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Business Law (1) Full Text Opinion This summary also appears under Litigation e-Journal #: 75842 Case: Jappaya v. F.G.Y., Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly and Swartzle; Concurring in the result only - Shapiro Issues: Bench verdict factual findings; Summary disposition of complaint seeking payment on loan documents; Waiver; Summary disposition before production of evidence to support claims for fraud & breach of fiduciary duty; Amendment of affirmative defenses to assert election of remedies; Amendment of the countercomplaint to raise the issue of shareholder oppression; Attorney fee request; Statutory interest; MCL 600.6013(7) & (8); Pre-judgment interest Summary: Finding no errors warranting reversal, the court affirmed the trial court’s verdict in this case arising from a business dispute and determination of attorney fees, but remanded “for the ministerial task of calculating interest premised on the correct filing date of the complaint and to amend the judgment to reduce the attorney fee award by $3,000” due to a clerical error. Defendants alleged that the trial court erred by holding that “all parties did not provide credible testimony because one of the two versions of events had to be true and [defendants-Yousif’s and Joe’s] testimony merely reflected factual inconsistencies and their limited knowledge and roles in the family business.” Under the circumstances, the court held that the trial court “did not ‘shirk’ its responsibility to find a witness credible or to delineate some part of a witness’s testimony to be credible. Rather, Yousif asserted that he trusted plaintiff and relied on plaintiff’s fraudulent statements to support the contention that plaintiff committed fraud and breached duties owed to the other shareholders. However, the extensive testimony indicated that Yousif was a smart and successful businessman who questioned the ‘waiver’ and ‘conflict of interest’ language in the documents submitted to him by [third-party defendant-Shawn] such that Yousif contacted two different lawyers to advise him.” The trial court was entitled to determine that “Yousif’s testimony was not credible, and therefore, he could not satisfy the elements to support defendants’ countercomplaint. The trial court’s holding that all of the shareholder witnesses had credibility issues and gave incredible testimony does not alter defendants’ inability to meet their proofs.” As to plaintiff’s claim seeking payment on the loan documents, the court held that the trial court did not err in granting summary disposition to plaintiff despite defendants’ claim that he “waived execution of the notes, mortgage, and guarantees that he acquired. The evidence of a waiver must be clear and convincing.” The court held that clear and convincing evidence of waiver was lacking. There was no writing obtained to show that “plaintiff had an intent to permanently forbear on defendants’ obligations. Additionally, the statements purportedly made by plaintiff also do not necessarily demonstrate an intent to absolve defendants of their financial commitments. Plaintiff may have merely reflected his desire not to seek contribution toward the note purchase because he did not want to confuse payment toward” that purchase with the obligations "in the documentation underlying his purchase.” Full Text Opinion

Constitutional Law (1) Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 75847 Case: Hullibarger v. Archdiocese of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Redford, Borrello, and Tukel Issues: Freedom of religion; Pilgrim’s Rest Baptist Church v Pearson; The ecclesiastical abstention doctrine; Winkler by Winkler v Marist Fathers of Detroit, Inc; First Protestant Reformed Church v DeWolf; “Religious doctrine”; Maciejewski v Breitenbeck; Intentional infliction of emotional distress (IIED); Lucas v Awaad; Misrepresentation & invasion of privacy; Swickard v Wayne Cnty Med Exam’r; Vicarious liability & negligent hiring, supervision, or retention; Principal liability for an agent’s acts; Rogers v JB Hunt Transp, Inc Summary: The court held that because defendant-Catholic priest’s (Father LaCuesta) conduct was protected by the ecclesiastical abstention doctrine, it may not pass judgment on the content of his sermon. Thus, it affirmed the trial court’s grant of summary disposition for defendants-Archdiocese, church, and Father LaCuesta. Plaintiff sued defendants after Father LaCuesta revealed her son’s suicide during his funeral and preached about suicide as a grave sin that endangered her son’s immortal soul. The trial court found Father LaCuesta’s conduct