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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
Full Text Opinion
Divorce; Attorney fees; Edge v. Edge; Keinz v. Keinz; MCR 3.206(C)(1); Myland v. Myland; Diez v. Davey; Frivolous action or defense; MCL 600.2591; MCR 2.114(E) & (F); MCR 2.625(A)(2); Third-party claims for fraud & conspiracy; Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass’n; Failure to support an argument; Hover v. Chrysler Corp.; Calculation of annual income; Stallworth v. Stallworth; Michigan Child Support Formula (MCSF); 2013 MCSF 2, 2.01(B), & 2.02(B); Deference to the trial court’s credibility assessments; MCR 2.613(C); Spousal support; Loutts v. Loutts; Berger v. Berger; MCR 3.207(C)(5); Division of property; Kendall v. Kendall; Sparks v. Sparks; Byington v. Byington
Holding that the trial court erred in relying on MCL 600.2591 and MCR 2.114(F) to order third-party-defendant-Sutherland to pay defendant-Catherine Boyle’s (Cathy) attorney fees, the court reversed that part of the trial court’s order. However, it affirmed in all other respects, including the judgment of divorce between Cathy and plaintiff-Eugene (Gene) Boyle, in which Cathy was awarded attorney fees. In Docket No. 335776, Gene appealed the divorce judgment, including the provision ordering him to pay $125,000 of Cathy’s attorney fees. During the divorce proceedings, she joined Sutherland as a third-party defendant and later brought a third-party claim against him for fraud and conspiracy. In Docket No. 334567, Sutherland appealed the trial court’s order requiring him to pay $40,000 of Cathy’s attorney fees, as well as an earlier order in which the trial court denied his motion for summary disposition. Cathy cross-appealed the trial court’s dismissal of her third-party claim against Sutherland. Sutherland claimed that, “because Cathy did not prevail on her third-party claim against him for fraud and conspiracy and because the trial court did not make a finding of frivolousness,” it erred in relying on MCL 600.2591 and MCR 2.114 as authority for ordering him to pay her attorney fees. The court agreed. “Both the statute and the court rule provide for an award of attorney fees to the prevailing party against the nonprevailing party.” Further, “MCR 2.625 provides that in an action involving more than one issue or count, ‘the party prevailing on each issue or count may be allowed costs for that issue or count.’” But the trial court ruled that she did not prevail on either of her counts against Sutherland. Cathy “did not prevail on her fraud count because she failed to show evidence of detrimental reliance, and because she did not prevail on her fraud count, she could not prevail on her conspiracy count.” Thus, she was not the prevailing party against Sutherland, and was not entitled to an award of attorney fees pursuant to MCL 600.2591 or MCR 2.114(F). However, the court rejected all of Gene’s challenges to the divorce judgment.
Member oppression action; The Limited Liability Company Act (MCL 450.4101 et seq.); MCL 450.4515; Definition of willfully unfair & oppressive conduct; Franchino v. Franchino; Frank v. Linkner; MCL 450.4409; Burden of proof to establish fairness; Fill Bldgs., Inc. v. Alexander Hamilton Life Ins. Co. of Am.; Fraudulent misrepresentation; Bergen v. Baker; M & D, Inc. v. McConkey; Silent fraud; Lucas v. Awaad; Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; Operating agreement defined; MCL 450.4102(2)(r); Contract interpretation; Dobbelaere v. Auto-Owners Ins. Co.; Measure of damages; Ferguson v. Pioneer State Mut. Ins. Co.; Unjust enrichment; King v. Ford Motor Credit Co.; Breach of fiduciary duties; Fiduciary relationship defined; In re Estate of Karmey; Duty of good faith, loyalty, & avoidance of self-dealing; Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst.; Aiding & abetting tortious conduct; Restatement (Second) of Torts § 876; Alleged violation of the operating agreement by failing to contribute to the capital call
