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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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


Cases appear under the following practice areas:

  • Attorneys (1)

    Full Text Opinion

    This summary also appears under Malpractice

    e-Journal #: 68427
    Case: Smith v. Hertz Schram PC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murphy and Ronayne Krause; Dissent - Jansen
    Issues:

    Legal malpractice; Simko v. Blake; Charles Reinhart Co. v. Winiemko; Principle that a plaintiff's settlement of an underlying action should not act as an absolute bar to a subsequent legal malpractice action; Lowman v. Karp; Compelled assent; Espinoza v. Thomas; Discovery after a postjudgment motion is filed pursuant to a domestic relations action; MCR 2.302(A)(4)

    Summary:

    The court held that the trial court did not err by granting summary disposition for defendants-attorney (Stern) and law firm (Hertz Schram) in plaintiff’s legal malpractice action. Plaintiff sued defendants for legal malpractice arising out of a post-divorce proceeding. She claimed Stern “failed to obtain necessary and critical information” about the status and value of her ex-husband’s pertinent business holdings before the parties settled the matter. On appeal, the court first noted that, absent evidence that her ex-husband’s decision to exercise his stock options “would have been the same if plaintiff had taken a course of action different than settlement, which was not presented, establishing causation is purely speculative and defeats any recovery.” It then noted that there was no claim of negligence arising out of Stern’s efforts in pursuing the motions to enforce the divorce judgment and obtaining a forensic CPA’s services. “Stern was asking all of the right questions and seeking production of all of the right documents. Had the requested information and documents been produced, they would have been of benefit to plaintiff, allowing the CPA to soundly assess the status and value of the business.” In addition, Stern had “no control over the mediator’s conclusions.” The court also noted that there was no malpractice “by Stern in connection with her advice to plaintiff regarding the option of taking a wait-and-see approach.” And she was not “negligent for presenting plaintiff with a settlement option that was based on calculations using information and figures that were either not in dispute or were supplied by a seemingly valid and knowledgeable source.” Finally, “[e]ven if plaintiff’s malpractice complaint alleged that Stern should have pressed for the inclusion of some escape mechanism in the settlement agreement tied to company counsel’s representations or even tied generally to information unknown or undisclosed to plaintiff at the time of execution, we can only speculate as to what would have transpired.” Moreover, “the fact that Stern did not request the inclusion of language in the settlement agreement protecting plaintiff from unknown information could be viewed as falling within the attorney-judgment rule.” Affirmed.

    Full Text Opinion

  • Consumer Rights (2)

    Full Text Opinion

    This summary also appears under Debtor/Creditor

    e-Journal #: 68449
    Case: Comerica Bank v. Kelman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron and O’Connell; Concurring in part, Dissenting in part – Jansen
    Issues:

    Garnishment; General rule that all property is subject to execution to satisfy a judgment; Cunningham Davison Beeby Rogers & Alward v. Herrr; Disability payments exempt under MCL 600.6023(1)(f); Applicability to a garnishment action; MCL 600.4031(1); Whitwood, Inc. v. South Boulevard Prop. Mgmt. Co.; Defining “execution” & “levy” using a dictionary; Salem Springs, LLC v. Salem Twp.; Statutory maximum under the Consumer Credit Protection Act (15 USC § 1671 et seq.); § 1673(a)(1); “Earnings” defined; § 1672(a); Distinguishing United States v. Ashcraft (8th Cir.)

    Summary:

    The court held that defendant’s disability payments were exempt from garnishment under MCL 600.6023(1)(f), but that the Consumer Credit Protection Act (CCPA) did not prohibit the garnishment of his credit union account. Thus, it vacated the trial court’s order denying his objection to the plaintiff-bank’s writ of garnishment, and remanded for the trial court to determine what amount of the account balance reflected disability payments and thus, what amount of the account, if any, was subject to garnishment. The bank issued the writ of garnishment after defendant defaulted on a home equity loan. He objected, arguing that the account funds included disability payments exempt under MCL 600.6023(1)(f) and that the garnishment exceeded the statutory maximum under the CCPA. While the bank argued that MCL 600.6023(1)(f) does not apply to a garnishment action, the court disagreed. Consulting a dictionary to define the undefined terms “execution” and “levy,” and noting that MCL 600.4031(1) supported defendant’s argument, the court concluded that garnishing funds in his account constituted “a levy as used in MCL 600.6023(1).” Further, he was correct “that the disability payments were exempt even after they were deposited into” the credit union account. “The plain language of MCL 600.6023(1)(f) states that the exemption applies to ‘[a]ny money or other benefits paid.’” Thus, it applies even after a “disability payment is deposited into an account.” The bank relied on Whitwood at its peril given that “the language of MCL 600.6023(1)(f) closely mirrors the outcome-determinative language of ‘moneys paid’ in” that case. However, the court could not conclude that the disability payments here were “earnings” under the CCPA. While a federal court held in Ashcraft that “employer-funded disability payments constituted ‘earnings’ as defined in” the CCPA, defendant’s “disability payments were not an employee benefit because he privately purchased the disability insurance policies.” Also, unlike Ashcraft, the record did not contain the "insurance policy or state its purpose.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 68438
    Case: Macy v. GC Servs. Ltd. P'ship
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: White, Gibbons, and Stranch
    Issues:

    Class action under the Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.); § 1692(g)(a)(4) & (5); Article III standing; Hein v. Freedom From Religion Found., Inc.; DaimlerChrysler Corp. v. Cuno; Warth v. Seldin; Baker v. Carr; Lujan v. Defenders of Wildlife; “Injury in fact”; Spokeo, Inc. v. Robins; Federal Election Comm’n v. Akins; Public Citizen v. Department of Justice; Summers v. Earth Island Inst.; Strubel v. Comenity Bank (2d Cir.); Robins v. Spokeo, Inc. (9th Cir.) (Spokeo II); Soehnlen v. Fleet Owners Ins. Fund; Lyshe v. Levy; Whether a violation of the FDCPA constituted a concrete injury; Barany-Snyder v. Weiner; Papetti v. Does 1-25 (2d Cir.); Jacobson v. Healthcare Fin. Servs., Inc. (2d Cir.); Camacho v. Bridgeport Fin. Inc. (9th Cir.); Hooks v. Forman, Holt, Eliades & Ravin, LLC (2d Cir.); Distinguishing Clapper v. Amnesty Int’l USA; Hagy v. Demers & Adams; Class certification; Rikos v. Procter & Gamble Co.; Young v. Nationwide Mut. Ins. Co.; Amchem Prods., Inc. v. Windsor; Fed.R.Civ.P. 23(a) & (b)(3); Commonality requirement; Fariasantos v. Rosenberg & Assocs. (ED VA); Edwards v. McCormick (SD OH)

    Summary:

    In this interlocutory appeal of a class certification order, the court held that the plaintiffs had Article III standing to bring their FDCPA claims where they were entitled to rely on violations of the statute without stating any additional harm. Plaintiffs alleged that defendant-GC, a collection agency, sent them letters informing them that they had been turned over for collection but that the letters did not provide the proper notice requirements mandating that plaintiffs dispute their debts in writing. GC challenged plaintiffs’ standing, but the district court certified the class. GC argued that plaintiffs lacked Article III standing because they could not establish an “injury in fact” just by showing a statutory violation. The parties differed in their interpretation of Spokeo, but the court held that the case did not overturn prior precedent supporting a statutory violation as an injury in fact. It considered the purposes behind the FDCPA, and noted that “the FDCPA gives consumers a private right of action to enforce its provisions against debt collectors.” It concluded that, assuming “the language of GC’s letters constitutes a procedural violation of the FDCPA, Plaintiffs have demonstrated a sufficient ‘risk of real harm’ to the underlying interest to establish concrete injury without the ‘need [to] allege any additional harm beyond the one Congress has identified.’” Because the letters did not specify the “in-writing” requirement,” the court found that plaintiffs were exposed to a “materially greater risk of falling victim to ‘abusive debt collection practices.’” Thus, plaintiffs “satisfied the concreteness prong of the injury-in-fact requirement of Article III standing by alleging that GC’s purported FDCPA violations created a material risk of harm to the interests recognized by Congress in enacting the FDCPA.” The court upheld the district court’s ruling granting class certification where GC “repackag[ed] its standing argument with a commonality label,” and the same was true of its adequacy argument. Affirmed.

    Full Text Opinion

  • Contracts (2)

    Full Text Opinion

    This summary also appears under Healthcare Law

    e-Journal #: 68400
    Case: Accredited Home Care, Inc. v. Champion Nursing Care, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Jansen, and O’Connell
    Issues:

    Breach of contract; Bank of Am., NA v. First Am. Title Ins. Co.; Damages; Van Buren Charter Twp. v. Visteon Corp.; Alan Custom Homes, Inc. v. Krol

    Summary:

    Holding that plaintiff-management company failed to meet its burden of proving its damages with specificity and thus, a genuine issue of material fact remained as to whether the damages were a “direct, natural, and proximate result of” defendant-healthcare company’s breach, the court reversed summary disposition for defendant on its breach of contract claim, vacated the order granting defendant’s motion for reconsideration and granting summary disposition for it as to damages, and remanded. The parties entered into an agreement under which plaintiff would provide management and other services for defendant. Defendant later terminated the agreement on the basis that plaintiff had been excluded participating as a Medicare provider. Plaintiff filed a three-count complaint seeking damages and other relief, and defendant filed a four-count counter complaint alleging breach of contract and other claims. The trial court initially granted, in part, plaintiff’s motion for summary disposition, and dismissed all but defendant’s breach of contract claim. It later granted summary disposition for defendant on that claim, but found there remained a genuine issue of fact as to damages. The parties eventually entered into a settlement agreement as to plaintiff’s remaining claims, and plaintiff appealed as to defendant’s damages. On appeal, the court agreed with plaintiff that the trial court erroneously granted summary disposition for defendant where there remained a genuine issue of fact as to whether plaintiff’s breach was the “cause in fact” of defendant’s alleged damages, and whether the alleged damages were foreseeable. “The trial court provided no explanation as to how the $227,448.90 damage figure was a direct, natural, and proximate result of” the breach.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68458
    Case: Alpha Auto. Group, LLC v. Cunningham Chrysler of Edinboro, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Action for breach of an advertising contract; Elements of a breach of contract claim; Miller-Davis Co. v. Ahrens Constr. Co.; Contract interpretation; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Whether a contract is ambiguous; Klapp v. United Ins. Group Agency, Inc.

