Robert S. Bick Andrew T. Blum Butzel Cloie Y. Chidiac Nancy Samir-Haddad Derleth Debra A. Geroux Charlie Goode Brandon J. Hayes Ingham County Bar Association Courtney A. Lavender Bushra A. Malik MDTC James J. Murray Courtney L. Nichols Shanika A. Owens Reginald A. Pacis Erin Pawlowski Adomas N. Rauckis Richard Warren
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Breach of contract; Moser v. Detroit; Choice-of-law provision; Greenfield v. Philles Records, Inc. (NY); Brad H v. City of New York (NY); “Transaction” defined; Whether the court should use a “formalistic” or a “reasonable” expectations approach; Governing law for an award of prejudgment interest; McColl v. Wardowski; Mitchell v. Reolds Farms Co.; Mt. Ida Sch. for Girls v. Rood; Rubin v. Gallagher;; OrbusNeich Med. Co. v. Boston Sci. Group (D MA); Sutherland v. Kennington Truck Serv., Ltd.; Attorney fees; Hooper Assoc., Ltd. v. AGS Computers, Inc. (NY); Crossroads ABL, LLC v. Canaras Capital Mgmt. (NY); Indemnity provision
The court held that based on the applicable rules of contract interpretation, no reasonable person could conclude that the investor was anything other than Alaris USA, a Delaware corporation. Even if its principals were Canadians and Canadian money funded the Alaris USA transaction, it was not a Canadian company that entered into the transaction with plaintiff-Agility Health, a Michigan company; it was Alaris USA. It also held that based on Mitchell, the trial court did not err in holding that the award of prejudgment interest was governed by Michigan law. Finally, the trial court erred in ruling that defendant, upon prevailing in its breach of contract claim, was not entitled to an award of attorney fees. The court affirmed the trial court’s grant of summary disposition to defendant, reversed the order as to attorney fees, affirmed the order as to prejudgment interest, and remanded. Plaintiff argued that the trial court erred in granting summary disposition to defendant on its complaint for declaratory relief and on defendant's counterclaim for breach of contract. It contended that Alaris Royalty, not its subsidiary Alaris USA, was the actual investor in plaintiff. It argued that because in substance a Canadian company financed the investment in plaintiff, there was no “Transaction” as defined by its agreement with defendant, and it was not liable to defendant for a placement fee. The court disagreed. The parties agreed that, pursuant to the choice-of-law provision, New York law governed whether plaintiff breached the engagement letter. “Under New York law, the ‘fundamental, neutral precept’ of contract interpretation is that the contract must be construed in accordance with the parties’ intent.” Under the engagement letter, plaintiff promised to pay defendant a placement fee equal to 6% “of the gross proceeds of ‘any Transaction.’” There was nothing ambiguous about the engagement letter. It stated unequivocally that defendant was entitled to a placement fee equal to 6% of the gross proceeds of any “Transaction” as to any entity other than a Canadian investor, with two exceptions. Because the engagement letter was unambiguous, it must be enforced according to the plain meaning of its terms. Because Alaris USA was not a Canadian investor, reasonable minds could not disagree that defendant was entitled to its fee from plaintiff under the terms of the engagement letter.
