Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Motion to compel arbitration under Federal Arbitration Act (9 USC § 1 et seq.); § 4; Whether the National Labor Relations Act (NLRA) & the collective-action provision of the Fair Labor Standards Act (FLSA) (29 USC § 216(b)) displaced the Federal Arbitration Act; Epic Sys. Corp. v. Lewis; Gilmer v. Interstate/Johnson Lane Corp.; NLRB v. Alternative Entm’t, Inc.; Whether the Federal Arbitration Act’s saving clause (§ 2) saved plaintiffs’ claims; AT&T Mobility LLC v. Concepcion; Killion v. KeHE Distribs., LLC; Boaz v. FedEx Customer Info. Servs., Inc.
[This appeal was from the ED-MI.] The court extended the Supreme Court’s reasoning in Epic to hold that the FLSA did not displace the Federal Arbitration Act and that plaintiffs who had signed individual arbitration agreements were required to have their pay disputes arbitrated. Plaintiff-Gaffers and other former employees of defendant-Kelly Services sued Kelly claiming that it had failed to pay them for time spent in work-related activities. They sued under the collective-action provision of the FLSA. However, several of the individual plaintiffs had signed arbitration agreements and Kelly moved to compel individual arbitration. Gaffers argued that the arbitration provisions were unenforceable under the NLRA and the FLSA, and the district court agreed. On appeal, the court first rejected Gaffers’ argument that the NLRA and FLSA “displaced” the Arbitration Act, noting that the Supreme Court rejected this argument as to the NLRA in Epic. The court extended Epic’s reasoning to the FLSA, and held that Congress did not “expressly state that an arbitration agreement poses no obstacle to pursuing a collective action.” As a result, the court concluded that “employees who do not sign individual arbitration agreements are free to sue collectively, and those who do sign individual arbitration agreements are not.” The court also rejected Gaffers’s argument that “one-on-one arbitration agreements are illegal under the FLSA and thus unenforceable under” the Arbitration Act’s savings clause, finding that he was wrong about the holdings in Boaz and Killion. Reversed and remanded.
Attorney fees; Reed v. Reed; Attorney fees based on unreasonable conduct in the course of the litigation; Stackhouse v. Stackhouse; Augustine v. Allstate Ins. Co.; Adair v. Michigan (On Third Remand); Richards v. Richards
The court held that the trial court did not err by directing plaintiff-ex-husband to pay attorney fees and costs incurred by defendant-ex-wife as a result of his unreasonable conduct. After a trial during the parties’ divorce proceedings, the trial court determined that plaintiff had been supporting another woman for several years before he received a loan from his former employer and an inheritance from his mother. As such, it awarded attorney fees to defendant for this misconduct, as well as for an additional instance of misconduct related to his payment of the mortgage for the parties’ marital home. The trial court ordered plaintiff to pay defendant $68,452.60 in attorney fees. In a prior appeal, the court affirmed the award under the common-law exception permitting recovery of fees a party is forced to incur as a result of the other party’s misconduct during the course of litigation. However, “because the record did not demonstrate the necessary link between plaintiff’s misconduct and the amount of attorney fees awarded,” it remanded for a determination of the fees actually incurred as a result of plaintiff’s unreasonable conduct. On remand, the trial court found that defendant “was entitled to recover fees incurred for ‘95.67 hours ($30,449.50) related to [p]laintiff’s unreasonable conduct regarding the Request for Admission, [and] 26.15 hours ($8,986.25) related to the mortgage issue . . . .’” On appeal, plaintiff challenged only the award of attorney fees related to his misconduct as to his support of the other woman. The court rejected his argument that the trial court erred by entering an order for attorney fees without adequately explaining the factual basis for its conclusions and despite defendant’s failure to establish a causal connection between his misconduct during discovery and the fees awarded. It found that the trial court did not err by finding that certain charges submitted by defendant were supported by her attorney’s testimony and other record evidence, noting his “testimony reflected more than speculation, and that the proofs were adequate to allow the court to determine the number of hours reasonably expended due to plaintiff’s misconduct.” In light of the billing entries and the attorney’s testimony, and the trial court’s detailed review of each entry, the court concluded that the trial court did not err by finding that “the services reflected in the billing entries it approved were incurred as a result of plaintiff’s misconduct during discovery.” Affirmed.