Concluding that the trial court committed legal error in ruling that a capital call did not violate MCL 450.4515(2) and clearly erred in finding that a management fee was fair, the court held that defendant-Midwest Air Filter (MAF) engaged in member oppression under MCL 450.4515. Further, the trial court erred in determining that defendants did not breach fiduciary duties and that defendants-Shohams were not liable for aiding and abetting in MAF’s wrongful conduct. But the court upheld the entry of no cause of action on plaintiffs’ fraud, breach of contract, and unjust enrichment claims, and rejected defendants’ claims in their cross-appeal. It found that the trial court erred in determining that issuance of the capital call, which violated the operating agreement (OA), “was not willfully unfair and oppressive conduct simply because” plaintiff-Castle did not respond to the call. When a shareholder has been denied the rights of a shareholder, such as the right to vote, “he has incurred actionable harm under MCL 450.4515 regardless of whether financial impact occurred. The interference with member interests is the harm.” Further, the court held that “the trial court clearly erred in finding that entire management fee was fair.” It concluded that the “actions of issuing a capital call that violated the OA and imposing an unsupported management fee establish that MAF engaged in ‘a continuing course of conduct or a significant action or series of actions that substantially interferes with the interests of the member as a member’ and thus engaged in member oppression under MCL 450.4515.” As a result, the trial court erred when it found no cause of action on the member oppression claim. Further, the erroneous rulings as to the capital call and the fairness of the management fee “led the trial court into further error when it rejected” the breach of fiduciary duty claims. The court also determined that the Shohams, 100% owners of MAF, “acted in concert with MAF in its membership oppression and breach of fiduciary duties and are liable for aiding and abetting in the same.” It affirmed in part, reversed in part, remanded for entry of a judgment for plaintiffs and against MAF on the member oppression and breach of fiduciary duty claims, for plaintiffs and against the Shohams on the aiding and abetting claim, and for a determination of appropriate damages.
Breach of contract; Miller-Davis Co. v. Ahrens Constr., Inc.; AFT MI v. Michigan; Whether defendant-Sweezie was properly treated as a party to the contract; A “joint venture”; Kay Inv. Co., LLC v. Brody Realty No. 1, LLC; Keiswetter v. Rubenstein; Campbell v. Rukamp; Partner liability; MCL 449.15(b); The misnomer doctrine; PIM, Inc. v. Steinbichler Optical Techs USA, Inc.; Corporation by estoppel; Duray Dev., LLC v. Perrin; Waiver; MCR 2.111(F)(2), (3)(c), & (3)(a); Campbell v. St. John Hosp.; Sanctions; A “frivolous” defense; MCR 2.625(A)(2); MCL 600.2591(1), (3)(a)(ii), & (3)(a)(iii); MCR 2.114(A), (D), & (E); Imposition of sanctions against a law firm directly; Due process; Cummings v. Wayne Cnty.; Notice; Wortelboer v. Benzie Cnty.
The court held that while defendant-Sweezie did not sign the contract and was not named as a party to it, under Campbell and all the surrounding circumstances, he was subject to liability as if he had been an express party to the contract. Further, assuming that the doctrines of misnomer and corporation by estoppel are not affirmative defenses, they were waived by his failure to raise them in his answer. The court added that “you cannot have misnomer of a corporate entity if there is no evidence of any valid corporation” and that Sweezie also was not entitled to rely on corporation by estoppel even if he had not waived this defense. Further, it upheld the sanctions imposed on Sweezie and his counsel. This breach of contract action arose from the sale of condo units to plaintiff. “The case hinged on whether defendants could be held personally liable for breach of contract.” The trial court granted plaintiff summary disposition, awarded him $683,563 in damages, and imposed sanctions of $75,000 on Sweezie and his counsel under MCL 600.2591, MCR 2.114, and 2.625. On appeal, the court held that “by operation of law, Sweezie was properly treated as a party to the contract under the circumstances . . . .” It concluded that Campbell “supports the proposition that if a contract is executed in the name of a nonexistent corporation and there is a breach of that contract, the damaged contracting party can file suit for breach of contract against individual promoters, subscribers, purported members and stockholders, and, by analogy, joint venturers and partners involved in authorizing or procuring the contract in furtherance of the joint venture or partnership, even though those individuals were not signatories to the contract.” Sweezie first raised the defenses of misnomer and corporation by estoppel months after the close of discovery, and they “were likely to and did take plaintiff by surprise.” Also, misnomer presupposes the existence of a valid corporation, and there was no case precedent applying corporation by estoppel “where the entity at issue never became a valid, legally-recognized corporation or company” before or after the contract, and never tried to incorporate. The court agreed with the trial court that “Sweezie asserted frivolous defenses . . . .” Affirmed.
