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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Consumer Rights (1)

    Full Text Opinion

    e-Journal #: 68423
    Case: Cormier v. PF Fitness-Midland, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – O’Brien, Servitto, and Stephens
    Issues:

    Claims under the Michigan Consumer Protection Act (MCPA); Zine v. Chrysler Corp.; MCL 445.903(1); Trade or commerce defined; MCL 445.902(1)(g); Damages for violations of the MCPA; MCL 445.911(2); Alleged violations of MCL 445.903(1)(g), (n), (s), (t), (y), (bb), & (cc) related to an unwritten policy allowing men who self-identify as women to use the women’s facilities at defendants’ gym

    Summary:

    On remand from the Michigan Supreme Court, the court held that plaintiff stated claims for MCPA violations under MCL 445.903(1)(s), (bb), and (cc) related to the use of women’s facilities at a gym by men who self-identify as women. She alleged that defendants-appellants “represented that there were separate locker rooms, shower and restroom facilities for men and women and in having an unwritten policy allowing men who self-identify as women to use the women’s facilities defendants violated” several provisions of the MCPA. The court found that she failed to state a claim on which relief may be granted as to her claims under MCL 445.903(1)(g), (n), and (t). As to subsection (y), she appeared to assert that “defendants’ unwritten policy regarding self-identification is inconsistent with [their] oral representation that there were separate locker rooms and restrooms for men and women. An unwritten policy obviously does not constitute a written agreement.” However, as to her claims under subsections (s), (bb), and (cc), “plaintiff’s allegations indicate that defendants failed to reveal facts (i.e., the existence of the unwritten self-identification policy) and that representations of fact were made in a positive manner (i.e., that there were separate locker rooms and restrooms for men and women).” While the central aspect of the transaction appeared to be the use of the gym for exercise and fitness activities, and defendants’ policy as to “the locker rooms and restrooms was not the sole or major reason for the transaction, a policy regarding such facilities could still be viewed as important to the transaction.” The reasonable inference also arose from her allegations that their “failure to inform her of the unwritten self-identification policy . . . affected her decision to join the gym.” The fact that she continued to use the gym after learning of it did “not preclude as a matter of law an inference that defendants’ failure to inform her of the unwritten policy affected her decision to join” as she was already a member when she learned of it and thus, was “subject to a financial penalty if she canceled her membership earlier than provided in the membership agreement.” Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

  • Courts (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 68413
    Case: Rayfield v. State of MI-One Court of Justice
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Gleicher, and Letica
    Issues:

    Whether a default should have been entered; Court rule interpretation; Barclay v. Crown Bldg. & Dev., Inc.; MCR 2.105(G)(8); MCR 2.105(K)(1); MCR 2.102(E)(1); Failure to comply with the statutory notice requirements of MCL 600.6431; Fairley v. Department of Corrs.; MCL 600.6431(1) & (3); McCahan v. Brennan; MCL 600.6452(1); Due process; Whether the claims were impacted by MCL 600.6431; Cummins v. Robinson Twp.; 42 USC § 1983; Whether plaintiff’s noncompliance with MCL 600.6431 should be excused; Reliance on non-binding case law; Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc.; Abela v. General Motors Corp.; Binding effect of Michigan Supreme Court opinions; Griswold Props., LLC v. Lexington Ins. Co.

    Summary:

    The court held that the clerk of the Court of Claims properly entered an order dismissing the action as to defendant-61st District Court based upon plaintiff-Rayfield’s failure to effect service consistent with the MCRs. Also, the Court of Claims did not err in concluding that his claims were barred due to his failure to comply with the notice requirement under MCL 600.6431. He argued that it was error to dismiss the 61st District Court for lack of service or progress and that a default should have entered against it for failure to plead or otherwise defend. He asserted that he satisfied MCR 2.105(G)(8) by addressing a certified mailing to the 61st District Court at an address in Grand Rapids. The “plain language of MCR 2.105(G)(8) permits service of the summons and a copy of the complaint on the clerk of the court; alternatively, service may be achieved through service of the summons and a copy of the complaint on an individual in charge of the office of the clerk and by sending the summons and copy of the complaint to the clerk of the court via registered mail. Service by registered mail may also be accomplished by certified mail, as long as the receipt of mailing is postmarked by the post office.” Rayfield’s mailing did not satisfy either method. He did “not serve the summons and complaint on the clerk of the 61st District Court, nor did he serve the summons and complaint on an agent of the clerk, while also sending the clerk the summons and copy of the complaint by registered or certified mail.” Even if his certified mailing could somehow be deemed sufficient under MCR 2.105(G)(8), the record suggested that “even that imperfect method of service was incomplete.” He filed a proof of service indicating that the 61st District Court was served by certified mail on 5/20/17. This assertion was “unsupported by the tracking information attached to the proof of service,” which only stated that the parcel was in transit on 5/20/17, but did not reflect actual delivery. “MCR 2.102(E)(1) provides that when a summons expires without service on a defendant in accordance with the court rules and the defendant has failed to appear, the action is ‘deemed dismissed without prejudice’ as to that defendant.” The 91-day life of the summons expired on 8/14/17, at which point Rayfield had yet to show that “he completed service upon the 61st District Court in accordance with MCR 2.105(G)(8).” The conclusion that the clerk properly entered an order of dismissal was unaffected by the fact that Rayfield’s request for entry of a default was pending. Affirmed.

    Full Text Opinion

  • Criminal Law (5)

    Full Text Opinion

    e-Journal #: 68484
    Case: People v. Barritt
    Court: Michigan Court of Appeals ( Published Opinion )
    Judges: Borrello and M.J. Kelly; Dissent – Boonstra
    Issues:

    Motion to suppress defendant’s police statements; Whether he was in “custody” for purposes of Miranda v. Arizona; Stansbury v. California; Howes v. Fields; Location of the interview; Maryland v. Shatzer; People v. Cortez (On Remand); Oregon v. Mathiason; The objective circumstances of the interview; People v. Zahn; Duration of the interview; People v. Mendez; Statements made during the interview; Yarborough v. Alvarado; Effect of the increasingly accusatory nature of the interview; Tankleff v. Senkowski (2d Cir.); People v. White; Presence or absence of physical restraints; New York v. Quarles; Effect of the fact defendant was not released at the end of the interview; California v. Beheler; Whether there was a coercive environment; Berkemer v. McCarty; People v. Elliott

    Summary:

    The court found that the trial court did not clearly err in determining that a reasonable person in defendant’s position would have felt that he was not at liberty to end the interview and leave, and that “the environment presented the same coercive pressures as the type of station house questioning in Miranda.” Thus, it held that he was in custody and his Fifth Amendment rights were violated when he was not informed of his Miranda rights. It affirmed the trial court’s order (entered after the Michigan Supreme Court remanded the case) granting his motion to suppress his statements made during the interview. The case arose from the death of his alleged girlfriend. The court considered the circumstances articulated in case law to determine whether he was subjected to custodial interrogation. As to location, while there was “evidence that the office doors were unlocked, this does not outweigh the fact that questioning occurred in an office at the police station, in the constant presence of armed police officers, to which defendant was escorted into by armed police officers following being transported in a marked police car.” It was unlikely “a reasonable person would believe that they were free to terminate the interview and leave” under these circumstances. Although the facts were subject to interpretation, the determination of custody depends on the objective circumstances. The court agreed with the trial court that the duration factor (90 minutes) was neutral, and “that the accusatory nature of the questioning of defendant weighs in favor of a finding of custody.” There was no dispute that he was not handcuffed until minute 88 of the 90-minute interview. However, “riding to a police station in a marked vehicle, being walked in by armed detectives, and then being interviewed by armed police officers constituted physical restraints on [his] freedom of movement, and a reasonable person would not feel at liberty to terminate the conversation and leave under such circumstances.” At the end of the interview he was placed in handcuffs and transported to another police department. Further, taken together, the court found that the facts here indicated a coercive environment, and that “this case is the type of situation that compels Miranda warnings be given.”