Expert testimony about “abusive head trauma”; People v. Unger; MRE 702; Daubert v. Merrell Dow Pharms., Inc.; Gilbert v. DaimlerChrysler Corp.; Chapin v. A & L Parts, Inc.; Review of a trial court’s decision to admit evidence; People v. Burns; People v. Fomby; Plain error review; People v. Carines; Admission of testimony from the victim’s mother; MRE 801(d)(2); People v. Schaw; Relevance & unfair prejudice; MRE 401-403
The court held that the trial court did not abuse its discretion by concluding that abusive head trauma was supported by sufficiently sound principles and methodology to warrant admission of testimony about it. Also, the trial court did not abuse its discretion by permitting another doctor to testify as an expert in child abuse and that certain of victim-B’s injuries were indicative of abuse. Finally, it was not persuaded that the trial court abused its discretion by admitting testimony from B’s mother as to defendant’s statements about not going to prison. He was convicted of first-degree child abuse and first-degree felony murder for the death of 3-½ year-old B, the younger of his girlfriend’s daughters. He argued that the trial court abused its discretion by allowing Dr. C to testify as to “abusive head trauma.” Defendant pointed out, “accurately, that it is impossible to conduct any kind of actual experiment on children to determine what kind of intentional trauma will cause any given presented injury.” C conceded that “most of the supporting studies were case studies. However, while controlled experiments are the ‘gold standard’ for scientific evidence, they are hardly the only source of valuable and reliable scientific data, including drawing statistical inferences from case studies, especially where some other evidence establishes at least part of the conclusions drawn therefrom. . . . There was ample testimony to the general effect that although abusive head trauma had encountered some doubt and skepticism in the scientific community, and it was not necessarily correctly predictive in every case,” it was backed by several studies and “not widely regarded as refuted.” Defendant’s argument that a statistically predictive model can easily be wrong in any particular instance was “well-taken. However, that does not make it unscientific, but rather appropriate for an argument to be made to the jury that they should be cautious about giving it much weight. Likewise with the fact that it was not universally well-regarded. The courts would do well to be suspicious of a theory widely deemed to be a ‘fringe’ position or otherwise taken seriously only by an extreme minority of the relevant scientific community. However, many now-accepted theories began as minority views, so a lack of universal acceptance does not per se establish that it is unscientific or unsound. Scientific disputes should be resolved by scientists, not by lawyers.”
Hearsay; Statement corroborating testimony given by the victim of a sexual act; MRE 803A; MRE 803A(3); First corroborative statement; People v. Douglas; Whether a preserved error in the admission of a hearsay statement warrants reversal under the harmless-error test that applies to preserved evidentiary questions; People v. Gursky; People v. Burns; MRE 803A notice
The court held on remand that any error by the trial court in admitting the victim’s hearsay statement or by the prosecutor in failing to provide notice of intent to use it was harmless. Defendant was convicted of CSC II, dissemination of sexually explicit material to a minor, and aggravated indecent exposure for exposing himself to the victim, showing her a sexual video of himself, and touching her between the legs. On appeal, the court previously rejected his argument that the trial court erred by refusing to sentence him in accordance with a prior plea agreement. It also rejected his claim that three different foundational requirements to admission of a statement under MRE 803A were not satisfied, finding that “while defendant preserved the second and third of these questions in the trial court, the first (i.e., whether [the victim’s] statement to [her mother] was the first such corroborative statement made by [the victim]) was not raised below, and was thus unpreserved.” The Michigan Supreme Court, in lieu of granting leave, found that “[b]ecause the record establishe[d] that defense counsel articulated a specific objection on hearsay grounds,” the court erred in holding that the issue was unpreserved. As such, it remanded for a determination of “whether the testimony at issue was erroneously admitted under MRE 803A, and if so, whether, upon an examination of the entire cause, it is more probable than not that the preserved error was outcome determinative.” On remand, the court concluded that, on the whole, it was “not convinced that, ‘after an examination of the entire cause,’ it affirmatively appears ‘that it is more probable than not that’ any error in admitting [the victim’s] hearsay statement ‘was outcome determinative.’” The statement “had little, if any, real effect on the trial. Rather, the focus was almost entirely on [the victim’s] trial testimony. Despite trial counsel’s ability to show various inconsistencies with prior statements and the testimony of other witnesses, the jury found [her] testimony credible. Because it does not appear that the corroborative statement to [her mother] was a deciding factor in this credibility determination,” any error was harmless. Further, while it did “not appear that the prosecution ever provided notice to defendant of the intent to use the statement in this particular case, whether formally or informally, it is clear trial counsel came to this realization through his own logical deduction.” Thus, this error was also harmless. Affirmed.