Action for personal protection insurance (PIP) benefits; Construction of insurance contracts; Rory v. Continental Ins. Co.; Wilful misrepresentation or fraud; Bahri v. IDS Prop. Cas. Ins. Co.; Mina v. General Star Indem. Co.; Stein v. Home-Owners Ins. Co.; Candler v. Farm Bureau Mut. Ins. Co. of MI; Meemic Ins. Co. v. Fortson; Cox v. Farm Bureau Mut. Ins. Co. of MI (Unpub.)
Holding that the trial court failed to articulate any reasons for granting defendant-insurer’s (ACIC) motion and that “ACIC misconstrued some of the evidence,” the court reversed the trial court’s grant of summary disposition for ACIC and remanded. Plaintiff (Anderson) sought PIP benefits for injuries she sustained in a car accident. When ACIC denied her claim she filed suit. The trial court agreed with ACIC that she fraudulently misrepresented several aspects of her claim. On appeal, the court found that the trial court erroneously granted ACIC’s motion for summary disposition. “ACIC’s exaggeration of the significance of [Anderson’s] 2014 discharge instructions, combined with Anderson’s disclosure that she had home” healthcare in 8/13, undermined its first assertion of fraud. In addition, “Anderson was able to care for herself in the months before the accident, compared to when she required attendant services in the fall of 2013, so her qualified statement that she felt ‘fine’ does not carry the significance ACIC assigned to it.” Further, “ACIC identified some inconsistencies regarding Anderson’s medical history, but its misinterpretation of some of the evidence weakens its contention that Anderson fraudulently concealed information about her medical history and treatment.” Moreover, “ACIC’s inference of fraud from Anderson’s continued receipt of Social Security benefits while working” was not supported by conclusive evidence, and her “forthright responses in discovery and the placement of the question on the PIP benefits application in the middle of questions specific to the subject accident show that Anderson’s interpretation of the limited scope of the question was a reasonable explanation for her no response to that question.” Finally, while “there may be a factual question of how many hours of care [her fiancé] provided and whether Anderson intended to submit a knowingly mistaken claim, the evidence was not so inconsistent as to warrant summary disposition based on fraudulent misrepresentation. In sum, ACIC misinterpreted some evidence and exaggerated other evidence. Unlike other cases with surveillance video or other blatant evidence of fraud, ACIC identified inconsistencies that may or may not reflect fraud. Without the trial court’s explanation of what evidence established fraud,” the court could not affirm the grant of summary disposition.
Action seeking access to a report from the Michigan Department of Correction’s (DOC) Allegations, Investigations, Personnel Action System (AIPAS); Claim for breach of contract, declaratory judgment, & violation of the Bullard-Plawecki Employee Right to Know Act (ERKA) (MCL 423.501 et seq.); The Freedom of Information Act (FOIA) (MCL 14.231 et seq.); Subject-matter jurisdiction; MCL 600.6419(1)(a); MCL 423.511; O’Connell v. Director of Elections; Bowie v. Arder; Dunbar v. Department of Mental Health; Judicial estoppel; Paschke v. Retool Indus.; “Personnel record” defined; MCL 423.501(1)(c)(v); MCL 15.243(1)(s)(ix); Landry v. City of Dearborn; Collective bargaining agreement (CBA)
The court held that the trial court had subject-matter jurisdiction and that it did not err by granting summary disposition of plaintiff-corrections officer’s breach of contract claim or by finding that the AIPAS report plaintiff sought was exempt from disclosure under the ERKA. However, it found that the trial court’s ruling for defendants-DOC and employee was premature. Plaintiff initially sued defendants under FOIA seeking various records, including the AIPAS report in question in this case. Defendants informed him that the report was not part of his personnel filed. He then initiated this action, but the trial court granted summary disposition for defendants. On appeal, the court first found that the trial court “was correct as a matter of law in ruling that it had subject-matter jurisdiction over plaintiff’s ERKA claim against these defendants.” It next rejected plaintiff’s argument that the trial court erred by granting summary disposition of his breach of contract claim against the DOC on the ground that he failed to exhaust his administrative remedies under the CBA, noting that his failure to file a grievance meant he failed to exhaust his administrative remedies. It also found that judicial estoppel did not preclude defendants from arguing that the AIPAS report was exempt from disclosure under the ERKA. However, it also held that the trial court’s ruling in defendants’ favor was premature. It agreed with plaintiff that “the trial court improperly determined that not only could the AIPAS report be considered exempt from disclosure under the ERKA, it in fact was exempt from disclosure under the ERKA.” Under the circumstances “it was improper for the trial court simply to accept defendant’s bare assertion at face value without at least reviewing the challenged AIPAS report in camera.” It “should have recognized that there was a genuine and critical evidentiary dispute that precluded summary disposition, and that the dispute could have been easily resolved without making unsupported and unsupportable factual findings.” Affirmed in part, reversed in part, and remanded.
