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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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

 

 

Case Summary

Includes a summary of one Michigan Supreme Court opinion under Insurance.


Cases appear under the following practice areas:

  • Administrative Law (1)

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 75925
    Case: Tiger Lilly, LLC v. United States Dep't of Hous. & Urban Dev.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Bush, Norris, and Thapar; Concurrence – Thapar
    Issues:

    Eviction moratorium; Coronavirus Aid, Relief, & Economic Security Act (CARES Act); Whether 42 USC § 264(a) (part of the Public Health Service Act) gave the Centers for Disease Control & Prevention (CDC) the authority to impose an eviction moratorium on rental properties across the country

    Summary:

    The court held that § 264(a) of the Public Health Service Act did not give the CDC the authority to issue an order imposing an eviction moratorium on rental properties across the country. The CDC based its authority to impose the moratorium on a provision of the Public Health Service Act. Plaintiffs-rental property owners or managers claimed that it does not provide such broad authority. A moratorium was first placed on rental eviction under the CARES Act. When that expired, the CDC imposed a Halt Order, and broadened the halt in evictions, explaining it as “a necessary measure to facilitate self-isolation, support state lockdown orders, and prevent congregation in settings like homeless shelters.” It based its authority on § 264(a), which permits the Secretary of Health and Human Services to “‘make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.’” The district court denied plaintiffs a preliminary injunction, but granted them judgment on the administrative record, ruling that the Halt Order exceeded the CDC’s authority under § 264(a). The court held that § 264(a) does not give the CDC the power to issue the Halt Order. It noted that the second sentence of this provision states that in order to carry out the regulations mentioned in the first sentence, “the Secretary ‘may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.’” It concluded that “the second sentence narrows the scope of the first.” The court held that “the first sentence of § 264(a) authorizes the Secretary to take action and the second dictates what actions he may take.” The first sentence did not grant the authority to impose “any regulation” the Secretary thought necessary. The court reasoned that if the Secretary had that authority, “there would be no need to specifically authorize the apprehension and detention of infected individuals” in other parts of § 264. Because there was no indication that Congress intended to give the Secretary such broad powers, it would not “infer” them. Affirmed.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    e-Journal #: 75869
    Case: City of Riverview v. Prudential Sec., Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Breach-of-contract action; Impossibility or impracticability; Roberts v Farmers Ins Exch; Condition precedent; Archambo v Lawyers Title Ins Corp; Mitigation of damages; Morris v Clawson Tank Co

    Summary:

    The court held that the trial court did not err by granting summary disposition for plaintiff-city on its breach-of-contract claim against defendant-security contractor. Defendant provided security services for plaintiff’s landfill. When plaintiff declined defendant’s request for an increase on the contract price, defendant terminated the contract, causing plaintiff to hire another contractor on an emergency basis at a higher rate. Plaintiff sued defendant for breach of contract seeking damages in the amount of the extra costs. The trial court granted summary disposition for plaintiff, rejecting defendant’s defense of impossibility or impracticability and finding that “the uncontradicted evidence showed [defendant] was able to perform the hourly rounds without undue hardship.” It also ruled that the contract “did not contain an implied condition precedent to maintain the roads or, if there was an implied condition,” plaintiff did not breach it. Lastly, it found there was no genuine issue of fact that plaintiff made reasonable efforts to mitigate its damages. On appeal, the court rejected defendant’s argument that a genuine issue of material fact remained whether the defense of impossibility or impracticability discharged or excused its contractual duty to provide security services to plaintiff. “Even when viewed in a light most favorable to [defendant], the evidence shows that the landfill’s roads presented neither an unreasonable physical barrier nor an unreasonable economic barrier to” its performance. The court also rejected defendant’s alternative argument that its obligation to perform never arose because the contract contained an implied condition precedent requiring plaintiff to keep the roads in suitable condition and that it breached this condition. The trial court “did not err by finding no genuine issue of material fact as to whether [defendant’s] duty to perform was excused or never arose. Because [it did] not otherwise dispute that it breached the contract, the court correctly granted summary disposition” for plaintiff. Finally, the court rejected defendant’s contention that even if it breached the contract without justification, there remained a genuine issue of material fact as to whether plaintiff made reasonable efforts to mitigate its damages, finding “reasonable minds could not differ on the conclusion that” it made such efforts. Affirmed.