Motion to withdraw a guilty plea; Principle that there is no absolute right to withdraw a guilty plea once the trial court has accepted it; People v. Patmore; Necessity of showing a defect in the plea-taking process; People v. Brown; Principle that a defendant’s guilty plea will not be set aside if it was understanding, voluntary, & accurate; MCR 6.302(A); Whether a plea was understanding & voluntary; People v. Cole; Requirement that the trial court inform defendant of the maximum possible prison sentence for the offense & any mandatory minimum sentence required by law (including mandatory lifetime electronic monitoring for CSC I or II); MCR 6.302(B)(2); MCL 750.520n(1); Requirement that a defendant be fully informed of the consequences of his plea & given the opportunity to elect to allow the plea & sentence to stand or to withdraw the plea; MCR 6.310(C); Trial on the original charges if a defendant elects to withdraw his plea; MCR 6.312; Sentencing; Scoring of OVs 3, 4, & 8; Bodily injury requiring medical treatment; MCL 777.33(1)(d); People v. McDonald; Principle that the victim’s success in obtaining treatment is not a factor in scoring OV 3; MCL 777.33(3); People v. Maben; Serious psychological injury requiring professional treatment; MCL 777.34(1)(a); Asportation; MCL 777.38(1)(a); People v. Barrera; People v. Chelmicki
Holding that defendant’s plea was not knowing and voluntary, the court reversed the trial court’s order denying his motion to withdraw his guilty plea and remanded. He pled guilty to CSC I, accosting a minor, and felony-firearm for sexually assaulting a 15-year-old girl as she walked to school. He admitted that he penetrated the victim’s vagina with his finger and penis without her consent while armed with a handgun, and admitted to asking her to perform oral sex, which she refused to do. The trial court denied his motion to withdraw his plea. It then scored 10 points each for OVs 3 and 4, and 15 points for OV 8. It overruled his objection to these assessments, and sentenced him to concurrent prison terms of 18 to 40 years for each CSC I conviction, and 3 months to 4 years for the accosting a minor conviction, to be served consecutively to a 2-year term for the felony-firearm conviction. It also denied his post-sentencing motion to withdraw his guilty plea and to correct his sentence. On appeal, the court agreed with defendant that the trial court should have allowed him to withdraw his guilty plea because it did not inform him “about the maximum possible prison sentences for the offenses and the requirement of mandatory lifetime electronic monitoring associated with” his CSC I convictions. It found that he “demonstrated a defect in the plea-taking process that render[ed] his plea unknowing and involuntary.” The trial court, by “failing to inform defendant of the maximum possible prison sentence and the requirement of mandatory lifetime electronic monitoring,” did not comply with MCR 6.302, with the result that his “plea was not knowing and voluntary.” However, it rejected defendant’s claim that the trial court erroneously assessed points for OVs 3, 4, and 8, finding each of his claims meritless.