was protected by the ecclesiastical abstention doctrine, and plaintiff’s negligent hiring, supervision and retention allegation was barred for other reasons. The court found that the trial court “did not err by concluding that resolution of plaintiff’s claims would require a decision regarding matters of church doctrine and polity” and thus, the doctrine barred plaintiff’s claims. Plaintiff contended that her claims concerned “an agreement by Father LaCuesta to preside over the funeral service for her son—for which Father LaCuesta was compensated through a donation—in accordance with requests from [plaintiff’s] family regarding the content of the funeral service. But the actual adjudication of each of plaintiff’s claims would require an inquiry into religious doctrine and practices regarding sermons and funeral services, suicide, as well as why Father LaCuesta chose the words that he did, and personnel issues regarding hiring practices of the Catholic Church.” The court found that the trial court “properly applied the ecclesiastical abstention doctrine to bar plaintiff’s” IIED claim, noting that to find the content of Father LaCuesta’s homily at the funeral “extreme” or “outrageous” would require the trial court “to evaluate Catholic philosophy and doctrine regarding suicide, and whether Father LaCuesta complied with it.” Under Winkler, this “inquiry would be inappropriate.” The trial court also did not err when it ruled the “doctrine barred plaintiff’s claims of misrepresentation and invasion of privacy.” It correctly determined “that resolution of these claims would require evaluating religious doctrines and, by extension, trigger the” doctrine. The trial court was also “correct in concluding that plaintiff had no cognizable privacy interest in the fact that her son committed suicide.” Finally, the trial court properly “concluded that the ecclesiastical abstention doctrine barred plaintiff’s claims for vicarious liability and negligent hiring, supervision, or retention.” It agreed with defendants that the “Roman Catholic Church is an hierarchical organization and the Bishop’s power to make assignments of ministers to a parish is certainly a matter of ecclesiastical polity in which the courts may not interfere.” Full Text Opinion

Criminal Law (2) Full Text Opinion e-Journal #: 75843 Case: People v. Kelsey Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Murray, M.J. Kelly, and Rick Issues: Sentencing; Whether the correct guidelines range was used; The law of the case doctrine; Proportionality challenge to a within-guidelines sentence; Cruel & unusual punishment; Effect of a defendant’s age; Scope of a Crosby remand; People v Lockridge; Judge-found facts claim; Separation of powers & the modification of the guidelines under MCL 8.5; Alleged ex post facto violations; Restitution; The Crime Victim’s Rights Act (CVRA); MCL 780.766(2) & (3); “Victim” (MCL 780.766(1)); Restitution to a deceased victim’s estate; MCL 780.766(7); Requesting an amended order of restitution; MCL 780.766(8) & (22); Whether the CVRA is void for vagueness; Ineffective assistance of counsel; Driving while license suspended (DWLS) Summary: Noting that the scoring of defendant’s OVs and the circumstances of his crimes were the law of the case, the court rejected his claim that the trial court used an incorrect guidelines range. Further, his within-guidelines sentence was proportionate, and he did not overcome the presumption that it was not cruel or unusual. His argument that his minimum sentence was unconstitutionally supported by judge-found facts failed given that “his sentence after the Crosby remand was based on now-advisory” guidelines. There was also no ex post facto violation. Further, the trial court did not err by ordering him to pay restitution to the family of the deputy (W) killed as a result of defendant’s first-degree fleeing and eluding, and the replacement value of the police vehicle. He was also convicted of DWLS. In these consolidated appeals, he appealed the trial court’s order denying his motion for resentencing following a Crosby remand and its order requiring him to pay restitution to the sheriff’s department and W’s family. The court noted that in his prior appeal, it had ruled that OVs 3, 5, 9, 17, 18, and 19 were correctly scored, and that the evidence supported his identity as the driver of the vehicle eluding the police. Those “previous decisions are the law of the case.” As to his proportionality argument, his “recommended minimum sentence was 84 to 280 months.” He was sentenced to a minimum of 240 months. Because he “was sentenced within his guidelines range and there were no factual or scoring errors, his