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Administrative Law (1) Full Text Opinion This summary also appears under Healthcare Law e-Journal #: 73481 Case: Wyoming Discount Pharmacy, LLC v. Department of Health & Human Servs. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Fort Hood, Jansen, and Tukel Issues: Exhaustion of administrative remedies; Rudolph Steiner Sch. of Ann Arbor v. Ann Arbor Charter Twp.; Genesis Ctr. PLC v. Financial & Ins. Serv. Comm’r; Blair v. Checker Cab Co.; Judicial estoppel; Spohn v. Van Dyke Pub. Sch.; Knowing, intelligent, & voluntary waiver; Failure to state a claim under the Administrative Procedures Act (APA) (MCL 24.201 et seq.); Smith v. Stolberg; Adair v. Michigan; MCL 24.233(1) & (2); "Rule"; MCL 24.207(q); By Lo Oil Co. v. Department of Treasury; MCL 400.111a; MCL 400.111a(7)(d); Rutherford v. Department of Soc. Servs.; "May"; Mull v. Equitable Life Assurance Soc’y of the U.S.; MCL 333.26368(III)(A)(14) & (15); Procedural due process; Mettler Walloon, LLC v. Melrose Twp.; Mathews v. Eldridge; English v. Blue Cross Blue Shield of MI; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Substantive due process; Landon Holdings, Inc. v. Grattan Twp.; Office of Inspector General (OIG) Summary: The court held that the trial court did not err in granting summary disposition to defendant where all plaintiffs failed to exhaust their administrative remedies, certain plaintiffs released related claims against defendant in the repayment agreements they entered into with defendant, and all plaintiffs’ complaints failed to state an actionable due process claim, and failed to state a claim under the APA. Plaintiffs challenged a number of defendant’s audits in which defendant determined that Medicaid had overpaid plaintiffs for services. Plaintiffs asserted “numerous legal challenges—the APA, defendant-OIG’s enabling legislation, procedural due process, and substantive due process—with the same recurring theme that defendant’s audits were conducted in the total absence of any policies or guidance.” The court held that plaintiffs’ own allegations contradicted “this claim, particularly in light of the process afforded plaintiffs to present evidence via administrative procedures and to be heard.” Affirmed. Full Text Opinion

Construction Law (2) Full Text Opinion This summary also appears under Litigation e-Journal #: 73477 Case: Freeman v. Dilorenzo Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Markey, M.J. Kelly, and Boonstra Issues: Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc. (On Remand); Account-stated; Keywell & Rosenfeld v. Bithell; Whether summary disposition was proper; Smith v. Globe Life Ins. Co.; Joint & several liability; Soberg v. Sanders Summary: The court held that the trial court did not err by granting summary disposition for plaintiffs on their breach of contract and account-stated claims against defendants. Plaintiffs sued defendants alleging they failed to pay for construction work plaintiffs performed. The trial court entered judgment for plaintiffs and against defendants, jointly and severally. On appeal, the court noted that because defendants did not file a timely response to plaintiffs’ motion for summary disposition, they “effectively left plaintiffs’ version of events undisputed.” The trial court was “persuaded by that undisputed version of events.” Defendants did not address, “much less persuasively challenge, the trial court’s decision not to consider their response. And, even if they had," they were unable “to undermine the trial court’s ultimate decision.” Affirmed. Full Text Opinion Full Text Opinion This summary also appears under Real Property e-Journal #: 73473 Case: Ramos v. Bibi, Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Fort Hood, Jansen, and Tukel Issues: Foreclosure of a construction lien; The Construction Lien Act (CLA) (MCL 570.1101 et seq.); Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC; Jeddo Drywall, Inc. v. Cambridge Inv. Group, Inc.; MCL 570.1114; "Contractor"; MCL 570.1103(5); "Owner"; MCL 570.1105(3); Common law fraud; Cummins v. Robinson Twp.; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Hubbell, Roth & Clark, Inc. v. Jay Dee Contractors, Inc.; Principle that a person who acquires property via a forged deed is not a bona fide purchaser for value; Special Prop. VI, LLC v. Woodruff; Effect of a forged deed; Fletcher v. Dutton; Contracting with a party that failed to obtain equitable title to the property; MCL 570.1107(3); Effect of a land contract; Graves v. American Acceptance Mtg. Corp. (On Rehearing); Necessity of paying part of the purchase price to obtain equitable title; Steward v. Panek; Unjust enrichment; AFT MI v. Michigan; Karaus v. Bank of NY Mellon; Slander of title; Anton, Sowerby & Assoc., Inc. v. Mr. C’S