The right to rescind under the Truth in Lending Act (TILA); Whether 15 USC § 1641(g) (enacted in the Helping Families Save their Homes Act) entitled the plaintiffs to rescind their mortgage loan based on the defendant-bank’s failure to notify them of the assignment of the deed of trust; 12 CFR § 1026.39(a)(1); Doctrine of equitable assignment; Carpenter v. Longan; § 1635(a); Material disclosures; § 1602(v); Barnhart v. Peabody Coal Co.; Whether defendant-Wilson & Associates constructively waived its right to remove the case from state court; Regis Assocs. v. Rank Hotels (Mgmt.) Ltd.; Atlanta, Knoxville & N. Ry. Co. v. Southern Ry. Co.; Fed.R.Civ.P. 81(c)(2); University of TX v. Camenisch; “Rule of unanimity”; 28 USC § 1446(b)(2)(A), (B), & (C); Loftis v. United Parcel Serv., Inc.; “Last-served defendant”; Brierly v. Alusuisse Flexible Packaging, Inc.; The bank’s standing to enforce the loan; Hearsay; FRE 801(c)(2); Preferred Props., Inc. v. Indian River Estates, Inc.; FRE 902(1)
The court held for the first time that the right of rescission under TILA § 1635 does not apply to violations of § 1641(g) (failure to notify of an assignment). Thus, the plaintiffs-Robertsons were not entitled to rescind their mortgage loan based on defendant-U.S. Bank’s failure to notify them of the assignment of the deed of trust. “The notice requirement applies only to an assignment of the underlying debt, not to the instrument—such as the Robertsons’ deed of trust—that secures the transaction.” Also, even if the bank had violated § 1641(g), they would only be entitled to damages and would not be entitled to rescind their loan. The assignment of the deed of trust did not qualify as “a consumer credit transaction.” Moreover, “only omitted disclosures relevant to the terms of a loan give rise to a right of rescission.” Disclosure of an assignment does not fall under § 1602(v)’s “exhaustive” list of “material disclosures.” Thus, the bank was entitled to summary judgment on this issue. The court also rejected the Robertsons’ claim that defendant-Wilson & Associates, which was responsible for the foreclosure sale, waived its right to remove the case based on its various filings in state court, and that this waiver bound the bank. Wilson did not “explicitly” or “constructively” waive its rights. “Appearing before a tribunal only to excuse oneself from future proceedings does not count as an intentional relinquishment of rights. Nor does filing an answer waive the right to remove . . . .” Even supposing Wilson had waived its right to remove, “the waiver would not bind U.S. Bank. In cases with multiple defendants, the ‘rule of unanimity’ requires that each defendant consent to removal.” The court noted that it has long followed the “last-served defendant” rule, ensuring that “one defendant’s failed attempt to remove could not inhibit a later-served defendant’s opportunity to remove.” Congress has codified this position. U.S. Bank had standing to enforce the note, and the loan documents it introduced were not hearsay under the “verbal acts” doctrine. Affirmed.
Sentencing; Presumption that the information contained in a presentence investigation report (PSIR) is accurate unless effectively challenged; People v. Lloyd; Principle that either party may challenge the accuracy or relevancy of information contained in the PSIR at the sentencing hearing; MCL 771.14(6); Principle that the sentencing court must respond to challenges to the accuracy of information in a PSIR but has wide latitude in how to do so; People v. Spanke; Principle that the trial court must strike challenged information it finds is inaccurate or irrelevant from the PSIR before sending it to the Department of Corrections (DOC); MCR 6.425(E)(2)(a)
The court held that the trial court should have evaluated the merits of the information contained in the defendant’s PSIR. He was convicted of two counts of CSC III and was sentenced as fourth offense habitual offender to concurrent prison terms of 22 to 40 years. The court previously affirmed his convictions, but remanded for resentencing because of an error in scoring the guidelines. On remand, the trial court again sentenced him to 22 to 40 years’ imprisonment. On appeal, the court agreed that the trial court erred in not properly addressing the merits of his claim that the allegation in his PSIR that he assaulted the victim after she testified was not true. It noted that during the resentencing, defendant denied that he assaulted the victim during the criminal proceedings, and asserted that “the allegation was that the assault took place after the victim testified against him, not before she testified, and that the case based on the allegation was dismissed.” It further noted that the trial court accepted his “time line and noted that there was no conviction, but stated that it believed it could ‘take into consideration[] the allegation that was done.’” The court found that the trial court “should have evaluated the merits of the information presented in the PSIR and addressed defendant’s challenge to its accuracy. Although the trial court accepted defendant’s version of when the assault was alleged to have occurred during the time line of the criminal prosecution, and stated its understanding that no conviction had resulted from the allegation, it nonetheless relied on the challenged information in resentencing defendant without clearly indicating that it found the allegation to be accurate.” Remanded for resentencing.
