Become a mentor! The Mentor Center needs experienced attorneys to offer support & advice to young attorneys.
 
  • News and Moves

    Douglas C. Bernstein
    Terry Bonnette
    Deborah Brouwer
    Butzel
    Conor B. Dugan
    Jennifer Dukarski
    Fishman Stewart
    Sherrie L. Farrell
    Fishman Stewart PLLC
    Nicholas A. Huguelet
    Andrew J. Moore
    Patricia Nemeth
    Plunkett Cooney
    Claudia Rast
    Blaine Veldhuis
    Warner Norcross & Judd

 

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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 73501
    Case: Dunn Counsel, PLC v. Zappone
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Fort Hood, Jansen, and Tukel
    Issues:

    Motion to dismiss under the doctrine of forum non conveniens; Cray v. General Motors Corp.; Radeljak v. Daimler Chrysler Corp.; Lease Acceptance Corp. v. Adams; Hernandez v. Ford Motor Co.; Deference ordinarily accorded a plaintiff’s chosen forum; Anderson v. Great Lakes Dredge & Dock Co.; Ripeness; King v. Michigan State Police Dep’t

    Summary:

    The court held that the trial court did not err by denying defendants-Ohio residents’ motion to dismiss plaintiff-Michigan attorney’s breach of contract action under the doctrine of forum non conveniens. Plaintiff represented defendants in a case, but withdrew as counsel when they failed to pay his attorney fees. He subsequently moved for a charging lien in Ohio, and then filed a breach of contract action in Michigan. The Michigan trial court denied defendants’ motion to dismiss and granted plaintiff’s motion for summary disposition. In a prior appeal, the court affirmed in part, vacated in part, and remanded, noting the trial court failed to address defendants’ forum non conveniens argument. On remand, the trial court denied defendants’ motion to dismiss under the doctrine of forum non conveniens. In the present appeal, the court rejected defendants’ argument that the trial court abused its discretion by finding that the relevant factors enumerated in Cray favored the Michigan court as a proper venue. It agreed with the trial court that the private interest of the parties, as well as any matters of public interest, weighed in favor of Michigan jurisdiction. It also found that defendants raised a timely plea of forum non conveniens. It concluded that the trial court “did not abuse its discretion, after a thorough review of the Cray factors, in determining that Michigan jurisdiction was appropriate.” Finally, the court rejected defendants’ claim that it should remand for an evidentiary hearing on whether plaintiff is obtaining “double recovery.” It first noted that their “request for a remand exceeds the scope of this [c]ourt’s prior opinion which limited the [trial] court’s review to consideration of the Cray factors.” Second, the order entering judgment for “plaintiff in the [Ohio] court was entered four months after the judgment in the instant case was entered.” Lastly, defendants did not “submit any evidence that plaintiff has actually attempted to collect both judgments, thereby obtaining a double recovery. As of now any potential harm to defendants is speculative in nature, and therefore this issue is not ripe for appellate review.” Affirmed.

    Full Text Opinion

  • Civil Rights (1)

    Full Text Opinion

    This summary also appears under Employment & Labor Law

    e-Journal #: 73486
    Case: Nave v. McLaren Bay Region
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, Shapiro, and Ronayne Krause
    Issues:

    Discrimination & retaliation action under the Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1201 et seq.) & the Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq.); MCL 37.1602(a); MCL 418.301(13); MCL 418.315(1); Aho v. Department of Corrs.; Peden v. Detroit; Downey v. Charlevoix Cnty. Bd. of Comm’rs; Cuddington v. United Health Servs., Inc.; Whether plaintiff engaged in a protected activity; Bachman v. Swan Harbour Ass’n; Burden of proof; Rollert v. Department of Civil Serv.; Pretext; Feick v. Monroe Cnty.; “Disability”; MCL 37.1103(d)(i)(A); Lown v. JJ Eaton Place; Principle that hearing is a major life activity; Chiles v. Machine Shop, Inc.; Principle that a party’s own testimony, standing alone, can be sufficient to establish a genuine question of fact; People v. Lemmon; Scott v. Harris; Jewett v. Mesick Consol. Sch. Dist.; Hearsay; MRE 801(c); Campbell v. Department of Human Servs.; Business records exception; MRE 803(6); Causation; Garg v. Macomb Cnty. Cmty. Mental Health Servs.