Other acts evidence under MCL 768.27a(1); People v. Solloway; MCL 768.27a(2); MCL 28.722; Whether the testimony of defendant’s prior child victims should have been excluded under MRE 403; People v. Watkins; Sentencing; Whether defendant was subject to a 25-year mandatory minimum sentence pursuant to MCL 769.12(1)(a); Factual findings; People v. Hardy; People v. McSwain; Proportionate sentence; People v. Lockridge; People v. Steanhouse
The court held that the trial court did not abuse its discretion in weighing the Watkins factors and admitting the testimony of defendant’s prior victims. Also, the trial court did not err by applying MCL 769.12(1)(a) to him and ruling he was subject to a 25-year mandatory minimum sentence. Finally, the trial court expressed grounds sufficient to support the sentences imposed for defendant’s convictions. He was convicted of three counts of CSC II. He was sentenced to 35 to 60 years for Counts I and II and to 40 to 60 years for Count III, as a fourth-offense habitual offender. He claimed that the admission of other acts evidence (testimony of his prior child victims) under MCL 768.27a(1) “should have been excluded under MRE 403 because the probative value of that testimony was substantially outweighed by the danger of unfair prejudice.” The court held that his argument had no merit. The trial court found “a significant degree of similarity between the charged offense and the prior offenses.” Its finding was supported by the fact that “all three victims testified that they knew defendant because he was in a relationship with their mother and lived in their household. [He] committed the acts when he was the adult caring for the victims. Because the trial court found multiple events and multiple convictions of sexual abuse of the prior victims, the acts were not infrequent but rather formed a pattern of behavior. There was no issue with a lack of reliability of the evidence supporting the occurrence of the other acts because” defendant pled guilty to acts of CSC against the two prior victims. Further, there was “no need for additional evidence beyond the testimony of the victim” in this case because her testimony could have established all the elements of CSC II by itself. Affirmed.
Sentencing; Unconstitutional life sentences without possibility of parole for murders committed as children; Miller v. Alabama; Montgomery v. Louisiana; MCL 769.25 & 769.25a; People v. Wiley (MI App.); Elimination of good time credits; Lowe v. Department of Corr. (MI App.); MCL 800.33(2); Moore v. Buchko (MI); Disciplinary credits; MCL 800.33(3), 800.33(14), & 800.34(5); Abstention; Hawaii Hous. Auth. v. Midkiff; Railroad Comm’n of TX v. Pullman Co.; Younger v. Harris; Jones v. Coleman; Deakins v. Monaghan; Whether MCL 769.25a(6) violates the Ex Post Facto Clause; Dyer v. Bowlen; Lynce v. Mathis; Garner v. Jones; California Dep’t of Corr. v. Morales; Peugh v. United States; Weaver v. Graham; Wayne Cnty. Prosecuting Attorney v. Michigan Dep’t of Corr. (Unpub. MI App.)
[This appeal was from the ED-MI.] The court joined a growing number of courts and held that the statutory elimination of the good time and disciplinary credits that the plaintiffs earned while they served their now-unconstitutional mandatory life sentences without parole for first-degree murders committed as children violates the Ex Post Facto Clause of the U.S. Constitution. MCL 769.25a(6) provides that a defendant who is resentenced as the result of Miller “shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant’s minimum or maximum sentence.” Plaintiffs contended that this provision is unconstitutional because it constitutes a retroactive removal of credits earned while they were serving their previous life sentences. After refusing to abstain under either Pullman or Younger abstention, as requested by defendants-state officials, the court considered whether MCL 769.25a(6) violates the Ex Post Facto Clause. “[T]he inquiry is whether the elimination of credits in Section 769.25a(6) creates a sufficient risk of increasing the punishment attached to Plaintiffs’ convictions.” The court held that the “text of the statute says it all—it eliminates credits ‘that reduce the defendant’s minimum or maximum sentence.’ By its terms, this provision makes a defendant’s sentence more onerous,” and thus violates the Ex Post Facto Clause. The elimination of these credits delays plaintiffs’ eligibility for release. As a result, the court concluded that the district court’s decision to grant plaintiffs summary judgment and permanent injunctive relief on this count was proper. Affirmed.