    Summary:

    Concluding that the trial court erred to the extent that it ruled as a matter of law that two individuals (W and G) had been specifically trained by plaintiff-Alpha Group, the court reversed summary disposition for Alpha Group in this breach of contract case and remanded. Alpha Group sued defendant-Cunningham Chrysler for breaching an advertising agreement, alleging that within one year of the agreement, it hired two of Alpha Group’s personnel – W and G. The primary issue before the trial court was whether W and G were “members of the class of persons covered by” ¶ 10 of the agreement. The court concluded that to establish a breach of this provision, Alpha Group had to offer evidence that, if left unrebutted, showed that W and G “were members of Alpha Group’s ‘Team’ or were ‘employed by, contracted to, or formerly employed by or affiliated with’ Alpha Group.” The parties’ agreements did not define “Team” or “what it meant to be a team member of Alpha Group, despite using the terms team and team member in the agreements.” Reading ¶ 10, the court found it plain “that to qualify as a team member of Alpha Group, the individual must have been ‘specially trained’ by Alpha Group. Indeed, the whole purpose of ¶ 10 and the liquidated damages provision was to protect Alpha Group from poaching by Cunningham Chrysler of team members, employees, and contractors affiliated with Alpha Group who received ‘specialized training’ from Alpha Group.” But neither party “submitted any pertinent and timely documentary evidence on the matter.” While there did not appear to be any dispute that W and G participated in sales events at Cunningham Chrysler, “that did not automatically make them team members or independent contractors of Alpha Group such that ¶ 10 was implicated; they needed to have been specially trained by Alpha Group.” The parties were free to move for summary disposition on remand as to the issue as the court had framed it, or the case can go to trial. The court also reversed the award of money damages and attorney fees imposed against Cunningham Chrysler.

    Full Text Opinion

  • Criminal Law (3)

    Full Text Opinion

    e-Journal #: 68431
    Case: People v. Abston
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Gleicher, and Letica
    Issues:

    Sentencing; Waiver of claim as to habitual offender status; People v. Carter; MCL 769.12(1); MCL 769.13(5)(c); People v. Slocum; People v. Hornsby; Judicial notice; MRE 201(b) &(c); Scoring of OVs 3, 7, 10, & 19; MCL 777.33(1)(d); People v. Laidler; People v. McDonald; MCL 777.33(3); People v. Maben; People v. McCuller; MCL 777.37(1)(a); People v. Golba; People v. Steanhouse (On Remand); MCL 777.40(1)(b) & (3)(b); MCL 777.49(c); People v. Smith; People v. Miller; People v. Sours; People v. Carpenter; Presentence Investigation Report (PSIR); Resisting & obstructing of a police officer (R&O)

    Summary:

    Holding that the trial court properly sentenced defendant-Abston as a fourth-offense habitual offender and scored OVs 3, 7, 10, and 19, the court affirmed. These consolidated appeals arose from two separate criminal prosecutions brought against him, both of which involved allegations that he had engaged in acts of domestic violence against his former girlfriend. Defense counsel’s agreement that the prosecution established Abston as a fourth-offense habitual offender waived the claim that he should not have been sentenced as a fourth-habitual offender. Moreover, even if counsel had not waived the issue, “a defendant can be sentenced as a fourth-offense habitual offender if he ‘has been convicted of any combination of 3 or more felonies or attempts to commit felonies . . . .’” A prior conviction “‘may be established by any evidence that is relevant for that purpose, including, but not limited to . . . [a] copy of a court register of actions.’” According to court records, Abston pled nolo contendere to two counts of attempted R&O. As the prosecutor discussed in the trial court, “those offenses constitute attempts to commit a felony for purposes of habitual offender sentence enhancements.” Although his 2014 convictions were not reflected in his PSIR, the court took judicial notice of the fact of their existence. It also held that the record evidence as to “the victim’s injuries and subsequent treatment was sufficient to support the trial court’s decision to assess 10 points for bodily injury requiring medical treatment under OV 3.” Further, the court upheld the scoring of 50 points for OV 7, 10 points for OV 10, and 10 points for OV 19.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68430
    Case: People v. Mitchell
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Ronayne Krause, Gleicher, and Letica
    Issues:

    Identity; People v. Yost; People v. Oliphant; Whether an identification procedure was unduly suggestive; People v. Kurylczyk; Stovall v. Denno; People v. McDade; People v. Gray; Improper suggestion in photographic identification procedures; People v. McAllister; People v. Anderson; People v. Woolfolk; Credibility; People v. Barclay; People v. McGhee; People v. Erb; Ineffective assistance of counsel; U.S. Const. amend. VI; Const. 1963 art. 1, § 20; People v. Cline; People v. Taylor; People v. Jordan; People v. Rodgers; People v. Odom; Failure to make a meritless argument or raise a futile objection; People v. Ericksen; People v. Snider; Prosecutorial misconduct; People v. Dobek; People v. Unger; People v. Fisher; People v. Thomas; People v. Bahoda; People v. Bennett; Right to a fair & impartial jury; People v. Budzyn; Prejudice; People v. Carines; U.S. v. Olano; Sentencing; Reasonableness; Presumption of proportionality; MCL 769.34(10); People v. Jackson; People v. Schrauben; People v. Lyons; People v. Albert; Cruel & unusual punishment; Miller v. Alabama; People v. Lorentzen; People v. Dipiazza

    Summary:

    The court held that the identification testimony was valid and defense counsel was not ineffective for failing to object to it. It also held that the prosecutor did not commit misconduct and there was no error in sentencing. Defendant was convicted of assault with intent to murder (AWIM), carrying a concealed weapon (CCW), and felony-firearm. The trial court sentenced him to concurrent prison terms of 216 to 360 months for the AWIM convictions, 24 to 60 months for the CCW conviction, and to a consecutive 2-year term for the felony-firearm conviction. The court rejected his argument that the witnesses’ identifications of him were invalid because they were due to unduly suggestive procedures. It noted that, unlike in Gray, one of the witnesses here (RM) “identified defendant as the assailant to the police rather than the police suggesting to” him, through a photo, that he was the assailant. In addition, RM testified that he “was with defendant in a parked car for some time prior to the shooting and that defendant was walking behind him shortly before the shooting, and he narrated the surveillance footage of himself, defendant, and” another individual during the shooting. As to the other witness’s identification, the “police did not factor into her identification of defendant, because she identified [him] through her own research.” Because this “out-of-court identification was not the result of an unduly suggestive procedure, the jury was free to evaluate and weigh her identification based on her friend’s comment, social media research, and her limited interaction with defendant.” The court also rejected his claim that his trial counsel provided ineffective assistance, noting that any objection to RM’s identification could not have succeeded given that he was familiar with defendant, and had identified him as being involved before the police showed him a photo of defendant to confirm. It next found his prosecutorial misconduct arguments meritless, that there was no prejudice in any event, and that defense counsel was not ineffective for failing to object. Finally, the court rejected his claim that the trial court imposed an unreasonable sentence, holding that it was well-reasoned. “Most significantly,” his 18-year sentence was 8 months less than the upper end of the minimum guidelines and “sentences within the guidelines are presumed to be proportionate.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68454
    Case: People v. Shoni
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Markey, and Tukel
    Issues:

    Denial of an in camera review of the victim’s privileged medical & psychological treatment records; People v. Davis-Christian; People v. Laws; MCR 6.201(c)(1) & (2); People v. Hackett; People v. Stanaway; Expert testimony; Whether the expert qualified as an expert; Waived issue; People v. Carter; MRE 702; People v. Metamora Water Serv., Inc.; Plain error review; People v. Bennett; People v. Carines; People v. Kowalski; Prejudice

    Summary:

    The court held that the trial court did not abuse its discretion by denying an in camera review of the victim’s privileged medical and psychological treatment records. Also, it perceived no plain error in the expert’s testimony on the subject of victims of sexual abuse delaying the reporting of an assault. Defendant was convicted of CSC III. He argued that the trial court erred by denying him the victim’s medical and psychological records and by refusing to conduct an in camera review. He argued that he had a good-faith basis for desiring access to the victim’s privileged health and psychological treatment records. However, his explanation “revealed that he merely ‘hope[d]’ that the medical history she provided to caregivers might reveal admissions or something contradictory to her claim of being sexually assaulted.” The record indicated that his “rationale rested solely on speculation and failed to meet the Stanaway standard, i.e., that it lacked a basis in articulable fact establishing a reasonable probability that the privileged records likely contained material information necessary to his defense.” He hoped that the medical records could help the case, but offered nothing of substance to establish that an in camera review likely would reveal admissions beneficial to the defense. “The trial court correctly recognized that the law articulated in Stanaway and MCR 6.201(C)(2) prevented just this sort of ‘fishing expedition.’” Affirmed.

    Full Text Opinion

  • Debtor/Creditor (1)

    Full Text Opinion

    This summary also appears under Consumer Rights

    e-Journal #: 68449
    Case: Comerica Bank v. Kelman
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron and O’Connell; Concurring in part, Dissenting in part – Jansen
    Issues:

    Garnishment; General rule that all property is subject to execution to satisfy a judgment; Cunningham Davison Beeby Rogers & Alward v. Herrr; Disability payments exempt under MCL 600.6023(1)(f); Applicability to a garnishment action; MCL 600.4031(1); Whitwood, Inc. v. South Boulevard Prop. Mgmt. Co.; Defining “execution” & “levy” using a dictionary; Salem Springs, LLC v. Salem Twp.; Statutory maximum under the Consumer Credit Protection Act (15 USC § 1671 et seq.); § 1673(a)(1); “Earnings” defined; § 1672(a); Distinguishing United States v. Ashcraft (8th Cir.)

    Summary:

    The court held that defendant’s disability payments were exempt from garnishment under MCL 600.6023(1)(f), but that the Consumer Credit Protection Act (CCPA) did not prohibit the garnishment of his credit union account. Thus, it vacated the trial court’s order denying his objection to the plaintiff-bank’s writ of garnishment, and remanded for the trial court to determine what amount of the account balance reflected disability payments and thus, what amount of the account, if any, was subject to garnishment. The bank issued the writ of garnishment after defendant defaulted on a home equity loan. He objected, arguing that the account funds included disability payments exempt under MCL 600.6023(1)(f) and that the garnishment exceeded the statutory maximum under the CCPA. While the bank argued that MCL 600.6023(1)(f) does not apply to a garnishment action, the court disagreed. Consulting a dictionary to define the undefined terms “execution” and “levy,” and noting that MCL 600.4031(1) supported defendant’s argument, the court concluded that garnishing funds in his account constituted “a levy as used in MCL 600.6023(1).” Further, he was correct “that the disability payments were exempt even after they were deposited into” the credit union account. “The plain language of MCL 600.6023(1)(f) states that the exemption applies to ‘[a]ny money or other benefits paid.’” Thus, it applies even after a “disability payment is deposited into an account.” The bank relied on Whitwood at its peril given that “the language of MCL 600.6023(1)(f) closely mirrors the outcome-determinative language of ‘moneys paid’ in” that case. However, the court could not conclude that the disability payments here were “earnings” under the CCPA. While a federal court held in Ashcraft that “employer-funded disability payments constituted ‘earnings’ as defined in” the CCPA, defendant’s “disability payments were not an employee benefit because he privately purchased the disability insurance policies.” Also, unlike Ashcraft, the record did not contain the "insurance policy or state its purpose.”