Lake Orion, LLC; MCL 565.108; Federal Nat’l Mtg. Ass’n v. Lagoons Forest Condo. Ass’n; B & B Inv. Group v. Gitler; Wells Fargo Bank v. Country Place Condo. Ass’n Summary: The court affirmed the dismissal of defendant’s counterclaim for foreclosure of a construction lien because the third-party defendants-Wilkinsons (with whom it contracted) did not obtain equitable title to the property at issue. Dismissal of defendant’s unjust enrichment counterclaim was also proper given that there was no evidence plaintiff-property owner requested its services or misled defendant, and an express contract existed between defendant and the Wilkinsons. But the court concluded that plaintiff’s allegations were sufficient to establish his prima facie case of slander of title and thus, the trial court erred in dismissing it. Plaintiff entered into a land contract to sell the property to the Wilkinsons, but their down payment check was “dishonored because it was drawn on a closed account.” Defendant entered into a contract with them to install a driveway on the property. The check they gave defendant was dishonored for the same reason. Defendant filed a construction lien against the property under the CLA. Plaintiff sued for slander of title, and defendant asserted its counterclaims. The court concluded that the trial court erred in determining that the no-account check rendered the land contract void where it “was ‘merely voidable.’” However, given that “defendant contracted with a party who was neither an owner or a lessee of the property, or otherwise had no equitable title to the property,” it was not entitled to a construction lien. A contractor under the CLA is defined as “a person who, pursuant to a contract with the owner or lessee of real property, provides an improvement to real property.” Defendant was not a contractor because the Wilkinsons were not owners and they did not “ever obtain any equitable interest from the land contract.” As they failed to “pay ‘part of the purchase price,’ they never acquired equitable title[.]” As to plaintiff’s slander of title claim, while the trial court found that he failed to allege actual malice, the court disagreed. He “emphasized that defendant filed the claim of lien after the Wilkinsons no longer had an interest in the property” as well as that “defendant ‘intentionally perpetrated and maintained a false claim’ on plaintiff’s title and ‘wrongfully and maliciously’ refused to remove the lien . . . .” Affirmed in part, reversed in part, and remanded. Full Text Opinion

Consumer Rights (1) Full Text Opinion e-Journal #: 73518 Case: Allan v. Pennsylvania Higher Educ. Assistance Agency Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Moore and Siler; Dissent – Nalbandian Issues: The Telephone Consumer Protection Act (the TCPA) (47 USC § 227 et seq.); Whether an “Avaya autodialer system” used to make student loan collection-related calls qualified as an “automatic telephone dialing system” (ATDS); In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd 14014, 14091, ¶ 131; §§ 227(a) & (b)(1); Marks v. Crunch San Diego, LLC (9th Cir.); Duran v. La Boom Disco, Inc. (2d Cir.); Gadelhak v. AT&T Servs., Inc. (7th Cir.); Glasser v. Hilton Grand Vacations Co. (11th Cir.); ACA Int’l v. Federal Commc’ns Comm’n (DC Cir.); Barr v. American Ass’n of Political Consultants, Inc.; Noble Systems Corp., Comments on FCC’s Request for Comments on the Interpretation of the TCPA; Pennsylvania Higher Education Assistance Agency (PHEAA) Summary: [This appeal was from the WD-MI.] In an issue of first impression in this circuit, the court held that defendant-PHEAA’s Avaya autodialer system used to make collection-related calls qualified as a prohibited ATDS under the TCPA because the autodialer ban applies to stored-number systems. The TCPA bans autodialer calls and it fines entities using an ATDS to make calls or texts that were not consented to. The issue here was whether PHEAA’s Avaya autodialer system used to make student loan collection-related calls qualified as an ATDS. The Avaya system “creates a calling list based on a stored list of numbers—the numbers are ‘not randomly generated.’ . . . A live person then ‘create[s] the calling campaigns for the day.’” The Avaya places the calls and connects the recipients to operators if a voice is detected. This type of device is known as a “predictive dialer.” The TCPA defines an ATDS as “equipment which has the capacity–(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Whether stored-number systems like the Avaya fall within the definition of an ATDS has split the circuits. Agreeing with the Ninth Circuit, the court found that the autodialer definition was “ambiguous” and that it was necessary to consider the autodialer ban as a whole, including its related provisions. It joined the Ninth and Second Circuits and held that “the structure and context of the autodialer ban support an interpretation of ATDS that would cover stored-number systems like the Avaya system in this case.” It concluded that the “TCPA’s exception for calls made to known, consenting recipients implies that the autodialer ban applies to stored-number systems.” The court affirmed the district court’s grant of summary judgment to plaintiffs. Full Text Opinion