Motion to withdraw a plea; Principle that failing to charge a minor as a juvenile would be a defect in the plea-taking process; Waiver as to jurisdiction; People v. Kiyoshk; People v. Lown; People v. Carter; Automatic waiver of juvenile court jurisdiction for offenders over the age of 14 who have committed CSC I; MCL 712A.2(a)(1)(A); Imposition of an adult sentence on a juvenile; MCL 712A.18(m); Ineffective assistance of counsel; Strickland v. Washington; People v. Solmonson; Principle that the Ex Post Facto Clauses bar the retroactive application of a law that increases the punishment for a crime; U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10; People v. Earl; Amendment of MCL 750.136b providing a punishment of “life or any term of years” for a first-degree child abuse conviction; MCL 750.136b(2); Waiver of constitutional rights; People v. Gonzalez-Raymundo; United States v. Olano; Illinois v. Allen
Holding that “although defendant waived his first two challenges,” there was no evidence in the record that he waived his challenge to the Ex Post Facto violation, the court vacated the denial of his motion to withdraw his plea and remanded to permit him to do so if he chooses. He pled guilty to multiple counts of CSC II and III, one count of accosting a child for immoral purposes, and three counts of first-degree child abuse. In exchange, the prosecution dropped multiple CSC I charges. The charges were based on his repeated sexual abuse of his young niece, nephews, and cousins while babysitting them. He was between 14 and 22 at the time. On appeal, the court rejected his challenge to the prosecutor’s failure to first bring the charges against him as a juvenile, which he cited as a ground to withdraw his plea. “[B]y pleading guilty in the circuit court, and failing to contemporaneously contest the circuit court’s personal jurisdiction . . . defendant ‘implicitly consented to that court’s exercise of personal jurisdiction.’” It further found that counsel was not ineffective, noting that charging defendant with juvenile offenses “would not have impacted the probable sentences cited when negotiating the plea agreement; defense counsel would still have been required to advise defendant of the potential sentences he would face if the court deemed [it] in the public’s best interests to impose adult sentences.” Moreover, he waived his claim that the trial court should have allowed him to withdraw his plea due to the absence of a factual basis. However, it agreed with his contention that he “should have been permitted to withdraw his plea because he was misinformed of the maximum possible sentence for his first-degree child abuse convictions” at the time he committed his offenses, noting it did not “see the statements of the prosecutor and defense counsel as a waiver by defendant” of the Ex Post Facto violation. The Ex Post Facto Clauses were not mentioned at sentencing. While the prosecutor relied on defendant’s statement that he was “‘waiving any claim in terms of, particularly the time frame as it relates to the child abuse, first[-]degree counts, that are currently charged in it’” and were pled to as a waiver of the Ex Post Facto challenge, “the waiver of any claim related to ‘the time frame’ could just as easily be a waiver of defendant’s right to be charged as a juvenile.” It concluded that the charges to which he pled “were interconnected to reach sentences that were seemingly acceptable to all.”