Restitution; Const. 1963, art. 1, § 24; In re Lampart; Restitution under the Crime Victim’s Rights Act (MCL 780.751 et seq.); People v. Fawaz; Determination of restitution; MCL 780.767(1) & (4); People v. Grant; People v. Avignone; Presentence Investigation Report (PSIR); Department of Corrections (DOC)
The court held that trial court erred in ordering restitution without holding a hearing to determine the amount. The defendant pleaded guilty to first-degree retail fraud for stealing merchandise from a home improvement store. The PSIR recommended that he be ordered to pay restitution in the amount of $1,030.84. Defendant objected to that recommendation on the ground that the merchandise in question was ultimately returned. The prosecution could not produce a witness to contest his assertion, but stated that it would submit evidence supporting the requested restitution amount. The trial court ordered that he “pay restitution in an amount to be determined, within a period of 90 days.” Four months later, the DOC submitted a case report to the trial court stating that restitution had been determined in the amount of $1,030.84 and requesting that the judgment of sentence be amended to reflect that restitution amount. The trial court then entered an amended judgment of sentence specifying that amount in the restitution order. On appeal, defendant argued that the trial court erred in ordering restitution without holding a hearing to determine the amount. The prosecution conceded this error. “[T]he prosecution initially suggested $1,030.84 in restitution on the basis of the value of the property that defendant stole from the home improvement store, but the parties agree that defendant raised a sufficient objection to the proposed amount of loss at sentencing to trigger the trial court’s obligation to hold a hearing to determine the amount. Because there was no such hearing, the record is devoid of evidentiary support for the restitution award.” Vacated and remanded.
Entrapment; People v. Woods; People v. Fyda; People v. Jamieson; The modified objective test for analyzing entrapment; People v. Akhmedov; Determining whether the police engaged in impermissible conduct; People v. Johnson; Considering the particular defendant’s circumstances; People v. Juillet; Principle that a timely raised entrapment claim is not deemed waived by an unconditional guilty plea; People v. Crall; Illegal sale of medical marijuana under § 4 of the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); Mid-Michigan Area Group Narcotics Enforcement Team (MAGNET)
Holding that the defendant was entrapped as a matter of law, the court reversed the trial court’s ruling on his motion to dismiss based on entrapment and vacated his plea-based convictions for the illegal sale of marijuana under the MMMA. It concluded that the police informant, defendant’s co-worker (T), played upon their friendship in convincing him to sell him marijuana. After a search of his home turned up an impermissible amount of marijuana, T (a medical-marijuana caregiver and patient) accepted “an opportunity to mitigate the legal consequences against him by assisting with controlled drug buys on MAGNET’s behalf.” He targeted defendant, and expanded their relationship by training him in welding and taking him fishing. “Using this purposefully-forged relationship,” he lulled him “into believing that his friend would not steer him into an illegal situation” and told him that patient to patient transfers were legal. The court noted that defendant was not previously a marijuana seller. T targeted him “not because he was a known drug dealer or even because he dabbled in small transfers to friends. Rather, [T] felt trapped by MAGNET to find someone, anyone to snare to avoid his own criminal consequences” and knew defendant was a medical marijuana patient. “The result of MAGNET’s method was to use a minnow to spawn and capture an even smaller fish.” Viewing the fourth Johnson factor in a vacuum, it “might agree that promises of a higher paying job would not suffice. However, [T] also made ‘guarantee[s] that the acts alleged as crimes were not illegal.’ And the crimes were not escalated to a serious level; the sales were all below 2.5 ounces.” The defendant’s circumstances may be considered in analyzing the ready and willing component. He had a wife and 2 children to support, but was only earning $10.40 an hour. The additional income working as a welder “essentially brought the family above the poverty line.” T made the promotion conditional on defendant’s providing marijuana when T was short of it for his medical marijuana patients. He only provided small quantities and did not provide it for improper use. The court ordered his record of conviction expunged.