Contracts (1) Full Text Opinion This summary also appears under Insurance e-Journal #: 73519 Case: Meemic Ins. Co. v. Fortson Court: Michigan Supreme Court ( Opinion ) Judges: Viviano, McCormack, Markman, Bernstein, and Cavanagh; Concurring in the judgment – Zahra and Clement Issues: Extent to which a contractual antifraud provision defense is valid & enforceable when applied to coverage mandated by the No-Fault Act (the Act) (MCL 500.3101 et seq.) or whether it is a common-law defense that has not been abrogated; Shavers v. Attorney Gen.; Rohlman v. Hawkeye-Sec. Ins. Co.; Rory v. Continental Ins. Co.; Marquis v. Hartford Accident & Indem. (After Remand); Bazzi v. Sentinel Ins. Co.; Cruz v. State Farm Mut. Auto. Ins. Co.; MCL 500.3113; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Innovation Ventures v. Liquid Mfg.; Abbate v. Shelden Land Co. Summary: The court held that plaintiff-insurer’s (Meemic) “contractual antifraud provision is invalid and unenforceable because it is not based on a statutory or unabrogated common-law defense.” Thus, it affirmed the Court of Appeals in result only, vacated its opinion, and remanded the case to the trial court for further proceedings. Meemic sought to void its policy with defendants-insureds and stop paying no-fault benefits to their son (who is “neither a party to the insurance contract nor a beneficiary of the claim allegedly obtained by fraud”). Although the benefits are mandated by statute, Meemic sought “to avoid its statutory obligations by enforcing the antifraud provision in the policy.” The issue before the court was the extent to which a contractual defense like the one in this case is valid and enforceable when applied to coverage mandated by the Act or whether it is a common-law defense that has not been abrogated. The court held “that such contractual provisions are valid when based on a defense to mandatory coverage provided in the [Act] itself or on a common-law defense that has not been abrogated by” the Act. Because Meemic’s fraud defense was grounded on neither the Act nor the common law, it was invalid and unenforceable. Justice Zahra, joined by Justice Clement, concurred “in the result reached by the majority that the instant fraud-exclusion provision is unenforceable.” But unlike the majority, they “would affirm the Court of Appeals decision on the basis of the Cruz standard and would hold that the fraud-exclusion provision is inconsistent with the [Act] and, therefore, void as against public policy.” Full Text Opinion

Criminal Law (1) Full Text Opinion e-Journal #: 73515 Case: People v. Dukes Court: Michigan Supreme Court ( Order ) Judges: McCormack, Viviano, Markman, Zahra, Bernstein, Clement, and Cavanagh Issues: Motion for additional funds to obtain expert assistance; People v. Kennedy; Ake v. Oklahoma Summary: In an order in lieu of granting leave to appeal the Court of Appeals order denying the application for leave to appeal, the court vacated the trial court’s opinion and order denying defendant’s motion for more funds to obtain expert assistance, and remanded the case to the trial court for reconsideration. The court noted that the trial court’s ruling rested in part on the “mistaken belief that the defendant sought to raise the cap on expert funding from $10,000 to $22,000.” Defendant actually sought to increase it to $16,300. The court directed the trial court on remand to “conduct an individualized assessment of the sum required to ‘assure the defendant access’ to the experts needed to ‘conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.’” Full Text Opinion

Healthcare Law (1) Full Text Opinion This summary also appears under Administrative Law e-Journal #: 73481 Case: Wyoming Discount Pharmacy, LLC v. Department of Health & Human Servs. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Fort Hood, Jansen, and Tukel Issues: Exhaustion of administrative remedies; Rudolph Steiner Sch. of Ann Arbor v. Ann Arbor Charter Twp.; Genesis Ctr. PLC v. Financial & Ins. Serv. Comm’r; Blair v. Checker Cab Co.; Judicial estoppel; Spohn v. Van Dyke Pub. Sch.; Knowing, intelligent, & voluntary waiver; Failure to state a claim under the Administrative Procedures Act (APA) (MCL 24.201 et seq.); Smith v. Stolberg; Adair v. Michigan; MCL 24.233(1) & (2); "Rule"; MCL 24.207(q); By Lo Oil Co. v. Department of Treasury; MCL 400.111a; MCL 400.111a(7)(d); Rutherford v. Department of Soc. Servs.; "May"; Mull v. Equitable Life Assurance Soc’y of the U.S.; MCL 333.26368(III)(A)(14) & (15); Procedural due process; Mettler Walloon, LLC v. Melrose Twp.; Mathews v. Eldridge; English v. Blue Cross Blue Shield of MI; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Substantive due process; Landon Holdings, Inc. v. Grattan Twp.; Office of Inspector General (OIG) Summary: The court held that the trial court did not err in granting summary disposition to defendant where all plaintiffs failed to exhaust their administrative remedies, certain plaintiffs released related claims against defendant in the repayment agreements they entered into with defendant, and all plaintiffs’ complaints failed to state an actionable due process claim, and failed to state a claim under the APA. Plaintiffs challenged a number of defendant’s audits in which defendant determined that Medicaid had overpaid plaintiffs for services. Plaintiffs asserted “numerous legal challenges—the APA, defendant-OIG’s enabling legislation, procedural due process, and substantive due process—with the same recurring theme that defendant’s audits were conducted in the total absence of any policies or guidance.” The court held that plaintiffs’ own allegations contradicted “this claim, particularly in light of the process afforded plaintiffs to present evidence via administrative procedures and to be heard.” Affirmed. Full Text Opinion

Immigration (1) Full Text Opinion e-Journal #: 73510 Case: Melara Martinez v. LaRose Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion ) Judges: Siler and Thapar; Concurring in part, Dissenting in part – Gibbons Issues: Habeas corpus; 28 USC § 2241; Christian v. Wellington; Whether aliens in withholding-only proceedings are detained under 8 USC § 1226 or § 1231; Prieto-Romero v. Clark (9th Cir.); Guzman Chavez v. Hott (4th Cir.); Guerra v. Shanahan (2d Cir.); Guerrero-Sanchez v. Warden York Cnty. Prison (3d Cir.); Padilla-Ramirez v. Bible (9th Cir.); 8 CFR § 236.1(d)(1); §§ 241.4 & 241.13(a); § 1229(a)(3); § 1231(a)(5); § 1208.2(c)(2); Castellano-Chacon v. I.N.S.; §§ 1208.17(b)(2) & 1208.16(f); Whether a reinstated removal order is “administratively final”; Hosseini v. Johnson; Moreno-Martinez v. Barr; Whether the length & indefiniteness of petitioner’s ongoing detention violated his due process rights; Zadvydas v. Davis; Whether aliens detained under § 1231(a) must receive a bond hearing after a specific lapse of time; Padilla v. Immigration & Customs Enforcement (9th Cir.); Diouf v. Mukasey (9th Cir.) Summary: The court affirmed the district court’s dismissal of petitioner-Melara Martinez’s (Melara) petition for a writ of habeas corpus, holding that aliens in withholding-only proceedings are detained under § 1231(a) and thus, are not entitled to a bond hearing before an immigration judge (IJ). It also held that because Melara’s removal was reasonably foreseeable, his continued detention did not violate due process under Zadvyda. In 2017, Melara was detained for illegal entry into the country. He filed a habeas petition requesting either release or a bond hearing. Resolving whether he was entitled to a bond hearing turned on whether he was detained under § 1226 or § 1231. Aliens detained under § 1226(a) are entitled to bond hearings before an IJ, while aliens detained under § 1231(a) do not have a right to a bond hearing. Noting that the circuits are split on this issue, the court joined the Third and Ninth Circuits by holding that aliens such as Melara in withholding-only proceedings are detained under § 1231(a). It reviewed the statutes and held that “Section 1226(a) applies when an alien is awaiting a decision on whether he will be removed from the United States. Section 1231(a) applies when an alien has already received a final decision that he will be removed from the United States. Section 1231(a)(5) is clear that an alien in Melara’s circumstances already has a final decision that he will be removed.” Pursuant to § 1231(b)(3)(A), “withholding-only proceedings solely concern whether an alien can be removed to a particular country, not whether the alien is removable.” The court further held that a reinstated removal order is an “administratively final” decision. Melara also argued that the length and indefiniteness of his ongoing detention violated his due process rights. Applying Zadvydas (“an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future[,]”), the court concluded that Melara’s removal was reasonably foreseeable after the appeals process is exhausted. Full Text Opinion

