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Attorneys (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 77773 Case: Bradley v. Frye-Chaiken Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Sanctions; Imposition of an attorney-fee award against a party’s counsel; MCR 1.109(E); MCL 600.2591(1); Notice; Opportunity to be heard; Entry of the judgment; MCR 2.602(B); Statutory interest; MCL 600.6013(8); Whether detailed billing records supported the claim for fees; Smith v Khouri; Admission of a billing summary; Limitation on cross-examination; MRE 611 Summary: The court held that the trial court’s inclusion of defendant-Frye-Chaiken’s attorney (appellant-Powers) “on the judgment for sanctions, jointly and severally with Frye-Chaiken and her prior attorneys, did not fall outside the range of reasonable and principled outcomes.” Further, the judgment complied with MCR 2.602(B)(1) and there was no error in “including statutory interest in the attorney-fees award.” The court also determined “the trial court did not abuse its discretion in admitting plaintiffs’ exhibit 1 or limiting the scope of the cross-examination of” their attorney at the evidentiary hearing as to the attorney fee request. The underlying case involved breach of contract and promissory estoppel claims. The trial court granted plaintiffs summary disposition and found “that Frye-Chaiken’s counter-claims and defenses were frivolous. Following an evidentiary hearing, the trial court entered a judgment for sanctions against Frye-Chaiken, Powers, and Frye-Chaiken’s three prior attorneys, jointly and severally.” The court concluded that “Powers was not required to be joined as a party to the action to be subject to sanctions, nor was he insulated from sanctions simply by his late involvement. He appeared on behalf of Frye-Chaiken, signed trial court filings, and appeared in court on behalf of Frye-Chaiken. Michigan law supports the imposition of joint and several liability for attorney fees and costs.” The court additionally noted it “has indicated that it is unnecessary to establish a causal connection in imposing sanctions under MCL 600.2591.” The court rejected Powers’ assertions that he lacked notice he could be held liable for sanctions and that he was not given sufficient opportunity to be heard about their imposition. The record showed “the trial court expressly warned Powers that his representation of Frye-Chaiken would subject him to liability for sanctions. And [plaintiffs] specifically asked for $16,430 in attorney fees to be imposed against Frye-Chaiken ‘and her attorneys in accordance with MCR 1.109(E), MCR 2.625, and MCL 600.2591.’” Further, the trial court conducted “an evidentiary hearing for the purpose of the parties submitting evidence, allowed the parties to submit their closing arguments in writing, and considered (but ultimately denied) Powers’ post-judgment motions.” Affirmed. Full Text Opinion

Constitutional Law (1) Full Text Opinion This summary also appears under Family Law e-Journal #: 77792 Case: In re TEM Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Consent to adopt; Withholding of consent by the Michigan Children’s Institute (MCI); In re Cotton; MCL 400.209; Whether the Michigan Adoption Code & statutes governing the MCI Superintendent are “void for vagueness”; Protected interest for purposes of due process; MCL 710.24a(1)(a); MCL 722.958a(2)(a) Summary: The court held that the trial court did not commit clear legal error when it determined that the MCI Superintendent’s decision denying petitioners consent to adopt a child (TEM) was not arbitrary and capricious. Also, it rejected their challenge that portions of the Adoption Code and statutes governing the MCI Superintendent are unconstitutional. They sought consent to adopt TEM after serving as foster parents for TEM and a sibling (EM). The MCI Superintendent withheld consent to adopt. The trial court concluded that the Superintendent’s decision “was not arbitrary and capricious and ruled that the Michigan Adoption Code” and statutes governing the MCI Superintendent were not void for vagueness. The court concluded the “trial court applied the correct legal standard. It properly noted that the correctness of the children’s removal and the circumstances surrounding the removal were not at issue; rather, it was whether the MCI Superintendent’s decision was arbitrary and capricious.” Contrary to petitioners’ claims, “the trial court did not ignore any specific period of time or refuse to review the nature of the MCI Superintendent’s decision. Petitioners misunderstand the limited scope of the trial court’s review.” The court noted that “Michigan authority is clear that the court is to determine if there is any good