Motion to suppress a statement to police; Right against self-incrimination; U.S. Const. amend. V; Const. 1963, art. 1, § 17; People v. Elliott; Whether a defendant’s waiver of his rights under Miranda v. Arizona was voluntary, knowing & intelligent; People v. Tierney; Whether a waiver was voluntary; People v. Daoud; People v. Givans; People v. Cipriano; People v. Fike; People v. Howard; People v. Cheatham
The court held that the trial court erred by granting the defendant’s motion to suppress his statement to police. He was arrested in connection with the armed robbery of a gas station. While in custody, he signed a Miranda waiver and confessed to his involvement in the crime. He was then charged with armed robbery and conspiracy to commit armed robbery. The trial court granted his motion to suppress the statement. The court remanded twice, but the trial court granted the motion each time. On appeal, the court found that the trial court erred in finding that defendant’s waiver was involuntary, noting it “improperly analyzed whether [his] statement was voluntary by failing to make a factual finding regarding whether the police coerced [him] into waiving his Miranda rights by exploiting his mental deficiencies.” It noted there was “no evidence” that any coercion occurred, and that “the majority of the Cipriano factors weighed heavily in favor of finding that defendant’s waiver was voluntary and defendant’s mental deficiencies, standing alone, were an insufficient basis on which to find” otherwise. The court also found that the trial court “improperly analyzed whether defendant’s waiver was knowing and intelligent by failing to consider the ‘total circumstances.’” It noted the trial court failed to consider certain “facts surrounding the interrogation or explain how the expert’s conclusions regarding defendant’s mental deficiencies were alone sufficient" to prevent defendant’s waiver from being knowing and intelligent. In addition, while the trial court found that the officer “did read defendant his Miranda rights, the trial court still concluded that he did not understand the rights.” Reversed and remanded to a different judge.
Divorce; Custody; The Child Custody Act (MCL 722.21 et seq.); Phillips v. Jordan; Berger v. Berger; MCL 722.28; Established custodial environment (ECE); MCL 722.27(1)(c); Burden of proving by clear & convincing evidence that a change to sole custody served the children’s best interests; Foskett v. Foskett; The statutory best interest factors; MCL 722.23; Kessler v. Kessler; Factors (j) & (l); Credibility; Wright v. Wright; Shann v. Shann; Beason v. Beason; Factor (i); Fletcher v. Fletcher; Whether a trial court’s findings on one or two factors can outweigh findings as to the rest of the factors; Heid v. AAASulewski; McCain v. McCain; Child support & spousal support awards; Borowsky v. Borowsky; Stallworth v. Stallworth; Effect of the defendant’s debt; Potential motion for modification of the child support order; MCL 552.17(1); Clarke v. Clarke; Michigan Child Support Formula (MCSF)
Concluding that the trial court’s findings as to factors (j) and (l) were not against the great weight of the evidence, and that its ruling on the ultimate custody decision was not an abuse of discretion, the court affirmed the order granting the plaintiff-mother sole legal and physical custody of the parties’ children. The trial court granted her request for sole custody based on the parties’ lengthy history of animosity and conflict, which led to an inability to effectively communicate, and its “determination that plaintiff was more likely to attempt to foster a relationship between the children and the other parent.” It found that they were equal as to statutory best interest factors (a) through (h), and, based on an in camera interview with the children, considered their preference pursuant to factor (i). The defendant-father contended the trial court’s finding that factor (j) favored plaintiff was against the great weight of the evidence. The court disagreed, noting that plaintiff “testified to ongoing attempts to contact defendant” about the children, which he “rebuffed by refusing to respond or blocking her efforts to contact him through telephone calls and text messages.” He did not dispute that, while the parties were separated and shared joint custody, “he retained the children for five consecutive weeks.” There was testimony suggesting that he did not initially provide her with information as to his living arrangements and actively altered their school emergency contact cards. While the trial court did not specifically state that factor (l) favored either party, it correctly used this factor “to consider how these difficulties would impact” the children’s best interests. The court concluded that the trial court “expressed legitimate concerns” about the parties’ inability to effectively communicate daily on even minor issues, let alone discuss and resolve major ones that might arise. In light of the trial court’s adherence to the MCSF and his failure to provide full documentation, the court noted that defendant’s other claims on appeal would be more properly addressed through a motion for modification of child support, which would permit him to present updated and current documentation as to his claims of reduced income.