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68424
    Case: People v. Mercer
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam - Hoekstra, Murphy, and Markey
    Issues:

    Sentencing; Reasonableness & proportionality; People v. Lockridge; People v. Steanhouse; People v. Milbourn; People v. Babcock; People v. Granderson; Effect of a defendant’s age; People v. Lemons

    Summary:

    The court held that defendant was not entitled to resentencing. He was convicted of CSC II for sexually abusing his 10-year-old step great-great granddaughter. The trial court sentenced him as a second-offense habitual offender to 180 to 270 months, an upward departure from the minimum sentencing guidelines range of 29 to 71 months. In a prior appeal, the court denied his delayed application for leave to appeal. The Supreme Court, in lieu of granting leave, remanded the case for consideration of whether his sentence was reasonable. On remand, the court rejected defendant’s argument that the trial court erred by substantially departing upward from the minimum guidelines range, where the sentence was not proportionate to the seriousness of the circumstances surrounding the offense and the offender. He claimed that “because he will not be eligible for parole until he is 88 years old, the ‘sentence is in essence a death sentence.’” He also contended that “the departure was not justified by the trial court’s statements on the record, that [it] failed to articulate why the sentence was more proportionate than a sentence within the guidelines range, and . . . failed to articulate the reasons for the extent of the departure.” The court found that “although the trial court’s remarks relative to imposing a departure sentence were fairly brief, [it] did not abuse its discretion in regard to the decision to depart from the guidelines range, nor in relation to the extent of the departure. The minimum sentence of 180 months or 15 years was proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Moreover, “on the subject of the potential for rehabilitation,” the court found that “the record supported the trial court’s determination that a departure was appropriate because defendant posed a risk to society and young girls.” Finally, as to defendant’s argument concerning his age, it noted the Supreme Court’s holding that there is “no principled reason to require that a judge treat similar offenses that are committed by similarly depraved persons differently solely on the basis of the age of the defendant at sentencing where the Legislature has authorized the judge to impose life or any term of years.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68429
    Case: People v. Paulitch
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Hoekstra, and Gadola
    Issues:

    Audio recordings of controlled drug buys; Hearsay; MRE 801(c); Failure to articulate with particularity what statements allegedly constitute inadmissible hearsay; People v. Martin; Right of confrontation; People v. Nunley; Testimony defined; Crawford v. Washington; Testimony not offered to prove the truth of the matter asserted; People v. Chambers; Statements offering background information; United States v. Cromer (6th Cir.); Harmless error; People v. Spinks; People v. Shepherd; People v. Banks; People v. Jackson; Other acts evidence; MRE 404(b)(1); People v. Starr; Whether the probative value of challenged testimony was substantially outweighed by the danger of unfair prejudice; United States v. Johnson (6th Cir.); Harboring error as an appellate parachute; People v. Riley; Motion to disqualify the prosecutor; People v. Tesen; MRPC 1.9(a); Whether the present case was “substantially related” to a prior case in which the prosecutor represented defendant; Alpha Capital Mgmt., Inc. v. Rentenbach; People v. Waterstone; “Appearance of impropriety”; People v. Doyle; Remand for the ministerial task of correcting the judgment of sentence; People v. Shipley; People v. Katt

    Summary:

    The court found that defendant abandoned some of his hearsay issues, and that the one confidential informant (CI) recorded statement he challenged with any specificity did not violate the Confrontation Clause because it was offered for background context. While there was a violation of MRE 404(b), the court held that this error was harmless in light of the “overwhelming weight of admissible evidence” supporting the verdict. Further, the trial court did not err in failing to disqualify the prosecutor on the basis of his prior representation of defendant because it could not be said that the two cases were substantially related. He was convicted of delivery of less than 50 grams of morphine and of maintaining a drug house. Police were informed by witness-A that she could purchase morphine tablets from witnesses-B and M, “intermediaries who purchased from defendant.” A explained at trial that she used B and M “as intermediaries because defendant had previously refused to deal directly with her.” A controlled purchase involving A, B, and a second CI was arranged. Two other purchases followed. Defendant challenged the admission of audio recordings of the purchases, which included statements made by B, M, and the second CI. The court concluded that he abandoned the issue as to B and M, and only specifically challenged one statement made by the second CI. The court found that this statement was not hearsay and did not implicate the Confrontation Clause because it was used as background context to explain why A and the second CI acted as they did. The court also rejected most of defendant’s other acts evidence challenges, concluding that A “could not have adequately explained the necessity of using intermediaries unless she referenced the previous deal with defendant that resulted in her ‘getting in trouble.’” While the admission of M’s testimony that she had been buying morphine from defendant “for a few years” constituted error because it was unduly prejudicial and not necessary to rebut defendant’s attack on her credibility, it did not affect the trial’s outcome. Affirmed but remanded for the correction of one of defendant’s judgments of sentence.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68426
    Case: People v. Thomas
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, M.J. Kelly, and Boonstra
    Issues:

    Severance of charges; “Related” for purposes of MCR 6.120(B)(1); People v. Gaines; People v. Williams; People v. Tobey; Ineffective assistance of counsel; People v. Heft; Strickland v. Washington; People v. Pickens; Failure to make a futile motion; People v. Horn; Sufficiency of the evidence of identity; People v. Bass; Circumstantial evidence; People v. Murphy; Principle that the prosecution does not have to negate every reasonable theory consistent with a defendant’s innocence; People v. Konrad; Aiding & abetting; MCL 767.39; People v. Robinson; Assault with intent to murder (AWIM)

    Summary:

    The court held that the trial court did not err in ruling that the two sets of charges were “related” under MCR 6.120(B)(1) and in denying defendant’s motion for severance. Further, defense counsel was not ineffective for failing to move for severance earlier, and the circumstantial evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that defendant perpetrated the crimes. He was convicted of first-degree premeditated murder, AWIM, felon in possession, and felony-firearm. He argued that the AWIM and related firearm charges stemming from the 10/6/15 incident should have been severed from the murder and related firearm charges stemming from the 10/21/15 incident because the AWIM was not related to the murder. The court disagreed. The record supported “the conclusion that the two sets of charges stemmed from incidents that were either ‘a series of connected acts’ or ‘acts constituting parts of a single scheme or plan.’” Both incidents involved the shooting of employees of the same medical marijuana dispensary, and occurred approximately two weeks apart. In the 10/6/15 incident, victim-C “was shot immediately outside the dispensary by the occupants of a car that had parked across the street, apparently waiting for their victim.” In the 10/21/15 incident, victim-S was found shot to death in his pickup truck within a short distance of the dispensary. There was evidence that “an SUV had parked across the street from the dispensary, waited for approximately an hour, and then followed [S’s] truck” when he left. It was “reasonable to conclude that people associated with” the dispensary were targeted and that they were “attacked using a common method.” Further, evidence “connected defendant to the two shootings through common places and individuals.” As to the sufficiency of the evidence of identity, “the jury could have reasonably found that the cell phone” that was attributed to him belonged to him. There was also evidence (1) connecting him to the vehicles used in the shootings around the times of the shootings, (2) allowing the jury to reasonably infer that he was at the scene of the shootings, and (3) tying him to the guns used in each shooting. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68428
    Case: People v. Wicks
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Right of confrontation as to the admission of the recording of an anonymous 911 call; People v. Washington; People v. Benton; The Confrontation Clause; U.S. Const. amend. VI; Const. 1963, art. 1, § 20; Crawford v. Washington; People v. Chambers; Davis v. Washington; Michigan v. Bryant; People v. Walker (On Remand); Whether the anonymous call was testimonial; Hearsay; The “present sense impression” exception; MRE 803(1); The “excited utterance” exception; MRE 803(2); People v. Hendrickson; Preliminary exam testimony; “Unavailable” witness; MRE 804(b)(1); Harmless error; MCL 769.26; People v. Lukity; Whether the state exercised due diligence in attempting to secure the witness’s attendance; People v. Garland; People v. Bean; Admission of statements as to gang membership & affiliation; Plain error review; People v. Carines; MRE 401-403; Effect of the fact this was a bench trial; People v. Taylor; Great weight of the evidence; People v. Lemmon; People v. Musser