Motion to suppress incriminating statements; Prohibition against self-incrimination; U.S. Const. amend. V; Const. 1963, art. 1, § 17; Miranda v. Arizona; People v. Elliott; People v. Daoud; People v. Tanner; Effect of invocation of the right to remain silent or cut off questioning; Michigan v. Mosley; People v. Henry (After Remand); People v. White; People v. Crusoe; People v. Slocum (On Remand); Edwards v. Arizona; Smith v. Illinois; Whether defendant was “in custody”; People v. Cortez (On Remand); The public safety exception to Miranda; New York v. Quarles; People v. Attebury; “Interrogation”; People v. Kowalski; Rhode Island v. Innis
Holding that the trial court should have suppressed all of defendant’s incriminating statements made during two interrogations, it reversed the trial court’s partial denial of his motion to suppress and remanded. He was charged with open murder, assault with intent to murder, and felony-firearm. The charges arose out of shootings at three separate locations. The trial court suppressed the majority of the statements he made during his first interview, finding the police “failed to scrupulously honor [his] invocation of his right to remain” silent. It allowed other statements as elicited under the public safety exception. As to his second interview, it held that these statements were admissible because, “although he invoked his right to an attorney and initially declined to waive his Miranda rights,” he changed his mind, initiated a discussion with police, and voluntarily waived his rights. On appeal, the court agreed with defendant that the public safety exception did not apply to the first interview. “[C]onsidering the three hour interview, the vast majority of questions had nothing to do with public safety, and in the context of the interrogation at a whole, it is plain that the purported public safety questions—most of which came late in the interview—were simply another means of interrogation, i.e., another means of eliciting incriminating statements from defendant.” It also agreed with defendant that the trial court erred by refusing to suppress his statements during the second interview. First, “by initiating the second interrogation despite the repeated violation of defendant’s right to remain silent during the first interview, law enforcement failed to scrupulously honor defendant’s invocation of his right to remain silent,” and his statements during the second interview had to be suppressed. Second, “even supposing [the detective] could approach defendant for a second interview, the record shows that defendant unequivocally invoked his right to counsel and again unequivocally invoked his right to remain silent.” Yet, the detective “ignored defendant’s invocation of his rights and continued to interrogate defendant, meaning that defendant’s statements during the second interview must also be suppressed on this basis.”
Whether the trial court should have ordered the return of funds collected from defendant’s prisoner account; Due process claim; Nelson v. Colorado; Post-appeal relief under MCR 6.500 et seq.; Jurisdictional defect; People v. Carpentier; Double jeopardy questions as to defendant’s assault with intent to do great bodily harm (AWIGBH) & second-degree murder convictions; People v. Ream; People v. Bailey; People v. Weissert; Waiver of any challenge as to whether the AWIGBH conviction was previously vacated; People v. Carines
The court concluded that the prosecution waived any challenge to whether defendant’s AWIGBH conviction was previously vacated, and that no valid order of restitution currently existed as it had not been yet ordered in the related murder case. Thus, it vacated the part of the trial court’s order denying his request that any funds collected from his prisoner account be returned, and remanded for further proceedings. He was convicted in this case in 2003. The victim later died, and defendant was convicted of second-degree murder in a separate case in 2005. When he moved to vacate an order to remit funds, the prosecution asserted that his AWIGBH conviction was vacated upon his murder conviction, and agreed that “the order to remit funds in this case should be vacated given the contention” that the AWIGBH conviction was set aside. The trial court granted defendant’s motion, and later entered an order providing that funds should no longer be collected from his account under this case number, but refused to order the return of funds already collected. While the prosecution now raised the question of whether the AWIGBH conviction was actually vacated in 2005, the court found that such a challenge was waived and directed the trial court, on remand, to enter a written order vacating that conviction “consistent with the 2005 sentencing proceedings.” Although the prosecution has moved to amend the judgment of sentence in the murder case to provide for restitution, there was no indication this had yet occurred. Thus, “no legal basis presently exists to conclude that the funds obtained from defendant in this case may be retained. Under Nelson, it appears at this time that due process requires that the funds exacted from” him in this case be returned. Within 28 days, the trial court on remand shall enter an order providing for the return of the funds “collected from him under this case number, unless an order or judgment requiring [him] to pay restitution is entered in the murder case within” that period. In that event, the trial court in this case shall consider whether the funds collected under this case number may be retained and credited to his restitution obligation in the murder case.