Habeas corpus; 28 USC § 2254; Waiver of procedural-default argument; Davila v. Davis; Shorter v. Ohio Dep’t of Rehab. & Corr.; Wood v. Millyard; Trest v. Cain; Gumm v. Mitchell; Sixth Amendment right to counsel; Turner v. United States; Rothgery v. Gillespie Cnty.; Missouri v. Frye; Lafler v. Cooper; Wingo v. United States (Unpub. 6th Cir.); Whether trial counsel’s absence during petitioner’s attempted cooperation with the federal authorities created a “constructive denial of counsel”; United States v. Cronic; United States v. Morris; Mitchell v. Mason; Geders v. United States; Herring v. New York; Brooks v. Tennessee; Hamilton v. Alabama; White v. Maryland; Strickland v. Washington analysis
[This appeal was from the ED-MI.] The court held that petitioner-Maslonka was improperly granted habeas relief where he failed to establish that he was prejudiced by his trial counsel’s failure to be physically present during his attempted cooperation with federal authorities, which was related to a potential better state plea deal. The prosecutor agreed to cut him a sentencing deal on his plea-based armed robbery conviction if he cooperated with a DEA drug-trafficking investigation. When he did not cooperate to the DEA’s satisfaction, the deal was withdrawn and he was sentenced as a third habitual offender. The district court agreed with Maslonka that his trial counsel was ineffective by not being present when he was attempting to cooperate with the federal authorities, and granted him habeas relief. On appeal, the court rejected the government’s claim that Maslonka procedurally defaulted his ineffective assistance of trial counsel claims because “the state explicitly and deliberately waived this argument in its initial answer” to his habeas petition. The government also argued that his claim should have been dismissed because the Sixth Amendment right to counsel did not apply as his attempted cooperation with federal authorities was a collateral proceeding. However, the court noted that “plea negotiations are a ‘critical stage’ of a prosecution.” While the parties cited “no cases establishing whether or not cooperation with federal authorities is considered part of the critical stage of state plea negotiations where, as here, a state plea offer hinges on” such cooperation, the court assumed without deciding that it was in this case. Maslonka’s claim was based on his trial counsel’s absence during his attempted cooperation with federal authorities. But the court “emphatically reject[ed] the theory that a counsel’s mere physical absence from a critical stage of a proceeding, based on the counsel’s own failure to be present rather than any denial by the state, can constitute a constructive denial of counsel under Cronic.” Rather, the two-part Strickland test applied. To establish ineffective assistance under Strickland, Maslonka had to show that he was prejudiced by his counsel’s performance, which he failed to do. Thus, he was not entitled to habeas relief on his ineffective assistance of trial counsel claim. Reversed and remanded for consideration of Maslonka’s ineffective assistance of appellate counsel claims.
Medical malpractice; Principle that a hospital is not vicariously liable for the negligence of a physician who is an independent contractor & simply uses the hospital’s facilities to provide treatment to patients; VanStelle v. Macaskill; Grewe v. Mt. Clemens Gen. Hosp.; Principle that a medical facility may be vicariously liable for the malpractice of actual or apparent agents; Chapa v. St. Mary’s Hosp. of Saginaw; Whether a physician is an apparent or ostensible agent
Holding that the trial court erred by denying defendant-Genesys Regional Medical Center’s motion for summary disposition in plaintiff’s medical malpractice action, the court reversed and remanded. She sued her specialist (defendant-Hagenstein), his corporation, and Genesys for medical malpractice, alleging that Hagenstein negligently prescribed a drug that caused extreme pain and weakness in her leg muscles, and that the other defendants were vicariously liable for his alleged negligence. Defendant argued that there was no genuine issue of material fact that Hagenstein was not an agent of Genesys. The trial court denied defendant’s motion, noting plaintiff’s family doctor referred “Hagenstein as a ‘Genesys’ doctor, that the appointment forms reflected the Genesys logo, that . . . Hagenstein possessed an identification badge with that logo, and that signage outside [his] office also displayed the logo.” It also noted plaintiff’s mother’s testimony that she believed Hagenstein was a “Genesys doctor” because their family doctor is a “Genesys doctor.” On appeal, the court agreed with defendant that the trial court erred by concluding that there was a genuine issue of material as to whether Hagenstein was defendant’s actual or apparent agent, and thus, by denying its motion for summary disposition. It agreed that there was “no question of fact that it took no action and made no representation to convey” that Hagenstein was its agent. It found defendant did nothing to make plaintiff believe Hagenstein was its agent, and the location of Hagenstein’s office was “insufficient to create an appearance of agency, as are the maps, signs, and directory entries that merely aid patients in locating his office.” Finally, “defendant’s conduct in failing to prevent plaintiff from forming the impression” that Hagenstein was an agent of defendant was not negligent. “Hagenstein testified, and this testimony was not rebutted, that he never asked defendant’s permission to use its logo on his appointment forms. Nor did [he] ever show plaintiff his ID badge from defendant, rendering it irrelevant whether defendant should have indicated on the badge that [he] was not an employee.”