    Summary:

    The court held that the trial court did not err by granting defendant-former employer’s motion for summary disposition on plaintiff-former employee’s retaliation and discrimination claims. Defendant terminated plaintiff’s employment for what it contended was her inappropriate behavior. Plaintiff sued, claiming she was actually terminated based on her hearing disability, or as retaliation for her own complaints of harassment or for having made a worker’s compensation claim. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition  for defendant on retaliation and discrimination claims under the PWDCRA. It disagreed with plaintiff’s contention that defendant’s motion for summary disposition addressed only her claims of discrimination under the PWDCRA and retaliation under the WDCA, but not her claim of retaliation under the PWDCRA. It then found that the trial court properly granted summary disposition for defendant on her PWDCRA claims as defendant “articulated proper reasons for plaintiff’s discharge, and plaintiff has not shown that defendant’s reasons were pretextual.” The court disagreed with plaintiff that defendant failed to “establish legitimate nondiscriminatory or business reasons for its adverse employment actions.” It also disagreed with her that defendant’s reasons were pretext, noting she “has not provided any evidence that defendant was more than nominally aware that plaintiff’s hearing was ‘off,’ and that plaintiff possibly had a more serious disability.” Finally, the court rejected her argument that the trial court erred by granting summary disposition on her claim of retaliation under the WDCA. It found she “failed to meet her burden of showing that there was a causal connection between the protected activity, i.e., the filing of her workers’ compensation claim, and the adverse employment action, i.e.,” another person’s alleged harassment. She also “admitted that there was nothing more than a temporal connection between the filing of her workers’ compensation claim and the adverse employment action.” Affirmed.

    Full Text Opinion

  • Contracts (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 73475
    Case: Wells Fargo, NA v. Vicky Richter Enter.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan and Ronayne Krause; Concurring in the result only - Shapiro
    Issues:

    Conversion; Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc.; Thoma v. Tracy Motor Sales, Inc.; Ability of secured creditors to engage in self-help; MCL 440.9609; Breach of the peace; MCL 600.2918(1)-(2); Motion to amend the complaint to include a claim for damages under MCL 600.2918(1); Waiver; Lewis v. LeGrow

    Summary:

    Holding that the trial court did not commit error requiring reversal when it concluded that plaintiff-creditor was not liable for conversion, and that defendants waived their argument that the trial court abused its discretion when it denied their motion to amend their countercomplaint, the court affirmed summary disposition for plaintiff. Defendants claimed that “plaintiff committed the first material breach, was liable for conversion, and breached the peace by changing the locks on defendants’ business.” The court disagreed. First, defendants abandoned the issue of a material breach. They next argued that the trial court erred by holding “that plaintiff was not liable for conversion because it had a secured interest in the allegedly converted property.” However, creditors are not generally “liable for converting property over which they have a superior property interest.” The court further noted that “MCL 600.2918 does not contain any language that negates a secured creditor’s possessory right in collateral. Thus, plaintiff maintained its security interest in all the trade fixtures and personal property inside, and the circuit court did not err by concluding that plaintiff was not liable for conversion as plaintiff did not wrongfully exert dominion and control over defendants’ property.”