Insurance (3) Full Text Opinion This summary also appears under Contracts e-Journal #: 73519 Case: Meemic Ins. Co. v. Fortson Court: Michigan Supreme Court ( Opinion ) Judges: Viviano, McCormack, Markman, Bernstein, and Cavanagh; Concurring in the judgment – Zahra and Clement Issues: Extent to which a contractual antifraud provision defense is valid & enforceable when applied to coverage mandated by the No-Fault Act (the Act) (MCL 500.3101 et seq.) or whether it is a common-law defense that has not been abrogated; Shavers v. Attorney Gen.; Rohlman v. Hawkeye-Sec. Ins. Co.; Rory v. Continental Ins. Co.; Marquis v. Hartford Accident & Indem. (After Remand); Bazzi v. Sentinel Ins. Co.; Cruz v. State Farm Mut. Auto. Ins. Co.; MCL 500.3113; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Innovation Ventures v. Liquid Mfg.; Abbate v. Shelden Land Co. Summary: The court held that plaintiff-insurer’s (Meemic) “contractual antifraud provision is invalid and unenforceable because it is not based on a statutory or unabrogated common-law defense.” Thus, it affirmed the Court of Appeals in result only, vacated its opinion, and remanded the case to the trial court for further proceedings. Meemic sought to void its policy with defendants-insureds and stop paying no-fault benefits to their son (who is “neither a party to the insurance contract nor a beneficiary of the claim allegedly obtained by fraud”). Although the benefits are mandated by statute, Meemic sought “to avoid its statutory obligations by enforcing the antifraud provision in the policy.” The issue before the court was the extent to which a contractual defense like the one in this case is valid and enforceable when applied to coverage mandated by the Act or whether it is a common-law defense that has not been abrogated. The court held “that such contractual provisions are valid when based on a defense to mandatory coverage provided in the [Act] itself or on a common-law defense that has not been abrogated by” the Act. Because Meemic’s fraud defense was grounded on neither the Act nor the common law, it was invalid and unenforceable. Justice Zahra, joined by Justice Clement, concurred “in the result reached by the majority that the instant fraud-exclusion provision is unenforceable.” But unlike the majority, they “would affirm the Court of Appeals decision on the basis of the Cruz standard and would hold that the fraud-exclusion provision is inconsistent with the [Act] and, therefore, void as against public policy.” Full Text Opinion Full Text Opinion This summary also appears under Negligence & Intentional Tort e-Journal #: 73495 Case: Goss v. Michigan Dep't of Natural Res. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Fort Hood, Jansen, and Tukel Issues: Third-party no-fault action; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1); Fairley v. Department of Corrs.; Mack v. Detroit; Exceptions; Yono v. Department of Transp.; The motor-vehicle exception; MCL 691.1405; “Motor vehicle”; Stanton v. Battle Creek; Overall v. Howard (Unpub.); Wesche v. Mecosta Cnty. Rd. Comm’n; Regan v. Washtenaw Cnty. Rd. Comm’rs (On Remand); Yoches v. Dearborn; “Owner”; The Motor Vehicle Code (MCL 257.1 et seq.); Department of Natural Res. (DNR); Off road vehicle (ORV) Summary: The court held that the Court of Claims properly held that defendant-DNR’s utility vehicle (Gator) was a “motor vehicle” for purposes of the motor vehicle exception to governmental immunity, and thus properly denied its motion for summary disposition. Plaintiff sued defendant for injuries he sustained when his snowmobile collided with defendant’s employee’s Gator (which was being used to groom a ski trail) as it crossed a snowmobile trail. Defendant moved for summary disposition, arguing it was entitled to governmental immunity as the Gator was not a motor vehicle for purposes of the motor-vehicle exception to governmental immunity. The Court of Claims denied the motion, finding the Gator was in fact a motor vehicle. On appeal, the court rejected defendant’s argument that the Court of Claims erred. “A Gator closely resembles a car or truck and contains equipment such as seat belts and brake lights that comport with operation on a roadway.” And, as plaintiff’s expert testified by affidavit, “in the area of the Upper Peninsula where the accident occurred, county ordinances have been enacted allowing ORVs to operate on county roadways under certain conditions.” As such, “regardless of the manufacturer’s recommendation, or the Secretary of State’s classification, the Gator is a vehicle one might expect to find on, or at least alongside, a roadway. It is not mere equipment like a forklift, and it is far more robust with more motor-vehicle-like features than a golf cart.” Affirmed. Full Text Opinion Full Text Opinion e-Journal #: 73467 Case: Sowle v. Esurance Inc. Co. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Cameron, Shapiro, and Letica Issues: The No-Fault Act (NFA) (MCL 500.3101 et seq.); Security requirement; MCL 500.3101(1); Dye v. Esurance Prop. & Cas. Ins. Co.; Insurer priority; MCL 500.3114(4); Stone v. Auto-Owners Ins. Co.; Latent ambiguity; Shay v. Aldrich; Rescission on the basis of misrepresentation; Titan Ins. Co. v. Hyten; Materiality; Oade v. Jackson Nat’l Life Ins. Co. of MI; Silent fraud; U.S. Fid. & Guar. Co. v. Black; "Including"; Intentional injury; Burden of proving a policy exclusion; Hunt v. Drielick; Whether conduct is intentional; Miller v. Farm Bureau Mut. Ins. Co.; Reckless conduct; American Alternative Ins. Co., Inc. v. York; Circumstantial evidence; Bergen v. Baker; Skinner v. Square D Co.; Relevant evidence; MRE 401; Evidence of a person’s character; MRE 404(a); Rock v. Crocker; Other acts evidence; People v. Mardlin; People v. Sabin (After Remand); Attorney fees & penalty interest; MCL 500.3148(1) & 500.3142(4); Overdue personal injury protection (PIP) benefits; MCL 500.3142(2); Effect of a judgment that an insurer owes PIP benefits that have not been paid; Nashal v. Fremont Ins. Co. Summary: The court found no merit in defendant-Esurance’s claim that plaintiff-Sowle was not entitled to PIP benefits where her mother (R) was a co-owner of the car involved in the accident and maintained insurance on it. While Esurance abandoned its priority claim in the trial court, the court considered it and concluded that Sowle was entitled to collect benefits from Esurance under MCL 500.3114(4)(a) because it insured R. It also rejected Esurance’s contention that it was entitled to rescind the policy on the basis of a misrepresentation, and determined that Esurance failed to prove that Sowle intended to commit suicide. Finally, it upheld the award of attorney fees and penalty interest to Sowle under the NFA. R shared the policy with her then-boyfriend (H) and it was paid for with her credit card. Finding that there was a latent ambiguity in the policy, the court agreed with the trial court that “the terms ‘named insured’ and ‘additional driver’ were synonymous.” It noted that the “policy did not use the terms ‘rated operator’ or ‘additional driver’ in any location other than the declarations page. And when the policy used the term ‘named insured,’ it did not place that term in quotation marks with boldface and italics.” The declarations page provided that both H and R were “Rated Operators,” and listed under “Driver Type” that H was “Named Insured” and R was “Additional driver.” The contract contemplated “more than one person may be a named insured by stating that ‘you’ or ‘your’ refers to ‘[t]he named insured(s) shown on the Declarations page[.]’ Second, according to the testimony of the Esurance agent who originally facilitated the policy for [R] and [H], a licensed insurance agent who was employed by and exclusively sold insurance policies for Esurance, the terms ‘Rated Operator’ and ‘Additional driver’ are synonymous with ‘named insured’ under the policy.” As to rescission, the court determined that Esurance failed to show that the ownership status of the car was material or that H “engaged in silent fraud when he failed to inform Esurance that the vehicle would be kept at another address and that Sowle would drive it.” Further, the trial court did not err in concluding that Esurance offered “speculation rather than circumstantial evidence to support that Sowle attempted suicide during” the incident, or that Esurance’s withholding of benefits was unreasonable. Affirmed. Full Text Opinion

Litigation (1) Full Text Opinion This summary also appears under Construction Law e-Journal #: 73477 Case: Freeman v. Dilorenzo Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Markey, M.J. Kelly, and Boonstra Issues: Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc. (On Remand); Account-stated; Keywell & Rosenfeld v. Bithell; Whether summary disposition was proper; Smith v. Globe Life Ins. Co.; Joint & several liability; Soberg v. Sanders Summary: The court held that the trial court did not err by granting summary disposition for plaintiffs on their breach of contract and account-stated claims against defendants. Plaintiffs sued defendants alleging they failed to pay for construction work plaintiffs performed. The trial court entered judgment for plaintiffs and against defendants, jointly and severally. On appeal, the court noted that because defendants did not file a timely response to plaintiffs’ motion for summary disposition, they “effectively left plaintiffs’ version of events undisputed.” The trial court was “persuaded by that undisputed version of events.” Defendants did not address, “much less persuasively challenge, the trial court’s decision not to consider their response. And, even if they had," they were unable “to undermine the trial court’s ultimate decision.” Affirmed. Full Text Opinion