    Summary:

    The court held that defendant was not denied his right of confrontation as to the admission of an anonymous 911 call, and it saw no harm or prejudice to defendant in the admission of a missing witness’s preliminary exam testimony. The trial court did not abuse its discretion in finding that the state exercised due diligence in attempting to secure the witness’s attendance. Further, it could not conclude that the trial court plainly erred in this bench trial in not excluding sua sponte statements as to gang membership and affiliation. Finally, the evidence did not preponderate so heavily against the verdicts that it would be a miscarriage of justice to allow them to stand. He was convicted of carrying a concealed weapon, three counts of felonious assault, and three counts of felony-firearm. Defendant contended that the recording of the anonymous 911 call constituted inadmissible hearsay that denied him his right of confrontation. He initially maintained that there was no ongoing emergency relating to the caller herself. This argument lacked merit, as “there is no requirement that the 911 caller be the person at direct risk of harm from the danger posed by the ongoing emergency situation.” As Walker made clear, “the 911 call must relate to a present or ongoing emergency, but the caller making the statements need not be the person at risk relative to the circumstances surrounding the emergency.” The U.S. Supreme Court in Bryant observed that “the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.” The question was not whether the caller was threatened by an ongoing emergency, but rather whether the call actually concerned an ongoing emergency that placed a person or persons at risk. Here, the “anonymous caller was reporting a neighborhood shooting as events were evolving and unfolding, and the operator’s questions, just as the questions directed by the operator in Walker, objectively indicated that the primary purpose of the inquiry was to enable police assistance to meet an ongoing emergency.” Further, there was no evidentiary support for his contention that “the anonymous call was testimonial as there was no ongoing emergency, [as] the caller was describing a past event with the purpose of naming a possible perpetrator.” Rather, it was clear that the anonymous call was made during the course of an ongoing emergency. Affirmed.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    e-Journal #: 68425
    Case: Petrous v. Everest Nat'l Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello, M.J. Kelly, and Boonstra
    Issues:

    No-fault benefits; Rescission of insurance policy ab initio based on a fraudulent misrepresentation on the policy application; Titan Ins. Co. v. Hyten; 21st Century Premier Ins. Co. v. Zufelt; Lash v. Allstate Ins. Co.; Kaftan v. Kaftan; Whether a misrepresentation is “material”; Keys v. Pace

    Summary:

    The court held that because there was no genuine issue of material fact as to plaintiff-insured’s fraudulent misrepresentation that entitled defendant-insurer to rescind the insurance policy, the trial court erred by denying defendant’s motion for summary disposition. Thus, it reversed and remanded for entry of an order granting summary disposition for defendant. The record evidence showed that plaintiff sought an insurance policy from defendant and signed an application stating he was the only listed driver. “By signing the application beneath the applicant statement, plaintiff affirmatively represented that he had identified all household members over the age of 14, that he understood that this information could affect his policy premium, and that he agreed that his policy would be void if he intentionally concealed or misrepresented a material fact.” Yet, he testified at his deposition “that he was living at his mother’s house at the time that he applied for the insurance policy, along with his mother, stepfather, and sister who were all over the age of 14.” The application also listed his mother’s address as his address. Thus, the “representation in his insurance application that there were no other household members over the age of 14 was false, and he clearly knew” when he filled out the application that it was false. Further, his “representation was material because there was undisputed evidence that defendant would have charged a higher premium if plaintiff had truthfully disclosed his other household members.” As he submitted his application in order to obtain a no-fault policy from defendant, he “intended that defendant would act on the information contained in the application, including the misrepresentation that there were no other individuals in his household over the age of 14. Defendant did in fact act on plaintiff’s misrepresentation by issuing the policy,” and suffered an injury because it charged a lower premium than it would have if plaintiff had provided truthful information about his household members. In responding to defendant’s summary disposition motion, plaintiff did not submit any evidence to rebut these facts and thus, failed to show that there was a genuine issue for trial. The undisputed evidence showed that defendant met the required elements of a fraudulent misrepresentation claim. Thus, it was entitled to rescind the insurance policy ab initio.