    Full Text Opinion

  • Criminal Law (4)

    Full Text Opinion

    e-Journal #: 75855
    Case: People v. Gesch
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, M.J. Kelly, and Shapiro
    Issues:

    Whether the jury verdict form was constitutionally defective; People v Wade; Ineffective assistance of counsel; Jury instruction on mere presence; Mutually exclusive verdicts; Great weight of the evidence; Sentencing; Reasonableness & proportionality of a departure sentence; Scoring of 25 points for OV 13; Admission of evidence; Timeliness of filing a witness list before trial; Cell tower maps; Disclosure of probationary status; Cumulative error

    Summary:

    The court held that the jury verdict form was not constitutionally defective and the trial court did not err by denying defendant-Gesch’s request for a mere-presence instruction. But she was entitled to remand for resentencing. As to defendant-Arand, the trial court did not abuse its discretion as to the admission of evidence. Thus, the court affirmed defendants’ convictions in each appeal, but vacated Gesch’s sentences and remanded for resentencing. Their convictions arose from a nonfatal shooting. Gesch argued that she was entitled to a new trial because the jury verdict form was constitutionally defective. She relied on Wade to argue that the jury verdict form denied her due process. But unlike in Wade, the verdict form here gave the jury the option of finding her generally not guilty of each offense. It was materially different from the form used in Wade. “For each offense, the jury was provided with alternative options, including an option for a general verdict of not guilty. Unlike in Wade, the ’not guilty’ option was not limited solely to the original charged offense. Rather, each option was separated by an ‘or,’ which clearly indicated that the jury could find Gesch either not guilty, guilty of the charged offense, or guilty of the specified lesser offense.” Thus, she did not show a plain error related to the jury verdict form. Also, “because the verdict form fairly presented the available options to the jury, including the option of a general not guilty verdict, her lawyer was not ineffective for failing to object.” However, the court held that the trial court’s stated reasons for the departure sentence it imposed were “insufficient to warrant the sentence imposed in this case,” requiring remand for resentencing. “If the trial court believed that the evidence factually supported a finding that Gesch was a leader in this offense, it should have scored OV 14 rather than rely on that factor as a basis for departure.” It also did not provide “any explanation for why the sentence imposed was more proportionate to the offense and the offender than a different sentence would have been, or justify the extent of its departure from the guidelines range.” It also erred in scoring 25 points for OV 13.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75857
    Case: People v. McGowan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Tukel and Servitto; Concurring in part, Dissenting in part - Rick
    Issues:

    Motion for a new trial; Right to a fair & impartial jury; People v Budzyn; Juror misconduct; Principle that not every instance of juror misconduct will require a new trial; People v Fetterley; Character evidence; MRE 404(a)(2); Instances of conduct by the victim in support of a claim of self-defense; MRE 405(b); People v Harris; Relevance; MRE. 401; Unfair prejudice; MRE 403; Principle that gang membership is inherently prejudicial; People v Bynum; Sufficiency of the evidence; Second-degree murder; People v Smith; Malice; People v Werner; Self-defense; MCL 780.972(1); People v Dupree

    Summary:

    The court held that defendant was not denied his right to a fair trial on the basis of juror misconduct or on the basis that the trial court refused to admit into evidence all of his proffered photos. It also held that the evidence was sufficient to support his second-degree murder conviction. He was also convicted of FIP and felony-firearm for shooting and killing the victim. On appeal, the court rejected his argument that he was denied the right to a fair trial because the jury was improperly exposed to extraneous information when two individual jurors conducted two separate and unrelated Google searches. It noted that in denying defendant’s “motion for a new trial and declining to conduct an evidentiary hearing broader in scope than that which was conducted, taking testimony only from” the first juror (B), the trial court acted within its discretion. The court concluded that there was “no significant possibility that [B’s] Google search could have affected the verdict.” As to the second juror, the trial court “had no reason at all to conduct an evidentiary hearing. At most, the testimony from [B] established that after the verdict, the second juror stated that he was going to conduct a Google Earth search. But as the trial court noted, ‘there’s nothing wrong with doing research after the jury’s verdict.’” The court also rejected defendant’s claim that the trial court denied him the right to a fair trial when it declined to admit into evidence all of his proffered photos. It noted there was “no evidence showing that it was an abuse of discretion to omit some of the photographs showing the victim holding firearms.” Further, absent “any alternative explanation by defendant, the trial court did not abuse its discretion when it excluded from evidence any reference to” a gang where he offered it to show the victim was a gang member and acted in conformity with his gang’s reputation for being violent. Finally, the court rejected his contention that the evidence was insufficient to convict him of second-degree murder because he acted in self-defense when he shot the victim. “While both sides agree that the victim was physically larger than defendant and that defendant pushed the victim back in an apparent attempt to get away from the victim, there was ample evidence for a rational trier of fact to find, beyond a reasonable doubt, that defendant shot an unarmed, nonaggressive person.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75860
    Case: People v. Rector
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Sufficiency of the evidence; AWIGBH; People v Parcha; Intent; Ineffective assistance of counsel; People v Vaughn; Trial strategy; People v Rockey; Self-defense; MCL 780.972(1)(a); People v Heflin

    Summary:

    The court held that there was sufficient evidence to support a finding that defendant intended to do great bodily harm to the victim, and he was not denied the effective assistance of counsel. He was convicted of AWIGBH for hitting the victim with his vehicle after a minor traffic incident. On appeal, the court rejected his argument that there was insufficient evidence to support a finding that he intended to do great bodily harm, holding that there was sufficient evidence to support a finding that when he sped up to hit the victim, he intended to hit him, and given that he struck the victim “from behind with a motor vehicle, the jury could reasonably infer that in doing so he specifically intended to inflict great bodily harm upon him.” The court also rejected his claim that his trial lawyer provided constitutionally deficient assistance because she did not request a self-defense instruction, noting defense counsel “made the strategic decision to proceed solely with an accident defense.” Further, given that his testimony “did not, in fact, support a self-defense instruction, there is not a reasonable probability that if such an instruction had been given, he would have been acquitted of" AWIGBH. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 75865
    Case: People v. Thompson
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Borrello, and Redford
    Issues:

    Bind over on an involuntary manslaughter charge; People v Holtschlag; Probable cause; “Gross negligence”; People v Head; Motion to quash the information; Motion to amend the information to reinstate a second-degree child abuse charge; MCL 750.136b(3); Reckless act; People v Murphy

    Summary:

    Holding that evidence defendant-mother exposed her 22-day-old child to prolonged heat that caused his dehydration and death was sufficient to support the district court’s finding of probable cause for an involuntary manslaughter charge, the court reversed the circuit court’s decision granting her motion to quash and dismissing that charge. But it concluded that the circuit court did not err in denying the prosecution’s motion to amend the information to reinstate a second-degree child abuse charge because there was insufficient evidence of a reckless act to bind her over on this charge. Thus, the court reversed in part, affirmed in part, and remanded for further proceedings on the involuntary manslaughter charge. Defendant told an officer that she arrived home at approximately 1:00 to 2:00 a.m., “fed the baby and changed his diaper, and that she decided to sleep on her downstairs couch and put the baby in a car seat next to her. Defendant woke up the next morning at approximately 11:00 a.m.; the house was very hot and the thermostat was set at 86 degrees. Defendant turned the thermostat down and went to check on the baby, who appeared to be hot and stiff.” The prosecution contended that whether defendant was grossly negligent was a close question, and the court found that the autopsy report supported its argument. In the report, the ME (Dr. C) “opined that the infant died of dehydration due to hyperthermia; therefore, the danger posed to the infant was high temperatures. In the autopsy report, [C] theorized that ‘[t]he decedent was reportedly still strapped into a car seat when placed in a very warm environment in doors (sic) for some period of time. The prolonged exposure to such warm environmental conditions lead to the dehydration.’” Comparing this case to Head, the court held that “the prolonged exposure to the heat sets forth sufficient evidence to support a finding of probable cause that defendant allowed the victim to be exposed to prolong heat causing dehydration and then death.” This evidence showed “‘wantonness and disregard of the consequences that may ensue.’” But as to second-degree child abuse, here, as in Murphy, “the prosecution failed to present any evidence that defendant’s affirmative acts caused the infant’s death.”