reason to support the MCI Superintendent’s decision; if so, the decision must be upheld.” The court agreed with the trial court’s ruling “that there was good reason to support the MCI Superintendent’s decision. The MCI Superintendent thoroughly evaluated four factors, and she determined that, apart from one factor, petitioners and the grandmother were equal. The only factor in which there was a difference was a factor that the MCI Superintendent and Michigan policy place a great deal of emphasis on: keeping siblings together. The grandmother, in contrast to petitioners, desired to adopt both children. Given that petitioners did not desire to adopt EM, the MCI Superintendent determined that the factors weighed against consent.” The record showed that “the MCI Superintendent considered petitioners’ outstanding record as foster parents and did not rely on inaccurate information.” The court further noted that “TEM had expressed a desire to be adopted by the grandmother along with EM. Many other personnel, including the children’s therapist, physician, and guardian ad litem, supported keeping the children together. This was not an arbitrary and capricious determination but one supported by thoughtful analysis and adequate investigation.” Affirmed. Full Text Opinion

Criminal Law (1) Full Text Opinion e-Journal #: 77750 Case: United States v. McCallister Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Readler, McKeague, and Nalbandian Issues: Search & seizure; Motion to suppress firearm evidence; United States v Terry; Whether there was “reasonable suspicion” defendant had been smoking marijuana Summary: The court held that because there was at least “a moderate chance” defendant-McCallister had smoked marijuana, and because a police officer saw a “bump out” from his shirt and a firearm magazine in his waistband, the stop and the frisk were constitutional under Terry. Thus, the district court did not err by denying his motion to suppress the firearm evidence. McCallister, along with a group of others, was stopped for smoking marijuana in a park. An officer discovered a modified Glock in McCallister’s waistband. He was charged with illegal possession of a machine gun and possessing an unregistered firearm. He unsuccessfully moved to suppress the Glock and eventually pled guilty, preserving his right to appeal the suppression decision. As to his challenges to the district court’s factual findings, the court saw no error in its determination that he was part of the gathering at the park where two officers and body-cam footage supported this. Secondly, it held that there was sufficient evidence the smell of marijuana was emanating from the group. McCallister argued it could have come from hemp, a legal material. But this was “an insufficient basis upon which to reverse a district court’s factual finding.” As to his challenges to the search itself, the court held that there was reasonable suspicion supporting a lawful Terry stop and a lawful Terry frisk. Under the totality of the circumstances, which “includes the officer’s own observations as well as information the officer receives from police reports, dispatch, and fellow officers[,]” it upheld the stop. The police department received an anonymous tip that a group of men in the park were smoking marijuana, and two officers drove by the scene and confirmed a group had gathered. Officers then went to the scene and smelled marijuana. The park was also a known drug-crime location, and McCallister, along with some others, tried to leave the scene. “All things considered, there was at least a moderate chance that McCallister had smoked marijuana.” The court noted it was not necessary that the officers could say with certainty one particular person in the group had been smoking marijuana. Turning to the frisk, an officer testified he “saw both a ‘bump out’ from McCallister’s shirt and a firearm magazine in his waistband, leaving ‘little question [that] the officer was justified’ in frisking McCallister.” He also turned his body away from the police and refused to answer when asked if he had a weapon. Finally, the officers were aware of “frequent shootings in the park and that, days earlier, several men had brought firearms into the park.” Affirmed. Full Text Opinion