    Full Text Opinion

  • Litigation (2)

    Full Text Opinion

    This summary also appears under Courts

    e-Journal #: 68413
    Case: Rayfield v. State of MI-One Court of Justice
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Gleicher, and Letica
    Issues:

    Whether a default should have been entered; Court rule interpretation; Barclay v. Crown Bldg. & Dev., Inc.; MCR 2.105(G)(8); MCR 2.105(K)(1); MCR 2.102(E)(1); Failure to comply with the statutory notice requirements of MCL 600.6431; Fairley v. Department of Corrs.; MCL 600.6431(1) & (3); McCahan v. Brennan; MCL 600.6452(1); Due process; Whether the claims were impacted by MCL 600.6431; Cummins v. Robinson Twp.; 42 USC § 1983; Whether plaintiff’s noncompliance with MCL 600.6431 should be excused; Reliance on non-binding case law; Aroma Wines & Equip., Inc. v. Columbian Distrib. Servs., Inc.; Abela v. General Motors Corp.; Binding effect of Michigan Supreme Court opinions; Griswold Props., LLC v. Lexington Ins. Co.

    Summary:

    The court held that the clerk of the Court of Claims properly entered an order dismissing the action as to defendant-61st District Court based upon plaintiff-Rayfield’s failure to effect service consistent with the MCRs. Also, the Court of Claims did not err in concluding that his claims were barred due to his failure to comply with the notice requirement under MCL 600.6431. He argued that it was error to dismiss the 61st District Court for lack of service or progress and that a default should have entered against it for failure to plead or otherwise defend. He asserted that he satisfied MCR 2.105(G)(8) by addressing a certified mailing to the 61st District Court at an address in Grand Rapids. The “plain language of MCR 2.105(G)(8) permits service of the summons and a copy of the complaint on the clerk of the court; alternatively, service may be achieved through service of the summons and a copy of the complaint on an individual in charge of the office of the clerk and by sending the summons and copy of the complaint to the clerk of the court via registered mail. Service by registered mail may also be accomplished by certified mail, as long as the receipt of mailing is postmarked by the post office.” Rayfield’s mailing did not satisfy either method. He did “not serve the summons and complaint on the clerk of the 61st District Court, nor did he serve the summons and complaint on an agent of the clerk, while also sending the clerk the summons and copy of the complaint by registered or certified mail.” Even if his certified mailing could somehow be deemed sufficient under MCR 2.105(G)(8), the record suggested that “even that imperfect method of service was incomplete.” He filed a proof of service indicating that the 61st District Court was served by certified mail on 5/20/17. This assertion was “unsupported by the tracking information attached to the proof of service,” which only stated that the parcel was in transit on 5/20/17, but did not reflect actual delivery. “MCR 2.102(E)(1) provides that when a summons expires without service on a defendant in accordance with the court rules and the defendant has failed to appear, the action is ‘deemed dismissed without prejudice’ as to that defendant.” The 91-day life of the summons expired on 8/14/17, at which point Rayfield had yet to show that “he completed service upon the 61st District Court in accordance with MCR 2.105(G)(8).” The conclusion that the clerk properly entered an order of dismissal was unaffected by the fact that Rayfield’s request for entry of a default was pending. Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68483
    Case: Davis v. Detroit Pub. Schs. Cmty. Dist
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: Clay with Boggs and Larsen joining except as to Part II.B; On Part II.B – Boggs and Larsen
    Issues:

    Whether plaintiffs had Article III standing to bring claims for declaratory judgment & mandamus relief as to whether the Detroit School Board was required to place a tax issue related to the Detroit Pistons’ move to downtown Detroit on the ballot; Warth v. Seldin; Vermont Agency of Natural Res. v. United States ex rel. Stevens; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.; Lujan v. Defenders of Wildlife; Spokeo, Inc. v. Robins; MCL 380.11a(10), 380.1216, 168.312, & 168.641(4); Michigan’s declaratory judgment rule; MCR 2.605(A)(1); Shavers v. Kelley

    Summary:

    [This appeal was from the ED-MI.] The court held that plaintiffs lacked Article III standing to bring claims for a declaratory judgment and mandamus relief as to the Detroit School Board’s authority to place a question on the next Detroit election ballot asking city voters to approve or disapprove of certain tax expenditures related to the Pistons’ move from Auburn Hills to downtown Detroit. The tax expenditures involved were associated with improvements to Little Caesars Arena, construction of a new basketball practice facility, and creation of a Pistons corporate headquarters. Plaintiffs claimed that the money used for these projects had been collected for the improvement of Detroit schools and sought “a city-wide referendum asking voters to approve or disapprove of these tax expenditures.” The district court dismissed their declaratory judgment and mandamus claims. The court affirmed, holding that plaintiffs’ claim regarding the School Board’s failure to place the tax-expenditure issue on the ballot did not allege a “sufficiently concrete or particularized” injury to confer Article III standing. The court found that “[p]laintiffs were not affected by [the] school board’s decision in any ‘personal and individual way.’ . . . On the contrary, the school board’s failure to place Plaintiffs’ tax question on the ballot affects all Detroit voters equally.” Moreover, one of the plaintiffs was “not even a Detroit voter.” Judge Boggs, with Judge Larsen joining, authored an additional opinion that was the opinion of the court regarding whether plaintiffs’ alleged injury could be construed as the misuse of tax increment financing (TIF), concluding that it could not because the only counts before the court were the declaratory judgment and mandamus counts, in which the alleged injury was defendants’ “failure to place the requested question on the ballot.” The alleged misuse of TIF revenue was contained in another count of the complaint, on which the court had “declined to say whether the district court had entered final judgment[.]”

    Full Text Opinion

  • Negligence & Intentional Tort (2)

    Full Text Opinion

    e-Journal #: 68432
    Case: Howard v. Glenn Haven Shores Ass'n
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Claims arising from the erosion of lake-side properties; Requirements for a prima facie case of negligence; Loweke v. Ann Arbor Ceiling & Partition Co., LLC; Determining whether a legal duty exists; In re Certified Question from the 14th Dist. Court of Appeals of TX; Valcaniant v. Detroit Edison Co.; Moning v. Alfono; Legal duty owed to adjacent property owners; Littell v. Knorr; Woods v. Chalmers Motor Co.; Hill v. Sears, Roebuck & Co.; The required standard of conduct/scope of the duty related to surface water; O’Connor v. Hogan; Kernen v. Homestead Dev. Co.; Wiggins v. City of Burton; Distinguishing Stanley v. Town Square Coop.; A summary disposition motion under MCR 2.116(C)(8); Beaudrie v. Henderson; A summary disposition motion under MCR 2.116(C)(10); Pioneer State Mut. Ins. Co. v. Dells; Nuisance; Adkins v. Thomas Solvent Co.