Motion to change custody; Whether proper cause or a change of circumstances (COC) existed; Corporan v. Henton; The Child Custody Act; MCL 722.27(1)(c); In re AP; Vodvarka v. Grasmeyer; Dailey v. Kloenhamer; Whether the trial court should have conducted an evidentiary hearing; Whether the court should apply the doctrine of anticipatory neglect from the termination of parental rights context; In re Gazella; Alleged inappropriate conduct on the part of the plaintiff-mother; Zantop Int’l Airlines, Inc. v. Eastern Airlines; Wilson v. Taylor; Derderian v. Genesys Health Care Sys.; Significance of the Friend of the Court’s (FOC) recommendations; Harvey v. Harvey; Child Protective Services (CPS)
The trial court’s determination that the defendant-father failed to show proper cause or a COC was not against the great weight of the evidence. Also, his argument that he was entitled to another evidentiary hearing was without merit. Further, whether the anticipatory neglect doctrine or some equivalent legal principle is or should be applicable in child-custody cases was not implicated in this case. Defendant argued that the trial court erred when it made its threshold determination that proper cause or a COC did not exist to warrant revisiting the issue of custody. The last custody order was entered on 10/8/14 by consent of the parties. Defendant sought to change custody on the basis of a third-degree child-abuse charge against the plaintiff-mother filed in the district court on 7/31/15; plaintiff’s no-contest plea to the misdemeanor offense of attempted third-degree child abuse on 8/11/15; and the district court’s imposition of probation and other conditions of diversion under MCL 771.1 on 8/11/15. Although her alleged assault on her 17-year-old daughter from a previous relationship (HM) occurred before the entry of the 10/8/14 custody order, defendant argued that the subsequent criminal proceedings were an escalation of the original circumstances, such that the trial court should have found that a COC or proper cause was shown. The evidence did not clearly preponderate against the trial court’s determination that defendant failed to establish proper cause or a COC. The altercation occurred before the entry of the last custody order. The testimony at the 7/10/15 evidentiary hearing supported the trial court’s finding that defendant knew about the altercation, and knew that there was an ongoing CPS investigation about it, before entry of the consent order. He was in court when the consent order was signed, yet proceeded with his request that the trial court enter the consent order. “Although plaintiff was criminally charged, pleaded no contest, and received a delayed sentence after the entry of the consent order, the trial court found that defendant had sufficient knowledge of the underlying events and investigation that he could have raised the issue at the [10/8/14] hearing if he did not wish to proceed with the entry of the consent custody order pending the CPS investigation.” The trial court also properly noted that she did not receive jail time or other conditions of her delayed sentence that would affect her ability to parent the parties’ child (GR) and that the district court indicated that the charge would be dismissed if she complied with that court’s terms. Affirmed.
Whether defendant-Progressive Michigan Insurance Company could rescind the policy ab initio as to the plaintiff-insured’s minor child; Titan Ins. Co. v. Hyten; Bazzi v. Sentinel Ins. Co.; Assigned Claims Facility (ACF)
On remand from the Michigan Supreme Court for reconsideration in light of Bazzi, the court held that the claim by the plaintiff-insured’s (Frost) minor child did not bar defendant-Progressive Michigan Insurance Company from rescinding the policy. It remanded for further proceedings because the trial court did not expressly rule on the grounds for rescission, which Progressive had to establish to prevail. Frost obtained a liability insurance policy from Progressive to cover her car in 4/10. The car was destroyed the next month. The following month after that, her child was injured in an accident while an occupant in an uninsured vehicle. The ACF assigned the child’s claim to intervening plaintiff-Citizens Insurance Company. Progressive informed Frost in 9/10 that her policy was rescinded ab initio, alleging that she procured it through fraud. Frost sued Progressive for reimbursement for losses incurred when her car was destroyed. Citizens intervened seeking reimbursement from Progressive for benefits Citizens had paid on behalf of Frost’s child. Citizens and Progressive filed cross-motions for summary disposition. The trial court granted Citizens’ motion and denied Progressive’s, finding that the accident occurred before Progressive tried to rescind the policy, “and that once the accident occurred, Progressive lost its ability to rescind as to” Frost’s child. The court previously vacated and remanded. The Michigan Supreme Court vacated that opinion and remanded for reconsideration in light of Bazzi. After reviewing Bazzi, the court noted it previously determined that the trial court’s ruling was inconsistent with the Supreme Court’s holding in Hyten. The Supreme Court there concluded that “absent statutory provisions to the contrary, ‘an insurer is not precluded from availing itself of traditional legal and equitable remedies to avoid liability under an insurance policy on the ground of fraud in the application for insurance, even when the fraud was easily ascertainable and the claimant is a third party.’” The court now found that its prior decision was consistent with and adhered to the majority decision in Bazzi. Vacated and remanded.