Family Law (1) Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 77792 Case: In re TEM Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Consent to adopt; Withholding of consent by the Michigan Children’s Institute (MCI); In re Cotton; MCL 400.209; Whether the Michigan Adoption Code & statutes governing the MCI Superintendent are “void for vagueness”; Protected interest for purposes of due process; MCL 710.24a(1)(a); MCL 722.958a(2)(a) Summary: The court held that the trial court did not commit clear legal error when it determined that the MCI Superintendent’s decision denying petitioners consent to adopt a child (TEM) was not arbitrary and capricious. Also, it rejected their challenge that portions of the Adoption Code and statutes governing the MCI Superintendent are unconstitutional. They sought consent to adopt TEM after serving as foster parents for TEM and a sibling (EM). The MCI Superintendent withheld consent to adopt. The trial court concluded that the Superintendent’s decision “was not arbitrary and capricious and ruled that the Michigan Adoption Code” and statutes governing the MCI Superintendent were not void for vagueness. The court concluded the “trial court applied the correct legal standard. It properly noted that the correctness of the children’s removal and the circumstances surrounding the removal were not at issue; rather, it was whether the MCI Superintendent’s decision was arbitrary and capricious.” Contrary to petitioners’ claims, “the trial court did not ignore any specific period of time or refuse to review the nature of the MCI Superintendent’s decision. Petitioners misunderstand the limited scope of the trial court’s review.” The court noted that “Michigan authority is clear that the court is to determine if there is any good reason to support the MCI Superintendent’s decision; if so, the decision must be upheld.” The court agreed with the trial court’s ruling “that there was good reason to support the MCI Superintendent’s decision. The MCI Superintendent thoroughly evaluated four factors, and she determined that, apart from one factor, petitioners and the grandmother were equal. The only factor in which there was a difference was a factor that the MCI Superintendent and Michigan policy place a great deal of emphasis on: keeping siblings together. The grandmother, in contrast to petitioners, desired to adopt both children. Given that petitioners did not desire to adopt EM, the MCI Superintendent determined that the factors weighed against consent.” The record showed that “the MCI Superintendent considered petitioners’ outstanding record as foster parents and did not rely on inaccurate information.” The court further noted that “TEM had expressed a desire to be adopted by the grandmother along with EM. Many other personnel, including the children’s therapist, physician, and guardian ad litem, supported keeping the children together. This was not an arbitrary and capricious determination but one supported by thoughtful analysis and adequate investigation.” Affirmed. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Attorneys e-Journal #: 77773 Case: Bradley v. Frye-Chaiken Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Sanctions; Imposition of an attorney-fee award against a party’s counsel; MCR 1.109(E); MCL 600.2591(1); Notice; Opportunity to be heard; Entry of the judgment; MCR 2.602(B); Statutory interest; MCL 600.6013(8); Whether detailed billing records supported the claim for fees; Smith v Khouri; Admission of a billing summary; Limitation on cross-examination; MRE 611 Summary: The court held that the trial court’s inclusion of defendant-Frye-Chaiken’s attorney (appellant-Powers) “on the judgment for sanctions, jointly and severally with Frye-Chaiken and her prior attorneys, did not fall outside the range of reasonable and principled outcomes.” Further, the judgment complied with MCR 2.602(B)(1) and there was no error in “including statutory interest in the attorney-fees award.” The court also determined “the trial court did not abuse its discretion in admitting plaintiffs’ exhibit 1 or limiting the scope of the cross-examination of” their attorney at the evidentiary hearing as to the attorney fee request. The underlying case involved breach of contract and promissory estoppel claims. The trial court granted plaintiffs summary disposition and found “that Frye-Chaiken’s counter-claims and defenses were frivolous. Following an evidentiary hearing, the trial court entered a judgment for sanctions against Frye-Chaiken, Powers, and Frye-Chaiken’s three prior attorneys, jointly and severally.” The court concluded that “Powers was not required to be joined as a party to the action to be subject to sanctions, nor was he insulated from sanctions simply by his late involvement. He appeared on behalf of Frye-Chaiken, signed trial court filings, and appeared in court on behalf of Frye-Chaiken. Michigan law supports the imposition of joint and several liability for attorney fees and costs.” The court additionally noted it “has indicated that it is unnecessary to establish a causal connection in imposing sanctions under MCL 600.2591.” The court rejected Powers’ assertions that he lacked notice he could