Negligence & Intentional Tort (1) Full Text Opinion This summary also appears under Insurance e-Journal #: 73495 Case: Goss v. Michigan Dep't of Natural Res. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam - Fort Hood, Jansen, and Tukel Issues: Third-party no-fault action; Governmental immunity; The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407(1); Fairley v. Department of Corrs.; Mack v. Detroit; Exceptions; Yono v. Department of Transp.; The motor-vehicle exception; MCL 691.1405; “Motor vehicle”; Stanton v. Battle Creek; Overall v. Howard (Unpub.); Wesche v. Mecosta Cnty. Rd. Comm’n; Regan v. Washtenaw Cnty. Rd. Comm’rs (On Remand); Yoches v. Dearborn; “Owner”; The Motor Vehicle Code (MCL 257.1 et seq.); Department of Natural Res. (DNR); Off road vehicle (ORV) Summary: The court held that the Court of Claims properly held that defendant-DNR’s utility vehicle (Gator) was a “motor vehicle” for purposes of the motor vehicle exception to governmental immunity, and thus properly denied its motion for summary disposition. Plaintiff sued defendant for injuries he sustained when his snowmobile collided with defendant’s employee’s Gator (which was being used to groom a ski trail) as it crossed a snowmobile trail. Defendant moved for summary disposition, arguing it was entitled to governmental immunity as the Gator was not a motor vehicle for purposes of the motor-vehicle exception to governmental immunity. The Court of Claims denied the motion, finding the Gator was in fact a motor vehicle. On appeal, the court rejected defendant’s argument that the Court of Claims erred. “A Gator closely resembles a car or truck and contains equipment such as seat belts and brake lights that comport with operation on a roadway.” And, as plaintiff’s expert testified by affidavit, “in the area of the Upper Peninsula where the accident occurred, county ordinances have been enacted allowing ORVs to operate on county roadways under certain conditions.” As such, “regardless of the manufacturer’s recommendation, or the Secretary of State’s classification, the Gator is a vehicle one might expect to find on, or at least alongside, a roadway. It is not mere equipment like a forklift, and it is far more robust with more motor-vehicle-like features than a golf cart.” Affirmed. Full Text Opinion

Real Property (1) Full Text Opinion This summary also appears under Construction Law e-Journal #: 73473 Case: Ramos v. Bibi, Inc. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Fort Hood, Jansen, and Tukel Issues: Foreclosure of a construction lien; The Construction Lien Act (CLA) (MCL 570.1101 et seq.); Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC; Jeddo Drywall, Inc. v. Cambridge Inv. Group, Inc.; MCL 570.1114; "Contractor"; MCL 570.1103(5); "Owner"; MCL 570.1105(3); Common law fraud; Cummins v. Robinson Twp.; Fraud in the inducement; Samuel D Begola Servs., Inc. v. Wild Bros.; Hubbell, Roth & Clark, Inc. v. Jay Dee Contractors, Inc.; Principle that a person who acquires property via a forged deed is not a bona fide purchaser for value; Special Prop. VI, LLC v. Woodruff; Effect of a forged deed; Fletcher v. Dutton; Contracting with a party that failed to obtain equitable title to the property; MCL 570.1107(3); Effect of a land contract; Graves v. American Acceptance Mtg. Corp. (On Rehearing); Necessity of paying part of the purchase price to obtain equitable title; Steward v. Panek; Unjust enrichment; AFT MI v. Michigan; Karaus v. Bank of NY Mellon; Slander of title; Anton, Sowerby & Assoc., Inc. v. Mr. C’S Lake Orion, LLC; MCL 565.108; Federal Nat’l Mtg. Ass’n v. Lagoons Forest Condo. Ass’n; B & B Inv. Group v. Gitler; Wells Fargo Bank v. Country Place Condo. Ass’n Summary: The court affirmed the dismissal of defendant’s counterclaim for foreclosure of a construction lien because the third-party defendants-Wilkinsons (with whom it contracted) did not obtain equitable title to the property at issue. Dismissal of defendant’s unjust enrichment counterclaim was also proper given that there was no evidence plaintiff-property owner requested its services or misled defendant, and an express contract existed between defendant and the Wilkinsons. But the court concluded that plaintiff’s allegations were sufficient to establish his prima facie case of slander of title and thus, the trial court erred in dismissing it. Plaintiff entered into a land contract to sell the property to the Wilkinsons, but their down payment check was “dishonored because it was drawn on a closed account.” Defendant entered into a contract with them to install a driveway on the property. The check they gave defendant was dishonored for the same reason. Defendant filed a construction lien against the property under the CLA. Plaintiff sued for slander of title, and defendant asserted its counterclaims. The court