The right of property owners to create & enforce covenants affecting their own property; Terrien v. Zwit; Principle that unambiguous agreements will be enforced as written; Bloomfield Estates Improvement Ass’n, Inc. v. Birmingham; Brown v. Martin; Construction of restrictive covenants; Stuart v. Chawney; Principle that Michigan law will not imply a good-faith requirement to restrict a party’s express contractual right; Eastway & Blevins Agency v. Citizens Ins. Co. of Am.
The court held that the trial court did not err by granting summary disposition for the defendant pursuant to MCR 2.116(C)(10) on plaintiff’s claim for declaratory relief regarding the usage of property in a shopping center. Plaintiff sued to compel defendant to allow it to develop a portion of the shopping center in which the parties’ interests are governed by a declaration. The trial court ruled for defendant. On appeal, the court found that trial court did not err in granting summary disposition for defendant because “the unambiguous language of the declaration provided defendant the right to refuse consent to plaintiff’s proposed creation of an outlot and construction thereon.” In addition, there is “nothing in the declaration that conditions defendant’s right to refuse consent or requires a good-faith basis for such a refusal.” It noted that “[b]ecause the declaration provides defendant the express contractual right to refuse consent, no good-faith requirement will be implied.” Moreover, plaintiff’s reliance on § (6)(a) of the covenant, which provides that defendant “shall not withhold its consent for construction of improvements on the outlots if the planned improvements are compatible with the businesses conducted in the Shopping Center and attractive to customers and retail trade” was misplaced. “[T]his section concerns the ‘construction of improvements’ on the outlots. Plaintiff’s request is for the creation of an outlot, upon which it would construct improvements, rather than a request to conduct construction on an existing outlot.” Affirmed.
The legal standard governing a request for disclosure of objections to a presentence report (PSR) to a third party for use in related civil litigation; In re Hearst Newspapers, LLC (5th Cir.); United States v. Kravetz (1st Cir.); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of CA (9th Cir.); Principle that objections are prepared as part of the confidential process of creating the PSR; United States v. Pena (2d Cir.); Fed.R.Crim.P. 32; Whether the First Amendment was violated by keeping the objections confidential; Press-Enter. Co. v. Superior Court (Press-Enter. II); Whether confidentially violated a “common law right of access”; Nixon v. Warner Commc’ns, Inc.; Times Mirror Co. v. United States (9th Cir.); Whether the plaintiffs established a “special need” to overcome confidentiality; United States v. Huckaby (5th Cir.); United States v. Corbitt (7th Cir.); U.S. Dep’t of Justice v. Julian; United States v. Schlette; Beller ex rel. Beller v. United States (D NM)
Where the plaintiffs did not establish that the information they sought was not available from other sources, and legitimate policy concerns weighed against disclosure, the district court did not abuse its discretion by refusing to make available to a third party letters containing presentence objections prepared in a criminal case for use in this related civil litigation. In this class action, the plaintiffs purchased wild bird food from defendant-Scotts Miracle-Gro that was treated with “unapproved pesticides.” They sought two sets of objections that were attached to Scotts’ PSR from an Ohio criminal case. The district court declined, ruling that they were confidential. Plaintiffs argued that the district court erred by applying the same legal standard to the objections as it did to the PSR. They claimed that “the objections were akin to sentencing memoranda and therefore should be presumptively accessible under both the First Amendment and the common law.” Scotts maintained that the objections were “closely related to the PSR and should be accorded the same confidential treatment as the PSR itself.” The court concluded that objections merit a similar level of protection as the PSR. A third party “seeking release of a PSR must make a showing of ‘special need’ to obtain the document.” It held that this same standard applied to the objections because they were “fundamentally interconnected with the PSR in three ways: procedure, purpose, and policy considerations.” It noted that “the objections arose precisely in accordance with the process outlined by” Rule 32, which governs presentence investigations and reports. “Just as courts have read Rule 32 to endorse the practice of keeping PSRs confidential, . . . Rule 32 similarly affords the objection process and its attendant documents ‘statute-based confidentiality protection[.]’” Keeping them confidential does not violate the First Amendment right to access because they have not been traditionally open to the public and public access does not “play a significant positive role” in the PSR objection process. Keeping them confidential also did not violate the common law right of access. Because the objections were entitled to same presumption of confidentiality as the PSR, plaintiffs could not access them unless they could show a “special need,” which they failed to do where the information they sought was also available from multiple other sources. Affirmed.
