Stephen P. Brown
Carole S. Empey
Kayla P. Kolbe
Joseph P. McGill
Matthew D. Mills
Kim J. Sveska
Enrico (Eric) G. Tucciarone
Kurtis T. Wilder
Michael J. Willis
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Condominium bylaw enforcement; Award of attorney fees & costs; The Condominium Act; MCL 559.206(b); “Proceeding”; “Any proceeding”; The “American Rule”; “Successful” for purposes of either MCL 559.206(b) or the Bylaws; Copperfield Villas Association (CVA)
Holding that the trial court erred by limiting plaintiff-condo association’s (CVA) award to attorney fees incurred before its first appeal, the court reversed and remanded for the trial court to determine the reasonable amount of attorney fees owed to CVA. CVA alleged bylaw violations by defendants-Tuers, owners of one of the association’s condominiums. “The parties reached a stipulated agreement settling the substantive claims but could not agree regarding the amount of attorney fees owed.” The trial court awarded CVA $8,000 in attorney fees and costs. CVA argued that the trial court erred by holding that it could recover attorney fees only for those proceedings that occurred before the first appeal. The court concluded that the trial court erred where the “Bylaws allow the CVA to recover reasonable attorney fees and costs incurred in any proceeding to resolve the Tuers’s alleged bylaw violations.” Further, it found that “the trial court’s rationale improperly punishes the CVA for pursuing its rights on appeal.” Finally, it determined that “the CVA was ‘successful’ in this lawsuit and is entitled to recover reasonable attorney fees and costs under MCL 559.206(b) and the association Bylaws.”
Whether DataMaster logs were nontestimonial & admissible as business records under MRE 803(6); Solomon v Shuell; The Confrontation Clause
In an order in lieu of granting leave to appeal, the court vacated Part II(C) of the Court of Appeals opinion (see e-Journal # 73794 in the 9/14/20 edition for the published opinion), and remanded to the trial court for further proceedings. It concluded the “Court of Appeals’ suggestion that a trial court may not consider whether there are reasons to doubt the trustworthiness of a particular purported business record” lacked support. In fact, “MRE 803(6) gives the trial court discretion to consider whether any particular circumstances undercut the indicia of trustworthiness that is generally presumed to apply to business records.” The court agreed with the dissenting Court of Appeals “judge that ‘nowhere in MRE 803(6) is there any limitation on the meaning of “trustworthiness” or specification of how or why a record might lack trustworthiness[.]’” The court additionally disagreed with the Court of Appeals “majority’s assertion that the trustworthiness of the log is merely ‘a question of the weight that the fact-finder should give this evidence’ and not a question of ‘whether they are admissible as business records.’” The court noted it “already considered and rejected that argument in Shuell: ‘We disagree, however, that, under MRE 803(6), trustworthiness is not also a question of admissibility. As the rule and its theoretical underpinnings indicate, trustworthiness is, under MRE 803(6) . . . an express condition of admissibility.’” However, it concluded the trial court erred in finding “that the MRE 803(6) exception did not apply because the DataMaster technician was employed by a contractor rather than directly by the state of Michigan. The lack of a direct employer–employee relationship, without more, does not indicate a lack of trustworthiness.” The court noted the “powerful motivation” to be accurate it recognized in Shuell “applies to direct and contract employees alike—unless there is evidence that it is lacking in a particular case.” It took no position on whether the contractor or contract employee here was “sufficiently trustworthy to support the admission of the records under MRE 803(6). On remand, the trial court may consider further arguments on the issue of trustworthiness.” The court denied the application for leave to appeal in all other respects because it was not persuaded it should review the remaining question presented.
Chief Justice McCormack, joined by Justice Bernstein, concurred in “vacating the Court of Appeals’ analysis of the application of MRE 803(6).” She agreed defendant should have another opportunity to argue this hearsay exception applies “in light of unique concerns about the trustworthiness of this particular declarant.” She also concurred in the denial of leave on the separate issue “of whether a technician’s inspection logs of a DataMaster breath-testing machine are testimonial statements that trigger constitutional protections under the Confrontation Clauses” absent further guidance from the U.S. Supreme Court, but wrote “separately to express some reservations about the consensus that has seemingly emerged that these statements are nontestimonial.”