be held liable for sanctions and that he was not given sufficient opportunity to be heard about their imposition. The record showed “the trial court expressly warned Powers that his representation of Frye-Chaiken would subject him to liability for sanctions. And [plaintiffs] specifically asked for $16,430 in attorney fees to be imposed against Frye-Chaiken ‘and her attorneys in accordance with MCR 1.109(E), MCR 2.625, and MCL 600.2591.’” Further, the trial court conducted “an evidentiary hearing for the purpose of the parties submitting evidence, allowed the parties to submit their closing arguments in writing, and considered (but ultimately denied) Powers’ post-judgment motions.” Affirmed. Full Text Opinion

Real Property (1) Full Text Opinion e-Journal #: 77780 Case: Schwintek Inc. v. High Top Buds, LLC Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Revocation of restrictive covenants; Timeliness; Effective date; Brown v Martin; Uniformity; Reasonableness Summary: Viewing the evidence in the light most favorable to plaintiff-Schwintek, the court held that the trial court did not err by concluding there was no genuine issue of material fact as to whether defendant-HTB’s revocation of the restrictive covenants was valid. Schwintek argued that “HTB failed to revoke the restrictive covenants because the revocation was untimely, nonuniform, and unreasonable.” Schwintek first contended the trial court erred in concluding that the revocation began on the next 10-year renewal date, which was 1/1/21. The trial court’s decision on this issue was based on the court’s decision in Brown. The restrictions automatically renewed on 1/1/11. The next 10-year period was due to expire on 12/31/20. The revocation was executed and recorded on 10/23/20. “Similar to the provision at issue in Brown, the plain language of the restrictive covenants provides for an automatic 10-year renewal ‘unless the owners of more than [75%] of the real estate . . . shall execute and record . . . an instrument revoking or modifying such restrictions.’ Because the revocation was executed and recorded during the renewal period, it became effective after the renewal period ended, which was on” 1/1/21. Schwintek further asserted the trial court erred in concluding that the revocation applied to the entire industrial park. However, the court agreed with “the trial court’s determination that the plain language of the revocation leads to the conclusion that it revoked the entire restrictive covenant and applied uniformly to all of the lots in the industrial park.” The court also rejected Schwintek’s substantive reasonableness argument, noting that Michigan’s “appellate courts have not adopted the ‘substantively reasonable’ requirement that Schwintek” relied on from case law in other jurisdictions. And it found it unnecessary to address whether HTB’s proposed facility violated the covenants, because they were successfully revoked effective 1/1/21. Affirmed. Full Text Opinion

Termination of Parental Rights (1) Full Text Opinion e-Journal #: 77785 Case: In re El-Shabazz Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Sawyer, Letica, and Patel Issues: Jurisdiction under MCL 712A.2(b); Distinguishing In re Christie Summary: Because it was not left with a definite and firm conviction the trial court made a mistake in determining jurisdiction over the child at issue (KAE) was established by a preponderance of the evidence, the court affirmed. Respondent-mother and the putative-father contended KAE was born in Indiana late in 7/20 “and was never in Kent County until KAE was brought to Michigan from Georgia” in 8/20 pursuant to the trial court’s order. They asserted that the trial court lacked jurisdiction over KAE as a result. However, the court concluded that, “unlike the undisputed evidence in” Christie, the evidence before the trial court here did “not compel this view.” Testimony was presented “from a detective with the Kent County Sheriff’s Department that putative father, respondent, and an infant visited the putative father’s uncle at his Kent County residence approximately one week” before 8/14/20. The putative father’s “uncle confirmed that the visit occurred approximately one to two weeks before” that date. Additionally, there was “testimony that respondent’s last known address was in Kent County in [8/20]. And the trial court noted that, since [9/18], respondent and putative father had provided caseworkers and the trial court with Kent County residential addresses in the proceedings involving” the couple’s other child. The trial court found “that a preponderance of the evidence established that KAE was found in Kent County in early [8/20] and, therefore, jurisdiction was established.” Full Text Opinion