Medical malpractice; Striking plaintiff’s standard of care (SOC) expert; Woodard v. Custer; Gonzalez v. St. John Hosp. & Med. Ctr. (On Reconsideration); Edry v. Adelman; MRE 702; MCL 600.2169; MCL 600.2955; Clerc v. Chippewa Cnty. War Mem’l Hosp.; MCL 600.2169(1)-(3); Abandoned claim of error; Mate v. Wolverine Mut. Ins. Co.; MCL 600.2955(1); Daubert v. Merrell Dow Pharms., Inc.; Greathouse v. Rhodes; Halloran v. Bhan; Gilbert v. DaimlerChrysler Corp.; Distinguishing Albro v. Drayer; Dismissal of the complaint; West v. General Motors Corp.; Carlton v. St. John Hosp.; Spires v. Bergman; Young v. Oakland Gen. Hosp.; Admissions in a deposition; Stefan v. White; Dykes v. William Beaumont Hosp.; Motion to extend discovery & add an expert witness; Tisbury v. Armstrong
Holding that the record supported the trial court’s reasonable and principled determination that Dr. K lacked sufficient “knowledge, skill, experience, training, or education” as to performing the canaloplasty procedure to render reliable his opinion on the SOC, the court found that the trial court did not abuse its discretion in striking K as plaintiffs’ sole SOC expert. Defendants argued, and the trial court agreed, that K was not qualified to render expert testimony as to the SOC under the criteria of MCL 600.2169(2) and (3). The trial court properly considered K’s lack of education, professional training, and experience when deciding that he could not reliably testify as to the SOC requisite for performing a canaloplasty. The record showed that K had never performed a canaloplasty; his last educational experience as to the procedure “was over 27 years earlier during his residency when he observed the procedure being performed,” and K also “admitted he did not have the requisite training or experience to perform a canaloplasty.” Plaintiffs argued that the trial court erred and abused its discretion in ruling that K was not qualified as a SOC expert under MRE 702. However, K’s own testimony showed that has never performed a canaloplasty; his last educational experience as to the procedure was observing it being performed over 27 years earlier, and he admitted that he lacked the requisite training or experience to perform the procedure. Further, plaintiffs did not satisfy their burden of showing that K had an adequate foundation for his professed knowledge as to the SOC relating to the performance of a canaloplasty “to render his proposed opinion testimony reliable and admissible.” Under the circumstances, the trial court’s ruling that K was not qualified to provide reliable expert opinion testimony as to the SOC “was within the range of reasonable and principled outcomes;” thus, it was not an abuse of discretion. Further, because the trial court did not abuse its discretion in striking K as plaintiffs’ SOC expert, it also properly dismissed the complaint. Affirmed.