    Full Text Opinion

  • Healthcare Law (1)

    Full Text Opinion

    This summary also appears under Contracts

    e-Journal #: 68400
    Case: Accredited Home Care, Inc. v. Champion Nursing Care, Inc.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Jansen, and O’Connell
    Issues:

    Breach of contract; Bank of Am., NA v. First Am. Title Ins. Co.; Damages; Van Buren Charter Twp. v. Visteon Corp.; Alan Custom Homes, Inc. v. Krol

    Summary:

    Holding that plaintiff-management company failed to meet its burden of proving its damages with specificity and thus, a genuine issue of material fact remained as to whether the damages were a “direct, natural, and proximate result of” defendant-healthcare company’s breach, the court reversed summary disposition for defendant on its breach of contract claim, vacated the order granting defendant’s motion for reconsideration and granting summary disposition for it as to damages, and remanded. The parties entered into an agreement under which plaintiff would provide management and other services for defendant. Defendant later terminated the agreement on the basis that plaintiff had been excluded participating as a Medicare provider. Plaintiff filed a three-count complaint seeking damages and other relief, and defendant filed a four-count counter complaint alleging breach of contract and other claims. The trial court initially granted, in part, plaintiff’s motion for summary disposition, and dismissed all but defendant’s breach of contract claim. It later granted summary disposition for defendant on that claim, but found there remained a genuine issue of fact as to damages. The parties eventually entered into a settlement agreement as to plaintiff’s remaining claims, and plaintiff appealed as to defendant’s damages. On appeal, the court agreed with plaintiff that the trial court erroneously granted summary disposition for defendant where there remained a genuine issue of fact as to whether plaintiff’s breach was the “cause in fact” of defendant’s alleged damages, and whether the alleged damages were foreseeable. “The trial court provided no explanation as to how the $227,448.90 damage figure was a direct, natural, and proximate result of” the breach.

    Full Text Opinion

  • Insurance (2)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 68397
    Case: Goodman v. Doe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello and Boonstra; Concurrence - M.J. Kelly
    Issues:

    Action for uninsured motorist (UM) benefits & costs; Scope of a remand; K & K Constr., Inc. v. Department of Envtl. Quality; Motion to amend the judgment under MCR 2.611(B); Timeliness of a motion for sanctions under MCR 2.403(O)(8); Taxing costs; MCR 2.625(F); Waiver; Sweebe v. Sweebe; Reed Estate v. Reed

    Summary:

    The court held that the trial court did not err by denying plaintiff’s motion to assess additional costs and fees against defendant-State Farm. Plaintiff sought UM benefits for injuries he sustained when his motorcycle collided with a hit and run driver. State Farm denied plaintiff’s claim, ultimately finding that he was negligent and at fault for the accident. Plaintiff sued, and the jury found in his favor, awarding him $490,000. The trial court later granted State Farm’s motion for remittitur and reduced the award to $100,000. In this appeal, the court rejected his argument that the trial court erred by determining that the relief requested in his supplemental motion to amend the judgment was outside the scope of the court’s prior remand, noting “the purpose of the remand was for the trial court to determine whether certain individual costs were taxable as a matter of law, and to make findings of fact regarding those costs.” It also rejected his claim that nothing in the proceedings suggested he should be limited to sanctions up to the trial date, finding that “none of the additional fees and costs requested by plaintiff were authorized either by court rule or statute.” In any event, his “motion was untimely regardless of whether it is treated as a motion to amend a judgment—as it is titled—or a motion for case evaluation sanctions—as plaintiff would like to treat it.” Further, assuming that his “motion constituted a new request for taxable costs, [he] was required to submit his complete bill of costs within 28 days of the entry of the original judgment.” His “request for additional costs was over a year late.” Finally, the court rejected his contention that the trial court erred in determining that he waived recovery of taxable costs, finding that he “was fully aware of his right to review the costs vacated by this Court item-by-item, and explicitly and voluntarily waived that right in favor of addressing his motion for additional fees and costs.” Moreover, “[e]ven were the trial court to award plaintiff the costs vacated by this Court and the additional costs requested in his supplemental motion, plaintiff still has already received $10,000 more than that judgment would have prescribed.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 68433
    Case: Hatfield v. Progressive MI Ins. Co.
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Principle that the trial court may not weigh the evidence or make determinations of credibility when deciding a motion for summary disposition; Innovative Adult Foster Care, Inc. v. Ragin; Unsworn deposition testimony; Liparoto Constr., Inc. v. General Shale Brick, Inc.; Speculation & conjecture; Gorman v. American Honda Motor Co.; Hearsay; MRE 801(c); Exceptions; MRE 802; Fraud; Shuler v. Michigan Physicians Mut. Liab. Co.; Gibson v. Group Ins. Co.; Titan Ins. Co. v. Hyten; Innocent misrepresentation; United States Fid. & Guar. Co. v. Black; Principle that inadmissible hearsay is not enough to defeat a motion for summary disposition; Maiden v. Rozwood; SSC Assoc. Ltd. P’ship v. General Ret. Sys. of Detroit