concluded that the trial court erred in determining that the no-account check rendered the land contract void where it “was ‘merely voidable.’” However, given that “defendant contracted with a party who was neither an owner or a lessee of the property, or otherwise had no equitable title to the property,” it was not entitled to a construction lien. A contractor under the CLA is defined as “a person who, pursuant to a contract with the owner or lessee of real property, provides an improvement to real property.” Defendant was not a contractor because the Wilkinsons were not owners and they did not “ever obtain any equitable interest from the land contract.” As they failed to “pay ‘part of the purchase price,’ they never acquired equitable title[.]” As to plaintiff’s slander of title claim, while the trial court found that he failed to allege actual malice, the court disagreed. He “emphasized that defendant filed the claim of lien after the Wilkinsons no longer had an interest in the property” as well as that “defendant ‘intentionally perpetrated and maintained a false claim’ on plaintiff’s title and ‘wrongfully and maliciously’ refused to remove the lien . . . .” Affirmed in part, reversed in part, and remanded. Full Text Opinion

Tax (1) Full Text Opinion e-Journal #: 73476 Case: Scott Lake Golf & Practice Ctr. v. Plainfield Twp. Court: Michigan Court of Appeals ( Unpublished Opinion ) Judges: Per Curiam – Meter, Beckering, and O’Brien Issues: The true cash value (TCV), state equalized value (SEV), & taxable value (TV) of property; Competent, material, & substantial evidence; Wayne Cnty. v. Michigan State Tax Comm’n; President Inn Props., LLC v. Grand Rapids; Principle that the Tax Tribunal’s (TT) rules of procedure generally govern the proceedings before it; Signature Villas, LLC v. Ann Arbor; Testimony about the value of property absent submission of a signed valuation disclosure containing the witness’s conclusion of value & the basis for it; MI Admin Code, R 792.10255(2); "Valuation disclosure"; R 792.10237; The TT’s determinations as to the weight to assign evidence; Great Lakes Div. of Nat’l Steel Corp. v. Ecorse; Highest & best use of the property; Fair market value (FMV); Detroit Lions, Inc. v. Dearborn; Principle that the TCV & FMV are synonymous; Huron Ridge LP v. Ypsilanti Twp.; Claim the TT judge was biased; Mahlen Land Corp. v. Kurtz; Cain v. Department of Corr. Summary: Concluding that the TT’s findings as to the property’s TCV, SEV, and TT were supported by competent, material, and substantial evidence, and rejecting respondent-township’s claim that the TT judge was biased, the court affirmed. The property is a “27-hole, public, daily-fee golf course that operates profitably.” Respondent assessed it in 2017 “on the basis that its highest and best use was as vacant land available for residential development.” Petitioner asserted that the “highest and best use was to continue operation as a public golf course. Respondent’s assessor based his opinion on the value of comparable sales of land for residential development, while petitioner’s appraiser based his opinion on a capitalized value of the property as a golf course under an income analysis." The TT concluded that petitioner’s appraiser’s opinion was persuasive. It “also considered petitioner’s sales comparison approach and found that it lacked weight. It credited and largely adopted petitioner’s income approach,” while declining to adopt some deductions that petitioner sought. The TT ruled that the property was overassessed and modified its values. The record did not support respondent’s claim that the TT “determined that a valuation disclosure had less weight as a matter of law. To the contrary, [it] admitted and considered respondent’s valuation disclosure and determined that it lacked weight and credibility.” The TT pointed to “several deficiencies in respondent’s report that were based on the substance of the report, not its form.” The evidence also supported the TT’s determination that use as a golf course was the highest and best use of the property. Petitioner’s appraiser “opined that the property was too large and there was insufficient demand to feasibly convert it to residential development. The property would reasonably accommodate 673 residential units, but respondent averaged only 100 building permits a year,” and thus, such a “development project was not financially feasible” in light of the fact it could not be closed out in a reasonable time. Respondent’s assessor did not offer any evidence to support that the development was feasible. There was also sufficient evidence to support the TT’s TCV determination, which “was within the range of values advanced by the experts” and the TT “was entitled to accept petitioner’s approach to value.” Full Text Opinion