    Full Text Opinion

  • Family Law (1)

    Full Text Opinion

    e-Journal #: 75863
    Case: Elliott v. Elliott
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Spousal support; Loutts v Loutts; Modification of a spousal support obligation; Lueck v Lueck; Consideration of retirement income; MCL 552.23 & 28; Walker v Walker; Weaver v Weaver; McCallister v McCallister; Torakis v Torakis; Waiver; Allard v Allard (On Remand)

    Summary:

    Holding that the trial court did not apply the correct legal framework in assessing defendant-ex-husband’s spousal support obligation, the court reversed its spousal support modification and remanded. After he retired, resulting in a loss of income, he filed a motion to terminate his spousal support obligation to plaintiff-ex-wife. The trial court eventually reduced his spousal support obligation from $3,000 per month to $1,500 per month, but did not eliminate it completely. On appeal, the court rejected his argument that the trial court erred by not making findings on the spousal-support factors identified in Loutts, finding it was sufficient for the trial court “to list all of the factors in one paragraph before discussing its findings relative to all the factors in the subsequent paragraphs.” However, the court agreed with his claim that the trial court improperly considered his pension income when evaluating his ability to pay spousal support, noting that by applying Walker, the trial court erred. McCallister “rejected the persuasive authority in Walker, and relying on Torakis and the plain language of the relevant statutes, held that a court evaluating a motion to modify spousal support must consider all the circumstances of the case, including retirement income awarded to a party to a divorce ‘free and clear’ of any claims of the other party.” As such, “by relying on Walker instead of McCallister, the trial court applied the wrong legal framework. Because it is unclear what extent, if any, the trial court’s decision to exclude over $40,000 of [defendant’s] annual income from its analysis of the issue, it is necessary to reverse and remand this matter to the trial court.” On remand, the trial court shall reconsider defendant’s motion to terminate spousal support “using the correct legal framework, which requires the court to consider all the relevant circumstances of the case.” Finally, the court noted that even if McCallister was not binding, it “would not find Walker persuasive. It essentially held that, through a consent divorce agreement, the parties to a divorce could waive the trial court’s statutory duty to consider all circumstances when evaluating a spousal-support decision. Such a holding is void as against public policy.”

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Administrative Law

    e-Journal #: 75925
    Case: Tiger Lilly, LLC v. United States Dep't of Hous. & Urban Dev.
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Bush, Norris, and Thapar; Concurrence – Thapar
    Issues:

    Eviction moratorium; Coronavirus Aid, Relief, & Economic Security Act (CARES Act); Whether 42 USC § 264(a) (part of the Public Health Service Act) gave the Centers for Disease Control & Prevention (CDC) the authority to impose an eviction moratorium on rental properties across the country

    Summary:

    The court held that § 264(a) of the Public Health Service Act did not give the CDC the authority to issue an order imposing an eviction moratorium on rental properties across the country. The CDC based its authority to impose the moratorium on a provision of the Public Health Service Act. Plaintiffs-rental property owners or managers claimed that it does not provide such broad authority. A moratorium was first placed on rental eviction under the CARES Act. When that expired, the CDC imposed a Halt Order, and broadened the halt in evictions, explaining it as “a necessary measure to facilitate self-isolation, support state lockdown orders, and prevent congregation in settings like homeless shelters.” It based its authority on § 264(a), which permits the Secretary of Health and Human Services to “‘make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.’” The district court denied plaintiffs a preliminary injunction, but granted them judgment on the administrative record, ruling that the Halt Order exceeded the CDC’s authority under § 264(a). The court held that § 264(a) does not give the CDC the power to issue the Halt Order. It noted that the second sentence of this provision states that in order to carry out the regulations mentioned in the first sentence, “the Secretary ‘may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.’” It concluded that “the second sentence narrows the scope of the first.” The court held that “the first sentence of § 264(a) authorizes the Secretary to take action and the second dictates what actions he may take.” The first sentence did not grant the authority to impose “any regulation” the Secretary thought necessary. The court reasoned that if the Secretary had that authority, “there would be no need to specifically authorize the apprehension and detention of infected individuals” in other parts of § 264. Because there was no indication that Congress intended to give the Secretary such broad powers, it would not “infer” them. Affirmed.