    Summary:

    Holding that the record supported the trial court’s clarification that it granted summary disposition to defendant-insurer as to plaintiff’s entire claim on the basis of the insurance policy’s fraud provision, the court affirmed. Plaintiff sought no-fault benefits for injuries he suffered in a car accident. Although he was unemployed at the time of the accident, he claimed he was about to start a new job. Defendant refused to pay the benefits on the basis of the insurance policy’s fraud provision. Plaintiff sued, but the trial court granted summary disposition for defendant. Plaintiff then appealed seeking remand based on two post-summary disposition affidavits he obtained. In a prior appeal, the court affirmed in part and “remanded for ‘clarification regarding whether the trial court intended to dismiss plaintiff’s entire claim based on fraud or whether it intended merely to dismiss the claim for wage-loss benefits.’” On remand, the trial court granted defendant’s motion for entry of judgment. On appeal, the court rejected plaintiff's argument that the trial court erred by making credibility determinations when rendering its ruling on his motion for summary disposition, noting that it “did not need to weigh the evidence or judge credibility to determine that it was undisputed from the admissible evidence submitted that plaintiff had presented materially false statements to defendant as part his application for no-fault benefits.” The “admissible evidence presented to the court showed ‘actionable fraud,’ and the trial court properly granted defendant summary disposition of plaintiff’s entire claim on the basis of fraud.” Further, even if plaintiff were misled, “the effect of the ‘fraudulent conduct’ on defendant would be the same.’” Finally, the court rejected his remaining arguments as meritless.

    Full Text Opinion

  • Litigation (2)

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    This summary also appears under Insurance

    e-Journal #: 68397
    Case: Goodman v. Doe
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Borrello and Boonstra; Concurrence - M.J. Kelly
    Issues:

    Action for uninsured motorist (UM) benefits & costs; Scope of a remand; K & K Constr., Inc. v. Department of Envtl. Quality; Motion to amend the judgment under MCR 2.611(B); Timeliness of a motion for sanctions under MCR 2.403(O)(8); Taxing costs; MCR 2.625(F); Waiver; Sweebe v. Sweebe; Reed Estate v. Reed

    Summary:

    The court held that the trial court did not err by denying plaintiff’s motion to assess additional costs and fees against defendant-State Farm. Plaintiff sought UM benefits for injuries he sustained when his motorcycle collided with a hit and run driver. State Farm denied plaintiff’s claim, ultimately finding that he was negligent and at fault for the accident. Plaintiff sued, and the jury found in his favor, awarding him $490,000. The trial court later granted State Farm’s motion for remittitur and reduced the award to $100,000. In this appeal, the court rejected his argument that the trial court erred by determining that the relief requested in his supplemental motion to amend the judgment was outside the scope of the court’s prior remand, noting “the purpose of the remand was for the trial court to determine whether certain individual costs were taxable as a matter of law, and to make findings of fact regarding those costs.” It also rejected his claim that nothing in the proceedings suggested he should be limited to sanctions up to the trial date, finding that “none of the additional fees and costs requested by plaintiff were authorized either by court rule or statute.” In any event, his “motion was untimely regardless of whether it is treated as a motion to amend a judgment—as it is titled—or a motion for case evaluation sanctions—as plaintiff would like to treat it.” Further, assuming that his “motion constituted a new request for taxable costs, [he] was required to submit his complete bill of costs within 28 days of the entry of the original judgment.” His “request for additional costs was over a year late.” Finally, the court rejected his contention that the trial court erred in determining that he waived recovery of taxable costs, finding that he “was fully aware of his right to review the costs vacated by this Court item-by-item, and explicitly and voluntarily waived that right in favor of addressing his motion for additional fees and costs.” Moreover, “[e]ven were the trial court to award plaintiff the costs vacated by this Court and the additional costs requested in his supplemental motion, plaintiff still has already received $10,000 more than that judgment would have prescribed.” Affirmed.

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    This summary also appears under Consumer Rights

    e-Journal #: 68438
    Case: Macy v. GC Servs. Ltd. P'ship
    Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
    Judges: White, Gibbons, and Stranch
    Issues:

    Class action under the Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.); § 1692(g)(a)(4) & (5); Article III standing; Hein v. Freedom From Religion Found., Inc.; DaimlerChrysler Corp. v. Cuno; Warth v. Seldin; Baker v. Carr; Lujan v. Defenders of Wildlife; “Injury in fact”; Spokeo, Inc. v. Robins; Federal Election Comm’n v. Akins; Public Citizen v. Department of Justice; Summers v. Earth Island Inst.; Strubel v. Comenity Bank (2d Cir.); Robins v. Spokeo, Inc. (9th Cir.) (Spokeo II); Soehnlen v. Fleet Owners Ins. Fund; Lyshe v. Levy; Whether a violation of the FDCPA constituted a concrete injury; Barany-Snyder v. Weiner; Papetti v. Does 1-25 (2d Cir.); Jacobson v. Healthcare Fin. Servs., Inc. (2d Cir.); Camacho v. Bridgeport Fin. Inc. (9th Cir.); Hooks v. Forman, Holt, Eliades & Ravin, LLC (2d Cir.); Distinguishing Clapper v. Amnesty Int’l USA; Hagy v. Demers & Adams; Class certification; Rikos v. Procter & Gamble Co.; Young v. Nationwide Mut. Ins. Co.; Amchem Prods., Inc. v. Windsor; Fed.R.Civ.P. 23(a) & (b)(3); Commonality requirement; Fariasantos v. Rosenberg & Assocs. (ED VA); Edwards v. McCormick (SD OH)