Petitions for immediate distribution under a trust & for a determination that the distribution should not be reduced by taxes; MCL 700.3921(4); MCL 700.3922(2); Giving effect to the settlor’s intent; In re Kostin Estate; Construction of trust documents; In re Reisman Estate; Townsend v. Gordon; Detroit Bank & Trust Co. v. Grunewald; Effect of a provision directing that applicable taxes be paid out of the estate’s residuary; MCL 700.3920(1)(b); Calculating petitioner’s bequest & distribution under the terms of the trust
The court agreed with the probate court’s approach and its determination that the value of the investment accounts must first be reduced for taxes before calculating the amount of the bequest to be placed into trust for petitioner’s benefit. Thus, it affirmed the denial of her petitions for immediate distribution under the trust and for a determination that her distribution should not be reduced by taxes. Petitioner was correct that the will and MCL 700.3920 both “provide that the taxes owed must be paid from the estate’s residuary.” She was also correct that the trust directed “successor trustees, not petitioner, to effect payment of the taxes owed by the estate. But MCL 700.3920(1)(b)(i) also indicates that, despite the source of payment of the taxes being the estate’s residuary without apportionment among beneficiaries, an amount of tax may still be ‘attributable’ to a specific bequest. Because an amount of tax may be attributed to the value of” the accounts, there was no conflict between the relevant statutes, the trust, and the will. Nothing in the trust or will obligated her to actually pay, on the estate’s behalf, any taxes attributable to any part of the accounts. Rather, the issue was how to calculate her bequest and distribution under the trust’s terms. The court held that the only way to give meaning to all of the trust language was to reduce the value of the accounts “before calculating the amount of the bequest to be placed into trust for petitioner’s benefit. The key trust language is that requiring that the reduction (for taxes) occur before taking any further actions under the trust.” If the court adopted “petitioner’s reading of the trust, this language would have no effect,” because her share, and anyone else’s “under Article VII, would be determined in advance of the reduction that the trust requires occur beforehand.” The court declined to “render a portion of the trust language nugatory,” and thus affirmed the probate court’s decision that the “accounts needed to be reduced before calculating, establishing in trust, and distributing petitioner’s bequest.” As a result, the probate court “also did not err by failing to immediately order the distribution of petitioner’s bequest when it lacked the necessary information by which to do so.”