Sentencing; Criminal forfeiture; 21 USC §§ 853(a) & (d); Joint & several liability; Honeycutt v. United States; United States v. Elliott; New evidence presented by the government after the sentencing hearing supporting its criminal forfeiture request; Fed.R.Crim.P. Rule 32.2(b); Due process; Mathews v. Eldridge; Sixth Amendment implications; Apprendi v. New Jersey; Southern Union Co. v. United States; Libretti v. United States; “Procedural reasonableness”; Gall v. United States; Fed.R.Crim.P. 32(i)(3)(B); United States v. Poulsen; Plain error review; United States v. Vonner; “Substantive reasonableness”; United States v. Curry
The district court erred when imposing criminal forfeiture in this case because precedent bars “joint and several liability” in a forfeiture order. However, the court affirmed defendant-Bradley’s prison sentence. He pled guilty to conspiring to possess with intent to distribute painkillers and conspiring to launder money. The district court sentenced him to 17 years in prison and imposed a $1 million forfeiture order, which applied “jointly and severally” to Bradley and his codefendants. The court held that the forfeiture order was contrary to precedent where it ordered joint and several liability. In Honeycutt, the Supreme Court held that § 853 bars joint and several liability in forfeiture judgments. “[J]oint and several liability puts defendants on the hook regardless of their share of the fault or the proceeds, meaning it would ‘require forfeiture of untainted property’ as well as amounts the defendant did not ‘obtain[].’” Thus, the court vacated the forfeiture order and remanded for the district court to determine the forfeiture amount in line with the property Bradley actually acquired through participation in the conspiracy. It also held that even though the district court may have run afoul of Rule 32.2(b) by allowing the government to introduce new evidence after the sentencing hearing, the district court gave Bradley the opportunity to file a sur-reply to the new evidence, “with proof and argument of his own.” He also raised an issue that has not been considered in this circuit—whether “the Sixth Amendment prohibits a judge, as opposed to a jury, from finding facts that trigger a mandatory criminal forfeiture.” The court suggested that the parties address this and related issues on remand. It rejected his claim that his sentence was procedurally unreasonable because the district court did not explain the drug amounts when sentencing him, noting that the district court considered his objections but found that the evidence supported the probation officer’s calculations. Even if the court assumed error, it found no plain error occurred as the record “amply” supported the probation officer’s “conservative estimate.” While Bradley challenged his 17-year sentence as substantively unreasonable, the court noted that it was “less than half of the recommended range,” and the difference in the sentences between Bradley and a codefendant was appropriately based on their conduct.
Motion to change custody & parenting time; Vodvarka v. Grasmeyer; Shade v. Wright; Established custodial environment; Pierron v. Pierron; MCL 722.27(1)(c); Lieberman v. Orr; Proper cause or a change in circumstances; Corporan v. Henton
Holding that the trial court’s order denying defendant-father’s motion to change custody and parenting time was proper, the court affirmed. He argued that an established custodial environment (ECE) existed with both parents and that granting his request for additional time with the children would not alter it, meaning that the standards in Shade, not Vodvarka, applied. Under Shade, he contended that grounds for modifying parenting time existed because there had been changes to the children’s circumstances, including that they were older, plaintiff-mother had remarried, and she had another baby. According to defendant, he should have been afforded an evidentiary hearing to present evidence showing that an ECE existed with both parents and that modification of parenting time would be in the children’s best interests. His arguments lacked merit. The dispositive question was whether his proposed change constituted a modification of parenting time or a change that would in effect modify an ECE. The undisputed evidence showed that under the judgment of divorce, plaintiff had 240 overnights while defendant received 125. Under this arrangement, in a typical 2-week period, she had 10 overnights and he had 4 overnights with the children. The exact extent of his proposed modification to the arrangement was “something of a moving target.” Initially, he sought a 50/50 split of parenting time under which each parent would have 7 nights per 2-week period. He later equivocated, indicating that he would settle for an additional 1 or 2 overnights every 2 weeks. Overall, plaintiff currently had almost twice as many overnights as defendant, and defendant’s proposal was to bring the parties equal, or nearly equal, and to reduce plaintiff’s parenting time days by a minimum of 26 to as many as 57½ per year. This was not a “minor modification[]” that left plaintiff’s parenting time “essentially intact,” or “very close to the same number of parenting time days” that she enjoyed under the divorce judgment. Instead, what defendant actually proposed was a substantial increase in his number of overnights and a corresponding substantial reduction in her overnights. He did not dispute that the children had an ECE with plaintiff, and this significant change to her parenting time, regardless of his label for his motion, would alter their ECE with her. Thus, the trial court did not commit clear legal error by determining that the Vodvarka framework applied. Under that framework, he could not show proper cause or a change in circumstances that would allow custody to be revisited.