    Summary:

    While the court held that the defendant-Association, as an adjacent property owner, owed a duty in tort to plaintiffs to act reasonably in light of apparent risks, it also held that the standard of conduct/scope of the Association’s duty under tort law did “not entail taking affirmative measures to prevent or minimize erosion affecting plaintiffs’ parcels.” But it further held that the Association’s duty included “refraining from engaging in negligent conduct that diverts or increases the natural flow of surface water so as to cause erosion of plaintiffs’ lots beyond any erosion that would have occurred as a result of the natural flow of surface water.” Applying these principles, the court found that while the trial court erred in granting the Association summary disposition in this negligence and nuisance action under MCR 2.116(C)(8), it properly granted summary disposition under MCR 2.116(C)(10). The court concluded that the trial court erred in ruling that the Association did not owe plaintiffs a legal duty to prevent “the erosion of plaintiffs’ Lake Michigan properties, allegedly caused, for the most part, by surface water flowing over the crest of a bluff and ravine.” The court concluded that “the Association has a duty not to engage in unreasonable or negligent conduct that diverts or increases the natural flow of waters so as to cause injury to plaintiffs’ properties in the form of erosion that otherwise would not have occurred.” This was based “on the fact that the Association and plaintiffs own neighboring properties and that surface waters in the area generally drain or flow toward or to Lake Michigan.” The fact that it “may have implemented erosion-control measures to benefit itself and its property or to benefit lot owners other than plaintiffs does not mean that a legal duty or standard of conduct was created requiring [it] to do the same for plaintiffs.” While the court found that the allegations in the complaint were sufficient for purposes of a (C)(8) motion, it held that plaintiffs failed to create genuine issues of material fact whether the drains, catch basins, and seawall were negligently maintained and whether they caused "erosion of plaintiffs’ lots that otherwise would not have occurred.” Affirmed.

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    e-Journal #: 68394
    Case: Pasho v. McCowan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Jansen, and O’Connell
    Issues:

    Auto negligence action; Negligence; Henry v. Dow Chem. Co.; Causation; Haliw v. City of Sterling Heights; Proximate cause; Black v. Shafer; Michigan Dep’t of Transp. v. Christensen; Ray v. Swager; Moning v. Alfono; Duty; Riddle v. McLouth Steel Prod. Corp.; Whether defendant-driver acted reasonably under the circumstances; Arnold v. Krug; McGuire v. Rabaut

    Summary:

    The court held that the trial court did not err by granting summary disposition for defendants-truck driver and cargo company in plaintiff’s auto negligence action. Plaintiffs sued defendants for disabling injuries sustained by their daughter when her SUV was hit by the truck driver’s semi-truck. On appeal, the court held that, given “the policy considerations discussed in Arnold, it was appropriate for the trial court to conclude, as a matter of law, that [the truck driver’s] actions did not fall within the proper scope of liability.” It noted that “[a]lthough it is reasonably foreseeable that some driver at some intersection with a high-speed, trunk line highway will, at some point, suddenly drive into the path of an oncoming semi-truck that has the right of way, at any given intersection that outcome is not reasonably foreseeable. As Arnold recognized, it is simply not reasonable to expect drivers on trunk line highways to constantly anticipate such behavior from other motorists.” The court noted that “from a policy standpoint, doing so would fundamentally undermine the purpose of the trunk line system (i.e., rapid transit), would ‘be foreign to the general conception of careful drivers of their rights and duties upon’ roadways, would ‘in large measure destroy the preferential right of way,’ and would ‘offer inducement to drivers approaching on intersection roads to violate their legal duties.’” Here, there was no genuine factual dispute as to the essential facts. Plaintiffs’ daughter “suddenly impeded [the truck driver’s] lawful right of way. Her conduct in doing so was unlawful, and as evidenced by her own severe injuries and her passenger’s death, it was so unexpected as to be inherently unforeseeable. Under the doctrine of legal causation, this state’s common-law negligence jurisprudence, as announced in Arnold, will not attribute liability for [her] injuries to [the truck driver], who was simply traveling on a trunk line highway lawfully and in control of his vehicle.” Affirmed.

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