Adverse possession; Wengel v. Wengel; The 15-year period; Kipka v. Fountain; MCL 600.5801(4); Whether negotiations were sufficient to render a claim to the property a permissive use; Rozmarek v. Plamondon; Tacking; Siegel v. Renkiewicz Estate; Dubois v. Karazin; Hostility element; Gorte v. Department of Transp.; DeGroot v. Barber; Award of only nominal damages on a trespass claim; Slander of title; MCL 565.108; MCL 565.25(3); MCL 600.2907a(1); Federal Nat’l Mtg. Ass’n v. Lagoons Forest Condo. Ass’n; Request for sanctions; MCR 2.114(D); LaRose Mkt., Inc. v. Sylvan Ctr., Inc.; MCL 600.2591; Sprenger v. Bickle
Concluding that the trial court clearly erred in ruling that the plaintiffs-Martyns established use for the required 15-year period for their adverse possession claim, the court reversed its finding of adverse possession and its grant of a prescriptive easement to plaintiffs. However, it affirmed the award of only nominal damages on the defendants-Whites’ trespass claim, the rejection of their slander of title claim, and the denial of their request for sanctions under MCR 2.114 and MCL 600.2591. The Martyns’ predecessors-in-interest, the Rs, built a shed (it consisted of two separate portions built at different times, so the court referred to them as separate structures) on the portion of the Whites’ property at issue. The court agreed with the Whites that the trial court erred in “finding that the use of the older shed existed continuously and uninterrupted for the requisite period of 15 or more years.” Mr. Martyn “admitted that he did not know when the older shed was constructed.” Mr. R testified that he thought he built the older shed in 1999 or 2000, and the second shed 2 years later. Mr. White testified that the second shed was built sometime after his mother moved in with his family in 6/02. “Neither the trial court nor the Martyns point to anything in the record supporting the trial court’s finding that the older shed was built no later than” 3/31/00. The case was filed in 4/15, and the Whites filed an answer and counterclaim on 5/7/15. Since the older shed could have been built in, for example, 6/00, “there was not ‘clear and cogent proof’ of 15 years of continuous and uninterrupted use.” Thus, the Martyns did not “establish that they were entitled to the older shed by virtue of adverse possession.” As to the award of only $1 in trespass damages for each tree wrongfully removed from the property, the trial court found that Martyn cut down 10 living trees with a trunk diameter of 2” or more, but that they were not healthy when cut. This finding was not clearly erroneous given the testimony. The court also held that it was reasonable for the Martyns to file a notice of lis pendens to “protect their alleged interest in the property that the Whites intended to sell, and there was no evidence that the Martyns filed the notice with the intent to injure the Whites.”
Creation of a special assessment district; Kadzban v. City of Grandville; Ahearn v. Bloomfield Charter Twp.; Dixon Rd. Group v. Novi; Differences between a special assessment & a tax; Niles Twp. v. Berrien Cnty. Bd. of Comm’rs; Absence of credible evidence to rebut the presumption of validity; Storm v. Wyoming; Claim that the Tax Tribunal (TT) was biased against petitioner; Mitchell v. Mitchell; Failure to provide a transcript; MCR 7.210(B)(1)(a); Holding a petitioner proceeding in propria persona to the same standards as an attorney; Baird v. Baird; Claim that the court should direct the TT to establish guidelines for special assessment cases; Principle that the court is an error-correcting court; W A Foote Mem’l Hosp. v. Michigan Assigned Claims Plan; Principle that the court does not ordinarily issue advisory opinions or decide a question on which there is no real controversy; Rozankovich v. Kalamazoo Spring Corp.
Noting that the initial burden of rebutting the presumption of the special assessment district’s (SAD) validity was on petitioner, and concluding that he failed to overcome that presumption, the court affirmed the TT’s order that affirmed the SAD created by respondent-City. While he contended that the SAD was invalid due to a perceived procedural irregularity, the court found nothing in the relevant ordinance or in the law that required the action he sought. Further, by “arguing that the City was required to lay out the specific cost to the City, petitioner seeks to avoid the presumption of validity and attempts to impermissibly shift the burden of proof to the City.” This was inconsistent with his acknowledgement that he had “the burden of proof and with extensive case law to that effect.” He next argued that the project’s total costs were never made available to residents at a public meeting. But the court noted that he admitted “this information was available to the public.” He obtained it via the Freedom of Information Act. “The fact that the City did not undertake a cost-benefit analysis using a methodology that petitioner would have preferred or otherwise make public the details of any such analysis undertaken during the assessment process, does not mean that the City did not consider whether the project would benefit properties in” the SAD. The TT could rely on the presumption of validity until he effectively rebutted it. His argument that the TT erred in determining that the City charter limited the City’s contribution to 20% of the costs was “fatally flawed for one reason – he conflates the terms ‘assessment’ and ‘tax.’” He failed to “distinguish between the assessment levy on the residents of the . . . Subdivision and the tax imposed on all of the City’s residents under” a millage for road improvements. The court also held that Ahearn was controlling regardless of the type of project involved, and in any event, he still had the burden of showing “that the assessment did not confer a special benefit to the residents of” his subdivision. Absent a finding that he produced credible evidence to rebut the presumption of validity, the TT lacked any basis to strike down the special assessment.