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    e-Journal #: 75926
    Case: Esurance Prop. & Cas. Ins. Co. v. Michigan Assigned Claims Plan
    Court: Michigan Supreme Court ( Opinion )
    Judges: Zahra, McCormack, Bernstein, Cavanagh, and Welch; Dissent - Clement and Viviano
    Issues:

    The No-Fault Act; PIP benefits; Principles that underpin a claim for equitable subrogation; Whether plaintiff-Esurance (insurer) was asserting greater rights than the claimant possessed; Order of priority; Whether rescission of the policy rendered Esurance a volunteer & prevented it from pursuing its equitable-subrogation claim; Michigan Assigned Claims Plan (MACP); Michigan Automobile Insurance Placement Facility (MAIPF)

    Summary:

    The court held that “ an insurer who erroneously pays PIP benefits may be reimbursed under a theory of equitable subrogation when the insurer is not in the order of priority and the payments are made pursuant to its arguable duty to pay to protect its own interests.” Because it concluded that plaintiff-Esurance had a viable claim against defendants-MACP and MAIPF, “the question of who may be sued under MCL 500.3174 is relevant." Thus, the court reversed the Court of Appeals, and directed that, on remand, "the Court of Appeals shall consider—in addition to any other issues it deems relevant in light of this opinion—whether defendants can be sued under MCL 500.3174." Esurance paid PIP benefits to the claimant, Edwards, “pursuant to a no-fault automobile insurance policy, issued to another person, that was later declared void ab initio.” Esurance then filed this case against the MACP and MAIPF, “seeking reimbursement from them under a theory of equitable subrogation for the PIP benefits that Esurance had paid to Edwards under” the No-Fault Act, before the policy was rescinded. The court concluded that, on the facts alleged here, “Esurance can stand in Edwards’s shoes and pursue a claim for equitable subrogation because it was not in the order of priority and also was not a ‘mere volunteer' under Michigan law when it paid” the PIP benefits.

    Dissenting, Justice Clement joined by Justice Viviano, believed the court need not do more than resolve whether the lower courts correctly resolved the issues presented. Justice Clement agreed with the majority that they did not do so, but believed the majority reached issues the court “need not address.” She would have held that "the rationalales the lower courts adopted for dismissing Esurance’s subrogation claim were incorrect and remand to the trial court to resume its consideration of the case from the point it left off when it (erroneously) granted summary disposition to the MACP.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 75866
    Case: Yaghnam v. Doe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Action for uninsured motorist (UM) & underinsured motorist (UIM) benefits; The three-year statute of limitations under MCL 600.5805(2); The six-year statute of limitations for contract actions; MCL 600.5807(9); Determining the gravamen of an action; Breach of contract; Miller–Davis Co v Ahrens Constr, Inc; Causation; Gorman v American Honda Motor Co; Leave to amend; MCR 2.118(A)(2); Whether amendment would be futile; Liggett Rest Group, Inc v Pontiac; Effect of failure to present a proposed amended complaint; Anton, Sowerby & Assoc, Inc v Mr C’s Lake Orion, LLC

    Summary:

    The court held that the trial court did not err by granting defendant-insurer summary disposition of plaintiff’s claims, or by denying plaintiff leave to amend his complaint. Plaintiff sued defendant seeking UM and UIM benefits for injuries he sustained in a car accident. The trial court granted defendant’s motion for summary disposition, finding the policy required plaintiff “to provide notice of any claim for [such] benefits within three years of the date of the loss, which had not been done.” On appeal, the court rejected plaintiff’s argument that because he brought a claim for breach of contract, the six-year limitations period was the relevant statute of limitations. “[E]ven accepting the factual allegations in [plaintiff’s] complaint as true, he has only alleged that there was a contract between” the parties, and did not make any allegations that defendant breached that contract. As such, “there is no basis to apply the six-year limitations period applicable to breach of contract actions.” The court also rejected his claim that the trial court erred by denying him leave to amend, noting he failed to present his proposed amended complaint to the trial court. Because plaintiff “could marshal no additional evidence supporting that he had a viable claim for breach of contract, any amendment to the complaint to state a claim for breach of contract would be futile.” Affirmed.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 75866
    Case: Yaghnam v. Doe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Action for uninsured motorist (UM) & underinsured motorist (UIM) benefits; The three-year statute of limitations under MCL 600.5805(2); The six-year statute of limitations for contract actions; MCL 600.5807(9); Determining the gravamen of an action; Breach of contract; Miller–Davis Co v Ahrens Constr, Inc; Causation; Gorman v American Honda Motor Co; Leave to amend; MCR 2.118(A)(2); Whether amendment would be futile; Liggett Rest Group, Inc v Pontiac; Effect of failure to present a proposed amended complaint; Anton, Sowerby & Assoc, Inc v Mr C’s Lake Orion, LLC