    Summary:

    In this interlocutory appeal of a class certification order, the court held that the plaintiffs had Article III standing to bring their FDCPA claims where they were entitled to rely on violations of the statute without stating any additional harm. Plaintiffs alleged that defendant-GC, a collection agency, sent them letters informing them that they had been turned over for collection but that the letters did not provide the proper notice requirements mandating that plaintiffs dispute their debts in writing. GC challenged plaintiffs’ standing, but the district court certified the class. GC argued that plaintiffs lacked Article III standing because they could not establish an “injury in fact” just by showing a statutory violation. The parties differed in their interpretation of Spokeo, but the court held that the case did not overturn prior precedent supporting a statutory violation as an injury in fact. It considered the purposes behind the FDCPA, and noted that “the FDCPA gives consumers a private right of action to enforce its provisions against debt collectors.” It concluded that, assuming “the language of GC’s letters constitutes a procedural violation of the FDCPA, Plaintiffs have demonstrated a sufficient ‘risk of real harm’ to the underlying interest to establish concrete injury without the ‘need [to] allege any additional harm beyond the one Congress has identified.’” Because the letters did not specify the “in-writing” requirement,” the court found that plaintiffs were exposed to a “materially greater risk of falling victim to ‘abusive debt collection practices.’” Thus, plaintiffs “satisfied the concreteness prong of the injury-in-fact requirement of Article III standing by alleging that GC’s purported FDCPA violations created a material risk of harm to the interests recognized by Congress in enacting the FDCPA.” The court upheld the district court’s ruling granting class certification where GC “repackag[ed] its standing argument with a commonality label,” and the same was true of its adequacy argument. Affirmed.

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  • Malpractice (1)

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    e-Journal #: 68427
    Case: Smith v. Hertz Schram PC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murphy and Ronayne Krause; Dissent - Jansen
    Issues:

    Legal malpractice; Simko v. Blake; Charles Reinhart Co. v. Winiemko; Principle that a plaintiff's settlement of an underlying action should not act as an absolute bar to a subsequent legal malpractice action; Lowman v. Karp; Compelled assent; Espinoza v. Thomas; Discovery after a postjudgment motion is filed pursuant to a domestic relations action; MCR 2.302(A)(4)

    Summary:

    The court held that the trial court did not err by granting summary disposition for defendants-attorney (Stern) and law firm (Hertz Schram) in plaintiff’s legal malpractice action. Plaintiff sued defendants for legal malpractice arising out of a post-divorce proceeding. She claimed Stern “failed to obtain necessary and critical information” about the status and value of her ex-husband’s pertinent business holdings before the parties settled the matter. On appeal, the court first noted that, absent evidence that her ex-husband’s decision to exercise his stock options “would have been the same if plaintiff had taken a course of action different than settlement, which was not presented, establishing causation is purely speculative and defeats any recovery.” It then noted that there was no claim of negligence arising out of Stern’s efforts in pursuing the motions to enforce the divorce judgment and obtaining a forensic CPA’s services. “Stern was asking all of the right questions and seeking production of all of the right documents. Had the requested information and documents been produced, they would have been of benefit to plaintiff, allowing the CPA to soundly assess the status and value of the business.” In addition, Stern had “no control over the mediator’s conclusions.” The court also noted that there was no malpractice “by Stern in connection with her advice to plaintiff regarding the option of taking a wait-and-see approach.” And she was not “negligent for presenting plaintiff with a settlement option that was based on calculations using information and figures that were either not in dispute or were supplied by a seemingly valid and knowledgeable source.” Finally, “[e]ven if plaintiff’s malpractice complaint alleged that Stern should have pressed for the inclusion of some escape mechanism in the settlement agreement tied to company counsel’s representations or even tied generally to information unknown or undisclosed to plaintiff at the time of execution, we can only speculate as to what would have transpired.” Moreover, “the fact that Stern did not request the inclusion of language in the settlement agreement protecting plaintiff from unknown information could be viewed as falling within the attorney-judgment rule.” Affirmed.

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  • Termination of Parental Rights (3)

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    e-Journal #: 68434
    Case: In re Puckett
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Termination under §§ 19b(3)(c)(i), (c)(ii), & (g); In re Beck; In re Moss Minors; In re Ellis; In re Hudson; In re Miller; Denhof v. Challa; Child’s best interests; In re Olive/Metts Minors; In re White; Relative placement

    Summary:

    Holding that the trial court did not clearly err in finding termination of respondent-mother’s parental rights was in the best interests of the child (JP), the court affirmed. She argued two points and then weaved them together. First, she contended that she was making good progress, such that she should have been given more time to address the barriers to reunification. Second, she maintained that termination was unnecessary because JP was placed with relatives, the paternal grandparents. She then asserted that given that she was making progress and that JP was placed with relatives, it was not in his best interests to terminate her parental rights. Respondent did not develop these arguments much beyond what the court stated. The trial court, after noting Olive/Metts and other cases addressing the principle as to relative placement, thoughtfully explained why termination was in JP’s best interests despite the fact that he was placed with his grandparents. It “pointed out that the father had released his parental rights, that respondent had not been complying with the case service plan, that she had minimal parenting skills, that JP was in need of permanence and should no longer be left in limbo, that he was thriving in his grandparents’ care, and that JP deserved a safe environment unburdened by respondent’s ongoing presence and instability.” It found that “the finality and stability that JP needed could best be achieved through adoption by the paternal grandparents and not by way of a mere guardianship with the grandparents that would keep respondent involved in JP’s life.” The court held that “there was no clear error in the trial court’s determination that JP’s best interests would be served by termination of respondent’s parental rights, even though JP was placed with his grandparents.” And on the issue of her alleged progress, the trial court found that she had made little to no progress as to most of the areas of concern. After more than a year of proceedings, she “still used controlled substances, still engaged in an unhealthy relationship with the father, which relationship the court characterized as ‘toxic,’ still had inadequate parenting skills, still had inappropriate housing, and still had not overcome her issues with emotional instability.” And the trial court noted that she did not follow through with domestic violence therapy and asked to be discharged. It also observed that on the issue of her mental stability, she kept leaving and then returning to the courtroom, leading it to state, “She does not appear to be emotionally stable.” It further found the "bond between respondent and JP was minimal.” There was no indication that more time and services would change anything.

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    e-Journal #: 68461
    Case: In re Randall/Hurkes
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Stephens, Shapiro, and Gadola
    Issues:

    Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); Failure to participate in & benefit from a parent-agency treatment plan; In re White; In re Frey; In re TK; Children’s best interests; In re Olive/Metts Minors; Requirement that a court state its findings & conclusions as to any best interest evidence on the record or in writing; In re Trejo Minors

    Summary:

    While the court held that the trial court did not clearly err in finding that the evidence supported terminating respondent-mother’s parental rights under §§ (c)(i), (c)(ii), (g), and (j), it found the trial court’s comments as to the children’s best interests insufficient for review. Thus, it vacated the termination order and remanded solely for the trial court to make findings as to “the children’s best interests and to enter a final order based on those findings.” The conditions leading “to adjudication included improper care and supervision of the children, and lack of suitable housing” for them. The parent-agency treatment plan required respondent “to attend parenting classes and counselling, obtain proper housing, and to obtain suitable employment.” Although she was “incarcerated for driving on a suspended license, there were multiple instances, during this case, when respondent was observed driving while the license was still suspended. Sometimes she had the children in the vehicle with her, and did not appear to appreciate the fact that if she was caught driving on a suspended license, she would again be arrested” and they would again lack proper supervision. She also failed to address her housing issues. There was testimony that she “had ‘chronic housing conditions,’ which included a lot of house-hopping, and staying on people’s couches and at hotels.” She and the children once tried to live in a house without working utilities. She lived “in at least 12 different residences since” the case began. While some were appropriate, she was never able to maintain them “for any considerable period of time.” She was evicted from multiple homes. Testimony indicated that she had appropriate housing by the time of the termination hearing, but it “was highly unstable” because the rent was $600 a month and her income was $350 a month. This evidence supported termination under §§ (c)(i) and (c)(ii). However, the trial court “did not—at least not in a direct enough fashion to permit review—set forth findings on the considerations relevant to the best interest determinations such as those discussed in White.” The court retained jurisdiction and entered an order setting timeframes for the proceedings on remand.

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    e-Journal #: 68455
    Case: In re Sadvari
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Hoekstra, Murphy, and Markey
    Issues:

    Termination under §§ 19b(3)(c)(i), (g), & (j); Children’s best interests; In re White; Whether the trial court considered the children’s relative placement; In re Olive/Metts Minors

    Summary:

    Holding that the trial court did not clearly err in finding that §§ (c)(i), (g), and (j) were supported by clear and convincing evidence, or in finding that termination was in the children’s best interests, the court affirmed the order terminating respondent-mother’s parental rights. The court rejected her claim that the trial court based its decision as to § (c)(i) on a finding that she abused illegal substances. The conditions that led to adjudication as to her “involved the use of alcohol and prescription medications in combination with her mental health diagnoses. These conditions led to respondent’s suicide attempts and her inability to properly care for the children.” While the trial court found that the “father tested positive for cocaine four times during the pendency of the case and that [he] had a very serious drug addiction, [it] did not base its decision terminating respondent’s parental rights on a finding that she was abusing illegal drugs.” It found that she “had a ‘serious alcohol problem’ and found that her emotional stability was ‘fragile,’ as shown by her multiple suicide attempts” while the case was pending. It also found that she did not make any progress “because she did not meaningfully participate in the numerous services offered to her by the agency.” The court could not “conclude that the trial court committed clear error in finding that the conditions that led to the adjudication continued to exist and that there was no reasonable likelihood” they would be rectified within a reasonable time. The children came under the trial court’s jurisdiction due to several instances when their parents “were found to be drunk and unable to properly care for” them. Despite the many services she was offered, “respondent continued to abuse alcohol throughout” the case. She again experienced a relapse after the children had been in care for two years, in which “she became intoxicated and threatened to commit suicide.” This was her third suicide attempt while the case was pending. She also only attended about half of the “mental health counseling, substance abuse counseling, and domestic violence counseling” sessions she was offered.

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