    Full Text Opinion

  • Criminal Law (5)

    Full Text Opinion

    e-Journal #: 73497
    Case: People v. Murray
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Fort Hood, Jansen, and Tukel
    Issues:

    Sentencing; Entry of an amended judgment of sentence (JOS); MCR 6.429(A); MCR 6.435(A) & (B); People v. Worthington; People v. Comer; Consecutive sentencing required by MCL 768.7a(2); Presentence investigation report (PSIR)

    Summary:

    Holding that the trial court lacked the authority to amend defendant’s JOS to add consecutive sentencing (which was required by statute but not imposed in the prior JOS), the court reversed, vacated the amended JOS, and remanded for reinstatement of the prior JOS. He was convicted of entering without permission and resisting and obstructing an officer. He was sentenced in 2018 as a third-offense habitual offender to two to four years, consecutive to parole, for his resisting and obstructing conviction. But due to an error in his PSIR, he was resentenced on 5/23/19 as a third-offense habitual offender to a year and three days for this conviction. However, that JOS “did not reflect consecutive sentencing as is required under MCL 768.7a(2)[.]” A month later, without notice to defendant, the trial court entered an amended JOS to reflect that his “prison sentence was to be served consecutively to ‘any parole action.’” On appeal, the court agreed with him that “the consecutive sentencing was improper because the trial court corrected a substantive error in” the JOS sua sponte after it was entered. Without a timely motion from “either party under MCR 6.429, the trial court lacked the authority to amend the [JOS] to add consecutive sentencing–a substantive provision–under MCL 768.7a(2).” The prosecution argued that the trial court corrected a clerical error, given that the consecutive sentencing was included in the 2018 JOS and was discussed at the resentencing hearing. But the Supreme Court made it clear in Worthington that “the trial court did not have authority to amend the [JOS] after entry to add a provision for consecutive sentencing under MCL 768.7a(2).” This was exactly the same substantive change.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73470
    Case: People v. Norris
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Beckering, and O’Brien
    Issues:

    Sufficiency of the evidence for a resisting & obstructing an officer conviction; MCL 750.81d(1); People v. Corr; “Obstruct”; MCL 750.81d(7)(a); Waiver; People v. Carter; People v. Hershey

    Summary:

    Holding that sufficient evidence supported defendant’s resisting and obstructing an officer conviction, and that he waived his challenge to the jury instructions, the court affirmed his conviction. He contended that the evidence was insufficient to support his conviction because the entire encounter was relatively brief and only one officer (G) testified that defendant did not obey the officers’ commands. The court rejected this argument “because he physically interfered with the police officers and knowingly failed to comply with their lawful commands.” It determined that he physically interfered with the officers “by pushing back on the way to the patrol car. While defendant denied leaning back into the officers,” the court will not interfere with the jury’s assessment of a witness’s credibility. He also physically interfered with the officers “by refusing to spread his legs during the search at the patrol car, and when defendant refused to put his legs inside the patrol car.” In addition, he lied to them “about having a needle in his pocket.” The court also noted that he “admitted that he knowingly failed to comply with a lawful command by not coming down the stairs immediately.” While he explained that he wished to see the warrant, and asserted he was on the phone with a 911 operator, G “testified that there were no 911 calls from the house at the time in question.” Finally, the court concluded that a reasonable fact-finder could infer from G’s “testimony that defendant ‘reeled back slightly and almost like he was drawing it up and he spit in my direction,’ that defendant intentionally spit at” G. He did not challenge the second element of the offense.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73504
    Case: People v. Sadowski
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Borrello, Sawyer, and Servitto
    Issues:

    Open murder; People v. Johnson; First-degree murder; MCL 750.316; Second-degree murder; MCL 750.317. “Murder”; People v. Goecke; Relevance & unfair prejudice; MRE 401-403; Other acts evidence; MRE 404(b)(1); People v. VanderVliet; People v. Denson; People v. Crawford; People v. Knox

    Summary:

    Holding that the trial court erred by granting the prosecution’s motion in limine to admit a video because admission of the video violated MRE 404(b)(1) and MRE 403, the court reversed the trial court’s order in this interlocutory appeal and remanded. Defendant was charged with open murder in the death of his roommate. The prosecution sought to introduce videos of jailhouse assaults by defendant that did not involve the victim in this case, and the trial court admitted one of the videos showing defendant assaulting another prisoner in jail who had antagonized him. On appeal, the court found that the video was not admissible because there was not a “striking similarity between the act portrayed in the video and the alleged murder.” The prosecution’s argument that the “video shows method and motive are unavailing because using the video to show that this is how defendant reacts and hurts people is a propensity argument. There is not a striking similarity between the video and this case, and therefore the other-acts evidence should not have been admitted by the trial court.” In addition, “the probative value of the video is low.” The evidence here “is only marginally probative, and there is a risk that it would be given preemptive weight by the jury.” It was also “marginally probative, at best, because the method of killing the victim does not appear to be seriously at issue.” The main use of this evidence was to show that “because defendant gets angry when he is insulted, he reacts with violence. That is a propensity argument. The prosecution’s argument that the video is useful to demonstrate defendant’s method of attacking someone and the defendant’s reaction to provocation, to the extent that it is probative, is still substantially outweighed by the significant risk that the jury will conclude that because defendant has physically assaulted people in the past, defendant did it again with fatal results in this case.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73472
    Case: People v. Smith
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, Shapiro, and Ronayne Krause
    Issues:

    Prosecutorial misconduct; Indicating that the witnesses would receive consequences for their participation in the robbery; People v. Unger; People v. Seals; People v. Watson; People v. Brown; Outcome-determinative; Ineffective assistance of counsel; Failure to object to the prosecutor’s statement; People v. Kulpinski; Admission of the detective’s lay testimony; People v. Fomby; MRE 701 & 702; People v. Petri; Assault with intent to murder (AWIM)

    Summary:

    Holding that the “prosecutor did not commit misconduct by indicating that the witnesses would receive consequences for their participation in the robbery,” defendant was not denied the effective assistance of counsel, and the trial court did not err when it admitted the detective’s lay testimony, the court affirmed. He was convicted of second-degree murder, AWIM, and felony-firearm. “The prosecutor’s statements were related to testimony admitted at trial and were made to rebut defendant’s closing argument. During the closing statement, defendant argued that the accomplice-witnesses were not believable and had committed serious crimes.” Defense counsel claimed “that the witnesses were going unpunished for armed robbery while defendant was going to be punished. In rebuttal, the prosecutor responded by explaining that the witnesses would face consequences for the robbery. Because the prosecutor may fairly respond to an issue raised by defendant, the statements did not constitute misconduct.” Defendant contended that the “statements impermissibly argued evidence that was not admitted at trial.” This was factually incorrect. “One witness testified that she pleaded guilty to a crime, that she was going to get Holmes Youthful Trainee status, and that she had been told that she was not going to jail. The other witness testified that he had not discussed a potential plea deal and was not expecting the charges against him to be dismissed. Thus, the prosecutor’s statements were properly based on the witnesses’ testimony.” Moreover, the court held that “the alleged misconduct was not outcome-determinative because the jury was instructed that attorney arguments” were not evidence.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73509
    Case: United States v. Ward
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Merritt and Clay; Dissent – Griffin
    Issues:

    Search & seizure; U.S. Const. amend. IV; Motion to suppress evidence; “Probable cause”; Illinois v. Gates; Illinois v. Krull; The “good faith” exception to the exclusionary rule; United States v. Leon; Whether the search warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; Brown v. Illinois; United States v. White; United States v. Christian; United States v. Harris (Unpub. 6th Cir.); United States v. Gilbert; United States v. Govea (Unpub. 6th Cir.); United States v. Ardd; United States v. McCoy; United States v. Hython

    Summary:

    The court held that the search warrant affidavit in this case failed to provide a minimally sufficient nexus between drug-trafficking and defendant-Ward’s residence, and affirmed the district court’s ruling that Leon’s “good faith” exception to the exclusionary rule did not apply. Ward was charged with several drug counts and argued that the search of his home, which the parties implicitly agreed was not supported by probable cause, could not be justified under the Leon good faith exception. Although the district court ruled that the warrant was not supported by probable cause, it did not address the good faith exception. The court considered whether the affidavit was “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” It noted that to avoid being considered a “bare bones” affidavit, it must contain enough reliable underlying facts to create a nexus between the illegal activity and the place to be searched. The affidavit to search Ward’s home only provided that Ward had sent a text message to an individual who died from an overdose, that some evidence of drug use had been recovered from a trash pull at Ward’s home conducted six months after the death, and that Ward had previously been “charged with drug and weapons offenses.” It did not indicate that he had been convicted of previous drug charges. These undated previous drug charges, “without further information, are not probative of whether Ward used his residence to traffic drugs at the time officers effected the search,” and the affidavit also offered no evidence that he was “using his residence for drug-trafficking or evidence that Ward ‘had longstanding ties to an ongoing drug-trafficking operation.’” The court noted that while it has “applied the good faith exception on the inference that a drug dealer likely keeps drugs at his home, those cases involved evidence of larger scale, continual and ongoing drug operations.” This affidavit did not offer “evidence of the volume or continuity found in those cases.” Thus, the court affirmed the district court’s ruling suppressing evidence obtained pursuant to the warrant for Ward’s residence.

    Full Text Opinion

  • Employment & Labor Law (1)

    Full Text Opinion

    This summary also appears under Civil Rights

    e-Journal #: 73486
    Case: Nave v. McLaren Bay Region
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan, Shapiro, and Ronayne Krause
    Issues:

    Discrimination & retaliation action under the Persons with Disabilities Civil Rights Act (PWDCRA) (MCL 37.1201 et seq.) & the Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq.); MCL 37.1602(a); MCL 418.301(13); MCL 418.315(1); Aho v. Department of Corrs.; Peden v. Detroit; Downey v. Charlevoix Cnty. Bd. of Comm’rs; Cuddington v. United Health Servs., Inc.; Whether plaintiff engaged in a protected activity; Bachman v. Swan Harbour Ass’n; Burden of proof; Rollert v. Department of Civil Serv.; Pretext; Feick v. Monroe Cnty.; “Disability”; MCL 37.1103(d)(i)(A); Lown v. JJ Eaton Place; Principle that hearing is a major life activity; Chiles v. Machine Shop, Inc.; Principle that a party’s own testimony, standing alone, can be sufficient to establish a genuine question of fact; People v. Lemmon; Scott v. Harris; Jewett v. Mesick Consol. Sch. Dist.; Hearsay; MRE 801(c); Campbell v. Department of Human Servs.; Business records exception; MRE 803(6); Causation; Garg v. Macomb Cnty. Cmty. Mental Health Servs.

    Summary:

    The court held that the trial court did not err by granting defendant-former employer’s motion for summary disposition on plaintiff-former employee’s retaliation and discrimination claims. Defendant terminated plaintiff’s employment for what it contended was her inappropriate behavior. Plaintiff sued, claiming she was actually terminated based on her hearing disability, or as retaliation for her own complaints of harassment or for having made a worker’s compensation claim. On appeal, the court rejected plaintiff’s argument that the trial court erred by granting summary disposition  for defendant on retaliation and discrimination claims under the PWDCRA. It disagreed with plaintiff’s contention that defendant’s motion for summary disposition addressed only her claims of discrimination under the PWDCRA and retaliation under the WDCA, but not her claim of retaliation under the PWDCRA. It then found that the trial court properly granted summary disposition for defendant on her PWDCRA claims as defendant “articulated proper reasons for plaintiff’s discharge, and plaintiff has not shown that defendant’s reasons were pretextual.” The court disagreed with plaintiff that defendant failed to “establish legitimate nondiscriminatory or business reasons for its adverse employment actions.” It also disagreed with her that defendant’s reasons were pretext, noting she “has not provided any evidence that defendant was more than nominally aware that plaintiff’s hearing was ‘off,’ and that plaintiff possibly had a more serious disability.” Finally, the court rejected her argument that the trial court erred by granting summary disposition on her claim of retaliation under the WDCA. It found she “failed to meet her burden of showing that there was a causal connection between the protected activity, i.e., the filing of her workers’ compensation claim, and the adverse employment action, i.e.,” another person’s alleged harassment. She also “admitted that there was nothing more than a temporal connection between the filing of her workers’ compensation claim and the adverse employment action.” Affirmed.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Attorneys