    Summary:

    The court held that the trial court did not err by granting defendant-insurer summary disposition of plaintiff’s claims, or by denying plaintiff leave to amend his complaint. Plaintiff sued defendant seeking UM and UIM benefits for injuries he sustained in a car accident. The trial court granted defendant’s motion for summary disposition, finding the policy required plaintiff “to provide notice of any claim for [such] benefits within three years of the date of the loss, which had not been done.” On appeal, the court rejected plaintiff’s argument that because he brought a claim for breach of contract, the six-year limitations period was the relevant statute of limitations. “[E]ven accepting the factual allegations in [plaintiff’s] complaint as true, he has only alleged that there was a contract between” the parties, and did not make any allegations that defendant breached that contract. As such, “there is no basis to apply the six-year limitations period applicable to breach of contract actions.” The court also rejected his claim that the trial court erred by denying him leave to amend, noting he failed to present his proposed amended complaint to the trial court. Because plaintiff “could marshal no additional evidence supporting that he had a viable claim for breach of contract, any amendment to the complaint to state a claim for breach of contract would be futile.” Affirmed.

    Full Text Opinion

  • Personal Protection Orders (1)

    Full Text Opinion

    e-Journal #: 75872
    Case: AMA v. SS
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Riordan, M.J. Kelly, and Shapiro
    Issues:

    Domestic-relationship PPOs; MCL 600.2950; TM v MZ; Ex parte PPO; MCL 600.2950(12); Pickering v Pickering; Motion to modify or rescind; MCL 600.2950(13); MCR 3.707(A)(1)(b); Hearing on the motion; MCL 600.2950(14); MCR 3.707(A)(2); “Shall”; In re Guardianship of Redd; Discovery; People v Lemcool (After Remand)

    Summary:

    Holding that the trial court’s failure to hold an evidentiary hearing was erroneous and required reversal of its order denying respondent’s motion to terminate the ex parte PPO, but that its denial of her motion to compel discovery was appropriate, the court affirmed in part, reversed in part, and remanded. Petitioner sought a PPO on the basis that respondent had shot him in the stomach and should not be allowed to return to their residence (the trial court in the criminal case had ordered her to have no contact, but eventually allowed her to return). The trial court denied respondent’s motion to dismiss the complaint for a lack of service. But it adjourned the motion to modify or terminate the PPO and allowed for further documentation and briefing. Respondent then filed a motion to compel petitioner’s deposition after he did not appear for a scheduled remote deposition. After a second hearing, the trial court denied the motion to modify the ex parte PPO and the motion to compel discovery. It also denied the motion to terminate the ex parte PPO and respondent’s request for an evidentiary hearing, reasoning it would not consider lifting the PPO until the criminal matter was resolved. On appeal, the court agreed with respondent that the trial court erred by refusing to hold an evidentiary hearing on her motion to terminate the ex parte PPO. Respondent “included a request for a hearing in the motion to modify or terminate the PPO that she filed within 14 days after she received actual notice of the ex parte PPO. At that point, the trial court was then required to schedule an evidentiary hearing ‘within 14 days after the motion [wa]s filed.’” As such, the trial court erred by not scheduling or holding an evidentiary hearing on respondent’s motion. However, the court rejected her argument that the trial court erred by denying her request to compel petitioner’s deposition, noting that while the “pending criminal case did not excuse the [trial] court’s failure to hold an evidentiary hearing, it was a reasonable basis for denying respondent’s motion to compel discovery.”

    Full Text Opinion

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