Termination under §§ 19b(3)(c)(i), (g), & (j); Principle that where a trial court finds that a single statutory ground for termination has been established by clear & convincing evidence & that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, it must terminate a respondent's parental rights to that child; MCL 712A.19b(3) & (5); In re Moss Minors; In re Ellis; Best interests of the children; In re Olive/Metts Minors
The court held that the trial court properly terminated the respondent-father’s parental rights to the children where at least one statutory ground for termination existed and it was in the children’s best interests. On appeal, the court rejected his argument that the trial court erred by finding that the statutory grounds for termination were proved by clear and convincing evidence. As to § (c)(i), it found that “[c]onsidering respondent’s failure to benefit after having well more than a year to address the issues relating to child abuse,” the trial court did not err in finding that the condition that led to the adjudication continued to exist and was not likely to be rectified within a reasonable time considering the children’s ages. As to § (g), it agreed with the trial court that “respondent would not be able to provide proper care and custody within a reasonable time given the children’s ages.” And as to § (j), it held that the trial court did not err in finding that the children were likely to be harmed if placed in respondent’s home. Finally, the court rejected his claim that the trial court erred by finding that termination of his parental rights was in the children’s best interests. “Although respondent complied with some aspects of his case service plan, he failed to benefit from services because he denied that he had any issues that needed to be addressed. That placed the children at a risk of harm because of respondent’s history of child abuse. The children did not have a strong bond with respondent and had to be coaxed to participate in visits. During the visits, respondent favored one child over the other and had to resort to making his son jealous of his daughter to get his son to interact with him. Respondent also refused to recognize his son’s special needs or his own inability to meet the children’s material needs.” Affirmed.
Termination under §§ 19b(3)(a)(ii) & (g); In re VanDalen; In re HRC; Reunification; In re B & J; Abandoned issue; Marx v. Department of Commerce; Child’s best interests; In re Moss Minors; In re Olive/Metts Minors; In re Frey; Temporary placement; Whether the trial court complied with MCR 3.977(H)(1) & (I)(3); In re Utrera; Whether the trial court stated the child’s best interests in making its findings
The trial court properly terminated the respondent-mother’s parental rights to the child where the statutory grounds for termination were established by clear and convincing evidence and it was in the child’s best interests. Presuming, without deciding, that she did not desert the child pursuant to § (a)(ii), the court held that the trial court did not clearly err in finding clear and convincing evidence to terminate her parental rights under § (g). Under § (g), a trial court may terminate parental rights when it is proven by clear and convincing evidence that “[t]he parent, without regard to intent, fail[ed] to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.” She admitted to having a substance abuse problem and took no meaningful steps to rectify it. She also failed to have stable housing or gainful employment at any point during the proceeding. Respondent exhibited no means of being able to provide for the child at the time of termination or within a reasonable time considering the child’s age. Thus, the trial court did not clearly err by terminating her parental rights under § (g). Affirmed.
Termination under § 19b(3)(c)(i); In re Williams; MCL 712A.18f(1), (2), & (4); Ineffective assistance of counsel; People v. Carbin; People v. Henry; Factual predicate; People v. Hoag; Failure to assert the respondent’s right to accommodation under the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.); In re Terry; § 12132; Qualified individual with a disability defined (§ 12131(2)); Child’s best interests; In re White; In re Olive/Metts Minors; In re AH; In re VanDalen
The court concluded that the respondent-mother did not show that her counsel failed to timely recognize a cognizable ADA issue and thus, she did not establish a factual predicate for her ineffective assistance of counsel claim. Further, the trial court did not clearly err in finding that § (c)(i) was established by clear and convincing evidence, or in concluding that termination was in the child’s best interests. The court noted that respondent did not identify the rights granted her by the ADA or show that any of her rights under the ADA were violated by the DHHS. While it appeared that the alleged disability was “functioning at the lower end of the average range of intelligence,” and failure to effectively process incoming information, she “made no attempt to show that either of these conditions is a disability within the meaning of the ADA.” As to the sufficiency of the trial court’s findings on § (c)(i), she essentially contended that her failure to comply with services was due to the DHHS’s deficient efforts. However, the case service plan identified specific needs, described them, provided a goal, the outcome sought, and an action step for each need. The DHHS “provided referrals for individual therapy, anger management, and parenting skills, and a parent aide for parenting skills, and also provided referrals for psychological and substance abuse evaluations. Under these circumstances, the trial court did not clearly err by finding that reasonable efforts were made” to reunify the family. The evidence showed that respondent made little if any progress in understanding the child’s needs and failed to internalize the techniques needed to parent a child with behavioral issues. She was still taking medications that made her groggy and unable to stay awake to properly parent the child, and she was discharged from therapy after making little progress toward her treatment goals. At the time of the termination hearing, “a therapist’s prognosis remained guarded,” and a psychologist found there was no alternative to recommending termination. Further, the child had been in care for 495 days. Affirmed.