    e-Journal #: 73501
    Case: Dunn Counsel, PLC v. Zappone
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Fort Hood, Jansen, and Tukel
    Issues:

    Motion to dismiss under the doctrine of forum non conveniens; Cray v. General Motors Corp.; Radeljak v. Daimler Chrysler Corp.; Lease Acceptance Corp. v. Adams; Hernandez v. Ford Motor Co.; Deference ordinarily accorded a plaintiff’s chosen forum; Anderson v. Great Lakes Dredge & Dock Co.; Ripeness; King v. Michigan State Police Dep’t

    Summary:

    The court held that the trial court did not err by denying defendants-Ohio residents’ motion to dismiss plaintiff-Michigan attorney’s breach of contract action under the doctrine of forum non conveniens. Plaintiff represented defendants in a case, but withdrew as counsel when they failed to pay his attorney fees. He subsequently moved for a charging lien in Ohio, and then filed a breach of contract action in Michigan. The Michigan trial court denied defendants’ motion to dismiss and granted plaintiff’s motion for summary disposition. In a prior appeal, the court affirmed in part, vacated in part, and remanded, noting the trial court failed to address defendants’ forum non conveniens argument. On remand, the trial court denied defendants’ motion to dismiss under the doctrine of forum non conveniens. In the present appeal, the court rejected defendants’ argument that the trial court abused its discretion by finding that the relevant factors enumerated in Cray favored the Michigan court as a proper venue. It agreed with the trial court that the private interest of the parties, as well as any matters of public interest, weighed in favor of Michigan jurisdiction. It also found that defendants raised a timely plea of forum non conveniens. It concluded that the trial court “did not abuse its discretion, after a thorough review of the Cray factors, in determining that Michigan jurisdiction was appropriate.” Finally, the court rejected defendants’ claim that it should remand for an evidentiary hearing on whether plaintiff is obtaining “double recovery.” It first noted that their “request for a remand exceeds the scope of this [c]ourt’s prior opinion which limited the [trial] court’s review to consideration of the Cray factors.” Second, the order entering judgment for “plaintiff in the [Ohio] court was entered four months after the judgment in the instant case was entered.” Lastly, defendants did not “submit any evidence that plaintiff has actually attempted to collect both judgments, thereby obtaining a double recovery. As of now any potential harm to defendants is speculative in nature, and therefore this issue is not ripe for appellate review.” Affirmed.

    Full Text Opinion

  • Negligence & Intentional Tort (2)

    Full Text Opinion

    e-Journal #: 73485
    Case: McGilvery v. Busch's, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Beckering, and O’Brien
    Issues:

    Slip & fall on water on the floor of a store’s walk-in cooler; Premises liability; Mouzon v. Achievable Visions; Duty owed to an invitee; Pugno v. Blue Harvest Farms, LLC; Open & obvious dangers; Wilson v. BRK, Inc.; Abolished assumption of risk doctrine; Watts v. Michigan Multi-King, Inc.; Conflicting evidence; Patrick v. Turkelson

    Summary:

    Concluding that material fact questions existed as to “whether an average person of ordinary intelligence in plaintiff’s position would have seen the danger posed by the water inside defendant’s cooler upon casual inspection[,]” the court reversed summary disposition for defendant-store. The court found specifically that there were fact questions as to the effect of the floor’s condition and the effect of lighting conditions in the cooler area. Both plaintiff and defendant’s store manager testified that the lighting inside the area was dimmer than that “outside the cooler. Plaintiff testified that the lighting obstructed his view, but defendant’s manager testified that he was able to read the expiration-date labels on produce in the cooler.” Thus, the testimony differed on the impact of the lighting on visibility. Further, it was not only “the light alone that may have affected the observability of the hazard on casual inspection. As for the floor, plaintiff testified that his view was unobstructed other than the lighting, and he did not see any water before he fell; he only noticed that he was sitting in a puddle after he had already fallen. Defendant’s manager testified that the floor was dark-colored.” Photos defendant submitted showed “that some areas of the floor are light in color while others appear to be dark due to the floor paint peeling and cracking, giving the floor a splotchy appearance.” They also revealed “bright, shiny spots on the floor, which could be wetness.” But it was unclear whether the photos “showed what a reasonable person of average intelligence would have seen on the date of plaintiff’s injury.” The court concluded that reasonable minds might differ as to the floor’s condition and the lighting, “and their effect on an objectively reasonable person’s ability to see water on the floor;” as a result, a dispute of material fact existed as to “whether the alleged hazard was open and obvious.” Remanded.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 73475
    Case: Wells Fargo, NA v. Vicky Richter Enter.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Riordan and Ronayne Krause; Concurring in the result only - Shapiro
    Issues:

    Conversion; Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc.; Thoma v. Tracy Motor Sales, Inc.; Ability of secured creditors to engage in self-help; MCL 440.9609; Breach of the peace; MCL 600.2918(1)-(2); Motion to amend the complaint to include a claim for damages under MCL 600.2918(1); Waiver; Lewis v. LeGrow

    Summary:

    Holding that the trial court did not commit error requiring reversal when it concluded that plaintiff-creditor was not liable for conversion, and that defendants waived their argument that the trial court abused its discretion when it denied their motion to amend their countercomplaint, the court affirmed summary disposition for plaintiff. Defendants claimed that “plaintiff committed the first material breach, was liable for conversion, and breached the peace by changing the locks on defendants’ business.” The court disagreed. First, defendants abandoned the issue of a material breach. They next argued that the trial court erred by holding “that plaintiff was not liable for conversion because it had a secured interest in the allegedly converted property.” However, creditors are not generally “liable for converting property over which they have a superior property interest.” The court further noted that “MCL 600.2918 does not contain any language that negates a secured creditor’s possessory right in collateral. Thus, plaintiff maintained its security interest in all the trade fixtures and personal property inside, and the circuit court did not err by concluding that plaintiff was not liable for conversion as plaintiff did not wrongfully exert dominion and control over defendants’ property.”

    Full Text Opinion

  • Tax (2)

    Full Text Opinion

    e-Journal #: 73502
    Case: Razeen, Inc. v. City of Warren
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Beckering, and O’Brien
    Issues:

    Tax Tribunal (TT) denial of request for a commercial personal property tax exemption under MCL 211.9o; “Eligible personal property”; MCL 2.119o(8)(c)(i)-(ii); “Related entity”; MCL 211.9o(8)(f) & (c); MCL 211.9o(1) & (6); “Person”; MCL 2.11.9o(8)(e); Burden of proof; MCL 211.22(2); True cash value (TCV)

    Summary:

    The court affirmed the TT’s denial of petitioners’ request for a commercial personal property tax exemption. The TT denied petitioners’ request based on the unreliability of their appraisal of the TCV of their personal property. Given that they did not challenge the TT’s observations as to what constituted “acceptable appraisal practices, and considering the competent and substantial evidence” supporting the TT’s findings as to the appraisal methodology used by their appraiser, the court had no basis to determine that the TT adopted a wrong principle or to overturn its factual findings. Also, competent and substantive record evidence supported the TT’s “conclusion that petitioners did not include all of the personal property they or a related entity owned in determining their eligibility for a tax exemption under MCL 211.9o.” Further, the plain statutory language supported the TT’s ruling “that the value of the omitted commercial personal property should have been included to determine whether the combined [TCV] of petitioners’ personal property was less than $80,000.” Petitioners argued in the TT “that if all they had was a possessory interest in certain property, they did not own or control” it and thus, their possessory interest should not affect the exemption. “However, MCL 211.9o(8)(c) identifies the personal property eligible for the exemption in part as the industrial or commercial property in the [‘]local tax collecting unit owned by, leased by, or in the possession of the person claiming the exemption . . . .’” Therefore, the value of commercial personal property petitioners or related entities possessed was relevant. Further, MCL 211.9o supported the determination that the owner of one petitioner and co-owner of the other was a “related entity” and thus, that the value of the appliances in his “rental units should have been included in the combined [TCV] of petitioners’ commercial personal property.” Finally, petitioners cited “no authority for their assumption that submission of the statement required by MCL 211.9o creates a presumption of entitlement to the exemption that respondent must rebut before it denies the exemption.” The court agreed with the TT that they “did not meet their burden to prove that they were entitled to the exemption allowed by MCL 211.9o because they failed to provide a reliable appraisal showing that the combined [TCV] of the commercial personal property that they or a related entity owned, leased, or possessed in” respondent-city was less than $80,000.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 73494
    Case: Zimmer US, Inc. v. Department of Treasury
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Meter, Beckering, and O’Brien
    Issues:

    The Use Tax Act (UTA) (MCL 205.91 et seq.); Podmajersky v. Department of Treasury; MCL 205.93(1); “Use”; MCL 205.92(b); Sharper Image Corp. v. Department of Treasury; NACG Leasing v. Department of Treasury; “Distribution”; Ameritech Publ’g, Inc. v. Department of Treasury; Applicability of MCL 205.95a; MCL 205.93a(h); “Seller” & "purchase”; MCL 205.92(d) & (e); Right result reached for the wrong reason; Forest Hills Coop. v. Ann Arbor; Tax Tribunal (TT)

    Summary:

    The court held that while the TT erred in adopting an inapplicable nexus test, it reached the correct result in denying petitioner a use tax refund because petitioner exercised control over the instruments at issue when it “required hospitals to inform it” when the instruments were lost or damaged. Thus, the court affirmed summary disposition for respondent. Petitioner sought a $872,464 refund. It manufactures and markets orthopedic implants, and provides its customers the medical instruments used to install them, “usually on an indefinite basis, at no extra charge. Petitioner retained ownership of the instruments, and its contracts required the customer to reimburse petitioner for any loss, damage, or destruction of” them. It sought a refund on the basis that it did not use them in Michigan within the UTA’s definition of “use.” It was correct that the TT adopted a wrong principle because, citing MCL 205.95a, it applied a nexus standard here “that applied to sellers of property, and petitioner did not sell the instruments.” This provision did not apply “because petitioner received no consideration for the instruments. The proper question was whether” it used them within the meaning of MCL 205.92(b). The record showed that it “was not a mere distributor because it in fact retained control over the instruments while they were in Michigan.” It retained ownership and required its customers to reimburse it “for any loss or damage to the instruments.” While it asserted that its sole purpose for this was to ensure that it could replace them, “a petitioner’s reasons are irrelevant.” The case law hinges on whether a “petitioner exercised control in Michigan or totally relinquished control outside of Michigan, not whether petitioner had a good reason for imposing requirements on the property while it was in Michigan.” While it transferred possession, it “did not relinquish total control of the property because it imposed at least one requirement on the hospitals regarding the property. Because petitioner did not totally relinquish control of the property when it shipped it into Michigan, the property was subject to use tax.”

    Full Text Opinion

Ads