Dispute over a planned development; Standing; “Special injury”; Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ.; Franklin Historic Dist. Study Comm’n v. Village of Franklin; Principle that standing does not arise from “speculative harm”; Detroit Fire Fighters Ass’n v. Detroit; Taxpayer standing; Killeen v. Wayne Cnty. Rd. Comm’n; Groves v. Department of Corrs.; Actual controversy; MCR 2.605(A)(1); UAW v. Central MI Univ. Trs.
The court held that the trial court did not err by finding that plaintiffs-business owners lacked standing to sue defendants-City and developer over a planned construction project. Plaintiffs filed suit over the construction of an office tower, parking structure, and other municipal buildings, which would partly be built on areas that are now municipal surface parking lots. The trial court granted summary disposition for defendants, finding plaintiffs lacked standing. On appeal, plaintiffs argued that they had standing for three reasons: (1) “special injury,” (2) their status as taxpayers, and (3) the existence of an actual controversy. The court first rejected their argument that replacement of the surface parking lots would result in a “special injury” that would detrimentally affect them differently from other citizens, noting that, “[a]lthough plaintiffs anticipate losing business during construction and after replacement of the surface parking with a parking deck, they have not established a legal right to that surface parking or an actual, verifiable injury.” It next rejected their claim that they had standing based on their status as taxpayers, finding their “complaint that the trial court improperly conflated the requirements for ‘special injury’ standing and taxpayer standing” unpersuasive. Moreover, their “contention that their only requirement for standing is their status as a taxpayer is an incorrect oversimplification.” They “must still demonstrate an injury or loss. [They] made no such showing, so they did not establish taxpayer standing.” Finally, the court rejected their argument that there was an actual controversy, noting they “have focused solely on the anticipated costs without a commensurate consideration of the possible benefits to be derived.” Defendants “described the review process of the City’s decision to initiate this project, which involved ascertaining the benefits of attracting new businesses to the area. This process was undertaken with analysis and formal approval. Neither plaintiffs nor this Court are in a position to second-guess the City’s pursuit of this project.” Affirmed.
Premises liability; Slip & fall on ice; Duty owed to an invitee; Stitt v. Holland Abundant Life Fellowship; Whether the hazard was open & obvious; Hoffner v. Lanctoe; Slaughter v. Blarney Castle Oil Co.; Janson v. Sajewski Funeral Home, Inc.; Kaseta v. Binkowski; Mitchell v. Premium Props. Invs. Ltd. P’ship; Special aspects; Lugo v. Ameritech Corp.; Corey v. Davenport Coll. of Bus. (On Remand); Whether the hazard was effectively unavoidable
Holding that the undisputed facts revealed that the alleged black ice was open and obvious, and that the hazard was not effectively unavoidable, the court affirmed summary disposition for defendant-premises owner. The 85-year-old decedent slipped and fell on ice on an asphalt driveway while trying to access the school gym on the premises to watch her grandson play basketball. She hit her head and died the next day due to her injuries. “Evidence showed that on the day of the accident, the weather was above freezing but” previously shoveled snow was melting adjacent to her path. Both her daughter-in-law (M) and her grandson (T) testified that there was slush in the parking lot when they arrived. M “testified she was aware it could be slippery because of the slush and the snowbanks. She noted the presence of slush and asked” T and the decedent if they were okay. T “testified that his mom asked him to be careful because ‘there is slush on the ground or there’s ice or something like that.’” It was undisputed that while “it did not snow, rain, sleet during the day and temperatures were above freezing in the afternoon, the sun set about an hour before” they arrived at the premises, and “temperatures quickly dropped to below freezing. Local weather data confirmed that by 4:53 p.m. the temperature was still above freezing, but that by 5:53 p.m., shortly before” the decedent arrived at the premises, the temperature had fallen to 30 degrees. The court concluded that the trial court did not err in finding that the alleged black ice was open and obvious given that there were “‘indicia of a potentially hazardous condition,’ including the ‘specific weather conditions present at the time of the plaintiff’s fall.’” Further, applying Hoffner, the court agreed with the trial court that the icy patch on which the decedent slipped was not effectively unavoidable because there were different walking routes from the parking lot to the gym door and she “could have declined to attend the basketball game.”