sentence is presumptively proportionate.” As to his contention that it constituted “cruel or unusual punishment because it is effectively a life sentence” due to his age, age by itself is not a ground to overcome the presumption a within-guidelines sentence is not cruel or unusual, “particularly when defendant has a lengthy criminal record and his crime caused the death of another person.” The court also rejected his claim “that the trial court erred by ordering him to pay restitution when he did not proximately cause [W’s] death and the destruction of his” patrol vehicle, noting that the jury necessarily found that his “conduct was both the factual and proximate cause of [W’s] death when it found him guilty of fleeing and eluding causing death.” Affirmed but remanded for amendment of the restitution award to reduce it for costs not supported by the testimony. Full Text Opinion Full Text Opinion e-Journal #: 75838 Case: People v. Nino Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Jansen, Boonstra, and Letica Issues: The public-safety exception to the requirement that Miranda warnings be given; Miranda v Arizona; New York v Quarles; Physical evidence; People v Gioglio; An appeal without representation by counsel; People v Haywood Summary: On remand, the court held that the circuit court did not err by finding defendant’s unwarned statement was subject to suppression, but remanded for the circuit court to remand to the district court for an evidentiary hearing on whether the physical evidence obtained as a result of his unwarned statement must be suppressed. He was arrested for delivery or manufacture of a controlled substance and issued three citations for traffic violations. Following his preliminary exam, the district court dismissed the controlled substance charge and declined to bind him over for trial, finding the officers violated his Miranda rights when they asked him if there was “anything” in the vehicle they should know about. Despite the prosecution’s argument that the public-safety exception to Miranda applied, as the officers were objectively concerned for their safety, the district court found they should have known the question was likely to elicit an incriminating response. The circuit court affirmed the district court’s decision to dismiss the controlled substance charge, concluding that the officers’ question was overly broad and intended as an investigatory inquiry rather than to dispel a specific safety concern. In a prior appeal, the court remanded so that defendant could request the appointment of counsel. However, he made no request and no attorney appeared on his behalf, and the court granted the prosecution leave to appeal. The court affirmed in part, reversed in part, and remanded. The Michigan Supreme Court then remanded the case with directions that the court hold the matter in abeyance pending a decision in Haywood. The court subsequently vacated its decision and remanded for the appointment of appellate counsel for defendant. Represented by counsel, defendant appealed. The prosecution argued that the district court abused its discretion by refusing to bind him over for trial for manufacturing or delivering marijuana. The court disagreed, finding he was subject to custodial interrogation before he was given his Miranda warnings, the public-safety exception did not apply, and his statement should be suppressed. “[I]t was not outside the range of reasoned and principled outcomes for the district court to conclude that defendant was subjected to a custodial interrogation prior to being advised of his rights under Miranda, and therefore, his responsive statement should be suppressed.” In addition, remand was necessary “for an evidentiary hearing regarding the admissibility of the physical evidence.” There was no “discussion by the parties or a determination made by the district court regarding the voluntariness of defendant’s statement to the police. This is an issue best put to the district court in the first instance.” Affirmed in part and remanded. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Business Law e-Journal #: 75842 Case: Jappaya v. F.G.Y., Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – K.F. Kelly and Swartzle; Concurring in the result only - Shapiro Issues: Bench verdict factual findings; Summary disposition of complaint seeking payment on loan documents; Waiver; Summary disposition before production of evidence to support claims for fraud & breach of fiduciary duty; Amendment of affirmative defenses to assert election of remedies; Amendment of the countercomplaint to raise the issue of shareholder oppression; Attorney fee request; Statutory interest; MCL 600.6013(7) & (8); Pre-judgment interest Summary: Finding no errors warranting reversal, the court affirmed the trial court’s verdict in this case arising from a business dispute and determination of attorney fees, but remanded “for the ministerial task of calculating interest premised on the correct filing date of the complaint and to amend the judgment to reduce the attorney fee award by $3,000” due to a clerical error. Defendants alleged that the trial court erred by holding that “all parties did not provide credible testimony because one of the two versions of events had to be true and [defendants-Yousif’s and Joe’s] testimony merely reflected factual inconsistencies and their limited knowledge and roles in the family business.” Under the circumstances, the court held that the trial court “did not ‘shirk’ its responsibility to find a witness credible or to delineate some part of a witness’s testimony to be credible. Rather, Yousif asserted that he trusted plaintiff and relied on plaintiff’s fraudulent statements to support the contention that plaintiff committed fraud and breached duties owed to the other shareholders. However, the extensive testimony indicated that Yousif was a smart and successful businessman who questioned the ‘waiver’ and ‘conflict of interest’ language in the documents submitted to him by [third-party defendant-Shawn] such that Yousif contacted two different lawyers to advise him.” The trial court was entitled to determine that “Yousif’s testimony was not credible, and therefore, he could not satisfy the elements to support defendants’ countercomplaint. The trial court’s holding that all of the shareholder witnesses had credibility issues and gave incredible testimony does not alter defendants’ inability to meet their proofs.” As to plaintiff’s claim seeking payment on the loan documents, the court held that the trial court did not err in granting summary disposition to plaintiff despite defendants’ claim that he “waived execution of the notes, mortgage, and guarantees that he acquired. The evidence of a waiver must be clear and convincing.” The court held that clear and convincing evidence of waiver was lacking. There was no writing obtained to show that “plaintiff had an intent to permanently forbear on defendants’ obligations. Additionally, the statements purportedly made by plaintiff also do not necessarily demonstrate an intent to absolve defendants of their financial commitments. Plaintiff may have merely reflected his desire not to seek contribution toward the note purchase because he did not want to confuse payment toward” that purchase with the obligations "in the documentation underlying his purchase.” Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Constitutional Law e-Journal #: 75847 Case: Hullibarger v. Archdiocese of Detroit Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Redford, Borrello, and Tukel Issues: Freedom of religion; Pilgrim’s Rest Baptist Church v Pearson; The ecclesiastical abstention doctrine; Winkler by Winkler v Marist Fathers of Detroit, Inc; First Protestant Reformed Church v DeWolf; “Religious doctrine”; Maciejewski v Breitenbeck; Intentional infliction of emotional distress (IIED); Lucas v Awaad; Misrepresentation & invasion of privacy; Swickard v Wayne Cnty Med Exam’r; Vicarious liability & negligent hiring, supervision, or retention; Principal liability for an agent’s acts; Rogers v JB Hunt Transp, Inc Summary: The court held that because defendant-Catholic priest’s (Father LaCuesta) conduct was protected by the ecclesiastical abstention doctrine, it may not pass judgment on the content of his sermon. Thus, it affirmed the trial court’s grant of summary disposition for defendants-Archdiocese, church, and Father LaCuesta. Plaintiff sued defendants after Father LaCuesta revealed her son’s suicide during his funeral and preached about suicide as a grave sin that endangered her son’s immortal soul. The trial court found Father LaCuesta’s conduct was protected by the ecclesiastical abstention doctrine, and plaintiff’s negligent hiring, supervision and retention allegation was barred for other reasons. The court found that the trial court “did not err by concluding that resolution of plaintiff’s claims would require a decision regarding matters of church doctrine and polity” and thus, the doctrine barred plaintiff’s claims. Plaintiff contended that her claims concerned “an agreement by Father LaCuesta to preside over the funeral service for her son—for which Father LaCuesta was compensated through a donation—in accordance with requests from [plaintiff’s] family regarding the content of the funeral service. But the actual