Action by a healthcare provider to recover personal protection insurance (PIP) benefits under the No-Fault Act; Cancellation of an insurance policy; MCL 500.3020; Yang v Everest Nat’l Ins Co; Effect of cashing a refund check; Mutuality requirement for a contract modification; Reasonableness of requested medical charges; MCL 500.3107(1)(a); MCL 500.3157(1); MCR 2.116(G)(4); Attorney fees; MCL 500.3148(1); Michigan Assigned Claims Plan & Michigan Automobile Insurance Placement Facility (collectively MAIPF); MCL 500.3172(1)(a)
Holding that defendant-insurer (Falls Lake) did not comply with MCL 500.3020(1)(b)’s notice requirements to effectively cancel its policy and thus, it was still in effect at the time of the accident at issue, the court affirmed summary disposition for plaintiff-healthcare provider (Bronson). Further, Falls Lake offered no evidence that a genuine issue of material fact existed as to the reasonableness of Bronson’s charges. The court also upheld the award of attorney fees to Bronson under MCL 500.3148(1). Finally, it affirmed summary disposition for defendants-MAIPF given that Falls Lake was “responsible for payment of Bronson’s medical charges” and the MAIPF did not need to be involved in the case. Bronson sought to recover PIP benefits “for medical services provided to a pedestrian who was” struck by a vehicle driven by Falls Lake’s insured (J). The court noted the facts here were similar to those in Yang. Falls Lake conceded the notice it sent to J “was not a valid cancellation notice under Yang because it was sent before the premium payment was due.” But Falls Lake asserted “the premium refund check served as proper notice of cancellation and that [J] agreed to the cancellation because he cashed the check. This argument is unavailing because MCL 500.3020(1)(b) requires that the insured be provided with 10 days’ notice of the cancellation in order to reinstate the policy or obtain different insurance.” In addition, to the extent Falls Lake contended J’s cashing the “check established his agreement or assent to the cancellation of the policy, there” was no record evidence indicating his “state of mind or understanding.” The document simply stated “the refund was for the canceled policy. There was no indication that cashing the check constituted agreement to the policy’s cancellation or waiver of the 10 days’ notice requirement in MCL 500.3020(1)(b).” As to the reasonableness of Bronson’s charges, “Falls Lake failed to specify which charges were unreasonable or explain why” they were so, and it offered no supporting documentary evidence. As to attorney fees, “even considering what was known to Falls Lake . . . when it denied Bronson’s claim for benefits, its denial was unreasonable considering the language of its own policy and longstanding caselaw.”
Termination under §§ 19b(3)(c)(i), (g), & (j); Reasonable reunification efforts; Child’s best interests
Holding that the trial court properly found that §§ (c)(i), (g), and (j) existed, that reasonable efforts were made to reunify respondent-mother with the child, and that termination was in the child’s best interests, the court affirmed termination of her parental rights. The court initially noted that her argument on the issue of reunification consisted largely of a review of her history and mental health issues. She did “not significantly identify what additional efforts should have been made to seek reunification beyond a general assertion that a referral had not been made for services based upon the psychological evaluation.” But her support for this claim was “a statement by the guardian ad litem at a permanency planning hearing held four months before the termination hearing to the effect that respondent had recently taken part in a psychological evaluation and that the recommendations arising from that evaluation had not yet been put in place.” Further, the testimony of both foster care workers C and F “was that respondent did not take advantage of the services that had been offered.” Indeed, not only did F “testify that respondent failed to take advantage of the services that had been offered, [F] did not believe that there were any services that could be offered that would make a difference in this case. In light of this testimony, and respondent’s failure to identify any additional services that should have been provided,” the court was “not persuaded that there are any additional efforts that could have or should have been made to reunify respondent with the” child. As to the child’s best interests, while there appeared to be a good bond between them, given “the psychological evaluation, the poor prognosis in this case, and the need for permanency and stability,” the trial court did not clearly err in finding that termination was in the child’s best interests.
State Bar of Michigan
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Lansing, MI 48933-2012