplemental briefs.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

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    e-Journal #: 73351
    Case: White v. Diva Nails, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens and Servitto; Dissent – Cavanagh
    Issues:

    Alternative-liability theory; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Kamanski v. Grand Trunk W.R. Co.; Causation; Abel v. Eli Lilly & Co.; Gerling Konzern Allgemeine Versicherungs AG v. Lawson; Kaiser v. Allen; MCL 600.2956, MCL 600.2957(1), MCL 600.2960(1), & MCL 600.6304; Whether the alternative-liability theory is viable in Michigan; Statutory interpretation; Lamp v. Reynolds; MCL 600.6304(4); MCL 600.6304(1)(b); Fault defined; MCL 600.6304(8); MCL 600.6304(1)(b); Gelman Scis., Inc. v. Fidelity & Cas. Co. of NY; Napier v. Osmose, Inc. (WD MI); Abela v. General Motors Corp.

    Summary:

    Holding that “alternative-liability theory is still viable in Michigan,” the court determined that “the trial court erred when it granted defendants’ motions for summary disposition because plaintiff presented sufficient evidence to create a genuine issue of fact” as to causation. Thus, it reversed the trial court’s order granting summary disposition in favor of defendants-Diva Nails, LLC and Nails Studio (collectively, defendants). Plaintiff-customer argued that alternative-liability theory was still viable in Michigan and there was a genuine issue of material facts as to whether either defendant caused her injury, Herpes Whitlow. The court agreed. Defendants contended that the theory was “no longer viable in Michigan because joint and several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform.” The court held that alternative-liability theory was applicable here because plaintiff could show the three threshold requirements. Thus, she was relieved of the burden of proving causation in fact, which shifted to defendants. Plaintiff “demonstrated an inability to identify the nail salon which harmed her and may benefit from ‘the burden-shifting feature of alternative[-]liability theory to withstand summary [disposition] on the causation issue of the negligence claim[].’” Plaintiff was “still obligated to present evidence proving all other elements of negligence, including proximate causation.” Moreover, plaintiff “presented substantial evidence from which a jury may conclude that, more likely than not, she would not have contracted Herpes Whitlow but for defendants’ conduct.” The trial court ignored plaintiff’s expert’s testimony that she “contracted Herpes Whitlow from one of the two nail salons and that both defendants acted negligently. While 50% to 80% of the population have Herpes Simplex 1, the trial court was incorrect in determining that Herpes Whitlow is common and thus there was no way to determine where plaintiff contracted the virus. To the contrary, Herpes Whitlow is very rare and is much more difficult to pass from one individual to another.” The court held that the trial court decided a fact that can only be resolved by the jury. Thus, it determined that summary disposition was inappropriate.

    Full Text Opinion

  • Wills & Trusts (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73339
    Case: Chakmak v. Estate of Joan S. Chakmak
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel, Servitto, and Beckering
    Issues:

    Rejection of evidence as to the market value of properties; The trial court’s factual findings after a bench trial; Menhennick Family Trust v. Menhennick; Review limited to the trial court record; Kent Cnty. Aeronautics Bd. v. Department of State Police; Validity of a gift; In re Casey Estate; Garrison v. Union Trust Co.; Sanctions; Frivolous suit or defenses; MCL 600.2591(1) & (3); MCR 2.625(A)(2); In re Attorney Fees & Costs; Rieth v. Keeler; Amberg v. City of Dearborn; Principle that appellate review is limited to issues actually decided by the trial court; Allen v. Keating; Appellate expenses; MCR 7.216(C)(1) & (8); Kitchen v. Kitchen

    Summary:

    The court held that plaintiff failed to show the trial court clearly erred when it determined that he did not sustain his burden in establishing that decedent-Joan (his stepmother) breached her fiduciary duty in connection with the sale prices of the Colorado properties at issue. Also, the trial court did not err when it determined that plaintiff failed to sustain his burden to show that Joan sold a lot for just $10. Finally, defendant-estate’s request for sanctions failed on the merits. Thus, the court affirmed the order dismissing his claims against defendant, and rejected defendant’s cross-appeal “insofar as the trial court did not rule on defendant’s request for sanctions against plaintiff for the filing of frivolous claims.” Plaintiff, who was a trustee of the Family Trust created by his father and Joan, argued that the trial court clearly erred when it rejected his evidence as to the market value of the Colorado properties. He contended “that the trial court erred when it disregarded his valuation testimony and instead relied on its own calculations to determine the value of the” properties. Plaintiff cited “multiple treatises and articles that were not presented or discussed during trial and asks this Court take judicial notice of these treatises and texts.” However, the court’s “‘review is limited to the record developed by the trial court,’ and a ‘party is not permitted to enlarge the record on appeal by asserting numerous facts that were not presented at the trial court.’” While plaintiff asserted that the resources he now relied on were “commonly known to be accurate in this jurisdiction, he neither indicates that those resources were unavailable for him to present at trial nor otherwise explains why this Court should consider evidence that was not presented below.” The court further noted that “the trial court conducted its own calculations to illustrate the lack of explanation” from plaintiff as to how he reached his valuation. In addition, the trial court noted that, even if he had shown that the Colorado properties were “sold for an unreasonable value, the court’s own calculation regarding their value indicated that Joan would have been entitled to retain the proceeds of those sales under certain exemptions and reimbursements to which she was entitled under Michigan law.”

    Full Text Opinion

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