adjudication of each of plaintiff’s claims would require an inquiry into religious doctrine and practices regarding sermons and funeral services, suicide, as well as why Father LaCuesta chose the words that he did, and personnel issues regarding hiring practices of the Catholic Church.” The court found that the trial court “properly applied the ecclesiastical abstention doctrine to bar plaintiff’s” IIED claim, noting that to find the content of Father LaCuesta’s homily at the funeral “extreme” or “outrageous” would require the trial court “to evaluate Catholic philosophy and doctrine regarding suicide, and whether Father LaCuesta complied with it.” Under Winkler, this “inquiry would be inappropriate.” The trial court also did not err when it ruled the “doctrine barred plaintiff’s claims of misrepresentation and invasion of privacy.” It correctly determined “that resolution of these claims would require evaluating religious doctrines and, by extension, trigger the” doctrine. The trial court was also “correct in concluding that plaintiff had no cognizable privacy interest in the fact that her son committed suicide.” Finally, the trial court properly “concluded that the ecclesiastical abstention doctrine barred plaintiff’s claims for vicarious liability and negligent hiring, supervision, or retention.” It agreed with defendants that the “Roman Catholic Church is an hierarchical organization and the Bishop’s power to make assignments of ministers to a parish is certainly a matter of ecclesiastical polity in which the courts may not interfere.” Full Text Opinion

Tax (1) Full Text Opinion e-Journal #: 75845 Case: Bed Bath & Beyond, Inc. v. Department of Treasury Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Shapiro and Gadola; Dissenting in part, concurring in part - Markey Issues: Construction & application of the Michigan Use Tax Act (UTA); Whether there was "sufficient retention of control" of the advertising materials by plaintiff to constitute “use” as defined in the UTA; Sharper Image Corp v Department of Treasury; Ameritech Publ'g, Inc v Department of Treasury; United States Postal Service (USPS) Summary: Holding that this case was much more analogous to Sharper Image than it was to Ameritech Publ'g, the court affirmed the Court of Claims ruling that there was not “sufficient retention of control” for UTA purposes. Plaintiff entered into a contractual relationship with nonparty-Harte Hanks, “an entity that specializes in multi-channel marketing solutions, including direct mail services. Following production of the advertising materials, which occurred outside Michigan, Harte Hanks had the contractual obligation to prepare and deliver them within Michigan, which it did according to its own methodology. [It] exclusively controlled the packaging of the materials for mailing, and had sole discretion over where the materials would be handed off to the USPS. While plaintiff specified the Michigan residents to whom it wanted the advertising materials delivered by providing its customer mailing list to Harte Hanks, Harte Hanks developed a proprietary ‘audience file’ that it used in the actual distribution of the materials. [It] packaged the materials in bulk at its Pennsylvania plant and, for an agreed upon rate, transported them via freight to USPS locations in Michigan and elsewhere[.]”The court held that “an absence of control over the materials within the state’s borders makes the distribution nontaxable, while some or any control over the materials within the state’s borders makes the distribution taxable.” Here, it found that “the only markers of ‘power’ or ‘control’ of the property are that plaintiff provided Harte Hanks a list of its Michigan customers and that it directed the dates of distribution. It then required a report from Harte Hanks of the actual dates of distribution, which obviously Harte Hanks created and supplied following distribution.” The court noted that none of these activities involved “actual control over the process of delivery of the advertising materials, which was exclusively the responsibility of Harte Hanks.” It was also evident that any distribution of advertising materials by a third-party vendor, as here, “would have to involve providing the vendor a list of addresses where the materials are to be mailed, and would almost certainly involve some level of control over when the advertiser wishes the materials to be delivered. If such indicia were to be considered adequate ‘power’ or ‘control’ to render the activity subject to the imposition of use tax, then any direct mail campaign originating entirely outside the state would be subject to taxation.” Full Text Opinion